Pot shop ban goes to state Supreme Court; could affect Nevada County
February 11, 2013
County Counsel: Ruling won’t affect nuisance ordinance
The decision in the medical marijuana dispensary case will not affect the recently nuisance ordinance recently enacted by the Nevada County Board of Supervisors.
“They are two separate issues,” said Nevada County Counsel Alison Barratt-Green. “Whether cities can ban dispensaries is different than a nuisance ordinance. We don’t have a ban on cultivation. They are very distinct issues.”
The nuisance ordinance has no impact on the criminal code, but is a civil nuisance abatement ordinance and comes following strident complaints from a segment of the community that believe the odor, potential crime associated with grows and other issues make such operations inappropriate for residential areas.
Those opposed to the previous ordinance said that it was too restrictive and affected small law-compliant operations with out addressing the large and illegal operations that are the source of problems.
— Matthew Renda
The California Supreme Court heard arguments Tuesday on whether local governments can ban retail pot dispensaries within their borders, a question that could lead to the medical marijuana industry’s expansion or further contraction depending on the outcome.
About 200 cities and counties already have outlawed storefront pot shops, according to the pro-dispensary group Americans for Safe Access, but this will be the first time the state high court considers if such all-out prohibitions are legal or barred by California’s medical marijuana laws.
Many of the local bans were enacted after the number of retail medical marijuana outlets exploded in Southern California after the U.S. Department of Justice said in 2009 that prosecuting pot sales would be a low priority under the Obama administration.
Medical marijuana advocates maintain that the state’s medical marijuana laws, the nation’s first, allow local governments to set limits on dispensaries, but not to outlaw them.
“If it’s the case localities can ban, you could end up with the entire southern and middle portion of the state banning dispensaries, which clearly does not promote uniformity throughout the state or safe access” to marijuana, said Americans for Safe Access Legal Director Joe Elford.
Those in favor of local bans say municipalities retain the right to regulate dispensaries similar to that of any other entity that applies for a use permit in business districts.
The case’s outcome will have significant implications for Nevada County and its municipalities, as the county, Grass Valley, Nevada City have enacted outright bans, while the town of Truckee does not allow for dispensaries in its zoning language.
Nevada County Counsel Alison Barratt-Green said the county prefers that the state supreme court uphold the city of Riverside’s right to ban dispensaries.
“We are hopeful the court will uphold the right to enact local land-use restriction,” she said.
City of Grass Valley Administrator Dan Holler said the city will reconsider the ban if directed by the court, but would use zoning to restrict the number and location of operations, much in the way of Truckee.
“The way our zoning operates is that if it is not specifically allowed, it is prohibited,” said Truckee Town Manager Tony Lashbrook, who added it was not a major issue for the town as there has been little demand to open such operations.
County Executive Officer Rick Haffey echoed Lashbrook’s sentiments, saying the county’s dispensary ban, which went into effect in July 2011 after a temporary moratorium, affected only unincorporated areas.
“Dispensaries are commercial retail operations so a ban affects cities more than counties,” Haffey said.
The Grass Valley City Council voted to ban medical marijuana dispensaries in January 2011 based on a variety of issues, Holler said.
According to previous reports, Grass Valley Police Chief John Foster noted the crime issues spawned by medical marijuana dispensaries, including increases in burglaries in those areas.
Allowing a dispensary also conflicts with federal law, which does not recognize marijuana as a medicine, Foster said in 2010.
Nevada City enacted a ban in 2009, in a 3-2 vote, passing a resolution that said a lack of a satisfactory location made it necessary to enact a ban on dispensaries.
“We know of the (ongoing case at the supreme court),” Nevada City Attorney Hal DeGraw said. “Depending on the outcome, we may have to reexamine our position.”
Preliminary indications demonstrate the local municipalities will likely not have to do much reexamination.
During oral arguments Tuesday, several California Supreme Court justices said they were bothered by the fact that neither a 1996 voter-approved law that legalized marijuana use for health purposes nor companion legislation adopted by the Legislature in 2003 expressly stated that cities and counties must accommodate retail marijuana stores.
Justice Joyce Kennard noted that the California Constitution grants local governments authority to control local land use matters through zoning.
“The relevant issue before the court is to note the city’s regulatory authority over land use … and that power does not derive from the medical marijuana program. It’s a preexisting power,” Kennard said.
But J. David Nick, a lawyer representing a dispensary Riverside officials have sought to close, told the court that lawmakers clearly intended to make marijuana available for eligible residents statewide, a goal that dispensary bans thwart.
Nick said while the Legislature authorized local governments to set operating conditions for pot shops, “the word regulation does not in any way signal prohibition.”
To contact Staff Writer Matthew Renda email email@example.com or call 530-477-4239.
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