By Leota Harriman
An appeal of a decision allowing a medical cannabis facility in Torrance County was hours of back-and-forth, ending with no action at a special meeting of the county commission last week.
Planning and zoning director Steve Guetschow had allowed the greenhouses to go forward based on his reading of the county’s subdivision ordinance, which allows low-impact agriculture and farming. Cannabis “is a plant,” he explained during a break in the meeting.
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 despite a New Mexico state law allowing it for medical uses.
A group of nearby landowners appealed Guetschow’s decision in a quasi-judicial proceeding last week in which each side called witnesses and could cross-examine each other’s assertions. Any decision made there can be appealed to district court.
The owners of the facility say they are legitimate businessmen, and that Natural Rx has sunk more than $100,000 into the project so far, and needs 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.
The property in question is in a Conservation District, which according to the county’s subdivision ordinance “protects and preserves areas within the County which are characterized by their limited access, minimal development, limitations on water resources, natural beauty, fragile environment and native wildlife populations.”
Among “permissive uses,” meaning that a landowner does not need permission from the county, are livestock grazing and ranching, horse breeding and boarding, woodcutting and harvesting trees, and “cultivation and harvesting of plants and croplands.” Because of that language, the planning and zoning department concluded that no application was needed for the growing operation.
The neighbors want the growing operation, which consists of five hoop houses, not on permanent foundations, shut down.
Pat Lincoln is a former member of the county’s planning and zoning commission, and resides in the conservation district. She spoke against the greenhouses, saying she thought county staff had made a “significant misinterpretation” of the county ordinance.
She also said allowing the cannabis operation is in “conflict with federal and state laws,” and added that the use is commercial and must be approved on a case-by-case basis.
Linda Filippi, one of the neighboring landowners and one of those who appealed the county’s decision, said that because the use is commercial it must have a conditional use permit to operate.
The ordinance has a list of thing requiring a conditional use permit, including things like horseback riding stables, a dude ranch or outfitters, but does not specifically call for a conditional use permit for any commercial enterprise.
Filippi said neighbors are concerned about “potential adverse effects” including water use, public risk, financial risk, and the right of community members to give their input.
The property includes a domestic well, in use at a mobile home on the property. To use it for watering the greenhouses would require a change in the use of the water by the State Engineer.
Mountainair Mayor Chester Riley testified that the business had approached him about purchasing water from the town. “I’m going to save the water for domestic use,” he said, adding that there is no water currently being purchased from Mountainair for the growing operation.
Water is being purchased from a private individual in Valencia County, said Natural Rx’s attorney, Benjamin Feuchter.
Filippi said the facility poses a public risk because of the possibility of break-in to the property and the use of pesticides in the growing operation.
Feuchter said the greenhouses have a security system featuring many cameras and staff onsite at all times. One of the business owners said that growing standards for medical cannabis allow no pesticides.
Ron Hendricks, superintendent of the Mountainair School District, said the cannabis operation “sends a double message to young people,” adding, “We as adults need to get our message clear and our laws in alignment” with that message.
Another complaint by Filippi is that gross receipts tax revenues for the greenhouses would not come back to Torrance County.
The dispensary where the medical cannabis would be sold is outside the county. “Nothing is given back and it has already cost us a great deal,” Filippi said.
Lenora Romero, who described herself as a farmer’s daughter and heir to the Manzano Land Grant said the growing operation was “like a thief in the night, coming to steal from us.” She vehemently opposed the medical marijuana operation.
“To be frank, a lot [of what I’ve heard today] is based on misinformation, based on fear, and unfounded,” Feuchter said. He said that the New Mexico legislature allows medical marijuana facilities, and pointed to the county’s ordinance,which allows cultivation of plants as a permissive use.
“Mr. Guetschow’s interpretation was unilaterally correct,” he said, adding that the ordinance does not speak to what a commercial use of the property is.
“This is an ordinance that allows you to have cattle, run horses and cut trees,” Feuchter said. “All those uses are inherently more intense and invasive than growing plants in a greenhouse.”
On water use, he said opponents offered “a lot of speculation and innuendo.” He said law enforcement has never been called to the property.
Feuchter also said the use of the property isn’t commercial because sales would take place elsewhere.
One of the owners, Brian Sullivan, said, “Come 2017 we’re going to be gone,” after recouping “hundreds of thousands invested.”
Filippi asserted that legal issues regarding the interplay between county, state and federal laws on growing medical cannabis have “not been worked out at the federal and state level.” Feuchter disagreed with this assertion, saying that it has been worked out at the state level.
She said the challenge to the county’s decision is not because “we want to shut them down,” but because “we want to preserve the integrity of our community and our lands.”
After reconvening from an executive session, the county commission took no action, but continued the executive session until the next county commission meeting Aug. 12.
Commission chair LeRoy Candelaria said he hopes the parties will take the opportunity to talk with each other to see if the disagreement can be resolved.
