Armstrong v. Jackson County

Where a local government denies an application on multiple grounds, LUBA will affirm the decision where the petitioner does not challenge at least one of those grounds.

Petitioners grow marijuana in a fenced outdoor production area within a special flood hazard area. Under Jackson County Land Development Ordinance (LDO) 7.2.2(C), development in the special flood hazard area requires a floodplain development permit. However, under LDO 7.2.2(E), “temporary, removable” agricultural structures “should be allowed” in the floodplain without a permit as long as their removal can be assured by fall or prior to the rainy season. Under LDO 7.2.13(F), “[f]encing and walls located in the special flood hazard area require a floodplain development permit.” Under LDO 1.8.2(A), when a violation of the LDO “is documented to exist on a property, the County will deny any and all development permits.”

Petitioners applied for nonconforming use verification for their marijuana production. Although they do not have a floodplain development permit, they argued that, because their fence is temporary, removable, and associated with marijuana production, which is an agricultural use, their fence does not require a permit under LDO 7.2.2(E). The county concluded that, even if petitioners’ fence is “temporary” and “removable,” the language of LDO 7.2.2(E) is not mandatory and does not obligate the county to exempt petitioners from obtaining a permit. Alternatively, the county found that petitioners’ fence is not “temporary” and “removable” and concluded petitioners are therefore in violation of LDO 7.2.2(C). In addition, and alternatively, the county concluded petitioners’ unpermitted fence violates LDO 7.2.13(F). The county therefore concluded it was prohibited from approving the application under LDO 1.8.2(A). This appeal followed.

In the second assignment of error, petitioners argue that, because they submitted an affidavit stating the fence is removable and will be removed at the end of the growing season, the county’s finding that the fence is not “temporary” and “removable” is not supported by substantial evidence. In the first assignment of error, petitioners argue the county misconstrued applicable law in concluding LDO 7.2.2(E) does not require the county to exempt petitioners’ fence from the permit requirement. The county found that the fence is affixed to the ground and not removable based on photographs depicting the fence in the special flood hazard area during the rainy season over many years. Because a reasonable person could rely on that evidence, LUBA concludes the county’s finding is supported by substantial evidence. However, because petitioners do not challenge the county’s conclusion that the fence violates LDO 7.2.13(F), and because that provides an independent basis for the denial, LUBA concludes petitioners’ arguments provide no basis for reversal or remand. The county’s decision is therefore AFFIRMED.