Another Perspective: Medical Marijuana Dispensaries Already Are Permitted in San Diego

At last week’s San Diego ASA meeting held Giovanni’s, aside from Councilmember Alvarez we also heard from several attorneys. Among them, Attorney Nathan Shaman spoke about Andrew Fisher’s pro-bono case as well as his defense of Higher Love, a legal medical marijuana collective targeted by the DA for prosecution right here in the county.

 

Following Tuesday’s ASA meeting, Interim Mayor Todd Gloria issued an order to shut down all dispensaries in the City. Below is Mr. Shaman’s response to Gloria’s new orders. It offers the other side of the story that advocates and lawyers have argued for years: namely, that medical marijuana dispensaries already are permitted under San Diego’s existing zoning scheme.

 

By: Nathan Shaman, Esq.

 

On Thursday, San Diego’s Interim Mayor Todd Gloria announced that he had ordered Code Enforcement to resume shutting down medical marijuana dispensaries in San Diego. This reversed former mayor Bob Filner’s orders that effectively halted such enforcement activities to ensure patients could have access to medical marijuana in San Diego. In the meantime, Filner had organized a group of the City’s top lawyers, advocates, and planners to iron out a new, reasonable ordinance that would expressly allow dispensaries in San Diego while tightly regulating them. I was fortunate to be a part of that group. However, in April the City Council, led by then-Council President Gloria, rejected our hard work in favor of obtaining a new proposal from the City Attorney. And in the end, this “new” proposal, submitted to the Council in May, ended up being a rehashed version of the failed ordinance the City enacted in 2011 and later repealed in the face of a threatened referendum. So, as has been the case for years, San Diego remains without an ordinance explicitly addressing medical marijuana dispensaries. But does that mean dispensaries are banned in San Diego?  

 

According to KPBS, Gloria stated on Thursday that at present San Diego doesn’t “actually have zoning regulations that allow for medical marijuana dispensaries.” However, this is only one version of the story. Of course, you never would have heard the other side because the media has not reported the other side. So, let me set the record straight. For most of its history, San Diego had a zoning scheme much like many smaller cities and counties in California. This “permissive use” zoning scheme spelled out a list of highly specific uses that were allowed in each particular zone. For instance, the ordinance might have specified that clothing stores and shoe stores were permitted in a particular commercial zone. Under the permissive use scheme, if a particular use was not listed, it was prohibited. Thus, groceries would not have been allowed. As the City continued to expand, however, city planners found that this system was too inflexible to ensure continued economic growth in San Diego. Novel business would come along, but they could not find into the existing scheme. As such, in the early 2000s, the City adopted a completely overhauled zoning scheme known as a “categorical use” zoning scheme.

 

Under the categorical use scheme, each zone is assigned various categories of uses. Thus, whereas a zone previously only may have permitted clothing stores and shoe stores, now the code would permit any “retail sales” use. Thus, groceries would also be allowed in such a zone. And, so would a health food supplement store such as GNC–a newer type of use. In fact, under this scheme, as long as the use in question qualifies as “retail sales,” that use is permitted by right in the given zone. It is this crucial development in San Diego’s zoning history that makes Gloria’s assertion suspect. Read the rest of the story here.

 

 

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