An impartial Clackamas County hearings officer on Thursday heard the appeal of a group of Portland-based entrepreneurs that wants to turn land they own just outside of Canby into a large recreational cannabis operation for multiple licensed growers.
The company is Horta Latitude 45 LLC. In 2017, they purchased a 21 acre farm property located about a mile and a half south of Canby, across Highway 170 from the Lone Elder Store.
Their intention was to build eight approximately 3,400-square-foot greenhouses on concrete pads, which could then be leased to multiple licensed marijuana growers, essentially acting as tenant farmers. Their plans for the greenhouses and overall use of the property were approved by the county in June of 2018.
The problem is that nine months later, the county passed a new ordinance prohibiting more than one cannabis production license per parcel of land. It basically made Horta’s business model illegal.
Horta argued to the county that the new ordinance should not be retroactively applied to them. They argue they have “vested rights” to pursue their intended use of the land under the planning codes as they stood last year, when their land use application was approved. The county denied their request, hence, the appeal that was presented last week to hearings officer Fred Wilson, a Salem attorney.
County planner Glen Hamburg advanced several arguments in defense of their position, including that almost all of the money Horta had spent on the project was not in any way restricted to housing multiple marijuana growers on the property. The vast majority of Horta’s expense was the initial purchase of the land for $665,000.
The land has a house and mobile home that are both being rented to residential users. It also has several productive acres in peach trees and could support virtually any other farming use. It could even still be used to grow cannabis, just not for multiple licensees.
So, the county argues, the applicants have not really “lost” anything due to the new ordinance. They can still make profitable use of their land.
Hamburg also made a convincing case that Horta had never, in writing, expressed their desire for the exact use they are now asking for. Horta’s request is too allow nine licensed cannabis growers on the property (eight for indoor use and one for outdoor use). Hamberg allowed that the applicant may have had the desire for multiple licensees to operate, but never was the number of nine specified until after the new ordinance was passed.
Attorney Tim Ramis, testifying on Horta’s behalf, responded that there is a very simple reason for this: they weren’t required to specify a number.
At the time of their application, Ramis argues it was legal to have any number of licensees on one property. So he continues, why would they have argued for something that was already allowed? And why should they now be punished for not doing something that, at the time, they were not required, or even expected, to do?
Horta likened their situation to that of a developer wishing to construct an office building. They are not required to state how many tenants will be in the building, because much depends on economic and real estate market factors the developer has no control over. The building may ultimately house one large tenant or a dozen smaller ones. Horta says the same was true of their approach.
They also presented convincing evidence that their plan had always been to house multiple licensees, based on correspondence with prospective investors and even county staff dating back to 2017. They also say their intentions were clear in the purchase of the property and the design of the eight greenhouses, both of which are much larger than single licensed growers could legally use under state law.
Wilson, the hearings officer, made no decision Thursday. Instead, the record was left open for two weeks for new evidence and written testimony to be submitted, followed by a period allowing the county and Horta to respond. A final decision is due in November.