Agenda - Planning Commission - 09/08/2011

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Between woo and zo07, medical marijuana dispensaries in Colorado were limited to five patients each. After Colorado courts lifted these restrictions, dispensaries proliferated rapidly along.'commerclal corridors in DenveC x LOCAL PROHIBITIONS As distinguished from federal preemption, many municipalities in states with statutes permitting medical marijuana have adopted local moratoria or prohibitions on the basis of their plenary powers to regulate local land uses and abate a nuisance. These measures have generally been upheld (e.g., City of Claremont v. Kruse (z000) 177 Cal.App.4th 1153). In the case of nuisance abatement, local governments may rely on existing ordinances that prohibit any use —as a nuisance per se —that is inconsistent or not specifically authorized by local regulations. In many cases, local governments have not enumerated in local codes the sale, cultiva- tion, or distribution of marijuana as a per- mitted use or permitted business activity. In these jurisdictions nuisance per se, there- fore, can be an effective defensive measure to close or enjoin dispensaries from operat- ing within their limits. Local governments have also enjoyed considerable latitude to control medical marijuana through land -use regulations even when state laws permit its consump- tion, cultivation, and distribution. Generally, local governments may make and enforce local land -use and business regulations that do not conflict with state statutes. Because the majority of state laws permitting medical marijuana do not mandate specific land -use requirements or business permits, such issues are not deemed exclusively a matter of state concern that preempts local govern- ments from adopting regulations that re- strict or even prohibit such activities within their limits. Further, many of the new laws narrowly permit the use of marijuana for medical purposes for patients with specific conditions, while keeping the general law criminalizing cultivation, distribution, and use as unlawful. In that sense, local govern- ments may enjoy wider latitude regarding their regulation on grounds of public health and safety or other concerns. Though local measures to prohibit or restrict medical marijuana cultivation, distribution, and use have been upheld by recent case law, local municipalities will be required to support their enforcement measures with policy and findings of fact that establish a direct link between the re- strictions, legitimate government concerns, and local authority. Local governments may also draw regulatory distinctions among activities (e.g., cultivators and dispensaries that implicate different policy consider- ations). Medical marijuana cultivation for distribution may require different land -use controls or licensing compared to personal cultivation. UNLISTED USES There can be considerable controversy when local governments do not adopt ordinances to address changes in state laws that permit medical marijuana. Such changes in state law may create a perception among consumers, dispensaries, and other organizations that distribution, cultivation, or consumption is permitted locally as a matter of state law. Indeed, in California, a lower court judge found that state law permitting the use of medical marijuana created a "statutorily conferred right" to operate a dispensary and to obtain marijuana for medical pur- poses (Medical Marijuana Collectives Litig. Americans for Safe Access v. City of Los Angeles, Case No. BC433942, December 10, 2010). Some local governments have re- sponded many months or years after changes in state law take effect. These jurisdictions must sometimes contend with the lack of clarity in the local permitting process that may result from the existence of dispensaries prior to enacting such local regulations. ZONING PRACTICE 7.11 AMERICAN PLANNING ASSOCIATION I pages