Agenda - Planning Commission - 03/02/2017

Home

Zoning Bulletin February 10, 2017 I Volume 11 I Issue 3 The superior court agreed with White Mountain, finding the MMD Amendment violated the AMMA by essentially prohibiting MMDs in the County. The State and County appealed. DECISION: Judgment of Superior Court affirmed in part. The Court of Appeals of Arizona, Division 1, first held that the AMMA was not conflict preempted by the CSA under a theory of "obstacle preemption" or "impossibility preemption." In so holding, the court explained that, under the Supremacy Clause of the United States Constitution, when a state law and a federal law are in conflict, the federal law prevails because "state action cannot circumscribe Congress' plenary commerce power." The court further explained that federal preemption can be either express or implied. Express preemp- tion occurs when Congress explicitly defines the extent of preemption. Implied preemption occurs by: (1) federal occupation of the field ("field preemption"); or (2) a conflict between the state and federal law that either (a) creates an obstacle to federal law ("obstacle preemption"), or (b) makes it physically impossible to comply with both state and federal law ("impossibility preemption"). The latter two types of conflict preemption were argued here by the County and the State. With regard to the State and County's obstacle preemption argu- ment, the court held that AMMA's requirement that municipalities, such as the County, approve zoning for specific areas for MMDs and requiring the State to process applications to operate MMDs, did not amount to a "significant and unsolvable obstacle to enforcement" of the CSA, such that the AMMA was conflict preempted by the CSA. The court determined that "Arizona voters' approval of medical marijuana under a regulated state law system in no way conflicts as an obstacle with federal enforcement of the CSA." Nothing in the AMMA precludes the United States from enforcing the CSA, found the court. While the AMMA differed from the CSA with regard to the "scope of acceptable medical use of marijuana," the possession and use of marijuana not in compliance with AMMA remained illegal under Arizona law." Moreover, the court noted that the federal govern- ment is free to enforce the CSA in Arizona and cannot require the state to enforce the CSA. With regard to the State and County's "impossibility preemption" argument, the court similarly held that the AMMA was not preempted by the CSA on the basis of impossibility. The court explained that, in issuing zoning documents pursuant to the AMMA, the County would "not be authorizing or sanctioning a violation of federal law," but rather would be recognizing that the County had a duty to issue such ©2017 Thomson Reuters 5