On Wednesday, October 24, 2018, the Deschutes County Commissioners enacted Ordinance 2018-012, which amends significant provisions of its marijuana regulations, declaring an “emergency.” The new regulations go into effect on November 23, 2018, and will apply to any new applications on or after that date, including requests to amend any land use approvals previously granted by the County.
The move came as a surprise to most of those persons who had been participating in the legislative process this year. Not only had one of the Commissioners admitted to the Board of Celebrate Cannabis, a non-profit organization of industry representatives, that the new regulations were “unreasonable,” but the Commissioners acted precipitously to shorten the time for the effective date, on the basis of an emergency, without making any supporting findings.
The new Deschutes County regulations reduce the available area in the county for producing marijuana by 17% and add onerous noise and odor reduction requirements to a set of regulations that are already one of the most restrictive in the state. The regulations also require applicants to waive constitutional rights that would otherwise protect them from unreasonable searches and seizures as a condition of applying for land use approval. The County has taken for itself the ability to conduct unannounced searches of licensed premises up to four times a year, without probable cause.
Three chapters of the Code were revised: Chapter 9.12 (Right to Farm), Chapters 18.24, 18.116 and 18.124 (Zoning regulations) and Chapters 22.24 and 22.32 (land use action hearings and appeals).
• Marijuana not protected under Right to Farm provisions
• Marijuana production and processing are proposed to be excluded from the MUA zone
• Marijuana production required to be at an increased distance from federal lands, governments that have opted out, the Redmond Urban Reserve Area and other approved marijuana sites
• Additional noise and odor mitigation requirements
• Increased requirements for documentation of water usage
• Increased setbacks from lot lines
• Increased setbacks from an off-site dwelling
• More restrictions on indoor lighting
• More requirements on utilities
• Odor restrictions would require independent research and testing of odor control methods
• Secure Waste Disposal would require a statement describing how water runoff is addressed
• Inspections to be added to annual reporting
• Additional documentation on payment of System Development Charges (for roads, etc.)
• Notice of Land Use Hearings would now to property owners within 1000 feet (currently 750)
• New provision allowing 15 days for an appeal of a marijuana production or processing decision
The County has not yet published a clean version of Ordinance 2018-012 and the revised provisions of the Deschutes County Code, as of the date of this blog post. A redlined version is available.
The County’s new regulations do not address any documented health, safety or welfare concerns that are not already protected by the existing laws. The code revisions are punitive and unduly onerous, which will result in the very effect the County is hoping to avoid – proliferation of unlicensed operations. Licensees have been shown to be responsibly operating within the confines of state and local law. The mere disapproval by some constituents of marijuana in general, without more, is not a reasonable basis to increase the burdens and costs of compliance and minimize the available lands for production. The Commissioners did not make a decision that protects all persons in the County.
Fear is never a solid foundation for regulatory action. Without documented evidence that the marijuana industry is failing to comply with existing standards, there is no need to impose new ones. The County commissioned a recent report concerning the marijuana licensees in the area, which showed that few, if any, issues requiring additional regulation exist. Somehow, the findings in that report were set aside in favor of broad-brushed, anecdotal “concerns” of a limited number of people in the County who are generally opposed to marijuana on principle.
Ordinance 2018-012 may be appealed to the Land Use Board of Appeals within 21 days of its adoption. LUBA is a specialized appellate court, comprised of three judges, that determines whether land use actions are consistent with state law and constitutional protections, are supported by substantial evidence and are not arbitrary.
If you would like more information on how to participate in a potential appeal or schedule a consultation to potentially discuss how your rights may be affected by the new regulations, contact Clifton Cannabis Law LLC.