Pot greenhouse shot down by judge

A judge agreed with neighbors about the legality of allowing a medical cannabis growing operation to be built in Torrance County—reversing the county’s decision to allow a greenhouse to go forward about a year ago.

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 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 for low-intensity agriculture, along with “cultivation and harvesting of plants and croplands,” that the use was permissive.

Neighbors appealed that decision, which was upheld by the county commission this time last year.

Owners of the facility argued that they are legitimate businessmen, and that Natural Rx has 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, 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 the decision to district court.

According to a decision in the case filed last week, the only question to be determined by the appeal was whether the greenhouse needed a permit before greenhouses were built.

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 says, “Following the precedent of San Pedro Neighborhood Ass’n, this court determines that as a matter of law under de novo review that the sale of marijuana offsite is a commercial use requiring a permit from the Torrance County Commission.

The decision concludes, “The Torrance County Commission did not have the authority to allow the greenhouses to be built without going through the permit process. The Commission did not follow the law in its interpretation of commercial use being restricted to onsite sales. Accordingly, the decision of the County Commission is reversed and set aside.”