Cannabis rule-making in Oregon is all local right now as the state’s cities and counties consider the relationship they wish to have with Oregon’s newest crop. We have written about some of these local developments here, here, here, here and here. At times it seems like everything is happening everywhere all at once and none of it quite the same (except in eastern Oregon, where everyone’s opting out). The pace of local activity does not seem affected in the least by the wait for state issued administrative rules, those from the Oregon Health Authority (medical) and Oregon Liquor Control Commission (recreational).
As we have written in the past, despite the passage of HB 3400 and related new laws, part of running a pot business in Oregon remains advocating for your right to do so. This is true even in counties like Deschutes, with its 2,313 medical marijuana growers; Clackamas, home to 3,396; and Lane, with a robust 5,054. Over the course of the past month, these three jurisdictions and a myriad of others have put everything on the table, from opting out of marijuana almost entirely, to developing local rules (and taxes), to simply doing nothing.
We regularly advocate for clients in cities and counties around the state, in a variety of ways. Most recently, I attended the Board of Commissioners’ meeting for Clackamas County on September 24, where its proposed land use regulations were discussed. (You can find those here.) Our local grower and processor clients were disappointed in several aspects of these proposed rules, including: no cultivation on land zoned industrial, no grow sites over 5,000 square feet, no processing sites over 3,000 square feet, and 100 foot setback requirements from any property line for many industry participants. There were others of course as well, but those are some highlights.
Some of our clients are good at advocating for themselves and their interests, while others would rather trust a professional to do this. As with many local hearings, the hearing I attended last week allowed for public testimony, and many people testified in favor of the industry, with many others against. In addition to the industry participants and opposers, several attorneys testified, some of them alongside their clients.
Attorneys are accustomed to reading rules. We understand the rule-making process and we can generally tell when a proposed rule is solid and when it should be probed. In the context of recreational marijuana, local legislatures are allowed to make “reasonable” regulations to implement HB 3400. Not only must these regulations be reasonable within the scope of that statute, but they must accord with other, existing laws as well.
The proposed Clackamas County setback requirement of 100 feet from a property line is a good example of a proposed ordinance that may not be reasonable, and also may not accord with existing law. It may not be reasonable to require a marijuana crop to be 100 feet from a property line in Clackamas County, when this same requirement does not apply to other, more noxious uses, like hog farms. The setback requirement may also conflict with state statutes. We have written that marijuana is a “crop” under HB 3400 and is therefore protected by the state’s “right-to-farm” law (ORS 30.930). That law prohibits local ordinances and lawsuits that target common farming practices, now including marijuana practices, as incidents of nuisance (sound or smell) or trespass. A required 100 foot setback based on potentially bad smell appears to do that. One might also argue that a 100 foot setback requirement constitutes an actionable taking of private property.
Having an attorney advocate on your behalf before the rules are in place may help ensure that a local government does not enact rules that prejudice your interests. A good attorney will advise local government where its proposals court conflict and litigation, and a good local government will want to hear this perspective. With rules being drafted on marijuana every day around the state, opportunities for influence will likely never be as good. Pay close attention: working to get good rules on the front end could make all the difference.