Why legal marijuana may spur changes in Oregon land use laws

Today I attended a 1000 Friends of Oregon meeting at the capitol about land use issues in the current 2015 session of the state legislature.

For me, the most interesting discussion involved Measure 91, the initiative voters approved last November that legalizes recreational marijuana. 

As reported in a blog post about an OLCC listening tour meeting in Salem this month, people are talking about Measure 91 leading to legal pot becoming this state's "Napa Valley" when it comes to tourism.

(Of course, if California legalizes marijuana soon, as is expected, the real Napa Valley and points north could become their own cannabis-focused Napa Valley.)

State Representative Ken Helm, a land use attorney, spoke about Measure 91 during part of the 1000 Friends meeting. Among various land use issues surrounding the legalization of marijuana (zoning, for example), he brought up something that hadn't occurred to me before.

Marijuana now is a legitimate agricultural crop. A high value crop. In fact, a very high-value crop. 

I realize that growing marijuana takes special equipment and skills.

But if I'm reading my scribbled notes from the meeting correctly, Helm said that in some parts of Oregon a single marijuana plant can grow to 18 feet tall and produce 8-10 pounds of pot. Since the retail price of marijuana buds is about $200 per ounce in medical marijuana dispensaries, a lot of cash can be generated by just a few plants.

Currently Oregon's land use laws restrict building a single-family home on EFU (exclusive farm use) land. I'm not sure if this 2008 Stoehl Rives legal overview, "Dwellings in the vineyard," is still up to date, but it seems to be, pretty much. The piece talks about vineyards, but is applicable to farm uses generally.

Ever thought about building your dream home out in the middle of a vineyard in wine county? Curious about buying vineyard property, but worried that you may not be able to build the desired family home? Or what if you run across a nice piece of property, and it has a dilapidated old farmhouse that's just not suited to your taste?  

These are common questions people may face when buying vineyard property in Oregon. When purchasing property for vineyard development or a planted vineyard, there are many factors to take into account before signing on the dotted line, but a key, although often overlooked issue, is whether applicable state and county land use regulations allow the construction and year-round use of a permanent residence. 

…To site a dwelling under the gross income test, a property owner is obligated to demonstrate that a vineyard on high-value farmland has produced at least $80,000 in annual gross income over the past two years, or alternatively $80,000 in annual gross income over three of the past five years. If the vineyard is on non-high-value farmland, then the hurdle is somewhat lower, and the property owner only needs to demonstrate that the vineyard has produced at least $40,000 over the past two years, or three of the past five years. 

Rep. Helm told us that there aren't plans to change this gross income threshold for farming generally — just for marijuana grows. The reason relates to the small amount of land it takes to generate $80,000 from growing marijuana.

Someone couid have just a small parcel of EFU land, a few acres or less, and the current income threshold would allow building a home on farmland if the property was devoted to growing marijuana. 

Since Oregon's land use laws are intended to restrict "McMansions" sprouting up on irreplaceable farmland, Helm said the income threshold for marijuana growing may be raised to $160,000. Someone at the meeting noted that even this may not be high enough, given the high cash value of a small number of marijuana plants.

However, Helm also pointed out that southern Oregon, in particular, already has a thriving medical marijuana industry.

Growers there are devoted to providing quality cannabis for patients who need it, which often is low in THC and high in CBD (making it better for pain relief, without marked psychoactive effects). Thus he said that the state legislature needs to balance the desirability of making some changes to Oregon's land use laws, with not discouraging the growth of a new beneficial high-value agricultural crop — marijuana.

There's got to be some middle ground here.

I can see why people should be prevented from making an end-run around land use laws by buying a few acres of farmland, setting up a marijuana grow site with a small number of plants that generates $80,000 of gross income every few years, and then getting the right to put a house on the land.

However, legitimate marijuana growers shouldn't be penalized just because their crop generates a lot more income per acre than farmland planted in other ways does.

It'll be interesting to see how the Oregon legislature handles this issue, given that most legislators favor both marijuana legalization and protecting farmland from residential development.