Posted by: Patricia Salkin | April 15, 2016

CA Appeals Court Denies Writ of Mandate to Set Aside City Ordinance Prohibiting Mobile Medical Marijuana Dispensaries as Violating the California Environmental Quality Act

The Union of Medical Marijuana Patients, Inc. (UMMP) appealed a trial court’s denial of its petition for writ of mandate seeking to set aside under the California Environmental Quality Act (CEQA), which was an ordinance prohibiting mobile medical marijuana dispensaries in the City of Upland. UMMP contended the City’s adoption of the ordinance violated CEQA because the City did not first consider the ordinance’s reasonably foreseeable environmental impacts. The City argued that the ordinance was not a “project” subject to CEQA, or is exempt under CEQA’s “commonsense” exemption for projects that have no potential to cause a significant effect on the environment.

The CEQA defines a project as “an activity directly undertaken by any public agency” that “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” Under the CEQA, “ordinances passed by cities are clearly activities undertaken by a public agency and thus potential ‘projects’ under CEQA”; however, a municipal ordinance that merely restates or ratifies existing law does not constitute a project and is therefore not subject to environmental review under CEQA. Here, the ordinance in question merely restated the prohibition on mobile dispensaries that was first imposed by the 2007 ordinance, and therefore did not cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

Even if the 2013 ordinance did not merely restate existing law, the court found it did not constitute a project since the environmental impacts UMMP cites were too “speculative or unlikely” to be deemed “reasonably foreseeable.” MMP’s claimed environmental concerns rested on assumptions about: the existence of medical marijuana patients within the City; the prevalence of such patients; the patients’ usage rates of marijuana; the patients’ use of mobile dispensaries; the patients beginning to cultivate their own marijuana in response to the 2013 ordinance; the new cultivation occurring indoors; and the small-scale indoor cultivation having similar environmental impacts as the industrial-scale indoor cultivation discussed in the studies UMMP cites. Accordingly, the trial court’s holding that the 2013 ordinance was not a project subject to CEQA was affirmed.

Union of Medical Marijuana Patients, Inc. v City of Upland, 2016 WL 1169302 (CA App. 3/25/2016)

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