Marijuana Business Magazine May-June 2020

May-June 2020 | mjbizdaily.com 79 Amy Steinfeld Hemp Faces Zoning Challenges Hemp businesses typically face fewer zoning issues than those seeking to open marijuana retail stores, said Amy Steinfeld, an attorney with the Denver law firm Brownstein Hyatt Farber Schreck. That’s because hemp is a legal agricultural crop, while marijuana remains illegal at the federal level, said Steinfeld, who is based in the law firm’s Santa Barbara, California, office. “So, theoretically, you can grow hemp on any land that is zoned for ag,” she said. If only it were that simple. Some California counties have adopted buffer zones for hemp farms, mainly to address odor issues, she said. And, in a situation that did not involve her clients, an ordinance in California’s Ventura County cut hemp production by almost a third for several entrepreneurs because of a new buffer zone rule that wasn’t in place in 2019. The Ventura County Board of Supervisors on Jan. 24 passed an ordinance that prohibits the planting of hemp within a half mile of any residentially zoned land or a school. Before that, there was no buffer zone for hemp, according to Steinfeld. Of the 3,798 acres registered to grow hemp, 1,216 acres, or 32%, would be within the half-mile setback and barred from production. Also, hemp farmers and retail stores alike need to be aware of “overlay” areas placed on top of zoned areas, which can further restrict uses of the land. For example, some overlay zones might restrict the construction of new greenhouses. And some counties say that while hemp farms are allowed on agricultural land, the regulations prohibit processing plants on the property because local officials want those uses on industrial-zoned properties, she said. Other counties, however, believe it makes sense to allow vertically integrated operations on the hemp farms, Steinfeld said. And while not strictly a zoning issue, some counties are looking to limit or place a moratorium on hemp farms, claiming that they require too much water. She expects those rules to be challenged in court. “We’re looking to get data on it, but we’re pretty sure that hemp uses less water than a lot of other crops, like alfalfa and hay,” Steinfeld said. – John Rebchook board members in Maine. She has found they frequently provide incorrect information on marijuana zoning issues. Rather, Snow suggests that entrepreneurs looking to open a marijuana business team up with experienced cannabis attorneys who understand all zoning and related rules. “I spend a lot of time digging through municipal websites and survey maps trying to parse out what the municipality has in place, where properties are situated for zoning purposes and the requirements for getting any required business licenses or use permits,” Snow said. RESTRICTIVE ZONING AN ISSUE Depending on the community and state, zoning and related regulations can be onerous. “Most people getting into the (cannabis) business have no idea how restrictive Maine law allows municipalities to be,” Snow said. A situation that she runs into frequently is that someone finds a property that “seems perfect” for a marijuana store only to discover the community has placed it outside of an area zoned for MJ businesses. Even worse is would-be marijuana operators who spend “significant money” constructing a facility without doing their due diligence on zoning issues, “only to learn that they cannot operate it,” she said. “I have had grown men cry in my office when they learn that they have spent $1 million in a place that will not let them operate,” Snow said. AVOID FILING SUIT In some instances, local zoning and other rules are so restrictive that Snow has had clients who want her to sue municipalities on constitutional grounds. That has happened not just in Maine but in other states such as Missouri. However, Snow said she sees little chance of such lawsuits winning, because marijuana remains illegal at the national level. “The federal courts have been clear that there is no fundamental right to anything having to do with marijuana,” Snow said. Federal, state and municipal authorities are free to restrict every aspect of marijuana, whether it is use, possession, sales or advertising, she pointed out. “I don’t see any legal recourse.” Tammie Snow