At the end of last year, we discussed the successful efforts of Jackson County, Oregon to remove cannabis production as an allowed use in its rural residential zones. This led to an uproar among some growers, and a failed appeal before the Oregon Land Use Board of Appeals (LUBA).
For the past several months, Josephine County has been following suit, moving full steam ahead towards severely curtailing cannabis cultivation as an allowed use in residential rural zones throughout the county. This spring, the Board of Josephine County Commissioners (“Board”) placed Measure 17-81 on the Josephine County 2017 Special Election ballot, which asked voters to provide a non-binding advisory opinion: “In your opinion, should Josephine County prohibit the production of commercial, recreational marijuana in all rural residential zones?” Approximately 64% of voters said yes.
The Board listened, and in July 2017, the Board authorized the Josephine County Planning Director to invite applications for proposed language for amendments to the Josephine County zoning codes. The Rural Planning Commission held a public hearing at the end of August and issued draft language for the amendment. The language appeared designed to outright ban medical grow sites, and while it did not outright prohibit recreational cannabis cultivation, it did place severe restrictions that seemed to be written with the hope that no one would ever be able to comply.
Fortunately, over the weekend the Board threw out the planned draft language, thanks to the combined efforts of several licensed farms in the area, including East Fork Cultivars and Medicinal Roots, with the support of the Craft Cannabis Alliance. (Full disclosure: Harris Bricken is a founding member of the Craft Cannabis Alliance).
This team utilized a savvy media strategy focused on educating Board members and the public. One lesson to be learned from this effort is the importance of engaging respectfully and eloquently at public hearings on any proposed cannabis regulations. For example, at the September 20, 2017 public hearing on these proposed amendments, Yusef Guient, of Medicinal Roots, spoke passionately about the effect the amendment would have had on his small family farm:
As family farmers, local business owners, neighbors and community members, we respectfully urge the commissioners to reject the proposed ordinance. The proposed amendments miss the mark by harming local family farms that are fully licensed and compliant and have invested tremendous resources in order to meet strict state regulations, as well as undermining the efforts of medical farms that are currently preparing to adapt to much higher levels of regulation and scrutiny. Further, the changes as written would expose the county to potential litigation costs without solving the issues raised by community members. Instead, we request that the county allow time for legislative changes to take effect, and to continue to bring community members together through the advisory committee process that is just now getting underway. We can create reasonable regulations that protect livability and public safety while supporting family farms, creating local jobs, and creating a lasting economic opportunity for Josephine County.
It appears the Board was swayed, at least in part, by these and other cogent arguments that the State legislature is aware of the prevalence of black market farming in southern Oregon and is taking appropriate steps. The team argued successfully that the recent changes set forth in SB 1057, including seed-to-sale tracking for medical operations, should be given time to work. However, the team and the Board still recognize the need for more precise regulations that target bad actors in Josephine County, and the Commissioners are going back to the drawing board.
Josephine County will not be the last county to attempt to reign in cannabis production with an axe instead of a scalpel, and the battle for common sense regulations in Josephine County is far from over. With that in mind, it is worth looking at the draconian draft zoning changes that almost became the law of the land. Under the draft amendment as previously proposed:
- Any OLCC licensed site would need a 300 ft setback on all sides. Currently the code requires a setback of 30ft in the front, 10ft on the sides, and 25ft 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 couldn’t 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 LUCS 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.”
The Board has recognized these kinds of broad brush regulations would do more harm than good, and are not appropriately focused on the few bad actors that are negatively affecting the community. Responsible cannabis cultivation can be a huge boon to local economies, but it always requires a genuine commitment to community engagement, like that on display down in Josephine County over the past few weeks.