By Keith Mansur
Oregon Cannabis Connection
The Oregon Land Use Board of Appeal (LUBA) released its second decision in the appeal of The Right To Grow U.S.A. (RTG) vs. Jackson County Planning battle. The decision returned was both a small victory for the Oregon cannabis grower advocacy group, and a huge disappointment. Although they will be allowed to erect and use greenhouses on their properties without the expensive “structural” permits the county was requiring, they will not be allowed to farm on Rural Residential (RR) zoned land without a special land use permit the County is imposing on cannabis growers, and now possibly others, thanks to the wording of the County ordinance.
After the Jackson County Planning Commission established what many growers considered onerous rules for growing cannabis, the RTG group filed a challenge to their ordinance (LDO) which forces cannabis growers to obtain a permit to perform commercial farm activities, including Rural Residential (RR) properties. The County also required growers to obtain costly “structural specialty code” building permits for greenhouses they already had or were planning to erect.
“We appreciate LUBA’s decision reversing what was clearly the wrong decision by Jackson County to impose yet further red tape and expenses on farmers in Jackson County,” explained Sandy Diesel of Right To Grow U.S.A. In a prepared statement.
In their decision December 19th, LUBA upheld the land use permits Jackson County has imposed for “Farm Use” on Oregon cannabis grows, but they found their greenhouse permitting requirements unwarranted and in conflict with existing Oregon laws (SB 45, 1975) which exempt certain structures, even if they are not on Exclusive Farm Use (EFU) land or Forest Use lands.
They also noted that greenhouses, though they do not need the structural permits, are still not exempt from standard building permits, such as electrical and plumbing. Also, the structures may be otherwise disallowed by residential zoning rules, including RR zoning:
“petitioners must establish that the greenhouses are allowed uses in the RR-5 zone in order for the agricultural building exemption to be of any real significance, because if the greenhouses are not allowed uses in the RR-5 zone, then an exemption from the state structural specialty code is of little value to petitioners.”
One surprising development is the LUBA interpretation of the County ordinance language. The ordinance would also include all the typical, existing farmers in the county under their permitting regime. Farming on EFU and other lands that are already designated as permissible may also have to pay for the “land use review” stipulated in the ordinance, according to RTG attorney Ross Day.
“The other part is really strange,” explained Ross Day, attorney for Right To Grow. “What the County argued, and LUBA seems to have agreed with, is that if you have an outright permitted use you still have to get some sort of land use review done by the county.”
“What it means is that if you are a farmer and you are growing corn on your 40 acres, I have to have a land use review by the county to do that, otherwise I’m in violation of the county’s code,” explained Day. “I’m willing to bet you a box of doughnuts that the overwhelming majority, if not every single farmer in Jackson County is in violation of the County’s code.”
“All farmers, regardless of what they are growing, should be on notice that if you are farming on land zoned for Exclusive Farm Use, and you don’t have approval to do so by Jackson County, you could be fined by the County,” said Diesel in their statement.
Oregon Cannabis Connection reached out to Jackson County Director of Developmental Services, Karen Madding, but were not prepared to comment on the decision.
Their earlier case before LUBA was denied in September but was appealed to the Oregon Appeals Court. Arguments have already been made and a decision is expected within a few months. The County’s argument in that case was that “farm use” crops are not permitted to be grown on Rural Residential (Zoned RR) properties. The decision affected thousands of growers.
RTG also has a lawsuit filed against Oregon Health Authority, based on patient privacy issues, that would scrap the OHA reporting system if successful. The state filed for dismissal of the case and Day said they have 30 days to respond, which they will do soon.
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|December 20th, 2016|
Right To Grow Scores Victory For Cannabis Farmers in Jackson County
Medford, Oregon. The Oregon Land Use Board of Appeals (LUBA) issued a decision in Hunt and Gross v. Jackson County, LUBA No. 2016-091 reversing a decision by the Jackson County Hearings Officer requiring cannabis farmers with greenhouses on their property to obtain building permits for the greenhouses.
“We appreciate LUBA’s decision reversing what was clearly the wrong decision by Jackson County,” said Diesel, “to impose yet further red tape and expenses on farmers in Jackson County.”
Diesel continued, “LUBA’s decision is very helpful for Cannabis farmers not only in Jackson County, but around the state. It’s time for farmers to unite, statewide”.
LUBA’s decision is not without controversy, however. LUBA affirmed Jackson County’s claim that property owners engaged in outright permitted uses on their land – called Type I uses – . For instance, under LUBA’s decision, farmers engaged in farming on Exclusive Farm Use land who do not have approval to farm their land by Jackson County are running the risk of being fined by Jackson County.
“All farmers, regardless of what they are growing, should be on notice that if you are farming on land zoned for Exclusive Farm Use, and you don’t have approval to do so by Jackson County, you could be fined by the County,” said Diesel.
The challenge was spearheaded by Right To Grow, USA, Inc., a non-profit organization located in Jackson County dedicated to protecting the rights afforded the cannabis industry by Oregon law.
© 2016 Oregon Cannabis Connection. All rights reserved.