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Potential pot producers seek dismissal of neighbors’ lawsuit

Neighbors worry about smells that could come from marijuana production; “right to farm” law invoked.

By Mateusz Perkowski

EO Media Group

Published on October 13, 2017 1:48PM

Marijuana plants grow at a farm near McMinnville, Ore. Yamhill County neighbors have sought to stop a proposed marijuana farm, citing the smell it would create.

Mateusz Perkowski/Capital Press File

Marijuana plants grow at a farm near McMinnville, Ore. Yamhill County neighbors have sought to stop a proposed marijuana farm, citing the smell it would create.

McMINNVILLE — Aspiring marijuana growers in Oregon’s Yamhill County have asked a judge to dismiss a lawsuit against their operation filed by neighboring landowners over potential odors.

The complaint was filed earlier this year against Steven and Mary Wagner, as well as their son Richard, who planned to grow and process marijuana on their property near McMinnville.

The Wagners argue that two of their neighbors, Harihara and Parvathy Mahesh, are barred from filing trespass and nuisance claims under Oregon’s “right to farm” statute, which shields growers from such complaints.

Claims filed by their other neighbors — the Momtazi family, which owns nearby vineyards — should also be thrown out because the Wagners haven’t trespassed or interfered with their land, according to defendants.

“You don’t get to file a lawsuit with no facts, sheer conjecture, pure speculation about what will happen,” said Allison Bizzano, attorney for the Wagners.

Oral arguments over the Wagners’ motion to dismiss were held in McMinnville, Ore., on Oct. 11 before Yamhill County Circuit Court Judge John Collins.

The damages alleged by the plaintiffs are not actionable in court because they’re based on proposed activities that haven’t yet occurred, she said.

“Even if we assume there is an odor, there’s no evidence it will travel over the plaintiffs’ property line,” Bizzano said.

According to the plaintiffs, the Wagners are not protected by the “right to farm” law because “foul-smelling particles” from marijuana will impermissibly harm wine grapes already growing on the Momtazi property and which have yet to be planted on the Mahesh property.

“They’re in the zone of danger in how their grapes might be affected by the marijuana operation,” said Richard Brown, the plaintiffs’ attorney.

Oregon’s “right to farm” statute doesn’t immunize against complaints over “damage to commercial agricultural products” filed by other farmers, Brown said.

“It was about suburban encroachment on farms, and not about claims against one farmer by another farmer,” he said.

The plaintiffs disagree their lawsuit is based on speculative injuries, arguing that judges can issue injunctions that stop future unlawful or harmful conduct.

“If the court allows them to develop the property first, it’s the equivalent of letting them pull the trigger,” Brown said.

At this point, it’s not necessary for the plaintiffs to prove what type of particles may affect grape skins and how far those particles will travel, he said.

To survive a motion to dismiss, it’s enough for the plaintiffs to show the Wagners planned to grow and process marijuana — as evidenced by site plans submitted to Yamhill County, Brown said.

“They have a plan. They’ve announced they have a plan. We know they’re going to do it,” he said.

The Wagners countered that unknown events — such as wind direction — don’t count as evidence that would justify an injunction against planting a crop.

“What if they want to grow lavender? What if they want to raise horses?” said Bizzano. “Nobody knows if it will ever impact the plaintiffs. They’re just scared.”

The plaintiffs initially sought a temporary restraining order against the Wagners’ marijuana grow site and processing facility, but that request was denied earlier this year.

Even so, the Wagners failed to get approval for the processing facility from the county government, so it appears that portion of the project isn’t yet moving forward.

In the most recent version of a complaint proposed by the plaintiffs, their request for an injunction against the project seems to have been scaled back.

The proposed injunction would prevent the Wagners from growing marijuana within 400 feet of either plaintiff’s property, instead of prohibiting them from cultivating it.

Another factor in the litigation is a road easement the Wagners have across the Mahesh property.

The Wagners claim they haven’t unlawfully used the easement as claimed by the plaintiffs, since the easement terms don’t restrict or prohibit farming operations.

The plaintiffs argued the judge could interpret the terms of the easement, much like he would a contract.

In this case, the illegality of marijuana under federal law also affects the easement’s permissible uses, Brown said.

Easement terms can be evaluated based on reasonable expectations and community standards, he said. “The court has the authority to reasonably construe easements.”


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