BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 847 HEARING: 4/27/11
AUTHOR: Correa FISCAL: Yes
VERSION: 4/25/11 TAX LEVY: No
CONSULTANT: Weinberger
MEDICAL MARIJUANA LOCATIONS
Prohibits medical marijuana establishments from locating
within a 600-foot radius of a residential zone or
residential use.
Background and Existing Law
Every county and city must adopt a general plan with seven
mandatory elements: land use, circulation, housing,
conservation, open space, noise, and safety. Cities and
counties' major land use decisions --- subdivisions,
zoning, public works projects, use permits --- must be
consistent with their general plans.
The police power is the authority of governments to
regulate private behavior in the public interest,
consistent with constitutional rights and procedures. The
California Constitution allows cities and counties to "make
and enforce within �their] limits all local police,
sanitary, and other ordinances and regulations not in
conflict with general laws." Zoning and use permits are
examples of how lo-cal officials use their police powers to
regulate land uses.
State law sometimes limits local discretion over land uses.
The Legislature has limited (or even preempted) local land
use regulations for specific land uses:
Manufactured housing in residential zones (AB 3735,
Bornstein, 1994).
Second units in residential zones (AB 1866, Wright,
2002).
Amateur radio station antenna structures (AB 1228,
Dutton, 2003).
Solar energy systems (AB 2473, Wolk, 2004).
Wireless telecommunications collocation facilities
(SB 1627, Kehoe, 2006).
SB 847 -- 4/25/11 -- Page 2
Small wind energy systems (AB 45, Blakeslee, 2009).
The state has also taken land use permit powers away from
local officials in four regions to protect natural
resources with statewide importance: the Delta Protection
Commission, the San Francisco Bay Conservation Development
Commission, the Tahoe Regional Planning Agency, and the
California Coastal Commission.
State law also regulates certain land uses' proximity to
specific sites. For example the Legislature has banned
tobacco ads on billboards within 1,000 feet of schools (AB
752, Migden, 1997) and development on active earthquake
faults (SB 5, Alquist, 1975).
In 1996, the voters approved Proposition 215, the
"Compassionate Use Act," which allows individuals to grow
or possess marijuana for medical use when recommended by a
physician to treat specified illnesses. Subsequent
legislation clarified and implemented Proposition 215 by
creating the California Medical Marijuana Program (SB 420,
Vasconcellos, 2003). State law requires county departments
of health to issue and regulate medical marijuana
identification cards.
Hundreds of retail enterprises in communities throughout
California cultivate and sell medical marijuana to patients
with identification cards. Local ordinances regulate these
medical marijuana establishments, called buyers' clubs,
collectives, cooperatives, or dispensaries. Some local
ordinances ban such establishments, create zoning
restrictions on their locations, or tax their operations.
In response to concerns that some medical marijuana
establishments encroach on areas where children congregate,
the Legislature prohibited medical marijuana establishments
from locating within a 600-foot radius of a school (AB
2650, Buchanan, 2010). That prohibition applies only to a
medical marijuana cooperative, collective, dispensary,
operator, establishment, or provider that is authorized by
law to possess, cultivate, or distribute medical marijuana
and that has a storefront or mobile retail outlet which
ordinarily requires a local business license. It does not
apply to a medical marijuana cooperative, collective,
dispensary, operator, establishment, or provider that is
also a licensed residential medical or elder care facility.
SB 847 -- 4/25/11 -- Page 3
Last year's Buchanan bill allowed cities and counties to
adopt ordinances or policies that further restrict the
location or establishment of a medical marijuana
cooperative, collective, dispensary, operator,
establishment, or provider. It did not preempt local
ordinances, adopted before January 1, 2011, that regulate
the location or establishment of a medical marijuana
cooperative, collective, dispensary, operator,
establishment, or provider.
Concerned that medical marijuana establishments are
encroaching on residential areas, some local officials want
to expand the prohibition enacted by last year's Buchan
bill to include residential zones and uses.
Proposed Law
Senate Bill 847 prohibits any medical marijuana
cooperative, collective, dispensary, operator,
establishment, or provider who possesses, cultivates, or
distributes medical marijuana from locating within a
600-foot radius of a residential zone or residential use.
SB 847 applies only to a medical marijuana cooperative,
collective, dispensary, operator, establishment, or
provider that is authorized by law to possess, cultivate,
or distribute medical marijuana and that has a storefront
or mobile retail outlet which ordinarily requires a local
business license. The bill does not apply to a medical
marijuana cooperative, collective, dispensary, operator,
establishment, or provider that is also a licensed
residential medical or elder care facility.
SB 847 does not prohibit a city, county, or city and county
from adopting ordinances or policies that further restrict
the location or establishment of a medical marijuana
cooperative, collective, dispensary, operator,
establishment, or provider. The bill does not preempt
local ordinances, adopted before January 1, 2011, that
regulate the location or establishment of a medical
marijuana cooperative, collective, dispensary, operator,
establishment, or provider.
The bill specifies that the 600-foot radius is the
horizontal distance measured in a straight line from the
property line of the residential zone or residential use to
SB 847 -- 4/25/11 -- Page 4
the closest property line of the lot on which the medical
marijuana cooperative, collective, dispensary, operator,
establishment, or provider is to be located without regard
to intervening structures
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . As medical marijuana dispensaries
proliferate, state law provides limited guidance on the
most appropriate locations for these establishments. Some
local officials worry that medical marijuana establishments
located near private residences may create public safety
and health problems. Last year, AB 2650 (Buchanan) set a
precedent for creating a buffer-zone between specific land
uses and medical marijuana establishments. State law also
prohibits anyone from smoking medical marijuana outside of
a residence or within 1,000 feet of a school, recreation
center, or youth center. SB 847 is a similar measure that
ensures that medical marijuana dispensaries are located a
reasonable distance away from private residences.
2. Constitutional ? The Legislature may not amend or
repeal an initiative statute unless the initiative
authorizes the amendment or the amendment is approved by
voters (Article II, �10�c]). Proposition 215 does not
authorize the Legislature to amend that measure without
voter approval. Proposition 215 declared that its purpose
was, in part, "To ensure that seriously ill Californians
have the right to obtain and use marijuana for medical
purposes where that medical use is deemed appropriate?" By
substantially restricting where medical marijuana
establishments can locate, SB 847 may not be consistent
with the intent of a voter-approved initiative. Because
the changes that SB 847 makes to state law aren't subject
to voter approval, the Committee may wish to consider
whether a court would find the bill to be unconstitutional.
To avoid the risk of a constitutional challenge, SB 847's
proponents could ask the Legislature to place an initiative
before voters that would make the same changes that are
proposed in the bill.
SB 847 -- 4/25/11 -- Page 5
3. Local control . Local voters elect county supervisors
and city council members to make public policy in response
to local needs. Local land use decisions that strike a
delicate balance between protecting private residences and
ensuring that patients and caregivers can obtain medical
marijuana are best made by city and county officials.
Elected officials in cities like Berkeley (Alameda County),
Dunsmuir (Siskiyou County), Martinez (Contra Costa County),
and Visalia (Tulare County), among others, have approved
ordinances limiting medical marijuana dispensaries'
proximity to schools or residences. However, a statewide
prohibition against medical marijuana establishments
locating near any residential zones or uses could
significantly reduce or eliminate patients' ability to
obtain medical marijuana in some communities that strongly
support providing safe, legal access. The Committee may
wish to consider whether SB 847 substitutes an arbitrary,
one-size-fits-all standard for local officials' informed
judgments about their communities.
4. Pending litigation . The Los Angeles Superior Court is
considering challenges to a Los Angeles city ordinance that
prohibits marijuana dispensaries within 1,000 feet of
"sensitive use areas." Petitioners argue that the Los
Angeles ordinance effectively eliminates access to
marijuana in a manner inconsistent with Proposition 215.
The Committee may wish to consider whether the Legislature
should impose a similar restriction statewide before the
court makes a final decision on this suit.
5. Not charter cities . The California Constitution lets
charter cities control their municipal affairs. The 120
charter cities must follow statewide laws only for is-sues
of statewide concern when the Legislature has fully
occupied the field. The courts -- not the Legislature --
interpret the Constitution and decide what's a municipal
affair and what's an issue of statewide concern. Because
SB 847 does not declare that regulating medical marijuana
establishments' proximity to residential zones or uses is
an issue of statewide concern, the bill doesn't apply to
charter cities like Anaheim, the bill's sponsor. If the
Committee wants the bill to control charter cities, then it
should insert a specific declaration that the Legislature
considers regulating medical marijuana establishments'
proximity to residential zones or uses to be an issue of
SB 847 -- 4/25/11 -- Page 6
statewide concern and insert a persuasive recital of
legislative findings to bolster that claim. Even then, the
courts must agree.
6. Definitions . SB 847 does not define the phrase
"residential zone," which appears nowhere else in statute.
It is unclear whether a "residential zone" includes only
parcels zoned exclusively for residential use or whether
the bill is intended to impose a buffer around any parcel
on which a residential use is allowable, either by right or
by permit, under a local zoning ordinance. To apply the
600-foot prohibition to any parcel that is - or may be -
used for residential purposes, the Committee may wish to
consider amending SB 847 to replace references to
"residential zone, or residential use" with "any parcel
which is zoned for, or used for, residential use."
7. A flexible standard . SB 847 doesn't preempt local
ordinances adopted before January 1, 2011 regulating the
location or establishment of medical marijuana enterprises
and doesn't preempt ordinances that impose further
restrictions on medical marijuana enterprises. Rather than
preempting local ordinances that are less restrictive than
state law and adopted after an arbitrary date, the
Committee may wish to consider amending SB 847 to delete
the January 1, 2011 statutory deadline for passing less
restrictive local ordinances. Without this deadline, SB
847 would establish a statewide default standard requiring
marijuana establishments to locate at least 600 feet from
residential zones, or residential uses, in communities that
do not adopt their own ordinances specifying either a
longer or shorter distance, based on local conditions.
8. Mandate . By creating a new crime, SB 847 also creates a
new state-mandated program. But the bill disclaims the
state's responsibility for reimbursing local governments
for enforcing these new crimes. That's consistent with the
California Constitution, which says that the state does not
have to reimburse local governments for the costs of new
crimes (Article XIIIB, �6�a]�2]).
9. Back to Rules . Because some of SB 847's new provisions
may fall within the Senate Public Safety Committee's policy
jurisdiction, the Senate Governance & Finance Committee
will refer SB 847, if it passes, to the Senate Rules
Committee for a possible re-referral to Public Safety.
SB 847 -- 4/25/11 -- Page 7
Support and Opposition (4/21/11)
Support : City of Anaheim.
Opposition : Americans for Safe Access, Drug Policy
Alliance.