Baltimore County recently became the first jurisdiction in Maryland to enact comprehensive zoning rules for medical marijuana facilities. Under zoning laws, uses are generally permitted rather than prohibited. That is to say, a business owners may only engage in uses that are specifically permitted in a given zone and a use that is not permitted is, for all intents and purposes, effectively prohibited in the particular zone. This framework can cause issues when a new business use for a parcel is presented. While it may be consistent with other uses, if the relevant authorities had not previously contemplated the likelihood that someone would even desire to engage in that use, it could be not permitted under the relevant zoning laws.
A good example of this can be seen in the rise of craft breweries, which can fit into multiple general uses — from industrial to retail — but which were not permitted in many zoning codes, in many cases simply because no one considered that anyone would want to engage in such a use.
Which brings us back to medical marijuana. In 2014, Maryland became the 21st state to legalize medical marijuana and later this year will begin accepting applications and issuing dispensary licenses. That leads to the question, however, of where these dispensaries may be located. As discussed above, if the local zoning does not allow for them, the fact that the state has legalized them may not matter. For example, a firm client who owns a shopping center recently turned away a potential tenant who wished to operate a dispensary because it was concluded that the local zoning did not include such dispensaries as a permitted use.
That is why Baltimore County’s action on this matter is such a big deal. Medical marijuana and other legalized marijuana sales and distribution promises to be a huge industry. As other Maryland cities and counties turn to this issue, medical marijuana entrepreneurs will have to keep an eye on which will facilitate the growth of industry, and which will say it is not welcome in their neck of the woods.
Have you ever wondered why Annapolis, our state’s fair capital city, does not have any craft breweries? After all, Frederick and Baltimore are home to multiple world class craft beer producers. Well, the answer is both simple and amazing: the zoning codes of the City of Annapolis and Anne Arundel County do not include brewing beer as a permitted use. That means, essentially, there is no building or parcel of land in the entire city or county for which brewing is permitted.
Although, at least as it relates to the County, that may change this year.
This change, if it came, would be thanks in large parts to the efforts of two Maryland brewers — one aspiring and one established — the latter of which who was foreclosed from his first choice of Anne Arundel County and therefore opened his highly successful Jailbreak Brewing (outstanding, by the way) in the more welcoming Howard County instead. Their efforts, and a few receptive local officials, has prompted a proposal to change to the county’s zoning laws to open the door to brewing in the county. As a recent news article indicates, the door is not opening all that wide just yet, but it is a start.
Of course, this serves as an important reminder of how although state laws regarding beer making — be it by production breweries, microbreweries or farm breweries — get a lot of the attention, it is often the minutiae of local zoning ordinances and county alcoholic beverage laws that delineate the ability of people to make, sample, and sell their beer.
This is to provide an update on this story from earlier this year, where we successfully defended a property owner’s right to deny the State Highway Administration’s efforts to gain access to his property for environmental testing, and actually had the statute in question declared unconstitutional. As matters turned out, the State Highway Administration did not appeal this ruling. Some observers argued that SHA had no choice but to appeal, as this statute was essential to their condemnation powers.
Perhaps, however, SHA determined that it would rather lose the ability to gain access to this one piece of property than risk an unfavorable opinion from the appellate courts of Maryland, which would have effectively invalidated the statute for all prospective eminent domain actions throughout the state.
Relatedly, the California Supreme Court is reviewing a lower appeals court’s finding that California’s similar pre-condemnation exploration — or, as the Maryland court called it, “test drive” — statute was also unconstitutional. The parties are currently in the process of submitting their briefs and oral argument likely will be held next year. We certainly will be watching.
On Monday, July 14, a judge of the Montgomery County Circuit Court declared unconstitutional a long-standing law that permits the Maryland State Highway Administration (SHA) to obtain a court order allowing it to enter private property, without the landowner’s consent, and conduct intrusive drilling, soil sampling, and subsurface engineering studies. The law has been on the books for over thirty years and appears to have never before been subject to significant judicial scrutiny.
Sean T. Morris of The Morris Law Firm, LLC, successfully argued the case on behalf of a shopping center owner who objected to SHA’s demand that the landowner allow SHA engineers to drill multiple 50-foot deep holes through the shopping center’s parking lot in an effort to determine if the property is suitable for condemnation to construct a noise barrier along Interstate 270. Upon receiving such objection, SHA’s attorneys sought a court order requiring the shopping center owner to grant such access. The shopping center owner opposed the petition and the matter was set for hearing this past Monday.
During oral argument, the court characterized the relevant provision of the state’s eminent domain law as a “test drive statute” and questioned why the state should be permitted to engage in such actions without providing just compensation for the intrusion as required by the Maryland and United States Constitutions. Ultimately, the court concluded that the state should not be permitted to do so, finding that such actions amounted to a taking, even if it were only a temporary one. The court denied SHA’s petition to enter onto the shopping center property and declared the statute “clearly unconstitutional.”
In reaching its opinion, the court engaged in a detailed review of challenges to similar statutes around the country, many of which have previously been found to be unconstitutional by appellate courts around the nation. One such case appears headed for the California Supreme Court for resolution later this year or next year. Whether this case is similarly destined for Maryland’s appeals courts remains to be seen.
The Maryland Transit Administration has recently begun informing property owners and businesses along the route of the proposed Purple Line that they might have to make plans to move. That is because the state will begin purchasing property along the proposed route as soon as September 2013. For those property owners who will not agree to sell — at the state’s proposed price — the state can condemn the property and take it via the power of eminent domain. Maryland officials have estimated the costs of such property purchases at $200 million.
If you are concerned that your property might be subject to state condemnation to make way for the Purple Line, please contact us so we can review the state’s plans with you.