Juniper Institute, LLC v. Deschutes County

Whether a right-of-way grant is ambiguous or not is a question of law, as is the question whether a conditional use permit applicant has borne their burden of satisfying the conditional use criteria.

Juniper Institute applied for a conditional use permit (CUP) to open a psilocybin service center on land in Deschutes County which is only accessible by roads managed under a right-of-way agreement with the federal Bureau of Land Management (BLM ROW). Deschutes County denied Juniper’s CUP, arguing that the site cannot be adequately accessed because it is illegal to transport psilocybin on federal land. See Deschutes County Code 18.128.015(A)(2). The Land Use Board of Appeals (LUBA) reversed the CUP denial, ruled the site was accessible under the DCC, and deemed it ambiguous whether BLM ROW banned the proposed use of the site. Deschutes County appealed LUBA’s reversal.

Under Oregon state law, a county may enact reasonable limitations on where it licenses certain premises. See ORS 475A.530(2). The court ruled that the County acted reasonably by finding that the psilocybin service centers were inaccessible because the BLM ROW did not not expressly allow them. Subsequently, the court ruled that LUBA’s order was “unlawful in substance” because it deferred from the County’s plausible interpretation of the BLM ROW. Further, the court ruled that LUBA’s order misapplied the law because Juniper failed to meet its burden to show an express reason why the facility would be suitable under the BLM ROW.

"Reversed and remanded."