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LUBA Fires First Shots Across Deschutes County Bow 

Will it be the first of many?

For the first time since marijuana production has been legal in Deschutes County, the Board of County Commissioners received some feedback from the Oregon Land Use Board of Appeals about how their interpretations of marijuana land-use rules square with state law.

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The feedback was pretty simple: Try again.

In a unanimous opinion filed Oct. 17, LUBA struck down one of the County's decisions denying a land-use permit to Waveseer of Oregon for marijuana production. County Commissioners in February had voted 2-0 to deny the application (Commissioner Tony DeBone was absent; the two "no" votes were from Commissioners Patti Adair and Phil Henderson) on the basis that the facility was proposed to exist too close to Rhinestone Ranch, which Henderson and Adair claimed fit the description of a "Youth Activity Center," (which requires a 1,000-foot buffer from any marijuana farm).

The Youth Activity Center issue has been frequently put before the County by residents who object to proposed marijuana farms in rural farm areas. A YAC is not defined in the Deschutes County Code, so its definition has been essentially manufactured through an amalgamation of county decisions by Commissioners, specifically by Adair and Henderson.

In the case of the Waveseer decision, neighbors appealed and insisted that the for-profit Rhinestone Ranch was a YAC because the ranch frequently hosted children (as well as adults) on its land for horseback riding lessons. In a more recent case, Commissioners struck down another marijuana application because it was close to an Exclusive Farm Use parcel that catered to families seeking to purchase timeshare recreational activities. That application was denied 2-1, with DeBone dissenting.

In the case of Waveseer, the County concluded that the "properties rise to the level of a YAC due to their inherent characteristic as being a place where activities center around youth on a regular basis."

In its appeal to LUBA, Waveseer argued that Rhinestone Ranch was more akin to agritourism, or other forms of commercial activities. Waveseer further argued that the County's classification of YACs as set out in their denial would create a "slippery slope" resulting in "illogical and unreasonable results."

"What would prevent neighbors from merely claiming that their property engages in youth activities if no permit is required?" Waveseer asked.

LUBA agreed, finding that the County's Waveseer decision offers zero guidance to potential marijuana entrepreneurs seeking land in the EFU zone such that they won't be surprised by a pop-up YAC. 

"[T]he county's broad interpretation of 'youth activity center' is unreasonable," LUBA held, "because there is no way for an applicant to determine if a particular EFU-zoned property could be used for marijuana production. ... [T]he county's interpretation of youth activity center is so amorphous and uncertain that we conclude it is unreasonable."

LUBA went on to say that, while a YAC is undefined in the Deschutes County Code, it's possible that a property could qualify as a YAC under the right set of circumstances: "[W]hile we doubt whether a youth-oriented farm use or residential use could limit farm use on property that is zoned EFU, it may be that, under different facts and circumstances, the county could interpret the undefined phrase 'youth activity center' in a manner that would not violate" state law.

LUBA Board member Melissa Ryan wrote a concurring opinion in which she parsed some detail out of why the County's definition of a YAC is problematic.

First, Ryan noted that the County's definition of a YAC—"a place where activities center around youth on a regular basis"—improperly employs the word "center" as a verb, which changes the definition. As properly used in the form of a noun, Ryan said, quoting Webster's Dictionary: [A] 'youth activity center' is a place 'built, constructed, installed, or established' to serve or facilitate 'youth activit[ies].'"

Moreover, Ryan noted that elsewhere in the Deschutes County Code, "center" describes places that included a "facility" devoted to a specific use, such as "community center" and "child-care center," both of whose definitions in the Code include the term "facility" to describe them. In the Board's definition of "youth activity center," however, Ryan notes that no such credence is given to the impact of the word "center" in its noun form, and as used elsewhere in the DCC.

LUBA's decision does not automatically grant Waveseer a land-use permit, but rather remands the case back to the County for more hearings. This case could also go to the Oregon Court of Appeals, if the County chooses to take that step.

Since Waveseer was not the only recent County decision in which Adair and Henderson defined YACs out of whole cloth, we're likely to see more LUBA denials, and more remands.

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