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Would-be pot growers stunned and dismayed by policy pivot

In emergency session, Forest Grove council bans operations until Aug. 5

MarijuanaStuart Wilson and Wayde Elliott felt tricked.

Last Thursday, the would-be marijuana farmer and the Forest Grove Storage owner had expected to be a day away from permanent approval of their outdoor recreational-marijuana grow plans at the south end of Elm Street. Friday, April 29, would have been the last chance for anyone to appeal the project, which already had preliminary approval from the city.

Instead, after the two months and $18,000 Elliott spent applying for that approval, the Forest Grove City Council held an emergency meeting Thursday, April 28, and voted 6-1 to temporarily ban all marijuana grow operations until Aug. 5 so council members could further research the issue.

Even if the city lifts the ban in August, it would be too late for Wilson, a longtime vintner, to meet the terms of what he said was a $12 million growing contract — two thirds of which was set to happen on land leased from Elliott for $30,000 a year.

“Why now? Why today?” Wilson asked the council Thursday night. “It feels like the timing was specifically directed at us.”

Council members knew about Elliott’s application and knew it was on the verge of approval, but Mayor Pete Truax said he didn’t schedule the meeting Thursday just to derail Elliott’s plans.

Instead — and coincidentally — Truax was responding to another equally sensitive timeline. Unfortunately, neither he nor Community Development Director Jon Holan nor any of the councilors said anything about that second timeline at Thursday’s emergency meeting, leaving Wilson and Elliott feeling suspicious and singled out.

Mixed messages

Elliott applied to the city for permission to expand his Forest Grove Storage property Feb. 23 and amended that application March 14 to add a recreational-marijuana grow facility to the new space.

He hired a land-use specialist early on to help ensure his application was on firm footing. But he didn’t hire an attorney to guide him through the whole process.

“Why would we need an attorney?” he said, noting that the four or five other times he has dealt with city applications for development on other properties, he never needed an attorney and never had a problem.

On April 18, Elliott’s application received preliminary approval.

But city officials gave mixed signals on the project, he said, refusing to fill out a required Land Use Compatibility form unless it was sent to them directly from the Oregon Liquor Control Commission, which regulates marijuana activities.

“We tried for weeks to get the city to accept that form,” Wilson said.

Senior Planner Dan Riordan said that for alcohol-related establishments, the city always has to get the form from the OLCC and assumed it was the same for marijuana. The city attorney backed up that assumption, Riordan said, based on wording in the state’s recreational marijuana law.

But if a city fails to complete the form in 21 days, it’s automatically approved, Elliott said. That deadline would fall on Friday, April 29 — the same day as the deadline for any opponents of the project to appeal it.

By Tuesday morning — three days before that deadline — things were looking good for Elliott and Wilson. Not only had they heard nothing about any possible appeals, but on March 28, the city council had soundly rejected — by a whopping 6-1 margin — a proposed citywide ban on grow operations, with Councilor Ron Thompson the lone “nay” vote.

Two weeks after that vote, Riordan notified Elliott about a work session before the April 11 council meeting. Such notification is not required but Riordan offered it as a courtesy, knowing some councilors were still concerned about grow operations and the discussion might be relevant to Elliott’s project.

It was at that meeting that Lowe suggested a moratorium on marijuana grow operations. But Elliott, who attended the meeting, didn’t understand that “moratorium” is a bureaucratic term for “temporary ban.” He might also have been confused by the noisy debate, driven by Councilor Richard Kidd, a passionate opponent of marijuana.

Wilson, who knew what a moratorium was, came late to the meeting and said it was so chaotic and argumentative it was hard to follow. The pair left the meeting knowing the issue was still being debated but had no idea a ban might be considered at the next council meeting.

When their project got preliminary approval a week after that work session, the only date that mattered to them was April 29. That’s when the OLCC form would automatically be approved if the city hadn’t filled it out and their application would be permanently approved if nobody appealed it.

Even if the divided council decided to take some action related to grow operations, that still didn’t seem to be a problem, Elliott said. He knew any new laws would require a first and second reading at separate council meetings and take at least a month to come up for a vote.

So he and Wilson missed the work session Monday, April 25, where council members reviewed a proposed ordinance for a temporary ban, decided to do a first reading of it during the council meeting that night — and to hold an emergency session three days later.

There was no courtesy call to alert them this time.

Communication breakdown

Wilson and Elliott had no idea councils could call emergency meetings. Even Lowe, who has served on both the council and the city planning commission, said, “In my 16 years here I can’t remember one emergency meeting.”

Holan says there have been some but acknowledges they’re rare.

Elliott thinks someone from the city should have at least alerted him to the April 25 work session so he and Wilson could have listened in (the public is not allowed to participate in work sessions) or maybe approached city staff or council members afterward.

“Just as a courtesy,” Elliott said, as in: “This is going to affect you — you might want to be there.”

Wilson called it a “secret session” at Thursday’s meeting, prompting indignant responses from council members, who pointed out that it was on the agenda (added two days after the original agenda went out) so anyone could have seen it if they’d checked.

But “I would have no reason to check,” said Elliott, whose contact with the city had led him to believe their project would be finalized long before the council made any other changes to marijuana policy.

Instead, Elliott got a Tuesday email from Riordan letting him know about the emergency Thursday council meeting to vote on the temporary ban.

When he and Wilson showed up, they got three minutes each to testify.

During council discussion, Lowe said the pair “should have been notified” about the Monday work session and offered them her “personal apology,” changing her vote from yes to no because she felt the process was so poorly handled.

No city officials ever acknowledged deliberately trying to block Elliott’s project from final approval. But neither did they explain about the other timeline in play.

According to Holan and Truax, the timing of Thursday’s meeting was essential in order to meet an Aug. 5 deadline for filing to get a measure on the November ballot.

Down to the wire

During the temporary ban, council members will need to consider whether to restrict marijuana growers’ “time, place or manner” of operation or to simply ban grow operations outright, Holan said.

And they need to consider fast enough so that if they ultimately decide to send a full ban proposal to the voters (which is the only way to enact a ban), they can meet the Aug. 5 filing deadline for the November election.

That timeline must start with a 35-day notice period required by the state’s Department of Land Conservation and Development (DLCD) before a city can hold its first hearing on the topic. That period started Friday, April 29, when Holan sent a letter to DLCD. Day 35 will come Thursday, June 2, just in time for the Forest Grove Planning Commission to consider the issue at its meeting Monday, June 6.

Any planning commission recommendations or proposed ordinances will go to the city council’s June 27 meeting for a first reading and then to its July 11 meeting for a second reading. The council meets only once a month in the summer so its next scheduled meeting would be Aug. 8.

But if councilors decide they’d rather skip targeted restrictions and go for a complete ban, they’d have to get the issue on the ballot by Aug. 5.

All the city meetings depend on the timing of that first notice period and with the current timing, “I think we just get in under the 35 days,” said Holan.

Wilson is skeptical of that explanation. If the council can hold emergency meetings, he said, why didn’t it just postpone the temporary-ban vote for a day or so, giving Elliott’s preliminary approval enough time to become permanent? After that, the clock could start ticking toward the Aug. 5 filing deadline and any timing problems could be solved by another emergency meeting, he said.

“Staff cannot assume the council will call an emergency meeting,” Holan said. “We must establish a process where scheduled meeting dates are used.”

Meanwhile, with the council’s decision last Thursday, the city finally filled out the OLCC form Friday for Elliott’s application, marking it “prohibited” under the newly enacted ban.

In the end, even if the ban is lifted, Elliott and any other current applicants would have to reapply, making it far too late in the season for Wilson to get his crop planted.

Frustrating, frustrating, frustrating

With no explanation of the city’s Aug. 5 deadline, Wilson and Elliott were left to assume the vote was timed solely to block their project.

“If you had an issue, why didn’t you say so a long time ago?” Wilson asked council members.

Holan said Tuesday that city officials weren’t sure back then. “This thing is evolving,” he said. “Things can change.”

The council has already had to backtrack on one action: It passed a 10 percent tax on recreational marijuana sales, only to see the state later limit cities’ taxing option to 3 percent. Now the council has to go through a repeal process to get the tax percentage right.

Even the council’s first 6-1 rejection of a ban, said City Manager Jesse VanderZanden, was partly based on an erroneous concern that the ban might affect medical marijuana grow operations as well, which would have violated state law.

And Elliott’s application might not have sailed through anyway. Unbeknownst to him, the nonprofit Friends of Historic Forest Grove was considering an appeal, concerned about having a marijuana grow operation next door to the historic A.T. Smith House, where schoolchildren sometimes visit.

Still, Elliott — who is now out $18,000 in engineering, drafting, design costs and more — said he plans to have an attorney take a look at what happened: “I don’t believe this was done correctly.”

The councilors who approved the temporary ban weren’t much happier about the whole thing. “This has been incredibly difficult,” said Malynda Wenzl, who added she does not personally oppose selling or growing marijuana legally as a business but needs to listen to the concerns of her constituents.

Uhing said simply: “It is frustrating, frustrating, frustrating.”

“I’m not willing to be blameless in all this,” said Truax, “but I’m not willing to accept all of the responsibility either. There’s enough to go around for everyone.”