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Medical Marijuana DispensaryMedical marijuana advocates in Kern County recently obtained victories in the Fifth Appellate District Court of Appeal on two fronts, invalidating one ordinance that would ban dispensaries and another that would significantly restrict their operations.

Challenge to Dispensary Ban Ordinance Under Elections Code

In its decision in County of Kern v. T.C.E.F., Inc. (“County of Kern”), published April 5, the Fifth Appellate District held that where a county ordinance has been repealed as a result of a successful referendum, the county board of supervisors may not take subsequent action that would “have the practical effect of implementing the essential feature of the protested ordinance.”  Instead, the repeal must “return to the status quo on the essential feature of the protested ordinance.”

Under the California Elections Code, cities are already subject to a one-year statutory ban from enacting another ordinance with the “essential features” of the repealed one.  The same statutory prohibition, however, does not exist for counties and special districts.  In County of Kern, the Court of Appeal extended previous case law interpreting the ban on municipalities, to apply to counties.

County of Kern involved a civil action by Kern County (“County”) against Defendants, operators of a medical marijuana dispensary, seeking preliminary and permanent injunctions, nuisance abatement, and civil penalties on the grounds that the dispensary constituted a public nuisance and was in violation of the County’s ordinances.  After the trial court granted the County’s request for a preliminary injunction, the Defendants appealed – and prevailed in reversing the trial court’s decision.

The County Ordinances

In July 2006, the County adopted its first medical marijuana dispensary ordinance.  Under the 2006 ordinance, dispensaries that obtained a license from the County sheriff’s department were allowed to operate if they followed certain operating and record keeping requirements. The ordinance limited the number of licensed dispensaries to six and treated each dispensary “as a pharmacy for zoning purposes.”

In March 2009, the County adopted a new ordinance that repealed the 2006 ordinance and replaced it with a new ordinance, which removed most of the restrictions on dispensaries and continued to treat each dispensary “as a pharmacy for zoning purposes,” but provided that a dispensary could not be located within 1000 feet of a school.

However, the County reversed course in August of 2011, adopting an ordinance that prohibited “[a]ny operation of a Medical Marijuana Collective” in the County and declared the operation of a dispensary to be a public nuisance subject to abatement and administrative penalties.

Referendum, Repeal of Ordinances, and County Action Against the Dispensary

Prior to the effective date of the 2011 ordinance banning dispensaries, the County received a timely and valid referendum petition challenging four sections of the ordinance – including the sections banning dispensaries and declaring them a public nuisance – and as a result those four sections were immediately suspended by operation of law under Elections Code section 9144.

Pursuant to Elections Code section 9145, the County was required to (1) entirely repeal the 2011 ordinance banning dispensaries, or (2) submit that ordinance to the voters at an election.  In February 2012, the County Board of Supervisors voted to place an alternative ordinance (Measure G) on the June 5, 2012, primary election ballot.  Measure G would have allowed, but severely restricted, dispensaries.  One week later, the Board of Supervisors adopted another ordinance repealing the chapter of the County Code containing both the 2011 ordinance (banning dispensaries) and the 2009 ordinance (allowing dispensaries), in its entirety (“Repeal Ordinance”).  As a result, prior to the June election, no provision of the County Code allowed dispensaries to exist in any unincorporated area of the County. At the June election, Measure G passed.

In a separate lawsuit (discussed briefly below), Measure G was invalidated on the grounds that the County failed to comply with CEQA.  On April 30, 2014, only days after Measure G was invalidated, County personnel and three sheriff’s deputies visited Defendants’ dispensary and delivered an inspection warrant.  Subsequently, the County brought a civil action against Defendants and obtained a preliminary injunction requiring Defendants to cease storing, distributing, selling or giving away marijuana and Defendants subsequently appealed.

The Court of Appeal Decision

The Court of Appeal considered the validity of the County’s repeal of the 2011 and 2009 Ordinances in the context of the Defendant’s claim that the County could not satisfy the first prong of the test for a preliminary injunction, a likelihood of success on the merits.

The Court of Appeal interpreted the phrase “entirely repeal the ordinance” in Elections Code section 9145 as prohibiting a board of supervisors from taking any additional action that would have “the practical effect of implementing the essential feature of the protested ordinance.”  Here, the County’s action not only repealed the 2011 dispensary ban ordinance, but also repealed the entire relevant chapter of the County Code – resulting in an additional repeal of the 2009 ordinance, which allowed dispensaries to operate.  As a result, the Board’s action had the “practical effect” of prohibiting dispensaries, “which was essentially the same as the ban of dispensaries protested by voters.”  The Court held that such an action was an invalid restraint on the power of referendum reserved to the citizens.

Thus, the Court of Appeal concluded that the Board’s action could not repeal the 2009 ordinance, which remained in full force and effect – meaning that Defendants’ dispensary was an authorized use.  As a result, the County could not establish a likelihood of succeeding on the merits of its claim that Defendants were operating an unauthorized dispensary, and the preliminary injunction was reversed.

Separate CEQA Challenge to Measure G

Measure G established three sets of restrictions on dispensaries, it (1) restricted their location to certain industrial districts; (2) required them to be located at least one mile away from all schools, daycare centers, parks, churches, and other dispensaries; and (3) required them to comply with certain development and performance standards. These standards banned the consumption of marijuana on the premises of a dispensary and imposed requirements related to trash dumpsters, off-street parking, exterior lighting, and signage.

In August of 2012, a group of medical marijuana dispensary operators challenged Measure G on the grounds that it violated CEQA.  The trial court agreed and invalidated Measure G.  In an unpublished opinion issued on March 29, 2016, the Fifth Appellate District upheld the trial court’s decision, on the grounds that the County improperly relied upon the common sense exemption under CEQA Guidelines section 15061.  The Court found that the evidence demonstrated it was reasonably foreseeable Measure G would cause some dispensaries to relocate outside of Kern County and the measure itself stated that dispensaries have “serious secondary effects on the community” including increased traffic, noise, and litter.

As described in an earlier post by Don Sobelman, the Fourth Appellate District recently upheld the City of Upland’s restriction on medical marijuana dispensaries against a CEQA challenge, finding that the ordinance prohibiting mobile marijuana dispensaries is not a “project” subject to CEQA.  That decision stands in contrast to the Fifth District’s decision invalidating Measure G on CEQA grounds.

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Local governments continue to explore how zoning and other land use regulations may be used to restrict or expand the rights of dispensaries to grow and distribute medical marijuana in their jurisdictions.  Moreover, advocates on both sides of the issue stand ready to mobilize public support for initiatives and referenda that would give voters the final say.  Inevitably, the courts will continue to be called on to adjudicate issues arising from these efforts, both in the context of CEQA and otherwise.