Court Upholds Zoning Ordinance That Restricts Location Of Medical Marijuana Collectives And Cooperatives

An owner of a medical marijuana collective challenged a county zoning ordinance that restricts the location of medical marijuana collectives and cooperatives to commercial and manufacturing zones.  The court of appeals rejected the owner’s challenge to the zoning ordinance finding that the ordinance represents a reasonable exercise of the power of the county to enact local legislation and that the owner failed to show that the ordinance conflicts with state law or constitutional principle.  (County of Tulare v. Nunes (--- Cal.Rptr.3d ----, Cal.App. 5 Dist., April 29, 2013).

Note

Please note this decision was handed down just prior to the California Supreme Court ruling of City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. ( --- P.3d ----, 2013 WL 1859214, Cal., May 6, 2013).  See our Legal Alert entitled, “California Supreme Court: Cities Can Ban Facilities That Distribute Medical Marijuana”, May 8, 2013.)

Facts

The County of Tulare (“County”) enacted an ordinance that restricts permissible locations for a medical marijuana collective or dispensary (“MMC”) to certain zones.  Ordinance No. 352, Section 15.3, provides that an MMC “shall not be established or located in any zone in the County of Tulare, nor shall any building or land be used for such collectives or cooperatives, other than those located in a C-2 (General Commercial), C-3 (Service Commercial), M-1 (Light Manufacturing), or M-2 (Heavy Manufacturing) zone district.”  Section 15.3 also prohibits MMCs within 1,000 feet of schools, daycare facilities, public parks, places of worship, and other MMCs.  When it adopted Section 15.3, County expressed findings and concerns about the potential adverse effects of MMCs “on public health, safety and general welfare, including risks of increased crime, decreased property values, and deterioration of neighborhoods.”

County learned Jeffrey Nunes, Jr., and Foothill Growers Association, Inc. (collectively, “Nunes”), were operating an MMC within an agricultural zone and asked Nunes to refrain from operating an MMC on the property.  Nunes refused County’s request and County filed a complaint against Nunes and other defendants seeking a preliminary injunction for violation of the ordinance and for maintaining a public nuisance.

County sought summary judgment on its complaint.  Nunes asserted the property was not being used for the commercial sale of marijuana or a dispensary but for the “collective cultivation of medical marijuana by members of the Foothill Growers Association, Inc.”  Nunes asserted that the ordinance is unenforceable because it is contrary to state law and it is also unconstitutional.  The trial court granted judgment in favor of County and granted a permanent injunction prohibiting Nunes from operating an MMC in the agricultural zone. 

Decision

The court of appeal affirmed the decision of the trial court.  The court held that County’s ordinance does not conflict with the Compassionate Use Act (“CUA”) or the Medical Marijuana Program Act (“MMPA”).  The CUA, adopted by voters as Proposition 215 in 1996, provides “immunity from prosecution for certain conduct that would otherwise be criminal.”  The CUA allows a patient or patient’s primary caregiver to possess or cultivate marijuana for the patient’s personal purposes upon a physician’s written or oral recommendation or approval without the patient or caregiver becoming subject to punishment Health and Safety Code sections 11357 and 11358.  The CUA provides, “Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.”

The Legislature added the MMPA to facilitate “prompt identification of qualified patients and caregivers in order to avoid unnecessary arrest and prosecution, promoting uniform and consistent application among the counties, and enhancing access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”  The MMPA created a voluntary program to be implemented by each county for “the issuance of identification cards to qualified patients and primary caregivers.”  Prior to a recent amendment, the MMPA, at section 11362.83 provided that “[n]othing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.”  In 2010, the Legislature added section 11362.768 to the MMPA, which provides that medical marijuana collectives, cooperatives, or dispensaries cannot be located within 600 feet of schools.  The Legislature also added the following provision:  “Nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary.”  Section 11362.768 also states, “Nothing in this section shall preempt local ordinances, adopted prior to January 1, 2011, that regulate the location or establishment of a medical marijuana cooperative, collective, dispensary . . . .”   

The Legislature amended section 11362.83 in 2011 to provide that the MMPA does not prevent a local governing body from (a) adopting and enforcing “local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective,” (b) enforcing the local ordinances described in subdivision (a) through civil and criminal means, or (c) “[e]nacting other laws consistent with this article.”  The amendment not only allows local ordinances that regulate the establishment of medical marijuana dispensaries, collectives, and cooperatives, it also applies broadly to the entire MMPA.  

The court noted that although the County’s enactment of Section 15.3 predates the amendment of section 11362.83, “it is relevant to whether Section 15.3 was in conflict with the MMPA because the new wording of the statute merely clarified existing law.”  Because the Legislature retained the original language of section 11362.83 and used it in subdivision (c), the “the new wording in subdivisions (a) and (b) was not a change in the law, but a clarification or elaboration of it.”  The conclusion that the amendment was a clarification “is further confirmed by the fact the Legislature had recently passed section 11362.768, which reflected the lawmakers’ understanding that local governments could regulate” MMCs and dispensaries.

The California Constitution article XI, section 7, provides that a “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Any ordinance that conflicts “is preempted by state law and thus void.”  There is a conflict between a state law and an ordinance “if the ordinance duplicates or is coextensive therewith, is contradictory or inimical thereto, or enters an area either expressly or impliedly fully occupied by general law.”  Nunes claims that Section 15.3 is contradictory to the CUA and the MMPA.  Nunes asserts that because Section 15.3 provides a definition of what constitutes a medical marijuana collective or cooperative, it is contrary to the MMPA, which “does not give a specific definition of what it means to ‘associate … collectively or cooperatively to cultivate marijuana for medical purposes  . . . .’”   The court concluded Nunes’ argument is unpersuasive because “County’s zoning ordinance was not inimical to section 11362.775, but gave the ‘collective’ and ‘cooperative’ concepts mentioned in that section reasonable specification and parameters.”  Nunes failed to show a contradiction or conflict with the MMPA.

Section 11362.775 does not give anyone “a statutory ‘right’ to collectively or cooperatively engage in the cultivation of medical marijuana at any location without hindrance or regulation, but merely sets forth certain immunities from criminal prosecution.”  This limited immunity does not prevent a county from applying its nuisance laws to medical marijuana dispensaries that do not comply with the county’s valid ordinances.  The MMPA does not bestow the right to cultivate or dispense medical marijuana anywhere a qualified patient or caregiver may choose to do so.

Nunes contends that a provision of the County ordinance that would restrict the total number of marijuana plants in any cooperative or collective cultivation to 99 conflicts with state law.  The court found that Nunes failed to show that the plant limit would be inimical to the purposes of the CUA or the MMPA.  The CUA merely provides a defense for certain crimes but it does not address cooperatives and collectives.  The provision of the MMPA that Nunes refers to does not guarantee the right to possess a certain number of plants but merely provides “an outer limit on how much medical marijuana a qualified patient or caregiver may ordinarily possess without prosecution.” 

The court rejected Nunes’ argument that because one of the MMPA’s objectives was to provide greater uniformity for the application of the CUA in each county, the Legislature did not intend for local zoning laws to restrict or regulate medical marijuana collectives, cooperatives, or dispensaries.  The court concluded the Legislature rejected this proposition by amending the MMPA to clarify that a local government may adopt “ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective.”

The court concluded that the Section 15.3 does not violate the equal protection clause of the California Constitution.  The court also rejected Nunes’ argument that the operation of the MMC on the land was an agricultural use and therefore a permissible use in the agricultural zone.  Marijuana is a controlled substance and therefore it is not treated by the law as a mere crop or horticultural product.  The court also rejected Nunes’ argument that County could not regulate Nunes’ use of the land through zoning laws because the MMC was noncommercial and was not a “storefront” or “retail” outlet within the meaning of the MMPA.  Nothing in the MMPA provides that zoning ordinances only may be applied to MMCs with storefronts or retail outlets. 

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jonathan P. Hobbs or Jeffrey L. Massey | 916.321.4500 

Jon E. Goetz | 805.786.4302