Posted by: Patricia Salkin | August 15, 2018

NM Appeals Court Finds Marijuana Cultivation Was a Permissible Use and Did Not Require Conditional Use Approval

This post was authored by Amy Lavine, Esq.

The Court of Appeals of New Mexico held in May that the cultivation of medical cannabis was the cultivation of plants or crops, and as an agricultural use it was permitted as of right in a conservation district and did not require conditional use approval. Filippi v. Board of County Commissioners of Torrance County, 2018 N.M. App. LEXIS 28, 2018 WL 2328075 (5/22/18).

The property at issue was located in a “conservation district” and had been purchased for the purpose of growing and harvesting medical marijuana that would be sold at a dispensary located outside the county. The relevant zoning ordinance provided that the “cultivation and harvesting of plants and croplands” was a permissive use, but another section of the ordinance provided that “commercial uses” were only permissible on a case-by-case basis. When the property owner sought an opinion from the Torrance County Zoning Officer as to whether it would need a conditional use permit, the zoning officer determined that growing medical marijuana was a permissible cultivation use, not a commercial use requiring a conditional use permit. Several neighboring property owners then sought review of this determination, claiming that the use was in fact commercial in nature, but the zoning board denied the neighbors’ appeal on the basis that “[c]ommercial use, as contemplated by Section 8 of the Zoning Ordinance, does not include the production of plants and crops for sale offsite.” On further appeal, however, the district court reversed, finding that “[w]hen permissive uses are commercial in nature and require building any structures, the owner of the property must apply to the Planning and Zoning Board for a permit.” The New Mexico Court of Appeals then reversed again and affirmed the decision of the zoning board that marijuana cultivation was a permissible use without any need for conditional use approval.

Regarding the merits, the Court of Appeals noted as a first point that the ordinance specifically allowed accessory uses and structures for permissive uses located in the conservation district. This provision conflicted with the district court’s conclusion that a conditional use permit was needed for permissive uses that were commercial in nature and required the construction of any buildings or structures. The zoning board’s decision, on the other hand, was consistent with the ordinance’s accessory use provisions, and the court accordingly found that it should have been affirmed.

Next, although the Court of Appeals found that the district court properly applied a de novo standard of review, it concluded that the district court adopted an erroneous interpretation of the ordinance’s “commercial use” provision. The district court had relied on an earlier case, San Pedro Neighborhood Ass’n, in reaching its determination that marijuana cultivation should be classified as a “commercial use,” but the Court of Appeals found that San Pedro Neighborhood Ass’n was distinguishable because it involved a residential zoning ordinance that entirely prohibited commercial uses except home occupations. While the court in that case had simply applied a plain meaning definition of “commercial” in ruling that stockpiling gravel was a prohibited use, the decision did not “establish a definition of the term “commercial use” that would apply to every zoning ordinance enacted by every county in the state.” The court explained further that San Pedro Neighborhood Ass’n didn’t address situations such as this case where applying the plain meaning of the term “commercial” could render other provisions of the ordinance ineffective. In particular, the ordinance at issue here included a variety of permissible uses that appeared to be commercial in nature, such as horse breeding and woodcutting, and the court found that this suggested that the term “commercial use” was intended to have a more limited scope. The court also noted that this interpretation gave effect to all of the sections of the zoning ordinance, and was more harmonious than the district court’s more restrictive reading of the “commercial use” provision.

Filippi v. Board of County Commissioners of Torrance County, 2018 WL 2328075 (5/22/18).

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