Agenda - Planning Commission - 06/01/2017

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Zoning Bulletin May 25, 2017 I Volume 11 I issue 10 and medical marijuana production are considered a `farm use,' " the Ordinance amended the LDO to allow marijuana production on lands zoned exclusive farm use (EFU), forest, and general and light industrial. Marijuana production was not authorized on lands zoned rural residen- tial, rural use, urban residential, and commercial. Sandra Diesel ("Diesel"), a resident of the County, opposed the adop- tion of the Ordinance. She appealed the adoption of the Ordinance to the state Land Use Board of Appeals ("LUBA"). Diesel argued that "[t]o the extent the Ordinance prohibits marijuana production (a farm use) on ru- ral residential lands within the County, the Ordinance conflicts with the County's comprehensive plan," and is therefore invalid. Diesel argued that the County's comprehensive plan "requires that marijuana be al- lowed to be grown on rural residential lands." In support of her argu- ment, Diesel pointed to a paragraph from the comprehensive plan that discussed the benefits of small-scale agriculture in rural areas where "parcelization and/or residential development" has occurred. That paragraph "encourage[ed] a variety of types of agriculture in the [C]ounty Diesel also argued that the Ordinance was "invalid because the [C]ounty failed to make a finding that identified 'any substantial govern- ment interest' advanced by the zoning decision." Diesel pointed to ORS 475B.340, which authorized local governments to adopt ordinances that imposed "reasonable regulations" on marijuana production and sale. Die- sel cited case law that had established that "reasonable" regulation that restricts First Amendment rights must advance a "substantial government interest." Diesel maintained that the County therefore was required to show such a "substantial government interest" in'order to establish the reasonableness of the Ordinance. LUBA ultimately rejected Diesel's arguments and affirmed the County's adoption of the Ordinance. Diesel appealed. DECISION: Judgment of Land Use Board of Appeals affirmed. The Court of Appeals of Oregon also rejected Diesel's arguments, and affirmed the County's adoption of the Ordinance. The court first held that the Ordinance did not, as Diesel had argued, conflict with the County's comprehensive plan, which encouraged a vari- ety of types of agriculture on land zoned rural -residential in the County. Again, Diesel had pointed to a paragraph of the County's comprehensive plan, which touted the benefits of small-scale agriculture in rural areas and "encourag[ed] a variety of types of agriculture in the [C]ounty . . . ." The court held that paragraph was "not language of requirement — neither grammatically or substantively." In other words, the court found that the language of the comprehensive plan did not "require" the County to allow marijuana production on rural residential -zoned land and that the County's decision to prohibit it on those land was not inconsistent 2017 Thomson Reuters 7