Argues violation of 5th Amendment
An Omak cannabis grower has sued Okanogan County over the county’s new requirement that growers meet with planning staff to show their license and a detailed site plan. The grower argues that the county already has that information and that being asked to furnish it violates their Constitutional rights.
Ladyhelm Farm sued the county, the three county commissioners, and the planning director over a moratorium on new or expanded cannabis grows that includes the meeting requirement. The suit was filed in Okanogan County Superior Court on Jan. 21.
Ordering the growers to provide this information violates their Fifth Amendment protection against self-incrimination, the suit alleges. “The County has taken cannabis producer permits and approvals hostage for the ransom of self-incriminating information in violation of the 5th Amendment to the United States Constitution and Article I, §9 of the Washington State Constitution,” it says.
The suit also argues that the requirement also violates the equal-protection clause in the 14th Amendment by singling out cannabis producers, whereas other businesses haven’t been asked to provide proof that they’re in compliance with regulations for things like zoning and shorelines. Even cannabis processors and retailers aren’t subject to the same requirement, it says.
Ladyhelm Farm is seeking an injunction on the meeting requirement and on the county’s threat “to revoke the permits of producers if they do not meet with the County and provide information that is already within the County’s possession…. The County is the entity responsible for maintaining the records of who owns what parcel of land within the County,” the lawsuit says.
Moreover, the county should be able to find out how many cannabis operations and buildings are on a parcel by sending an enforcement officer to the property. The county could also request the information from the Washington State Liquor and Cannabis Board [LCB], according to the lawsuit.
The county’s moratorium “turns the LCB and County’s enforcement mechanism on their heads, foisting a duties of investigation [sic] and record-keeping onto the business and landowners, rather than the governmental entities tasked with these responsibilities,” the lawsuit says.
Both Okanogan County Superior Court judges, Chris Culp and Henry Rawson, have recused themselves from the case. The county is in the process of finding a visiting judge from another county who can hear the case, Bailiff Mary Horner said last week.
The county says the meetings with cannabis growers aren’t intended to be punitive – they are primarily an effort to get up-to-date information and be sure growers have the necessary permits, Planning Director Pete Palmer said. Of 125 licenses issued by the LCB, only 80 had been permitted by the county. Records kept by her predecessor are incomplete or unclear, she said.
While the state licenses the farm, the county permits the land use. Each grow must have an approved site plan that shows the entire operation – the total acreage and all the components, including outbuildings, hoop houses, greenhouses, worker housing, and water source, Palmer said.
As part of the licensing process, the LCB reviews the real-property documents and confirms the address with the assessor, but it’s the applicant’s responsibility to follow local zoning rules and regulations, LCB Communications Director Brian Smith said. The LCB isn’t aware of any discussions with Okanogan County regarding the consistency of state and county information, he said.
The county isn’t conducting enforcement actions, but is trying to open a line of communication with growers so they can be part of the process of improving county regulations, Palmer said. She has been compiling a list of issues raised in the meetings that she can review with the LCB to develop a more coordinated process.
Several growers testified at a public hearing on the moratorium in October, saying the ban and meeting requirement seemed like a “sneaky” route to enforcement. One said some growers can’t afford land and have to lease it. Having infrastructure for multiple grows is important so growers can compete when the federal government allows the consolidation of licenses, the grower said.
The six-month moratorium on new farms or expansions of existing farms was first imposed in August 2021 and extended this January. The county imposed the ban because the state had been issuing licenses to growers without checking or coordinating with the county about its permit and zone requirements, Okanogan County Commissioner Andy Hover said.
The moratorium gives the county time to determine the impact of existing cannabis operations on the environment and on other property owners, according to the ordinance. It directs the Planning Department to address permitting, siting and regulation.
The commissioners have extended the deadline for growers to meet with the Planning Director twice, after a low response rate during what growers said was their busy harvest season. As of Jan. 24, only 35 had come in for meetings and there were 50 to go, Palmer said. The new deadline is April 1.
The moratorium will also allow the county to look into situations where Okanogan County property owners sublease “suites” to multiple growers. The state may license multiple grows on a single parcel, without accounting for the size of the parcel or the aggregate size of the individual grows, Hover said.
The list of current licensees from the LCB includes five growers and four processors at the same address as Ladyhelm Farm, all in different units. Other locations have up to nine units or suites.
The LCB obtains copies of leases to identify which location each licensee has the rights to, and asks for a site plan when there are multiple licenses at the same address, Smith said. The plan also shows buildings, fences and camera locations.
Local growers: Meetings were helpful, polite
When he met with Okanogan County Planning Director Pete Palmer in late December to go over the site plan for his cannabis farm in Winthrop, Lazy Bee Gardens owner Matthew Frigone said he didn’t have the impression that the county was trying to penalize growers. Lazy Bee Gardens was one of the first farms to be licensed in the county and regulations have become stricter over the years, he said.
Many farms have erected greenhouses or pole barns, which need to be recorded on site plans and may need building permits. Some growers use shipping containers, which are often advertised as not needing a building permit, Frigone said.
Because he has a background in building, Frigone said he was more aware of requirements than some in the industry. He is working with the county on permits for additions to existing structures, he said.
Frigone noted that there are “mega-compounds” with 10 or 20 individual farms in some areas, which can pose problems if the county needs to talk with an individual owner or know who’s still in business. It seemed the county was trying to help everyone come into compliance, he said.
Kris Labanauskas, owner of Methow Growers in Twisp, admitted that he was worried before his meeting with the Planning Department, since he didn’t know what their end goal was. But they were very nice and polite, he said.
Labanauskas, who’s had a license as a grower and processor for half a dozen years, said he has to adapt an old barn so it meets the code for commercial buildings, including disability access. Even buildings that were constructed decades ago need to come up to commercial code, he said.
“I understand why they’re doing it” – there are probably farms that put up buildings that may not meet all the specs, Labanauskas said.
The co-owner of Cascade Growers, another grower in the Methow, wasn’t sure if his partner had met with the county yet. The state requires a detailed map of each grow, showing the location of all buildings, greenhouses and plants so they can calculate the canopy size, he said. The size is calculated per licensee, according to the Washington State Liquor and Cannabis Board (LCB).
While the state inspects the property and reviews a site plan, their focus is on compliance with security regulations, including fencing, cameras and insurance, Labanauskas said.
Inspections officers have discretion for verifying that the licensed location is in compliance with the rules for their license type, according to the LCB.
Frigone left the meeting with a list of things to fix and a request for more detailed plans. “I got good instruction of what the county is looking for,” he said.