Posted by: Patricia Salkin | July 30, 2013

CA Appeals Court Upholds Local Zoning Ordinance Aimed at Restricting the Cultivation of Medical Marijuana

In 1996 California voters adopted Proposition 215, the Compassionate Use Act (CUA), which was intended to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes. In 2003, the California Legislature passed the Medical Marijuana Program (MMP) to clarify the scope of the CUA and to promote its uniform application among the counties within the state.  A 2010 amendment to the MMP restricted the location of medical marijuana cooperatives, collectives or dispensaries to more than 600-feet from a school and permits a city or county to adopt ordinances to further restrict the location of these establishments.

Petitioners challenged an ordinance of the County of Tehama that attempts to regulate the cultivation of medical marijuana in order to protect the public health, safety and welfare in the County by imposing several regulations including classifying certain use of land for the cultivation of medical marijuana as a nuisance. Among the other restrictions anyone cultivating the marijuana is required to register the premises with the County’s Health Services Agency and disclose the name of each owner or lessee of the property. Identification cards are to be issued for qualified patients and establishing a maximum number of plants able to be cultivated on the property. The regulations also required outdoor growing facilities to be enclosed by an opaque fence at least six feet high. The Petitioners challenged the ordinance as unconstitutional, claiming it conflicted with the CUA and the MMP and invaded their right to privacy.

The Court explained that the CUA and MMP don’t give people the unfettered right to cultivate marijuana for medical purposes, instead they immunize specific persons from prosecution under two sections of the health and safety code. First, the Court says that because the ordinance is being challenged facially, and not as applied, the petitioners have failed to show the ordinance acts as a total ban on the cultivation of medical marijuana. The Court seemingly leaves the door open to the Ordinance being unconstitutional as applied due to its restrictions on the number of plants able to be grown, but they do not decide that because the petitioners did not make an as applied challenge. The holding that the CUA creates a limited defense to certain crimes is coupled with the pronouncement that the CUA did not create a constitutional right to obtain marijuana.

Agreeing with the County, the Court holds that the ordinance does not conflict with the CUA nor the MMP, since neither creates or grants unrestricted rights. In fact, the MMP’s 2010 amendment included a provision that municipalities may make laws to regulate the use of medical marijuana sites so long as they are not inconsistent with the CUA or MMP. The Court held that because the CUA does not address zoning and the plain language does not prohibit the enforcement of zoning requirements, the County is able to regulate the cultivation amounts and location of medical marijuana on particular parcels of property.

Noting that he MMP specifically eliminates criminal sanctions against the qualified persons and provides immunity against the “drug den” abatement law, which provides that every place used for selling, storing or consuming drugs is a nuisance, the Court concludes the nuisance provision under the ordinance is a civil violation and therefore it does not conflict with the MMP because there is no criminal act. Second, the Court interprets the limited immunity to apply only to a nuisance action based solely on the doing of the act that the Legislature has immunized. The Court finds that no statute granting immunity to those who partake in the cultivation of medical marijuana restricts a local government from regulating the activity and declaring it a nuisance if it is not in conformity with the restriction or regulation. Therefore there is no nuisance if the medical marijuana is being handled in a manner consistent with the ordinance and therefore there is no preemption.

Browne v. County of Tehama, 213 Cal. App. 4th 704 (3d Dist., 2/6/2013)

The opinion may be accessed at:               http://scholar.google.com/scholar_case?case=10175510644233554126&hl=en&as_sdt=2&as_vis=1&oi=scholarr


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