Agenda - Planning Commission - 03/02/2017

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February 10, 2017 I Volume 11 I Issue 3 Zoning Bulletin documents by statute. The court said that "impliedly rejects an impos- sibility argument because the CSA does not expressly prohibit a county official from abiding by the AMMA in issuing zoning docu- ments, and the state law requires such conduct." The court also rejected the County's argument that County officials' processing of zoning permits for MMD applications amounted to "aid- ing and abetting" in violation of the CSA. The court noted that the CSA expressly provided that municipal officers who lawfully engage in the enforcement of any law or municipal ordinance relating to con- trolled substances are immune from civil and criminal liability. Here, found the court, County officials were "engaged in the enforcement" of state statutes by processing applications for the zoning permits and promulgating reasonable regulations to permit MMDs pursuant to state law, and thus were immune from prosecution under the CSA. In sum, the court concluded that the County failed to show how the relief ordered here (i.e., to issue the necessary zoning documentation) made it impossible to comply with the AMMA due to a risk of prosecution under federal law and specifically the CSA. The County's broad contention that any act which is in any way related to fulfilling duties mandated by the AMMA is somehow criminal under federal law, did not persuade the court that the AMMA was preempted under a theory of impossibility preemption. Finally, the court also held that the County's MMA Amendment, which limited MMDs to zones in which uses could only be "for industrial use not in conflict with any federal law," was inconsistent with the provision of the AMMA allowing local jurisdictions to enact "reasonable zoning regulations that limit the use of land for [MMDs] to specified areas . . . ." Looking at the plain language of that provi- sion of the AMMA (A.R.S. § 36-2806.01), the court found it did not preempt local zoning restrictions on MMDs but authorized "reason- able" zoning regulations limiting the use of land for MMDs to speci- fied areas. As such, the court said that "a local jurisdiction cannot adopt a zoning regulation that is self-defeating by banning MMDs" because a ban on MMDs could not be a "reasonable zoning regula- tion[ ] .. . limit[ing MMDs] to specified areas . . . ." To interpret the statute otherwise, said the court, "would nullify the basis for the AMMA, to permit use of marijuana for medical purposes consistent with the AMMA's terms and provide for a regulatory system of dis- pensaries to operate in compliance with the terms of the AMMA." Thus the court found that § 36-2806.01 limited local jurisdictions' zoning powers to ensure those zoning decisions comply with the AMMA. Because the MMD Amendment's provision barring any conduct in violation of federal law as applied to MMDs was in conflict with the 6 ©2017 Thomson Reuters