Spot Zoning Initiatives, or, How Not to Structure a Local Cannabis Ordinance

Courts typically invalidate unfair location zoning ordinances.

We recently talked about the California Environmental High-quality Act as a limitation on community zoning authority as a result of environmental regulation. One more significant limitation on community authority when it comes to cannabis ordinances is location zoning, which is the act of singling out distinct parcels of land to profit distinct owners at the expense of others in the bordering parts. Spot zoning can exist in the type of limiting activities from taking place on distinct parcels, or by supplying distinctive use rewards to distinct parcels—such as permitting licensed marijuana functions in choose places. It is in essence the observe of developing zoning “islands” that are decidedly dissimilar to their bordering parts, and is typically the subject matter of authorized worries.

Just lately, a San Bernardino County Excellent Court docket choose invalidated Evaluate O, a voter-permitted ballot initiative that eradicated a town-broad ban on medicinal cannabis and necessary the Metropolis of San Bernardino to allow for professional cannabis functions in certain components of the town. The court docket identified that though Evaluate O supplied a selection of parts in which cannabis cultivation, manufacturing, testing, transportation, and distribution could manifest, it limited the probable dispensary internet sites to just two addresses, one of which was the Flesh Showgirls strip club.

The court docket mentioned that not all location zoning is invalid per se, but location zoning is impermissible if there is no rational basis for it—i.e. if it is arbitrary or capricious. An illustration of probably permissible location zoning would be limiting a portion of land inside of a professional growth to household use, because carrying out so could possibly profit the general public interest by retaining devoted housing. Equally, a town could possibly allow for an island of land inside of a household neighborhood to acquire professional licenses for retail and mild manufacturing, in order to protect a neighborhood professional district for the profit of the community local community.

In the San Bernardino County situation, having said that, the court docket identified no this sort of rational basis. The court docket opined that no justification was supplied for why two individual parcels were being singled out as the only spots in the town that could have dispensary use. According to the court’s ruling, “these two addresses are separated from each individual other by quite a few miles and are surrounded on all sides by in the same way situated but non-qualifying properties,” and that there was no rational basis for carrying out so, nor was there any discernible general public interest served. The court docket determined that Evaluate O properly established a zoning duopoly in the two dispensary addresses “with the owners of these two spots the sole beneficiaries.” Accordingly, the court docket concluded that unlawful location zoning had happened, and held that because it was not possible to sever the dispensary zoning from the over-all initiative, Evaluate O was invalid in its entirety.

We have read rumblings of specific interest groups organizing to move initiatives in California jurisdictions that now prohibit professional cannabis activity. Any groups pursuing this sort of a route ought to be conscious of the Evaluate O situation and the invalidity of location zoning with no rational basis. Even though the strategy of eradicating competition by drafting a ballot measure favoring choose parcels of land may well look like an attractive enterprise proposition, even if an initiative passes with guidance of the voters, it can however be overturned by a court docket of legislation if it is lawfully defective.

Even though San Bernardino County may well have to go again to the drawing board on its cannabis zoning, the lesson is crystal clear: if you are going to limit the places where cannabis enterprises can run, there has to be a rational basis for carrying out so that serves a reputable general public interest, and it can’t make an unfair monopoly about the market for choose contributors. Normally, you hazard a court docket invalidating the ordinance entirely.

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