When Oregon voters passed Measure 91 in 2014, making recreational marijuana lawful, important issues arose relating to where businesses may grow, sell, and process marijuana. Although the Oregon Liquor Control Commission ("OLCC") regulates much of the recreational marijuana industry, local governments may regulate where, when, and how businesses may grow, process, and offer it for sale.
Local governments adopt and implement these time, place, and manner controls mostly through land use regulations. In Oregon, local governments codify these regulations in zoning ordinances or development codes. Whether you are curious where you can grow marijuana or, on the flipside, what controls are in place to prohibit or minimize the impact of a proposed marijuana business in your area, being familiar with the zoning controls implemented by your local government is important.
This article provides basic background information relating to Oregon's zoning regulations as they pertain to growing recreational marijuana. It does not discuss land use regulations relating to the retail sale, processing, or wholesaling of recreational marijuana. And it does not consider the medical marijuana industry, which the Oregon Health Authority regulates.
The OLCC is the main body responsible for regulating Oregon’s marijuana producers (growers). If a producer is licensed by the OLCC, it may plant, grow, cultivate, harvest, and manufacture recreational marijuana. (ORS 475B.015(26)(a).) To get a license (and keep it), the OLCC requires producers to abide by a number of regulations.
These cover a wide scope of activity, including alarm systems, fertilizers and waste management, and even the surface area a producer can use to grow marijuana. For a complete list of OLCC regulations, see Oregon Administrative Rule ("OAR") 845-25.
While the OLCC regulates much of the recreational marijuana industry, Oregon law allows local governments to adopt reasonable regulations relating to the time, place, and manner in which producers grow recreational marijuana. (ORS 475B.340(a).)
In fact, Oregon even allows cities and counties to prohibit recreational marijuana businesses in certain situations. (ORS 475B.800.) If a city or county does so, it will be placed on OLCC's "opt out" list. Local governments that elect to opt out may decide to ban some business types, but not others (for example, a county may prohibit retailers and wholesalers, but allow producers). A copy of the opt-out list is available from OLCC.
Unless your Oregon city or county has opted out altogether (thus banning local marijuana production), the local land use regulations controlling marijuana production will be found in the applicable zoning ordinance. See Nolo's article Building on Vacant Land: Zoning Issues You Might Face for a general explanation of zoning regulations.
Most zoning ordinances are available online, but if you cannot find yours, contact your local planning department to learn where you can get a copy.
The land use regulations will control important aspects of a marijuana producers operations, including:
A producer will also need to be aware of other development controls that may apply, including setbacks and minimum lot size requirements. As an example, these controls may dictate where a greenhouse can be placed, and how close it may be to adjacent property lines.
There may also be a required “buffer zone.” Buffer zones may be adopted by local governments when they think a use should be a certain distance from another use. For example, a local government may decide marijuana producers should be 1,000 feet from all residential zones. What that may mean is that, even if the producer intends to locate in a zone that allows marijuana production, if the facility is within 1,000 feet of a residential zone, it may be prohibited.
When reviewing the ordinance, an important inquiry to make initially is what uses are allowed in the applicable zone. Common zoning designations include farm, forest, residential, commercial and industrial, but there are others. In Oregon, a licensed marijuana grow site is classified as a "farm use," which is allowed in Exclusive Farm Use ("EFU") zones. (ORS 475B.370.)
For a proposed farm in an EFU zone, this means that, so long as the producer otherwise complies with applicable laws and regulations, the planting, growing, cultivating, and harvesting of marijuana cannot be prohibited by the local government (unless the governing jurisdiction has opted out.)
However, some uses commonly allowed with other farm uses, like a farm dwelling or a farm stand, are not permitted in conjunction with a marijuana farm.
Whether a marijuana farm (even a small one) is allowed in other zones (besides EFU zones), such as commercial or residential zones, is up to the governing city or county. Some jurisdictions may allow producers in some zones, but not all. Local governments may also elect to allow such farms only as conditional uses (other than in EFU zones).
And whether a marijuana farm is allowed outright or conditionally, the producer still needs to comply with all other relevant laws, including building codes.
While state law leaves many land use controls up to local governments, OLCC has adopted some regulations that impact land use. For example, state regulations control how large a grower's "canopy" (the surface area utilized to produce mature marijuana plants) may be. OAR 845-25-2040. Additionally, state law prohibits farmers from growing marijuana on federal land, at the same location and address as a liquor store, or at either a medical marijuana processing or dispensary site.
Land use plays a critical role in the OLCC licensing requirements. Before OLCC reviews a license application for a producer, the producer must submit what is called a Land Use Compatibility Statement ("LUCS".) The LUCS form is available at the OLCC's website. Producers must work with the appropriate local government to complete the form.
If the LUCS indicates that the proposed grow site is compatible with local land use law, OLCC will proceed with the license application. If the LUCS shows the proposed grow site is not allowed, OLCC will deny the application. As a result, whether a producer can even be licensed (let alone lawfully operate a marijuana farm) will be determined in large part by the land use regulations adopted by the local government.
For those with an interest in, or concern about, whether a proposed marijuana farm is lawful, OLCC has produced a helpful "Business Readiness Guide." It provides background information on relevant land use matters and other legal issues, including employment, taxes, and environmental concerns.
Since zoning regulations vary among local jurisdictions, hiring a land use attorney to help analyze the law and facts specific to your case would be very helpful.
And remember, just because recreational marijuana is now legal in Oregon, doesn't change its status under federal law, according to which it remains illegal. Anyone in the marijuana business might find it helpful to talk to a criminal defense attorney to help understand your potential criminal liability.