Pubdate: Sun, 28 Aug 2016
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2016 The Arizona Republic
Contact: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html
Website: http://www.azcentral.com/arizonarepublic/
Details: http://www.mapinc.org/media/24
Authors: Grant Woods and Phil Gordon
Note: Grant Woods is an attorney and former Arizona Attorney General. 
Phil Gordon is director of CSS NantHealth Foundation and former 
Phoenix mayor. Both live in Phoenix.

ZONING UP IN SMOKE

Much of the talk lately has been about the ballot initiative for 
recreational marijuana use, but Arizona will award licenses for 31 
new medical marijuana dispensaries in October.

Most will be worth millions of dollars the day they are issued, and 
all an applicant had to do was find a location that complies with 
local zoning and pay a $5,000 fee. This sounds simple enough, but 
there are serious problems.

The Arizona Department of Health Services, which awards the licenses 
lottery-style, doesn't require dispensary applicants be 100 percent 
compliant with zoning the day of the drawing.

Rather, the state department requires that the dispensary has the 
potential to become compliant. Read: it could get a variance or some 
other land-use exception to open in a locally prohibited place, 
whether near a school, a place of worship or a neighborhood.

While a city and its zoning board are the line of defense in 
protecting these areas, you can bet these valuable dispensaries will 
have a team of zoning experts working to overcome zoning hurdles. And 
if the hurdle can't be cleared, the dispensary doesn't forfeit its 
license, it gets to choose a new spot that could be miles in either 
direction. This leads to a lack of transparency, or a lot of moving 
parts for even the most astute resident to monitor. Many just give up 
the fight.

In Phoenix alone, the city has granted 67 marijuana-related 
exceptions since they began operations several years back.

This is wrong. Residents deserve predictability and certainty in 
decisions about where dispensaries will open. They should feel 
confident the state will only consider applications that fully comply 
with the laws, ordinances and rules designed to protect the character 
of our neighborhoods.

We have time to fix this, if leaders act

Because this process is still underway at ADHS, there is time to fix 
the problem.

The solution is simple: Do not award a dispensary to any applicant 
unless they are in full compliance with all zoning, land-use and 
development standards. No exemptions, no variances and no exceptions.

Just enforce the existing policies to protect our neighborhoods at 
the time the application was filed. If an application doesn't fully 
comply, toss it. This single change would prevent a license from 
being awarded to locations that state and local leaders have sensibly 
protected for years.

We believe that Arizona has some pretty good zoning and development 
policies that, more often than not, actually result in good land-use 
decisions. These policies are predictable, largely transparent, and 
usually allow for public participation. They are designed to make 
sure we don't end up with high-rises next to neighborhoods or place a 
landfill where the community doesn't want it. Residents and local 
businesses should expect nothing less than this same level of 
scrutiny and oversight when it comes to locating a medical marijuana 
dispensary.

How can this happen?

The reasoning that allows non-compliant applications to be considered 
legitimate is a little fuzzy.

Because a variance can be granted - basically an exemption from local 
zoning protections - it is possible to place a dispensary in a 
prohibited location. These prohibited locations are places that most 
of us consider off-limits, such as near a school, a church or a 
day-care center.

Yet these applications are being treated as legitimate based upon the 
notion that a variance could someday, somehow be granted. In other 
words, because an address has the potential to become fully compliant 
with state and local zoning restrictions through a variance or 
similar maneuver, it receives the same treatment as an application 
that is ready to open for business.

For a license application to be submitted to ADHS, it must include a 
completed form certifying that the proposed location "complies" with 
local zoning. The application isn't valid unless a city, town or 
county official signs off on it. This very official looking form is 
entitled "Documentation of Compliance with Local Jurisdiction 
Zoning." It even includes a box to be checked that says: "The 
location of the proposed dispensary is in compliance with local 
zoning restrictions related to where a dispensary may be located."

However, city officials, in signing off on these forms, seem to have 
concluded that the potential for compliance is just as good as actual 
compliance.

The notion that "compliance" means anything other than complete 
conformity with state and local land use requirements is just silly.

The rush to certain areas

Making matters worse, the mailing address of Arizona's 100,000 
medical marijuana cardholders is the most significant factor in 
determining where a license will be awarded. So, the most creative 
applicants are submitting addresses located as close to these 
neighborhoods as possible.

Some of the biggest challenges can be found in Phoenix, where we 
live. Because Phoenix has many medical marijuana card holders, at 
least nine of the 31 licenses will be granted within the city, and 
there are hundreds of applications.

In the weeks before last month's application deadline, stories of 
applicants paying landlords to use addresses began to emerge. One 
proposed location on Camelback Road falls within the protective 
boundaries surrounding the nearby Faith Lutheran Church, St. Francis 
Catholic Church, Brophy and Xavier College Prep, as well as an 
elementary school, a preschool, and a neighborhood just 22 feet away. 
Despite its obvious problems, a location such as this would be given 
the same consideration as every other applicant when it comes to 
awarding a license.

It's safe to assume that an applicant who receives a license to open 
at a location like this will seriously consider hiring a team of 
zoning experts to obtain the variances they will need to open a 
dispensary on that spot.

We are calling upon our mayors and councilmembers, state legislators 
and the governor to "Just Say No" to these bogus applications. They 
have the authority to instruct ADHS to interpret "compliance" at the 
local level as "fully compliant" and nothing less. In other words, no 
zoning variance needed. The agency already has the legal authority to 
scrap those applications deemed incomplete or fraudulent. To protect 
our schools, neighborhoods and places of worship, this needs to be 
done now, before the licenses are awarded.

With so much attention focused on the upcoming statewide vote on the 
legalization of the adult use of marijuana in our state, it is hard 
to ignore the politics associated with this topic. While medical 
marijuana is clearly here to stay, the fight against legalizing adult 
use has become a banner issue for the chamber of commerce and a 
handful of Arizona business leaders and elected officials. We are 
asking our state's leadership to take a brief detour on their way to 
the anti-legalization battlefield in the November General Election 
and resolve this issue before it is too late.

This problem is an urgent one. Decisions on these applications will 
be made in the coming days and weeks that will have an impact across 
our state well into the future. By acting now, we can help our 
communities avoid the uncertainty that will result from the current 
approach to issuing new licenses. The two of us are ready and willing 
to stand with our state and local leaders to ensure that Arizona does 
this right.
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MAP posted-by: Jay Bergstrom