Agenda - Planning Commission - 06/01/2017

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May 25, 2017 I Volume 11 I Issue 10 Zoning Bulletin with the comprehensive plan. Moreover, the court found that even if that paragraph of the County's comprehensive plan did require the County to encourage "a variety of types of agriculture" in areas where "parceliza- tion and/or residential development has already occurred," the County's "decision not to allow marijuana production on rural residential lands — just one type of agricultural use —would not violate that command, because requiring the [C]ounty to encourage 'a variety of types of agriculture' is not the same as requiring the county to permit all types of agriculture." The court next held that, contrary to Diesel's argument, the County Board of Commissioners was not required to demonstrate a "substantial government interest" td reasonably regulate marijuana production on ru- ral residential lands. The court found Diesel's citation to First Amend- ment case law was unavailing. LUBA had concluded that Diesel's argu- ment failed because she had not established that marijuana production was a protected interest under the First Amendment. On appeal, the court agreed. Moreover, the court noted that the County zoning Ordinance was authorized, "both generally and specifically, by statutes that [Diesel] [did] not contend were unconstitutional or otherwise invalid." (See ORS 215.050(1) (authorizing county governments to adopt and revise zoning ordinances); ORS 475B.340 (authorizing local governments to "adopt ordinances that impose reasonable regulations" on the production and sale of recreational marijuana, and listing as an example of such regula- tions "[r]easonable limitations on where a premises for which a license [to produce marijuana] may be located.") Finally, the court held that the Ordinance was a "reasonable regula- tion" —under ORS 475B.340—of the production of commercial recre- ational marijuana cultivation in the County. The court found that Diesel had not argued that the property in the zoning districts where marijuana production was authorized under the Ordinance was unsuitable for marijuana production such that the owners of the land could not engage in that use. Moreover, the court found that the County was "actively encouraging those who [were] growing on rural residential and rural use lands to make application with the county for a `non -conforming use verification permit' in order to make legal grow operations located on these lands," and that the Ordinance included measures intended to allow marijuana cultivators on rural -residential land an opportunity to come into compliance with the Ordinance. Case Note: In its decision, the court made note that it was not deciding what was a "reason- able regulation" of marijuana under ORS 475B.340. 8 © 2017 Thomson Reuters