Armstrong v. Jackson County

LUBA may remand a decision to the local government to provide an essential interpretation that the decision omits.

Petitioners appeal a county decision denying their application for nonconforming use verification for various structures associated with medical marijuana production on property zoned rural residential (RR). The structures are situated north of a creek within a portion of the floodplain where the flood elevation has not been determined. Under the county’s Land Development Ordinance (LDO), any development in the floodplain requires a floodplain development permit prior to initiating development. In addition, under LDO 1.8.2(A), the county must deny all development permits when a violation of the LDO is documented to exist unless the application addresses the remedy for the violation. However, under LDO 7.2.2(E), a floodplain development permit is not required for agricultural uses as long as they are movable structures and uses that can be removed prior to the rainy season. Because petitioners did not obtain or apply for a floodplain development permit, and because the record contained no evidence that the structures had been removed from the floodplain, the county denied petitioners’ application. In addition, because the record did not include any evidence that the subject property contained a usable area outside the floodplain, the county decided any exemption under LDO 7.2.2(E) could not be applied.

In their sole assignment of error, petitioners argue that the county erred in denying their application because growing marijuana is an exempt agricultural use and because the structures would be relocated outside the floodplain depending on the outcome of a future survey determining its boundary. Because the LDO does not expressly require that temporary structures removed from the floodplain be stored on the subject property itself, LUBA agrees with petitioners that the county erred in failing to address whether the structures were exempt from the permit requirement. Because LUBA will not interpret and apply LDO 7.2.2(E) in the first instance, the assignment of error is sustained and the county’s decision is REMANDED.