By Keith Mansur, Oregon Cannabis Connection
Right To Grow, USA, an organization representing cannabis growers in Oregon, is filing a lawsuit against Jackson County. The complaint, which will be filed in the next day or two, seeks an injunction to force the County into a different interpretation of the newly passed cannabis law that was adopted in the recent legislative session. Jackson County's interpretation, combined with the County's definition of "Farm Use," allows them to enact more severe enforcement than the legislature had intended, and also planning department fees to the tune of nearly $1,600.
The injunction follows an appeal (and follow-up appeal) that the group, which is based in Southern Oregon, filed against the county's two new ordinances just last month, but that appeal can take months to reach a conclusion.
"The county's decision simply makes no sense, violates our right to farm, and jeopardizes a very large segment of Jackson County's economy," Right To Grow President - and Plaintiff - Sandra Diesel said in a statement. "If Jackson County is not stopped from making this terrible decision, thousands of Jackson County farmers could be put out of business. In fact, their decision has created a public health crisis. Tens of thousands of patients no longer have safe, affordable access to their medicine (cannabis). Shutting down these farmers is not just an economic downfall, but it is a major health crisis. "
The wording change approved in Senate Bill 1598 last session meant Jackson County could define medical marijuana growing as "farm use," which is not allowed on land zoned rural residential in the county. This interpretation means they now can ban all growing on rural residential land without county approval and the proper licensing and land use permits being filed. To date, only a handful of qualified growers have gotten their permits so far.
Two legislators in the Southern Oregon region, Rep. Buckley and Sen. Bates, explained the legal intent and interpretation of law at a "legislative review" they held at the Medford Mail Tribune in March. At the review, Rep. Peter Buckley from Ashland explained, "[the intent was to] grandfather in medical marijuana in rural residential wherever it exists in the state of Oregon."
Buckley, who's been a longtime champion of legalized marijuana, said the legislative intent of the new law was to "grandfather in medical marijuana in rural residential wherever it exists in the state of Oregon," so that growers could also participate in the recreational marijuana market through the Oregon Liquor Control Commission.
Jackson County officials are "interpreting the law to say, 'We must now disallow medical marijuana,'" Buckley said. "That is not the intent of the legislation."
Buckley and Bates were waiting on the Office of Legislative Counsel (LC) to release a written interpretation of the new bill, which they hoped Jackson County officials would heed. Unfortunately, the LC's interpretation leaves Jackson County growers at the mercy of the Planning Department and their new rules.
"It might take a court decision, or it might take a legislative session in 2017 to get it right," Buckley said.
The letter, which was dated May 17, 2016, contained a significant amount of background and information on the law and how Jackson County's unique land use rules are causing issues. The conclusions in the letter actually support the County's permitting changes.
Excerpt the letter sent from Oregon's Office of Legislative Counsel to Representative Peter Buckley:
"...Senate Bill 1598 (2016) is not an outright prohibition of the production of medical marijuana on land that a county has zoned for rural residential use. However, a county has the discretion to prohibit farm uses on land that the county has zoned for rural residential use. Under such generally applicable ordinances, the production of medical marijuana also would be prohibited. Jackson County has exercised that discretion.
"...Jackson County and other counties that prohibit farm uses on land that has been zoned for rural residential use may use standards and procedures to confirm the production of medical marijuana as a nonconforming use. Our understanding is that Jackson County is not adopting any special ordinance for the purpose of confirming the production of medical marijuana as a nonconforming use. Rather, Jackson County is using generally applicable standards and procedures to confirm the production of medical marijuana as a nonconforming use."
But, according to Right To Grow's attorney, Ross Day of Portland, they were asking the Legislature the wrong question.
"What they should have asked is whether or not Senate Bill 1598 was intended to prevent agricultural activities on other types of land; that's what they should have asked," Day explained. "In terms of what we're doing, that letter has very little weight whatsoever."
"What this comes down to is that Jackson County says that Senate Bill 1598 makes growing marijuana a farm use and only a farm use, and can't be anything but a farm use, but that's not what the measure intended,, and no other county in the state is adopting that interpretation of the law, only Jackson county," Day explained. "Growing marijuana is, by definition, non-intensive agricultural use."
Another reason the County is acting recklessly, according to Day, is that they are likely exposing themselves to reparations to farmers under Oregon's ballot measure 49, passed in 2007. Measure 49 protects landowners from zoning and rules changes which can affect their land's value, or a change in their ability to conduct non-intensive farming activities, such as grow medical marijuana.
"If they take away your right to farm, you can be entitled to compensation or a waiver of the rules," he told OCC. "So, for most of the people in Jackson County who were [growing medical marijuana] on rural residential land prior to bill 1598, and prior to the County's passage of those two ordinances, you have the right to grow marijuana on your property."
But, due to the County's ordinance and their enforcement of it, the huge number of Jackson county residents growing medical marijuana will have a claim under Measure 4
9, according to Day.
There are a number of other advocates in the region that are concerned about a lawsuit. One in particular thinks we should work with the county and try to make changes without lawsuits and by trying to work with County leaders.
"I'm concerned an injunction would make all LUCS (Land Use Compatibility Statement) invalid as well as the few non-conforming issues that other growers are working with the county on to try and allow continued farming on land with the size garden you can operate, based on the amount of land you own," said Brent Kenyon, owner of Southern Oregon Alternative Medicine and Grateful Meds dispensaries. Kenyon is one of Oregon's oldest and most influential cannabis entrepreneurs, and was on the OLCC Rules Advisory Committee for implementation of the recreational system.
"Rural residential was not intended for any commercial farming, but it's been happening for a long time with veggies, grapes, and medical cannabis," said Kenyon. "The county knows that, but they have to go through their internal channels to make that change and I see real interest from them."
Bates said it may take three or four years for marijuana laws to get ironed out, as Oregon is under federal scrutiny and also has right-to-farm laws and strict land-use laws.
"It's a really big thing in Jackson and Josephine counties because the climate and weather are perfect here for growing marijuana," Bates said.
We reached out to Jackson County's Chief legal counsel Joel Benton and also the Jackson County Planning Department head Kelly Madding, but both are out of the office until Tuesday.
For more information on the lawsuit, contact right to grow at Righttogrowusa@gmail.com, or phone us at 844 4 RTG USA - (844) 478-4872
Source: Oregon Cannabis Connection - republished with special permission