An Essex Junction resident who recently lost his ducks to new city zoning regulations is now fighting to hold on to his cannabis cultivation operation.

“I’ve been growing cannabis for 20 years. This has never been an issue,” said Jason Struthers, 48, at his half-acre backyard Tuesday where rows of bright green cannabis plants, heavy with flower, glistened in the bright sunlight.

It’s harvest season and he has been hard at work for more than 10 days. Most of the plants near him were about 5 feet tall, but they’ve been trimmed. Some of them grew to be 14 feet high this year, he said, pointing up to a trellis framing the blue sky. There was an odor but it was not noticeable from the street or outside the tall fence that shades the backyard from public view.

But, if the city gets its way, this may be the last crop of the Struthers strain — a sativa-dominant hybrid that he spent 10 years perfecting and said is good for doing work and being creative during the day.

Since neighbors complained about smells and noise from his ducks and weed, Struthers has been embroiled in a yearslong battle that has led to yelling matches, police visits, lawsuits, appeals, letters to legislators and contentious public hearings.

Struthers’ farm is located in a section of Essex Junction that is zoned for residential use. At the heart of the dispute is his right to farm versus the city’s fairly new zoning rules.

The conflict began in 2023, when the city’s development review board voted to prohibit Struthers from having ducks in an area designated as Residential-1. Struthers appealed, lost, and sold his ducks two months ago.

On May 30, the Vermont Supreme Court reversed a lower court’s decision and a yearslong practice, with justices reasoning that municipalities in Vermont can regulate both cannabis cultivation and farming practices by enforcing local zoning laws.

On July 14, Christopher Yuen, the city’s administrative officer, issued Struthers a notice of violation because “agriculture was defined and was not permitted in the R1 district,” and because some of his cannabis plants are within the town-required 50 feet setback.

And last month, the city’s Development Review Board voted unanimously in line with the courts to prevent agricultural cannabis cultivation in residential neighborhoods.

Struthers began growing outdoor cannabis on his property at 8 Taft St. in July 2022. He received his cultivator’s license from the state on July 29, 2022. On May 4, 2023, he received his farm designation from the Vermont Agency of Agriculture, Food and Markets, according to town documents.

Vermont legalized marijuana in July 2008. In July 2022, cannabis cultivation was not a defined use in the new city’s development code. However, agriculture was defined and was not permitted within the Residential-1 zoning district per the city’s land development code amended in February. Struthers’ growing is categorized as agriculture.

Struthers says he has been cultivating outdoors for three years with state approval. His state-issued license predates Essex Junction passing a charter change to become a city in 2021. So he claims the use is grandfathered.

The city’s review board determined on Sept. 22 that the use is not grandfathered because it was never compliant with zoning regulations to begin with.

Between the complaints and the appeals, Struthers feels the city is discriminating against him due to the stigma surrounding cannabis, even though he is licensed by the state.

“I’m not trying to be a nuisance to anybody, but at the same time I followed the law to the letter,” he said. 

City Manager Regina Mahony wrote in an email Wednesday that the city “has an obligation to uphold the land use regulations in a way that is consistent with state statute and judicial interpretation.”

Struthers contends none of his neighbors, despite voicing opposition in local meetings or filing letters, has stopped by to talk about their problem, whether it’s the smell or the proximity or just the idea of growing weed. “There was never a discussion. Not once,” he said.

While residents have voiced concerns over the years about the operation being too close to, or less than a mile from, Essex High School, administrators from the Essex Westford School District said this week they have not received any complaints.

The case has become a touchstone for cannabis  growers and agriculture statewide, highlighting issues of state versus local authority and legal ambiguities that could set precedence for the future of farming in the Green Mountain state.

Where previously lower courts ruled that the city could not regulate Struthers’ duck raising and cannabis cultivation operations since they’re exempt from municipal bylaw under Vermont’s Required Agricultural Practices Rule and state law, the May Supreme Court decision has reversed that.

Now that he’s lost the appeal in Essex Junction, Struthers, who currently holds a state-issued Tier 1 outdoor cultivator license and a Tier 1 manufacturing license, said he plans to challenge the board’s decision in court within the 30-day appeal period underway. If he loses, he loses his livelihood.

“It’s a bummer I lost the ducks, but if I got to choose one to keep, that’s gonna be the cannabis,” he said this week.

Like Struthers, cannabis and agriculture entities in Vermont are also wrestling with new and changing rules governing the highly regulated cannabis industry. Some claim Vermont’s adult-use cannabis marketplace does not adequately support small growers and manufacturers.

“I think this is a good case of where this question of scale-appropriate regulation and who’s regulating what really has come to the fore in Vermont,” said Graham Unangst-Rufenacht, policy director at Rural Vermont, a grassroots member-based organization that advocates to improve equity in food and agriculture systems.

He visited Struthers’ farm last harvest season and said he didn’t find any issues with the operation in the suburban neighborhood. 

He has also come up against the “reality of the stigma around cannabis” in the Statehouse. “It’s a bipartisan issue and I think we see that play out a little bit in Jason’s case,” he said.

In January 2024, two state representatives from Essex Junction introduced a bill, H.549, to prohibit outdoor cannabis cultivation in densely populated areas that are served by municipal water and sewer and have 500 or more persons per square mile — a bill that, if it returns next session and passes, could effectively end Struthers’ operation.

Rep. Karen Dolan, D-Essex Junction, declined to comment while Struthers’ case “continues to unfold.”

Rep. Lori Houghton, D-Essex Junction, did not respond to a request for comment. At the time, she insisted it was not “an anti-cannabis bill,” but one that was asking the state to consider density when issuing outdoor cultivator licenses.

Historically, the state has regulated cannabis and farming. But the Supreme Court decision sets a new precedent. Justices reasoned that towns and cities in Vermont can regulate both cannabis cultivation and farming practices by enforcing local zoning laws. They also clarified state law “does not prohibit all municipal regulation of farming.” 

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The ruling has dramatically shifted things from an agricultural perspective, according to  Unangst-Rufenacht. “In a sense, cannabis was a little bit of a canary in the coal mine, I think, for changes related to broader agriculture,” he said.

Geoffrey Pizzutillo, executive director of the Vermont Growers Association, said the ruling unnecessarily poses a threat to farming statewide and that the case extends beyond cannabis cultivators. After all, the states’ municipal zoning statute is not narrowly defined for cannabis but applies to all farming activities.

On its face, the Vermont Supreme Court decision seems to be a solution in search of a problem, detractors say. “It amounts to a disruption of a core tenet of Vermont as a right-to-farm state. That is significant,” Pizzutillo said. 

Specific to Struthers’ case, Pizzutillo said, “It is challenging to see how that situation in Essex is anything other than discriminatory.”

Meanwhile, Rural Vermont and other organizations put out a call last month for stories and signatures to “demonstrate the importance of the farming exemptions from Municipal Zoning and Act 250 for the working lands community.”

“The court’s ruling will impact the Vermont farm community at a time when farmers are already grappling with many emergent challenges, including flooding and other impacts of a changing climate, lack of federal funding, and widespread inflation,” the Sept. 2 letter reads. 

“Opening the door for municipal regulation of farms contradicts the longstanding policies, culture, and precedent that has protected Vermonter’s right to farm on the land they have access to, hindering Vermont’s ability to produce its own food, and by extension compromising the state’s food security,” according to the letter.

James Pepper, chair of the state Cannabis Control Board, said the board typically doesn’t take a position on the efficacy of policy decisions. The intent of the original legislation created in 2020 was to find creative ways to get cannabis cultivators out of densely packed residential neighborhoods, he said, taking into consideration factors like municipal wastewater.

The cannabis board has encouraged the Legislature to very intentionally not have zoning apply to outdoor cannabis cultivators, Pepper said, because the whole point of legalization was to encourage former and legacy growers to join the regulated market.

 In a January report, the board outlined the potential impacts of the municipal setback authority that precipitated this dispute.

If municipal zoning is too restrictive, it could  “paint entire swaths of a town out of cultivation,” he said. In Pepper’s view, Struthers’ situation was inevitable. “Someone was going to have a farm where the odors were going to impact their neighbors,” he said.

And equity in cannabis cultivation has been much talked about in Vermont. In January, the cannabis board submitted a legislative report on equity that recommends implementing direct sales for small producers. As of now, cultivators are only allowed to sell directly to retailers.

Although Struthers has been growing hemp – and more recently, cannabis – for two decades on his property, the town sees the operation as an unallowed use per Essex Junction’s new land regulations. 

The state issued Struthers his license to grow cannabis in July 2022, around the same time that the village of Essex became an independent city. His license was renewed this year, the Cannabis Control Board confirmed.

A year ago local officials tried to shut down the cannabis operation before admitting they had little power to void Struthers’ state grower’s license. State officials have since renewed the license.

All of it makes him feel like the city is singling out his one-man, outdoor, fenced-in operation and trying to regulate him out for what is, he claims, a grandfathered use in a state that promotes and celebrates agriculture.

“They are just biased against cannabis. Don’t let them fool you,” he said.

Struthers is one of four cultivators in Essex Junction and one of 369 cultivators in Vermont, according to the state Cannabis Control Board’s data, of which 119 are outdoor cultivators. 

“It’s way more environmentally friendly,” Struthers said of his outdoor plantings. “We use the sun. We don’t use any electricity. We don’t produce any greenhouse gasses. In fact, we sequester carbon, if anything.”

Struthers turned to medical marijuana after he injured his back and sustained a spinal injury while skydiving in 2011. He said he secured his medical marijuana license soon after.

“It’s medicine for me. And it’s a far greater source of income than duck eggs and tomatoes. And I enjoy it more,” he said with a chuckle.

Without his operation, Struthers said he isn’t sure what he would do, as he walked around the grassy yard interspersed with groups of cannabis plants and an arched trellis brimming with yellow and red cherry tomatoes.

He is licensed by the state to have 125 plants but said he has a lesser number that he declined to share. A view from inside the backyard reveals at least 60 plants.

He says it’s a lot of work for a one-man operation. He usually starts the seeds in March or April, and puts the baby plants outside, weather permitting, on Memorial Day weekend. Then he starts to harvest in late September and early October. This year he started on Sept. 20.

His situation would have been different had he lived a mile down the road in Essex town – which has three cultivators and a very different attitude towards cannabis cultivation, he said. 

“They fully allow anybody to have a dispensary or cultivation and manufacturing” without “the limitations” Essex Junction is trying to impose, Struthers said. 

“There is where I allegedly could buy property and do exactly what I’m doing and it’s perfectly respectable. But because I’m here, even though I’m in the same 4.5 square mile city, they’re legal, I’m not legal… That just doesn’t make any sense.”

The only rule governing personal and commercial growers in Essex is the state-required license and a 500-foot buffer zone around schools, an Essex zoning official confirmed. Aside from the three commercial growers, the town does not track people who are growing from private residences. There have been no complaints filed for any of them, a town official said.

While the case plays out through town hearings and court cases, it is business as usual in the fenced up verdant backyard on Taft Street, now free of the quacking that neighbors once complained about.

“I am doing what I want to do, continuing as usual,” Struthers said. “I just want to be left alone. I want to cultivate my flowers. I want to create products for people to use and just be happy.”