MJAI Oregon 5 LLC v. Linn County

ORS 197.835(10)(a) requires reversal of a denial decision when LUBA determines that the local government lacks the discretion to deny the development application.

Petitioner appeals a county decision denying its application for site plan approval for indoor and outdoor marijuana production on land zoned for exclusive farm use (EFU). Petitioner’s site plan conforms to applicable dimensional standards, and petitioner submitted evidence that the proposed marijuana production operation would comply with operational standards. While the planning director approved petitioner’s application with conditions, that decision was appealed to the planning commission, which denied petitioner’s site plan review application based on its conclusion that the application does not comply with the applicable odor control and waste management standards. Petitioner appealed the planning commission’s decision to the board of commissioners, which affirmed the planning commission’s decision. This appeal followed.

In its first and second assignments of error, petitioner argues that the county erred by improperly construing the applicable law and acting outside its range of discretion in deciding that petitioner’s proposal did not comply with LCC 940.400(A)(5) regarding odor control standards and LCC 940.400(A)(9) regarding waste management standards. While petitioner submitted evidence that the project would comply with both provisions, the planning commission found that petitioner’s evidence did not demonstrate that the proposed filtration system would mitigate odor impacts on surrounding properties, did not describe the herbicides and pesticides that would be used for marijuana production, did not provide adequate evidence to address concerns raised about the effects of contaminated water runoff from marijuana production, and did not address how or where the marijuana waste would be disposed. Petitioner argues, and LUBA agrees, that LCC 940.400(A)(5) does not apply to outdoor marijuana production and does not include any express requirement that a marijuana producer “mitigate” odor impacts on surrounding properties. Petitioner also argues, and LUBA agrees, that LCC 940.400(A)(9) does not require petitioner to describe the herbicides and pesticides it may use on the property for producing marijuana or address any concerns regarding water runoff or how the marijuana waste is ultimately disposed. Petitioner’s first and second assignments of error are therefore sustained.

ORS 197.835(10)(a) requires reversal of a denial decision when LUBA determines that the local government lacks the discretion to deny the development application. Because the planning commission denied the site plan review application based solely on considerations not found in any applicable approval criteria, LUBA agrees with petitioner that the county’s decision was “outside the range of discretion allowed the local government under its comprehensive plan and implementing ordinances” and the county’s decision is therefore REVERSED.