Urban Lawyer

Land Use Regulation of Marijuana Cultivation: What Authority Is Left to Local Government

by Martha Harrell Chumbler

Martha Harrell Chumbler, Attorney, Carlton Fields, Tallahassee, Florida ( J.D., Florida State University; B.A., Vanderbilt University).

AS OF MARCH 2017, TWENTY-EIGHT STATES HAVE ADOPTED STATUTES — and, in some instances, constitutional provisions—allowing the cultivation of marijuana for medical use,1 while eight states permit at least limited cultivation of marijuana for adult, nonmedical uses (hereinafter referred to as “recreational use”).2 Three additional states, Missouri, South Carolina, and Texas, allow in- state cultivation of some form of cannabis for medical use.3 While all local governments in the United States have constitutional or statutory authority to regulate land uses within their jurisdictions, most of the existing state marijuana statutes include limits on that authority. This tension between state regulation and local land use regulatory authority differs from state to state. Some state statutes explicitly provide for either broad local authority to regulate marijuana land uses or impose significant constraints on that authority, while others restrict certain local regulatory options while otherwise preserving local authority to regulate land uses. Yet other state statutes are silent on the subject, but implicitly preempt local authority to some extent by imposing statewide land use restrictions.

This article provides an overview of the various approaches taken under current state statutory schemes, as well as the view taken by courts that have been called upon to determine the extent to which local authority is retained.

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