Pre-Emption Puzzle: Local Government May Zone to Prohibit Collective Medical Marijuana Gardens Notwithstanding State Law Authorization

Marijuana plantCities and counties don’t always have the power to regulate on anything they please.  Sometimes local action is pre-empted by state or federal law, but determining when local government action is pre-empted is often tricky business.

The general rule in Washington (and Oregon) is that local governments are authorized to make and enforce all laws necessary to further its police power, including zoning laws, so long as they do not directly conflict with state or federal laws.  The Medical Use of Cannabis Act (MUCA), enacted in 2010, codified at RCW 69.51A.085(2), authorized patients to establish collective gardens for growing medical marijuana.  “Collective gardens” are defined by state law to include group efforts to pool resources and grow medical marijuana for patients’ own use.  The MUCA further clarified that local governments retain authority to regulate the production, processing or dispensing of medical marijuana through zoning, business, licensing, health and safety requirements, and business taxes.  RCW 69.51A.140.  Relying on this zoning authority, the City of Kent, Washington enacted an ordinance that prohibited “collective gardens” in every zoning district within the city.

In the recent case, Cannabis Action Coalition (CAC) v. City of Kent, the Washington Supreme Court was asked whether the MUCA authorization for “collective gardens” preempts the Kent ordinance banning them. A statute preempts the field and invalidates a local ordinance “if there is express legislative intent to preempt the field or if such intent is necessarily implied…from the purpose of the statute and facts and circumstances under which it was intended to operate.”  The Court found no express preemption clause, leaving the question of whether preemption is implied.  CAC argued that the express authorization allows cities to zone only commercial production and processing of marijuana and not non-commercial collective gardens.  The court rejected that argument, finding nothing in the express language that distinguished between a profit or the shared use collective garden activities.  The Court went on to find that, although state law prohibits local governments from opting out of medical marijuana altogether, the local ordinance concerned a particular land use, collective gardens, and did not address the personal use of medical marijuana.  Accordingly, the Court found that the City’s ordinance was not pre-empted.

Justice Gonzalez provided an interesting dissent explaining that, although a city may regulate consistent with the MUCA, it may not completely ban what the state permits.  The majority failed to acknowledge that participation in collective gardens is legal under state law and, as a result, Gonzalez asserts, the city may not enact regulations, zoning or not, that prohibit this lawful activity.

It is also important to note that while this appeal was pending, the legislature enacted comprehensive reform concerning the regulation of medical marijuana in Washington including repeal of the statutory provisions authorizing collective gardens.  Laws of 2015, ch. 70.  That said, this case provides an interesting commentary as the Washington Supreme Court prepares to decide whether to hear a case challenging cities’ and counties’ authority to ban licensed recreational marijuana retailers and the legislatures of both Oregon and Washington work to fashion regulations surrounding the production, processing and distribution of both medical and recreational marijuana that focus on standards controlling activities and revenue rather than land use.

Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity, including Initiative 502 in the State of Washington.

Book Review: Urban Agriculture: Policy, Law, Strategy, and Implementation

Apricots photoThe deep orange of a perfect apricot at the end of the long, hot summer, along with the grapevine that transformed our side yard into the secret garden – these are stark memories of my childhood.  The sensory experience sticks with me – the smell of ripe fruit, the clear blue sky, the dripping heat and the endless summer break.  These memories tie me to the earth and live on in my urban gardening heart.  In my first summer college internship for the County of Ventura Planning Department, I drafted regulations for roadside fruit stands – just how big of a stand should be allowed without a permit?  Follow the Southern California experience with Santa Cruz, surrounded by some of the most fertile lands in Central California where I had taste tests between organic and traditional strawberries, and on to Portland where the running joke is that you can source the chicken and honey at the Imperial á la a Portlandia episode.  Given this background, it comes as no surprise that I had the opportunity to peer review the American Bar Associations’ recently published Urban Agriculture: Policy, Law, Strategy, and Implementation.

Any planner or lawyer interested in this topic should consider this Urban Agriculture book a valuable resource.  It answers questions from municipal ownership of urban farms and garden plots, to how urban farming is a first step towards neighborhood revitalization and serves to bridge the gap to access to fresh foods in low-income neighborhoods.  One author examines Detroit’s concerted effort to use urban farming to empower residents and rebuild the inner-city while improving the environment and lowering the heat-island effect, curbing illegal dumping and other criminal activity, providing a catalyst and opportunity for young people to pursue careers in agriculture, and most importantly provide access for community residents to fresh food for all income levels. Continue Reading

Not So Recent Court of Appeals Case Grants Improvement Districts Statutory Right to Enter onto the Lands of Its Members

I-Stock waterImprovement districts are authorized by statute to construct and operate permanent utilities for irrigation, drainage, diking, water improvement and water control throughout the State of Oregon.  See Oregon Revised Statutes Chapters 545, 547, 551, 552 and 549.  In some instances, the permanent utilities constructed and operated by these districts have been in existence for over 100 years.  Often, these districts do not have title to the land on which the permanent utility is located nor do they hold recorded easements allowing access to maintain the infrastructure of the permanent utility.  The lack of recorded property rights can lead to uncertainty as to what rights a district has to enter onto its members’ lands to operate, repair and improve the existing infrastructure of its permanent utility.  Current landowners in a district may feel that their district does not have the right to enter onto their lands or that the district must obtain the right to enter their lands through voluntary acquisition or through condemnation.  This creates a potential nightmare for an improvement district and its members when a landowner seeks to prevent a district from entering onto his or her land for the purpose of operating, repairing or improving the permanent utility.  If this occurs, litigation may be the only option for the district or the landowner.  This was the case in Davis v. Nye Ditch Users Improvement District, 247 Or App 266, 268 P3d 778 (2011).

In Nye Ditch, the predecessors-in-interest to the plaintiffs joined with neighboring landowners in the 1920s to dig the Nye Ditch to irrigate their lands for agriculture.  Id. at 268.  The plaintiffs Davis and Ritters each purchased property in the district in 2003 and 2006, respectively.  Id.  The plaintiffs’ properties benefitted from the Nye Ditch and it was visible from their land.  Id.  The Nye Ditch Users Improvement District was formed under Chapter 554 in 2006 and the plaintiffs’ lands were within the district.  Id. at 268–69.  The plaintiffs used the Nye Ditch and paid assessments to the district.  Id. at 269.  The district contracted with an excavation contractor to make improvements to the Nye Ditch on the Ritters’ property.  The Ritters barred the excavation crew from entering their property and filed a lawsuit challenging the district’s authority to enter onto their lands.  Id.  The trial court granted summary judgment to the district finding that the district had the right to enter the land based on “(1) the easements belonging to landowners who draw water from the ditch, (2) ORS Chapter 554, and (3) defendant’s articles of incorporation.” Id. at 270.  The plaintiffs appealed.

The Court of Appeals began its analysis by noting that the landowners drawing water from Nye Ditch, as neighbors who receive a “mutual benefit” through a “common enterprise,” hold easements to cross their neighbors’ property to access the Nye Ditch.  Id. at 270–71 (citing Foster v. Foster, 107 Or 355, 368, 213 P 895 (1923); Luckey v. Deatsman, 217 Or 628, 634, 343 P2d 723 (1959)).  The easements are appurtenant to and run with the land.  Nye Ditch, 247 Or App at 271; Luckey, 217 Or at 636–37.  The Court of Appeals further held that landowners’ easement rights included the right to access their neighbors’ property for repairs.  Id. at 271 (citing Baumbach v. Poole, 266 Or 154, 157–58 n.1, 511 P2d 1219 (1973)).  “The general rule, that a party who has a right of enjoyment, has also a right to enter and make necessary repairs, is essential to the enjoyment of the thing granted.”  Id. at 271–72 (quoting Thompson v. Uglow, 4 Or 369, 372 (1873)).

The Court of Appeals went on to explain that the Nye Ditch Users Improvement District was entitled to exercise its members’ easement rights to enter onto its members’ lands to improve or repair the Nye Ditch.  Id. at 275.  The holding was based on the statute authorizing the formation of the district, ORS Chapter 554.  In particular, the Court noted that ORS 554.110 gave the district’s board “full authority and power to . . . (1) Build, construct and complete any works and improvements . . . (3) Operate and maintain such works as are necessary, convenient and beneficial for said purposes . . . .”  Id. at 274.  The Court of Appeals found that the statute granted the district the right to enter the land of its members to improve or repair irrigation ditches by implication.

[W]here a power is conferred by an act, everything necessary to carry out that power and make it effectual and complete will be implied.  Further that which is implied in a law is as much a part of it as that which is expressed.  These long-established principles of statutory construction are universally recognized [.]

Id. at 275 (quoting Pioneer Real Estate Co. v. City of Portland, 119 Or 1, 10, 247 P2d 319 (1926)).  “The legislature granted improvement districts the authority to act on behalf of individual landowners and to exercise, on their behalf, their common-law rights of improvement and repair and access necessary for that purpose.” Id. at 275.

The decision in Nye Ditch has a number of interesting aspects.  First, it acknowledges that the landowners who band together to build a permanent utility have property rights in each other’s lands.  Second, it takes that concept a step further to allow statutorily created and governed improvement districts to exercise its members’ property rights to operate, maintain and improve its existing infrastructure.  Third, by allowing the districts to exercise its members’ property rights, the Court of Appeals appears to have bypassed the question of whether the District’s operation, maintenance and improvement of a permanent utility on the lands of its members constitutes a constitutional taking.  By doing so, it removes the possibility that the members of the district may have to pay for the permanent utility twice – once when it was built and a second time to gain access to it.  Thus, the Court of Appeals created an elegant solution to what is otherwise an intractable problem for improvement districts around the Oregon.

California Appellate Court Nullifies Council “Appeal” to Itself

I-Stock City Council Meeting RoomWoody’s Group, Inc. v. City of Newport Beach, 2015 WL 367448 (Cal. App.), involved approval by the City’s planning commission of plaintiff’s changes to its restaurant, including a covered outdoor patio, inside dancing and extended opening hours on weekends.  The restaurant was located in a “trendy marine area that includes a number of restaurants.”  City Councilor Mike Henn filed an “official request to appeal” by email to the city clerk, citing his “strong belief” that the approval was inconsistent with the character of the area and in violation of the city’s plan.  The appeal did not meet the requirements of the city code and was not accompanied by an appeal fee (which in this case would have been $4100).  At the next Council meeting, the Council heard testimony in support of a council-initiated appeal and decided to take up the matter in conjunction with a tree removal permit which was part of the same application.  At the appeal hearing, Councilor Henn presented a cogent and prepared argument and the city council reversed the grant of the application, notwithstanding the arguments of plaintiff’s counsel that the council had no authority to hear the appeal and that Henn was biased in such a way as to void the Council decision.  In its final order, the Council asserted a “longstanding policy” that allowed council members to seek review of planning commission decisions, which it had invoked on eleven previous occasions.

When plaintiff sought an administrative mandate to challenge the denial, the city responded with a cross-complaint for a preliminary injunction, which the trial court granted while denying the administrative mandate.  That court took no action to a civil rights damage claim filed in response to the preliminary injunction claim. Continue Reading

Giving Local Governments the Option to Include Affordable Housing

TownhousesOn April 14, the Oregon House voted to approve House Bill 2564, which would remove the preemption on local government adoption of inclusionary zoning as a tool to advance affordable housing.  Oregon and Texas are the only states that currently maintain such a prohibition and most other states allow this issue to be resolved at the local level.  If the ban were lifted, local governments could require that some percentage of units in a development be sold as affordable units to low income buyers as part of any new housing development.  No more than 30 percent of the housing units created by a new project could be offered at below-market rates, and local government must provide builders with one or more additional incentives such as additional density, waiver of permit fees or expedited permit review to do so.

There are some who argue that repealing of the ban on inclusionary zoning is somehow incompatible with our State planning system.  Nothing could be further from the truth.  Goal 10 (Housing) requires that:

Buildable lands for residential use shall be inventoried and plans shall encourage the availability of adequate numbers of needed housing units at price ranges and rent levels which are commensurate with the financial capabilities of Oregon households and allow for flexibility of housing location, type and density.

To assure that this objective is realized, the legislature has imposed an obligation on most local governments to plan and provide for “needed housing,” namely housing types:

* * * determined to meet the need shown for housing within an urban growth boundary at particular price ranges and rent levels…

Needed housing includes attached and detached single-family housing and multiple family housing for both owner and renter occupancy; government assisted housing; mobile home or manufactured dwelling parks; manufactured homes on individual lots planned and zoned for single-family residential use that are in addition to lots within designated manufactured dwelling subdivisions; and housing for farmworkers. Continue Reading

Carter Kerns v. City of Pendleton: The First Case Decided by the Land Use Board of Appeals of Oregon

Kerns v. Pendleton marks a historic step for Oregon and the nation.  In 1979, the Oregon Legislature created the Land Use Board of Appeals (LUBA) as an administrative body, which had “exclusive jurisdiction” over most land use decisions of local governments.  Until this time, Oregon and other states gave that role to local trial courts.  However, with the passage of a coordinated state system of land use planning and regulation in 1973, courts were less familiar with the bevy of rules and statutes that were now applicable to local planning.  Moreover, those courts were also faced with giving priority to speedy trials in criminal cases, particularly for defendants who were incarcerated.  Additionally, the development community pressed for a system that was speedy and more certain.

LUBA’s creation was a four-year trial of a new system in which persons dissatisfied by a local government (and sometimes a state agency) land use decision was required to appeal that decision in 30 days, unlike the 60 days that had been the previous timeline.  Unlike trial courts, LUBA had time limits to decide appeals and its decisions were appealable to the Oregon Court of Appeals.  The original members of the Board were Michael Reynolds, a former Assistant Attorney General and previous counsel to the Land Conservation and Development Commission (LCDC), John Bagg, a former local government attorney, and William Cox, who had represented development interests in private practice.

Carter Kerns was one of three neighbors (together “Petitioners”) who appealed Pendleton’s decision to annex and rezone a 22-lot subdivision on 12.36 acres on several grounds: violation of the statewide planning goals, unlawful procedures and violation of an administrative rule adopted by LCDC that limited annexations of land prior to acknowledgment of the City’s plan (i.e. certification that its plan and land use regulations complied with the statewide planning goals).

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Oregon Public Trust Litigation

Changing EnvironmentThis month saw the latest chapter in a lengthy case about climate change and Oregon’s response to it.  The case, Cherniak v. State of Oregon, began in 2011, when two Eugene area teens challenged the state’s response to climate change, arguing that the atmosphere was part of the public trust and that the state had failed in its obligation to protect that resource for future generations.

The case was initially dismissed by the Lane County Circuit Court in 2012 for lack of subject matter jurisdiction.  In 2014, the Oregon Court of Appeals remanded the case, finding that the court did have authority to consider the matter.  On Tuesday, April 7, 2015, the state of Oregon found itself back in the Lane County Circuit Court arguing that the atmosphere is not subject to the public trust doctrine.  The other critical issue involves the remedy if the atmosphere is found to be subject to the public trust doctrine.  Essentially, what authority does a state circuit court have to dictate state policy and determine the appropriate level of emissions?

The court indicated it would likely rule on the matter within two months, but that is unlikely to be the end of the matter.  Stay tuned for future developments on climate change in Oregon.

How Adverse is Adverse?

iStock Country RoadThe law recognizes that under certain circumstances, continued unauthorized crossing of another’s land for a long time can lead to the right to do so indefinitely, notwithstanding that there is no agreement from the landowner.  The right so gained is called a prescriptive easement.  When the law allows one landowner to lose property rights in favor of another, without compensation, disputes often occur.  No surprise.  If it were my land, I’d be upset, too.

The Oregon Court of Appeals, in Wels v. Hippe, 269 Or App 785, 787 (2015), recently dealt with such a dispute, and provided the litigants and practitioners of the law with an in-depth analysis of one element of a prescriptive easement case – “adversity”.

In order to obtain a prescriptive easement to cross over or use the property of another under Oregon (as well as Washington) law, a plaintiff claiming a prescriptive easement is required to show, “by clear and convincing evidence, that his use (or use by former owners of his property) of the road on defendants’ property was ‘open and notorious,’ ‘adverse to the rights of defendants,’ and ‘continuous and uninterrupted’ for 10 years.”  Id, at 787. Continue Reading

LUBA Denies Attorneys’ Fees Motion in Parkview Terrace v. City of Grants Pass

croppedIn September 2014, I reported on the Parkview Terrace Development case, where the developer applied to transform Phases II and III of a planned unit development (PUD) from for sale townhouses to multi-family rentals and the City denied the application.  LUBA reversed the City’s denial of an affordable housing development and ordered the City to grant the developer approval.  In the Parkview Terrace blog post, I suggested that the case was ripe for an award of attorneys’ fees and LUBA recently issued an order on the fee motion.

The developer sought to recover over $39,000 in attorneys’ fees and had originally sought a mandatory fee award against the City of Grants Pass under ORS 197.835(10)(b) because LUBA reversed the City’s decision.  However, LUBA’s order describes that the developer subsequently withdrew its motion for attorneys’ fees against the City.  I can only surmise that the developer, a rental housing provider, calculated that its long-term working relationship with the City would not be bolstered by pursuit of these fees.

Thus, LUBA was left to determine whether the project neighbors should be on the hook for the developer’s fees.  The standard of review for attorneys’ fee motions in land use matters is whether LUBA finds that a party presented a position without probable cause to believe the position was well-founded in law or on factually supported information.  In these circumstances, “without probable cause” is where no reasonable lawyer would conclude that any of the legal points asserted on appeal possessed legal merit.  In order to avoid attorneys’ fees in land use cases, a party must present at least one argument on appeal that satisfies the probable cause standard.

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What Hath New Jersey Wrought?

In a case with the unlikely title of In re Adoption of N. J. A. C. 5:96 & 5:97 by N. J. Council on Affordable Housing, the New Jersey Supreme Court put an end to forty years of litigation over the responsibilities of New Jersey local governments to provide for their fair share of affordable housing.  As a result of two cases decided in 1975 and 1983 both named Southern Burlington County NAACP v. Township of Mt. Laurel, that Court established a state constitutional right to require local governments exercising land use regulatory powers to “make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course, including those of low and moderate income.”  In doing so, the Court granted broad relief that included a “builder’s remedy” – allowing an applicant who prevails before a trial court on a constitutional claim of this nature to ask the same court to approve its application. Continue Reading

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