A frustrated Josephine County Board of Commissioners is making a three-pronged counterattack against a legal challenge to its new restrictions on marijuana farming in rural residential zones.
Commissioners on Tuesday came out of a closed-door meeting to direct their legal team to respond with two court challenges of their own, and to begin the process to adopt Jackson County's already court-approved restrictions, which prohibit farming — and thus marijuana production — in rural residential zones.
The most startling move is the commissioners' intention to seek a "federal declaratory judgment" involving the federal Controlled Substances Act, although details about those arguments have not been made public. Possession of marijuana is deemed a federal crime.
County Legal Counsel Wally Hicks said details about the move in federal court will be forthcoming.
In addition, the county intends to appeal in state court a decision last week by the Oregon Land Use Board of Appeals.
LUBA found that the county didn't give proper notice to all owners of property in rural residential zones about the county's new restrictions, adopted in December after more than 18 months of public meetings and hearings. LUBA stated that the county needed to provide direct notice to more than 16,000 landowners before it would consider the legality of the county's restrictions.
Growers are upset that the county placed restrictions on their operations that already were in place or planned.
The county's rules, which are currently on hold pending a LUBA decision, bar commercial marijuana farming on parcels 5 acres and smaller in rural residential zones, and restrict the size of marijuana farms on larger parcels in those zones, unless exceptions are allowed.
The Jackson County restrictions prohibit "farm uses" in its rural residential zones, and the Oregon Legislature has declared marijuana production (including medical marijuana) to be a farm use, Hicks said. That restricts marijuana farming to lands zoned for exclusive farm use and other "resource lands."
Here's Hicks' written statement about Jackson County's rules:
"Under Jackson County's ordinance, marijuana production is not authorized on lands zoned rural residential, rural use, urban residential and commercial. Their development ordinance (development code) does not allow 'farm uses' to occur within Rural Residential and Rural Use zones. It allows agricultural uses in those zones, but the legislature has declared MJ production (including medical) to be a farm use, thus it is limited to resource zones such as EFU."
Portland attorney Ross Day, representing growers in appealing the county's restrictions, said the county's decision to appeal LUBA's ruling and to pursue a federal judgment was a "waste of time."
He said the appeal of LUBA's ruling stood little to no chance of winning, but that he didn't know enough about a federal challenge to comment fully.
"They really are not thinking rationally right now," he said.
He did say, however, that he actually favored the county's move to adopt Jackson County's restrictions.
"I hope that's what they do," he said. "The (Jackson County) ordinance is actually not a bad ordinance. All it really does, it says you can't grow on rural residential land."
He said that Jackson County allowed existing operations to continue when it adopted its ordinance.
Hicks said adopting Jackson County's restrictions would allow legal uses already taking place on the land to continue. It's not clear if Josephine County would allow a federally illegal use to continue, however. Hicks wouldn't say.
Growers claim the county, by adopting its new restrictions in December, changed the rules in the middle of the game, while commissioners counter that they might allow exceptions to the new rules. The county also argues that it gave plenty of notice by holding multiple public hearings requiring public notices, including notices in the newspaper.
The controversy is rooted in part in the county's historical acceptance of allowing agriculture in its rural residential zones, but now neighbor complaints and concerns about black market dealings have led to the current standoff.
Last May, nearly two-thirds of people who voted on an advisory question placed on the ballot by commissioners agreed that commercial marijuana farming should not be allowed in rural residential zones. And a county check involving more than 1,000 complaints called in last year about marijuana grows turned up nearly half that were not state-licensed or registered.
Complaints from neighbors have largely centered on odors and unsightly fences. Also, commenters at public hearings last year had concerns about water use, land values and crime, as well as noise, traffic and illegal campers.
Many growers counter that they are responsible and respectful, and that it is the rogue growers who are the problem. Currently, there are more than 2,500 medical marijuana grow sites and more than 100 recreational grow sites in the county.
Hicks said county Community Development Director Julie Schmelzer was directed by commissioners to begin a process that would change county codes to mirror Jackson County's approach. He said one reason to use Jackson County's rules is because they already have withstood appeals brought before LUBA and the Oregon Court of Appeals.
Reach reporter Shaun Hall at 541-474-3722 or firstname.lastname@example.org.