While the County Council wrestles over whether – or what – rules should apply to marijuana cultivation, the county hearing examiner drew a line in the regulatory sand Dec. 10, sending a determination of non-significance back for another round of review and revoking a building permit for a marijuana grow operation on San Juan Island’s west side.

In a first-ever ruling of its kind in San Juan County, Hearing Examiner Phil Obrechts determined county planners lacked sufficient information to assess whether odor from the farm and noise from an array of greenhouse fans, 54 at full build-out, would have undue impact on surrounding properties or whether the spill-over from the marijuana operation required mitigation measures, or not.

As part of a 68-page ruling, Obrechts said the county erred in determining that the marijuana production would have no significant impact. He also noted that the county erred by giving the Fieldstone Road grow-operation too much deference under local “right to farm” provisions. He said the full weight of state environmental rules should apply on impacts created by the newly established industry, such as noise, odor or use of pesticides.

“In this case it is not yet known whether all reasonable measures have been taken to control odor,” The ruling states. “It is also unclear whether the noise generated by this facility will exceed the [Department of Ecology] standards.”

The ruling stands as yet another legal hurdle faced by Sweet Water Farm’s Jenny Rice and brother David, owner and operator of San Juan Sun Grown. Neighbors are attempting to block their use of a shared, private road as part of a lawsuit filed in early October in San Juan County Superior Court. The county council is also weighing whether to impose a six-month moratorium on acceptance of pot production-related permits to allow time for possible creation of rules targeted specifically for impacts of marijuana cultivation. The council will conduct public workshops on the topic Jan. 12 and Jan. 26.

In his ruling, Obrechts sided with neighboring property owners of the west side marijuana farm that contested the county- approved determination of non-significance, or DNS.

Whether remand of the DNS or revoke of a building permit undermines production at San Juan Sun Grown remains to be seen. One of three local marijuana cultivation facilities approved for production by the Washington State Liquor Control Board, it operates under a state license that requires compliance with land-use regulations of the local jurisdiction, city, town or county, in which it’s located.

Sweet Water Farm attorney Carla Higginson said the permit revoked by the hearing examiner applies to a single “Texmo” building on the farm. Permits are not required for the greenhouses where marijuana is produced under local regulations, she said. Higginson maintains that noise and odor concerns identified by the hearing examiner can be addressed and remedied. She said David Rice has offered to install equipment that would muffle the fans and reduce odor from Sun Grown. Still, she believes the power to revoke a permit rests solely with the county building official, and that the hearing examiner may have overstepped his authority by doing so.

“We know the prosecuting attorney is looking into that,” she said. “And we’re looking into to it, too.”