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Fair and Impartial? 

Applicants test the Deschutes County Board of Commissioners

In a March 6 business meeting, the Deschutes County Board of Commissioners once again heard an appeal of a marijuana farm land-use application. This is the first public hearing regarding an appeal of a marijuana land-use application since it was announced that the Deschutes County Farm Bureau and local industry representatives are appealing the county's 2018 "emergency" rulemaking decisions that further restricted where cannabis farms could exist.

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So far, if there is any theme to Commissioner Patti Adair's tenure on the Board, it's a hands-on approach as it pertains to marijuana farm applications. Rather than hear appeals on these issues dispassionately and make decisions by applying the factual record to the applicable law, Adair seems determined to engineer outcomes.

The latter was on full display as the applicants at the March 6 public hearing, the owners of Mckenzie Canyon Farms LLC, faced an appeal-friendly Board. County employees, as is common, approved their application last fall. Neighbors then appealed the decision.

Adair, who campaigned for commissioner as a vocal opponent to the marijuana industry, had personally met with neighboring landowners of the proposed site for Mckenzie Canyon Farms prior to the appeal. This issue was brought up in testimony by David Mullan, one of the farm's managing members. He argued that her personal involvement in listening to the complaints of the appellants rendered her too biased to participate in the decision making.

County counsel then asked Adair if she felt her involvement with this particular case rose to the level where she felt she should recuse herself. "I feel I could be fair and impartial," said Adair. "I know the neighbors were very concerned about the operation. I definitely know that I was concerned with them bringing it into that specific spot in our county at that time."

This is a variation on a theme with Adair. In January, during Board deliberations over another appeal, Adair attempted to insert into the record outdated internet research she had found, regarding an odor-control device an applicant had proposed for their grow. County counsel and even Board Chair Phil Henderson looked askance at her attempt to replace a certified engineer's stamp with her own Googling.

During the March hearing, county counsel warned that the issue of Adair's close involvement and relationship with the appealing neighbors could be the basis for a procedural appeal by the applicants, should the application be denied.

Ultimately, Adair didn't see the need to step aside. Henderson, too, jumped in regarding concerns over what would be adequate to power the operation.

"In my experience building houses, 200 amp is a basic service," he said. "This seems like it will require more." The applicant was only using power to run the water distribution and odor-control devices and would rely on the sun for growing power (the mature canopy would be grown in a greenhouse). The application was buttressed by Central Electric Co-Op's written commitment to upgrade a substation to supply them with more power in the future.

The real issue, however, seems to be Commissioners Adair and Henderson casting aside the Deschutes County Code. The volume of electric power an applicant has access to, much like the quantity of water required, is an irrelevant consideration with respect to whether the Board should approve a land-use permit. If a business has insufficient power, it will fail. If its irrigation water won't cover the crop, the crop wilts.

Henderson also delved into concerns the appellants raised about federally protected eagles that nest in the area, and the "unknown impact" the farm could have on them. Yes, Republicans can be environmentalists, apparently to the extent it retains the rural conservative vote.

County staff advised Henderson that the county could not condition local approval on compliance to federal laws about protected species.

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