Why are farming counties in eastern Washington shutting down pot farms?

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Not long ago, an entrepreneurial young farmer named Josh Bitterman spent a million dollars transforming an old brick building in Chelan County into a state-of-the-art indoor pot farm. You would think a self-professed agricultural capital like Chelan County would celebrate Bitterman’s investment. After all, keeping young people in the farming business is increasingly difficult. And the former fruit-packing building for Collins Fruit Co., in the tiny town of Monitor, had sat empty for years, a victim of the corporate consolidation of fruit farming in Washington State.

What fruit farming could not fill, cannabis farming could.

But Chelan County’s leaders did not celebrate Bitterman’s investment. In fact, they did the opposite, voting unanimously this past August to make Bitterman’s farm illegal.

“I’m a fourth-generation farmer, and I’ve invested my whole life savings into it. And they just fucking took it, like nothing,” Bitterman said.

The August vote came after a rocky three years for legal weed in Chelan County. The same conditions that make Chelan County great for farming apples also make it a natural fit for growing pot, and cannabis producers quickly set up farms in the valley after the state started issuing permits for legal pot in 2014. At first, the county welcomed the growth and placed few restrictions on where or how the farms should be set up.

By August of 2016, there were 23 producers or processors in Chelan County, but the rush of pot farmers into the valley, with little regulation from county government, quickly caused problems in the area’s conservative communities. Neighbors to pot farms started complaining to county commissioners about increased traffic, nighttime security lights, and the dank smell of pot harvesting. The county then enacted a moratorium on any new pot farms, and in January of 2016 told any existing farms that they had two years to amortize their investments and be out of the county. That law said all weed farming would be banned by 2018.

Now the county commissioners say their August vote was a compromise: They will no longer outright ban cannabis farming, but farms must comply with a new set of zoning and building requirements. But the county’s pot growers say the new law is effectively a ban. None of the existing farms meet the law’s requirements, and only a handful have a reasonable chance of upgrading their facilities into compliance.

It remains to be seen if Bitterman or any of the county’s other farmers will be able to stay in business, but the plight of Chelan County pot farmers has been repeated across the eastern part of our state. Bans or moratoriums on pot farms have been debated or put in place in Douglas, Okanogan, Grant, Yakima, Benton, and Spokane Counties.

These fights across the Republican-dominated section of our state are filled with irony. Many of these conservative counties have passed laws protecting farmers from exactly the kind of neighborly complaints that are now being used to justify draconian farming regulations on pot. Try to complain about the lights of a 4 a.m. hay harvest or the smell of a feedlot to the Chelan County government, and you’ll be told to move back to Seattle. But complain about the smell of freshly grown pot, and the county commission will shut your neighbor’s cannabis farm down.

The irony drives deeper when you consider that those laws protecting agriculture were put in place precisely because places like Chelan County have depended on the income from farming for decades. Now a promising new crop comes to Wenatchee Valley—the county’s pot farmers sold more than $12.7 million of pot in 2016 alone—and the farmer-dominated county commission decides to drive it out because of a harmless odor.

Meanwhile, the Eastern Washington counties that have embraced (or at least tolerated) pot have seen big returns. Last year, Spokane County grew $62 million of legal pot, more than any other county in the state.

What could cause three county commissioners, two of whom made their money selling tree fruit, to effectively ban the most promising crop in town?

Clocks in Wenatchee haven’t struck noon yet, but it’s already close to 90 degrees on this sunny August morning. A crowd of about 30 people pour out of the chambers of the Chelan County Board of Commissioners, walking down the white front steps with a mix of anger, dejection, and apathy on their faces. No one seems surprised by what happened inside.

Two women stand to the side of the crowd and engage in a terse conversation that quickly escalates over the crowd’s dull murmur. The older of the two women yells something about “wasting her time” and walks away. Her voice and eyes sharpen with the anger of facing a foe that lives down the street. I later find out the two women are neighbors—one owns a pot farm, the other an orchard—and their families have spent generations living within a mile of each other on an orchard-covered mountain.

It’s August 22, and five minutes earlier the three county commissioners had made their decision. In nervous and uneasy voices, they did what few rural politicians of an agricultural county would dare to do: They unanimously voted to tighten regulations around their neighbors’ farms so that few, if any, will remain. Undercover police sat in rows of chairs in the commission chambers, and murmurs of “shame, shame, shame” filled the room as the three yes votes were tallied.

None of the 25 actively working pot farms will be compliant with the new rules for zoning, lighting, setbacks, and odor control.

Only a handful of the farms have even a chance of modifying their operations to comply with the regulations, according to Caitlein Ryan, co-owner of Seven Hills Farms and president of the Central Washington Growers Association, a trade group of local pot producers.

“I think a lot of people are pretty brokenhearted today, to be honest,” Ryan said on the steps of the commission building. “They’ve effectively banned everybody and implemented spot zoning.”

Dale Foreman, a Wenatchee attorney representing most of the pot farmers in a lawsuit seeking damages from the county, said the new regulations amount to an effective ban on pot farming.

“The rules that they adopted on the 22nd are designed to prevent anybody from succeeding. It would be surprising if any of the plaintiffs can thread the needle of the rules that the county imposed. Which I think is their plan. The county [government] wants to drive the cannabis industry out of Chelan County,” Foreman said.

Roy Arms, another co-owner of Seven Hill Farms, which grows flower branded as Boggy Boon, said he was one of the lucky entrepreneurs: Thanks to the existing zoning of his farm, there is a chance that he might be able to comply with the new rules. Arms vowed to keep fighting to stay in business, even if it costs hundreds of thousands of dollars in additional investment.

“I’ve invested enough time in this, missed my family enough, that this can’t be for nothing,” Arms said. “No matter what the county does, I’m still going to keep at this. I’m doing this for my kids, to give them a better future.”

The commissioners are using their political power to fight against the natural forces that make the Wenatchee Valley, which lies at the heart of Chelan County, very attractive to pot farmers. Long days of consistent sunshine, rivers raging with water from snowy Cascade peaks, and relatively cheap land make it an ideal place to grow cannabis.

But Chelan County is also a deeply conservative place—Trump won 54 percent of the vote in 2016, and Obama was never able to carry the county—and cannabis, or marijuana as it is more often called here, is not widely accepted. All three commissioners who voted to extinguish the local cannabis production industry said the morality of pot had nothing to do with how they voted, but each commissioner also told me they voted against legalization in 2012 and did not have a single family member that used cannabis.

When I talked to Commissioner Kevin Overbay on the porch of his house, in a subdivision cut out of former orchard fields and perched on a bluff overlooking the Seven Hills Farms, he said his time in law enforcement arresting people on pot charges didn’t affect his decision to tighten regulations on pot farms.

“I was a state trooper for 25 years, and I did not vote for legalization. I have a way of separating the personal from the political,” Overbay said. “My personal opinion has nothing to do with decision making. The fact that I live above a farm did not affect my decision.”

Overbay added, “Do I enjoy that I can’t open my windows or go on my deck without smelling marijuana? No.”

He said he didn’t think anyone in his family had ever used cannabis.

That’s the same thing Michelle Gutzwiler told me. Her family’s house in Wenatchee Heights is surrounded by cherry orchards, some of them owned by her family, and she has been one of the most vocal critics of pot farms in the county. She complains about the traffic and crime that pot farms abutting her orchards have brought; in October of last year, a break-in at a pot farm led to a gunfight and high-speed chase down the road her family lives on. But she is most adamant about the dangers of smelling her neighboring pot farms. Gutzwiler said she is allergic to the smell of pot and has had frequent allergic attacks since the farms showed up.

“I don’t think anybody is going to be totally safe from it [pot’s odor] at all. You go through town and smell people smoking it all the time, but I would like to be safe in my home,” Gutzwiler said. “I went to an allergist here in Wenatchee because I was having attacks where my throat would close up and I still get attacks. I tried calling an ambulance once and I was not able to speak, so it affects me a lot.”

Gutzwiler and her fellow neighbors’ complaints about the smell of the neighboring pot farms convinced the commission to enact its new, tighter rules on cannabis farming. The county will no longer allow large outdoor cannabis farms, and any small outdoor farms will need to keep their pot plants at least 1,000 feet back from the farm’s property line. That’s three football fields from the edge of any neighboring property.

It’s hard to believe that the smell of pot has led to such stringent rulemaking in communities accustomed to the externalities of agriculture. Hops growing, which produces a pungent smell comparable to pot (the two related plants contain a very similar set of aromatic terpenes), has no such restrictions in Chelan County and is hardly a controversial crop in Washington State, where more than 65 million pounds of hops were grown last year.

And while Gutzwiler has no medical documentation that smelling pot affects her health—she said her allergist told her there was no such test for being allergic to pot’s aromas—there have been thousands of documented cases of people becoming sick from the kind of tree fruit farming that surrounds Gutzwiler’s property on all sides.

Farm workers and those who live in farming communities fall ill every year from pesticides drifting from Washington’s farms. The Washington State Department of Health reported more than 1,000 pesticide-illness cases from 2007 to 2011. And a report released this year by Columbia Legal Services, a nonprofit legal advocacy organization, found that 90 percent of the people exposed to pesticides from farms were not directly employed by the farms.

There are no rules that require tree fruit farms to be set 1,000 feet back from property lines.

But with these kinds of health effects, wouldn’t tree fruit farming be the kind of issue this activist county commission might take up? If the smell of pot is so abhorrent, wouldn’t the dangerous drift of pesticides from orchards be something the three commissioners who clamped down on pot farming might want to stop?

That’s unlikely, and not only because two out of the three current commissioners—Keith Goehner and Doug England—made their living from tree fruit orchards. They’re unlikely to enact local laws infringing on farmers’ rights because the county has legal protections for farmers. Chelan County, like many agricultural counties in Washington, has a “Code of the West” resolution, which warns prospective residents that “life in the country is different from life in the city” and those moving to Chelan shouldn’t be surprised to feel the effects of farming on their land.

The 2002 resolution warns would-be complainers: “Agriculture is an important business in Chelan County. If you choose to live among the orchards, farms, and ranches of our rural countryside, do not expect county government to intervene in the normal day-to-day operations of your agribusiness neighbors.”

Worried about the possibly toxic pesticide drift from a nearby orchard? The county’s code says you should expect this: “You may be subject to spray drift or over spray. You may be sensitive to these substances and many people actually have severe allergic reactions.”

Tired of the fecal odor from a nearby farm? Get over it, the code tells you: “Animals and their manure can cause objectionable odors. What else can we say?”

It would seem like the complaints about pot farms would fit squarely under the protections of this “Code of the West,” but they don’t, because of a technicality: The county refuses to label pot farmers as participating in agriculture.

“There’s a broad tolerance for pesticide drift, which hospitalizes dozens of people every year,” said David Rice, one of the owners of San Juan Sun Grown, a farm about a mile from Gutzwiler’s house. “But the smell of cannabis leaving a property is completely intolerable. So there’s obvious hypocrisy and a double standard when it comes to the treatment of it.”

Every person I spoke to who complained about cannabis growers in Chelan County said that it wasn’t about their distaste for pot that made them complain and seek to shut the industry down, it was only the effects associated with the plant’s growers, from the smell to the traffic. But if there’s no evidence that pot farms are negatively affecting the health of their neighbors, why go so far out of their way to shut them down?

The only rational explanation left that I can see is also the simplest—they simply don’t like pot.

The people running the Chelan County government don’t mince words when it comes to the question of whether or not marijuana cultivation qualifies as agriculture. The third paragraph of their latest cannabis zoning ordinance states that “cannabis is not an agricultural product,” and all three commissioners who unanimously voted for the ordinance told me that the state of Washington also considers pot not to be an agricultural crop.

The truth is more complicated. The state government has largely stayed out of the debate over whether or not pot is an agricultural product. The state laws that authorize the production of legal cannabis make no mention of pot being or not being an agricultural product. The state, however, does not consider marijuana eligible for any tax breaks or incentives otherwise open to agriculture. The Department of Revenue’s website states: “None of Washington’s tax preferences for agricultural products or property tax incentives apply to marijuana businesses.”

But the state government consistently regulates pot as if it were an agricultural product. That’s probably because cannabis is a plant, because the sun shines on pot plants just like it does on pear trees, and because the people who grow cannabis are farmers. In short, eligibility for farming tax breaks doesn’t suddenly change the nature of what pot farmers are doing.

The Washington State Department of Agriculture (WSDA) is one of the most active state agencies in regulating pot. The WSDA’s Chemical and Hop Laboratory in Yakima conducts the state’s pesticide testing on pot; the WSDA provides input on pot regulations and cannabis testing labs, as state law requires; and the WSDA runs the state’s industrial hemp program. Moreover, the Washington State Department of Labor & Industries considers workers at both indoor and outdoor pot farms to be agricultural employees for industrial insurance purposes.

Some state legislators want to clarify that pot is in fact a crop. A bill was introduced in the legislature last year that would explicitly classify marijuana as a farm product and marijuana farming as an agricultural activity. Sponsored by three Republicans and six Democrats, the bill failed to make it out of committee. Washington is behind other states when it comes to pot’s agricultural status; California and Oregon both define cannabis as an agricultural crop.

Lara Kaminsky, the executive director of the Cannabis Alliance, a pot business trade group, said the insistence by some people in the state that cannabis isn’t agriculture stems from years of anti-pot propaganda.

“I get that this is a deep and difficult issue. The war on drugs left many scars, and the propaganda got really deep into our DNA. But we have to start with the truth, and part of that is cannabis is a plant and cultivation of that plant is agriculture,” Kaminsky said. “Let’s just call it what it is.”

And it appears that some of the county commissioners in Chelan County were calling marijuana an agricultural activity when the pot farms were first coming to the county. Bitterman, the pot farmer who renovated the old Collins Fruit packing warehouse into a pot farm, said he was assured that his business would be treated as agricultural.

“I put my license on stall because they put that moratorium on. And then they lifted it and said we are going to treat you like AG [agriculture], so then I went and got a warehouse that was zoned AG, and got a license when there was no moratorium,” Bitterman said. “I asked the county what I had to do, and they said, ‘No problem, just get permits.’ And now we’re being shut down.”

The new regulations require all large pot farms like Bitterman’s to be in areas zoned industrial, and the old Collins Fruit warehouse is zoned agricultural, so Bitterman’s farm is now illegal. Bitterman isn’t the only Chelan County farmer saying that they were assured the local government would treat cannabis as agriculture.

According to Dale Foreman, the attorney representing most of the county’s pot farms in a lawsuit seeking damages for the county’s behavior, some of the farmers even have a tape of the county commissioners saying that pot will be treated as a crop. Unfortunately for the farmers, they didn’t notify the commissioners that they were being recorded, so a judge has thrown out the evidence from an early hearing on the case. Foreman said they will still be able to provide witnesses to testify that they heard the statements being made.

“They recorded this, but it is against the rules to tape record somebody without their knowledge,” Foreman said, referring to state law. “There are people who will testify that they were in the room and heard the commissioners say that this is an agricultural crop.”

Kaminsky said even if the state legislature did pass a law explicitly classifying pot as an agricultural product, counties like Chelan County could still treat local producers differently.

“It’s not something where it would be you just flip a switch and it makes everything better, the counties would still have a lot of zoning ability even if we were considered agriculture, but the idea is that we would have more legitimacy in terms of the smells that the plant gives off.”

Chelan County is far from the only local government in Eastern Washington that has an uneasy relationship with pot production. But some, like the Spokane Valley City Council, have learned that treating the legal weed growers like a legitimate industry has benefits. Spokane Valley grew almost $3.4 million of legal weed in August alone, bringing a whole wave of economic activity to the city of less than 100,000.

However, the city wasn’t always so open to pot. In 2016, Spokane Valley passed a moratorium on any new cannabis businesses, both retail and production, and the city council was considering going further when they were invited to tour Grow Op Farms, one of the city’s producers. Rob McKinley, CEO of Grow Op Farms, said touring the $10 million facility quickly changed the politicians’ attitudes.

“There was one guy who put a mask on because he thought he was going to get high just walking around the building. But by the end, you had people who were maybe standoffish about the process taking photos of plants and buds,” McKinley said. “By the time they’re done, they see more than 300 happy workers, we’re one of the biggest employers in the valley, and they went back and voted away the moratorium.”

You can already see the economic impact of legal pot in Chelan County, especially in the small community of Monitor, where Bitterman has set up shop. The town itself doesn’t get any share of the state’s excise tax on pot, but it’s hard to miss the impact of that much production happening in a sleepy community on the shoulder of a highway. Dozens of pot employees have been commuting into the town every day and shopping at the local grocery store. The old fruit packing plant, which was empty until pot came on to the scene, became a productive property with an increased value that benefits its neighbors.

But those economic impacts aren’t likely to hang around if the county government enforces its latest round of regulations.

Doug England, one of the commissioners who voted for the new law, and a tree fruit farmer himself, said he voted on the ordinance with no regard for how it impacts farms like Bitterman’s.

“There will undoubtedly be some [pot farms] that won’t be able to make the standards. We’ve made a particular effort to not take that into account and to not consider that one way or another. We’re aware that there will be an economic effect. But again, the regulations need to be right no matter what it costs us one way or another,” England said.

The new regulations will certainly cost the county’s taxpayers money, and not only from lost business activity. The legal bills associated with the multiple lawsuits filed against the county are likely to run into the hundreds of thousands in just attorney’s fees, and that’s not including any damages that will be paid out if any of the farmers prevail in court.

If the farmers are successful in exacting damages from the county, they will have completed a ridiculous full circle: farmers getting paid damages by a farming county because the county can’t accept that the farmers are farming.

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Source: 420 Intel – United States

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