Siting a property for cannabis production can be difficult. Onerous land use regulations and skepticism by some locales on the legitimacy of the industry has pushed production to the fringes of communities. For example, sparsely populated areas of Jackson and Josephine counties in southern Oregon have long been epicenters for cannabis agriculture. Increased demand for cannabis can be a concern to longtime residents in those communities because as cannabis agriculture gets larger in scale, it can bring increased traffic, noise and light pollution, unwanted odors, and visual obstructions in areas that were once attractive to residents for their isolation and privacy. This has led many local jurisdictions to regulate the growth of cannabis through time, place, and manner (TPM) restrictions made lawful by the state’s regulation of the industry. Counties in Oregon are also able to “opt-out,” choosing not to permit cannabis industry activity within their jurisdictional boundaries. Conversely, for counties who do not “opt-out,” the state legislature has defined cannabis as a crop. This means that cannabis agriculture now falls under the purvey of the state’s “right to farm” laws. “Right to farm” laws exist to some degree in every state. In Oregon, these laws prevent nuisance and trespass claims against those participating in agriculture on designated agricultural land, including noisy or odorous farming practices.

The interaction of TPM restrictions, “opt-outs,” and “right to farm” protections has created an interesting dynamic in different local jurisdictions in states that have legalized cannabis use. In Oregon, it can sometimes seem that no matter how onerous TPM restrictions are for cannabis agriculture, there will always be someone unhappy with the industry’s practices. This may be because of the plant’s federally illegal nature, it’s historically negative stigma, or it could be wholeheartedly an attempt to protect Oregon’s pastoral quality. Regardless, this has led some local jurisdictions to attempt regulations that go beyond reasonable TPM restrictions. For example, in Josephine County, the residents of Williams, OR may be asked to vote on a moratorium of new cannabis production activities. The idea is, if a vote passes, that county officials could draft regulations that prevent new cannabis operations from threatening “the rural nature of Williams” including an outright ban or controlling light and noise pollution.

This raises unanswered legal questions related to the state’s “right to farm” laws as well as constitutional takings claims. While these questions will likely result in litigation, new attempts at local land use regulation can also raise fears about the continuing difficulty to find stability in legal cannabis markets. Harsher land use laws would negatively impact the industry across the state and could stymie growth. This goes against state policy goals due in part to the continuously increasing tax revenues collected by the state from the cannabis industry as well as the estimated 12,500 jobs that the industry has created.

One thing can be certain; the long term success of cannabis as an agricultural crop will take compromise from both sides. With cannabis grow sites commonly sited at the fringes of society, it can be understood when longtime residents are upset that cannabis industry newcomers may be encroaching on their idyllic, quiet, and private lifestyle… but such is the way of progress. Instead of lawsuits and outright moratoriums on cannabis agriculture, it is important to understand that cannabis is an industry that is continuously growing and it may be more prudent to foster community, working towards compromise rather than contention.

*The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Greenspoon Marder, P.A., In New York, Greenspoon Marder, P.A. practices under the name Greenspoon Marder, P.A. P.C. In California, Greenspoon Marder LLP practices using the fictitious name and trademark Greenspoon Marder under license from Greenspoon Marder, P.A., or the individual author(s), nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.