In Cossins v. Josephine County, issued March 14, 2018, the Oregon Land Use Board of Appeals (LUBA) remanded a recently adopted ordinance to Josephine County. The ordinance, No. 2017-002, would have restricted marijuana production on land zoned Rural Residential to lots and parcels larger than five acres, effectively prohibiting marijuana production on anything less than a double lot on much of Josephine County’s Rural Residential land. The ordinance was also intended to apply retroactively, putting existing producers out of business.

Several producers petitioned LUBA to review the ordinance, raising procedural and substantive challenges. LUBA held that the ordinance met the statutory definition of “rezoning,” which required advance, individual, written notice to affected landowners, and which notice the county failed to provide. LUBA remanded the ordinance to the county with instructions to provide the required notice and to conduct at least one additional hearing after such notice.

The producers also argued that the ordinance was “unreasonable” and in violation of ORS 215.130(5), which prohibits land use ordinances from having retroactive effect. In light of the procedural error, LUBA did not reach these two substantive issues.

LUBA has exclusive jurisdiction to review all governmental land use decisions in the state of Oregon. This is its second opinion addressing a marijuana-related land use decision since the legalization of recreational marijuana. In its first, Diesel v. Jackson County (2016), LUBA found a complete ban on marijuana production on land zoned Rural Residential to be “reasonable” because more than a million acres in the county were still available for marijuana production. Various statutes allow local governments to place “reasonable” conditions on the manner that marijuana is produced and “reasonable” limitations on the location of marijuana production.

These decisions highlight the evolving nature of marijuana-related land use regulation and illustrate the need to review the local political climate in addition to any land use regulations already in effect.