2019-434-Ordinance No. 2019-015 Recorded 10/21/2019Recorded in Deschutes County
Nancy Blankenship, County Clerk
Commissioners' Journal 10/21/2019 12:34:30 PM
CJ2019-434
1,101,11,1111111111111111111111 1 111
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Clarifying Ordinance No. 2019-014
Which Prohibited the Establishment of Certain
Marijuana Businesses Within Unincorporated
Deschutes County; Referral to the Electors and
Declaring an Emergency.
ORDINANCE NO. 2019-015
WHEREAS, on August 19, 2019, the Board of County Commissioners adopted Ordinance No. 2019-014
(full copy attached, incorporated herein and identified as Exhibit A); and
WHEREAS, in accordance with sound legal principles such as ORS 215.427(3) (Oregon's "goal -post
statute") and to avoid an erroneous retroactive application of law, the Board of County Commissioners' clear
intent was always to allow any land use application received prior to August 19, 2019, to be fully processed
(including any appellate review) with those successful applicants then subsequently continuing through the
licensing process governed by the Oregon Liquor Control Commission (OLCC); and
WHEREAS, the OLCC expressed its understanding that Ordinance No. 2019-014, as worded, precludes
OLCC from licensing those producer and processor applicants in Deschutes County who had, prior to August 19,
2019, applied for local land use permits but not yet had their OLCC licensing applications approved; and
WHEREAS, on September 25, 2019, the Board of County Commissioners authored a letter directed to
OLCC (full copy attached, incorporated herein and identified as Exhibit B) stating that Ordinance No. 2019-014
has no impact on the County's past marijuana production land use decisions and providing that in the opinion of
Deschutes County, the adoption of Ordinance No. 2019-014 does not preclude those applicants from moving
forward in the licensure process with OLCC; and
WHEREAS, OLCC has informed Deschutes County that despite the Board's September 25th letter, that
OLCC understands that it is still precluded from licensing those producer and processor applicants in Deschutes
County who had, prior to August 19, 2019, applied for local land use permits; and
WHEREAS, in an effort to resolve the ongoing conflicting understandings as to the intent, reach and
impact of Ordinance No. 2019-014, and to ensure that OLCC reviews and processes licensing applications for
producers and processors who previously applied for land use approvals from Deschutes County, the Board of
County Commissioners ordains as provided below; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. Ordinance No. 2019-014 (Exhibit A) remains adopted in its entirety.
PAGE 1 OF 2 - ORDINANCE NO. 2019-015
Section 2. Ordinance No. 2019-014 is clarified with the addition of Section 3 below.
Section 3. Section 1 of Ordinance No. 2019-014 does not apply to an applicant who as of the date this
Ordinance is in effect has a pending production or processing license application before the OLCC and who
applied for County land use approval/LUCS allowing marijuana production and/or processing prior to August
19, 2019.
Section 4. This affirms that Ordinance No. 2019-014, as clarified by this Ordinance shall be referred to
the electors of Deschutes County at the General Election on Tuesday, November 3, 2020.
Section 5. The text of this Ordinance shall be provided to (a) the Oregon Health Authority; and (b) the
Oregon Liquor Control Commission.
Section 6. EMERGENCY. This Ordinance being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage.
Dated this /:. of , 2019
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, • GON
PHILIP G.
v7
,NDERSON, Chair
PATTI ADAIR, Vice Chair
ANTHONY DEBONE
Date of 1" Reading: j 6 day of CeibLz.4, 2019.
Date of 2nd Reading: )1 (,o day of V int , 2019.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Philip G. Henderson
Patti Adair >4-
Anthony
CAnthony DeBone $
Effective date: A= day of O b..e4 , 2019.
PAGE 2 OF 2 - ORDINANCE NO. 2019-015
EXHIBIT A — Ordinance No. 2019-015
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Prohibiting the Establishment of
Certain Marijuana Businesses Within Unincorporated
Deschutes County; Referral to the Electors and
Declaring an Emergency.
*
*
*
ORDINANCE NO. 2019-014
WHEREAS, in November 2014, Ballot Measure 91 was passed by the voters of Oregon generally
legalizing recreational use of marijuana within the state; and
WHEREAS, the Board of County Commissioners (the "Board") adopted Ordinance No. 2015-009 on
December 21, 2015, prohibiting the establishment of marijuana businesses within unincorporated Deschutes
County ("Opt Out"); and
WHEREAS, after securing legislative assurance in 2016 through the passage of Senate Bill 1598 that
statutory right to farm protections would not override local governments' authority to adopt local time, place and
manner regulations governing marijuana businesses, the Board adopted Ordinances No. 2016-013, 2016-014,
2016-015, 2016-016, 2016-017, 2016-018 and 2016-019 on June 1 and June 15, 2016, implementing
comprehensive land use regulations for the marijuana industry in unincorporated Deschutes County, and
subsequently adopted Ordinance No. 2016-012 on August 2, 2016, effectively "Opting In" by repealing Ordinance
No. 2015-009; and
WHEREAS, following their initial adoption, the Board committed to reexamine Deschutes County's
marijuana land use regulations approximately one year post -implementation after gaining additional experience
regulating the evolving marijuana industry; and
WHEREAS, after hosting thirteen public meetings, work sessions, and hearings attended by state
agencies, marijuana industry representatives, and concerned members of the community, on October 24, 2018,
the Board of County Commissioners adopted Ordinance No. 2018-012, revising the original marijuana land use
regulations; and
WHEREAS, twelve petitioners appealed Ordinance No. 2018-012 to the Land Use Board of Appeals
("LUBA") on February 12, 2019, raising new arguments that were not previously presented to the Board; and
WHEREAS, after reviewing the Petition for Review filed with LUBA and the new arguments and
evidence contained therein, and upon recommendation of county staff, the Board directed the withdrawal of
Ordinance No. 2018-012 for additional consideration pursuant to ORS 197.830(13)(b); and
WHEREAS, the Board held a duly noticed public hearing on July 3, 2019, to take public testimony from
the twelve petitioners (and others) regarding Ordinance No. 2018-012; and
PAGE 1 OF 3 - ORDINANCE NO. 2019-014
WHEREAS, concerned members of the community testified during the public hearing that the new
arguments raised by the twelve petitioners essentially tasked the County with defending the constitutionality of
the State of Oregon's Recreational Marijuana program; and
WHEREAS, further testimony noted that despite the provisions of Senate Bill 1598, authorizing local
governments to adopt reasonable time, place and manner regulations (which provided the singular basis for the
County to repeal its initial Opt Out and allow marijuana businesses), there have been numerous attempts to
legislatively strip or limit that authority in the 2017, 2018, and 2019 Oregon Legislative Sessions; and
WHEREAS, further testimony also noted that while the County has utilized extensive resources over
several years to attempt to develop reasonable time, place, and manner marijuana regulations, there has been
noticeable and vocal dissatisfaction from citizens on all sides of the issue consistently expressing doubt that these
regulations have the ability to successfully harmonize ostensibly incompatible land uses in the rural County due
to marijuana's classification as a farm crop; and
WHEREAS, a significant portion of written and oral public testimony received during and after the July
3 public hearing requested that the Board prohibit the establishment of new marijuana businesses ("Opt Out") in
unincorporated Deschutes County rather than further revising Ordinance No. 2018-012; and
WHEREAS, an Opt Out imposed by Deschutes County will only be applicable within the unincorporated
County and will not impact marijuana operations or businesses within any city limits; and
WHEREAS, an Opt Out is not in conflict with the aforementioned Ballot Measure 91 wherein the voters
of Oregon expressed no opinion or direction regarding marijuana's status as a farm crop, or the appropriate
location of commercial grow sites and processing operations; and
WHEREAS, an Opt Out will only impact future recreational production and processing businesses and
medical marijuana processing facilities; existing marijuana businesses will not be impacted nor will the Opt Out
impact or prohibit future medical dispensaries or production sites, or future recreational retail or wholesale; and
WHEREAS, disallowing future recreational production sites and future marijuana processing will not
impact the availability of marijuana products from medical dispensaries or retail and wholesale outlets; and
WHEREAS, for the foreseeable future, it is uncertain if recreational marijuana production sites can be
established in the County due to newly -adopted Senate Bill 218 authorizing the Oregon Liquor Control
Commission to establish a moratorium on recreational producer licenses until January 2, 2022; and
WHEREAS, the State's moratorium enacted by Senate Bill 218 provides a unique opportunity to refer the
matter to the Deschutes County voters while minimally impacting any would-be applicants seeking to establish
new marijuana production or processing facilities; and
WHEREAS, so long as referring the matter to voters at the next General Election, ORS 475B.968
authorizes the County to adopt an ordinance prohibiting the establishment of any one or more of the six categories
of state licensed or registered marijuana businesses in the unincorporated area subject to the County's jurisdiction;
and
WHEREAS, based in substantial part on the testimony provided during and after the aforementioned July
3 public hearing, the Board prefers to immediately impose an Opt Out of new recreational marijuana production
and processing businesses and medical marijuana processing facilities within the unincorporated county, and
likewise refer the question of whether to continue the Opt Out to the Deschutes County voters at the next General
Election on November 3, 2020; now therefore,
PAGE 2 OF 3 - ORDINANCE NO. 2019-014
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. In accordance with ORS 475B.968 the following are prohibited in the unincorporated area
subject to the jurisdiction of Deschutes County:
(a) Marijuana processing sites registered under ORS 475B.840;
(b) Marijuana producers licensed under ORS 475B.070
(c) Marijuana processors licensed under ORS 475B.090;
Section 2. This ordinance shall be referred to the electors of Deschutes County at the General Election
on Tuesday, November 3, 2020.
Section 3. The text of this ordinance shall be provided to (a) the Oregon Health Authority; and (b) the
Oregon Liquor Control Commission.
Section 4. EMERGENCY. This Ordinance being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage.
Dated this 19 of ' , 2019
ATTEST:
•
ecording Secretary
Date of 1" Reading: II'
day of
Date of 2"d Reading: 1 day of
Commissioner
Philip G. Henderson
Patti Adair
Anthony DeBone
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTYAO' . GON
PATTI ADAIR, Vice Chair
ANTHONY DEBONE
2019.
2019.
Record of Adoption Vote:
Yes No Abstained Excused
Effective date: 1 Cr day of vdu � d , 2019.
PAGE 3 OF 3 - ORDINANCE NO. 2019-014
EXHIBIT B - Ordinance No. 2019-015
BOARD OF COUNTY COMMISSIONERS
September 25, 2019
Danica Hibpshman
Senior Policy Advisor for Alcohol and Marijuana
Oregon Liquor Control Commission (OLCC)
9079 SE McLoughlin Blvd
Portland, OR 97222
Re: Deschutes County Marijuana Opt Out
Dear Ms. Hipbshman,
As you are aware, on August 19, 2019, the Deschutes County Board of Commissioners ("Board") adopted
Ordinance No. 2019-014 prohibiting future marijuana production and processing businesses in
unincorporated Deschutes County ("Opt Out") and referring the matter to voters in the next general
election. It has come to our attention that OLCC's interpretation of the ordinance differs from our
intentions with respect to production businesses that received local land use approval but have not yet
received their OLCC license—approximately 25 applicants. The Board respectfully offers clarification of
this matter.
Ordinance No. 2019-014 states "An Opt Out will only impact future recreational production and
processing businesses and medical marijuana processing facilities; existing marijuana businesses will not
be impacted nor will the Opt Out impact or prohibit future medical dispensaries or production sites, or
future recreational retail or wholesale." The County's authority is limited to the provision of local land
use permits, and the aforementioned ordinance thereby only addresses local land use permits. Based
on the clear language in the ordinance, it is our position that any applicant who received local land use
approval is considered an "existing marijuana business" unaffected by the ordinance. The ordinance
does not specifically address OLCC license status as that is a state matter beyond the scope of the
County's authority, nor is it necessary for the County to amend Ordinance No. 2019-014 to address a
matter outside of the County's authority.
We adopted Ordinance No. 2019-014 pursuant to authority granted by ORS 475B.968. The County was
informed that OLCC is relying on that same statutory provision to stop processing licensing applications
even though those applicants received local land use approval prior to the Opt Out. The County
presumes OLCC is relying on sub -section (4)(b) which directs OLCC to "discontinue licensing those
premises to which the prohibition applies until the next statewide general election." To the extent that
OLCC is relying on that aforementioned provision, please be advised that Ordinance No. 2019-014 does
not apply to or otherwise impact those applicants who already received local land use approval from
Deschutes County.
1300 NW Wall Street Bend, Oregon 97703
1' (541) 388-6572 board@deschutes org ®www descnutes org
The County is aware of the backlog at OLCC with respect to the issuance of licenses and notes that in
many cases, locally -approved applicants who are ready or nearly ready to establish their operations have
been forced to wait in the queue until there is capacity at OLCC. It has never been the County's intention
to strip these businesses—many of which have already committed substantial financial investments into
their operations—of their ability to follow through in a process that has already been initiated.
In closing, Deschutes County reiterates that Ordinance No. 2019-014 has no impact on the County's past
marijuana production land use decisions. Ordinance No. 2019-014, at least in our opinion, should not
preclude those applicants from moving forward in the licensure process with OLCC.
Sincerely,
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
Phil G. Henderson, Chair
CC: OLCC Board of Commissioners
Paul Rosenbaum, Chairman
Jennifer Currin
Kiauna Floyd
Michael E. Harper, Sr.
Matt Maletis
Hugh Palcic
Marvin D. Revoal
Patti Adair, Vice -Chair
Anthony DeBone, Commissioner
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Wednesday Meeting of October 16, 2019
DATE: October 10, 2019
FROM: Adam Smith, Legal,
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Ordinance No. 2019-015, Clarifying Ordinance No.
2019-014 and Declaring Emergency
BACKGROUND AND POLICY IMPLICATIONS:
On August 19, 2019, the Board of County Commissioners adopted Ordinance No. 2019-014
"Opting Out" of future marijuana production and processing in Deschutes County by prohibiting
new land use applications for the aforementioned uses. In accordance with sound legal
principles such as ORS 215.427(3) (Oregon's "goal -post statute") and to avoid an erroneous
retroactive application of law, the Board's clear intent was always to allow any land use
application received prior to August 19, 2019, to be fully processed (including any appellate
review) with those successful applicants then subsequently continuing through the licensing
process governed by the Oregon Liquor Control Commission (the "OLCC"). However, the
OLCC opined that Ordinance No. 2019-014, as worded, precluded OLCC from continuing to
process pending licensing applications in Deschutes County even if an applicant had applied
for a land use permit prior to August 19, 2019.
To resolve the issue, the Board sent a letter to OLCC on September 25, 2019, explaining that
Ordinance No. 2019-014 had no impact on the County's past marijuana production land use
decisions, and further explaining that in the opinion of Deschutes County, the adoption of
Ordinance No. 2019-014 does not preclude those applicants from moving forward in the
licensure process with OLCC. Despite the letter, OLCC informed Deschutes County staff that
OLCC believes it is still precluded from continuing to process pending licensing applications.
In an effort to resolve the ongoing conflicting understandings as to the intent, reach and impact
of Ordinance No. 2019-014, and to ensure that OLCC reviews and processes licensing
applications for producers and processors who previously applied for land use approvals from
Deschutes County, the attached "clarifying" ordinance is offered for the Board's consideration.
The intent of the attached ordinance is not to amend or alter the original Ordinance No. 2019-
014, but rather to clarify that Ordinance No. 2019-104 does not apply to an applicant who
applied for County land use approval/LUCS allowing marijuana production and/or processing
prior to August 19, 2019, and who as of the effective date of the attached Ordinance has a
pending production or processing licensing application before the OLCC.
ATTENDANCE: Adam Smith, Assistant Legal Counsel