H2D2 Properties LLC v. Deschutes County

(1) A petitioner errs by requiring the reviewing body to comb the record to determine if an issue is preserved. (2) A local government is not required to condition an approval, rather than deny a noncompliant application.

Petitioner applied for a conditional use permit (CUP) and site plan review for a marijuana dispensary. Under Deschutes County Code (DCC) 18.116.030(F) and Table 18.116.030, access to the site must be 24 feet wide. Under DCC 18.67.040, county-wide delivery services are not permitted as a primary purpose in the relevant zone. In addition, under DCC 18.128.015 and 18.124.060, conditional uses and site plans must “relate harmoniously” to their surroundings. Because only 20 feet of the 30-foot-wide access easement is paved; because petitioner explained that the purpose of the dispensary is to provide delivery services in the county; and because opponents objected to the concentration of businesses selling intoxicants in the area, its effects on livability, its consistency with community values, and its compatibility with surrounding uses, the county denied the application. This appeal followed.

Under ORS 197.763(1) and 197.835(3), LUBA’s scope of review is generally limited to issues that were raised below. Under OAR 661-010-0030(4)(d), each assignment of error must demonstrate that the issues it raises were preserved. Because petitioner cites to the entirety of its submittals under each assignment of error, LUBA concludes petitioner has failed to comply with these provisions. While not a technical violation, LUBA agrees with the county that a petitioner errs by requiring the reviewing body to comb the record to determine if an issue is preserved, and that such a lack of specificity interferes with the substantial rights of the parties. While each assignment of error is therefore denied, LUBA addresses the first assignment on the merits.

In the first assignment of error, petitioner argues the county erred by not imposing a condition of approval requiring petitioner to expand the paved portion of the access easement to 24 feet, given that the easement itself is 30 feet wide. Under DCC 18.128.015(C), while the DCC authorizes the county to impose conditions to ensure compliance, it does not require that it do so. Because a local government is not required to condition an approval, rather than deny a noncompliant application, the first assignment of error is denied and the county’s decision is AFFIRMED.