How to Navigate New Mexico’s Local Cannabis Zoning Laws
By James Nechleba
Sep 20, 2022
For better or worse, New Mexico has front-loaded local communities with the responsibility of determining how and where cannabis businesses can set up shop in their territory. Although the Cannabis Regulation Act (CRA) prohibits localities from outright banning cannabis licensees from their jurisdictions, they can establish zoning rules that regulate the time, place, and manner in which cannabis licensees operate, as well as zoning rules that limit density and operating times. (Found in § 24-2C-12, NMSA.) Additionally, the CRA advises that localities may not create proximity restrictions that require cannabis establishments to be over 300 feet from any school or daycare center.
Unfortunately, there aren’t many details regarding the legal scope of these provisions of the statute. Localities looking for answers from the New Mexico Regulation and Licensing Department’s Cannabis Control Division (CCD) will be disappointed to find that not only has CCD declined to promulgate any administrative rules on this topic, but the agency’s standing policy is to actually defer to the localities for consideration.
There are good reasons for this. First, as a matter of resources and processing, the CCD is not in a position to scour the entire state, confirm the measurement of distances, and verify the establishment of schools or daycares. Second, because localities can generate time/place/manner/density restrictions, this would inevitably saddle CCD with the responsibility of understanding up to 103 municipalities and 33 counties’ local rules and individual interpretations of their local proximity restrictions. This already monumental task is exponentially more complex because many localities don’t have easily accessible ordinances, rules, and meetings. Third (and most importantly), the CRA’s language explicitly indicates that each locality is supposed to determine its proximity restrictions.
With that in mind, however, there are a number of issues cannabusinesses and local governments alike should be conscious of. Primarily, there is no state or agency-specific definition for “school” or “daycare center.” Moreover, there is no direction on how to measure the proximity between locations, whether based upon parcel lot line to parcel lot line, building to building, building to parcel lot line, etc.
In practice, localities are most likely to default to parcel lot line to parcel lot line measurement standards because of how the county map electronic search function works. While there’s no inherent problem with this interpretation if the locality has a specific rule, comparable liquor license proximity setback judicial precedent indicates that proper measurement is based on exactly where the cannabis business activity is taking place and exactly where the school or daycare activity takes place. This is regardless of the building structures or parcel lot line locations. See Santa Fe v. Tomada, 318 P.3d 189 (N.M. App. 2013).
Cannabis businesses and localities should also be mindful that real property owned by a school or daycare doesn’t necessarily mean a school or daycare is on that property. For example, municipal school districts may own land but lease it to other entities. Relevant judicial precedent demands that regardless of ownership, there must be demonstration that school activity occurs on the land 300 hundred feet from a licensed establishment to violate proximity restrictions. See Regents of University of N.M. v. Hughes, 838 P.2d 458 (N.M. 1992).
Hunting for an optimal cannabis business location demands a thorough investigation and understanding of state and local laws, but one should pay the closest attention to local rules. Failing to invest the time and effort to determine the viability of a site can result in the denial of a local business license and the need to resort to administrative litigation with local licensing authorities.
VS has worked on shaping municipal cannabis policies for over a decade, so we understand local land use and zoning issues and know how to navigate them. Our team has also represented numerous cannabis companies in administrative hearings. If your cannabis business needs assistance in understanding local rules, securing a suitable location, or needs representation in negotiations with or appeals to local regulators, don’t hesitate to contact us.