Katelyn Baker
Well-Known Member
San Bernadino - Two separate groups filed lawsuits last week challenging Measure O, the initiative citizens approved in November to allow marijuana dispensaries in the city.
The city hasn't yet implemented the measure, and City Attorney Gary Saenz said the lawsuits' existence will likely delay implementation. If Measure O is struck down, it will be replaced by Measure N, another marijuana initiative that city voters approved in November, but with fewer votes than Measure O.
Both lawsuits – one filed by a group of marijuana-related entities and the other by interested property owners in San Bernardino – challenge Measure O on multiple grounds, including the measure's language determining where dispensaries may operate.
"The overlay zones together with the parcel numbers and the location criteria limit the locations within the City of San Bernardino where marijuana businesses may be permitted to only approximately 3 to 5 parcels of land within the entire city and all of these parcels of land are either owned or controlled by the proponents of Measure O," reads the lawsuit by attorney James Deaguilera, representing Kush Concepts Collective and others. "The locations of these 3 to 5 parcels of land, furthermore, are incompatible for a medical marijuana business by virtue of the locations and surrounding land uses and for this reason are in conflict with the City of San Bernardino General Plan."
The attorney for the proponents of Measure O, Roger Jon Diamond, disputes that number and predicts the challenge will fail.
He points to the plaintiffs in the Kush lawsuit: 13 marijuana dispensaries and related groups that describe themselves as non-profits operating in San Bernardino or who have invested substantial sums of money in plans to operate in San Bernardino.
San Bernardino did not allow marijuana dispensaries until Measure O passed, meaning the dispensaries have been operating illegally, he said.
"There's a concept in the law called clean hands: If you don't have clean hands, you can't maintain a lawsuit," Diamond said. "Here we have people that don't qualify (to operate a dispensary in their current location), complaining that they would not become legal under the new law. It sounds like sour grapes."
The other lawsuit, filed Feb. 6, calculates a somewhat higher number of eligible locations – between three to 12 – but makes the same observation about their location.
"We think there is a financial interest in the people that wrote it up," said Stephen Levine of Milligan, Beswick Levine & Knox, by phone. "We don't think that is fair, because it was so narrowly constricted. Zoning by parcel numbers is a highly unusual practice in the state. Let's include Colorado and Washington State in there, too; they don't use parcel numbers for this."
Measure O restricts marijuana businesses to marijuana business overlay districts, which are identified by parcel number, and further prohibits the businesses from being within 600 feet of schools or residentially zoned property.
Levine represents a consortium of property owners calling themselves AMF as well as Wendy McCammack, a business owner and former city councilwoman.
The plaintiffs' interest is in possible changes in property value from dispensaries, Levine said.
The city discussed the AMF lawsuit in closed session Feb. 8, according to a City Council agenda, but Saenz said he wasn't aware of the Kush lawsuit and hadn't decided on a response to either.
"We haven't totally assessed the merits of the lawsuit nor how we'll respond," he said by phone Monday.
But the lawsuits' arguments would likely delay the process of incorporating Measure O into the development code and beginning to issue permits, he said.
"It (the AMF lawsuit) very much calls into question the validity of Measure O," Saenz said. "Being a city of very limited resources, we don't want to expend resources on an implementation that's never going to occur. That would be a waste of resources."
On its website and in a letter sent to interested parties Jan. 25, the city said it would provide an update in March on when the measure would be implemented.
"City departments are in the process of integrating the provisions of Measure O into the City's existing Development Code, developing procedures for receiving applications, and identifying provisions that may require interpretation and clarification prior to implementation," said the letter, signed by Community Development Director Mark Persico. "The San Bernardino Development Code and Measure O are both complex legal regulatory frameworks and it will require time to properly implement this new law."
For now, the proponents of Measure O take the city at its word that it's trying in good faith, but they will file a lawsuit to compel implementation if delays become excessive, Diamond said.
"We have people who need the medication Measure O would provide," Diamond said. "We're a little disappointed that it's taking the city this long. This passed Nov. 8. We know that because we know that Donald Trump was elected the same day, and look at all the things he's doing."
Measure O passed with 55.12 percent of the vote. Measure N – which would allow up to 20 licenses to regulate marijuana dispensaries in the city – received 51.1 percent, and so would become law if not overridden by Measure O. A third, city-backed marijuana measure, Measure P, failed to win a majority, with 48.45 percent.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: Lawsuits Challenge San Bernardino Marijuana Law
Author: Ryan Hagen
Contact: 909-889-9666
Photo Credit: None Found
Website: The Sun
The city hasn't yet implemented the measure, and City Attorney Gary Saenz said the lawsuits' existence will likely delay implementation. If Measure O is struck down, it will be replaced by Measure N, another marijuana initiative that city voters approved in November, but with fewer votes than Measure O.
Both lawsuits – one filed by a group of marijuana-related entities and the other by interested property owners in San Bernardino – challenge Measure O on multiple grounds, including the measure's language determining where dispensaries may operate.
"The overlay zones together with the parcel numbers and the location criteria limit the locations within the City of San Bernardino where marijuana businesses may be permitted to only approximately 3 to 5 parcels of land within the entire city and all of these parcels of land are either owned or controlled by the proponents of Measure O," reads the lawsuit by attorney James Deaguilera, representing Kush Concepts Collective and others. "The locations of these 3 to 5 parcels of land, furthermore, are incompatible for a medical marijuana business by virtue of the locations and surrounding land uses and for this reason are in conflict with the City of San Bernardino General Plan."
The attorney for the proponents of Measure O, Roger Jon Diamond, disputes that number and predicts the challenge will fail.
He points to the plaintiffs in the Kush lawsuit: 13 marijuana dispensaries and related groups that describe themselves as non-profits operating in San Bernardino or who have invested substantial sums of money in plans to operate in San Bernardino.
San Bernardino did not allow marijuana dispensaries until Measure O passed, meaning the dispensaries have been operating illegally, he said.
"There's a concept in the law called clean hands: If you don't have clean hands, you can't maintain a lawsuit," Diamond said. "Here we have people that don't qualify (to operate a dispensary in their current location), complaining that they would not become legal under the new law. It sounds like sour grapes."
The other lawsuit, filed Feb. 6, calculates a somewhat higher number of eligible locations – between three to 12 – but makes the same observation about their location.
"We think there is a financial interest in the people that wrote it up," said Stephen Levine of Milligan, Beswick Levine & Knox, by phone. "We don't think that is fair, because it was so narrowly constricted. Zoning by parcel numbers is a highly unusual practice in the state. Let's include Colorado and Washington State in there, too; they don't use parcel numbers for this."
Measure O restricts marijuana businesses to marijuana business overlay districts, which are identified by parcel number, and further prohibits the businesses from being within 600 feet of schools or residentially zoned property.
Levine represents a consortium of property owners calling themselves AMF as well as Wendy McCammack, a business owner and former city councilwoman.
The plaintiffs' interest is in possible changes in property value from dispensaries, Levine said.
The city discussed the AMF lawsuit in closed session Feb. 8, according to a City Council agenda, but Saenz said he wasn't aware of the Kush lawsuit and hadn't decided on a response to either.
"We haven't totally assessed the merits of the lawsuit nor how we'll respond," he said by phone Monday.
But the lawsuits' arguments would likely delay the process of incorporating Measure O into the development code and beginning to issue permits, he said.
"It (the AMF lawsuit) very much calls into question the validity of Measure O," Saenz said. "Being a city of very limited resources, we don't want to expend resources on an implementation that's never going to occur. That would be a waste of resources."
On its website and in a letter sent to interested parties Jan. 25, the city said it would provide an update in March on when the measure would be implemented.
"City departments are in the process of integrating the provisions of Measure O into the City's existing Development Code, developing procedures for receiving applications, and identifying provisions that may require interpretation and clarification prior to implementation," said the letter, signed by Community Development Director Mark Persico. "The San Bernardino Development Code and Measure O are both complex legal regulatory frameworks and it will require time to properly implement this new law."
For now, the proponents of Measure O take the city at its word that it's trying in good faith, but they will file a lawsuit to compel implementation if delays become excessive, Diamond said.
"We have people who need the medication Measure O would provide," Diamond said. "We're a little disappointed that it's taking the city this long. This passed Nov. 8. We know that because we know that Donald Trump was elected the same day, and look at all the things he's doing."
Measure O passed with 55.12 percent of the vote. Measure N – which would allow up to 20 licenses to regulate marijuana dispensaries in the city – received 51.1 percent, and so would become law if not overridden by Measure O. A third, city-backed marijuana measure, Measure P, failed to win a majority, with 48.45 percent.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: Lawsuits Challenge San Bernardino Marijuana Law
Author: Ryan Hagen
Contact: 909-889-9666
Photo Credit: None Found
Website: The Sun
