Legal extent of rights to access of medical marijuana debated in the Town of Paradise Valley

Complete residential zoning adds complexity to enforcement of state law

Posted 6/10/20

A public hearing on a potential amendment to the Town of Paradise Valley’s medical marijuana dispensary regulations ordinance has been continued five times since June 2019.

Town Attorney …

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Legal extent of rights to access of medical marijuana debated in the Town of Paradise Valley

Complete residential zoning adds complexity to enforcement of state law

The Town of Paradise Valley is putting a medical marijuana dispensary zoning ordinance on the back-burner while legal issues are sorted out, among other matters.
The Town of Paradise Valley is putting a medical marijuana dispensary zoning ordinance on the back-burner while legal issues are sorted out, among other matters.
(File photo)
Posted

A public hearing on a potential amendment to the Town of Paradise Valley’s medical marijuana dispensary regulations ordinance has been continued five times since June 2019.

Town Attorney Andrew Miller says there is no rush to make changes to the regulations, compounded by the COVID-19 matter and budget issues. Further, it appears there may be some legal matters afoot concerning the proposed changes.

“We have continued this item as there is no rush to making changes to our regulations on medical marijuana dispensaries at this time. Also, dealing to COVID-19 matters and budget issues related to the impacts of COVID-19 have monopolized staff time, thus lower priorities such as this housekeeping item are not a rush,” Mr. Miller said in an emailed response to Independent Newsmedia.

“Also, staff is also looking at what had been initially drafted and analyzing how the town might need to be adjust the current regulations should the Smart and Safe Act pass and recreational marijuana become state law. That is why we have continued the draft ordinance regarding medical marijuana dispensary regulations.”

The Smart and Safe Act would legalize the sale, possession and consumption of one ounce of marijuana --- of which five grams can be concentrate --- for adults at least 21 years old.

The Nov. 3 general election ballot question has until this July to present enough qualified voter signatures to the Arizona Secretary of State’s Office to have the question placed on the statewide general election ballot.

Town documents show legal officials have been reviewing and analyzing the potential for litigation should the draft ordinance enact a 1,500-foot radius between medical marijuana dispensaries and residential properties since last year. A representative for Rose Law Group alerted the town that due to their residential make-up, the 1,500-foot stipulation would not leave any viable properties for dispensaries to operate within the town.

The current town zoning ordinance provisions do not have specific spacing requirements, but instead suggests that spacing should be a “primary concern” and that the spacing distance between medical marijuana dispensaries and residential properties should be “optimized.”

Other Valley municipalities have adopted specific spacing standards between medical marijuana dispensaries and residential projects, including Scottsdale, which stipulates a dispensary must be at least 1,500 feet from a residential dwelling.

In June 2019, prior to the first public hearing, Scottsdale-based firm Rose Law Group, which added a Hemp Law division in recent years, sent the town a letter contending the draft ordinance was illegal under the terms of the Arizona Medical Marijuana Act.

Mr. Miller said at the time it was best the council continue the public hearing for six months out, so research could be conducted on the claim the ordinance would be illegal. In December 2019, the Town Attorney’s Office was still researching the claim of illegality, but such work is ongoing, the council report stated.

Based on the need for additional legal research, the public hearing was continued to March 12.

The March council report echoed the same narrative, but a PowerPoint presentation was included this time.

During the public meeting, Mr. Miller began a presentation on the topic, but due to time constraints Mayor Jerry Bien-Willner shortened the conversation and requested to jump straight to the question, since the recommendation was to continue the item.

The council unanimously approved to continue the public hearing to April 23.

Within Mr. Miller’s PowerPoint, it states that the lawyer who testified in June, was of the belief that because Paradise Valley is predominately residential in character, instilling a 1,500-foot standard would result in no viable medical marijuana dispensary locations.

The PowerPoint also points out the town has not denied any medical marijuana requests. Only one application has been submitted to date, and it was withdrawn.

Prior to this ordinance amendment, Paradise Valley complied with Prop. 203, and has identified one feasible location for medical marijuana dispensaries, thus “limiting the use of land” for the business.

Because of the potential threat of litigation should the council adopt the 1,500-foot spacing standard, the Town Attorney’s Office has engaged outside counsel to assist in researching litigation risks and exploring options for spacing standards, the PowerPoint also adds.

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