RI Superior Court Reverses Zoning Board Decision that Licensed Growing of Medical Marijuana Violated Local Zoning Ordinances

The Rhode Island Superior Court recently reversed a South Kingstown Zoning Board decision after the Board erroneously found that a licensed medical marijuana grow operation constituted "agricultural products manufacturing" and was not allowed in the Town's commercial zoning district. Carlson v. Zoning Bd. of Review of S. Kingstown, No. WC-2014-0557, 2016 R.I. Super. LEXIS 134 (R.I. Super. Ct. Nov. 25, 2016). In his decision, Rhode Island Superior Court Judge Bennett Gallo noted that the Zoning Board's decision ignored the plain meaning of the Town's zoning ordinance and constituted "an exercise in tortured reasoning."

According to the facts of the case, the Appellant, Jordan Carlson, maintained a medical marijuana grow operation, licensed under the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, R.I. Gen. Laws § 21-28.6-1, et seq., in a former movie theater located in the Commercial Downtown (CD) zoning district in South Kingstown, Rhode Island. In March 2014, the Town Building and Zoning Official, Jeffrey O'Hara, learned of Carlson's operation after the South Kingstown Police and Fire Departments responded to a fire alarm at the property. As a result, O'Hara sent Carlson a Notice of Violation which provided that the use of the property constituted "Agricultural Products Manufacturing" in violation of Section 301 and Use Code 74.1 of the South Kingstown Code of Zoning Ordinances. Carlson appealed the violation to the South Kingstown Zoning Board of Review, claiming inter alia that the cultivation of marijuana did not constitute Agricultural Products Manufacturing-which the Town Ordinances failed to define-but instead qualified as agricultural activity which are permitted in all zones pursuant to State law.

In September 2014, after a public hearing on the appeal, the Zoning Board issued a written decision denying Carlson's appeal. The Zoning Board's decision relied heavily on statements made by O'Hara, who testified he never actually entered the building and issued the violation based solely on the police reports and the assumption that yielding usable marijuana from cultivated marijuana plants involved a procedure complex enough to constitute manufacturing. Accordingly, the Zoning Board found that the marijuana cultivation constituted Agricultural Products Manufacturing. Carlson subsequently appealed to the Rhode Island Superior Court.

On appeal, Carlson argued that the Zoning Board failed to rely on probative, and substantial evidence in making its determination because it relied heavily on the Building Official's testimony, who never entered the building and simply assumed manufacturing took place. The Zoning Board contended that its decision weighed heavily on the definition of "usable marijuana" under the Medical Marijuana Act, which is defined as "the dried leaves and flowers of the marijuana plant ... but does not include the seeds, stalks and roots...." The Court, however, found the Zoning Board's argument unpersuasive and its interpretation of the definition clearly erroneous.

Looking to the plain meaning of the statute, the Court succinctly held that "[m]anufacturing entails more than simply drying out plants." In its analysis, the Court looked to the plain and ordinary meaning of "manufacturing" and noted another decision where the Superior Court, in Baird Props., LLC v. Town of Coventry, No. KC-2015-0313, 2015 R.I. Super. LEXIS 111 (R.I. Super. Ct. Aug. 31, 2015), recognized a marijuana grow operation to be agricultural in nature. The Court explained that manufacturing occurs when a product "is made or built by a human being (or by a machine)" and is "distinguished from something that is a product of nature," and nothing in the record demonstrated that Carlson engaged in any activity on the property beyond growing marijuana. The Court also rejected the Town's argument that "usable marijuana" as defined by the Medical Marijuana Act was a "manufactured" product because a grower would be required to remove seeds, stalks and roots prior to the marijuana's sale.

For medical marijuana producers, the case provides some guidance on how to avoid zoning issues. Namely, in towns and cities where there is an "agricultural products manufacturing" prohibition, it appears that a grow operation is permissible. Judge Gallo noted that "plant agriculture is permitted in all zones in Rhode Island, pursuant to the Rhode Island Zoning and Enabling Act" R.I.G.L. § 45-24-37, which defines "plant agriculture" as "[t]he growing of plants for food or fiber, to sell or consume." R.I.G.L. § 45-24-31. However, to the extent an operation goes beyond merely growing, drying and sorting the marijuana so that the finished product was "made or built by a human being (or by a machine)" then a producer could face a potential zoning violation.

PLDO will continue to monitor this area of the law as it develops and provide guidance to marijuana cultivators interested in the State's cannabis industry. For more information, please contact PLDO Partner Matthew C. Reeber at 401-824-5100 or [email protected] We welcome your comments, questions and suggestions.

Sources

Baird Props., LLC v. Town of Coventry, No. KC-2015-0313, 2015 R.I. Super. LEXIS 111 (R.I. Super. Ct. Aug. 31, 2015).

Carlson v. Zoning Bd. of Review of S. Kingstown, No. WC-2014-0557, 2016 R.I. Super. LEXIS 134 (R.I. Super. Ct. Nov. 25, 2016).

Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, R.I. Gen. Laws § 21-28.6-1, et seq.

Katie Mulvaney, Judge Ok's Medical Marijuana Grow Operation in Wakefield, Providence J., Nov. 29, 2016.

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