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Legal marijuana is coming, but the county has flexibility on zoning, retail sales

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Indoor Cannabis Facility Temperature

Most commercial marijuana agriculture takes place in large, indoor growing facilities, county officials told supervisors during a May 13 work session.

Possession of marijuana will be legal in Virginia starting July 1, and retail sales and commercial cultivation will be legalized in 2024. There are certain facts that will be true in all Virginia jurisdictions; adults 21 and older possessing up to an ounce will be legal, for instance, and households may grow up to four plants for personal use. But the law passed this year by the General Assembly allows localities some flexibility, county officials told Fauquier supervisors this month.

Most notably, the governing board of a county or city may vote to hold a public referendum on whether to prohibit retail sales of marijuana within its jurisdiction. The county also has some ability to regulate where industrial growing or processing sites could go. At a May 13 work session, supervisors were hesitant to comment in detail about the possible implications of marijuana legalization for the county, emphasizing there is time to consider the consequences before the law takes full effect in 2024.

The state law allows for localities to hold a referendum as early as next year on whether to prohibit retail sales. “The referendum would not ban all marijuana in the county, so it does not apply to growers and processors. It would only apply to retail sales,” County Attorney Tracy Gallehr explained.

Supervisor Holder Trumbo (Scott District) was the only board member to address the topic at the work session. He was noncommittal. “The referendum question, for me, will come from the voters. If enough people show up and ask us for it then we would do it, in my opinion.”

If voters choose to ban retail sales, another referendum could be held to revisit the question after four years. But, as Gallehr explained, “If the voters vote down the ban, you’re never eligible to do another referendum and try to seek to abolish retail establishments.” If retail sales are allowed to go ahead, supervisors could impose a local tax of 3% on marijuana sales in the county, on top of the 21% sales tax the state will impose.

On the growing and processing side, Gallehr and Chief of Zoning & Development Services Amy Rogers emphasized Fauquier is unlikely to be inundated by commercial marijuana producers. The state will issue a fixed number of commercial growing licenses for the entirety of Virginia, limiting their number. “I don’t anticipate everyone farming [in Fauquier County] is going to be turning into a marijuana farm under the legislation,” said Rogers.

But while the county can’t require a special exception or a special permit for an agricultural activity – including growing marijuana -- in an agriculturally zoned district, supervisors could develop standards these facilities must meet, Gallehr said, like setbacks from roads, schools and businesses and other requirements that apply to the property such as the amount of artificial light emitted at night. (Security is a particular priority for commercial marijuana growers, Gallehr said.)

Rogers added the county could create zoning standards for retail businesses selling marijuana. “We don’t want any marijuana retail stores in a 7-11, possibly.”

Establishing standards for commercial growers might be especially important, Gallehr added, since marijuana “farms” are often large, indoor facilities. “Some of these agricultural facilities are substantial improvements,” Gallehr said. “Often they are not backyard farms or even a Marriott Ranch level farm, but they are more like a data center or greenhouse facility that looks more like a data center: an entirely closed grow facility that needs a high amount of water usage and electricity usage.”

Rogers said the board could be creative. One town in Colorado, for instance, created a special zoning district specifically for cannabis production. “We kind of have open doors right now; we have time to get it done because we really have a year or two before everything gets rolling,” she said.

Cedar Run District Supervisor Rick Gerhardt said he expects his district to be the focus of potential commercial growing sites, as it covers the agricultural flatlands of southeastern Fauquier County that are traversed by major power transmission lines. Commercial growing facilities “require a ton of power, and you know where that’s going to sit in Fauquier County, because there’s only a ton of power on a certain line,” he said. He has expressed interest in requiring setbacks and security standards for these facilities.

Board Chairman Chris Granger (Center District) pointed out it is already legal to grow hemp in Fauquier County on land zoned for agriculture. (Hemp, which has a wide variety of industrial uses, is the same species of plant as cannabis but generally has lower levels of THC, the main psychoactive element in recreational marijuana.)

“From a growing/agricultural standpoint, we allow commercial greenhouses on ag land, and you can grow hemp right now,” Granger said. “So … from a growing standpoint, it’s really not that much different than hemp, except for the security piece.”

Gallehr suggested supervisors explore whether to extend the same land-use tax credits to marijuana production facilities that are currently available to other types of agricultural producers in the county. “These large scale [marijuana] agricultural operations: Are they going to qualify for land-use taxation? You may not realize some of the economic boon that such a facility may provide,” she said.

Reach Coy Ferrell at cferrell@fauquier.com

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