Kovash v. Columbia County

In Davis v. City of Bandon, 19 Or LUBA 327, 336 (1991), LUBA explained that before existing development ordinances and regulations are suspended by way of a moratorium, they must be shown to be inadequate. ORS 197.520(3)(a)(A), (b)(A). Moreover, for a moratorium to be valid—even if the ordinances and regulations are inadequate—alternative methods of achieving the objectives of the moratorium must be unsatisfactory. ORS 197.520(3)(a)(C), (b)(C).

Ken Kovash is a medical marijuana card holder and grows “ingestible tinctures and seeds” on his three-acre property located in Columbia County. In 2014, the Oregon legislature amended the Oregon Medical Marijuana Act to (1) allow local governments to adopt ordinances that impose reasonable regulations on medical marijuana dispensaries that are located within the area of the city or county, and (2) allow local governments to enact a moratorium on the operation of medical marijuana dispensaries until May 1, 2015. In November 2014, Oregon approved Measure 91 legalizing the recreational use of medical marijuana. On April 29, 2015, the county adopted Ordinance 2015-3, which imposed a 120-day moratorium on the “establishment of new and expansion of existing marijuana facilities” in the county to expire on August 27, 2015. According to the county, the objective of the moratorium was to allow the county time to develop comprehensive zoning regulations for both medical and recreational marijuana related uses to avoid irrevocable public harms.
Kovash argued on appeal that the county’s findings failed to demonstrate a compelling need for the moratorium because the county had sufficient time to adopt zoning regulations to address the irrevocable public harms that it had identified, but did not do so for the sake of administrative convenience. LUBA agreed and held that the county has failed to demonstrate a compelling need for the moratorium, because it has failed to demonstrate that adopting zoning regulations for medical and recreational marijuana facilities was unsatisfactory. Accordingly, LUBA concluded that the moratorium was not adopted in compliance with ORS 197.520(3)(a)(C) and 197.520(3)(b)(B). LUBA sustained the second assignment of error, and determined that the first assignment of error was outside the scope of review the legislature enacted in ORS 197.540(4). The ordinance was INVALIDATED.