Pubdate: Thu, 30 Jan 2014
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2014 The Arizona Republic
Author: Michelle Ye Hee Lee


County Will Allow Sites in Unincorporated Areas

The Board of Supervisors unanimously approved a zoning ordinance
allowing medical-marijuana dispensaries in Maricopa County's
unincorporated areas, winding down more than two years of resistance
in the face of an adverse Superior Court order.

Maricopa County previously had a zoning classification that blocked
medical marijuana dispensaries within the county's jurisdiction. The
county stood firm on that policy despite voter approval of the Arizona
Medical Marijuana Act in 2010, which put the state's medical-marijuana
program into effect in many Valley cities.

The new ordinance, approved on a 4-0 board vote Wednesday, allows
medical marijuana dispensaries and cultivation sites to open in
non-residential areas under county zoning control. Dispensaries will
be allowed in commercial zones that are farther away from residential
areas and in industrial zones. Cultivation facilities will be allowed
in industrial zones.

The new county ordinance requires medical-marijuana businesses to be
more than 1,500 feet from a church, a public or private school, a
public or private day-care center or nursery, a public park or
playground, an adult-oriented business or another medical-marijuana

Arizona's medical-marijuana program is regulated primarily by the
Arizona Department of Health Services. In order to receive a
dispensary registration certificate, applicants must attest that their
business' proposed locations are in compliance with local zoning
restrictions relating to medical-marijuana dispensaries, or that there
are are no local zoning restrictions for a dispensary in the proposed

Maricopa County Attorney Bill Montgomery, one of the most vocal
opponents of the 2010 medical-marijuana ballot measure, had advised
the Board of Supervisors against allowing dispensaries on county land.
He warned that because marijuana is not a federally-approved drug,
county employees facilitating the state's program would risk federal

Heeding Montgomery's advice, the board in 2011 classified dispensaries
and cultivation sites as buildings allowed in industrial areas, but
whose uses must not be in conflict with any federal, state or county
law or regulation. Since marijuana is prohibited under the federal
Controlled Substances Act, the board's decision effectively banned
medical-marijuana businesses from opening on properties under county
zoning control.

White Mountain Health Center, a 2012 applicant for a medical-marijuana
dispensary in Sun City, sued Maricopa County over its zoning process.
In November, Superior Court Judge Michael Gordon found the county's
classification for dispensaries unreasonable, voided it and concluded
there are no county zoning ordinances in effect for

That finding left Maricopa County unable to regulate where
medical-marijuana facilities could open within its zoning
jurisdiction, meaning they could even open in residential areas, said
Debra Stark, county planning and development director. The county
planning and zoning commission recommended the board adopt an
ordinance limiting dispensaries and cultivation sites to
non-residential areas.

"Obviously, we're responding to the trial court," Board Chairman Denny
Barney said. "That ruling is on appeal at the moment, but in the
meantime, we needed to make the adjustment."

In an appeal filed in January 2013, the County Attorney's Office
argued county employees are still under the threat of federal
prosecution. While the trial court concluded county employees are not
violating federal law because "they have no interest in whether the
dispensary opens, operates, succeeds or fails," the county argued the
threat of prosecution is "a realistic possibility."

The appeal also argued that it is impossible for county employees to
comply with the Arizona Medical Marijuana Act while simultaneously
complying with the federal Controlled Substances Act.

Montgomery called the board's Wednesday action an "intermediate zoning
solution" that was necessitated by the court order.

"Obviously, I disagree with the trial court's order; that's why we're
appealing it," Montgomery said. "Nonetheless, I can't expect people,
as the county attorney, to follow the law if I'm not going to obey
court orders either."

But Montgomery maintains the 2010 act is on shaky ground because it
creates a conflict between state and federal law.

"Just because it gets passed, doesn't automatically mean that it's
constitutional," he said.

If the trial court's decision is overturned on appeal, the zoning
ordinance would be deemed repealed by the Board of

At that point, there would be no lawful way to possess, use or sell
marijuana, and anyone engaging in such activities would be subject to
prosecution, Montgomery said.

He said before prosecuting, he would recommend a grace period in which
medical-marijuana dispensaries could close up shop and safely destroy

White Mountain Health Center, meanwhile, is now awaiting approval of
its county building permit. It plans to open in March.

"It's been incredibly frustrating," said Jeffrey Kaufman, attorney for
the health center. "It's been unfair to the sick people of Sun City
and that area, but they're looking forward to moving on and hope that
they'll be able to open quickly."  
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