County to Consider Allowing Multiple Marijuana Growing Licenses on 21-Acre Farm South of Canby

Clackamas County will consider this week whether to allow a group of entrepreneurs to site up to nine marijuana production licenses on a single property located on Highway 170 south of Canby.

The property is a 21-acre farm that currently features a single family home and a large peach orchard. It’s located near Lone Elder Road, more or less directly across the street from the Lone Elder Store.

It was purchased by the Portland-based company Horta Latitude 45 LLC for $665,000 in late 2017, when a prior sale (which was for another, unrelated cannabis growing operation) fell through.

In planning documents, the applicants say the property was the most promising of the eight or so sites they considered. They liked the Canby area because of its proximity to Portland and its reputation as the “nursery capital of the Northwest.”

“It lies on the 45th parallel and is positioned well to grow plants from the sun,” the applicants explain in documents submitted to the county planning department.

Horta’s plan was to remove the existing peach trees and build a series of large (approximately 3,400-square-foot) greenhouses on concrete pads, which could then be leased to multiple licensed marijuana growers essentially acting as tenant farmers.

The team behind Horta has been developing their business plan since recreational marijuana first became legal in Oregon in 2015. They have pitched to numerous potential investors and say they have raised over $730,000 in capital.

“We have come to realize that there are a lot of folks trying to get into the business, but they don’t have the capital to spend
$500,000-plus on land and then spend $400,000 on getting their business off the ground,” one of the team members wrote in an email to a potential investor. “This has created a demand for leasing land that is prequalified for cannabis production and is approved to build a greenhouse or an indoor structure.”

The applicants spent much of last year doing the groundwork needed to implement their business plan, including designing the eight greenhouses that would be built in the first two phases of development, hiring contractors to transfer water rights and drill wells, conducting soil testing and land surveys and, of course, submitting their land use application to Clackamas County. It was approved in June 2018.

Then, the county passed a new ordinance in March of this year that prohibits more than one cannabis production licensee per parcel of land. That obviously presents something of a problem for Horta, which is based on the idea of multiple licensed marijuana growers operating on the same property.

The request that the county will consider this week is for something called a “vested rights determination,” which would allow Horta to move forward under the code as it stood before the new ordinance was passed.

The concept of vested rights stems from Oregon common law, first set forth in a 1973 case, Clackamas County v. Holmes. The Holmes case established several factors for vested rights to be granted, one of the main ones being the amount of money spent on the project before the law was changed.

In this case, the applicants say they had spent more than $700,000 by the end of last year, which represents about 24 percent of the total estimated cost of the project, $2.9 million. That’s well above the 7 percent traditionally deemed to be the minimum amount in other vested rights cases.

The applicants also point to the fact that the county has already allowed a similar multiple-licensee indoor grow operation (Dewey Farms in Oregon City). They say that for the county to enforce a new code adopted after Horta’s land use application was approved in June 2018 is patently unfair, basically the equivalent of “moving the goalposts.”

“The county may not adopt and apply retroactive zoning ordinances,” they argue in documents submitted to the county.

If the vested right determination is approved, Horta would agree to limit the total number of production licences to nine: eight for indoor production and one for outdoor production (2.3 acres of the property is designated for open air growing under their land use plan), as well as an additional license for the processing of cannabis oils and concentrates.

The hearing has been set for 9:30 a.m. Thursday, Oct. 3, in the first floor auditorium of the Clackamas County Development Services Building, 150 Beavercreek Road in Oregon City.

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