Last week, the Oregon Land Use Board of Appeals (LUBA) ruled against a certain cross section of pot growers in the state. The Petitioners at issue wanted to grow medical marijuana on land covered by a rural residential zoning designation. When Jackson County adopted a zoning ordinance prohibiting such activity, the growers sued. Because LUBA sided with the County, medical marijuana grows in that jurisdiction will be limited to land zoned exclusively for farm (EFU), forest or industrial use. In that sense, the ruling is fairly narrow, although it could discourage prospective litigants in other counties on similar appeals.
As covered in the LUBA decision itself, the zoning change was consistent with Jackson Countys Comprehensive Planand ORS 475B.500, whichallows cities and counties to adopt reasonable regulations on the operation of marijuana grow sites. The Board found that a county keeping medical marijuana grows off rural residential land is reasonable for a couple ofreasons, including that there are over one million acres of land in Jackson County that remain suitable for marijuana cultivation under the new ordinance.
The growers took an interesting approach tothe reasonable regulations issue; they first argued that marijuana production is an exercise in free speech under the First Amendment of the Constitution. Due to this broad protection, the growers argued, the Countys zoning amendments would have to serve a significant government interest to withstand scrutiny. As you might expect, LUBA dismissed that argument quickly. More compellingly, the growers also argued that marijuana is now a crop under Oregon statutes, and the County did not prohibit other crops from being grown on rural residential land. In response, LUBA pointed to the large amount of land stillavailable for medical marijuana grows even outside the rural residential context.
Though not mentioned in the opinion itself, LUBA surely took note of howJackson County entertained significant public input before adopting the zoning regulations. Local jurisdictions tend to do this ahead of controversial decisions. In theory, the jurisdictions want to gain as much public input as possible before making impactful decisions; but cynics argue that thisprocessaffords only the veneer of democracy, designed to insulate government from criticism and lawsuits. In our experience, early advocacy may be fruitful, if theapproach is correct.
As further background to this case, LUBA also surely understood that farmers who had been on rural residential land prior to the ordinance can still grandfather in as a non-conforming use under Jackson County Code. We have worked on this issue with growers all around the state, as most local land use ...
