The past few months have been a bit of a whirlwind for cannabis producers in Josephine County, Oregon. Back again in September, a coalition of producers stopped a county ordinance focusing on farms in rural residential zones that would have considerably amplified setback needs, demanded the OLCC licensee alone to possess the authentic home, and prohibited any farm from making use of non-public streets, easements, or owner-taken care of community proper-of-approaches.
Celebration proved untimely, as the county adopted a new ordinance on December 6, 2017 that is arguably worse. The ordinance targets all qualities zoned rural residential with extra than 12 experienced crops and considerably curtails business cannabis creation. For illustration, on rural residential loads:
- Hashish creation is banned on all loads or parcels of five acres or less.
- Hashish creation on loads larger than five acres is constrained to an eighth of the measurement that would or else be allowed less than OLCC policies.
- 100 foot setback are on all sides are demanded for all buildings and improve canopies.
- The OLCC licensee will have to alone possess the authentic home.
Farms hoping to avoid these needs will have to have been entirely certified by the OLCC right before March 6, 2018 in purchase to use for a variance from these regulations.
As anticipated, before this year a group of growers submitted suit against the county right before Oregon’s Land Use Board of Appeals (“LUBA”). Despite the fact that LUBA petitions are not simply out there, LUBA issued an purchase on February 5, 2018 that stayed (froze) implementation of the ordinance pending more proceedings, and offers us an insight into the claims elevated by the petitioners.
The petitioners were tasked with establishing 1) “a colorable claim of mistake in the land use final decision or constrained land use final decision less than review” and 2) “that the petitioner[s] will experience irreparable damage if the stay is not granted.” The petitioner met both equally thresholds, so let’s see how they did it.
A Colorable Declare of Error
In Thurston Hills Neigh. Assoc. v. Metropolis of Springfield, 19 Or LUBA 591 (1990), LUBA said that the standard to set up a colorable claim of mistake is “not a demanding standard”. The petitioners do not need to set up they will earn on the deserves. Relatively, they need only clearly show “that the faults alleged are enough to result in reversal or remand of the final decision if uncovered to be accurate.” In point, in Thurston Hills, LUBA simply looked to whether the petitioner’s claims were “devoid of any lawful benefit.” In the present circumstance, LUBA uncovered that the petitioners claims have lawful benefit. Exclusively, the petitioners argue:
- The ordinance violates ORS 215.130(5) mainly because it does not allow for farms operating at the time the ordinance was adopted to carry on operating. ORS 215.130(5) essentially prohibits a county from adopting an ordinance that retroactively bans current lawful makes use of.
- The county unsuccessful to give mandatory notices to the house owners of any qualities that would be constrained or prohibited from any earlier allowed makes use of.
- Neighborhood jurisdictions are only allowed to place “reasonable regulations” on business cannabis creation, and this ordinance does not qualify. Note that this identical argument was advanced against a very similar ordinance in Jackson County but that LUBA and the Oregon Courtroom of Appeals determined that Jackson County’s ordinance experienced as a fair regulation.
Due to the fact the “irreparable injury” requires an damage that can’t be compensated adequately in income damages, the petitioners centered primarily on the current strains and client goodwill that would vanish if the county succeeds in banning their farms. LUBA simply sided with petitioners on this issue, but the problem bought a bit trickier mainly because the petitioners desired to also clearly show that the county’s conduct was “probably alternatively than basically threatened or feared” and that “the ensuing damage will have to be most likely alternatively than basically threatened or feared.”
The county argued that these destructive results on petitioners were overblown mainly because the ordinance offered an chance for non-compliant qualities to receive a non-conforming use software. The petitioners cleverly mentioned that the OLCC will very likely refuse any license renewals although a licensee is enterprise the non-conforming use method, so even participating in the method alone puts the farms at hazard. The courtroom was certain and issued a stay.
Up coming Ways and Predictions
The petitioners and the county will advance their arguments at a listening to now, so we will soon discover out whether this ordinance qualifies as a “reasonable regulation.” Very similar arguments against Jackson County were shot down, but perhaps these petitioners have determined some nuances that will earn the day. In this circumstance, with the retroactivity and observe issues determined by the petitioner we really feel at ease putting our income on the growers.