9/14/2014

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Local & Regional

Judge: Bakersfield has right to ban pot shops

Judge: Bakersfield has right to ban pot shops

BAKERSFIELD, Calif. (KBAK/KBFX) — Kern County Judge Kenneth Twissleman ruled in favor of the city of Bakersfield in its ban of marijuana shops.

Last June, the City Council voted for a ban that says a medical marijuana dispensary is a use that's "prohibited within any zone district."

That rule was challenged by Concerned Citizens of Bakersfield. They argued the city failed to do an analysis of potential environmental impacts, as required under the California Environmental Quality Act.

The city insisted the ordinance was exempt under CEQA, under its common sense exemption. On Friday afternoon, Judge Twissleman agreed.

"I thought the judge made a good ruling based on the facts of this case," Bakersfield Associate Attorney Richard Iger said. "It just goes to show what we considered all along. Which is this ordinance did not change the law, it was merely just a continuation of the existing zoning code.

The city maintains they never allowed so-called pot shops to begin with.

In 2004, Bakersfield first passed a "resolution" that simply said medical marijuana dispensaries are "not permitted uses within any zone in the City of Bakersfield."

In June 2013, the Council enacted the ordinance that specifically prohibited marijuana dispensaries in any zone district. That went into effect in August.

Still, medical marijuana collectives remain open in the city as the group representing the pot shops took the city to civil court over the ban. The marijuana advocates argued that the ban would create adverse environmental impacts by forcing more people to grow pot at home or drive farther to get their medication.

On Friday, the group's attorney argued his case to the court by a phone link-up. Jamie Hall also tried to convince Judge Twissleman the new ordinance broadened the scope beyond what the resolution had, and it added "enforcement tools" for the city.

The judge didn't agree, and didn't order an environmental review. He said with no real change in the city's position, there's no effect on the environment, and that qualifies as an exemption to the CEQA rules requiring an environmental review.
 
Kern County's voter-approved Measure G, which restricted locations for dispensaries, was also challenged by Concerned Citizens of Bakersfield. And, in February the judge invalidated the county rule, saying they failed to investigate possible environmental impacts.

Iger says the county's Measure G is "substantially different" from the city's rule.

With the legal victory on the environmental challenge, Bakersfield can now start enforcing their ban on dispensaries. Iger said Friday he didn't know how many of the facilities are now operating in the city,

"What will probably happen, is we'll send out letters to anyone that's going to be subject to enforcement, give them a chance to comply," he said. And, for dispensaries that don't close down, Iger says they'll be taken to civil court.

"We'd have to sue them in court as a public nuisance per se," he explained. "Then the judge (in that proceeding) would have to say, 'Yeah it is, or it isn't.'"

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