Pot dispensary’s appeal snuffed out by Chesterfield zoning board

Green Leaf seeks to open a dispensary in a former T-Mobile store near Chesterfield Towne Center.

The region’s only legal medical marijuana provider has struck out yet again in its effort to open shop in Chesterfield.

Green Leaf Medical on Wednesday lost its appeal of the county’s prior decision to reject a building permit for a Midlothian dispensary.

The county’s Board of Zoning Appeals voted to uphold staff’s rejection of the permit for the company’s planned gLeaf-branded store at 11601 Midlothian Turnpike in a former T-Mobile store near Chesterfield Towne Center.

Chesterfield first rejected Green Leaf’s permit request in early August, citing marijuana’s status as an illegal substance on the federal level as the reason why it was denied.

The latest unanimous decision has stymied Green Leaf from moving forward with the dispensary for the time being. After Wednesday’s vote, Green Leaf’s attorney Greg Habeeb of Gentry Locke didn’t say definitively what the company’s next move would be but said further legal action is an option.

Greg Habeeb

“You could appeal to the Circuit Court, you could go all the way to the Supreme Court if you want to. The law allows Green Leaf to appeal,” Habeeb said.

The crux of Chesterfield’s argument was that since marijuana is an illegal substance in the eyes of the federal government, the county isn’t able to provide a building permit for a dispensary.

That’s despite other localities across Virginia allowing the handful of state-licensed medical marijuana providers to open retail locations. Green Leaf, as the provider for the Richmond region, has already opened a shop each in Henrico County and Richmond, and has another in the works in Colonial Heights.

The question of how Chesterfield should follow state and federal law regarding marijuana as well as the extent of its own zoning powers were the focus of the dueling arguments made during the appeal hearing on Wednesday.

“Because marijuana is illegal under federal law, the county cannot approve Green Leaf’s cannabis dispensing facility,” Deputy County Attorney David “Rob” Robinson said during the meeting.

Habeeb argued that the federal government has recently moved to back off on cannabis enforcement. He noted among other recent moves that earlier this year Attorney General Merrick Garland said the Department of Justice wouldn’t prioritize prosecution of marijuana users.

“While cannabis remains scheduled (illegal), the federal government has taken numerous steps, in fact affirmative steps,” Habeeb told the board. “They’re not just saying we’re not going to enforce it, they’re passing provisions to block enforcement in states like Virginia where we have a regulatory framework.”

Recreational marijuana is legal to possess, grow and consume in Virginia, though it’s currently illegal to sell it for recreational purposes. Legislation to kick off retail recreational sales failed to become law earlier this year.

In Virginia’s legal medical cannabis program, select companies like Green Leaf are able to grow marijuana and sell it to registered patients. In addition to cultivation facilities, the companies are allowed to operate up to five satellite dispensaries within defined territories.

Rob Robinson

In response to any conflict between the county’s decision and state law, Robinson said Chesterfield’s zoning ordinance follows the most restrictive law to guide a decision.

“The more restrictive regulations, or those that impose higher standards shall govern.” he said. “Federal crime is certainly the more restrictive regulation.”

Local governments have wide latitude to determine their land-use policies, including the prohibition of uses, Robinson said. He noted that the General Assembly has previously enacted restrictions on what falls outside a locality’s zoning purview but said the legislature hasn’t yet made specific rules about cannabis-related land uses.

“You’re not going to see any similar restriction regarding cannabis (in state law). The General Assembly knows how to tell local governments to stay away, and it has not done so in this case,” Robinson said.

Habeeb agreed that local governments have broad zoning powers but argued that Chesterfield doesn’t have the ability to restrict Green Leaf’s ability to make use of the operational permissions the state has allowed it.

“It would be a totally reasonable use of zoning power to determine where a cannabis dispensary can go in your jurisdiction. But it is a totally unreasonable use of zoning power to say it cannot go in your jurisdiction,” Habeeb said. “Under Virginia law, we’re entitled to five (satellite) dispensaries; that’s the deal we have with the state. That’s what we competed to get. That’s what we paid for. And now Chesterfield, as a political subdivision of the state, is saying ‘we’re going to take away your right to use your state permit.’”

Habeeb noted there are a number of medical cannabis dispensaries in the Richmond region and elsewhere in the state that are open or slated to open. He suggested that local political leaders were ideologically opposed to the idea of a marijuana dispensary within the county.

Robinson denied that politics were in play in county staff’s determination regarding the permit.

“I can assure you it’s not based in politics. The county attorney’s office applies the law as we understand it to be. The politics are irrelevant to a case like this and I have no idea what the politicians think about these issues,” Robinson said.

Green Leaf had planned to open its Chesterfield dispensary this year.

The company has its primary Virginia operations in Manchester, where it grows, processes and sells marijuana and marijuana products to certified medical patients at 2804 Decatur St. It opened in 2020.