Agenda - Planning Commission - 03/02/2017

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Zoning Bulletin February 10, 2017 I Volume 11 I Issue 3 while dispensary applicant argued failure to take actions violated the Arizona Medical Marijuana Act Citation: White Mountain Health Center, Inc. v. Maricopa County, 2016 WL 7368623 (Ariz. Ct. App. Div. 1 2016) ARIZONA (12/20/16)—This case addressed the issue of whether the actions that the Arizona Medical Marijuana Act ("AMMA") required the State of Arizona (the "State") and municipalities to take with regard to processing process medical marijuana dispensaries ("MMDs")—specifically approving zoning for specific areas for MMDs, processing zoning documents, and taking action pursuant to zoning laws to ensure MMDs meet other zoning ordinances, and processing MMD applications to operate —created "significant and unsolvable obstacles" to the federal Controlled Substances Act ("CSA") (under which marijuana use is illegal) such that the AMMA was preempted by the CSA. The case also addressed the issue of whether the CSA preempted the AMMA under a theory of impossibil- ity preemption in that it was impossible for the municipal employees to comply with both the CSA and AMMA when the AMMA required issuance of necessary zoning documents for MMD operation applications. The case also addressed the issue of whether a county zoning ordinance that limited MMDs to zones in which uses could only be "for industrial use not in conflict with any federal law," violated the AMMA by effectively prohibiting MMDs in the county. The Background/Facts: In 2010, Arizona voters passed Proposi- tion 203, now codified as the AMMA. Among other things, the AMMA decriminalizes and provides protections against discrimina- tion under state law for the medical use and possession, cultivation, and sale of marijuana under the circumstances described in the AMMA. (See, e.g., A.R.S. §§ 36-2802, -2811, -2813, -2814.) Under the AMMA, the Arizona Department of Health Services ("ADHS") is authorized to promulgate regulations in order to implement and administer the AMMA. The AMMA also authorizes cities, towns, and counties to "enact reasonable zoning regulations that limit the use of land for [MMDs] to specified areas in the manner provided in [the AMMA]." (A.R.S. § 36-2806.01.) Both the AMMA and ADHS regulations require an entity seeking to become a MMD to first register with ADHS by filing an application for a "registration certificate." (A.R.S. § 36-2804; A.A.C. R9-17-304.) The application must include, among other things, "a sworn statement certifying" that the MMD is in compliance with zoning restrictions "[i]f the city, town or county . . . has enacted zoning restrictions." © 2017 Thomson Reuters 3