The appellate courts in California haven’t been too friendly to the medical marijuana dispensaries when it comes to land use and zoning. See here, here for example (the latter case is being considered by the California Supreme Court, so we may see some major pronouncement this year).
Here’s the latest decision, City of Lake Forest v. Evergreen Holistic Collective, No. G043909 (Feb. 29, 2012), in which the Fourth District (six SoCal counties, including San Diego, Orange, and the Inland Empire) concluded that the city could not adopt an outright ban on medical marijuana dispensaries under the local zoning code, because state law authorizes “collective[] and cooperative[]” medicial marijiana acitvities.
The city instituted a nuisance abatement proceeding against the Collective, arguing that because the zoning code prohibits dispensaries, the it was was a “nuisance per se.” The trial court sided with the city and entered an injunction. The court of appeal reversed:
We conclude local governments may not prohibit medical marijuana dispensaries altogether, with the caveat that the Legislature authorized dispensaries only at sites where medical marijuana is “collectively or cooperatively . . . cultivate[d].” (§ 11362.775.) Section 11362.775 exempts qualified medical marijuana patients and their primary caregivers not only from criminal prosecution for authorized collective or cooperative activities, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation sites, including a dispensary function, do not constitute a nuisance.
Slip op. at 2. IThe court concluded the opinion with this:
We recognize our conclusions today may disappoint the parties in this case and the opposing sides in California‟s ongoing debate concerning medical marijuana: dispensaries because they may wish to operate independently of cultivation sites, and some cities and other local governments because they want to ban dispensaries altogether. We emphasize that these are policy outcomes outside our power to reach or grant because we are constrained by the voters‟ and the Legislature‟s enactments. Although courts will continue to resolve disputes over the meaning of the CUA and MMPA, policy choices about the role of medical marijuana in this state, including any changes or adjustments that may be made, rest ultimately with the people and their representatives.
Slip op. at 48. We predict a request for California Supreme Court review is coming, so even though the opinion is s a long read, it’s worth it if you are interested in this issue.
City of Lake Forest v. Evergreen Holistic Collective, No. G043909 (Feb. 29, 2009)