Dear Pot Lawyer,
Has Josephine County lost its mind?
When it comes to cannabis, absolutely. In the last year, Josephine County has doggedly followed the lead of neighboring Jackson County in attempting to all but ban cannabis production on its 16,000 rural residential lots.
Our story begins with Measure 17-81, placed on the ballot by Josephine County’s Board of Commissions during the 2017 special election. The measure asked voters in the southwestern Oregon county whether it should “prohibit the production of commercial, recreational marijuana in all rural residential zones.” Sixty-four percent of voters said yes, encouraging the board to start the next step: amending Josephine County’s zoning codes to gut rural residential cannabis production. All of this was ostensibly to shut down bad actors in the local industry.
However, a group of good actors fought back, testifying at public hearings to convince the board that the proposed regulations were overly broad and would disproportionately target compliant farms, while doing little to stop the problematic farms that disrupt communities and divert cannabis into the black market. The board relented, and canned the proposed regulations at the end of last September.
Celebrations were short lived: The board returned with a vengeance in December, passing a new ordinance that bans cannabis production on rural residential lots smaller than five acres, limits the size of commercial grows on larger lots, and includes a host of other burdensome restrictions. The growers fought back again, filing a lawsuit before the Land Use Board of Appeals (LUBA), which is essentially the Oregon Court of Appeals for land-use decisions. The lawsuit argued first that the county failed to follow statutory notice requirements when it adopted the ordinance, and second that the ordinance itself went beyond the county’s legal right to impose reasonable regulations on commercial cannabis production.
LUBA was sufficiently concerned by the growers’ arguments to issue a stay on enforcement of the ordinance on February 5. Then, after oral argument on March 8, LUBA ruled against Josephine County because the county failed to provide mandatory written notice of the public hearing to all 16,000 rural residential properties. As the county lost because of a procedural error, nothing in LUBA’s final opinion addressed the merits of the growers’ argument that an effective ban on cannabis production in rural residential zones goes beyond Josephine County’s legal authority.
The county can, and probably will, be back. Despite the undeniable economic benefits of responsible commercial cannabis production, the county seems dead set on following through in a misguided attempt to regulate away problem farms. Instead, the county would probably be better served by using cannabis tax revenue to target specific bad actors. If Josephine County persists in this folly, then it will no doubt find itself back in court. Hopefully, it won’t come to that.