Monday, January 4, 2016
Donald Kochan (Chapman) has posted Incumbent Landscapes, Disruptive Uses: Perspectives on Marijuana-Related Land Use Control (Journal of Property Law) on SSRN. Here's the abstract:
The story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.
This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple with the fact that many jurisdictions are embracing a type of “legality innovation” regarding marijuana. I define “legality innovation” as that effect which begins with the change in law that leads to the development of the lawful relevance of, lawful business regarding, and legal use for a newly-legal product, the successful deployment of which depends on the relative acceptance of the general public which must provide a venue for its operations along with the relative change in the consuming public’s attitudes as a result of the introduction of legality.
Marijuana-related land uses are and will be controversial. Regulatory responses, neighborhood disputes, permit battles, and opposition coalitions are all predictable both as a matter of logical analysis in light of legal standards but also, very importantly, due to the lessons of history with similarly-situated, precursor land uses like liquor stores, adult entertainment, bars, nightclubs, massage parlors, and the like leading the way. The Article also discusses the role of incumbent interests groups in shaping the new marijuana-related regulatory structure, including revealing Baptist and bootlegger coalitions that exist to oppose relaxation of marijuana laws and thwart land use successes of the marijuana industry in order to maintain their incumbent value or profit position. Finally, the Article engages with the growing literature in the social sciences on place and space, examining how the spaces and places we inhabit and in which we conduct our business and social affairs are necessarily impacted whenever legality innovations like we are seeing with marijuana work to disrupt the incumbent landscape.