1625 Sherman Ave. LLC v. City of North Bend

Where a local government’s findings merely respond to a petitioner’s arguments, LUBA will not find, without more, sufficient grounds for concluding that the local government exercised policy or legal judgment in reaching its decision.

Petitioner acquired retail space in an area zoned General Commercial (C-G), where they intended to establish a retail marijuana business, and obtained a land use compatibility statement (LUCS) from the City to apply for their OLCC license. The LUCS stated marijuana retail was a permitted use of the space. When Petitioner applied to the City for an Occupancy Permit to operate a retail business in a C-G zone and an Annual Marijuana Retailer’s Permit (Retailer’s Permit), the City denied both applications. On appeal to the city council, Petitioner claimed that their previously issued LUCS required the City to issue them a Retailer’s Permit, and the city council adopted findings in response, noting that the City’s business regulations did not allow for such a variance.

Petitioner appealed the city council’s decision to LUBA. The City moved to dismiss for lack of jurisdiction, arguing: 1) As to the denial of Petitioner’s Retailer’s Permit, the City’s business licensing regulations were not “land use regulations”; 2) As to the denial of Petitioner’s Occupancy Permit, it was subject to the ministerial decision exclusion because it did not involve the exercise of policy or legal judgment. LUBA has exclusive jurisdiction to review any land use decision. ORS 197.825(1). A land use decision “concerns the adoption, amendment or application of. . . [a] land use regulation[.]" ORS 197.015(10)(a)(A)(iii). A "[l]and use regulation" means "any local government zoning ordinance. . . or similar general ordinance establishing standards for implementing a comprehensive plan." ORS 197.015(11). A local government decision “made under land use standards that do not require interpretation or the exercise of policy or legal judgment” is subject to the “ministerial decision exclusion” and not within LUBA’s jurisdiction. ORS 197.015(10)(b)(A). A petitioner cannot use a local government’s comments made during the decision-making process to bring an otherwise excluded decision under LUBA’s jurisdiction. Madrona Park, LLC v. City of Portland, __ Or. LUBA __, __ (LUBA No. 2019-032, July 17, 2019), aff’d, 300 Or. App. 403 (2019). LUBA determined that the City’s denial of Petitioner’s Retailer’s Permit did not come under its jurisdiction because the City’s business regulations were not otherwise “land use regulations,” and did not appear to implement the City’s comprehensive plan. Conversely, LUBA determined the City’s denial of Petitioner’s Occupancy Permit was a “land use decision” because it applied the City’s zoning ordinances. However, LUBA reasoned that because the decision to deny the Occupancy Permit was based only on whether zoning provisions were met and did not involve a policy or legal judgement, it was subject to the ministerial decision exception. LUBA further reasoned that because Petitioner did not dispute the City’s conclusions and instead claimed the City had made a legal or policy judgement when responding to Petitioner’s argument regarding the LUCS, the City’s response to Petitioner’s argument was not sufficient on its own to establish LUBA’s jurisdiction. LUBA concluded it lacked jurisdiction to hear the appeal.

Dismissed.