Growing Marijuana as “Agriculture” on Conservation-Easement Protected Land

March 2, 2015

A small group of residents of the Town of Palisade, Colorado, recently gathered to protest the Board of Trustees’ approval of two zoning ordinances that help pave the way for a couple to lease land in the town to grow medical and possibly retail marijuana. The couple has owned and operated a medical marijuana facility in the town for the past five years and plans to lease the land from a local peach farmer.

The residents objecting to the Board’s decision say it was hastily made without much public discussion or consideration of the ramifications to the town. One noted that Palisades is known for peaches, not pot.

The couple that intends to lease the land is reportedly still in the process of obtaining a conditional-use permit to grow marijuana on the site. State requirements for the growing operation reportedly include an investment in a $35,000 operating system and 24-hour surveillance video that state officials will have access to, storage of all equipment in a structure or an enclosed area, no advertising or identifying signs on the property, and the set-back of the cultivation area at least 50 feet from property lines. The couple reports that the one-acre growing operation will initially be started in greenhouses to help curb residents’ concerns.

The Mesa Land Trust holds a conservation easement on the land at issue. Those opposed to the marijuana growing operation say they do not believe marijuana should be grown on land that is conserved for agricultural uses. Those in favor of the operation say farmers should have the right to do whatever they want on their land.

The Mesa Land Trust has reportedly stated that conservation easements preserve land to be agriculturally productive, “including farming and orchard activities with the choice of crops being in the discretion of the grantor,” and that the land trust does not have the authority to tell landowners which crops they can and cannot grow.

Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law