In November, voters in Deschutes County will decide whether to continue to allow new marijuana farms to open up in the county. Meanwhile, two hopeful Deschutes County marijuana farms have received word from the Oregon Land Use Board of Appeals that they can move forward in building their operations.
The Deschutes County Board of Commissioners initially denied two separate applications, including ones by Tommy Nehmzow and Waveseer of Oregon, both which wanted to build indoor marijuana production facilities on exclusive farm use land in rural Deschutes County. After the initial applications for both farms got the OK from county staff, the Board of Commissioners denied each application, stating that in both cases, the farms would be located adjacent to a "Youth Activity Center," a term mentioned, but not defined in Deschutes County marijuana regulations at the time.
In the Waveseer case, the land in question was adjacent to Rhinestone Ranch, an equine facility where 4-H activities took place. In the Nehmzow case, the land is adjacent to Sundance Meadows, a "recreational community" that includes temporary residences and a number of recreational amenities.
The problem, LUBA later ruled, was that Deschutes County didn't have a codified definition of what constituted a Youth Activity Center. Following a remand from LUBA in the Waveseer case, which stated that the County should define what a YAC entails, the County appealed, stating it had since named 10 criteria by which a YAC could be defined.
On Aug. 10., LUBA issued final opinions and orders in both cases, saying, among other arguments in favor of the prospective farmers, that because the County did not have the YAC definitions in place before the applicants submitted their applications, the applicants could not be expected to know what might have prevented from using that EFU land for marijuana production. In other words, county commissioners attempted to impose rules on the prospective farms after the prospective farmers submitted their applications.
"We conclude that the 'youth activity center' criterion cannot be applied because it violates the codification requirement," wrote LUBA in its order in the Waveseer case. Similarly, in the Nehmzow case, LUBA wrote,
"The board of county commissioners expressly adopted those findings of compliance and conditions in the staff report, except that the board denied the application based solely on its application of the youth activity center separation distance requirement," adding, "We conclude that the board erred in applying that criterion. Accordingly, there is no basis for the county to deny the application."
The LUBA decisions mark a years-long fight for the two farm applicants, who now, under LUBA's ruling, could see their applications approved by Deschutes County. The County can still appeal.