Zoning Out on Marijuana
by Tony Chavira
There’s no point in debating the medical benefits or legal implications of marijuana use. We all know it has medicinal benefits for those who need it, and we all know that it’s illegal (and will be complicated to track and tax once it’s not). Your preference about whether it should be legal or not, whether it’s good for you or not, or whether it’s taxable or not doesn’t matter to me. Smoke ’em if you got ’em.
This story is about zoning, and reflects back on the major point I made in a previous article entitled “Including Affordable Housing”: that zoning means excluding people. It has been used both to keep our parks and schools pretty and to legally keep types of industries, businesses, poor people, and even minorities away from our pristine White Anglo-Saxon Protestant communes. Zoning sections things off, creates distinctions between this land and that land, and legally determines how this space can be used versus how that space can be used. When you understand the complexities of zoning, you also understanding who will have access to what.
The city of San Diego, for example, is now in the midst of a furiously debate about zoning ordinances which will specifically affect marijuana dispensaries. For a long time, San Diego was like the Wild West when it came to medical marijuana, and collectives popped up, working together to drive the medicinal marijuana industry forward with no laws governing them. As far as demand-side economics go, marijuana is the kind of product that never loses its value: you can’t go to the supermarket and buy it, but everyone always wants it. Knowing this, smart marijuana dispensary collectives pooled their resources and played by the state’s rules: take inventory from certified growers, register per clinical and/or pharmaceutical requirements, and abide by local business tax regulations. But somehow during this debate people got the impression that all dispensaries are making their profits by breaking rules and selling to the average pothead on the street—which would probably be the absolute stupidest thing a dispensary owner could do, despite the potential profits.
All at once, the San Diego county board members decided that there was too much growth in the dispensary industry for their liking. Forebodingly shifting their gaze in the dispensaries’ direction, the county passed a series of zoning ordinances, and in one fell swoop dramatically sliced away at the medicinal marijuana industry by forcing all dispensaries into separated pockets through the county. Each area was totally cut off from the other and the dispensaries were, in many cases, shuffled off to dark, forlorn corners of the county, where upstanding citizens of San Diego would be able to pretend that they never existed. High on life (and power), county board members then promptly patted themselves on the back for a job well done, and went out for drinks on the taxpayer’s dollar.
But enacting this countywide zoning ordinance had the unintended effect of cramming all dispensaries into “districts.” And some of these districts are near homes, parks, and (sweet merciful Jesus!) schools and children’s playgrounds! And pushing all dispensaries into the same areas helped cultivate stronger, more loyal collectives. Upon seeing a dispensary district weave itself more tightly into its urban fabric, the refined city council of San Diego decided that this would not do.
New zoning ordinances, based on use and distance, were floated to the public. Only specific commercial or industrial areas would be graciously allowed to have a few dispensaries, but even those will have restrictions, not being allowed any closer than a certain distance from schools, parks, homes, libraries and playgrounds. Those fighting to smoke the dispensaries out want them a thousand feet from pretty much anything in the city.
Those fighting for the rights of dispensary owners are trying to find as much middle ground as possible. Since there are a ton of dispensaries already on the available properties, and the little remaining space will most likely be taken up quickly by others that don’t want to go out of business), the 1,000-foot zoning ordinance would effectively make it impossible to build a dispensary in San Diego.
Is this a smart way to approach closing a thriving industry? Zoning can do dramatic things to a city’s landscape. Cities like Detroit (for example) sectioned off their industrial sectors to the corners of town, and once those industries collapsed they left behind dilapidated buildings and factory spaces. On the other hand, cities that become more integrative about their zoning rules—like San Antonio—tend to fare pretty well when it comes to adjusting for industries and businesses.
Using zoning ordinances to close marijuana dispensaries reminds me of the 1981 court case Robinson Township v. Knoll. This story begins with the Knoll family owning a plot of property in Robinson, Michigan, but not having the money to build a home. So they dug a well, installed a septic system, and did all the other basic stuff for setting up a house, but put up a trailer instead. Naturally, the citizens of Robinson got pissed off and decided to take the Knoll family to court and use the zoning rules to force the trailer home from their community. Lo and behold, in the end it was found to be unconstitutional to kick the Knoll family out of their trailer under the due process clause of the Fourteenth Amendment, which says this:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Having read this clause, do you think that it’s possible that the city and county of San Diego, in trying to use zoning ordinances to kick marijuana dispensaries out of certain areas, is violating business owners’ 14th amendment rights? Obviously, due process is more complicated than this, and cities should have some degree of control over how to zone their communities against insidious commercial interests. But the city and county are trying to use zoning laws to eliminate an industry that is thriving and law-abiding. Sure, it might be within the city’s right to set up these kinds of zoning ordinances. But, in the end, it could just be another example of how the United States can use the rule of law to keep its people away from things they’ll purchase legally or not (alcohol, fireworks, drugs, prostitutes, guns, plane tickets to Cuba, etc.).
If the person needs a trailer on their property, they’ll fight to put a trailer there. How much pushing around will marijuana dispensary owners endure before they tart fighting for their rights as business owners?
tony@fourstory.org
Comments
Hi Max, I actually agree with both of your points that the City of San Diego did not handle things well and that zoning for pot shops should handled under the police power.
But I brought up the Robinson/Knoll case to point out that when there’s a complete lack of zoning rules, it can seem unfair to suddenly develop some that affect a group of people retroactively.
However the dispensaries effect their communities, the shop owners may be receiving unfair treatment based on the assumptions of city officials. They may very well be similar to liquor stores (and should be zoned similarly), but those distinctions should be made clear without the deliberate intention of trying to close their businesses down and more with the intention of looking out for public safety (which may, as in the case of Robinson v. Knoll, be mutually exclusive intentions).
2010-09-16 by Tony ChaviraI agree - zoning of the pot shops should be based on a study that looks at the impacts of the pot shops on the community, preferably through a study, and not arbitraily.
But, I’ve got questions about the rest of your points.
In the case of Robinson Township v Knoll, the town had a zoning classification that said that mobile homes could only be located in trailer parks - Robinson put one in a place other than a trailer park - the court found that the rule itself was invalid because it was not a valid use of police powers.
While Robinson had installed a septic system, etc, they had not gotten a building permit or placed the home on the site before the law went into effect - so they had no vested right and it was my understanding that the ruling invalidated the law because there was no legitamite state interest in restricting mobile homes. . .not because they had some vested right.
I’m not privy to the background in S.D. but is the city proposing to retroactively kick these businesses out of their existing locations - or will they just become non-conforming uses once the zoning changes. The latter, which would have no practical imapct on them continuing to do business in thier current locations is what I would have assumed.
2010-09-16 by MaxHmmm… actually, not explaining the situation thoroughly enough is my fault. well, the county of San Diego had actually passed an ordinance that made dispensaries non-conforming in unincorporated areas. Although the city of San Diego had no zoning ordinances in place, they had passed a law prohibiting dispensaries from conducting business on city property (and this was what I was generally alluding to, not the zoning ordinance), which was then hardly (if ever) enforced but meant to close down all open shops at once. So now the city is in the process of developing similar ordinances as the county that would make these dispensaries non-conforming.
Knowing that their law was generally ineffective (I think that the city’s maybe enforced it once or twice), San Diego is trying to work with a Marijuana Task Force to develop zoning regulations for available dispensaries.
I can see what you mean by pointing out the incongruity of the Robinson v. Knoll ruling though, especially in terms of having a vested right to own or operate a dispensary in the first place. I guess that I was just using it more rhetorically as an example for how laws may or may not have the wider interests of the individual.
I also suppose this court case is a stretch because the city of San Diego is not in the process of trying to develop a system that creates a process for how dispensaries which will be allowed to operate should be structured and how they can operate legally (since the city knows they can’t outright shut them all down). Do you know a better example?
2010-09-16 by Tony ChaviraBah, apologies for my grammatical errors. I’m typing too quickly.
2010-09-16 by Tony ChaviraThanks for the clarification Tony - I’m still a little fuzzy, - by city property, I’m pretty sure you mean in the city limits - and not on city owned property - and from what you are saying the city IS creating a extremely strict law to regulate the location of new pot shops, which probably wouldn’t affect existing ones.
Ug. It has been a while since I took land use control law - so I can’t come up with a case that is a better analogy, but I don’t see the whole thing as a big deal.
For better or worse, the city council feels that the pot shops present a danger to the health and safety of the residents they represent. They first wrote a sweeping law that was beyond their ability to enforce - and now they are regulating it via zoning.
I think a million places have tried the same approach with any number of locally unwanted land uses, whether they be strip clubs, factory farms, or gas stations.
When they really run into trouble, is if the city then doesn’t follow the rules it set-up in the first place. In which case I’m sure the affected party would sue for damages and/or relief. E.g. http://seattletimes.nwsource.com/html/localnews/2012416289_stripclub22m.html
As far as your rhetorical question, “Is this a smart way to approach closing a thriving industry?” - Well the industry is still violating federal drug laws - and the California experience has been used as an example how not to regulate medical marijuana e.g. ( http://www.nytimes.com/2010/01/12/nyregion/12marijuana.html?_r=1 )
Personally, I think pot should be legal and regulated similarly to liquor across the country - and correspondingly pot shops could be regulated like liquor stores.
2010-09-16 by MaxColorado Springs is going throught exactly the same issue, a proposed 1000 ft. buffer zone I’m going to address the City Council today. The majority of the people voted against banning dispensaries back in November. Having lost at the polls, the minority is now trying to manipulate the zoning ordinances. In this right wing, evangelical christian city, it’s basically fighting the will of the religio-fascists and Focus On The Family. Anyway, I believe that these court cases may be a better reference than the Robinson Township v. Knoll case.
New State Ice Co. vs. Leibman, Yick Wo v. Hopkins, Dobbins v. Los Angeles, and maybe St. Benedict Center v. Town of Richmond. It is a violation of the 14th Amendment and an abuse of police powers that such an egregious and discriminatory restriction be placed on MMJ businesses.
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Hi Tony- I’m don’t care one way or the other what San Diego does regarding its pot dispensaries, but I think your Robinson Township vs knoll refernce is comparing apples and oranges.
http://www.lawnix.com/cases/robinson-knoll.html
“The court held that the per se exclusion of mobile homes from all areas not designated as mobile home parks has no reasonable basis under the police power and is therefore unconstitutional as a violation of substantive due process. The court was unable to identify any inherent characteristics of mobile homes that justified a per se prohibition against them. Concerns based on aesthetics, health and safety are illusory. Hence the ordinance is unconstitutional.”
I think that unlike mobile homes there could be a reasonable beleive that the pot shops, even if they are following the law, may have an impact similar to a liquor store - so, while San Diego might not of handled things well, I beleive that zoning for pot shops is a valid use of police powers.
2010-09-16 by Max