UPDATED: 2/28 to include definitions of commercial growers from the state law.
The Town of Luther was sued this week by a local company who was denied a zoning variance for its state-approved medical marijuana growing operation.
JAB Corp, located in an annexed portion of Town limits along the northern edge of Town of Luther, was denied a zoning variance in January by the Town Board of Trustees. JAB Corp., sought the variance at the request of the Town, from the land’s current zoning of agricultural to a commercial property.
The lawsuit, filed this week in Oklahoma County District Court, alleges not only is the Town’s medical marijuana ordinance invalid and unenforceable but the Town Board of Trustees was out of line because it should have had its Planning Commission consider the variance, instead of themselves.
JAB is asking the court to find that Luther’s medical marijuana ordinance is invalid and unenforceable, that medical marijuana growing is limited to property zoned as commercial, is unenforceable because it is arbitrary and unreasonable; and JAB is permitted to, and Luther may not prevent JAB from growing medical marijuana on its property, subject to compliance with all state laws and regulations regarding the growing of medical marijuana,” according to the lawsuit.
The lawsuit alleges the Board of Trustees had no power to consider JAB’s request for a zoning variance because it did not have an active planning commission to consider zoning variances. By a vote of 3-to-2, the board denied the variance on January 24, 2019 following a public hearing in which a few neighbors complained.
The lawsuit alleges: “by statute, Oklahoma law provides that a non-charter municipality, such as Luther, has the authority to regulate the use of land, ONLY if the municipality appoints a zoning commission.”
The Town of Luther suspended its planning commission in 2017, and reinstated it earlier this month.
The lawsuit also alleges that “under Luther’s ordinance, property zoned ‘A-1 is to be used for agriculture which includes agriculture, farming, dairying, pasturage, apiculture, horticulture, floriculture, viticulture, and animal and poultry husbandry.'”
JAB Corp states that growing medical marijuana is agriculture and horticulture.
However, here is how state law defines growers, processors and dispensaries as a “commercial establishment.”
The lawsuit asks the Court to find that Luther’s medical marijuana ordinance is invalid and unenforceable; zoning commercially is unenforceable; that Luther may not prevent JAB from proceeding with its business that follows state laws and regulations regarding the growing of medical marijuana.
The lawsuit also asks the court to award any relief it deems appropriate.
According to OMMA, there are currently ten state-approved medical marijuana growing operations in Luther, presumably encompassing space outside of the official town limits.