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Insight: Will Medical Marijuana Cases Drive Land Use Law From Now On?

William Fulton on
Apr 27, 2016

Medical marijuana in California may be a pretty intense battleground, but at the same time, to mix metaphors, it usually looks like a policy cul-de-sac. Advocates of access to medical marijuana are generally single-issue folks who don't care much about any other local issue. And advocates of strict regulation - who include a vast number of local elected officials throughout the state - don't break down along traditional ideological grounds.

But the fact of the matter is that the controversy over access to medical marijuana could soon become a driving force in shaping policy around the state on land use and ballot measures. The reason is goes something like this: Because most local medical marijuana regulation amounts to zoning, that means most medical marijuana disputes are land-use disputes. And because the battle is so intense, neither side gives up easily, so the disputes are more likely to go to the ballot and wind up in appellate court.

Just in the last month, appellate courts in California have issued four different published rulings having to do with medical marijuana. Curiously, all four came from inland California, including three from the Inland Empire and one from Kern County.

All had to do with land use and ballot measures. And although neither side has swept the decisions, it's clear that there is a strong temptation on the part of the local governments in particular to engage in heavy manipulation in order to keep medical marijuana dispensaries out of their jurisdiction. That's likely to make important law on both land use and ballot measures, and not in a way that makes it easier to regulate dispensaries.

The four cases represent an interconnected swirl of issues around zoning, initiatives, and the California Environmental Quality Act. Here they are:

* In City of Palm Springs v. Luna Crest Inc., a dispensary opened without seeking city permits and argued that federal law (which, remember, outlaws marijuana) pre-empts local regulations. The Fourth District Court of Appeal said no.

* In California Cannabis Coalition v. City of Upland, the Fourth District ruled that Proposition 218 doesn't apply to an initiative to overturn the city's ban on medical marijuana. The case had to do with the timing of the election, but it could have broad implications for a two-thirds vote requirement.

* In a second case from Upland, Union of Medical Marijuana Patients v. City of Uplandthe Fourth District ruled that the city's codification of an ordinance banning mobile dispensaries was not subject to the California Environmental Quality Act because the city did a CEQA analysis on the previous ordinance. 

* Most recently, in a complicated case from Kern County, County of Kern v. TCEF Inc., the Fifth District Court of Appeal ruled that the county had impermissibly undercut a pending referendum that would have overturned a dispensary ban by repealing the ordinance the referendum had targeted - but also repealing the previous ordinance that the referendum sought to reinstate. The case had a CEQA angle too, because an alternative measure placed on the ballot to counteract the referendum had previously been invalidated because the county didn't follow CEQA in putting the measure together.

You can see what's going on here: Local governments that want to ban dispensaries so desperately they'll stretch the law to do it, and a medical marijuana community so desperate to avoid regulation that they'll fight back hard in court - and, in some cases, make far-fetched legal arguments - to try to stop them. 

In the federal pre-emption case, for example, the plaintiffs argued that federal law does not permit local governments to adopt an ordinance requiring dispensaries to subject themselves to testing of some marijuana products - which is not surprising, considering that marijuana possession is illegal under federal law.

In the Upland CEQA case, the plaintiffs argued that the city had the obligation to examine the traffic impacts of a mobile dispensary ban, including, among other things, the increased traffic due to the fact that medical marijuana patients would have to drive to other cities to obtain marijuana and the possibility that more personal growing would lead to pollution. The court said these arguments were too speculative.

The Kern County case was the one in which the local government - which, alone among all these cases, was the plaintiff - stretched the limits of its actions. The sequence of events went something like this: The county adopted an ordinance requiring the sheriff's approval; then replaced it with an ordinance permitting dispensaries in commercial areas; then, after 30 dispensaries opened, replaced that with a prohibition. Then local activists qualified a referendum to overturn the prohibition. At that point, the county repealed both the ban and the previous ordinance permitting operation in commercial areas and also placed a measure on the ballot to permit dispensaries in industrial zones only. The ballot measure passed but was subsequent invalidated on the CEQA argument. (An initiative is exempt from CEQA, but a ballot measure cooked up by elected officials isn't.) Then, with the ordinance permitting dispensaries in commercial zones repealed, the county sued a dispensary operating in a commercial zone. Which won the case on appeal.

So, thanks to the recent appellate cases, we now know that you can't require a CEQA analysis based on extremely speculative possible impacts; an initiative isn't subject to the two-thirds voter approval requirement and other provisions of Proposition 218; and if you rescind an ordinance in response to a referendum you can't essentially reinstate that ordinance afterward. 

Crafting any ordinance on a controversial issue is a complicated balancing act, and you can see in that each of these cases it wasn't easy to find the right balance. In Palm Springs - a city where registered Democrats outnumber registered Republicans two to one - the city allowed dispensaries but tried to put safeguards on them. In Kern County - where social conservatives live alongside libertarians - the Board of Supervisors couldn't figure out what to do at first. But, faced with 30 dispensaries once they were let in, the county engaged in a desperate attempt to get rid of them and keep them out - which put them on the wrong side of the Court of Appeal ruling. One thing about the medical marijuana cases: They reveal a lot of ugly sausage-making.

And this is probably just the beginning. And, by the way, none of the medical marijuana advocates were represented by lawyers with experience in appellate land use law - with the exception of the California Cannabis Coalition in Uland, which was represented by Roger Jon Diamond, who has done battle against local governments for decades on behalf of the adult business industry. So who knows where the next case is coming from, and which lawyers are going to be involved.

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