Author Archives: laweiss2015

San Jose’s Last Stand

The fate of medical marijuana in San Jose hangs in the balance, and it is time to make an informed decision. A certain degree of regulation is necessary to ensure a functioning decriminalized market for any goods, including medical marijuana. While under-regulation breeds social harms like crime, over-regulation also has a detrimental effect on lawful enterprise. With 89 dispensaries operating within its city limits, San Jose needs to be able to effectively regulate the medical cannabis industry. San Jose’s newest ordinance, No. 29420, however, overregulates land use issues to the point of extinguishing the medical cannabis industry, thereby denying safe access to its sick residents and denying the city a potentially significant source of income. Land use for medical marijuana in San Jose can be more effectively regulated by enforcing legislative intent, making more gradual carveouts, and keeping the problems that come with cultivation sites separate from retail medical cannabis dispensary locations. Additionally, despite the ordinance’s emphasis on revising land use provisions, San Jose’s answer to effective medical marijuana regulation may not be contained in land use at all.

San Jose Should Enforce Legislative Intent Over the Letter of the Law.

Per se regulations should not be strictly enforced when they betray the legislative intent. The distance requirements contained in the new ordinance were created as buffer zones to sensitive areas. Thus, individualized distances for are set for distinct sensitive areas (1,000 feet from parks and schools, 500 feet from rehabilitation centers, and so on). While these distances provide a quick rule of thumb for attempting compliance and enforcement, the city of San Jose should exercise greater discretion in enforcing the letter of the law.

Santa Cruz’s “intensity” approach to distance requirements is a great example of a municipality effectively exercising its discretion. Rather than strictly adopting the state’s per se distance rule of 1000 feet from sensitive areas, Santa Cruz only asks its dispensaries whether their intensity of use is compatible with nearby residents if located within fifty feet of a residence. While Santa Cruz permitted only two dispensaries, fourteen others made the requisite showing of compatibility with nearby residents allowing them to be immunized. This was a rather clever way of Santa Cruz to establish regulations that will maintain the public wellbeing, but also made the regulations feasible enough to encourage compliance.

As I mentioned in my original article on San Jose, the city is strictly enforcing the per se 1000 foot distance provision. The purpose of this provision is to act as a buffer zone between something like cannabis and sensitive areas like where children or recovering addicts may be expected to be found. By strictly enforcing the 1000 foot buffer, San Jose will be shutting down dispensaries that are within a nearly impassable 1000 feet, or are within 1000 feet of places where children might be expected to be found, but in reality are not. In both cases, strictly enforcing the distance provision will not achieve what the provision was designed to. By adopting a provision or degree of enforcement that could reasonably assess the potential for harm in each situation, San Jose might find itself enjoying the similar results of dispensary compliance.

Gradual Zoning Carveouts Maximize Public and Municipal Welfare

San Jose can maximize public welfare, safe access, and municipal income by engaging in a more gradual zoning carveout. The new ordinance rezones dispensaries such that they will only be allowed to operate in a warehouse district in the south eastern corner of San Jose. Dispensary owners have expressed concern over this extreme zoning restriction due to the unrealistic volume of business that would be required to operate in retail spaces of 20,000+ feet, especially once rents are driven up by the monopolistic hold these land owners have on dispensaries. Rather than enacting zoning restrictions that fall just short of an explicit moratorium, San Jose can benefit from experimenting with more gradual carveouts.

Clark County in Washington was a great case study of a municipality that experimented with its zoning carveouts for regulating medical cannabis. The Washington and California statutes and initiatives closely mimic each other. Both Initiative 502 and Proposition 215 gave the citizens of each state the right to use cannabis in a decriminalized setting (albeit recreational in Washington and medicinal in California). Sections 69.51A.140 and 69.51A.200 in Washington were analogous to the ruling seen in City of Riverside v. Inland Empires as both give local control for municipalities to choose the extent to which they would follow the newfound freedom in each state’s respective initiatives that decriminalize cannabis. Washington had a very specific subset of commercial and industrial zones in which cannabis dispensaries could be located. Clark County used the default regulations handed to it for two years before making adjustments that best suited the needs of their community.

When Clark County made these changes with a new amendment, the land use aspects they changed pertained to cultivation. Section 6.88.430(E) of San Jose’s new ordinance also changes zoning in regards to cultivation by requiring that cannabis sold at dispensaries be vertically integrated and produced by the owners of the dispensary itself. Juxtaposing the Clark County model with San Jose’s suggests that San Jose’s new ordinance is excessively restrictive. Were San Jose to attempt a more gradual zoning carveout as seen in the Clark County model, it might be able to maintain public welfare by simply adjusting its zoning restrictions in regards to cultivation and allow the city’s dispensaries to continue to operate and provide tax revenue for the city.

Requiring Vertical Integration of Cultivation With Retail Dispensaries Breeds More Transgression Than Compliance

Requiring vertical integration of cultivation with dispensaries mistakenly groups land used for cultivation with land used for retail medical dispensaries. Additionally, restrictions on land used for cultivation are often met with transgression. Vertically integrating cultivation with retail sales will unnecessarily result in retail medical dispensary non-compliance. Santa Cruz also has made modifications to reduce land use as applied to cultivation. Like Clark County, Santa Cruz found after years of its legal experiment that “the creation of rules contains an inherent assumption that people will follow them. Our experience has been to the contrary when it comes to cannabis cultivation.” Requiring cultivation to be vertically integrated places more restrictions on using land for cultivation. By imposing these greater restrictions, San Jose can expect a comparable result to what its neighbor Santa Cruz experienced; transgression rather than compliance.

Rezoning Might Not Be The Answer

There are more effective ways to achieve public welfare through regulation than rezoning medical cannabis dispensaries and cultivation sites. Ordinance No. 29421, amending Title 6 of the San Jose municipal code, sets out a multitude of other regulatory provisions separate from zoning requirements. From the dispensary owners I spoke with, this list of provisions is already proving problematic. Nevertheless, the majority of the provisions can realistically be achieved through diligence. Both the city of San Jose and dispensary owners could greatly benefit by focusing on these more effective, achievable provisions, and scaling back on unachievable land use provisions whose ability to ameliorate the public welfare is limited at best.

Oakland has been on the progressive side by consistently being at the forefront of passing regulations for medical cannabis and has focused more on regulatory provisions unrelated to land use. It had the wherewithal to see the gaps in Proposition 215. In 1998, only two years after Proposition 215 passed, and six years before the state would pass SB 420, Oakland passed an ordinance to establish a committee to regulate medical cannabis locally and added a chapter to the municipal code for medical marijuana. When the number of dispensaries grew large enough to earn Oakland the nickname of “Oaksterdam” in the early 2000s, the city passed a new ordinance that established a permitting system. Soon after that, Oakland would go on to pass Measure Z, largely affecting medical cannabis taxation. The interesting part about tracing Oakland’s regulatory development for medical cannabis is the lack of land use provisions it enacted. Oakland finally enacted a broad zoning and 600 foot distance requirement, but otherwise has enacted regulations for taxes, permitting, and enforcement as avenues for achieving public health and safety.

This provides a potentially valuable lesson for San Jose. While both seem to agree that there needs to be some sort of distance between cannabis and sensitive areas, Oakland is significantly less restrictive in its zoning. While taking Oakland’s approach might not make San Jose the next Amsterdam, it does suggest that there are other avenues by which it could regulate its medical cannabis industry without hurting a great source of income for the city.

Conclusion

I do not doubt the need for structure and regulation in a newly decriminalized market like cannabis. Even with some desperate need to enact new, more restrictive regulations like other municipalities, there are degrees and routes of regulation that maximize the public welfare better than others. Sometimes it is important to focus on the spirit of the law when enforcing its letter will betray its intention. Strict enforcement of distance requirements may not actually be preventing social harm, but actively harms a local industry. Sweeping zoning provisions that monopolize real estate and groups dispensary locations and cultivation sites with known compliance problems creates a proverbial scorched earth policy where the city and its sick residents could otherwise reap the fruits of the medical marijuana industry. What if Napa had rezoned its vineyards to unworkable land? It would not be the world class destination that it is today. Like Napa, San Jose should take measures to safely embrace this new industry rather than shun it by rezoning it to untenable corners of the city.

The Oaksterdam Model

We have all heard of the laissez-faire marijuana laws that go on in Amsterdam, so adopting the moniker “Oaksterdam” only made sense when the city of Oakland became one of the most progressive places in California for medical marijuana regulation. Perhaps almost as notorious as Amsterdam is for its marijuana laws, Oakland is also known (amongst many other things) as a place with a high crime and murder rate. Given how active Oakland has been in regulating its medical cannabis industry in a place that is no stranger to attendant social harms, Oakland is an ideal case study in assessing the way land can be used to help achieve a municipality’s goals.

Oakland has perhaps the most extensive history with cannabis regulation in California since Proposition 215 passed at the end of 1996. In 1998, the city first attempted to fill the legal vacuum caused by the vagueness of Proposition 215. While referencing medical cannabis supporting legislation reaching as far back as March 1996, Ordinance No. 12076 established chapter 8.42 (now found under chapter 8.46) in the Oakland Municipal Code. This chapter would be Oakland’s first set of regulations that would apply interstitially to proposition 215. 12076 was enacted with the goal of making medical cannabis accessible to qualified patients in Oakland, to prevent diversion to illegal markets, and to ensure that cannabis users in Oakland would not face prosecution. The ordinance then set out to achieve these goals in some interesting ways. To ensure that people would not face prosecution for possessing medical cannabis under state law, the ordinance made cannabis possession the lowest priority for Oakland law enforcement. The ordinance also established a single agency to regulate the distribution of medical cannabis in Oakland. This agency was to implement the marijuana distribution plan the city set out in what is now chapter 8.46 of the municipal code. Perhaps not willing to take on the burden themselves, the city designated the Patient ID Center, known as the Oakland Cannabis Buyers Cooperative at the time, to administer the city’s distribution plan.

The Oakland Cannabis Buyers Cooperative (hereafter “OCBC”) was a dispensary whose mission statement sounds relatively typical. It wanted to provide safe access to cannabis to people with valid medical recommendations from their physicians. Like other dispensaries, the OCBC wanted to provide access to cannabis in a legal manner so as relieve people of the unintended ills of federal prohibition. They saw their legal channel of distribution as a way to help people avoid prosecution and the dangers of the black market. In line with its goals as a dispensary, OCBC took on the role of implementing the city of Oakland’s distribution plan. In line with its goal of ensuring that medical patients would not face prosecution for their medicine, OCBC would come to be in charge of an identification system that would allow for law enforcement to easily verify an individual’s patient status. As its current name, the Patient ID Center, would suggest, this system has proved to be largely successful. As can be evinced by changing their name from “Cannabis Buyers” to “Patient ID Center”, it was not long until this dispensary also became typical in not being able to provide safe access to medical cannabis.

Oakland presents a prime example of a municipality running into federal pre-emption conflicts. Soon after OCBC took charge of Oakland’s distribution plan, the federal government ordered a preliminary injunction that was eventually carried out in October of 1998. While police padlocked their doors and physically enforced the injunction, OCBC voluntarily cooperated after six days. Then, only eight days after that, the city of Oakland responded aggressively by invoking California Government code 8630 and declaring a public health emergency that would return power to provide access to medical cannabis to the city. Oakland’s struggle with the federal government would continue for years, with back and forth politics that touched on land use issues (like threatening land owners who leased their property to cannabis dispensaries with forfeiture). While I encourage my readers to look into the intense battle that has occurred between the federal and local governments, I raise what the federal government did next for purposes of showing the development of Oakland’s local regulation. I will continue to focus on the local land use regulatory issues the city of Oakland experienced throughout its medical cannabis social experiment.

Oakland took its next major step in medical cannabis regulation in 2004 by passing Ordinance number 12585, adding chapter 5.80 to the city’s municipal code. This chapter sets out a permitting system by which the city may award a medical cannabis dispensary the right to operate. While there are a multitude of provisions, it is interesting to note that there was only one provision regarding land use. The language of 5.80.020(d)(1) largely reflects the regulations that had already been set out in the then recently passed State Bill 420. This new chapter required dispensaries to be located at least 600 feet from sensitive areas like schools, parks, residential areas, among others, a looser regulation than the state’s requirement of a one-thousand-foot boundary. Also on the broader side are the zones in which this chapter allows dispensaries to be located. Whereas other municipalities specify different categories within which dispensaries may be located, this chapter of the Oakland municipal code simply requires that a dispensary be located within any type of industrial or commercial zone. This ordinance focused on regulating the cannabis industry through restricting the maximum number of dispensaries rather than rezoning.

Oakland residents also passed the landmark Measure Z in 2004. Measure Z primarily reemphasizes cannabis infractions as lowest priority, creates a committee to handle licensing and taxation, and establishes policies for enforcement. This monumental piece of legislation for Oakland does not make any changes to the broad ability for medical cannabis dispensaries to be licensed if they are, among other regulations, only located within a commercial and industrial zone. In noting this omission, I draw on a larger point. Many municipalities have similar, if not the same, goals of things like public health and safety. The city of Oakland has at least as many issues in these departments as any other municipalities, and yet it is interesting to note the way in which it approaches its solutions. Rather than adjusting relatively broad zoning and land use provisions, the city of Oakland looks to taxation, methods of licensing, and policies for enforcement to maximize the well-being of its residents who are now living with this new industry.

Years have passed since Oakland residents passed Measure Z, and the city has naturally had more legal developments and ordinances passed. These new developments and challenges, however, have largely been in the form of interactions with the federal government. For example, in 2012, the federal government sent letters to the owners of buildings who rented to dispensaries claiming that they would seize the owner’s property if they continued to allow businesses that operate in contravention to federal drug law. While this was more a federal pre-emption battle than an example of local land use regulation, this was an important chapter in Oakland’s medical marijuana experiment and touches upon a specific area of land use.

Oakland has been through a lot of changes and is progressive in its approaches to regulating medical marijuana. It maintains the same kind of goals all municipalities have for its residents like maintaining their health and safety. Rather than seeing this emerging industry as a threat, the language of the legislative intent describes medical marijuana as an opportunity to protect people’s rights, and to take an existing demand for a product or medicine, take it out of the hands of criminals and those who would do harm, and put it back in the hands of law-abiding citizens. Regardless of whether a municipality views medical marijuana as an opportunity or a scourge, there is a lot of room for creativity in how to maintain public health and safety. The choices, however, come with different effects and consequences. Rather than achieving its goals by altering zoning laws, Oakland chose to achieve these goals by developing regulatory schemes like a patient ID card system and a governing body to provide oversight. Admittedly, this creates an ever present issue of funding, especially since the taxes promised by Measure Z can only be accrued if and when California legalizes cannabis for recreational use. Nevertheless, Oakland does not seem concerned with medical marijuana reaching sensitive areas, even after loosening the state’s 1000 foot restriction to only 600 feet. As such, Oakland can be a lesson that there are various approaches that can help a municipality achieve its goals without harming its local businesses in the process.

Stay tuned for the conclusion of the battle of San Jose! I’ll be looking back to San Jose and apply the lessons we have learned by exploring the regulations implemented by other municipalities. After having looked at how other municipalities regulate land use for their medical cannabis industry, we can finally make an informed evaluation of San Jose’s newest medical cannabis ordinance.

Cannabis Land Use Regulation In the Warm California Sun: Santa Cruz!

Known for its beaches and beach culture, its boardwalk, and all things organic, Santa Cruz County is also a rich example of medical cannabis land use provisions and changes. In addition to its close proximity to San Jose, its similarity in provisions and increased restrictions provide some valuable lessons that can be applied locally. Santa Cruz finds itself struggling with issues of land use on two major fronts: in regulating dispensaries, and, most recently, in the use of its land for cultivation.

On March 9th, 2010, Santa Cruz enacted the ordinance that regulates the use of land by medical cannabis dispensaries within the city limits. Still used today, this ordinance uses regulations that are restrictive at times and relatively permissive at others. As with any other land use ordinance, the first aspect that must be addressed are the zones in which businesses can operate. Section 24.12.1300.1 for example, allows for dispensaries to be located in C-C (Community Commercial), C-T (Thoroughfare Commercial), and I-G (General Industrial) upon receiving a special use permit. This places medical dispensaries in the same category as other businesses like medical or dental offices, plant nurseries and greenhouses, and eating or drinking establishments.

Within these general zoning restrictions, the city then describes more particularized land use regulations. While the state sets the standard distance for medical cannabis dispensaries from places like residences at 1000 feet, Santa Cruz is much more relaxed. It only requires a dispensary demonstrate that it is not at “an intensity of use that is incompatible with the nearby residential use” in the event the dispensary is located within fifty feet of a residence. Unfortunately, the provision does not objectively define “intensity”, or what would be too intense for local residents. The provision also sensibly requires a demonstration of adequate security to insure the safety of the surrounding residences. Also more relaxed than the state recommended guidelines (yet sensible) is requiring the distance from sensitive areas like schools and rehab centers to be six hundred feet instead of one thousand feet. While these are a few provisions that stand out in Santa Cruz’s ordinance, it continues with a standard list of provisions about things like signage and loitering. Interestingly enough, a permit system governs the dispensaries that are to follow this long list of provisions. As of 2010 in this ordinance, the city stated that they would only grant two permits. By the time 2013 to the present comes around,

San Jose is not the only municipality in the South Bay that has recently made some changes to their local land use ordinance. Santa Cruz has also recently adopted a new land use ordinance, chapter 7.126, which they enacted to amend their original local ordinance, chapter 7.124. The ordinance itself recognizes that “the county’s unique geographic and climatic conditions, which includes dense forested areas receiving substantial precipitation, are favorable to cannabis cultivation.” So why is it that Santa Cruz, like the city of San Jose, is choosing to tighten their regulations? Is it because increased regulation is an improvement in itself? Or is there some optimal level of regulation that they hope to achieve? If so, where does San Jose find itself on this spectrum with its new ordinance? To answer these questions, let’s take a look at Santa Cruz’s ordinance.

Santa Cruz made its first amendment to the 2010 medical cannabis land use ordinance in December of 2013 by enacting local ordinance chapter 7.124. The county derived its power to enact this chapter in the same way other municipalities were able to (and by following my series of posts, we can see that San Jose is no exception). As I explained in my prior post, on May 6th, 2013, the California Supreme Court decided a landmark case in the area of local regulation. City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (hereafter referred to as “Inland Empire”). The decision by the California Supreme Court interpreted Article XI, Section 7 of the California Constitution as saying that the rights afforded to Californians under proposition 215 and SB 420 do not pre-empt local regulatory measures. Article XI, Section 7 of the California Constitution provides local municipalities the policing power to use land as they see fit to maintain public health, safety, and welfare. To achieve these goals, the Inland Empire decision granted local municipalities the right to enact their own regulations up to, and including, an outright ban on medical marijuana within their jurisdiction.

With the Inland Empire decision, Santa Cruz passed chapter 7.124. Chapter 7.124 passed in reaction to the tight regulations set out in the 2010 which bred more transgression than compliance. This ordinance identified “demands placed on law enforcement and administrative resources; neighborhood disruption; the exposure of children to medical marijuana; drug sales to minors and adults; fraud in issuing, obtaining or using medical marijuana recommendations; robberies, burglaries, assaults, drug trafficking and other violent crimes” as unintended social ills that Santa Cruz was experiencing after the enactment of the 2010 regulation. To solve these problems, Santa Cruz seems to have loosened some restrictions by emphasizing the rational approach seen in the 2010 ordinance which looked at intensity of use when dispensaries were within fifty feet of residences. While standing firm on their two permit limit and even setting out a ban on medical cannabis dispensaries, 7.124 set out a number of additional provisions, which, if followed, will allow a dispensary to operate with immunity from the ban. While many of its tenets remain intact, this chapter was only in use for three months before the city felt the need to pass new amendments as chapter 7.126.

Chapter 7.126 was enacted on February 25th, 2014. It did make some minor changes like changing a dispensary’s potential of hours of operations from being able to open at six a.m. instead of seven a.m., and close at nine p.m. instead of seven p.m. It also enacted the increasingly popular provision of requiring patients to be a minimum of twenty-one years old instead of the previous age limit of eighteen. The most significant change, however, was in the way the city rezoned land use in regards to cultivation. Grouping cultivators as a medical cannabis business with the dispensaries (as opposed to some agricultural enterprise), cannabis cultivation businesses were rezoned to “SU (Special Use), TP (Timber Production), CA (Commercial Agriculture), A (Agriculture), AP (Agriculture Preserve) or RA (Residential Agriculture)”. The city chose these zones as ones that define the urban area. While this can be seen as reasonably reducing social ills like exposure to children, neighborhood disruption, and the enforcement that goes along with these ills, the provision also sets out some very difficult provisions to follow once the cultivators have relocated to the city’s outskirts. The grows can be no more than ninety nine plants, but must be located on a parcel no less than one acre, and in residential agriculture zones, no less than five acres.  There are various canopy size requirements depending on the acreage of the growing parcel. Additionally, cultivation businesses must then adhere to Title 16, Environmental and Resource Protection, which then sets out even more regulations. My hope in mentioning this sample of the long list of provisions is that it impresses upon the reader that this original drafting of 7.126 represents a certain degree of regulation. This degree, however, proved to be too great a strain on the legal market.

On March 24th of 2015, Santa Cruz revisited and revised chapter 7.126. Tipping their hat to the list of provisions from their previous version of 7.126, the county admits, “the creation of rules contains an inherent assumption that people will follow them. Our experience has been to the contrary when it comes to cannabis cultivation.” The county goes on to cite the known existence of 84 grows at the time the previous chapter was passed, and how that number rose to 139 at the time of this revision. It also cites specific provisions like those requiring certification of cannabis cultivation businesses and how “virtually no one is following those rules, and it has led to questions concerning their import and effectiveness.” Additionally, they notice that having rezoned cultivation businesses to non-urban areas has resulted in environmental damage. Given the proven impracticality of allowing cannabis cultivation businesses in non-urban zones, and zoning restrictions prohibiting their operation in urban areas, the city enacted a ban on the cultivation of cannabis other than personal grows associated with a qualified patient.

The degree to which Santa Cruz was regulating was ineffective. What this county, and others enacting similar to greater degrees of regulation, should consider is the implications of a ban. Creating regulations is like drawing a circle and determining who falls within it, and who is operating outside of it. Santa Cruz increased its regulations on a highly active market by passing chapter 7.124. Naturally, increased regulations will make the circle smaller, creating more who fall outside of it. When people transgress the regulations, it requires the county’s enforcement power. In an attempt to clean up those outside the circle, Santa Cruz responded by passing chapter 7.126, increasing regulations, and making the circle even smaller. With these increased regulations, Santa Cruz found even more operating outside the chapter’s limits, and an increased need to use funds for enforcement. Finding this degree of transgression unacceptable, Santa Cruz responded with a ban. A ban, arguably, is not only a further increase in regulation, it is an absolute. Thus, if the increased regulations led to increased transgression which increased the need for enforcement at a level the county finds unacceptable, then implementing a ban is the wrong direction for the county. Following the trend of their recent history of increased regulation, a ban could create the need for levels of enforcement beyond those which they have already deemed unacceptable. Perhaps the best option for Santa Cruz—and other similarly situated counties—would be to swing in the opposite direction and create looser regulations that businesses could realistically follow without creating attendant social harms.

Land Use Issues With Retail Cannabis In Washington Showing Success

We continue this series of posts related to land use issues in decriminalized and legalized cannabis markets with one of the states that has gone the furthest to revolutionize the commercial industry of cannabis, Washington. At some point, it will be sold somewhere, and this can create commercial opportunity, or be a breeding ground for social ills, depending on how a state regulates the land use issues incurred by legalization. Today, we will be taking a look at how Washington has gone about dealing with the land use issues related to retail cannabis, and whether these regulations have experienced success in achieving their goals.

In November of 2012, Washington voters passed Initiative 502, codified as chapter 69.50, which made personal possession of cannabis legal, and gave the Washington Liquor Control Board control over the regulations by which cannabis would be grown, processed, and sold in the state. With extensive provisions contained in the initiative, the Liquor Control Board seems to have recognized a need to create a tightly regulated market. Also contained in this provision are the liquor board issues. Seemingly aware of the role land use law would play in achieving these goals, Washington subsequently enacted WAC 314-55, which goes into extensive detail of the requirements for the application process, commercial licensing, and reporting. These provisions, however, are in turn subject to the provisions set out in the original initiative’s section 69.51A.140 and section 69.51A.200. What this means, is that licensing as set out in WAC 314-55 still cannot abrogate the rights set out in 69.51A.140 and 69.51A.200. For example, and relevant to what we will see when this discussion is applied to California, the right to meet extensive criteria and obtain a commercial license set out in WAC 314-55 does not take away a county’s right set out in 69.51. To the extent that it works, Washington’s flexibility in amending their initiative will also be relevant for helping shape the future of California’s policy.

While WAC 314-55 sets out a multitude of provisions for aspects such as transportation, signage, licensing, production, and many more, leaving little doubt that Washington is achieving their goal of tightly regulated market, it is interesting to note the land use provisions that speak to their specified goals. Washington enacts land use provisions that protect their youth, for example, mainly be setting out distance requirements for retail locations from venues where children frequent. One thousand is the magic number of feet from which a cannabis retail location, or even advertising, is required to be from “school grounds, playground, recreation center or facility, child care center, public park, library, or a game arcade admission to which it is not restricted to persons aged twenty-one years or older”. Mirrored by other states, including California, this provision is exemplary of a marijuana regulation that directly correlates to successfully achieving a municipality’s purported goal.

This chapter also successfully lays out land regulations that promote responsible business practices, and zone dispensaries in such a way that gives us our first look at how land use laws define cannabis’ place in a legal commercial framework. In general, municipalities will designate areas to be zoned in a specific manner. Depending on how a given area is zoned, it allows the land to be used in some ways, and restricts it in others. For example, if an area is zoned for commercial use, it will be given a title such as GC (General Commercial). This allows the owner of that parcel to use the land for businesses purposes, and restricts them from certain uses such as habitation. Washington licenses retail locations on parcels conforming with GC, C-3, and CR-2 zoning. GC and C-3 zoning are general commercial zones and are meant to serve “large area of the county the traveling public” and are applicable to a wide variety of businesses like antique stores, bowling alleys, legal card clubs, medical offices, and so on. CR-2 zoning applies to commercial residential entities, and allows for single purpose and specialty retailers like restaurants and bars. By zoning cannabis retail locations as such, Washington has treated these businesses in the same way in treats any other. The questions remains, however, whether this decision has allowed Washington to be successful in its purported goals.

Pursuant to the powers granted to them under 69.51A.140 and 69.51A.200, counties can amend the statewide initiative as they see fit for their local communities. While Initiative 502 sets out rules and regulations for legalization, 69.51A.140 makes it clear that towns, cities, and counties may pick and choose the extent to which these municipalities zone land use. Nevertheless, 69.51A.200 does require that there be safe access available for those who are selling and purchasing marijuana under the state’s medical statutes. Clark County is an example of a municipality invoking this right. As such, it can be used as an example of the extent to which Washington’s zoning of retail cannabis locations as GC, C-3, and CR-2 were successful in achieving their goals.

In May of 2014, Clark County enacted an amendment to Initiative 502 which, under 69.51A.140, reduced the extent to which they would follow I-502. What’s particularly interesting about this is that this amendment occurred two years after Washington passed I-502. This shows a period in which the provisions set out in the original initiative could be tested to see which aspects achieved their goals, and those which did not. Interestingly enough, the only zoning issues which were struck down by Clark County pertained to growing and manufacturing. All three categories that were designated for sales went untouched, suggesting that the commercial designation of cannabis is a viable option that can operate while still preventing out-of-state diversion of product, traceability of products, youth access, and maintaining responsible business practices, and other public and consumer safety issues.

Looking forward, the goals achieved in the results of this Washington experiment should be kept in mind when looking to other frameworks. Specifically, the extent to which Washington has been successful in its goal to prevent out of state diversion will become highly relevant when discussing the obstacle nuisance law poses to integrating cannabis into a decriminalized or legalized legal framework.

You Gotta Pay To Play

“You gotta pay to play”, said an entrepreneurially minded man in t-shirt and jeans after reviewing applications for new members to his medical cannabis collective. John Doe is an owner of a medical cannabis dispensary called San Jose Medicinal. Located in downtown San Jose, San Jose Medicinal is one of 89 dispensaries in the city of San Jose that faces closure as a result of Ordinance No. 29420 adopted on June 17th, 2014. The ordinance, which takes effect in July 2015, revises regulations for medical cannabis dispensaries in San Jose to the point that an overwhelming majority will be forced to shut their doors permanently. Before diving into the intricacies of the new ordinance, it’s important to first understand the local framework this ordinance fits into.

Proposition 215 gave Californians the right to access and use medical cannabis by adding section 11362.5 to the California Health and Safety code, also known as the Compassionate Use Act of 1996, on November 6th, 1996. The Compassionate Use Act was the beginning for Californians’ rights to use cannabis for the treatment of certain ailments including “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” With this act, patients who are recommended cannabis and doctors who make those recommendations are free from criminal penalties by state authorities. In this sense, this provision served as a medically exempted provision from the criminalization of cannabis set out in the health and safety code’s section 11357. The Compassionate Use Act of 1996 opened the door for access to medical cannabis, but it would be another eight years until further medical marijuana regulation was enacted.

Before 2012, municipalities had already been setting local regulations pursuant to typical zoning practices. As described in Big Creek Lumber Co. v. County of Santa Cruz, “Land use regulation in California historically has been a function of local government under the grant of police power contained in article XI, section 7.” In 2012, however, zoning medical cannabis dispensaries became much more explicit and specific with the addition of California Health and Safety Code Section 11362.83. This provision establishes that, “Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: (a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective.” While most municipalities have to some extent tailored medical cannabis zoning laws to fit their local needs and values, the case of The City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. is a prominent precedent in California that illustrates this provision of the California Health and Safety Code effectively.

In May of 2013 the city of Riverside set a precedent for the use of California Health and Safety Code section 11362.83 as it chose (via its local ordinances) to set a moratorium on cannabis dispensaries. Violation of this ordinance was deemed to constitute a public nuisance (See Inland Empires). Claiming that existing medical cannabis dispensaries were in violation of the local ordinance and therefore a public nuisance, the city of Riverside then filed for injunctive relief against the dispensaries (Id). In place of John Doe defendants, the city of Riverside then named Inland Empire Patients Health and Wellness Center as their defendant (Id). The trial court found in favor of the city.  Inland Empire Patients Health and Wellness Center appealed the ruling until it was decided in the California Supreme Court (Id). In the California Supreme Court, the city of Riverside argued that the dispensary was operating in a business and manufacture park zone, and that operating a medical cannabis dispensary was not a permitted use of land in this zone (Id). While this was cited as the specific zoning violation, the city had actually not zoned any areas in which medical cannabis dispensaries could operate (Id). The California Supreme Court affirmed the rulings of the trial and appellate courts (Id). While Riverside could not ban dispensaries by citing federal pre-emption, the Court felt that this local zoning ordinance did not directly conflict the rights granted under proposition 215 (Id). This case is our first precedent of a way in which local control, here under 11362.83, can be applied.

11362.83 gives the city of San Jose local control. The ordinance provides for regulations at all levels of the medical cannabis industry and sets out land use regulations that have had significant impacts on medical cannabis dispensaries. Perhaps the most striking is the restriction the city has placed on medical cannabis dispensaries in certain areas. Not only does this raise the question of where the city will technically allow them, it is also curious that medical cannabis dispensaries are zoned differently than the other medical facilities like medical or dental offices despite being recognized as occupying the same field. Along these same lines, the ordinance adds blanket bans on medical cannabis dispensaries in certain areas. For example, dispensaries will be banned in the “International Business Park” boundary. This area is defined as “the corporate limits of the City of San Jose bounded by Interstate Highway 880, Montague Expressway, Trade Zone Boulevard, the Union Pacific Railroad line, Murphy Avenue, and Brokaw Road.” For those less familiar with San Jose, this spans the majority of the downtown area. The ordinance also prohibits the use of land for medical cannabis dispensaries in the Edenvale Area Development, which they cite as spanning 2,312 acres. These are just a few examples of provisions found in the new ordinance. Nevertheless, some are more problematic than others.

I had the opportunity to interview owners and volunteers at several different medical dispensaries, and was able to hear specifically which of these land use provisions were proving problematic to their ability to remain in business now, and after July of this year (I will not mention the specific individuals by name so as protect their identities). The first dispensary I spoke with was San Jose Medicinal, located on First Street in downtown San Jose. The first person I spoke to works as a budtender at the dispensary. Upon asking about the ordinance, he insisted he was a volunteer and could not recall anything about the dispensary’s current legal status, or how the ordinance has and will be affecting them. He referred me to John Doe, who cited the 1,000 foot ordinance as the reason why the San Jose Police Department is attempting to shut them down. San Jose Medicinal is alleged to be 997 feet from St. James Park. It is therefore deemed to be in violation of the ordinance, despite fulfilling other difficult criteria such as being located on the second floor in a downtown commercial zone.

San Jose Medical Group is currently appealing the city’s ordinance, and the designation of St. James Park as a “park” as it was intended to be defined. They are arguing that the legislature intended to define “park” as a place where children play. Since there are no playgrounds in St. James Park, and the homeless frequent the park and bathe in its fountain to the point where e. coli has been found there, it is safe to say that children are not playing there. As such, the city should not consider it a “park” from which the 1000 foot requirement should be drawn. When I inquired as to why Mr. Doe felt the city implemented these provisions, he could only respond, “you gotta pay to play”.

The next collective I spoke with was Lux Meds/Red Clover/San Jose Patients Group located on south Autumn street in San Jose. Immediately you may have noticed the hyphenated name. According to Jane Doe, these three medical cannabis dispensaries have been forced to partner together to survive in light of land use issues incurred by the new ordinance. San Jose Patients Group, for example, used to be located on the 800 block of the Alameda (aka highway 82) in San Jose near the new Whole Foods. Some residents in the area had been making complaints that amounted to nuisance, which in turn caused the San Jose Police to measure their distance from the Dispensary. Measuring directly, over a river that lies in between the houses and the dispensary, the San Jose Police found San Jose Patients Group to be operating within 1000 feet of these residences.

Before launching into ordinances other municipalities passed to compare with San Jose’s, this example already presents a striking issue with the new ordinance. The 1000 feet separation requirement is set in place as a buffer zone between the dispensaries and the community so as to separate the community in the event some undesirable circumstance, usually crime, arises. While 1000 feet is a good per se rule for a buffer zone, this should also mean that a dispensary could operate within the 1000 foot area if attended by some other buffer that would separate the dispensary from the community at large. Like a moat to a castle, a river in between a dispensary and residences would keep the potential social ills separate from the community that would otherwise suffer from them. This notion is supported by Santa Cruz County’s policy (stay tuned for details in my article discussing Santa Cruz!), which allows for a medical cannabis dispensary to be located within the buffer zone upon proving that they will not be the cause of harm.

While the thousand foot requirement is perhaps enforced beyond the extent of its original intent, the culprit could also arguably be the way in which this distance is measured. The language of the ordinance requires the measuring to be done “in a straight line from the Parcel boundary of the sensitive use to the nearest exterior wall of the Collective’s Building envelope”. Contained in this single sentence are a couple of ways in which the language of the ordinance can undermine the underlying intention of keeping a buffer zone between medical cannabis and people like children and those with substance abuse issues. The first is that the distance is measured in a straight line. As mentioned above, something like a river is a great example of a physical barrier that works to achieve the intended separation between medical cannabis dispensaries and places of “sensitive use” (like schools and playgrounds). When something like a river creates an interruption in medical cannabis’s ability to reach sensitive use areas, so too should the distance be measured. If an unintended ill like crime were to attempt to reach a sensitive area, it would have to go around the river first. If the state feels that 1000 feet is the distance after which unintended social harms dissipate, it should therefore follow the path of their theoretical criminal, and also have to go around the river first. To take it a step further; in theory this river, or mountain, or other sort of barrier could be insurmountable, impassable, and the dispensary would still not be allowed to operate if located within 1000 feet as the bird flies. Yet, it is not the birds we worry about.

Also problematic in this language is how the distance is measured to the parcel boundary. Theoretically, this could mean that a school, or rehabilitation center, could have property that spans a lengthy estate of several miles, and a medical cannabis dispensary would not be able to operate within a thousand feet of its edge, despite being miles away from the people the ordinance is trying to protect.

Jane Doe raises another serious issue caused by the restrictive rezoning found in the new ordinance. As of July of this year, zoning changes will only allow for medical cannabis dispensaries to be zoned in one area of San Jose.  Located in a warehouse district near Monterey road and Curtner Road, the ordinance sweeps the medical cannabis industry to south central San Jose. In this district, Jane Doe estimates the average square footage of each building is around 20,000 feet. According to Doe, the partnered three collectives are already having trouble getting enough business to support being in operation in a 5,000 square foot building. She fears that being forced into significantly larger spaces will be an automatic death sentence for smaller medical dispensaries, and will require a practically insurmountable restructuring and partnering of more successful medical cannabis dispensaries. Her fear is not without foundation. Rather than grandfathering current dispensaries’ rights to operate, San Jose shut all 89 dispensaries down, with the option to reapply for licenses. As of the time of writing this article, only six dispensaries have found the new legal environment in San Jose viable enough to apply for a new license.

Not only does rezoning the industry in such a way that shuts down 89 of a city’s businesses have fiscal ramifications for the municipality but it also creates the risk of diversion to illegal markets.

As we move forward in comparing what is currently happening in San Jose to the ordinances passed in other municipalities, it is crucial to remember that the people have the right to voice their approval or lack thereof, and can bring about real change in their communities. By looking at other municipalities, we can make an informed evaluation about this ever changing legal environment. Be informed and decide for yourself, because what you decide can have a very real impact on the community you live in, and set precedents for the generations to come. Join me for my next article, as we look to a county in Washington who also faced the decision of how to zone a decriminalized marijuana industry to fit the needs of their community.

The Fight for the Future of Commercial Marijuana Land Use

The land use issues raised by marijuana are constantly changing around us, creating new legal landscapes that have a very real effect on our day to day lives. As the laws regarding marijuana become increasingly decriminalized, even legalized, a new kind of store front can be found in the communities in which we live. By surveying the current land use issues in states like Washington, Oregon, Alaska, and Colorado, it will become increasingly clear what types of regulation help achieve our communities’ policy goals and the aspects that frustrate them. The regulatory framework for marijuana land use issues in these states will then be juxtaposed with California’s to help us evaluate how our own regulatory framework is effecting our goals of minimizing social harms and maximizing social benefits. Ultimately this can help with how we approach regulatory issues in the future, with the impending closures of San Jose dispensaries as an immediate example.

I am a second year law student at Santa Clara University School of Law, and focus on Land Use, Water Rights, and Commercial Real Estate. I have worked at places that have been greatly affected by these areas of law and hope to make changes that will help improve people’s lives and businesses. I pursue these areas as the sine qua non to making this goal possible. With an understanding of these fields, I also have a niche focus in the area of Wine Law. I see parallels to the wine industry, and thereby fiscal opportunity and well-being for Californians as the cannabis market gains increasing legal stature.