Diesel v. Jackson County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 09-13-2016
  • Case #: 2016-039/055
  • Judge(s)/Court Below: Opinion by Ryan

ORS 197.620(1) provides LUBA with jurisdiction to review county decisions that adopt a legislative amendment, regardless of whether the amendment change the status quo.

     Sandra Diesel (petitioner) appealed two county ordinances: 2016-3 and 2016-4, which adopted amendments to the Jackson County Land Development Ordinance (LDO). Ordinance 2016-3 amended LDO to regulate “the production, processing, wholesaling, and retail sale of marijuana.”

     Petitioner and the county disagreed over what changes 2016-3 actually made to the LDO, and whether the prohibition of growing marijuana in the Rural Residential(RR) zone was constitutionally permissible. The county first argued that ORS 197.620(1) denied LUBA jurisdiction to review the county decision because it did not amend the LDO. The petitioner responded that 2016-3 amended the LDO to prohibit marijuana in the RR zone where it was previously allowed. The county argued the production of marijuana was not previously allowed in the RR. LUBA determined that it was undisputed that the county substantively adopted a decision amending the LDO by expressly prohibiting marijuana production in the RR zone. LUBA rejected the county’s argument that the decision was “not appealable” under ORS 197.620(1).

     Petitioner’s first assignment of error was that Ordinance 2016-3 did not comply with the Jackson County Comprehensive Plan (JCCP). LUBA disagreed, finding that the petitioner failed to demonstrate that amending the LDO to prohibit marijuana production on RR lands was inconsistent with the JCCP.

     Petitioner next contended that the county’s prohibition on production of marijuana in the RR zone was not a “reasonable regulation” under ORS 475B.340(2) and 475B.500(2). The petitioner argued that amendments to the LDO to prohibit marijuana production on certain lands must serve a significant government interest. LUBA found that petitioner failed to establish that marijuana production is a protected interest under the First Amendment, and that the county’s regulation of growing marijuana in this respect was not an unreasonable regulation within the meaning of ORS 475B.340 and 475B.500. LUBA denied both assignments of error. AFFIRMED.