LUBA Appeal Forces Commissioners to Rethink Cannabis Regulations  

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On February 13, 2019, Clifton Cannabis Law filed a Petition for Review with the Oregon Land Use Board of Appeals (LUBA) on behalf of the Deschutes County Farm Bureau, Cascade Cannabis Association (formerly known as Celebrate Cannabis) and ten additional petitioners. The Petition challenges amended Deschutes County land use regulations adopted in November 2018, which drastically increased restrictions on growing and processing marijuana in the County and slashed the number of available lands for such uses.

After the County reviewed the Petition, it decided to revisit the challenged regulations, making a motion on February 28, 2019 to withdraw them and requesting 180 days to go through the legislative process again.

This is a temporary victory for those in the industry and other interested persons. Stephanie Marshall, a senior attorney at Clifton Cannabis Law stated, “The Petitioners hope that the County will, this time, carefully review legal constraints on its authority and decide to comply with Oregon’s Right to Farm Act and other legislation, and to consider important constitutional protections.” During the process, the County cannot enforce the withdrawn regulations as against any applicants. The Petition states, in part:

Each Ordinance restriction is unreasonable because it demands farm operations with zero impact (in terms of light, noise, odor, etc.). The Ordinance took the strictest marijuana regulations in Oregon and purposefully made them harsher to appease certain angry constituents. The County sought to sacrifice a farm crop in favor of nonfarm uses in EFU lands.

Although the County had adopted marijuana regulations in 2016 and its own studies showed there were no compliance issues with respect to operations it had permitted, the County caved to political pressure from rural residents living in its exclusive farm use zone. Many citizens objected to the smell and sound of marijuana-related farming activities and, generally, to legalization of the crop in principle. The County understood that its regulation of recreational marijuana would not address the vast numbers of identified issues attributable to medical marijuana, illegal grows and hemp production. The number of recreational marijuana farms in the County is less than three percent of the total figure of Oregon Health Authority-permitted medical grows in its boundaries.

Jennifer Clifton, founder of Clifton Cannabis Law commented, “The Commissioners spent an outrageous amount of time and County resources in adopting the new regulations that they knew, from advice of County counsel and others, were not reasonable.  It’s unfortunate that the Commissioners’ played politics during an election year that had a devastating impact on the livelihood of farmers and a chilling effect on an emerging key industry for our State.”

In adopting the now withdrawn regulations, the Commissioners admittedly acted in response to pressure from persons opposed to the crop and failed to recognize that marijuana producers are entitled to the same protections as farmers of other crops. Moreover, the County’s attempts to require applicants to waive privacy protections as a condition of approval and to create a private right of action for nuisance and trespass for neighbors alleging impact from this particular farm use raise constitutional issues that, if not corrected, will be before LUBA after replacement regulations are adopted.

For more information on the legal challenge to the County’s marijuana regulations and how to participate in the next legislative process anticipated to begin at the County within the next month, please contact Stephanie Marshall at Clifton Cannabis Law at 541-306-4441.

cliftoncannabislaw.com

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