Agenda - Planning Commission - 03/02/2017

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February 10, 2017 I Volume 11 I Issue 3 Zoning Bulletin (A.R.S. § 36-2804(B)(1)(d).) ADHS regulations also require that an application must include "[d]ocumentation from the local jurisdiction where the [MMD]'s proposed physical address is located [stating] that: a. There are no local zoning restrictions for the [MMD's] loca- tion, or b. The [MMD's] location is in compliance with any local zon- ing restrictions." (A.A.C. R9-17-304(C)(6).) In response to the AMMA, Maricopa County (the "County") amended its zoning ordinance (the "MCZO") to permit MMDs in Industrial 3 ("IND-3") zones in unincorporated Maricopa County. The MCZO also contained a provision that specified that, as to IND-3 zones, a "building or premise shall be used only for industrial use not in conflict with any federal law, state law or Maricopa County Ordinance" (the "MMD Amendment"). In May 2012, White Mountain Health Center, Inc. ("White Moun- tain") applied to the ADHS for a registration certificate for a MMD. ADHS rejected the application because White Mountain failed to submit the necessary zoning documentation from the County confirm- ing that either no local zoning restrictions existed or that White Mountain was in compliance with applicable restrictions. White Mountain then filed a lawsuit against the County and ADHS. It alleged that it could not obtain the necessary zoning documentation because the County refused to issue it. The County had refused to is- sue zoning verification for MMDs, citing the fact that doing so could "potentially subject the County and its employees to prosecution under federal law...." Under the federal CSA, marijuana use remains illegal. (21 U.S.C.A. §§ 801 to 971). White Mountain asked the court to issue injunctive relief regarding its need for compliance with the zoning verification requirement and/or an order directing the County to issue the zoning documentation. The County, and the State, which had intervened in the case, argued that: (1) White Mountain's requested relief was preempted by the CSA under a theory of "impossibility preemption" because the County and its employees could not comply with both the AMMA and the CSA; and (2) the AMMA's authorization of MMDs was preempted by the CSA under a theory of "obstacle preemption." The superior court held that neither obstacle preemption nor impos- sibility preemption applied here. The court ordered the County to is- sue the required zoning documentation to White Mountain. White Mountain also argued that the County's MMD Amendment was a "poison pill provision" that violated the AMMA by effectively banning MMDs in the County. The County defended the MMD Amendment and argued that the AMMA did not preempt local regula- tion with respect to land use for MMDs. 4 ©2017 Thomson Reuters