Well, that’s dope, or is it? A recent interesting case involving a decision of the Suffield Zoning Board of Appeals (ZBA) had to answer that question in order to determine whether Lasa Extract Company (owned by Crosswalk LLC) was entitled to cultivate and process cannabis on its property at 426 South Grand Street. (Robert Sotil is the sole member of both Crosswalk and Lasa.)
Although growing tobacco or hemp was a non-conforming use of the property under the zoning regulations, the company had lawfully been growing tobacco related produces (and later hemp) on the property under a variance issued by the Suffield Zoning Board of Appeals (ZBA) with hemp being included under the variance per a determination of the Zoning Enforcement Officer (ZEO). (Granting such “variances” under appropriate circumstances is well within the authority of the ZBA, and in fact, one of the reasons for its existence.)
After marijuana was largely legalized, the Town amended its zoning regulations to allow cannabis establishments only at certain locations. In 2022, the company asked the ZEO for a determination that a cannabis cultivator facility would constitute a lawful continuation of its existing permission to cultivate hemp. When the request was denied, the company appealed to the ZBA, and hearings were held in early 2023. The hearing established that hemp and cannabis came from the same plant, and that the law distinguished between the two based on the levels of THC. In fact, when producing hemp, the process apparently temporarily creates cannabis, although the company then used coconut oil to reduce the THC levels, transforming the cannabis back to hemp. By a 4-1 vote the ZBA refused to overrule the ZEO, thereby precluding the company from cultivating cannabis. The company appealed to the Connecticut Superior Court, which ruled on the matter on April 10, 2024.
The court complimented the litigants, indicating that “[e]ach party has presented compelling arguments in support of their respective” positions. The company largely asserted that while the THC levels, while relevant in some matters, did not change the character of the use of the property for zoning purposes. The town asserted that a Connecticut Supreme Court decision finding that a restaurant that had sold only beer as a permitted non-conforming use could not, thereafter sell liquor as a continuation of that permitted non-confirming use. It asserted “common knowledge” that a beer- only establishment is fundamentally different from a restaurant that sells liquor.”
The Superior Court noted that the company was not seeking to engage in the sale of the product, in which case the court noted it would impermissibly be enlarging their nonconforming use. The court then determined that cultivating and processing cannabis on the property by not adding the coconut oil would not change the character of nonconforming use. Therefore, it reversed the decision of the ZBA.
Court papers show that on April 30 the town filed a Petition for Certification of Appeal, asking the Connecticut Appeals Court to review the decision.