Supervisors approve marijuana dispensary ban

The San Diego County Board of Supervisors voted to ban marijuana dispensaries in unincorporated San Diego County.

Dianne Jacob, Kristin Gaspar, and Bill Horn voted in favor of a complete ban on both medical marijuana dispensaries and recreational dispensaries, including cultivation-only facilities and existing facilities which will be given a five-year amortization period. Greg Cox and Ron Roberts voted against the motion to ban the dispensaries.

The 3-2 vote March 15 approved the first reading and introduction of the ordinance regarding the licensing and also amended the county's Zoning Ordinance to prohibit dispensaries, and a 3-2 vote March 22 approved the second reading and adoption.

The change to the Zoning Ordinance specifies that the definition of the prohibited facilities does not apply to a single qualified patient or to a primary caregiver growing medical marijuana.

"I continue to believe a ban is in the best interests of public safety and in the best interest of the people in our community," Jacob said.

In November 1996, the state's voters passed Proposition 215, which allows for the cultivation, possession, and use of marijuana for medicinal purposes.

In June 2010, the Board of Supervisors adopted regulations to the county's Zoning Ordinance to address medical marijuana dispensaries while also approving a regulatory ordinance for licensing and operating requirements. Medical marijuana dispensaries were restricted to parcels with M50, M52, M54, or M58 industrial zoning with a minimum 1,000-foot separation from each other, a church, a school, a public park, or a residential area.

The supervisors' 2010 zoning stipulations preceded a court decision that jurisdictions could ban dispensaries completely. Seventeen of the county's 18 incorporated cities enacted bans on dispensaries with the City of San Diego being the exception, although local ballot measures in the November 2016 election permitted dispensaries in the cities of La Mesa and Lemon Grove.

The licensing process revealed that the 1,000-foot separation from a residential area is from parcels with residential zoning rather than properties with residential use.

In March 2016, the Board of Supervisors placed a 45-day moratorium on new dispensaries while directing county staff to provide potential modification measures including changing the 1,000-foot separation requirement from parcels with residential zoning to parcels with residential use, increasing the buffer distance from residences and other sensitive land sites, adding incorporated cities to the 1,000-foot separation requirement, requiring a Major Use Permit which would include public review, increased civil penalties for violators of the ordinance, and exploring increased enforcement.

In April 2016, the county supervisors voted 5-0 to extend the moratorium by an additional 10 months and 15 days while confirming the direction to staff to provide potential modifications. The moratorium allowed existing applications to move forward and be reviewed on a case-by-case basis.

The case-by-case review of existing applications determined whether substantial work had taken place for the project to be vested. Two licensed dispensaries currently operate in the unincorporated county: Outliers in unincorporated El Cajon near the Gillespie Field airport and ShowGrow in Ramona near Ramona Airport.

Four additional dispensaries were issued building permits: two in Ramona, one in unincorporated El Cajon, and one on Nelson Way on the Valley Center-Escondido border and within the Valley Center Community Planning Area.

Licenses but not building permits were approved for four additional facilities consisting of two in the Flinn Springs area of Lakeside, one in Ramona, and one in Julian. The two Ramona facilities which had been issued building permits were deemed vested along with the Nelson Way dispensary while vesting was denied for the El Cajon application and for the four proposed dispensaries with licenses but not building permits.

The potential modifications were discussed by the county's Planning Commission on Nov. 4. A 6-0 vote with Doug Barnhart absent recommended a limit of four dispensaries in any supervisorial district and two in any community planning area, a requirement for a Minor Use Permit, increasing the minimum purchase age from 18 to 21, limiting dispensary hours to between 10 a.m. and 8 p.m., requiring security cameras and security guards, and increased fine amounts for repeat violators. The recommendation retained the 1,000-foot buffer from sensitive areas and did not separate sales from cultivation.

(Both a Major Use Permit and a Minor Use Permit require public review and environmental documentation. A Minor Use Permit application is heard by the county's Zoning Administrator, and the decision can be appealed to the Planning Commission. A Major Use Permit request is placed on a Planning Commission agenda and can be appealed to the Board of Supervisors.)

On Nov. 8, California's voters approved Proposition 64, which legalized the recreational use of marijuana. Although Proposition 64 prohibits local governments from banning the transportation of marijuana on roads within their jurisdiction, city or county governments can still regulate sales facilities.

"The passage of recreational marijuana has complicated things," Gaspar said. "The problem is it can't be bifurcated."

When the Board of Supervisors considered the Planning Commission's recommendation at a Jan. 25 hearing, the supervisors voted 3-2 for a complete ban.

Because the option of a ban had not been discussed at the Nov. 4 Planning Commission meeting, that zoning regulation was required to be heard by the Planning Commission although the commissioners were not obligated to recommend in favor of the proposed ordinance banning facilities entirely.

A 5-0 Planning Commission vote Feb. 10, with Barnhart and David Pallinger absent, approved a recommendation against the proposed total ban with a statement that a ban would be counterproductive due to the lack of regulation of a black-market alternative including pesticide restrictions, the risk that a citizens' initiative would create more lenient zoning, and increased travel for medical marijuana patients.

The Planning Commission's proposal was that the two existing medical marijuana dispensaries in unincorporated San Diego County along with the three facilities which had been deemed vested should be allowed to operate without an amortization period and a 4-1 vote, with Michael Seiler opposed, recommended the allowance of those five dispensaries with a ban on all other dispensaries and a ban on outdoor signage and advertising.

"We've resolved those people's fears and concerns," said Chris Brown, who represented the San Diego County Trade Association of Medical Marijuana Collectives.

Brown noted that the concerns about juveniles obtaining marijuana were irrelevant to legally-operating medical dispensaries. "A ban on medical marijuana facilities will not keep joints, bongs, and pipes out of the hands of our youth," he said.

"We have been compliant," said Outliers chief executive officer Lincoln Fish.

"What you're proposing will have the opposite effect," Fish said. "You need people like us who are doing it the right way."

"We're not here to change the ordinance to recreational," said Dino Berardino, whose Ramona facility was deemed vested.

The Planning Commission proposal to limit storefronts to those already in operation or vested would have eliminated the scenario of legal dispensaries in communities which expressed the greatest concern.

"We're only talking about five dispensaries," Berardino said. "I will not go into Lakeside nor Julian and I will not sell to under 21."

Residents of Lakeside, Julian, and other communities still argued for the ban. "This would be detrimental to our community and our small Sheriff's station," said Karen Ensall of the Lakeside Community Planning Group.

Only one of the two proposed Lakeside dispensaries would have been able to open since the two locations are within 1,000 feet of each other, but Old Highway 80 is a two-lane road. "We don't think they would be able to handle the traffic," Ensall said. "They will ruin our rural atmosphere and our way of life."

Jean Duffy has lived in Julian for 23 years. "This is not about medicine. This is strictly about the commercialization," she said. "The residents of unincorporated San Diego County have moved to the backcountry to have a healthy and whole way of life."

Misty Dornon and her family live on a Julian parcel which was rezoned from agricultural to industrial (with residential use being grandfathered) and abuts one of the parcels proposed for a dispensary. "We love Julian. We want to see our community stay safe and sound," she said.

"I'm very concerned about the number of dispensaries that could open," said retired Rancho Santa Fe teacher Diane Rapp.

"The county's seven-year experiment with medi-pot businesses has not contained the black market," said Mount Helix resident Lorenzo Higley.

Patricia Riggs, who represented the Dehesa Valley Community Council, expressed concerns about the security of cultivated cannabis. "Avocado farmers already have problems with theft," she said. "Please continue to protect our unincorporated area."

In January the San Diego County Farm Bureau took a position in favor of cultivation. "Cannabis can be grown here in a restricted environment to the benefit of local farmers," said San Diego County Farm Bureau executive director Eric Larson. "Cultivation can be regulated to your satisfaction."

"We would like the board to adopt an ordinance to allow commercial production," said Bonsall flower grower Mike Mellano.

"We are supportive of regulation," said Southern California Responsible Growers Council chair Anthony Wagner. "We believe that cultivation-only sites will produce no threat to public health and safety."

Fallbrook organic citrus farmer Helene Beck noted that she is under an Asian Citrus Psyllid quarantine. "I need diversity because this is a huge threat," she said.

Beck also noted the environmental benefits of cannabis cultivation. "Cannabis is a benefit to the soil. It adds restorative value," she said.

"We have great farmers here in San Diego. Why would we impede their capability to sustain themselves?," said Karen Archipley of Archi's Acres in Lilac.

Archipley also noted that regulation would ensure that cultivated cannabis meets standards. "I want to know what I do is organic; that's important to me," she said.

Jacob noted that the ban would not eliminate non-profit collectives or cultivation for personal (including caregiver patient) use, nor would the ban apply to dispensaries in incorporated cities. "Access to medical marijuana is not an issue at this point," she said.

Gaspar noted that when voters approve a measure local governments are called upon to manage the results. "The item before us in discussion today has to do with the unincorporated areas of San Diego County," she said.

Gaspar and her husband own a physical therapy business, and many of her patients are medical marijuana users. "We're not here to debate whether or not medical marijuana is helping patients," she said.

Concerns about law enforcement resources being expended on abuses contributed to Gaspar's support of the ban. "This is a decision on can I manage the unintended consequences," Gaspar said.

"San Diego really can't afford the unintended consequences on the horizon," Gaspar said. "We have an obligation to keep our communities safe and fiscally sound."

Roberts noted the possibility that an initiative would dictate zoning and other regulations on the voters' terms rather than with controls by the county supervisors. "We will be giving fuel to what might be other unintended consequences," Roberts said. "I'm very much concerned that we're going to lose control of this in a practical way."

"If the ban is held in place I would not be surprised to have an initiative started," Cox said.

Cox noted that residents of incorporated cities would be able to vote on that initiative to zone marijuana facilities in unincorporated San Diego County and that such an initiative could also address recreational marijuana stores. "We will basically have abdicated our authority as the Board of Supervisors," he said.

"Today we're not talking about recreational usage of marijuana," Cox said. "I do support allowing a reasonable number of medical marijuana facilities to be available."

Cox noted that the existing legal medical marijuana facilities adhere to standards. "We've had operating facilities in this county for a good number of years that have not created any problems I'm aware of," he said. "They've been well run. They've been within the confines of the ordinance."

Sufficient citizen petitions can place an initiative on the ballot, and the county supervisors can also place a measure on the ballot for election. In the event two ballot measures in the same election have conflicting provisions, the provisions of the one which receives the most votes in favor are enacted. Jacob noted that the option of a ballot measure supported by the Board of Supervisors could nullify some provisions of a citizens initiative. "We as a board would have the right to put our own measure on the ballot," she said.