Nehmzow v. Deschutes County

(1) While failure to preserve an issue for review under ORS 197.763(1) and ORS 197.835(3) removes that issue from the scope of LUBA’s review, it does not deprive LUBA of jurisdiction to review the appeal. (2) Where a petitioner cites to over a hundred pages in each of its preservation of error statements, but where respondents do not argue that the issues were not raised during the local proceeding, where petitioner provides more focused record citations in their reply brief, and where it is evident from the challenged decision itself that the issues were raised during the local proceedings, such failure to adequately specify where issues were preserved in the petition for review is a technical violation that does not prejudice respondents’ substantial rights. (3) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a)—and therefore violates the requirement at ORS 475B.486(2) that local regulations of marijuana production facilities be “reasonable”—by applying that criterion to an application to develop a marijuana production facility. (4) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a) by applying a list of factors derived from other quasi-judicial proceedings to assist in determining whether a specific use is a “youth activity center.”

Petitioner applied to develop a marijuana production facility on property zoned exclusive farm use (EFU). An adjacent property contains a recreational community that hosts youth-oriented activities. Under Deschutes County Code (DCC) 18.116.330(B)(7), marijuana production facilities in the EFU zone must be at least 1,000 feet from a “youth activity center.” The DCC does not define “youth activity center” or use that phrase elsewhere. The county interpreted that phrase generally as “gathering places for children.” The county also set forth a list of factors, derived from other quasi-judicial proceedings, to assist in determining whether a specific use is a “youth activity center.” Applying those factors, the county concluded the adjacent property constitutes a youth activity center. In turn, because the proposed marijuana production facility is less than 1,000 feet from the property, the county denied the application. This appeal followed.

Respondents argue that, because petitioner did not raise certain issues during the local proceedings, LUBA lacks jurisdiction to review the appeal. Under ORS 197.763(1), in order to preserve an issue for LUBA’s review, the party must raise the issue “not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government.” Under ORS 197.835(3), LUBA’s scope of review is limited to those issues “raised by any participant before the local hearings body.” Under ORS 197.825(2)(a), LUBA’s jurisdiction “[i]s limited to those cases in which the petitioner has exhausted all remedies available by right before petitioning the board for review.” LUBA concludes that, although the exhaustion requirement at ORS 197.825(2)(a) is jurisdictional, and failure to seek review in an available local appeal deprives LUBA of jurisdiction, the preservation principles at ORS 197.763(1) and ORS 197.835(3) are merely prudential, and failure to preserve an issue for review, while removing that issue from the scope of LUBA’s review, does not deprive LUBA of jurisdiction. Because respondents do not argue petitioner failed to exhaust their administrative remedies, LUBA concludes it has jurisdiction.

In the petition for review, petitioner cites over a hundred pages to demonstrate that each of its three assignments of error were preserved. Respondents argue that these preservation of error statements are overbroad, and that LUBA should therefore deny all three assignments of error. LUBA will not search large page range citations of the record to determine whether an issue was raised below. However, because respondents do not argue that the issues were not raised during the local proceeding, because petitioner provides more focused record citations in their reply brief, and because it is evident from the challenged decision itself that the issues were raised during the local proceedings, LUBA concludes petitioner’s failure to adequately specify where issues were preserved in the petition for review is a technical violation that does not prejudice respondents’ substantial rights. The issues are therefore preserved.

Under ORS 475B.486(2), local governments may impose only “reasonable” regulations on marijuana production facilities. Under ORS 215.416(8)(a), also known as the codification requirement, permit approval standards and criteria set out in local regulations must inform interested parties of the basis on which an application will be approved or denied. In the first and second assignments of error, petitioner argues the county’s interpretation of “youth activity center” is impermissibly indefinite, violates the codification requirement, and is therefore unreasonable. LUBA agrees with petitioner that, because the county’s interpretation of “youth activity center” could encompass any place where children may stay, engage in activities, or use some of the recreational facilities, and because it therefore provides no way for an applicant to determine if a particular EFU-zoned property could be used for marijuana production, the interpretation violates the codification requirement and is therefore unreasonable. LUBA also agrees with petitioner that the county’s reliance on a list of uncodified factors derived from other quasi-judicial proceedings violates the codification requirement, as well. These assignments of error are therefore sustained. Because the facts are undisputed, because nothing can be changed by a remand, and because there is no other basis for the county to deny the application, the county’s decision is REVERSED.