Agenda - Planning Commission - 07/18/2013 - Special

Home

June 25, 2013 I Volume 7 I Issue 12 The Dispensary again appealed. DECISION: Affirmed. Zoning Bulletin The Supreme Court of California held that the CUA and MMP did not expressly or impliedly preempt the City's zoning provisions declar- ing a medical marijuana dispensary to be a prohibited use and a public nuisance anywhere in the City limits. The court explained that the City zoning ordinances would only be preempted by the CUA and MMP, and thus void, if the zoning ordi- nances conflicted with the CUA and MMP by: (a) being duplicative (i.e., coextensive therewith); (b) being contradictory (i.e., inimical thereto); or (c) entering an area that was "fully occupied" by the CUA and MMP. The court found none of those bases for preemption existed here. Rather, the court found that the CUA and the MMP were "limited in scope": "They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribu- tion of medical marijuana will not be permitted to operate within its borders," found the court. More specifically, the court found that neither the CUA nor the MMP expressly preempted local zoning laws. The court noted that the CUA "makes no mention of medical marijuana cooperatives, collectives, or dispensaries." It merely provides that state laws against the possession and cultivation of marijuana shall not apply to certain .persons; it cre- ates no "broad right to use [medical] marijuana without hindrance or inconvenience." The court found that while the MMP does address col- lectives and cooperatives, it similarly: is narrow —specifying only that qualified persons are exempt from prosecution and conviction under enumerated state antimarijuana laws; and creates no "broad right" of access to medical marijuana "without hindrance or inconvenience." "No provision of the MMP explicitly guarantees the availability of locations where such activities may occur, restricts the broad authority traditionally possessed by local jurisdictions to regulate zoning and land use planning within their borders, or requires local zoning and licensing laws to accommodate the cooperative or collective cultiva- tion and distribution of medical marijuana," found the court. Under those same considerations, the court also found that neither the CUA nor the MMP impliedly preempted the City's zoning ordi- nances banning medical marijuana dispensaries: "Neither the CUA nor the MMP requires the cooperative or collective cultivation and distri- bution of medical marijuana that [the City's] ordinance deems a 4 © 2013 Thomson Reuters