Posted by: Patricia Salkin | May 18, 2016

CA Appeals Court Holds Repeal of Ordinance Authorizing Medical Marijuana Dispensaries in Commercial Zones Violated Referendum Statute

In 2009, the County of Kern enacted an ordinance effectively authorizing medical marijuana dispensaries in commercially zoned areas, which include the defendants’ location in Rosamond, California. In 2011, the County approved a new ordinance banning medical marijuana dispensaries throughout the County’s jurisdiction. The new ordinance would have repealed and replaced the 2009 ordinance if it had become effective. However, the new ordinance banning dispensaries did not become effective because it was suspended by operation of section 9144 when County received a valid protest petition from its voters. County’s board of supervisors responded in 2012 to the protest petition by presenting County voters with an alternate ordinance called referendum Measure G, which authorized dispensaries to operate in industrial zones and subjected them to several restrictions. After the election, some dispensaries located in commercially zoned areas filed an action challenging the validity of Measure G, alleging the environmental review required by the California Environmental Quality Act had not been completed. In that lawsuit, the trial court concluded a CEQA violation had occurred and invalidated Measure G.

The County also adopted a separate repeal ordinance that stated “Chapter 5.84 of Title 5 of the Kern County Ordinance Code is hereby repealed in its entirety.” Chapter 5.84 was where the 2011 dispensary ban would have been codified and where the predecessor 2009 ordinance, authorizing dispensaries in commercially zoned areas, was set forth. In its request for an Injunction, the County argued that, after Measure G was invalidated and the repeal ordinance was in effect, no ordinance permitted medical marijuana dispensaries to operate within County’s jurisdiction. The trial court granted the preliminary injunction, and the Defendants appealed.

Here, Section 9144 provides that “the ordinance shall be suspended” upon a county’s timely receipt of a protest petition. The court interpreted this phrase to mean that the Dispensary Ban Ordinance was prevented from becoming operative by County’s timely receipt of the valid protest petition. In this case, the board of supervisors reconsidered the protested ordinance as required by section 9144. After its reconsideration, the board chose to repeal the Dispensary Ban Ordinance and repeal the 2009 Ordinance. The parties disputed whether the board’s combined actions satisfied, or exceeded, section 9145’s requirement to “entirely repeal the ordinance.” The court found that this phrase required the board of supervisors to revoke the protested ordinance in all its parts and refrain from additional action that would have the practical effect of implementing the essential feature of the protested ordinance.

The County argued the absence of authorization resulting from the repeal of the 2009 Ordinance was not the same as a dispensary ban even though the Ordinance Code is a “permissive” code under which any uses not specifically permitted are prohibited. The court found that the theoretical possibility the County might authorize dispensaries under its discretionary authority was irrelevant, as the prohibition did not be absolute to have the practical impact of banning dispensaries. Accordingly, the court reversed, holding the repeal of the 2009 Ordinance to be invalid and declaring that ordinance as being in full force and effect.

County of Kern v T.C.E.F., 200 Cal. Rptr. 3d 714 (4/5/2016)


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