Waveseer of Oregon, LLC v. Deschutes County

Under ORS 215.416(8)(a), permit approval standards and criteria must inform interested parties of the basis on which an application will be approved or denied.

The subject property is zoned Exclusive Farm Use (EFU) and is adjacent to properties that host youth-oriented equestrian and agricultural activities. Petitioner applied to develop an indoor marijuana production facility on the subject property. Under ORS 475B.486(1)(g), the county is authorized to impose reasonable limitations on the location of marijuana production facilities. Under Deschutes County Code (DCC) 18.116.330(B)(7)(a)(iv), marijuana production facilities in the EFU must be at least 1,000 feet from “youth activity centers,” measured from the lot line of the property used as a youth activity center to the closest point of the buildings and land area occupied by the marijuana producer. “Youth activity center” is not defined in the DCC. Interpreting that phrase to include any place where youth activities “regularly” occur, the county found that the adjacent uses qualified as youth activity centers. In turn, because the marijuana production facilities on the subject property would be less than 1,000 feet from the adjacent properties, the county denied the application. This appeal followed.

In the third assignment of error, petitioner argues the county’s interpretation is unreasonable and, therefore, in violation of ORS 475B.486(1)(g). Specifically, because the adjacent activities constitute agri-tourism or other commercial activities, which require land use approval, and because those activities had not received land use approval, petitioner argues they could not constitute “youth activity centers.” Otherwise, petitioner argues, it would be impossible for marijuana producers to know whether a youth activity center exists within the required separation buffer area. The county responds that, because the equestrian activities are a farm use and the agricultural activities are accessory to residential and farm uses—all of which are permitted outright in the EFU zone—no land use approval was required.

Under ORS 215.416(8)(a), permit approval standards and criteria must inform interested parties of the basis on which an application will be approved or denied. LUBA agrees with petitioner that, because, under the county’s interpretation, there is no way for an applicant to determine if a particular EFU-zoned property could be used for marijuana production, and because the county’s interpretation would allow it to deny an application when any neighboring property owner testified that youth-oriented activities regularly occur within the separation buffer, the county’s interpretation is unreasonable as applied in this case. The third assignment of error is therefore sustained and the county’s decision is REMANDED.