Waveseer of Oregon, LLC v. Deschutes County

(1) Counties are not prohibited as a matter of law from applying separation buffers to marijuana production facilities in EFU zones. (2) 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 that criterion to an application. (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) by applying a list of factors set out in a prior quasi-judicial decision to assist in determining whether a specific use is a “youth activity center.” (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 goal-post rule at ORS 215.427(3)(a) by applying a list of factors set out in a prior quasi-judicial decision to assist in determining whether a specific use is a “youth activity center” where that quasi-judicial decision was not issued until after the application was submitted. (5) 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 governing body’s interpretation of that phrase to mean any place where youth activities occur—even if that place was not “built, constructed, installed, or established” to serve or facilitate “youth activities,” and even where other local code provisions using the term “center” support a different interpretation—is inconsistent with the provision’s text and context.

Petitioner applied to develop a marijuana production facility on property zoned exclusive farm use (EFU). An adjacent property contains a ranch that hosts youth-oriented equestrian activities. Another adjacent property contains a residence that hosts youth-oriented 4-H agricultural 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 relied on a list of factors set out in a prior quasi-judicial decision, 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 properties constitute youth activity centers. In turn, because the proposed marijuana production facility is less than 1,000 feet from those properties, the county denied the application. This appeal followed.

Under ORS 475B.526(1)(a), marijuana production is a “farm use.” Under ORS 215.203, EFU land is reserved “exclusively for farm use.” Under ORS 215.253(1), local governments generally may not impose regulations “that would restrict or regulate farm structures or that would restrict or regulate farming practices” within an EFU zone. In the first assignment of error, petitioner argues the county’s decision violates state law because it prohibits a farm use on EFU land. Under ORS 475B.486(2), “notwithstanding” ORS 215.253(1), local governments may impose “reasonable regulations” on marijuana production facilities on EFU land. In addition, under ORS 475B.486(2)(b), local governments may not impose setback requirements for marijuana production facilities constructed by July 1, 2015—meaning that local governments may impose setback requirements for marijuana production facilities constructed after that date, such as the ones proposed here. LUBA therefore agrees with the county that it is not prohibited as a matter of law from applying separation buffers to marijuana production facilities in EFU zones. The first assignment of error is denied.

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. The Court of Appeals has held that, in order to satisfy the codification requirement, standards must be sufficiently definite to give the parties and the decision-maker an understanding of what proof and arguments are necessary to show that the application complies with those criteria and to make the outcome capable of prediction by the decision-maker. Under ORS 215.427(3)(a), also known as the goal-post rule, approval or denial of an application must be based on standards and criteria that were applicable when the application was submitted.

In the second assignment of error, petitioner argues the county’s decision violates the codification requirement because the phrase “youth activity center” and the quasi-judicial factors are too indefinite to constitute criteria, and because the quasi-judicial factors are not codified. Petitioner also argues the county’s decision violates the goal-post rule because the prior quasi-judicial decision was not issued until after petitioner submitted their application. The county responds that the quasi-judicial factors can reasonably be “gleaned” from prior quasi-judicial decisions. Because quasi-judicial decisions are not codified, and because local governments are not bound to interpret local code provisions in the same manner as prior quasi-judicial proceedings, LUBA agrees with petitioner that the county’s application of the quasi-judicial factors violated the codification requirement. In addition, because the DCC does not reasonably inform parties what evidence and argument address the “youth activity center” criterion and, therefore, because no party could reasonable predict whether and when the county would determine that a specific use is a “youth activity center,” LUBA agrees with petitioner that the phrase “youth activity center” is too indefinite to constitute a criterion, and that the county’s application of it also violated the codification requirement. LUBA also agrees with petitioner that the county’s application of the quasi-judicial factors violated the goal-post rule. The second assignment of error is therefore sustained. 

In the third assignment of error, petitioner argues the county’s interpretation of “youth activity center” is inconsistent with the text and context of DCC 18.116.330(B)(7). The dictionary definition of “center” includes “facility.” The dictionary defines “facility” as something that is “built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.” This meaning is supported by other DCC provisions using the term “center.” Although one of the quasi-judicial factors considers whether there is a “[s]eparate building, facility, or area for use,” the county stated that no one factor is dispositive, meaning that the county’s interpretation does not require a “center” at all. In addition, because the county concluded that the adjacent properties were youth activity centers merely because youth activities occur there, even though the properties were “built, constructed, installed, or established” for residential and ranching uses and not youth activities, LUBA agrees with petitioner that the county’s interpretation is inconsistent with the text and context of DCC 18.116.330(B)(7). The third assignment of error is 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.