Oregon’s Deschutes County can’t stop marijuana cultivation near “youth activity centers” because they’ve been defined too ambiguously, according to the state’s Land Use Board of Appeals.
The county now must approve two applications for marijuana production facilities that were previously rejected for being within 1,000 feet of youth activity centers contrary to its code, LUBA said.
However, new marijuana facilities may soon face an even greater hurdle in Deschutes County, where voters will soon decide whether to ban new production of the psychoactive crop altogether.
While marijuana is considered a legal crop under Oregon land use law, counties are allowed to impose reasonable regulations on its production.
According to LUBA, Deschutes County’s 1,000-foot separation buffer is disallowed under Oregon law because the term “youth activity center” is an “impermissibly indefinite standard.”
The ruling agrees with Tommy Nehmzow, who wants to build a 1,800-square-foot indoor marijuana facility. He maintains that just because “children may stay on the property and engage in activities or use some of the recreational facilities does not transform the entire property into a youth activity center.”
Under the county’s interpretation, “youth activity center could encompass any swimming pool or basketball court where children play,” the ruling said.
The county had denied Nehmzow’s proposal because it would be too close to Sundance Meadows Ranch, a timeshare facility that includes a campground, horse stable, meeting hall, miniature golf course and other amenities.
Although the county uses a 10-factor test to determine whether a property is a “youth activity center,” a facility may qualify despite only meeting one or a few of those factors. LUBA has ruled the factors are “uncodified criteria” that don’t comply with Oregon land use law.
Likewise, LUBA has ruled that Deschutes County wrongly denied the application of Waveseer of Oregon, a company that intended to build a 36,000-square-foot facility to grow and process marijuana near properties that host “youth oriented equestrian activities” and “4-H agricultural activities.”
The ruling requires the county to approve Waveseer’s application for the same reasons cited in the Nehmzow case: the 10-factor test is “too indefinite” and “fails to sufficiently inform interested parties of the basis on which an application may be approved or denied.”
Waveseer of Oregon won a similar LUBA case last year, but that ruling remanded the matter to Deschutes County, since the marijuana facility could have been rejected based on other factors.
Upon reconsideration, the county found the marijuana facility would comply with noise and odor regulations and denied the application solely due to the “youth activity center” separation buffer.
Marijuana production has been controversial in Deschutes County since Oregon voters passed a ballot measure in 2014 legalizing the psychoactive crop. While the county permitted marijuana cultivation, critics have argued the associated restrictions have greatly hindered farmers from growing it.
Continued disputes over marijuana production convinced Deschutes County’s board of commissioners to pass an ordinance banning any additional marijuana growing operations last year.
As required by Oregon law, the matter was recently referred to county voters in a ballot initiative that will be decided in the November general election.
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