On August 30, Josephine County in southwestern Oregon was handed a defeat in a court battle with the state of Oregon about a zoning law that was intended to curb marijuana grows in the county.
In Josephine County v. Oregon, U.S. Magistrate Judge Mark D. Clarke recommended that the county’s suit against the state be dismissed because the county had no standing to sue the state and did not show how the ordinance caused injury. Clarke wrote that the county “has not alleged any real or immediate threat of injury–there is no allegation regarding any official’s planned actions that may expose them to charges of misconduct, nor is there any allegation that any State official has indicated charges will be brought against Josephine County officials.” In short, there is no real dispute or illegality transpiring between the state and the county.
The next step in the proceeding is a hearing by a judge to consider the recommendation and any appeals that the parties may have filed. Given the compelling legal reasoning of the recommendation, however, and the weakness of the county’s argument, the county’s case may be over.
A Weak Argument Loses
Clarke’s recommendation contains some choice words regarding the county’s argument against the zoning ordinance, which seeks to limit marijuana grow operations in rural residential areas. The county, he wrote, “brings claims against the State of Oregon, claiming that state laws and regulations regarding the use, possession, and cultivation of medical and recreational marijuana are preempted by the federal Controlled Substances Act (CSA).”
With such an argument, Clarke pointed out, the county “seeks to limit the use and production [of marijuana] in rural residential zones, while continuing to allow marijuana use and production in other instances. Apparently the County is only worried about aiding and abetting federal felonies on certain kinds of land and not others.”
Clarke went on to observe that “[a]s a political subdivision of the State of Oregon, Josephine County lacks standing to sue the State under the Supremacy Clause. There are no exceptions to this rule.”
While the county and the state are the named parties in the suit, the real dispute is between growers or would-be growers and the Josephine County Board of Commissioners, which passed a zoning ordinance that will, if upheld, limit the hours of operation, noise, and odor of marijuana grows in areas zoned as rural residential. The ordinance would also require permits and annual compliance certificates. Growers appealed the commissioners’ proposed rule, which led to the court case.
Although the county lost in court, it actually won, since Clarke’s recommendation will, if approved, uphold the zoning ordinance that the county commission approved. As noted in a report by Oregon Public Broadcasting, Wally Hicks, the county counsel for Josephine County, was not exactly disappointed by the recommendation. Hicks said: “For basically the cost of a $400 filing fee and staff time, Josephine County has obtained invaluable clarity on the subjects of marijuana legalization and ‘Home Rule’ in Oregon.”
While a zoning ordinance that effectively outlaws grows in certain areas may be a disappointment to growers, Clarke’s recommendation upholds two simple legal concepts: property owners do not get to decide which zoning rules they will obey, and counties do not get to decide which state laws they will obey.
What do you think? Is Oregon’s marijuana industry bigger than Oregon’s government? Leave a comment below.
