BILL ANALYSIS �
SB 847
Page 1
Date of Hearing: June 29, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
SB 847 (Correa) - As Amended: May 10, 2011
SENATE VOTE : 31-2
SUBJECT : Medical Marijuana Program: zoning restrictions:
residential use.
SUMMARY : Prohibits any medical marijuana (MM) entity that
possesses, cultivates, or distributes MM from locating within
600 feet of a residential area unless a local ordinance has been
adopted to specifically regulate the location of these entities
in relation to residential use. Specifically, this bill :
1)Prohibits an MM cooperative, collective, dispensary, operator,
establishment, or provider who possesses, cultivates, or
distributes medical marijuana pursuant to this article from
being located within a 600-foot radius of a residential zone
or residential use unless the city council or county board of
supervisors adopts, an ordinance specifically regulating the
location of those establishments in relation to residential
zones or residential use.
2)Authorizes a local ordinance to be more or less restrictive
than the 600-foot radius state standard that applies in the
absence of a local ordinance.
EXISTING LAW :
1)Requires each planning agency to prepare and the legislative
body of each county and city adopt a comprehensive, long-term
general plan for the physical development of the county or
city, and of any land outside its boundaries which in the
planning agency's judgment bears relation to its planning.
2)States that the Legislature finds that the diversity of the
state's communities and their residents require planning
agencies and legislative bodies to implement this article in
ways that accommodate local conditions and circumstances,
while meeting its minimum requirements.
3)Prohibits any MM cooperative, collective, dispensary,
SB 847
Page 2
operator, establishment, or provider who possesses,
cultivates, or distributes MM, as specified, from being
located within 600 feet of a school.
4)Establishes the Compassionate Use Act, approved by voters as
Proposition 215 of 1996, to provide the right to obtain and
use marijuana for medical purposes where medical use is deemed
appropriate and has been recommended by a physician and
ensures that patients and their primary caregivers are not
subject to criminal prosecution or sanction.
FISCAL EFFECT : Unknown
COMMENTS :
1)In November 1996, Californians voted in favor of Proposition
215, the Compassionate Use Act (Act), to ensure the right of
patients to obtain and use marijuana in California to treat
specified serious illnesses. Proposition 215 protects
physicians who appropriately recommend the use of marijuana to
patients for medical purposes from criminal penalties; exempts
qualified patients and their primary caregivers from state
drug laws prohibiting possession and cultivation of marijuana;
and, directs the state to implement a plan for the safe and
affordable distribution of marijuana.
Following adoption of the Act, marijuana dispensaries and
growing facilities proliferated throughout the state. The
operators of these facilities often open without first
determining whether the uses are permitted under local zoning
and land use regulations or they begin operations with full
knowledge that the uses are prohibited. As a result, cities
throughout the state continue to allocate an enormous amount
of resources to address land use and legal issues surrounding
medical marijuana.
2)Cities and counties use their police power to protect the
health, safety, and welfare of the public. The police power
allows cities and counties to act in the interest of their
unique community. Under the police power, local agencies may
enforce all local police, sanitary, and other ordinances and
regulations not in conflict with general laws of the state. A
land use regulation lies within the police power if the
SB 847
Page 3
purpose of the act reasonably relates to the public welfare.
3)According to a 2010 report by the League of California Cities
entitled "Medical Marijuana Facilities: Land Use Planning in a
Sea of Uncertainty," cities and counties throughout the state
continue to struggle with public policy issues regarding the
use, distribution and regulation of marijuana. Numerous
cities and counties are embroiled in litigation. Some are
engaged in philosophical debates involving the morality of
drug availability and use and others are simply concerned
about local land use controls. Some cities and counties have
permanently banned dispensary operations in their communities,
others have adopted temporary land use moratoria
Until City of Claremont v. Kruse, 2009 Cal. Lexis 12497 (Cal.,
Dec. 2, 2009), cities remained uncertain about the interaction
between state medical marijuana laws and their own land use
and zoning enactments, even though local governments
traditionally exercise control in the land use arena. Having
published the Kruse opinion, the Court of Appeal provided the
guidance that cities have sought. The Kruse opinion confirms
that the Compassionate Use Act and Medical Marijuana Program
do not preempt a city's enactment or enforcement of land use,
zoning or business license laws as they apply to medical
marijuana dispensaries. Based on the Court of Appeal's
thorough analysis of state preemption law, cities retain their
police power to regulate and, if necessary, restrict the
operation of dispensaries.
4)According to the author 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), Chapter 603,
Statutes of 2010, 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.
SB 847
Page 4
5)Support arguments: Supporters contend that an unintended
consequence of Proposition 215 has been the widespread
proliferation of MM dispensaries, often within neighborhoods.
The City of Anaheim asserts that this bill recognizes the
importance of protecting our youth from the various negative
impacts of MM establishments by providing local communities
with another layer of protection aimed at keeping these
facilities out of residential neighborhoods. Supporters add
that specifying a 600 foot buffer between these entities and
residential areas in a manner that is similar to what already
exists for schools is a reasonable and simple approach to
ensuring that neighborhoods are not negatively and unduly
impacted.
Opposition arguments: Representatives of MM patients and
providers object to this bill, arguing that it preemptively
imposes an arbitrary one-size-fits-all statewide standard on
local governments that have not yet adopted regulations
governing MM establishments, which they contend, is a highly
unusual usurpation of local land use policy. Opponents
maintain that high density cities would experience a reduction
or outright elimination of lawful dispensary locations as a
result of this bill, which would then impose an unnecessary
and unacceptable burden on qualified patients accessing MM.
6)This bill was heard in the Health Committee on June 21, 2011,
and passed with a 16-1 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Cities - Orange County
City of Anaheim
City of Norwalk
Peace Officers Research Association
Opposition
Americans for Safe Access
Drug Policy Alliance
Marijuana Policy Project
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916)
SB 847
Page 5
319-3958