Agenda - Planning Commission - 06/02/2011

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April 10, 2011 I Volume 5 1 No. 7 Zoning Bulletin that nothing in the MMPA "shall prohibit a [county] from adopting or- dinances or policies that further restrict the location or establishment of a [MMD]." Hill had further argued that even if the county's MMD Ordinances were consistent with state law, they were inconsistent as applied. Hill said this was because the Ordinances so restricted the establishment and location of MMDs as to "make it practically impossible for such dis- pensaries to exist anywhere in the unincorporated areas of the County." Again, the court rejected this argument. Hill had specifically pointed to the county's $11,500 application fee for a CUP for an MMD. The court found no evidence that the fee was inconsistent with the Compassionate Use Act or MMPA: Hill had failed to show that the county charged a higher fee to MMDs than to other businesses or that the fee applicable to MMDs was unreasonable. Hill had also argued that there was no lo- cation where a MMD could exist "without being in violation of the or- dinance'and/or forced out of existence due to the remote and unreason- ably inconvenient location." The court found the county code permitted MMDs to operate in certain commercial zones. Finally, Hill had maintained that the county's Ordinances violated the equal protection clause of the California Constitution (Article I, § 7). Hill said this was because the Ordinances did not allow the dispensaries to operate in the same zones as pharmacies. Once again, the court found Hill's argument unpersuasive. Equal protection laws require entities "similarly situated with respect to the legitimate purpose of the law re- ceive like treatment." Dispensaries and pharmacies, noted the court, "are not `similarly situated' for public health and safety purposes." Therefore, said the court, they "need not be treated equally." Moreover, because similar risks are not associated with the location of pharmacies as with MMDs, the court concluded that the county had a "rational basis for zoning MMDs differently than pharmacies." See also: City of Corona v. Naulls, 166 Cal. App. 4th 418, 83 Cal. Rptr. 3d 1 (4th Dist. 2008). See also: City of Claremont v. Kruse, 177 Cal. App. 4th 1153, 100 Cal. Rptr. 3d 1 (2d Dist. 2009), review denied, (Dec. 2, 2009). Case Note: Hill had also argued that the MMPA precluded the county from applying its nuisance laws to MMDs. Hill said this was because § 11362.775 of the MMPA provided a limited statu- tory immunity from prosecution under the "drug den" abatement law. While the statute exempted qualified patients and their pri- mary caregivers from nuisance laws, it did not confer on them the "unfettered right to cultivate or dispense marijuana anywhere they [chose]," said the court. Section 11362.775 did not affect the coun- ty's constitutional authority to regulate the particular manner and 4 © 2011 Thomson Reuters