May a city compel a marijuana dispensary to close because zoning law does not list it as an acceptable use?

J. Arthur Properties, II, LLC v. City of San Jose

Facts:  A medical marijuana dispensary operates next to a residential area in a commercial office zone. The ordinance does not list a marijuana dispensary as a permissible use in this zone, but “medical office” is listed. The city later orders the dispensary to close as an unpermitted business.

Claim: The owner of the marijuana dispensary seeks to continue operating, claiming the business is not prohibited in the zone since the health-related dispensary constitutes a legal medical office and, thus, is permitted by the local ordinance.

Counterclaim: The city claims the business is in violation of zoned permitted property uses since a marijuana dispensary does not meet the definition of medical office as it has no physicians or patients.

Holding: A California court of appeals holds the city may close the dispensary since “medical office” in the municipal code is properly interpreted as not including a marijuana dispensary due to the lack of physicians and patients. [J. Arthur Properties, II, LLC v. City of San Jose (March 21, 2018)_CA4th_]

 

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