Nuisance or Normal...Is Marijuana ready for Agricultural Status?
House bill 1692 would allow for marijuana grow operations the status of agricultural activities, this would include the growing and production including products of grow operations the legal protections of any other farm production. The argument for this status is framed as a property right. The problem with that argument is that agricultural status recognizes special needs of the property rights of agricultural activities in terms of methods and means of agriculture and not simply on the basis an agricultural product is something that is grown. Agricultural business is protected from the use of nuisance law if the operation is consistent with good practices and was established prior to surrounding non-agricultural uses unless the activity constitutes a substantial adverse effect on public health and safety. Traditional agricultural operators, is this something you want to risk on behalf of marijuana grow operations?
Is zoning the determining factor in allowing a marijuana grow, or is the surrounding present uses of neighboring properties the determining factor in allowing a grow operation to exist in a particular area or on a particular property? Just because marijuana is proclaimed agricultural is it a typical agricultural product? Or is it a product that is far more controversial than an average crop and therefore needful of more consideration and codifying before it can achieve agricultural status? Is this controversial product likely to put at risk traditional agricultural operational protections if it is challenged because of the nuisance factors that exist with marijuana operations that do not exist with traditonal agricultural operations? For example, the smells of marijuana production are described by neighboring property owners as extremely offensive and chemicals that are used in creating marijuana products are not typically used in traditional agriculture products. Most people who would move into a home near agricultural activities are accepting of that activity and all that may go with it. How accepting are people living in agriculturally zoned properties of a new neighbor that is a marijuana grow operation that is allowed after they have been living on that property when the operation is allowed simply because they are zoned agricultural? Realize marijuana grow operations are not typical, long established agricultural activites, they are the newcomers, and if legally allowed have to be somewhere. The question is where is that somewhere? Are there to be parameters in law to make this equitable to all property owners taking into consideration the reality of what marijuana grow operations bring along with them?
The legislature needs to consider if agricultural status is given marijuana simply because zoning allows for agriculture or if other factors should be considered. Neighbors of a 300 acre grow operation may be less likely to be as negatively impacted as the neighbors of a five or ten acre grow operation, though the impact is existent. The neighbors of a small operation would have a disadvantage in applying nuisance law, when it certainly would be more needed. Neighbors of marijuana grow operations experience property devaluation, and the smaller the acreage of the grow, the greater the devaluation of the neighboring properties, they simply are not as wanted in the real estate market because they are situated next to a marijuana grow operation, the facts would bear this out. It is odd that situation is not taken into account when creating legislation.
It is also odd that the legal status of marijuana on a federal basis is not taken into consideration, marijuana would be the only agricultural product that would not be legal outside of Washington State. The importance of this product in terms of economic and trade values is certainly less than that of say apples. The only consumers of the product would be limited to Washington citizens, certainly marijuana could not be exported all over the country and the world as our other fine agricultural products are. Is this circumstance worthy of consideration when considering agricultural status?
Consider, please, that here in the real world, marijuana grow operations present a security risk to neighboring properties that no other agricultural crop carries. It is very likely a marijuana crop would be an operation much more attractive to theft as compared say, to a tomato grow operation.
This is not a question of should people be able to legally use marijuana, this is a question of properly taking into consideration the property rights of all citizens in Washington State when creating legislation regarding growing marijuana in this state for the people in this state that want to use it, not all do. Is this a discussion of who has the most important property right, marijuana grow operations or their neighbors? More consideration of the cause and effect scenarios of marijuana grow operations is needed before legislation is passed make believing such laws as conferring agricultural status on these operations would be a normalization and an end to the problems created by allowing grow operations to exist and function in Washington State. The challenges caused by marijuana grows and the problems of neighboring property owners are what need addressing by the legislature, until then it is a question of property rights and it is a question of reviewing the constitutionally protected property rights of all involved in relation to how legislators consider the rights of all when attempting to pass legislation that regulates where to situate marijuana grow operations. Hundreds of people have contacted CAPR explaining their property rights challenges to us. No marijuana grow operators have contacted us to explain challenges they have faced with their property rights. CAPR suggests you call your legislator and tell them what you think.