In County of Sonoma v. Superior Court, No. A128734 (Dec. 15, 2010), the California Court of Appeal, First District concluded that an equal protection challenge to the requirement in Sonoma County's zoning code that medical marijuana dispensaries obtain a permit to operate must have been brought within 90 days of the enactment of the requirement. The court concluded that a challenge brought only after the County ordered a dispensary to stop operations was filed too late.
Since 1996, California law law has permitted "seriously ill Californians" to have access to medicinal marijuana "when recommended by a physician." Slip op. at 2 n.2. Before 2007, the County's zoning ordinance did not address marijuana dispensaries, which were therefore technically prohibited. In 2007, the County made dispensaries a permitted use within certain zoning districts, and required them to obtain a Use Permit.
In 2008, a dispensary that had been operating since 2003 applied for a Use Permit under the new ordinance, which it later apparently withdrew. In 2009, the dispensary moved to a new location in a nearby town, but never applied for a Use Permit for the new location. After public complaints, the County issued a stop order, ordering the dispensary to cease operations until it obtained a permit.
Five days later the dispensary closed, and six days after that, it sued the County. Its main claim was that the requirement to obtain a Use Permit violated the California Constitution's equal protection clause. The complaint sought injunctive relief, and a declaration that the County ordinance that required a marijuana dispensary to obtain a Use Permit was "void on its face and as applied." Slip op. at 5.
California state law imposes a 90-day statute of repose for actions challenging a legislative body's decision "to adopt or amend a zoning ordinance," and the action triggering the statute is the adoption of the ordinance. See Cal. Gov't Code § 65009(c)(1)(B). The dispensary asserted that it did not run afoul of this time deadline because it filed its complaint within 90 days of receiving the stop order, which it claimed was the triggering action for an as-applied challenge.
The trial court concluded the challenge was both facial and as-applied, and held the facial challenge was timely filed because "it would be unfair to property owners who first experience the impact on their own property subsequent to the passage of 90 days." Slip op. at 7. The court held that since the dispensary had brought both a facial and an as-applied challenge, the as-applied repose period applied. Under Gov't Code § 65009(c)(1)(E) and Travis v. County of Santa Cruz, 33 Cal. 4th 757 (2004), the repose period was triggered by the "enforcement proceedings" and not the adoption of the ordinance:
Despite its acknowledgment that the Cooperative had failed to apply for a permit, the trial court concluded the Cooperative's action was subject to the limitations period in section 65009, subdivision (c)(1)(E), which applies to actions seeking review of permit conditions. Further, despite its ruling that there was no valid as-applied challenge, the trial court held the Cooperative's facial challenge was timely. The trial court explained that "according to Travis, as long as a party brings an action to challenge an ordinance within 90 days of the time that the ordinance has been enforced against the party, then the party may raise, among others, a facial attack." It reasoned that since the Cooperative brought suit within 90 days of the County's "enforcement proceedings," the Cooperative's action was timely.
Slip op. at 13-14.
On the merits, the court upheld the facial challenge and invalidated the ordinance, concluding that the County failed to produce evdience that there is a rational basis to distinguish medical marijuana dispensaries from other like uses such as drug stores (which do not require a Use Permit). The court rejected the as-applied attack, however, since the dispensary had not applied for a permit.
The Court of Appeal reversed. It concluded that the "true nature" of the dispensary's claim was a facial challenge to the ordinance's requirement that it obtain a Use Permit. It had not applied for a permit and the County had not made a final adjudicatory administrative determination that the dispensary could not have a permit, and thus the dispensary obviously could not be said to be challenging the County's decision not to issue it a permit. Its only claim was that the ordinance itself was defective. Slip op. at 12-13.
The court also rejected the trial court's conclusion that a facial challenge could tag along with the invalid as-applied challenge, and thus the repose period was triggered by the stop order, and not the adoption of the ordinance more than two years earlier. Slip op. at 18-19.
