The city has backed away from its ordinance approving a single marijuana dispensary in town as a cautionary response to an appellate court ruling in Southern California that cities cannot require conditional use permits for dispensaries.
"There's been a recent appellate court decision that it is not permissible for cities to have regulatory/permitting ordinances," City Attorney Robert Zweben said. "We require a conditional use permit. The appellate court in (the case) said you can't do that. If that's the case, a marijuana club could come into the city and just open up."
"There's even a question as to whether we could limit it to just one dispensary."
The City Council's 4-1 vote on Monday, Councilman Robert Lieber dissenting, repeals its previous ordinance on Zweben's advice.
"The community in Albany has made it clear that they want to have certain requirements if we have a dispensary in Albany," Councilwoman Joanne Wile said. "My thought was that we should err on the side of caution. Wait and watch."
Lieber, however, disagreed.
"(Zweben is) in error about that decision even though he's a lawyer," Lieber said. "It's a local decision that's not enforceable here. It's my feeling that the council just wanted to get rid of the ordinance. It's an abandonment of patients."
Zweben said the repeal had nothing to do with a group's attempts to open a dispensary in the city last year. After the Planning and Zoning Commission and the City Council denied a conditional use permit to allow the dispensary to open, prospective club operator VitalGen sued the city. The civil rights case was initially dismissed but is on appeal.
The case that led to the council's action is Pack vs. Long Beach. In his Oct. 4 ruling, Justice Walter Croskey wrote that Long Beach's ordinance violated the law because it conflicts with the federal Controlled Substances Act.
Although the reasoning of the opinion centered on the fact that the federal government doesn't recognize medical marijuana, the effect would be that cities can't regulate it. Croskey wrote that issuing permits would conflict with the intent of Congress to ban recreational drug use.
"A lot of cities that have marijuana dispensary ordinances are now wondering what to do," Zweben said. "Long Beach is proposing to do what Albany is doing. Other cities are thinking about the same issues. We brought these matters to the attention of city council."
The Long Beach collective had been ordered to cease operations in August, 2010, because it allegedly didn't comply with the Long Beach ordinance that required dispensaries to pay the city fees to apply to open as well as an annual fee.
Additionally, the ordinance has several operating restrictions, including ventilation, closed circuit television monitoring and quality control to make sure the marijuana isn't contaminated.
Croskey wrote that some parts of the ordinance may be legal but that it would be up to a higher court to determine if they could be "severed" from the rest of the ordinance.
However, the ruling may be in conflict with other rulings and it would be up to a higher court to determine if it applies to other cities including Albany.