With increasing frequency, clients are coming to us with land use and zoning issues that end up in litigation with their local governments. The ability of our clients to comply with local laws is difficult in local jurisdictions that either ban cannabis businesses or that keep revisiting and changing their marijuana laws.
One of the toughest situations our cannabis litigation lawyers face is when a city or a county enacts a new ordinance that prohibits our client’s cannabis business in its existing location after our client invested substantial time and money locating in a spot that’s now been declared off limits. Though there are countless land use litigation issues relating to the cannabis industry, this post focuses on the one issue we most frequently face on behalf of our clients: non-conforming uses.
A non-conforming use is a use of real property allowed at the time it was lawfully established, but which is no longer permitted because of a change in zoning laws. Because state law does not regulate non-conforming uses, local governments have a great deal of discretion on how they deal with the issue.
If a local government enacts a zoning ordinance that renders a previously permitted use non-conforming, it does not mean that the non-conforming use is automatically prohibited in the zone. In Rhod-A-Zalea v. Snohomish County, the state supreme court explained that,
[t]he theory of the zoning ordinance is that the nonconforming use is detrimental to some of those public interests (health, safety, morals or welfare) which justify the invoking of the police power. Although found to be detrimental to important public interests, nonconforming uses are allowed to continue based on the belief that it would be unfair and perhaps unconstitutional to require an immediate cessation of a nonconforming use.
Essentially, the non-conforming use can continue if it was properly established before any zoning changes. The key here is that the business has to have been lawfully established before there were changes in the law that made the business a non-conforming use. Some states have similar laws, but others require there to have been “substantial development” on the property for this rule to apply.
“Lawful establishment” is particularly critical if, for example, you have to obtain a building permit for your marijuana business. State law dictates that if, prior to any change of zoning or institution of a marijuana moratorium, you submit to your local government “a valid and fully complete building permit application for a structure that is permitted under the zoning or other land use control ordinances in effect on the date of the application,” your rights to continue your build-out and to operate your business “vest” on the date of that submission.
There are also catches to protecting your business’s non-conforming use status as that status doesn’t last forever. The non-conforming use is still subject to reasonable regulations of the municipality (like additional permitting and fees). Localities also typically prohibit any expansion of non-conforming uses and such uses can be terminated if they are discontinued for a period of time as controlled by local laws. Zoning ordinances may also provide for the termination of non-conforming uses by “reasonable amortization” provisions that allow for the continued operation of the use for a period of time deemed sufficient to recover the investment in the use.
The guiding line with any land use compliance or dispute is going to be the governing local code–each city and county may handle non-conforming uses differently. If your business is running into land use or zoning issues with your local government, that’s going to be the first place to start to determine your rights. So, be sure to read your city or county code carefully and be sure to prepare accordingly as local governments continue to change how they regulate marijuana businesses in states with legalized cannabis.