Supreme Court pot ruling impairs Nevada County movement
May 7, 2013
NEVADA COUNTY, Calif. — The California Supreme Court’s unanimous decision Monday to affirm local jurisdictions’ legal right to manage medical marijuana through land use and zoning will impact a local marijuana advocate’s court case against Nevada County.
“This pretty much guts our court case — at least on the issues we based it on,” said Patricia Smith, president of the Nevada County chapter of Americans for Safe Access.
ASA filed suit against the county last May after the board of supervisors approved an ordinance designed to regulate the cultivation of medical marijuana in unincorporated areas of the county. The case was set to go to trial in mid-June.
“It’s disappointing but not unexpected,” said Smith, who was attending a protest in Sacramento on Monday. “Really, it shows the need for a statewide regulation to end this nightmare.”
Marcos Kropf, assistant county counsel, declined to discuss the import of the Supreme Court case on the lawsuit involving ASA but said the decision supports local jurisdictions’ right to govern land use.
“From that standpoint, it upholds the validity of the ordinance,” Kropf said.
The California Supreme Court said neither the state’s voter-approved law legalizing medical marijuana nor a companion measure adopted by the Legislature prevent local governments from using their land use and zoning powers to prohibit storefront dispensaries.
The ruling came in a legal challenge to a ban enacted by the city of Riverside in 2010.
“While some counties and cities might consider themselves well-suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed and closely monitored, would present unacceptable local risks and burdens,” Justice Marvin Baxter wrote for the seven-member court.
Grass Valley City Manager Dan Holler said the case was less about the issue of medical marijuana and more about local governments’ right to exert authority over land use.
“The bottom line is the ability to maintain local control through zoning and land use,” he said. “It’s good for cities.”
Grass Valley, Nevada City and Nevada County all have explicitly prohibited medical dispensaries.
Truckee does not allow medical marijuana dispensaries in its zoning regulations, meaning a de facto ban in dispensaries is in effect throughout Nevada County.
Smith said while the ASA’s court case may have been weakened, it will intensify efforts to put a ballot initiative in front of Nevada County voters.
“We’re going to put it before the voters, and we’re going to win,” Smith said. “Even if the Supreme Court decides cities and counties can ban dispensaries outright, the county must still follow the will of its constituents. Right now, there is a small percentage of residents dictating our policy, and it’s not right.”
Smith said she anticipates having a ballot initiative finalized by the end of May. The group will have to follow a thorough procedure, including obtaining about 13,000 signatures, before voters will get a chance to vote on the ordinance.
In 1996, 52 percent of Nevada County residents supported the Compassionate Use Act, which legalized medical marijuana in California; 47 percent of county residents voted no.
Americans for Safe Access estimates another 200 jurisdictions statewide have similar prohibitions on retail pot sales. Many were enacted after the number of retail medical marijuana outlets boomed in Southern California after a 2009 memo from the U.S. Justice Department said prosecuting pot sales would be a low priority.
However, the rush to outlaw pot shops has slowed in the 21 months since the four federal prosecutors in California launched a coordinated crackdown on dispensaries by threatening to seize the property of landlords who lease space to the shops. Hundreds of dispensary operators have since been evicted or closed voluntarily.
Marijuana advocates have argued that allowing local governments to bar dispensaries thwarts the intent of the state’s medical marijuana law — the nation’s first — to make the drug accessible to residents with doctors’ recommendations to use it.
Riverside city lawmakers used their zoning authority to declare storefront pot shops as public nuisances and ban the operations in 2010. The Inland Empire Patient’s Health and Wellness Center, part of the explosion of retail medical marijuana outlets, sued to stop the city from shutting it down.
A number of counties and cities were awaiting the Supreme Court ruling before moving forward with bans of their own.
A mid-level appeals court previously sided with the city of Riverside, but other courts have come to opposite conclusions. Last summer, a trial judge ruled that Riverside County could not close medical marijuana dispensaries in unincorporated areas because the move did not give the shops any room to operate legally under state law.
Meanwhile, an appeals court in Southern California struck down Los Angeles County’s two-year-old ban on dispensaries, ruling state law allows cooperatives and collectives to grow, store and distribute pot.
The Supreme Court’s decision might not be the last word on the issue, however. Pending legislation would establish a new statewide system for regulating and licensing the medical marijuana industry and clarify the role of dispensaries in it.
Activists also are in the early stages of planning a ballot initiative that would legalize the recreational use of marijuana and regulate it like alcohol, as voters in Washington and Colorado did last year.
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