March 10, 2018 — On March 5, the Land Use Board of Appeals (LUBA) dismissed a claim by Dunes City resident Catherine Caudle, which requested Dunes City’s emergency marijuana ban be repealed.
In the dismissal, LUBA concluded that they lacked jurisdiction over the appeal.
The issue stems from Ordinance 245, passed on Nov. 17, 2017, by the Dunes City Council, which placed a ban on marijuana producers, processors, wholesalers, retailers, dispensaries or any combination of those entities until the public could decide the ultimate fate of marijuana grows in November.
However, the ordinance allowed three marijuana grow operations that had opened within city limits prior to the decision to remain in business.
Dunes City officials feared that repealing 245 would open the floodgates to more marijuana facilities, since the ban would no longer be in place.
Caudle’s petition, filed on Nov. 17, looked to deconstruct the marijuana argument in terms of land use.
The petition focused on the term “agriculture” in the city code and comprehensive plan to combat the ordinance. It argued that the city did not follow residential (R-1) zoning regulations when drafting 245. Under the assumption that marijuana is agriculture, which is allowed in R-1 zoning, the petition argued the city council erred in drafting the ordinance.
“(The) petitioner argues that in adopting the ordinance, the city should have applied six different policies from the city’s comprehensive plan in adopting the ordinance and adopted findings addressing these policies,” the LUBA dismissal read.
In one of the criteria, the comprehensive plan states, “Waste discharges from future facilities shall not exceed the carrying capacity nor degrade the quality of the land, air and water resources.”
One of the main arguments opponents of the grow facilities made was that water seepage from the sites could damage the local environment. Air quality issues were also mentioned, with the smell of marijuana creating a nuisance.
By assuming that marijuana is agriculture, it could fall under Dunes City Code 220.127.116.11(A)(5), which does define agriculture as the growing and raising of trees, vines, shrubs, berries, vegetables, nursery stock, hay, grains and similar food and fiber products.
LUBA did accept the presumption that marijuana was agriculture for the purpose of its opinion.
“For purposes of this opinion we also presume, without deciding, that that is the case (sic),” LUBA’s statement read.
The petition argued if that was the case, 245 could act as a de facto amendment of Dunes City’s definition of agriculture, because it prohibits a particular plant, marijuana, from being grown in the R-1 zone. Therefore, it would fall under the jurisdiction of LUBA.
“A decision is a land use decision if it either applies, or should have applied, a land use regulation or a comprehensive plan provision,” LUBA wrote.
Even if 245 was not a land use decision, the petition argued, it would still have “significant impact” on present and future land uses — and therefore qualifies as a significant impact land use decision, which would also fall under LUBA’s jurisdiction.
LUBA disagreed with a number of points the petition made.
First, the petition stated that 245 should have included consideration of criteria in the comprehensive plan, but the city is not beholden to that plan, LUBA argued. The city’s comprehensive plan does not establish standards for decision making.
“There is nothing in the broad grant of authority that suggests the (state) legislature meant to subject that grant of authority to compliance with local governments’ comprehensive plans,” LUBA wrote.
If the comprehensive plan specifically mentioned marijuana, it would still not be legally binding — comprehensive plans are recommendatory, not regulatory.
Even if 245 acted as a de facto amendment to Dunes City Code 18.104.22.168(a)(5) regarding agriculture, LUBA argued that 245 as a whole is not a land use issue.
“The only standards that apply to the city’s decision to adopt (245) are that standards set out in the [state marijuana statutes], which are not land use standards,” LUBA wrote. “Neither do we think that the exception in the ordinance for existing businesses is a de facto amendment of the city’s zoning code. … The city’s prohibition on marijuana businesses operating anywhere in the city is not an exercise of the city’s planning and zoning responsibilities and is therefore not a de facto amendment [of the city’s code]. Rather, it is a valid exercise of the authority given the city by the legislature [to regulate marijuana].”
State law allows cities to regulate marijuana manufacturing and sales. This is the known as the “local option,” which gives governments the authority to adopt ordinances that “prohibit or allow the establishment of any one or more” marijuana businesses described in state law and refer those adopted ordinances to the electors of the city for approval in a statewide general election.
Ordinance 245 did not ban agriculture, just marijuana businesses. Because of this, the argument that the ordinance is a de facto amendment to the city’s zoning code regarding agriculture is moot because “agriculture” remains a permitted use in the residential zoning district.
“We conclude that when a local government acts pursuant to the authority given it to prohibit some or all marijuana businesses within its jurisdictional boundaries, review of such a decision by a specialized land use decision review body like LUBA is not appropriate,” LUBA stated.
Currently, Caudle has 21 days to make a motion to appeal LUBA’s decision with the Oregon Court of Appeals. It is unclear if she will appeal, and all requests for comments from Caudle by the Siuslaw News have been referred to her attorney, Sean Malone, who has not responded to multiple requests for comment.
Even if the decision is appealed and reversed, Dunes City has taken steps to regulate future marijuana businesses, should further entities be allowed to enter the city.
Throughout 2017 and 2018, the Dunes City Planning Commission and Citizen Advisory Commission has been drafting regulations regarding marijuana businesses, including how they should be regulated.
A final list of regulations was introduced to the city council on Feb. 14, 2018. Councilors voted to put the regulations through an approval process.
While the time frame for the process is unknown, Dunes City officials hope that the regulations will be approved soon.
If Caudle does not move to repeal LUBA’s decision, and no further legal action is taken against Ordinance 245, the issue will be decided in November by the Dunes City electorate, which is ultimately what city councilors hoped would occur.