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ties require a minimum i,000-foot distance
<br />between the property lines of a site with a
<br />dispensary and the nearest residential dis-
<br />trict. New Mexico prohibits the operation of
<br />a dispensary within Soo feet of any school,
<br />church, or day care center. However, the Los
<br />Angeles experience is that dispensaries may
<br />choose to cluster together in high -traffic
<br />areas, where they can be easily accessed
<br />by potential customers. The zoning regula-
<br />tions should reflect the choices of the local
<br />community in how to regulate all aspects of
<br />medical marijuana.
<br />COMPREHENSIVE PLAN CONSISTENCY
<br />An important step for local governments ad-
<br />dressing medical marijuana use, cultivation,
<br />and distribution will be to address the in-
<br />terplay between proposed zoning rules and
<br />the local comprehensive plan. As a general
<br />matter, zoning and land -use regulations are
<br />subordinate to a city or county's comprehen-
<br />sive plan. In some states, inconsistencies
<br />between the locally adopted plan and devel-
<br />opment regulations are vulnerable to legal
<br />challenges. This includes any regulations or
<br />guidelines that the city may adopt in con-
<br />nection with new land uses. Unfortunately,
<br />consistency is not the default law of the
<br />land, just a good idea. Many states don't
<br />even require a comprehensive plan.
<br />INTERGOVERNMENTAL COOPERATION
<br />In addition to overlapping regulations, local
<br />governments are considering intergovern-
<br />' mental cooperation to address the potential
<br />impacts of overlapping jurisdictions that
<br />regulate the same activity in different ways. In
<br />Michigan, for example, many of the townships
<br />have adopted ordinances that address coor-
<br />dination with local and state agencies with
<br />authority to inspect local businesses, includ-
<br />ing medical marijuana dispensaries. In a more
<br />expansive move, Tuolumne County and the
<br />City of Sonora in California are collaborating
<br />on regulations for dispensaries. The joint effort
<br />is designed to eliminate conflicts between the
<br />city's general plan, which listed dispensaries
<br />as an accepted use, and the county zoning
<br />code, which was silent on their operations.
<br />PRIVACY RIGHTS
<br />Some jurisdictions have expanded their
<br />standard business licensing standards
<br />to include more robust public reporting
<br />and background check requirements as
<br />a prerequisite to licensing dispensaries.
<br />These new regulations range from man-
<br />dated background checks on applicants
<br />as well as employees and greater on -site
<br />security, lighting, and video protocols
<br />to monitor activity inside and outside
<br />the facility. Colorado requires a physical
<br />inspection of the premises prior to issu-
<br />ing a license. In some jurisdictions, like
<br />Fort Bragg, California, local rules mandate
<br />maintaining records of all patients and pri-
<br />mary caretakers (Municipal Code, Sections
<br />9.3o.oso-9.3o.27o). The chief of police
<br />also is required to conduct a detailed back-
<br />ground investigation into the dispensary,
<br />its operator, and employees. Additionally,
<br />the ordinance provides broad discretion
<br />for denying a license. The police chief must
<br />make a determination on the good stand-
<br />ing of the applicant, including whether he
<br />or she has engaged in any "unfair" or "de-
<br />ceptive" acts (although the ordinance does
<br />not define the terms).
<br />The extensive investigation and report-
<br />ing required for dispensaries are likely to
<br />be justified as necessary to ensure public
<br />safety. However, these efforts may provoke
<br />challenges on grounds that they violate le-
<br />gally protected privacy interests, including
<br />a legal mandate for health care providers
<br />to protect patients' medical records. The
<br />ordinance adopted in Los Angeles exempli-
<br />fies this dynamic. The ordinance requires
<br />dispensaries to keep a log of all members'
<br />general contact information and mandates
<br />disclosure of the information to the police
<br />department and other departments under
<br />limited circumstances (Municipal Code,
<br />Sections 45.19.6 et seq. 45.19.6.6). In•
<br />Medical Marijuana Collectives, the trial court
<br />found that patients have a "legally protected
<br />privacy interest" in the contact and medical
<br />information maintained by the dispensary,
<br />and that provisions mandating disclosure
<br />to the police violated state law. According
<br />to the court, "members of collectives have
<br />an objectively reasonable expectation of
<br />privacy" (Medical Marijuana Collectives, p.
<br />26-27). The court suggested that requiring
<br />the dispensary to obtain patient consent to
<br />disclose could validate these provisions of
<br />the ordinance.
<br />WHERE ARE WE HEADED?
<br />We are now seeing a second wave of state
<br />statutes authorizing the use of medical
<br />marijuana. As public opinion changes and
<br />more states address this issue, officials may
<br />benefit from observing the practical impact
<br />of older initiatives. There are no common
<br />approaches or standard practices nationally
<br />or even at the state level. Rather, a balance
<br />of local interests, perceptions regarding the
<br />effects on public safety and health and, in
<br />many cases, the proliferation of unlicensed
<br />dispensaries appear to be crucial drivers in-
<br />fluencing new legislation. Officials, planners,
<br />and lawyers in these states are also chal-
<br />lenged by existing state statutes and court
<br />decisions that further define the reach of
<br />local land -use regulations and licensing pro-
<br />cedures. Courts have taken some important
<br />steps to clarify the issues; we anticipate fur-
<br />ther challenges to local regulations and their
<br />relationship to legitimate public purpose and
<br />procedural due process issues, including
<br />public review, rights to a hearing, and appeal.
<br />VOL. 28, NO. 7
<br />Zoning Practice is a monthly publication of the
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<br />Zoning Practice (ISSN 1548-0135) is produced
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