Cannabis buffer zones challenged again as council allows dispensary near housing

LAS CRUCES – A dispensary with plans open near Tutti Bambini Children's Clothing store – and within an ordinance-established buffer – was given an approving nod by the Las Cruces City council Monday after a group of residents tried to stifle the business.

In a 6-1 vote, the council rejected an appeal seeking to prevent California-based Off The Charts from opening a dispensary at the Main Street, El Paseo Road and Alameda Avenue intersection. The lone voice against the dispensary was Mayor Ken Miyagishima.

"I have to vote for this (appeal)," Miyagishima said. "It's not within the (ordinance's) purview."

The appeal challenged a special use permit (SUP) that allows Off The Chart's dispensary to exist within 300 feet of a residential neighborhood, despite city ordinance.

When the city opened the cannabis marketplace in Las Cruces in 2021, it established buffer zones to separate dispensaries and consumption lounges from schools, daycares and residential areas.

In October 2022, the council narrowly voted against dissolving the buffer zones, which Councilor Becki Graham described Monday as "classist nonsense."

"This, to me, is the kind of classist nonsense that planning and zoning perpetuate," Graham said.

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According to city staff, six other dispensaries have required SUPs to open. SUPs are also commonplace for businesses like golf courses or services like halfway houses.

Karen Wootton, a Las Cruces lawyer, filed the appeal on behalf of a group associated with Tutti Bambini in August 2022, a few weeks after the Planning and Zoning Commission approved the SUP.

The appeal said the SUP process was "constitutionally questionable" because it circumvented state law regarding variances.

However, Wootton did not attend the council meeting on Monday to defend her appeal and explain why she believes the SUP and variance are the same. Wooton also did not respond to a request for comment from the Sun-News before this story was published.

Without a lawyer, three residents argued against the dispensary alone.

Ruben Smith, a former Las Cruces mayor, and Sister Beth Daddio, co-founder of Tutti Bambini's and Jardin de los Niños, argued the dispensary would perpetuate the unwanted presence of intoxicated adults at the children's clothing store. Another resident said he feared the dispensary would increase crime, although he did not present evidence to support the claim.

But in the end, none of the residents presented facts to support the appellant's claim that the SUP violated the state constitution.

It was also unclear why the city's Community Development Department considered the appeal valid and seemed to be acting in the appellant's stead, said Councilor Yvonne Flores. For starters, a lawyer representing Off The Charts told the council he had not received notice of the appeal until several days after the appeal deadline passed.

"Based on everything that (the lawyer) presented, it is moot. We shouldn't be here," Flores said. "So, why are we here?"

Flores posed the question to David Weir, Deputy Director of Community Planning & Improvement, who presented the appeal to the council. Weir said his department did consider the appeal valid because the appeal was submitted to the city on time.

"I'm only following what our standards are and what zoning code outlines," Weir said.

"I think that's fundamentally unfair," Flores said in response. "Laws and ordinances are made to be fair and not accommodate a municipality."

Justin Garcia covers crime, courts and public safety. He can be reached via email at JEGarcia@lcsun-news.com.

This article originally appeared on Las Cruces Sun-News: Cannabis buffer zones challenged again after dispensary sought permit