Agenda - Planning Commission - 09/08/2011

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There also may be an increase in enforcement or legal costs to local govern- ments if dispensaries are regulated or restricted after facilities have opened and allowed to operate solely under state regula- tions. To illustrate, in response to a prolifera- tion of dispensaries, Los Angeles adopted a comprehensive medical marijuana ordi- nance in January 2010 (effective June 2010), nearly 15 years after the statewide initiative legalizing the use marijuana for medical purposes in California. In response to a growing number of dispensaries and prior to the enactment of a comprehensive ordinance, Los Angeles adopted an interim control ordinance, or ICO, in August 2007. The ICO permitted the operations of all dispensaries that existed prior to August 1, 2007, and that had sub- mitted a series of documents to the city by November of the same year. The effect was a moratorium on new dispensaries in the city. However, the ICO expired by operation of state law in September 2007. In January 2010, the city passed a comprehensive ordinance for dispensaries. Among various operating and licensing requirements, the new ordinance limited the operation of collectives to those that had registered by the November deadline. That summer, several dispensaries filed suit against the city alleging numerous constitu- tional and procedural claims and requested an injunction. In December 2010, a superior court judge struck down the provisions in the law that only benefited the dispensaries with proof of registration as an unconstitu- tional violation of procedural due process and equal protection (Medical Marijuana Collectives). Because the zoo7 deadline was set two months after expiration of the ICO, the judge reasoned, dispensaries that were in operation prior to the 2007 deadline, but that did not register afterward (presumably, because the expiration of the moratorium did not warrant it) were denied equal protec- tion. "[N]o one could have anticipated that compliance with a dead statute would be necessary in order to continue as a collec- tive three years later" (Medical Marijuana Collectives, p. 23). The judge also struck other provisions of the law on grounds that it violated the right to privacy (e.g., dispen- saries were required to keep contact infor- mation of their members). In contrast, Tucson, Arizona, adopted a comprehensive zoning ordinance the same month, which voters approved in a state- wide referendum, permitting the cultivation, distribution, and consumption of medical marijuana. By addressing problems in ad- vance, Tucson hopes to avoid the problem plaguing the cities that acted after the fact. Jurisdictions that allow staff or commis- sions to allow uses determined to be "simi- lar" to specifically enumerated uses may face difficult definitional problems. Medical marijuana may have characteristics similar to agriculture, home occupations, nurseries, adult uses, pharmacies, processing plants, and retail stores, depending on the circum- stances and type of applications. Conditional use permits may be desired to ensure com- patibility with surrounding uses but may not be available unless the zoning code autho- rizes them in specified districts. licenses, may make each vulnerable to legal challenge, Many jurisdictions already have relevant experience in coordinating licensing for mas- sage establishments and technicians with zoning requirements. As is the case with such businesses, licensing and zoning require- ments for medical marijuana will require coordination with state law to avoid conflict- ing requirements. Many state laws allowing medical marijuana include both licensing and zoning regulations that may require different enforcement mechanisms and statutory treat- ment by local governments. Local jurisdictions in states that allow medical marijuana should audit their zoning codes to ensure that they are consistent with state law and local intent. For instance, cit- ies may add medical marijuana cultivation [L]icensing and zoning requirements for medical marijuana will require coordination with state law to avoid conflicting requirements: BUSINESS VERSUS ZONING REQUIREMENTS Local jurisdictions may benefit from carefully distinguishing between the land -use issues raised by medical marijuana operations and those issues most appropriately addressed through business licensing and business per- mitting. For instance, operator qualifications, security patrols, inventory levels, record keeping, and other operational issues are properly the subject of annual licenses that may be monitored by a state licensing board or local agencies like the police department. On the other hand, allowable uses, fencing, coverage, parking access, hours of operation, signage, and separation of uses should be handled through local zoning regulations. The business license and zoning requirements should be coordinated and include cross-references. For instance, a typical business license condition requires that the proposed location be properly zoned and, accordingly, that the businesses obtain clearances from planning divisions in advance of operating. The zoning ordi- nance may prohibit any medical marijuana facilities that are operated without a current business license. However, attempting to regulate operations directly through zoning, or to control land uses through business as a permitted or conditional use in speci- fied districts, with limits on acreage, require- ments for indoor cultivation or shielding, and processing controls. Some jurisdictions require cultivation in residential districts to take place only in owner -occupied structures, with strict limits on the number or size of plants. Processing small amounts may be allowed in residential districts, with larger processing operations reserved to industrial or manufacturing zones. Commercial zones or districts similarly may be restricted by local regulations to spe- cialized activities. Some jurisdictions do not allow cultivation or consumption in commer- cial zones, although dispensaries are allowed to operate. For example, in Colorado, state law prohibits smoking of medical marijuana on the premises of a dispensary; some juris- dictions have extended such prohibitions on consumption to within a certain radius from the dispensary. Other local governments fur- ther address consumption by prohibiting the sale of any food on -site or the sale of smok- ing devices and paraphernalia. Most jurisdictions appear to prefer sep- arating medical marijuana dispensaries from sensitive uses, like schools, churches, and each other. For instance, some municipali- ZONINGPRACTICE 7.11 AMERICAN PLANNING ASSOCIATION Ipage 6