A divided Torrance County Commission voted to appeal a ruling by Judge Matthew Reynolds which concluded that the county’s interpretation of “commercial use” in approving a medical cannabis growing operation was in error.
The county’s planning and zoning department had given the cannabis growing operation the go-ahead more than a year ago.
At that time, planning and zoning director Steve Guetschow had allowed the greenhouse to proceed based on his reading of the county’s subdivision ordinance, which allows low-impact agriculture and farming. Cannabis “is a plant,” he explained at the time.
However, cannabis is a plant fraught with legal issues, not least of which is the fact that it is still considered a controlled substance by the federal government, and is illegal under federal law despite a New Mexico state law allowing it for medical uses.
The county’s planning and zoning department had concluded that because the conservation zone allows low-intensity agriculture, along with “cultivation and harvesting of plants and croplands,” that the use was permitted in that zone.
Neighbors appealed that decision to the county commission, which upheld it this time last year.
Owners of the facility argued that they are legitimate businessmen, and that they had sunk more than $100,000 into the project, saying that it needed to be in operation at the site for a few years to recoup that investment.
The neighbors’ concerns ranged from water use to the timeline.
Linda Filippi, one of the neighboring landowners and one of those who appealed the county’s decision, had argued that because the use is commercial it must have a conditional use permit to operate.
After the county’s decision, a group of people, including Filippi, appealed that decision to district court.
According to the Reynolds decision filed a month ago, the only question to be determined by the appeal was whether the greenhouse needed a permit before greenhouses were built.
And according to that decision, Torrance County’s own findings of fact and conclusions of law answered that question: “Commercial use, as contemplated by Section 8 of the Zoning Ordinance, does not include the production of plants or crops for sale offsite.”
The decision then quotes from the county’s zoning ordinance, saying that “commercial uses will not be allowed except on a case by case basis.”
Citing a case in Santa Fe County, the decision concluded “that the sale of marijuana offsite is a commercial use requiring a permit from the Torrance County Commission.”
Attorney for JBM Land & Cattle, Benjamin Feuchter, would only discuss limited aspects of the case, because he said it is still being litigated.
He said, “We think there are some errors in the judge’s ruling and we’re going to file a motion for rehearing to give him an opportunity to correct those.”
Torrance County Attorney Brandon Huss said the county did vote last week to appeal Judge Reynolds’ ruling, but said the county will likely wait until JBM’s request for rehearing is settled before taking further action.
“The commission looks at that decision like it’s more broad than just one zoning decision,” Huss said. “Judge Reynolds’ decision, if read on its face, could be interpreted as having a pretty big effect on the agricultural areas of the county.”
Huss said he didn’t think the commission is “pro-marijuana,” adding, “Because it’s an agricultural county and because there are a lot of agricultural uses, they felt they didn’t have any choice but to appeal. The commission feels like its hands are sort of tied—it has to represent the agricultural interests of the community.”
Huss also explained that because Judge Reynolds was “acting in appellate capacity, it’s not a normal appeal.”
The original decision to allow the growing operation to go forward was by the planning and zoning director; that decision was then appealed by Linda Filippi to the county commission.
After a lengthy hearing, the county commission upheld the planning and zoning department, and Filippi and others then appealed that decision to district court, where it was ruled on by Reynolds.
That means, Huss said, that the court of appeals “may or may not” hear it.
“The commission is certainly sensitive to the community’s concern for marijuana,” Huss said. “This isn’t about marijuana. They struggled with this issue and tried to put that piece of it aside. If this were sunflowers, nobody would care.”