391 P.3d 973
Or. Ct. App.2017Background
- Jackson County adopted ordinances (Ordinance 2016-3 and emergency 2016-4) amending its Land Development Ordinance to restrict where medical and recreational marijuana production may occur, allowing it in EFU, forest, and industrial zones but prohibiting it in rural residential, rural use, urban residential, and commercial zones.
- Petitioner, a county resident who opposed the ordinance, appealed to LUBA arguing the prohibition on rural residential lands conflicted with the county comprehensive plan and was not a “reasonable regulation” under ORS 475B.340.
- LUBA affirmed the county, concluding the ordinance did not conflict with the comprehensive plan and was a reasonable regulation authorized by ORS 475B.340; petitioner then sought judicial review.
- Central statutory context: ORS 475B.370 classifies marijuana as a “crop” for agricultural zoning purposes; ORS 475B.340 authorizes localities to adopt "reasonable regulations," including location limits, on recreational marijuana businesses.
- Petitioner argued the county needed to identify a “substantial governmental interest” (invoking First Amendment time/place/manner analogies) and that the ordinance effectively eliminated grow sites in the county; county and LUBA relied on statutory authorization and the availability of sizable acreage in permitted zones.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ordinance conflicts with the county comprehensive plan | Ordinance bans a farm use (marijuana) on rural residential land, contrary to plan language encouraging small-scale agriculture in parcelized/residential areas | Plan language is descriptive, not mandatory; county need not permit every type of agriculture everywhere | No conflict; LUBA correctly concluded ordinance complies with the comprehensive plan |
| Whether ORS 475B.340 requires a showing of a "substantial government interest" for zoning limits on marijuana | County had to identify a substantial governmental interest and narrowly tailor the restriction (analogizing to First Amendment time/place/manner tests) | ORS 475B.340 authorizes reasonable regulations (including location limits); First Amendment doctrines do not apply to zoning delegated by statute | County need not demonstrate a "substantial government interest"; LUBA correctly applied the statute |
| Whether the ordinance is unreasonable as applied because it effectively eliminates grow sites in the county | By prohibiting rural residential grows (where most growers are), the ordinance makes siting impossible for many growers, contrary to legislative intent that regulations not effectively eliminate businesses | Marijuana production remains allowed on EFU, forest, and industrial lands comprising large acreage; county provided means for existing operations to seek compliance/nonconforming status | As applied here, LUBA did not err; petitioner failed to present sufficient record to show ordinance was unreasonable |
Key Cases Cited
- Mountain West Investment Corp. v. City of Silverton, 175 Or. App. 556 (Or. Ct. App.) (standard for reviewing LUBA legal error)
- McPhillips Farm, Inc. v. Yamhill County, 256 Or. App. 402 (Or. Ct. App.) (record citation practice for LUBA review)
- Gonzales v. Raich, 545 U.S. 1 (U.S. 2005) (federal illegality of marijuana under Controlled Substances Act)
- United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (U.S. 2001) (no medical necessity exception to federal marijuana prohibition)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time, place, manner/First Amendment narrow-tailoring principle)
- United States v. Albertini, 472 U.S. 675 (U.S. 1985) (First Amendment substantial governmental interest principle)
- Christian v. La Forge, 194 Or. 450 (Or. 1952) (due process/arbitrary legislative action)