In a published opinion filed March 25, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment denying a writ petition that challenged a 2013 ordinance of the City of Upland which expressly prohibited mobile marijuana dispensaries within the City. Union of Medical Marijuana Patients, Inc. v. City of Upland (4th Dist., Div. 1, 2016) 245 Cal.App.4th 1265, 2016 WL 1169302, Case No. D069293. Because the ordinance merely restated a ban already in effect under an existing 2007 ordinance that was never challenged under CEQA, it lacked the potential to cause direct or reasonably foreseeable indirect physical changes in the environment and was therefore not a “project” subject to CEQA.
The City’s unchallenged 2007 ordinance stated in pertinent part “[n]o medical marijuana dispensary … shall be permitted in any zone within the city” and defined such dispensaries as a “facility or location, whether fixed or mobile, which provides, makes available or distributes marijuana to [various categories of individuals] in accordance” with state law. (Emph. in opn.) The 2007 ordinance was enacted after City’s adoption of a negative declaration under CEQA and was never challenged. In 2013, the City adopted another ordinance “expressly prohibiting mobile dispensaries within the City.” Plaintiff UMMP challenged the 2013 ordinance under CEQA, claiming it would have foreseeable environmental effects such as increased resident travel, indoor cultivation activity and associated impacts.
The Court of Appeal affirmed the trial court’s judgment denying UMMP’s writ petition, noting that under the first “jurisdictional” tier of CEQA’s three-tier review process “[a]n activity that is not a ‘project’ as defined in [CEQA and the Guidelines] is not subject to CEQA.” (Quoting Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380; citing Pub. Resources Code, § 21065, Guidelines, § 15378.) While local ordinances are potential “projects” under CEQA as they are activities undertaken by a public agency, they must also be capable of “caus[ing] either a direct physical change in the environment, or a reasonably foreseeable indirect physical change” to come within that definition. Per the Court: “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.” (Citations omitted.) CEQA’s purpose of informing the public and government officials of their decisions’ environmental consequences before the decisions are made would “not [be] served by requiring environmental review for a new ordinance that merely restates existing law without change.” The Court observed that whether a particular activity constitutes a project is a question of law, and that the determination involves common sense as an important consideration. (In light of its holding that no “project” was involved, the Court did not address the City’s contentions regarding application of CEQA’s so-called “common sense” exemption.)
The Court also rejected UMMP’s various arguments that the 2007 ordinance was exclusively a zoning ordinance that did not regulate vehicle use, and noted the City had properly invoked its “authority [under its police power] to regulate both land uses and other conduct and activities” through the 2007 ordinance.
Finally, in a significant alternative holding, the Court stated: “Even if we were to conclude the 2013 ordinance did not merely restate existing law, we would nonetheless conclude it did not constitute a project. The ostensible environmental impacts UMMP cites are based on layers of speculation, and are thus too “speculative or unlikely” to be deemed “reasonably foreseeable.”” (Citing CEQA Guidelines, § 15064(d)(3).) The Court noted that the many unsupported assumptions underlying UMMP’s environmental concerns included the existence and prevalence of medical marijuana patients in the City, their usage rates, their use of mobile dispensaries, and their indoor cultivation activities (and related asserted impacts) in response to the 2013 ordinance. Per the Court: “Common sense leads us to conclude these concerns are too “speculative and unlikely” to be considered “reasonably foreseeable.””
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.