By Doug Curlee | Editor at Large

Lawsuits may be in the near future unless City Council acts

“This is completely asinine, but it’s the law.”

Those words from planning commissioner Anthony Wagner pretty much ended what had promised to be a very long day at City Hall, and also brought to the surface long-simmering Planning Commission discontent with the approval process for medical marijuana dispensaries in the city.

The Planning Commission meeting also brought about some of the first talk about lawsuits against the city.

More than 200 people were in the council chamber waiting to testify on both sides of the medical marijuana issue the morning of the Dec. 10 meeting. They never got to say a word for the record.

Three candidates, including two in the Grantville area, were appealing a city hearing officer’s denial of their application for the right to open medical marijuana dispensaries. They all ran afoul of the ordinance clause that says they cannot locate within a 1,000 feet of dedicated parkland.

The actual trigger for what happened was an appeal from a decision denying a use permit at 3455 Camino Del Rio South in Mission Valley. The building is less than a 1,000 feet from what’s known as Indian Hill, which is dedicated parkland despite the fact there is no public access to it at all, and apparently no hope for any.

“I think I see where this is going,” said Commission Chairman Tim Golba. He tried to find some way around the Municipal Code provisions regarding distance separation and wondered if there was a possibility of approving a waiver of the distance requirements on individual cases. That idea was shot down by the city attorney’s office, as was the idea of a variance.

Both Grantville applicants were listening closely, knowing this all applied to them as well, due to their being located less than a 1,000 feet from the dedicated (and inaccessible) San Diego River park property.

Commissioner Theresa Quiroz, admittedly the strongest backer of parks and open space on the commission, nevertheless said she thought the municipal code needed to be changed.

The only possible solution was to offer the Mission Valley applicants an indefinite continuance, so they would not lose their place in the applicant’s line and have to start the complicated process all over again.

Mission Valley quickly accepted that offer, and the two Grantville applicants immediately asked for the same thing, and got it.

Attorney Gina Austin, representing the Living Green applicants from Grantville, said there’s little doubt in her mind that the courts may have to be the ultimate destination.

“This whole thing is just a mess. There has to be some changes. We need to clarify the difference between dedicated parkland, and designated parkland. The dedicated parkland may never be built. It’s not fair at all.”

Austin said the open space provisions in the current code have to be revised or done away with by the City Council, or more of this will be happening.

That echoes the thoughts of Heidi Whitman of the Alliance for Responsible Medicinal Access (ARMA).

“Many of the applicants who’ve been denied because of the distance issues are planning to get together to fight this in court. These are people who’ve spent hundreds of thousands of dollars trying to get a legal business up and running. It’s not clear yet whether there will be a joint suit against the city, or individual lawsuits. We bring those collectives together to map out the best strategy for challenging this issue.”

So, what’s ahead?

We’re told the City Council will be reviewing and assessing the medical marijuana ordinance, along with many others, sometime fairly early next year. What if anything the council does will have an impact, positive or negative, fairly quickly after that.

It’s fair to note that the City Council voted this program into existence two years ago on a 7-1 vote. It calls for a maximum of 36 dispensaries in the city –– four in each council district. It’s also fair to note that some council members may have supported the process knowing they would probably not have locations that could qualify. The ordinance sets a maximum of 36 shops citywide. Nowhere does it say there has to be 36 of them.

It’s worth noting that only San Diego is allowing shops in the city. La Mesa’s council has banned both the selling of pot in the city and the delivery of cannabis grown or bought elsewhere. Solana Beach just did the same thing. Santee did it last year.

But that begs the next question: How are the cities that opted out of having pot shops going to enforce their decisions? What will happen the first time a La Mesa officer cites or arrests someone for delivering pot obtained legally from a San Diego shop?

The new laws in the state allow people to grow and sell pot, but left the local governance of distribution in the hands of local governments, at least for now. Those laws are not yet in effect, and state regulations for how to do all this won’t actually be ready until 2017.

There’s still another potential joker in this deck. Right now the issue is medical marijuana outlets. There is virtual certainty right now that there will be a measure on the 2016 ballot approving the cultivation and sale for marijuana for recreational purposes. That will open a whole new avenue of state control, likely with an eye to taxes accruing to the state coffers.

Marijuana merchants are very well aware of this possibility, and are trying to get in position right now to take advantage of that.

For now, that leaves the situation in a wild west sort of state. There are groups all over the area, growing and packaging pot for sale and delivering illegally, because no one is dead sure what to do about it in the current confusing atmosphere. What is certain is that there’s money to be made out there, and they’re lining up to make that money, legally or otherwise, right now.

If you think that’s not happening, just check the last 19 pages of the latest edition of the San Diego Reader weekly.

Those 19 pages are totally devoted to marijuana advertisements.

––Doug Curlee is Editor at Large. Write to him at [email protected].