No. 114 February 22, 2024 91

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE ex rel ELITEXTRX, LLC, 

an Oregon limited liability company,

Plaintiff-Appellant,

v.

Scot SIEGEL, 

Planning Director of Multnomah County, 

and MULTNOMAH COUNTY,

Defendants-Respondents.

Multnomah County Circuit Court

22CV15736; A179527

Stephen K. Bushong, Judge.

Argued and submitted October 23, 2023.

Kevin J. Jacoby argued the cause for appellant. Also on 

the brief were Brittany Adikes and Green Light Law Group.

Katherine Thomas argued the cause for respondents. 

Also on the brief was Jenny M. Madkour.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

POWERS, J.

Affirmed.
92 State ex rel Elitextrx, LLC v. Siegel

POWERS, J.

This is an appeal from a circuit court’s dismissal of a 

mandamus action brought by plaintiff Elitextrx, LLC against 

the planning director for Multnomah County and Multnomah 

County (collectively, the county). The circuit court dismissed 

the action, agreeing with the county’s position that, under 

ORS 475C.053, it was not yet required to issue the Land Use 

Compatibility Statement (LUCS) that plaintiff requested in 

connection with obtaining a license to relocate its marijuana 

production facility. Construing ORS 475C.053(2), we conclude 

that whether a land use is “outright permitted” or “conditional,” as those terms are used in the statute, depends on 

whether the proposed use requires discretionary local permit approval “within the given zoning designation where the 

land is located.” Here, the county zoning designation requires 

such discretionary approval and, thus, the county was not 

required to issue the LUCS before plaintiff obtained that discretionary approval. Accordingly, we affirm.

We start with a brief overview of the governing 

statutes and county ordinances. To obtain a marijuana 

production license from the Oregon Liquor and Cannabis 

Commission (OLCC), ORS 475C.065, an applicant must 

request a LUCS from the city or county that authorizes the 

land use, ORS 475C.053.1 See also, e.g., OAR 845-025-1090

1 ORS 475C.053 was amended in 2023 after the circuit court’s decision in 

this case. Or Laws 2023, ch 519, § 10. Because that amendment did not change 

any operative text in the statute, we cite to the current version. ORS 475C.053 

provides, in full:

“(1) Prior to receiving a license under ORS 475C.065, 475C.085, 475C.093, 

475C.097 or 475C.548, an applicant shall request a land use compatibility 

statement from the city or county that authorizes the land use. The land 

use compatibility statement must demonstrate that the requested license is 

for a land use that is allowable as a permitted or conditional use within the 

given zoning designation where the land is located. The Oregon Liquor and 

Cannabis Commission may not issue a license if the land use compatibility 

statement shows that the proposed land use is prohibited in the applicable 

zone.

“(2) Except as provided in subsection (3) of this section, a city or county 

that receives a request for a land use compatibility statement under this section must act on that request within 21 days of:

“(a) Receipt of the request, if the land use is allowable as an outright 

permitted use; or

“(b) Final local permit approval, if the land use is allowable as a conditional use.
Cite as 331 Or App 91 (2024) 93

(2)(a) (providing that OLCC “[m]ust receive a land use compatibility statement from the city or county that authorizes 

land use in the city or county in which the applicant’s proposed premises is located prior to acting on an application 

***”); OAR 845-025-1180(2)(b) (similarly requiring a LUCS 

for an application for a change of location “for the new proposed location from the city or county that authorizes land 

use for that location”). The LUCS “must demonstrate that 

the requested license is for a land use that is allowable as a 

permitted or conditional use within the given zoning designation where the land is located.” ORS 475C.053(1). OLCC 

cannot issue a license if the LUCS “shows that the proposed 

land use is prohibited in the applicable zone.” Id. The city 

or county is required to act on a request for a LUCS within 

21 days of either “[r]eceipt of the request, if the land use 

is allowable as an outright permitted use,” or “[f]inal local 

permit approval, if the land use is allowable as a conditional 

use.” ORS 475C.053(2). It is that timing difference—within 

21 days of the receipt of the request or after the final local 

permit approval—that forms the underlying dispute.

In this case, the property at issue is in an exclusive farm use (EFU) zone in the jurisdiction of Multnomah 

County. Chapter 39 of the Multnomah County Code (MCC) 

is the Zoning Code of Multnomah County. MCC 39.1000. In 

that chapter, a “permitted use” is defined as “[a] use permitted in a base zone without the need for special administrative review and approval, upon satisfaction of the standards 

and requirements of this Chapter.” MCC 39.2000 (defining 

“Permitted Use”). The MCC further provides that “Farm 

use, as defined in ORS 215.203” is an “allowed use” in an 

EFU zone “subject to all applicable supplementary regulations contained in MCC Chapter 39.” MCC 39.4220(A). 

Under state law, marijuana is “[a] crop for the purposes 

of ‘farm use’ as defined in ORS 215.230” and “[a] crop for 

“(3) A city or county that receives a request for a land use compatibility 

statement under this section is not required to act on that request during the 

period that the commission discontinues licensing those premises pursuant 

to ORS 475C.950(4)(b).

“(4) A city or county action concerning a land use compatibility statement under this section is not a land use decision for purposes of ORS chapter 

195, 196, 197, 197A, 215 or 227.”
94 State ex rel Elitextrx, LLC v. Siegel

purposes of a ‘farm’ and ‘farming practice,’ both as defined 

in ORS 30.930.” ORS 475C.489(1)(a), (b).

Under ORS 475C.449(2), a city or county can adopt 

“reasonable regulations” on the operation of marijuana 

businesses, including marijuana production.2 Under that 

authority, the county has adopted regulations as part of 

its zoning code that apply to marijuana businesses. That 

section, MCC 39.8500 is included in the zoning code under 

Part 8.D., which is titled “Special Permits and Applications.” 

MCC 39.8500(D) provides, in part:

“A proposal for establishing, altering, expanding or 

replacing a Marijuana Business will be reviewed as specified in Table A below and is subject to the specified criteria 

therein as well as the criteria set forth in paragraph E of 

this section. ** * Where no review process for a particular 

Marijuana Business in a particular base zone is specified 

in Table A, the Marijuana Business may not operate in that 

base zone.”

Where the proposed use is for outdoor marijuana production in an EFU zone, the proposal must comply with MCC 

39.4220(A) (allowing “farm use”, subject to all applicable 

supplemental regulations in MCC chapter 39), and MCC 

39.8500(E), which includes additional requirements related 

to siting relative to schools; setbacks for buildings and structures; limitations and required equipment related to noise, 

light, and barriers; and limiting a lot of record to only one of 

each of the listed types of marijuana businesses.

With that legal background in mind, we briefly 

relate the undisputed factual and procedural history of 

this case. Plaintiff, who owns and operates a licensed recreational marijuana production facility in Portland, planned 

to relocate its facility to property located within the planning jurisdiction of Multnomah County on property zoned 

EFU. In September 2021, plaintiff submitted an application 

to the county for a LUCS, as required by ORS 475C.053. 

2 As relevant to marijuana production, “reasonable regulations” include,

“[r]easonable conditions on the manner in which a marijuana producer *** may 

produce marijuana”; “[r]easonable limitations on the hours during which [the 

business] may operate”; “[r]easonable requirements related to the public’s access 

to [the business’s] premises * **”; and “[r]easonable limitations on where [the 

business’s] premises *** may be located.” ORS 475C.449(1)(a), (e), (f), (g).
Cite as 331 Or App 91 (2024) 95

The county issued a LUCS that checked the box on the form 

providing that plaintiff’s proposed use “is prohibited.” The 

county also included comments in the LUCS that provided:

“MCC 39.4215 Uses specifies that no building, structure 

or land shall be used unless the use will occur on a Lot 

of Record. At present, no final land use decision has been 

made that tax lot 2N1W21-01100 is a Lot of Record.

“The applicant, Elitextrx, LLC has not obtained approval 

of a Marijuana Business Registration from Multnomah 

County Land Use Planning. The [c]ounty’s ordinance is to 

protect and preserve the public health, safety and general 

welfare of the community by establishing restrictions on 

the siting and operation of Marijuana Businesses. [MCC 

39.8500]”

(Brackets in original.)

Plaintiff then filed a petition for writ of review with 

the circuit court. The court issued a writ, and the county 

in response filed a motion seeking an order from the court 

to withdraw the LUCS and revise it to comply with Scott, 

Inc. v. City of Ontario, 316 Or App 633, 503 P3d 502 (2021). 

The court granted the county’s motion in part, directing the 

county to withdraw the LUCS and consider the application 

anew using the effective date of the withdrawal as the date 

the county received the LUCS application. The court further 

directed the county to comply with ORS 475C.053 and Scott. 

Finally, the court noted that it “has not decided the issue of 

whether the request for a [LUCS] should be processed under 

ORS 475C.053(2)(a) or (b).”

Effective March 31, 2022, the county withdrew the 

LUCS. On May 12, 2022, plaintiff filed a petition for an alternative writ of mandamus, requesting that the circuit court 

direct the county to issue a LUCS because the proposed 

use is “outright permitted” and not a “conditional use.” The 

court issued the alternative writ. The county responded and 

filed a motion to dismiss, arguing that plaintiff’s proposed 

use was not “outright permitted,” which would be processed 

under ORS 475C.053(2)(a). Instead, the county asserted that 

the proposed use was subject to conditions that require local 

permit approval that plaintiff had not yet obtained, which 

is processed under ORS 475C.053(2)(b), and thus the county 
96 State ex rel Elitextrx, LLC v. Siegel

was not yet required to issue the LUCS. After briefing and 

argument, the court granted the county’s motion to dismiss 

concluding that the LUCS was required under the timelines 

set out in ORS 475C.053(2)(b) because it was not an outright 

permitted use within the meaning of the statute.

On appeal from the resulting judgment, plaintiff

asserts that this is a case of statutory construction. 

Specifically, plaintiff requests that we construe what “outright permitted use” and “conditional use” mean as used in 

ORS 475C.053(2). Based on the text and context of the statute, plaintiff asserts that whether a use is “outright permitted” or “conditional” is determined by the base zone where 

the property is located. Because plaintiff’s proposed use—

marijuana production—is a “farm use” that is listed as an 

“allowed” use in the county’s EFU zone, plaintiff contends 

that the use is “outright permitted” and, thus, the county 

had to issue a LUCS within 21 days of March 31, 2022.

The county responds that a land use “is ‘outright 

permitted’ for purposes of ORS 475C.053(2)(a) only if it is 

allowed without conditions, whereas a use is ‘conditional’ 

for purposes of ORS 475C.053(2)(b) if it is allowed subject 

to conditions met through final local permit approval.” The 

county asserts that the plain text of ORS 475C.053(2) creates a dichotomy between uses that do and do not require 

local permit approval and links the timing of the issuance 

of the LUCS to a time when the local government knows 

whether the proposed use is prohibited or allowable in the 

zone. The county further argues that the statutory context 

and legislative history supports its reading of ORS 475C.053. 

The county also contends that plaintiff’s proposed use is not 

“outright permitted” because it is subject to conditions in 

the county zoning code that plaintiff must meet through 

local permit approval.

As framed by the parties’ arguments, we must 

construe ORS 475C.053(2), focusing on what “outright permitted use” and “conditional use” mean as those terms are 

used in the LUCS statutory framework. As with any statutory interpretation question, we seek to determine the 

intent of the legislature by applying our usual methodology 

of examining the statutory text, in context, along with any 
Cite as 331 Or App 91 (2024) 97

legislative history that is helpful to our analysis. State v. 

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

We start with the text of ORS 475C.053(1), because 

it sets out the purpose of the LUCS, viz., to inform OLCC 

whether the requested license “is for a land use that is allowable as a permitted or conditional use within the given zoning designation where the land is located.” ORS 475C.053(1). 

If the land use “is prohibited in the applicable zone,” OLCC 

may not issue the requested license. Id. Thus, under that 

section, land uses fall into either the “allowable” or “prohibited” category, and within the allowable category, the land 

use is either “permitted” or “conditional.”

The statute then sets out the timing for a city or 

county to issue a requested LUCS:

“(2) Except as provided in subsection (3) of this section, a city or county that receives a request for a land use 

compatibility statement under this section must act on that 

request within 21 days of:

“(a) Receipt of the request, if the land use is allowable 

as an outright permitted use; or

“(b) Final local permit approval, if the land use is 

allowable as a conditional use.”

ORS 475C.053(2).3 Paragraph (2) echoes the text from paragraph (1) by providing two tracks for the issuance of the 

LUCS for an allowable use, depending on if the allowable 

use is “outright permitted” or “conditional.” However, ORS 

475C.053(2)(b) also gives further context as to what the 

legislature intended by its use of the term “conditional,” by 

indicating it is a use that requires “local permit approval.”

The terms “outright permitted” or “conditional” are

not defined within ORS chapter 475C. In the land use context,

however, we are not operating from a blank slate, particularly 

when those terms are used in the two-category fashion. We 

must presume that the legislature knew what it was doing 

3 We note that ORS 475C.053 does not explicitly provide when a city or county 

is required to issue the LUCS if the proposed use is prohibited or if the city or 

county ultimately does not grant final local permit approval. 
98 State ex rel Elitextrx, LLC v. Siegel

when it used those terms in the manner that it did in the 

land use context. See Marshall v. PricewaterhouseCoopers, 

LLP, 371 Or 536, 541, 539 P3d 766 (2023) (explaining that 

“if the context or legislative history of a statute indicate that 

the legislature intended a term to have a meaning ‘drawn 

from a specialized trade or field,’ so-called ‘terms of art,’ we 

consider ‘the meaning and usage of those terms in the discipline from which the legislature borrowed them’” (quoting 

Comcast Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 

(2014))). Those terms historically have been used in Oregon 

land use to distinguish between two types of allowed uses. 

An outright permitted use is one that can be done “without 

seeking or obtaining any further discretionary permission 

from planning or zoning officials,” whereas a “conditional 

use” is one that cannot be made without obtaining a permit based on a discretionary decision. Anderson v. Peden, 30 

Or App 1063, 1068, 569 P2d 633 (1977), aff’d, 284 Or 313, 

587 P2d 59 (1978); see also, e.g., Brentmar v. Jackson County, 

321 Or 481, 496, 900 P2d 1030 (1995) (discussing the legislative history of ORS 215.213 and its origins of dividing 

allowed uses into two categories—those permitted “as of 

right” or “uses that a local governing body could not prevent” and those that are conditional or “uses that were ‘subject to approval of the governing body of the county’”). The 

usage of those terms by the legislature here does not suggest 

that the legislature intended something different than that 

well-understood meaning.4

In construing those terms, we reject plaintiff’s suggestion that a “conditional use” can only be one that requires 

a “conditional use permit.” A conditional use without further 

explication is not so narrow. Although it could require a “conditional use permit,” it can also encompass uses that require 

some other form of local discretionary review. That interpretation is confirmed by the words used by the legislature. 

4 We note that the technical meaning of those terms does not differ substantively from the common usage of those terms as reflected in the relevant dictionary 

definitions. Rather, the technical meaning ties those common understandings to 

the specific processes that make up land-use decisions. See Webster’s Third New 

Int’l Dictionary 1683 (unabridged ed 2002) (“permit” as a verb means “to consent 

to expressly or formally : grant leave for or the privilege of : allow, tolerate”); id.

at 1603 (“outright” as an adjective means “going or carried to the full extent : not 

limited or qualified” or “given without reservation”); id. at 473 (“conditional” as an 

adjective means “containing, implying, subject to, or depending on a condition”).
Cite as 331 Or App 91 (2024) 99

The legislature did not use the term “conditional use permit” in ORS 475C.053. Instead, it referred to a “local permit 

approval” being required for a conditional use in the context of ORS 475C.053. Additionally, the legislature used the 

term “conditional use” deliberately to encompass all “allowable” uses that are not “outright permitted,” which conceptually includes a broader category of uses than one requiring a “conditional use permit.” Cf. Anderson v. Peden, 284 

Or 313, 316, 587 P2d 59 (1978); Auckland v. Bd. of Comm. 

Mult. Co., 21 Or App 596, 601, 536 P2d 444 (1975).5 We thus 

reject plaintiff’s contention that a “conditional use,” as used 

in ORS 475C.053, is one that requires a “conditional use permit.”6

 If we were to read the statute as plaintiff’s argument 

suggests, it would leave out allowable uses that are neither 

“outright permitted” nor require a “conditional use permit.” 

We agree with the county’s assertion that, using the words 

that it did, the legislature deliberately created a dichotomy 

5 The Supreme Court aptly pointed out in Anderson that, standing alone, the 

term conditional use tells us little:

“Standing alone, the term ‘conditional use’ can convey quite different 

meanings. It could mean that the specified use is a permitted use whenever 

certain conditions exist or are satisfied. Or, second, it may mean that the 

use will be permitted subject to special conditions attached to the individual 

permit. Third, ‘conditional use’ historically has often been employed simply 

as a device to permit discretionary decisions on certain uses, without much 

attention to the meaning of ‘conditional.’ *** Rather than assuming that the 

term is a known word of art, it would be helpful if draftsmen would spell out 

what ‘conditions’ are meant[.]”

284 Or at 316.

In Auckland, this court observed that a use that requires discretionary governmental approval are quasi-judicial decisions, regardless of the label used:

“Whenever one seeks to use property in a manner that is not an outright permitted use, and must therefore obtain governmental approval, the necessary 

governmental proceedings are quasi-judicial in nature within the meaning of 

Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973). This is true 

whether the other-than-permitted-use is sought by way of a zone change, 

comprehensive plan change, conditional use permit, variance, or as in this 

case, ‘a reclassification.’ The labels are not controlling. Instead, Fasano is 

applicable when land-use decisions affect specific individuals and involve 

application of general rules to individual interests. 264 Or at 579-81.”

21 Or App at 601 (footnote omitted).

6 We also reject plaintiff’s assertion that we said in Scott that “conditional 

use” was only in reference to when a “conditional use permit” is required. We did 

not make any such holding in Scott; rather, we merely recognized that, under the 

facts of that case, the plaintiff was required to obtain a conditional use permit 

because the proposed use required one in the designated zone. 316 Or App at 637.
100 State ex rel Elitextrx, LLC v. Siegel

of allowable uses, viz., those that are “outright permitted” 

and those that are “conditional.”

Further, taking into account that a conditional use 

under ORS 475C.053(2) is one that requires “local permit 

approval,” there is further contextual guidance in the zoning statutes of the legislature’s likely intent. Although the 

legislature has not made the definition of “permit” in the 

zoning statutes apply directly to ORS 475C.053, that definition provides context as to what the legislature likely 

intended with the term “local permit approval,” because 

the definition of “permit” does otherwise apply to a county’s 

approval of a proposed land use. In ORS 215.402(4), “permit” 

is defined as “discretionary approval of a proposed development of land under ORS 215.010 to 215.311, 215.317, 215.327 

and 215.402 to 215.438 and 215.700 to 215.780 or county legislation or regulation adopted pursuant thereto.”7 See also

ORS 227.160(2) (using the same definition as applied to cities, except referring to the statutes that apply to cities).

Our interpretation is further supported by the statutory context in ORS 475C.449, which was adopted at the 

same time as ORS 475C.053, and, as set out above, allows 

local governments to adopt reasonable regulations that 

apply to marijuana business, including specifically reasonable regulations on the location of such businesses. See ORS 

475C.449(1)(g) (“‘[R]easonable regulations’ includes * ** 

[r]easonable limitations on where a premises for which a 

license or certificate may be issued under ORS 475C.005 to 

475C.525 may be located.”). The legislature expressly allows 

7 The definition of “permit” further provides that “‘[p]ermit’ does not include:

“(a) A limited land use decision as defined in ORS 197.015;

“(b) A decision which determines the appropriate zoning classification 

for a particular use by applying criteria or performance standards defining 

the uses permitted within the zone, and the determination applies only to 

land within an urban growth boundary;

“(c) A decision which determines final engineering design, construction, 

operation, maintenance, repair or preservation of a transportation facility 

which is otherwise authorized by and consistent with the comprehensive plan 

and land use regulations; or

“(d) An expedited land division, as described in ORS 197.360.”

ORS 215.402(4). Under ORS 197.015(12), a “limited land use decision” is a decision on matters not at issue in this case with respect to sites within an urban 

growth boundary.
Cite as 331 Or App 91 (2024) 101

local governments to apply those regulations to marijuana 

production, which is an allowed “farm use,” and provides 

that those regulations can be imposed notwithstanding the 

statutes that otherwise restrict a local government’s ability to regulate farm use in an EFU zone. ORS 475C.449(2) 

(“Notwithstanding ORS 30.935, 215.253(1) or 633.738, the 

governing body of a city or county may adopt ordinances 

that impose reasonable regulations * * *”). The existence of 

that statute indicates that the legislature contemplated that 

local governments would be able to impose those regulations 

through local permit approval, including on marijuana production in EFU zones.

From the foregoing text, in context, we conclude 

that whether a use is outright permitted or conditional, as 

provided in ORS 475C.053, depends on whether the proposed 

use requires discretionary local permit approval “within the 

given zoning designation where the land is located.” See also 

Scott, 316 Or App at 638-39 (emphasizing that the purpose 

of a LUCS under ORS 475C.053 is to inform OLCC whether 

the use is allowable “within the given zoning designation 

where the land use is located”).

After reviewing the legislative history for ORS 

475C.053, we conclude that, although it provides little help 

in discerning the legislature’s intent on the issue here, it 

does not suggest that the legislature intended something 

different from what we have discerned from the text and 

context. The legislature enacted ORS 475C.053 as part of 

House Bill 3400 (2015), which was a comprehensive bill that 

enacted, added to, and amended Ballot Measure 91 that had 

just been adopted by the voters in the 2014 general election. 

Or Laws 2015, ch 1; Or Laws 2015, ch 614, § 34(4). As originally drafted, HB 3400 did not include a section similar to 

ORS 475C.053. That section was added to HB 3400, along 

with many other additions and amendments to the bill, 

with the -1 amendments. HB 3400 (2015), -1 amendments 

(May 18, 2015). The -1 amendments added a section, which 

provided:

“Prior to the issuance of any license under section 19, 

20, 21 or 22, chapter 1, Oregon Laws 2015, the Oregon 

Liquor Control Commission [now known as the Oregon 
102 State ex rel Elitextrx, LLC v. Siegel

Liquor and Cannabis Commission] shall request a land 

use compatibility statement from the city or county that 

authorizes the land use. The land use compatibility statement must demonstrate that the requested license is for 

a land use that is allowable as a permitted or conditional 

use within the given zoning designation where the land is 

located. The commission may not issue a license if the land 

use compatibility statement shows that the proposed land 

use is prohibited in the applicable zone.”

Id. § 35(5).

There was limited public discussion or testimony 

related to the land use section of the -1 amendments that 

are at issue in this case. MaryAnne Nash of the Oregon 

Farm Bureau touched on the land use section more generally, testifying that in EFU zones there are outright permitted uses and conditional uses that require local governing 

body review and expressing concern that it was not clear 

from the bill when a county can impose land use conditions. Video Recording, Joint Committee on Implementing 

Measure 91, HB 3400, May 20, 2015, at 4:35 (statement 

of MaryAnne Nash), https://olis.oregonlegislature.gov 

(accessed Feb 13, 2024). The only discussion of the LUCS 

section came from Katherine Daniels from the Department 

of Land Conservation and Development (DLCD). Daniels 

briefly expressed the concern that the section required the 

LUCS only to show when the proposed use was allowable and 

would not inform OLCC if the use would be approved. She 

testified that it would be preferrable if the LUCS addressed 

whether the proposed use was approved, because otherwise 

an applicant could spend time and money to get a license 

from OLCC and not end up with land use approval. Video 

Recording, Joint Committee on Implementing Measure 91, 

HB 3400, May 27, 2015, at 28:45 (statement of Katherine 

Daniels, DLCD), https://olis.oregonlegislature.gov (accessed 

Feb 13, 2024). As part of several suggested changes to HB 

3400, DLCD suggested that the LUCS provision be amended 

to provide that the LUCS “must demonstrate that the 

requested license is for a land use that has been approved

within the given zoning designation where the land is 

located” and that OLCC could not issue a license where the 

land use “has not been approved in the applicable zone.” 
Cite as 331 Or App 91 (2024) 103

Testimony, Joint Committee on Implementing Measure 91, 

HB 3400, May 27, 2015, Ex 3 (statement of Michael Morrissey 

and Katherine Daniels, DLCD) (boldface in original).

Later, in the -9 amendments—which again contained

many revisions to the overall bill—the LUCS provision in 

HB 3400 was amended to add the language that became 

ORS 475C.053(2). HB 3400 (2015), -9 amendments, (June 8, 

2015). There was no discussion at any public hearings on the 

amendment to the LUCS provision.

From that scant legislative history, we take away 

two observations. First, there was a general understanding that there are two categories of allowable uses in EFU 

zones—those that are permitted outright and those that are 

conditional. Second, although there was no public discussion, the fact of the -9 amendment to the LUCS section suggests that the legislature was responding to the DLCD concern that the OLCC could issue a license based on the LUCS 

demonstrating the use was allowable, even though the land 

use might not be approved by the local government. Those 

two observations comport with our construction of the statute, discussed above, which focuses on the text and context.

Having properly construed ORS 475C.053, we turn 

to what the county code requires with respect to plaintiff’s 

proposed use and whether the county is required to issue 

the LUCS because it is an outright permitted use.

Plaintiff asserts that its proposed use is an outright 

permitted use under the county code because the code provides that “farm use” is an “allowed” use in the EFU zone, 

MCC 39.4220(A), and that marijuana production in an EFU 

zone is reviewed as a farm use, MCC 39.8500(D), Table A. 

Plaintiff argues that its proposed use is not a conditional use 

under the county code because MCC 39.4230 sets forth a list 

of “conditional uses” in the EFU zone and marijuana production is not listed there. Plaintiff also points to the county’s

comprehensive plan, which provides that each zoning district “specify what uses are allowed outright or conditionally 

in each zone” and, thus, surmises that “allowed” uses in the 

EFU zone must be those that are “allowed outright.”
104 State ex rel Elitextrx, LLC v. Siegel

The county remonstrates that state law allows it 

to regulate marijuana production in its EFU zone, ORS 

475C.449, and that it has done so through MCC 39.8500(D) 

and (E). The county further asserts that, because plaintiff’s 

proposed use is subject to the conditions in MCC 39.8500 

that must be met through the local permit approval process 

under MCC 39.1105, the use is not an outright permitted 

use. We agree with the county’s arguments.

Plaintiff’s proposed use of outdoor marijuana production in an EFU zone is not an outright permitted use 

“within the given zoning designation where the land is 

located,” ORS 475C.053(1), because it is a use that requires 

discretionary local permit approval under the county’s zoning designation. Although “farm use” is an allowed use in 

the EFU zone and would not ordinarily require a discretionary permit approval, plaintiff’s proposed farm use requires 

discretionary approval as provided in MCC 39.1105.

The county’s zoning code defines “permitted use” as 

“[a] use permitted in a base zone without the need for special administrative review and approval, upon satisfaction 

of the standards and requirements of this Chapter.” MCC 

39.2000 (defining “Permitted Use”). However, the marijuana 

business regulations appear in part 8.D. of the code, which 

is titled “Special Permits and Applications,” indicating 

that a special administrative review applies. Under MCC 

39.8500(D), Table A, marijuana production in an EFU zone 

is subject to MCC 39.4220(A) and is also subject to MCC 

39.8500(E). MCC 39.4220(A) also provides that “[f]arm use, 

as defined in ORS 215.203” is an “allowed use” in the EFU 

zone “subject to all applicable supplementary regulations 

contained in MCC Chapter 39.” Farm use for outdoor marijuana production is subject to supplementary regulations, 

under MCC 39.8500(E), which are the type of regulations 

that require discretionary review for approval, based on 

the descriptions of those types of decision in MCC 39.1105.8

8 We note that MCC 39.8500(E) regulations appear to require a Type II decision under MCC 39.1105 based on the descriptions in the code of what a Type II 

decision covers. We need not address that issue, however, because it is not raised 

in this appeal. Although plaintiff argued before the circuit court and on appeal 

that the county did not demonstrate that a permit was required for its proposed 

land use, plaintiff has not addressed this issue, having focused solely on farm 

use being listed as an “allowed use” and that MCC 39.8500(E) does not explicitly 
Cite as 331 Or App 91 (2024) 105

Because plaintiff’s proposed use requires discretionary 

local approval within the given zoning designation for the 

land use, it is not an outright permitted use as that term is 

used in ORS 475C.053(2), and, as a result, the county was 

not required to issue a LUCS to plaintiff within 21 days of 

March 31, 2022. Thus, for the foregoing reasons, the circuit 

court did not err in dismissing plaintiff’s alternative writ of 

mandamus.

Affirmed.

provide that a permit is required. As explained above, we reject plaintiff’s arguments on those points.