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Diesel v. Jackson County

Court of Appeals of Oregon

March 8, 2017

Sandra DIESEL, Petitioner,
v.
JACKSON COUNTY, Respondent.

          Argued and submitted December 9, 2016

         Land Use Board of Appeals 2016039;

          Ross A. Day argued the cause for petitioner. With him on the brief were Matthew Swihart and Day Law & Associates, PC.

          Joel Benton argued the cause and fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Petitioner, a resident of Jackson County, seeks judicial review of an order by the Land Use Board of Appeals (LUBA) in which LUBA affirmed Jackson County's adoption of two ordinances. Those ordinances, which are substantively identical, made changes to Jackson County's zoning laws to regulate medical and recreational marijuana activity within the county. Central to this case is Jackson County's decision not to authorize medical or recreational marijuana production on lands zoned rural residential. Petitioner argues that LUBA's order is "unlawful in substance, " ORS 197.850(9)(a), for two reasons. Specifically, petitioner contends that LUBA erred "as a matter of law, " first, when it determined that the ordinances were not inconsistent with Jackson County's comprehensive plan and, second, when it determined that the ordinances were "reasonable regulations" as authorized by ORS 475B.340. Held: LUBA's order is not "unlawful in substance." First, nothing cited by petitioner demonstrates that Jackson County's decision not to authorize marijuana production on rural residential land was inconsistent with the county's comprehensive plan. Second, petitioner failed to show that LUBA erred as a matter of law in determining that the ordinances are "reasonable regulations" as authorized by ORS 475B.340.

         Affirmed.

          SHORR, J.

         Petitioner seeks judicial review of an order by the Land Use Board of Appeals (LUBA) affirming the adoption of two ordinances by respondent Jackson County. Those ordinances amended the county's Land Development Ordinance (LDO) to establish, among other things, the types of land on which medical and commercial marijuana cultivation would be permitted. In the first of her two assignments of error, petitioner contends that LUBA erred when it concluded that the ordinances' prohibition of marijuana production on lands zoned "rural residential" was consistent with the county's comprehensive plan. In her second assignment of error, petitioner contends that LUBA erred when it concluded that the ordinances' prohibition of marijuana production on rural residential lands is a "reasonable regulation" of marijuana cultivation authorized by ORS 475B.340. As explained below, we affirm LUBA's decision.

         We begin with a brief overview of the relevant law and procedural history. In 1998, Oregon voters approved the Oregon Medical Marijuana Act (OMMA), legalizing under state law the production and sale of marijuana for medical purposes. Or Laws 1999, ch 4. The OMMA was codified in ORS chapter 475B. In 2014, Oregon voters approved Ballot Measure 91, which legalized the production and sale of marijuana for recreational use under state law. Or Laws 2015, ch 614.[1] Following the passage of Ballot Measure 91, the legislature adopted additional legislation enacting changes to both the medical and recreational marijuana statutes, including the provisions at issue in this appeal. Ballot Measure 91 and the subsequent enactments were also codified in ORS chapter 475B.

         ORS 475B.370 and ORS 475B.340 are central to this case. As relevant, ORS 475B.370 establishes that marijuana is "a crop" as the term is used in various farming and agriculture statutes. Those statutes include ORS 215.203, which authorizes local governments to adopt "exclusive farm use" zones and defines "farm use, " in part, as "the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops." ORS 475B.340 authorizes local governments to "adopt ordinances that impose reasonable regulations" on businesses licensed to produce or process marijuana or sell marijuana wholesale or retail under Oregon's recreational marijuana scheme. ORS 475B.340(2). The statute sets out some exceptions to what types of conditions a local government may impose on those activities and defines the term "reasonable regulations" to include, among other things, "reasonable limitations on where a premises for which a license or certificate for [recreational marijuana production, processing, or wholesale or retail sale] may be located." ORS 475B.340(1)(g).[2]

         The facts relevant on review are brief and are drawn from LUBA's order and the local government record.[3]McPhillips Farm, Inc. v. Yamhill County, 256 Or.App. 402, 404, 300 P.3d 299 (2013). Following the enactment of the relevant provisions of ORS 475B.340 and ORS 475B.370, the county approved the two ordinances that are the subject of this appeal: Ordinance 2016-3 and Ordinance 2016-4. The two ordinances are identical, except that Ordinance 2016-4 was enacted as an emergency ordinance of temporary duration and has since been superseded by the permanent Ordinance 2016-3. For the sake of clarity, we refer to both the ordinances as "the ordinance" for the remainder of this opinion. The ordinance amended the county's LDO, which regulates land use within the county, to include various regulations on marijuana-related land use. Among various changes it made, the ordinance established the types of land on which medical and recreational marijuana production would be allowed and on which types it would be prohibited.[4]

         Section 2 of the ordinance, under the heading Legal Findings, states that, as a result of the recent legislative enactments, "recreational and medical marijuana production are considered a 'farm use.' The Board of Commissioners finds the Jackson County Land Development Ordinance does not allow a 'farm use' to occur within the Rural Residential and Rural Use zoning districts." The ordinance amended the LDO to allow marijuana production on lands zoned exclusive farm use (EFU), forest, and general and light industrial. Marijuana production was not authorized on lands zoned rural residential, rural use, urban residential, and commercial.

         Petitioner, a resident of Jackson County, testified against the ordinance before the county board of commissioners. After the board of commissioners adopted the ordinance, petitioner appealed to LUBA, arguing that the ordinance was unlawful because it conflicted with the county's comprehensive plan. Petitioner also argued that the ordinance was invalid because it was not a "reasonable regulation" as described and authorized under ORS 475B.340. Specifically, petitioner argued that the county had to demonstrate that it had a "substantial government interest" in adopting the regulation in order for it to be reasonable. LUBA ultimately rejected petitioner's arguments and affirmed the county's adoption of the ordinances. Petitioner's arguments and LUBA's determination of petitioner's assignments of error are discussed in the course of our analysis below.

         We begin our analysis with our standard of review. On review, we may reverse or remand a LUBA order only if it is "unlawful in substance or procedure, " "unconstitutional, " or "not supported by substantial evidence in the whole record as to facts found" by LUBA. ORS 197.850(9). Petitioner appears to contend in each assignment of error that the LUBA order is "unlawful in substance, " in that LUBA erroneously interpreted the law. For that reason, our role is to determine whether LUBA has made a "mistaken interpretation of the applicable law." Mountain West Investment Corp. v. City of Silverton, 175 Or.App. 556, 559, 30 P.3d 420 (2001). Based on our analysis below, we conclude that LUBA correctly interpreted the applicable law.

         In petitioner's first assignment of error, she contends that LUBA "erred as a matter of law" when it concluded that the ordinance did not conflict with the county's comprehensive plan. Before LUBA, petitioner argued that, "[t]o the extent the Ordinance prohibits marijuana production (a farm use) on rural residential lands within the County, the Ordinance conflicts with the County's comprehensive plan, " and is therefore invalid. See ORS 197.835(7)(a) ("[LUBA] shall reverse or remand an amendment to a land use regulation or the adoption of a new land use regulation if * * * [t]he regulation is not in compliance with the comprehensive plan."). Petitioner argued that the county's comprehensive plan "requires that marijuana be allowed to be grown on rural residential lands" and, as evidence, quoted a paragraph from the ...


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