zoning ban of uses
Are there any cases where a city tries to ban a use from its boarders, but the state permits -without requiring - such a use? How would the courts treat this.
Specifically, the state requires that medical MJ retail cannot be unduly restricted so we have to allow some retail. But the state is silent as to our ability to regulate industrial processing. Some of us have banned it from the city limits. Are there any cases on this issue, or on a factually related issue to show how the courts will handle this situation.
I know that Matt Love is recommending against this tactic by municipalities. Is there more?
Mike Vanderburg
Ponca City
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Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337
I believe the City can regulate the location, through zoning, but can not ban the use. However, Industrial zoning can be very restrictive.
Robert C. Thompson
Cheek & Falcone, PLLC
6301 Waterford Blvd., Suite 320
Oklahoma City, Okla. 73118
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From: Oama oama-bounces@lists.imla.org On Behalf Of Michael R. Vanderburg
Sent: Tuesday, January 14, 2020 10:56 AM
To: OAMA luistserv (OAMA@lists.imla.org) OAMA@lists.imla.org
Subject: [Oama] zoning ban of uses
Are there any cases where a city tries to ban a use from its boarders, but the state permits -without requiring - such a use? How would the courts treat this.
Specifically, the state requires that medical MJ retail cannot be unduly restricted so we have to allow some retail. But the state is silent as to our ability to regulate industrial processing. Some of us have banned it from the city limits. Are there any cases on this issue, or on a factually related issue to show how the courts will handle this situation.
I know that Matt Love is recommending against this tactic by municipalities. Is there more?
Mike Vanderburg
Ponca City
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, please destroy the message and contact the sender to report the email error. The message and its attachments may not be copied, shared, distributed, or used in any manner by anyone other than the intended recipient. The receipt of this email does not create an attorney client relationship, unless that relationship already exists independent of this email.
If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at vandemr@poncacityok.govmailto:vandemr@poncacityok.gov or by telephone at 580 767 0337 and destroy the original transmission and its attachments without reading them or saving them to disk. This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally privileged.
Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337
Mike, I can't opine on Oklahoma but one of the cases we teach involves a discussion involving Iowa law that addresses a restriction on factory farms by locals which the Iowa court held to be in conflict with a state law permitting the use. Similarly, we teach a case from Colorado where the locals tried to restrict the number of sexual offenders in one domicile and it affected a foster/group home licensed by the state and the courts found the local restriction preempted despite Colorado's rather strong Home Rule. I tend to think that the issue would be resolved similarly in other states, but with the caveat that the specifics of home rule charters, the state constitution and the prevalence of Dillon's Rule in the state might affect the answer. I can dig up the citations if you are interested. Chuck
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Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.
A 51 Monroe St., Suite 404, Rockville, MD 20850
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From: Oama oama-bounces@lists.imla.org On Behalf Of Michael R. Vanderburg
Sent: Tuesday, January 14, 2020 11:56 AM
To: OAMA luistserv (OAMA@lists.imla.org) OAMA@lists.imla.org
Subject: [Oama] zoning ban of uses
Are there any cases where a city tries to ban a use from its boarders, but the state permits -without requiring - such a use? How would the courts treat this.
Specifically, the state requires that medical MJ retail cannot be unduly restricted so we have to allow some retail. But the state is silent as to our ability to regulate industrial processing. Some of us have banned it from the city limits. Are there any cases on this issue, or on a factually related issue to show how the courts will handle this situation.
I know that Matt Love is recommending against this tactic by municipalities. Is there more?
Mike Vanderburg
Ponca City
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, please destroy the message and contact the sender to report the email error. The message and its attachments may not be copied, shared, distributed, or used in any manner by anyone other than the intended recipient. The receipt of this email does not create an attorney client relationship, unless that relationship already exists independent of this email.
If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at vandemr@poncacityok.govmailto:vandemr@poncacityok.gov or by telephone at 580 767 0337 and destroy the original transmission and its attachments without reading them or saving them to disk. This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally privileged.
Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337
We have banned the spreading of wastewater treatment sludge in the city even thought the State permits it. So far no lawsuit.
Ray
From: Oama oama-bounces@lists.imla.org on behalf of Chuck Thompson cthompson@imla.org
Sent: Tuesday, January 14, 2020 11:03 AM
To: Michael R. Vanderburg vandemr@poncacityok.gov; OAMA luistserv (OAMA@lists.imla.org) OAMA@lists.imla.org
Subject: Re: [Oama] zoning ban of uses
Mike, I can’t opine on Oklahoma but one of the cases we teach involves a discussion involving Iowa law that addresses a restriction on factory farms by locals which the Iowa court held to be in conflict with a state law permitting the use. Similarly, we teach a case from Colorado where the locals tried to restrict the number of sexual offenders in one domicile and it affected a foster/group home licensed by the state and the courts found the local restriction preempted despite Colorado’s rather strong Home Rule. I tend to think that the issue would be resolved similarly in other states, but with the caveat that the specifics of home rule charters, the state constitution and the prevalence of Dillon’s Rule in the state might affect the answer. I can dig up the citations if you are interested. Chuck
[cid:image001.png@01D5CAD2.AE9C4F00]
Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.
A 51 Monroe St., Suite 404, Rockville, MD 20850
[cid:image003.jpg@01D5CAD2.AE9C4F00]http://www.facebook.com/IMLA-259977855541/ [cid:image004.jpg@01D5CAD2.AE9C4F00] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./ [cid:image005.png@01D5CAD2.AE9C4F00] http://twitter.com/imlalegal [cid:image006.jpg@01D5CAD2.AE9C4F00] http://soundcloud.com/internationalmunicipallawyersassociation
P (202) 466-5424 ext. 7110 M (240) 876-6790
D (202) 742-1016
W www.imla.orghttp://www.imla.org/
Plan Ahead!
IMLA’s 2020 Mid-Year Seminarhttp://www.imla.org/events/seminars, April 24-27 in Washington, D.C.!
IMLA’s 85th Annual Conferencehttp://www.imla.org/events/conferences, September 23-27 in Riverside County, CA!
From: Oama oama-bounces@lists.imla.org On Behalf Of Michael R. Vanderburg
Sent: Tuesday, January 14, 2020 11:56 AM
To: OAMA luistserv (OAMA@lists.imla.org) OAMA@lists.imla.org
Subject: [Oama] zoning ban of uses
Are there any cases where a city tries to ban a use from its boarders, but the state permits –without requiring – such a use? How would the courts treat this.
Specifically, the state requires that medical MJ retail cannot be unduly restricted so we have to allow some retail. But the state is silent as to our ability to regulate industrial processing. Some of us have banned it from the city limits. Are there any cases on this issue, or on a factually related issue to show how the courts will handle this situation.
I know that Matt Love is recommending against this tactic by municipalities. Is there more?
Mike Vanderburg
Ponca City
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, please destroy the message and contact the sender to report the email error. The message and its attachments may not be copied, shared, distributed, or used in any manner by anyone other than the intended recipient. The receipt of this email does not create an attorney client relationship, unless that relationship already exists independent of this email.
If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at vandemr@poncacityok.govmailto:vandemr@poncacityok.gov or by telephone at 580 767 0337 and destroy the original transmission and its attachments without reading them or saving them to disk. This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally privileged.
Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337
Yukon ordinances ban most uses other than retail sales. Yukon's ordinances were upheld by the district court. I understand that the decision is on appeal. I do not believe that Just because the state makes a business legal means that it must be allowed within a city. I do think that there would need to be some rationale that would support the exercise of the police power to ban a particular use.
Jonathan E. Miller
City Attorney
City of Mustang
P.O. Box 850854
Yukon, Oklahoma 73085
Telephone: (405) 938-9108
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From: Oama oama-bounces@lists.imla.org On Behalf Of Michael R. Vanderburg
Sent: Tuesday, January 14, 2020 10:56 AM
To: OAMA luistserv (OAMA@lists.imla.org) OAMA@lists.imla.org
Subject: [Oama] zoning ban of uses
Are there any cases where a city tries to ban a use from its boarders, but the state permits -without requiring - such a use? How would the courts treat this.
Specifically, the state requires that medical MJ retail cannot be unduly restricted so we have to allow some retail. But the state is silent as to our ability to regulate industrial processing. Some of us have banned it from the city limits. Are there any cases on this issue, or on a factually related issue to show how the courts will handle this situation.
I know that Matt Love is recommending against this tactic by municipalities. Is there more?
Mike Vanderburg
Ponca City
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, please destroy the message and contact the sender to report the email error. The message and its attachments may not be copied, shared, distributed, or used in any manner by anyone other than the intended recipient. The receipt of this email does not create an attorney client relationship, unless that relationship already exists independent of this email.
If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at vandemr@poncacityok.govmailto:vandemr@poncacityok.gov or by telephone at 580 767 0337 and destroy the original transmission and its attachments without reading them or saving them to disk. This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally privileged.
Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337