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Deschutes County Farm Bureau Appeals New Pot Rules 

Will right-to-farm rules apply to marijuana after next legislative session?

click to enlarge An anti-marijuana sign on a fence near Sisters. - SUBMITTED
  • Submitted
  • An anti-marijuana sign on a fence near Sisters.

After the Deschutes County Board of Commissioners used an "emergency" clause Oct. 24 to quickly change some of its rules for growing recreational marijuana in the County, the Deschutes County Farm Bureau filed a motion to have the changes appealed.

Matt Cyrus from the Deschutes County Farm Bureau says the agriculture advocacy group on Nov. 12 filed an intent to appeal with the Oregon Land Use Board of Appeals, which will appeal the County's new rules, The new rules included increased setbacks and new odor and lighting requirements. In a letter to the Commission Aug. 28, the DCFB said it closely followed the process leading to the adoption of the bills which allow for the "reasonable" time, place and manner regulation of marijuana production, adding that the bills created a "very limited carve out to Oregon's Right to Farm Law, which otherwise strictly prohibits local governments from regulating farm uses in farm zones."

Commissioner Phil Henderson told the Source that the DCFB's filing means the new county regulations are on hold until the LUBA matter is resolved. Henderson said they haven't seen exactly what the DCFB is appealing, but will respond to the assignments of error when they receive them.

"It just delays any changes in the regulations going into effect for an unforeseeable amount of time," Henderson said. "Any applications in now won't be affected and any that come in during the appeal period."

A state legislator's perspective

State Rep. Ken Helm (D-Washington County), who serves on the Joint Committee on Marijuana Regulation and is a land use attorney by trade—said since the adoption of time, place and manner provisions, that counties need to be very careful about what they do to implement rules because they were a special carve out from the ordinary rules for exclusive farming use lands.

"The right to farm statutes protect farmers to do a lot of obnoxious things, like create dust and smells and light, and that's so they can farm without impediment," Helm told the Source.

Helm said one of the reasons the Legislature carved out the time, place and manner provisions was to encourage Deschutes County to opt into the legal recreational growing system.

Henderson said from the County's perspective, its changes to the regulations were not particularly significant, but more of a "cleaning up" of the wording.

"The Legislature made it legal to grow marijuana as a farm crop, but it also gave us the ability to do reasonable time, place and manner regulations," Henderson said. "And what we're trying to do is interpret those, and the original commissioners that passed it put some regulations in and we've made some changes."

Helm has been critical of Deschutes County's rules from the beginning. In a speech at the State Capitol on April 18, 2017, he said: "We warned the counties that if they abused that permission in a way that effectively prohibited marijuana businesses from location on EFU lands, while still opting in to getting some of the tax revenue, that we would come back and tell them what reasonable was—which is not something that I think anybody wants, the state Legislature telling the counties on land use, what's reasonable and what's not—or withdrawing the permission."

Helm told the Source last week, "One of the reasons I've been critical of Deschutes County is that they are, as a county, out of step with the other counties that have been undertaking land use permissions around cannabis that have not used the time, place and manner regulations to try to squash production on farmland.

"They've (other counties) been thoughtful, the procedures have been reasonable—and there's the word 'reasonable' in the statute and I advocated for that because it's a way to on one hand, give counties some flexibility about what they do within the time, place and manner categories, but should be some sort of bookend to avoid 'unreasonable,'" he said. "And Deschutes County, for one reason or another, stepped right into being unreasonable from nearly the beginning and set up a procedure that was absolutely the worst possible for actually helping a legal industry get off the ground, which was they sent all of these applications to some sort of a hearing, a public hearing—whether they needed to go there or not. And so that's involved the Commission in almost all these decisions somehow."

Henderson said "thousands and thousands" of rural Deschutes residents have spoken out about growing marijuana in the County, so the Commissioners view the regulations as protecting rural residents' interests.

"I think at this point it's not like you can't do the business in our county, there's over 40 grows that we've approved and there's more in the pipeline," Henderson said. "So there's a set of rules. We don't see them as oppressive; it's not as difficult in my mind as it is to build a house."

Obtaining a permit

Some who've applied for a legal recreational permit in the EFU zone in the County may disagree with Henderson.

Norma Tewalt and her husband Richard live on about 10 acres of EFU land near Sisters. The Tewalts started their application in January 2017 and were approved with conditions on Aug. 16. Their neighbors filed an appeal with the County Aug. 25, including an appeal with LUBA.

Some of the Tewalts' neighbors—including the recently elected Commissioner, Patti Adair, and Robert P. King, whose address is listed as San Juan Capistrano, Calif., on the County's property website—were against the growing operation. Neighbors wrote many letters to the County's planning department asking for the permit to be denied, created a website called Keepgoodrichsafe.com in an effort to educate people to the perceived dangers of legal marijuana growing. Adair posted a sign on her fence that read, "Norma N Rick Don't Bring Marijuana crime to Goodrich. " She wrote to the County, "I do not understand why marijuana production was NOT limited to an industrial zone. Our rural property values will be destroyed."

Norma Tewalt said she attended hearings with the Commission and LUBA. She says she didn't hire an attorney, even though neighbors did. On May 3, LUBA affirmed the County's decision to approve her permit with conditions. The County Commission voted again and approved her operation by a two to one vote, with Henderson voting no.

The Deschutes County Farm Bureau Appeal

Helm said he understands DCFB's position and its reason for filing the appeal against Deschutes County.

"They now have identified that they've got farmers that want to grow hemp and they want to grow cannabis and are getting—real farmers that are getting static from neighbors—about this, where, if they were growing almost any other crop, they'd be completely protected by the right to farm rule," Helm said. "And it was a big concession for the Farm Bureau to go along with our experiment a few years ago, and now they're saying, 'Hey, the experiment didn't work for us,' and I understand their position."

Henderson said he thinks DCFB's ultimate goal is to roll back all regulations regarding marijuana growing.

"They're going to pursue that at the Legislature, which is really where they would have to do it because the Legislature gave us the right to put reasonable time, place and manner, and it hasn't been defined by the Land Use Board of Appeals, and they would have the ability to say we've overstepped," Henderson said. "But there's many people that are not in favor of having it near homes that want stricter regulations."

Helm said the simplest way to enforce the growing rules statewide would be to take the carve-outs away from counties.

"Because what would happen is you'd just go back down to the general rules, which is activities on farm land you are entitled to essentially create those nuisance conditions and nearby non-farm users cannot complain," Helm said. "They're foreclosed from bringing any sort of real actionable complaint. It just sends this back to where we were before 2015."

That intent to appeal doesn't specify exact details about what the appeal will include, and it's not yet clear when the DCFB plans to file its appeal.

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