Cannabis Growth Not a Protectable Property Interest, Rules Fed. Judge

The Eastern District of Washington published an order Tuesday following a legal claim brought by a cannabis farmer, known as “Grandpa Bud”, that alleged the defendant, Chelan County in Washington State, violated constitutional substantive and procedural due process by implementing a regulation resulting in a discontinuation of plaintiff’s ability to grow cannabis in the county. The court granted summary judgment in favor of the defendant after deciding that the plaintiff possessed no constitutionally protected property interest in the loss of ability to cultivate cannabis on his land.

The plaintiff claimed that the defendant passed Resolution 2017-75, which required, via an amendment to the county code, any “cannabis production…operations” to comply with certain requirements, such as requiring the lot on which the cannabis is produced to be at least 1500 feet away from the property line of any lot in a residential zone, by March 1, 2018, or cease operations. The plaintiff further asserted the cannabis production operation “could not comply with the amendments adopted…due to its location” and ceased operations in 2017. In June of 2019, the plaintiff filed a complaint averring a violation of due process under 42 USC Sec. 1983. Sec. 1983 allows for damages when a person or entity acting “under color of state law” engaged in conduct that proximately caused a violation of rights of the plaintiff “protected by the Constitution or created by a federal statute.”

The court determined that no analysis of a substantive or procedural due process violation proved necessary until the plaintiff first established a valid property interest recognized under federal law or the Constitution. The plaintiff argued that the resolution resulted in a failure of the plaintiff to recoup his investment of “hundreds of thousands of dollars in the…property…through the construction of specialized greenhouses unique to cannabis cultivation” and that consequently the “property cannot reasonably be put to another profitable agricultural use.” Theretofore, the defendant’s conduct allegedly violated the plaintiff’s constitutionally recognized property interest “in its nonconforming land use, which previously conformed with Chelan County’s zoning ordinances.”

The court ultimately disagreed with the plaintiff’s alleged property interest. The court stated that while “[a]n ordinance requiring an immediate cessation of a nonconforming use may be held to be unconstitutional because it brings about a deprivation of property rights out of proportion to the public benefit obtained,” that the resolution provided a 24 month amortization period which, under Washington law, allows the end of a nonconforming use “without depriving a landowner of his property interest in the nonconforming use.”

The court went further to say that, amortization period aside, that the plaintiff’s “alleged property interest in its nonconforming land use cannot easily be distinguished from its production of cannabis,” which is illegal under the federal Controlled Substances Act and “not a protectable property interest under the…Constitution.” As such, the court concluded, “Because Grandpa Bud has failed to show a property interest that is protected by the U.S. Constitution, Grandpa Bud’s federal procedural and substantive due process claims fail as a matter of law.”