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Filippi v. Board of County Commissioners of Torrance County

Court of Appeals of New Mexico

May 22, 2018

LINDA FILIPPI, ADDIE DRAPER, SUSAN OVIATT, and CHARLES OVIATT, Appellants-Respondents,
v.
BOARD OF COUNTY COMMISSIONERS OF TORRANCE COUNTY, NEW MEXICO, Appellee-Petitioner, and JBM LAND & CATTLE, LLC, Intervenor-Petitioner.

          APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY Matthew G. Reynolds, District Judge

          Martin E. Threet & Associates Joseph L. Romero Albuquerque, NM for Appellants-Respondents

          Wallin Huss & Mendez, LLC Dennis K. Wallin Moriarty, NM for Appellee-Petitioner

          Keleher & McLeod, P.A. Thomas C. Bird Albuquerque, NM Hinkle Shanor, LLP Benjamin F. Feuchter Albuquerque, NM for Intervenor-Petitioner

          OPINION

          KIEHNE, JUDGE

         {¶1} The Board of County Commissioners of Torrance County (the Board) determined that JBM Land & Cattle, LLC (JBM) did not need a conditional use permit under Torrance County's zoning ordinance to grow medical cannabis on property it owned in a rural section of the county. Several of JBM's neighbors challenged that decision in the district court, which overturned the Board's decision and held that JBM's proposed use of the property was a "commercial use" for which a conditional use permit was required. This court granted and consolidated the Board's and JBM's petitions to review the district court's order. Concluding that JBM's proposed use of its property was a permissive use under the zoning ordinance, we reverse the district court's order and reinstate the Board's decision.

         BACKGROUND

         {¶2} JBM purchased land in Torrance County for the purpose of growing medical cannabis to harvest and sell in a dispensary outside the county. The land was in a subdivision zoned as a "conservation district" that "protects and preserves areas within the County which are characterized by their limited access, minimal development, limitations on water resources, natural beauty, fragile environment and native wildlife populations." Torrance County, N.M. Zoning Ordinance (Zoning Ordinance), § 8(A) (1990, amended 2008).

         {¶3} The section of the ordinance at issue first sets forth a number of "permissive uses" of land that "are allowed" in a conservation district:

1. Low intensity agricultural operations such as livestock grazing and related ranching activities;...
2. Horse breeding, boarding and training;
3. Other low intensity production agriculture;
4. Cultivation and harvesting of plants and croplands;
5. Woodcutting and other activities related to harvesting trees;
6. Singular residential dwelling unit provided it is in compliance with the requirements of the New Mexico Liquid Waste Disposal Regulations; and
7. Accessory uses and structures necessary to carry out the above-listed ...

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