The San Diego County Board of Supervisors approved an amendment to the county’s Zoning Ordinance to cover medical marijuana facilities and also approved a regulatory ordinance for the licensing and operation requirements for such facilities.

The county supervisors approved the first reading and introduction of the regulatory ordinance June 23 and the second reading and adoption June 30. Both votes were by 4-1 margins with Supervisor Ron Roberts in opposition. A Zoning Ordinance amendment does not require a second reading and takes effect immediately, and the zoning component was approved June 30 on the 4-1 vote. The regulatory ordinance will take effect July 30.

"I think that what staff has brought before us is probably the best that we can do," said Supervisor Dianne Jacob.

Some public speakers opposed the ordinance as being too strict while others felt it was too lenient.

"I didn’t hear a lot of unqualified support for what’s before us," Jacob said.

In November 1996 the state’s voters passed Proposition 215, which allows the cultivation, possession, and use of marijuana for medical purposes, although under federal law the sale of marijuana for any purpose is illegal. Proposition 215 did not

address the sale of medical marijuana, although in 2003 the state legislature adopted Senate Bill 420, which prohibits prosecution of sales to persons with a prescription. Those authorized to possess or cultivate marijuana for personal medical purposes

include qualified patients, primary caregivers, and patients and caregivers who associate to collectively or cooperatively cultivate marijuana for medical purposes.

By August 2009 three medical marijuana dispensaries in unincorporated San Diego County were confirmed: two in Spring Valley and one in unincorporated Vista. On August 5, 2009, the Board of Supervisors adopted an urgency ordinance which enacted a moratorium on all new marijuana dispensaries. The moratorium was

intended to allow county staff time to study where such dispensaries should be allowed and determine appropriate use regulations.

A workgroup including staff members from the county’s Department of Planning and Land Use (DPLU), County Counsel, and the Sheriff’s Department worked to develop two companion ordinances, the regulatory and the zoning measures, to regulate medical marijuana facilities.

In 2001 DPLU granted an administrative permit for a topless dancing facility in unincorporated El Cajon across from a shopping center which included a children’s dance studio, an arcade, and a pizza parlor. In response to that situation, in 2002 the county supervisors amended the Zoning Ordinance to remove commercial zoning areas as potential sites for adult entertainment businesses and limit adult establishments not

grandfathered to land with industrial M50, M52, M54, and M58 zoning.

The adult entertainment ordinance also prohibited such establishments within 500 feet of a residential area, 600 feet of a school, church, or public park, or 1,000 feet from another adult entertainment establishment.

The zoning for medical marijuana dispensary facilities limits such dispensaries to the same M50, M52, M54, and M58 land as adult entertainment facilities while imposing separation requirements of 1,000 feet from each other, a church, school, public park, or residential area.

DPLU identified 187 possible industrial properties, although the 1,000-foot separation from other dispensaries reduces that number to between 15 and 25

sites. Although the county has a C46 Medical Center zoning category intended to create a concentration of medical and compatible uses, permitted civic uses in areas with C46 zoning include child care services and small schools as well as medical services. The allowance for medical-related facilities in C46 zones is not absolute; ambulance services are only allowed with a Major Use Permit. All development in C46 zones must have a site plan.

The restriction to industrial areas also makes cultivation facilities more compatible with surrounding businesses. The cultivation process requires heavy Advertisement

Shriners Hospital for Children electrical, air venting and circulation, fertilizing, and water usage requirements for which commercial buildings might not be suitable.

The Zoning Ordinance also requires dispensaries to be designed and constructed so that no area or portion where marijuana is cultivated or stored can be visible from the exterior while requiring the entrance to be visible from the public street. Dispensaries in commercial locations established prior to the moratorium must cease operations at that site prior to August 1, 2013, while facilities which opened illegally after the moratorium was enacted do not have such an amortization period.

Medical marijuana dispensaries do not require discretionary permits but will require building permits, licenses, and other ministerial authorizations.

Due to free speech issues the county cannot regulate the content of signage, although signage as well as parking requirements for medical marijuana dispensaries must conform to regulations for other businesses with similar zoning.

The county’s Planning Commission recommended distances equal to those stipulated in the adult entertainment ordinance, although the county supervisors reinstated the 1,000-foot separations proposed by DPLU staff.

"I just believe a thousand feet is a better distance requirement," Jacob said.

The ordinance to amend the County Code of Regulatory Ordinances involves law enforcement and was not covered in the May 14 Planning Commission hearing which focused on the zoning amendment.

The regulatory amendments include an operating certificate requirement which involves processing through the Sheriff’s Department licensing division and includes form submission, background checks and fee payment. Infrastructure requirements to ensure public safety include alarms, closed-circuit television, door, window, and visibility standards.

Operating requirements include record-keeping designed to show that the facility is operating as a non-profit collective and serving qualified patients; other operating requirements include hours of operation, age limitations, security guard presence, and prohibitions against on-site ingestion and the sale of food or drink containing marijuana.

"If they’re out of compliance with the new regulations, then they have no protection under either California law or Federal law," said Commander E.J. Pendergast of the Sheriff’s Department.

The County of San Diego does not have land use jurisdiction in incorporated cities.

"The cities have their own regulations," said Supervisor Pam Slater-Price.

The industrial zoning requirement and 1,000-foot restrictions led to the identification of sites in Ramona, Lakeside, Alpine, San Dieguito, unincorporated El Cajon, Julian, Borrego, and Spring Valley. Advocates of medical marijuana questioned the terrain and access of the sites.

"You’re lumping medical marijuana patients with the purveyors and patrons of porn," said Martha Sullivan of Del Mar.

The Lakeside sites are near Slaughterhouse Canyon and the San Vicente Dam. "It’s halfway between the 67 and Poway. There’s no public access. There’s no buses," said Lakeside resident Adela Falk. "It’s on a dirt road."

DPLU deputy director Jeff Murphy notes that the sites have both vehicular access and utility access.

"We feel that these sites meet that criteria," he said. "We’re not required to

identify sites and buildings which are turnkey ready."

Tom Hetherington, who owns a business in Bonsall, noted that the fees are necessary for enforcement.

"Money’s a big issue," he said. "I’m concerned about making rules and regulations that you won’t or can’t enforce."

Chemotherapy veteran Donna Lambert believes that the fees are overly restrictive.

"It’s the job of the local jurisdiction to facilitate the safe and affordable distribution," she said. "The high fees will encourage cartels and drug profiteers to be

the only groups who can afford to operate."

Lambert told the county supervisors that patients who are sick will need exemptions from the fees and that the fees could be waived under the Americans with Disabilities Act.

"I’m more concerned than ever that what we’re doing is the wrong thing," Roberts said.