Two recent cases – identical facts – different holdings. Find out which case is right, and weigh in on whether or not California cities should be able to ban medical marijuana dispensaries.

Should cities be able to ban medical marijuana dispensaries?

  • No. (67%, 47 Votes)
  • Yes. (33%, 23 Votes)

Total Voters: 70

City may not ban medical marijuana dispensaries

Facts: A business operated a medical marijuana dispensary (MMD) in a city where MMDs were prohibited under zoning regulations. The city filed a nuisance complaint against the MMD, seeking to shut it down.

Claim: The city claimed the MMD was a public nuisance since it violated local zoning.

Counter claim: The business claimed the city could not shut down the MMD since the zoning regulation prohibiting MMDs is unenforceable, as it violates state law.

Holding: A California appeals court held the city could not shut down the MMD since MMDs are authorized by state law. [City of Lake Forest v. Evergreen Holistic Collective (2012) 140 CA 3rd 795]

Recent case on a similar issue:

City may ban medical marijuana dispensaries

Facts: A business operated an MMD in a city where MMDs were prohibited under zoning regulations. The city filed a nuisance complaint against the MMD, seeking to shut it down.

Claim: The city claimed the MMD was a public nuisance since it violated local zoning.

Counter claim: The business claimed the city could not shut down the MMD since the zoning regulation prohibiting MMDs is unenforceable, as it violates state law.

Holding: A California appeals court held the city could shut down the MMD since the MMD was in violation of the city’s zoning ordinance prohibiting MMDs. [City of Riverside v. Inland Empire Patient’s Health and Wellness Center, Inc. (2011) 200 CA4th 885]

State law trumps local zoning…maybe

These two cases remain in limbo, as they are under review before California’s Supreme Court due to their inconsistent holdings. To explore how Lake Forest and Riverside arrived at entirely different conclusions – despite the fact the underlying fact situations and arguments were essentially identical –  we must first consider how California came to allow (and sometimes prohibit) medical marijuana dispensaries (MMDs).

California’s marijuana laws – a smoky history

California became the first state to legalize medical marijuana use in 1996.

The Compassionate Use Act of 1996 (CUA) was enacted to give seriously ill patients access to medical marijuana, protecting these patients and their caregivers from criminal prosecution or sanction at the state level. However, the CUA does not provide federal protection, as medical marijuana use is still illegal nationwide.

The CUA also does not protect marijuana dispensaries, and thus the Medical Marijuana Program Act (MMPA) was enacted in 2003. The MMPA protects dispensaries that administer or cultivate medical marijuana (such as the businesses described in the above cases) and encourages a uniform, consistent application of the CUA across the state. [County of Los Angeles v. Hill (2011) 192 CA4th 861, 864]

Despite the CUA and MMPA, MMDs are still clearly controversial businesses (as are liquor stores) within California, and cities are trying to push back against the will of the state through zoning laws and other means.

Most recently, the Los Angeles city council agreed to ban all 800+ MMDs in the city, scheduled to go into effect by September 2012. Advocates will fight the ban.

The multitude of recent cases involving MMDs is evidence of the intricacies of local zoning, which vary widely from city to city, resulting in some very confused Californians, be they Angelenos in the south or Modocians in the north.

Both sides of the issue have reasonable legal claims to back them up, so who is correct?

What a nuisance!

To get to the bottom of the ambiguous MMD situation, we must start with the legal principles opponents (some cities) of MMDs rely on to state their case: zoning and public nuisances.

The idea of public and private nuisance is one of the most basic ideas in case law, defined as anything offensive, injurious or obstructive to the use and enjoyment of property. Zoning preempts nuisance complaints by regulating the types of businesses and residences which can be built and operated in designated areas. When zoning doesn’t do it, property owners may file nuisance claims against other owners who obstruct their use of property.

For instance, a homeowner’s residence is located near a waste treatment plant, which emits a noxious smell. The odors produced by the waste facility constitute a nuisance, as the smell affects the homeowner’s right to the quiet enjoyment of his property. [Varjabedian v. City of Madera (1977) 20 C3d 285]

Most local governments implement zoning regulations to ensure a consistent local environment, conformed to by all area businesses. If local zoning does not address a certain type of building or service (such as MMDs), it is left to the court to decide whether or not it poses a nuisance. [See first tuesday Legal Aspects of Real Estate, 5th Ed, Chapter 19: Nuisance: offensive, unhealthful or obstructive]

However, what if local zoning regulations contradict and are more restrictive than state law? Is a local government within its authority to completely ban MMDs through zoning when MMDs are legal in California?

Who is in charge here?

As mentioned earlier, the MMPA protects MMDs and encourages a uniform, consistent application of the CUA across all local governments. However, ambiguity still exists.

When the correct implementation of the law is not clear to a court, it will often look to the intent of the legislators when making their decision. In Lake Forest, the court reasoned the intent of the MMPA was for MMDs to be allowed to operate consistently throughout the state, not in a patchwork or piecemeal capacity.

When federal and state laws are in disagreement, the more restrictive rule is often enforced. Following this logic, restrictive zoning on a local level – weeding out MMDs – is more likely to be enforced over the state’s probable intent to include MMDs in every zoning plan, as in Riverside.

But is restrictive zoning really a good thing?

Related article:

City barred from imposing very low density restriction on residential parcel

California’s success lies in education and weather – tempered by zoning

Killing me softly with zoning

Strict zoning can cripple a local economy. The small-town decision in Riverside is reflective of backward looking city management. Their reaction to MMDs limits the locations where people may purchase otherwise commercially available goods, a tip of the hat to not in my backyard (NIMBY) zoning laws. This reminds us of Texas blue laws which are grounded in religious standards.

Regulating MMD zoning to eliminate services within city limits offers no advancement for the local economy. As evidence of this archaic thinking in action, look no further than the few states (Texas) and counties which fret theologically about alcohol sales on Sundays, forcing their citizens to cross state or county lines to spend their money (and pay sales taxes).

In the case of marijuana bans, Californians won’t be crossing state lines – but they can easily travel to the next city or county to purchase their goods. Delivery is the most likely method of commerce today.

A healthy local economy benefits from some control over the geographic distribution of services, ensuring residents have reasonable access to what they need (grocery stores, hospitals, schools, medication, etc.). On the other hand, over-active zoning – often established by the voices of a very few “concerned” citizens looking after their own agenda – directly corresponds with hindered economic activity.

Therefore, in the cases described above, a business complying with state laws and serving a community within the state ought to be supported, not exiled.

Related article:

Loosen the noose on urban density

To dispense, or not to dispense…

California’s ongoing civil disagreement on medical marijuana use and distribution meets no consensus in the recent cases discussed above. Other California cities and counties look to these contradictory rulings to make their own cases for or (more commonly) against the presence of MMDs in their communities.

A definitive ruling by California’s Supreme Court will hopefully part the (smoke) clouds of confusion, but it isn’t expected for another year or so.

Rest assured, first tuesday will follow the Supreme Court’s decision on this zoning issue closely. Until then, whether you or your client can “legally” operate an MMD (and the landlord attain a paying tenant) will likely be up to the city you live in – and just how much control the local governmental bosses feels they need to assert over the local economy to win reelection.

What’s your opinion on exclusionary zoning or inclusion of MMDs in your community? Share your thoughts below with our readers who are highly attuned to property rights!