Flying under the radar
Only a handful of medical marijuana growers have applied for Jackson County permits to keep growing on rural residential land — even though growers without permits face fines of up to $10,000 and orders to remove their plants.
Most are flying under the radar, hoping to avoid detection rather than pay the $1,563 permit application fee.
Jackson County has received only seven applications from growers hoping to be grandfathered in by qualifying for a pre-existing, non-conforming use permit.
"It isn't many. It's a lot less than I had anticipated," said Jackson County Development Services Director Kelly Madding.
According to state data from April, Jackson County has 2,993 known medical marijuana grow sites, although how many are in rural residential zones is unknown.
Permits became necessary after a state law passed this spring defined medical marijuana growing as a farm use. Farm use — the for-profit raising of crops or livestock — is not allowed in rural residential zones under Jackson County law. Grows are allowed, however, in exclusive farm use and forest zones.
Madding said it's not clear why so few medical marijuana growers are applying for the permits that would allow them to keep growing legally on rural residential land.
"Some people may have moved onto lawful property. Maybe some decided not to grow," she said. "I also think there are people who understand we do enforcement on a complaint basis and they're waiting to see if we come knocking on their door."
County staff members are not out hunting for illegal marijuana grows, but they will investigate if neighbors or others file complaints about suspected illegal grows.
If someone does file a complaint, a grower will be given the opportunity to apply for a permit. Fines and potential orders to remove plants would kick in if a grower refuses to seek a permit, Madding said.
The Right to Grow advocacy group has filed an appeal with the state Land Use Board of Appeals seeking to block enforcement of Jackson County's marijuana regulations. The Jackson County Board of Commissioners also has indicated it may look at altering county rules on farm use.
Pete Gendron, president of the SunGrown Growers' Guild that represents Southern Oregon outdoor growers, said it's clear to him why most Jackson County medical marijuana growers are holding back on applying for permits.
"The answer is pretty simple. We're in a legal limbo and it costs $1,563 to apply," said Gendron, who grows in neighboring Josephine County. "There's been no guidance on how long it will take to get a permit. People right now are taking a wait-and-see approach."
He said many growers are also opposed to permit requirements on political grounds.
"A number of people are looking at this as civil disobedience," Gendron said. "It's a nonviolent protest."
He said marijuana growers are used to facing risks because the federal government still considers marijuana to be illegal despite state legalization. Growing without a county permit is just one more risk.
Portland-based attorney Ross Day represents both Right to Grow in its fight to stop enforcement of Jackson County regulations and one of the few growers who has applied for a county permit to be grandfathered in on rural residential land.
"I represent an applicant for a non-conforming use permit. We're waiting to get a final decision on that," he said. "I have to advise my clients not to violate the law — even though I think the county is wrong."
Day said many medical marijuana growers on rural residential land in Jackson County may simply be unaware that the county now requires them to get a permit to be grandfathered in and continue growing.
"I have talked to some people with rural residential land who just this past week found out they needed to do this," he said. "Maybe the case is they may flat out not know."
Some growers may also believe officials will move rapidly to change county law.
But Jackson County Commissioner Doug Breidenthal said changing the county's Comprehensive Plan to allow medical marijuana grows on rural residential land would take at least a year and require extensive public involvement.
"It's physically impossible to get that done in time for farmers to use a modification to be legal this growing season," Breidenthal said. "If they don't try to become a permitted non-conforming use, they run the risk of being fined up to $10,000 and being shut down."
Tinkering with the county's Comprehensive Plan to allow farm uses on rural residential land could open the door for people to legally grow benign crops such as lettuce and tomatoes for profit. But it could also allow dairies and other intensive operations most rural homeowners would find objectionable. Additionally, many neighbors have complained about skunk-like odors from maturing marijuana plants, noise, traffic, aggressive guard dogs, gun-toting growers and other problems at some grows.
This spring, commissioners had been moving to allow medical marijuana grows on rural residential land with 75-foot buffers from neighboring property lines. But in the view of the county's legal and development services departments, the recent change to state law blocked such grows altogether.
A medical marijuana grower on rural residential land in the Greensprings area east of Ashland is among the handful of growers to apply for a permit. He asked to remain anonymous.
"We wanted to be among the first people to get a good, solid application in and beat the rush of people," he said.
He said having a permit will not only prevent legal trouble, it will increase his property's value.
"Having a permit creates a potentially significant increase to the property value. It's a good investment for $1,563. That wiped out our concern about the $1,563," he said.
Many growers have complained about the price tag for an application. Madding said the price is based on Jackson County's actual average costs — including staff time and mailing notices to neighbors — to process Type 2 applications.
The Greensprings grower expects to learn in September whether he's been approved for a permit.
Madding said Jackson County will not take enforcement action against a grower with a pending application if there is a possibility the grow will be deemed legal. Decisions likely will take two-and-a-half to six months. A grow for 2016 cannot be larger than it was in 2015.
If a new grower who didn't have plants last year tried to apply, that person could not be legally grandfathered in and would face enforcement action, she said.
The Greensprings grower said other growers may fear going through the public application process because they could be targeted by robbers. They also know they will be given a chance to apply for a permit if a complaint is filed. He also cited the long-standing belief among many marijuana growers that it's best to keep a low profile.
"There's a general attitude that unless there's a good reason, don't pop your head up," he said.