At the end of September, we discussed the successful efforts of local growers in Josephine County, Oregon, to stop an ordinance that would have effectively banned commercial and medical marijuana on rural residential land in the county. After passionate argument by the growers, the Josephine County Board of Commissioners (“Board”) went back to the drawing board.
And they came back with something arguably worse. For comparison purposes, here is a short summary of the ordinance that almost passed back in September:
- Any OLCC licensed site would need a 300-foot setback on all sides. Currently, the code requires a setback of 30 feet in the front, 10 feet on the sides, and 25 feet in the rear.
- The property would need to be owned directly by the OLCC licensee. This would be problematic because many licensees lease land, or hold the land in a separate holding company for liability purposes.
- No OLCC site could be serviced by private road, easement, or owner maintained public right-of-way unless the OLCC producer owns all of the land adjacent to the right of way.
Any farm that could not meet these requirements would have had thirty days from the date the ordinance went into effect to request a Determination of Non-conforming Use. To qualify for a non-conforming use determination, a recreational site needed to:
- Be in full compliance with the county codes as they existed prior to the amendments; and
- Either have obtained a Land Use Compatibility Statement (“LUCS”) from the county planning department prior to the adoption of the new ordinance amendment, or have applied for a LUCS prior to the adoption of the amendment that is being “actively processed by [the] OLCC with the intent to issue a license.”
And here is a short summary of the ordinance that was officially adopted on December 6, 2017. Any property zoned rural residential with more than 12 mature plants (the ordinance doesn’t seem to distinguish between medical and recreational) must comply with the following requirements:
- Cannabis production will be banned outright on all lots or parcels of five acres or less. This provision was included even though Commissioner Dan DeYoung has previously been quoted as saying “The rules should be the same for all rural residential whether it’s one acre, two and a half acres, five, ten, twenty-nine.”
- Lots larger than five acres may have up to a 1,250 square foot indoor grow area or a 5,000 square foot outdoor grow area (compared with the 10,000 square foot indoor or 40,000 square foot outdoor maximum per license allowed by OLCC regulations).
- The property must have a 100 foot setback on all sides for all structures and grow canopies.
- “The person regulated by the State of Oregon must have an interest in the lot or parcel where the marijuana production site is located.” At a minimum, this provision will ban the common practice of landowners leasing a property to third-party cannabis farms. Whether this will affect the practice of a farm owning the land in a separate holding company is a bit less clear. OLCC licensees are almost always companies, so is the company the “person regulated by the State of Oregon”? If so, it seems the licensee company will have to have some direct ownership interest in the separate holding company
- All security personnel on the property must obtain and maintain Marijuana Worker Permits from the OLCC. Normally, only workers that physically interact with cannabis must have a permit.
- Indoor production must use odor control systems. We believe this just requires what farms should be doing anyway, as we have previously recommended cannabis farms use odor control systems to avoid costly neighbor disputes.
- The county will notify all neighbors of any cannabis farm and owners must post notices of cannabis production where their properties meet public streets. Both of these requirements raise safety and security concerns.
Any farm licensed by the OLCC before March 6, 2018, will be considered a “special or unusual circumstance” and may apply for a variance from these regulations.
The group of growers and concerned citizens we discussed in the previous post have formed F.A.R.M.S. (Farming and Agricultural Rights Management Society) and are vowing to challenge this ordinance in court. We will keep you posted.