An Oregon county is thinking about excluding marijuana from farm zones, raising questions about how the psychoactive crop will be regulated under the state’s land use system.

Since voters in the state approved a ballot initiative legalizing recreational marijuana last year, officials in Linn County have been inundated with questions about where they can grow it, said Roger Nyquist, a county commissioner.

“We’re even seeing real estate ads advertising properties as turnkey ready for marijuana production,” Nyquist said.

County commissioners are concerned about problems resulting from marijuana growing outdoors near homes, which is why they’re considering limiting commercial production to light industrial and commercial zones, he said.

“There are security issues if you have millions of dollars worth of crop sitting next to families,” he said.

Proponents of legalized marijuana, however, see the proposal as an attempt to circumvent Measure 91, which regulates statewide production, processing and sales.

Using zoning rules to create a “functional ban” on marijuana dispensaries, for example, would be pre-empted by Measure 91, said Leland Berger, an attorney who advises marijuana businesses.

“I am starting to see municipalities who are bigoted against cannabis and utilize land use and zoning laws to avoid state pre-emption,” said Berger.

Paul Loney, who is also an attorney who handles marijuana issues, said he’s not convinced by Linn County’s safety argument and suspects the ordinance is intended to discourage marijuana production.

“There’s already medical marijuana grown there outdoors and the sky hasn’t fallen,” he said.

From Linn County’s perspective, keeping marijuana operations within industrial and commercial zones would probably mean the plants will be grown indoors, reducing the likelihood of conflicts with residential areas, Nyquist said.

The proposal, which may be subject to a commission vote by late March, would not apply to cultivating up to four plants per household for personal use as allowed by Measure 91, he said. “We respect the people have spoken.”

If the ordinance passes, violations would be treated as a civil matter — not a crime — which would allow the county to cite offenders for growing marijuana outside the approved zones, he said.

Nyquist said the county can restrict marijuana because it’s not recognized as a crop by the Oregon Department of Agriculture.

The ordinance aims to prevent people from speculatively investing in rural property with the expectation of growing marijuana before the Oregon Liquor Control Commission creates rules for commercial production in early 2016, he said.

“We’re just trying to get ahead of this until the unknowns are cleared up,” Nyquist said.

However, state regulators say the county’s ability to restrict marijuana production to certain zones is itself uncertain.

The Oregon Department of Agriculture’s definition of a crop only applies to statutes related to quarantines, pesticides and similar issues but not zoning decisions, said Jim Johnson, the agency’s land use specialist.

“We don’t define what is and is not a crop for purposes of land use,” Johnson said.

Oregon land use law does not go into detail about specific plants that qualify as crops in the context of farm zoning, said Katherine Daniels, farm and forest specialist for the state’s Department of Land Conservation and Development.

“Since it’s a broad authorization, we would assume that includes all crops, including recreational marijuana,” she said.

Landowners can build processing facilities for their crops within farm zones and they’re also shielded under Oregon’s “right to farm” statute from nuisance lawsuits and ordinances that seek to restrict common farming practices, Daniels said.

Daniels said she’s unaware of any other county aside from Linn County that’s considering excluding marijuana from farm zones.

“I’m not entirely sure they have the legal authority to do that,” she said.

DLCD can comment on the county’s decision but cannot actually stop it from being enforced — however, the ordinance could be challenged in court, she said.

“If it’s not a farm use, what would it be?” Daniels said.

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