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Commissioners re-visit "Grandfather" Clause

By Shaun Hall of the Daily Courier


Members of the Josephine County Board of Commissioners are now questioning a key provision of a proposed ban on new marijuana grow sites in the county's rural residential zones.

At issue is a proposed "grandfather" clause that would allow growers to keep operating as long at they get the necessary paperwork.

Two of the three members of the Board of Commissioners, Lily Morgan and Dan DeYoung, don't seem to like grandfathering. Morgan wants marijuana farming to fall under the county's existing rules governing home occupations, which require annual compliance checks.

Nothing is set in stone yet. Commissioners are pushing for changes to take effect before the next growing season, even as new state laws regulating the marijuana industry are due to take effect Jan. 1.

The board discussed the proposed ban on Thursday in their courthouse conference room, before a small audience. Commissioners probably will take up the topic again Tuesday, during a session to hear from County Legal Counsel Wally Hicks.

During the last year, commissioners have been wrestling with what to do about hundreds of neighbor complaints about grow sites. After 64 percent of voters said in an advisory vote in May that they favored a ban on commercial grow sites in residential zones, the board asked for new rules that would bar new grow sites, but allow current legal grow sites to continue.

County Community Development Director Julie Schmelzer then drafted the current proposal to require growers to apply for a compliance certificate and be subject to annual inspections, if they want to continue.

That draft has gone before the county's rural planning commission and the county's new Cannabis Advisory Board before coming before the board itself, which held a well-attended public hearing on the matter last week. The advisory panel is expected to revisit the issue Oct. 10.

There are more than 3,000 registered medical marijuana grow sites in the county and more than 100 farms here that produce for Oregon's recreational retail market. The number of grow sites — and complaints about grow sites — has mushroomed following passage of state Measure 91 legalizing recreational marijuana in 2014. Josephine County, by two votes, actually opposed legalization.

On Thursday, when Morgan suggested treating grow sites and farms as home occupations allowed by permit, she questioned why commercial agriculture was allowed in rural residential zones in the first place.

"Agriculture, to me, does not meet the purpose of rural residential living," she said.

Schmelzer said the county code allows agriculture in rural residential zones, as long as it doesn't interfere with neighbors, but Morgan said it doesn't take much to interfere. Dust, spraying and noise could constitute interference.

"Legal gave me a definition of interfere, which is a very low threshold," she said.

The current ban proposal defines commercial sites as those growing 13 or more plants. That's a takeoff on a new state law requiring growers with 13 or more plants to register with the Oregon Liquor Control Commission by Jan. 1, so production can be tracked "seed to sale."

The new state law was put in place in part to stem the continued proliferation of the black market, which could bring a federal crackdown. Another new state law designed to undercut the black market will allow medical marijuana growers to sell up to 20 pounds of product to retail stores.

If the state can change the rules, the county can, too, said DeYoung, who complained that the "goalposts" keep moving.

"No one had any idea how big this was going to get," he added.