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Pot Is Out -- If That's What Cities Want

William Fulton on
May 7, 2013

Yesterday's California Supreme Court ruling on medical marijuana dispensaries put a longstanding legal dispute to rest and gave cities the green light to zone out such establishments.

The question of whether cities can use zoning powers to ban pot dispensaries has been a growing battle in municipalities around California in the last few years. Some cities created headaches for themselves by attracting dispensaries because they failed to pass a ban witness the spectacle of Los Angeles having to shut down 800 dispensaries by holding hearings one by one. Many cities endured lengthy hearings to pass temporary moratoria, angering local medical marijuana advocates and gambling that in the end the courts would uphold a ban. But just as frequently, cities had to try to figure out what to do with dispensaries that opened up in defiance of a local ban.

That's the situation that the City of Riverside faced in the case decided by the Supreme Court yesterday. A dispensary opened up in Riverside in 2009 even though the city had banned such establishments. The city then had to sue the dispensary to shut it down, and the case went all the way to the Supreme Court.

In ruling for the city, the unanimous Supreme Court concluded that neither the 1996 ballot initiative that legalized medical marijuana nor the 2003 statute allowing dispensaries pre-empts the power of local governments to use land-use regulation to ban the dispensaries from within their borders.
"We have consistently maintained that [the initiative and the statute] are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed," wrote Justice Marvin Baxter for a unanimous court. "They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.

The case began in 2009 when Inland Empire Patients Health and Wellness Center opened a medical marijuana dispensary in Riverside despite the fact that the city had passed a ban. The city successfully obtained an injunction against the establishment's operation and the case went up the chain all the way to the Supreme Court.

The issue before the Supreme Court was whether either the initiative or the statute explicitly or implicitly prohibits a zoning ban on pot dispensaries.

The explicit question was easily dealt with by the court. As Baxter, noted, the initiative does not mention dispensaries, while "no provision of [the statute] explicitly guarantees the availability of locations where such activities may occur, restricts the broad authority traditionally possessed by local jurisdictions to regulate zoning and land use planning within their borders, or requires local zoning and licensing laws to accommodate the cooperative or collective cultivation and distribution of medical marijuana.

Regarding the possibility of an implicit pre-emption by the state, the court rejected that as well, concluding "there appears no attempt by the Legislature to fully occupy the field of medical marijuana regulation as a matter of statewide concern, or to partially occupy this field under circumstances indicating that further local regulation will not be tolerated." Indeed, quoting an amicus brief from the League of California Cities, the court bought the argument that communities are different and whereas pot dispensaries might be fine in one city, they could well create blight in another.

Of course, there is nothing the in ruling that would prevent the state legislature rom passing another law pre-empting local regulation of pot dispensaries. The state has done so with regard to other land uses schools, for example and could do so here.

Justice Goodwin Liu wrote a concurring opening arguing for a very broad interpretation of the court's language about implicit state pre-emption, essentially arguing that there should be a very high bar.

The text of City of Riverside v. Inland Empire Patients Health and Wellness Center, No. S198638, can be found here.