By Shaun Hall of the Daily Courier
Enforcement of Josephine County's newly adopted ordinance restricting commercial marijuana farming in rural residential zones has been put on hold by order of the Oregon Land Use Board of Appeals.
The ordinance, adopted by the county Board of Commissioners in December, bars commercial marijuana farming on parcels 5 acres or smaller unless a variance is obtained. For larger parcels, the ordinance limits the size of operations. It was due to go into effect in early March.
However, acting on complaints from more than 40 growers, LUBA on Monday issued a nine-page order concluding that marijuana farmers would be irreparably injured if the new rules were enforced and later found invalid.
"These people invested a lot of time and money," Portland attorney Ross Day, who is representing the growers, said today. "You can't just yank the rug out from under them. The commissioners dug in their heels and refused to listen to common sense."
Commissioners adopted the ordinance, 2017-002, in an effort to restrict commercial activities in rural residential zones. Neighbors complained their ability to quietly enjoy their homes was being disrupted by the marijuana operations.
Some of the background in LUBA's order included the following:
• The county previously allowed agriculture, farming and farm use as a permitted use in its RR-5 zone;
• Petitioners requested a stay of enforcement, pending the outcome of an appeal of the county's ordinance;
• The order does not find that the growers will prevail, but that the ordinance will be reversed or remanded back to the county if legal or procedural errors alleged by the petitioners are found to be correct;
• Petitioners argue that operations allowed at the time of the ordinance's adoption should, by law, be allowed to continue (a practice commonly called "grandfathering");
• Petitioners contend the ordinance is contrary to state law that allows the county to adopt "reasonable regulations" governing marijuana production;
• Petitioners claim they will suffer irreparable injury if the ordinance is enforced, and say each of them has spent years establishing their business and that on average they invested $500,000 in their operations;
There has already been several rounds of legal back-and-forth in the case now before LUBA, including the county's contention that growers may apply for a variance known as a "non-conforming use permit" and that the county wants to work with farmers if farmers work with the county.
However, growers claim red tape on the part of the county and the Oregon Liquor Control Commission — the state agency responsible for licensing recreational marijuana businesses — will put them out of business at least temporarily, causing injury.
In that event, LUBA said, a stay was justified while the case works its way through the appeal process.
County Counsel Wally Hicks said this morning in an email that the county was given less than a business day to respond to the growers' last round of legal argument before LUBA issued the stay.
"By basing its Order upon a document to which it never allowed the County a realistic opportunity to respond, the Land Use Board of Appeals denied the people of Josephine County their right to Due Process," Hicks stated.
Marijuana farmer Yusef Guient of Williams, one of the petitioners, said his group has been working hard to obtain the stay.
"I'm super stoked that LUBA is working with us and seeing the arguments we're raising," Guient said this morning. "I'm excited about the county potentially giving us the opportunity to apply for a non-conforming use.
"I think the whole thing is moving in a really good direction. I'm hoping this is a good precedence for the county to look at.
"It's one of the battles won. It's not the war."