County Regulation and Common Sense

By Pioneer Pete Gendron
Oregon Cannabis Connection

Pioneer Pete Gendron
Pioneer Pete Gendron

Since the passage of Measure 91, there has been an increasing movement towards the regulation of cannabis production throughout Oregon. Some of these regulations and restrictions are harming the medical community. Let’s take a minute to examine why and what we can do about it.

Since the passage of the OMMA – as Measure 67 back in 1998 – almost all of Oregon’s medical marijuana has been cultivated on rural residential land. These RR properties are where we live, and many of the MMJ growers also use their homes and land to produce other crops as well. So why upset the apple cart when this has worked so well for Oregon for nearly two decades?

In 2016 house bill 1598 defined cannabis cultivation as a farm use, just like other crops. Herein lies the problem.

Although this statutory clarification was designed to make marijuana growing more mainstream and inline with state regulations governing other crops — to normalize it. Counties like Jackson do not allow farm use on RR land.

This put growers under the OMMP, who have been using this land for years, in the position of having committed a non-conforming use. When new regulations – restrictions – are put on land use, anyone who has previously been using land for a purpose no longer approved is then performing a non-conforming use in their zoning area. The hassle and difficulty of being forced into this position is unique to medical marijuana.

So why is it unique and what makes MMJ so special? It is because the state does not treat all forms of marijuana equally. Although marijuana growing is required to be treated as a farm use, the products produced are handled differently depending on whether they are produced for ‘recreational’ or ‘medical’ purposes. Unlike other crops, all marijuana is not equal.

The counties have been given too much leeway in developing rules specifically for this industry is the majority opinion. Whether this was to gain early sales, or just catering to prohibitionists, can be debated. What cannot be argued is that as long as the state treats cannabis products differently, the producers themselves must be treated differently.

If we give the county planners the benefit of the doubt, then they are concerned that new commercial developments in RR areas are not consistent with either county or state long term planning goals. Simply put we do not want our homes and communities to be turned in to business districts or industrial tracts.

RR land is where we live and the codes affirm this. The production of small scale crops – not really farming, but gardening – is normally approved here. Farm use and it’s restrictions come into play when the garden turns into an endeavor for commercial sale and profit. This wasn’t a problem when we approved dispensaries and medical sales because cannabis had not been turned into a commodity by defining it’s production as farm use yet.

If we turn a more skeptical eye to the topic, the conclusion is inevitable that prohibitionist canna-bigots are using laws and rules designed to encourage the growth of an industry instead to stifle it. If not directly against the letter of the law, these efforts certainly are against the spirit of the law and the legislative intent. It was never contemplated in the passage of M91 that normalizing cannabis consumption for the entire population could lead to such drastic restrictions on the crop we so eagerly sought to develop.

This is called the “Law of Unintended Consequences”, and can be applied universally. As such it applies to our ‘rogue counties’ efforts as well.

All regulations are a form of restriction. In the case of land use, against your ability to use your land as you see fit. This is done in the name of ‘public health and safety’ no matter who you ask. But is the pre-existinging non-conforming use of cannabis cultivation for medical purposes a threat to public health and safety? According to history the answer is clearly “No.”.

This is where you come in. The lines have to be drawn somewhere – it’s required by law. What you can do is to contact the Joint Marijuana committee, your Representative and Senator, and especially your city councilors or county commissioners and ask that they carefully consider medical production as being different from OLCC licensed production. Make sure they are willing to defend the private property rights of medical growers at the same time as they put in needed regulation to preserve the integrity of our rural lifestyle. Remind them that as medical producers we have been and continue to be an integral part of our communities.

There is much work to be done in this legislative session, and the determination from both political parties and the Governors office is that clear guidance must be established before our growing season begins this year. Bills coming up include better definition of what is allowed to be regulated on farmland, as well as a separate bill on RR use. We will be discussing literally how to apply this State law uniformly to the State. The opportunity will come up in another bill to distribute revenue instead of to the schools back to the counties that produce cannabis, a system which is currently skewed in favor of paying the cities and counties that sell the most at the cost of the primary producers. The chance to send M91 money back to primary production areas should be a huge incentive to bring the planners on board with minimal regulation that favors responsible development.

As the state’s legal council said in a recent opinion, a medical grower registered prior to the passage of 1598 “… should be able to continue producing marijuana in Jackson and other counties that prohibit farm uses to occur on land that has been zoned for rural residential use…”

Pioneer Pete would much rather be discussing economic development if he must sit in planning meetings until his cheeks are numb.

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