Summary
concluding that the Bakersfield Municipal Code and resolution proscribing the operation of medical marijuana dispensaries as public nuisances were not preempted by the CUA and the MMPA and that "[e]ven without adopting the 2013 ordinance, the City had the authority pursuant to former BMC sections 17.12.040 (now BMC § 17.06.040), 17.08.040 and 17.72.010—to bring an action to abate a public nuisance against any medical marijuana dispensary operating in the City on the ground the dispensary was not a permitted use."
Summary of this case from United States v. GentileOpinion
F069768
08-26-2015
CONCERNED CITIZENS OF BAKERSFIELD, Petitioner and Appellant, v. CITY OF BAKERSFIELD, Respondent.
Jamie T. Hall and Julian K. Quattlebaum for Petitioner and Appellant. Virginia Gennaro, City Attorney, Richard Iger, Associate City Attorney; Hogan Law and Michael M. Hogan for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV279933)
OPINION
ORIGINAL PROCEEDING; petition for writ of mandate; APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Jamie T. Hall and Julian K. Quattlebaum for Petitioner and Appellant. Virginia Gennaro, City Attorney, Richard Iger, Associate City Attorney; Hogan Law and Michael M. Hogan for Respondent.
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This case involves a challenge under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) to a municipal ordinance prohibiting medical marijuana dispensaries in the City of Bakersfield (the City). After the City approved the ordinance on medical marijuana dispensaries, it issued a notice of exemption from the requirements of CEQA. Concerned Citizens of Bakersfield (CCB) filed a petition for writ of mandate seeking to set aside the ordinance, asserting the ordinance was subject to the requirements of CEQA. The trial court denied the petition.
All further statutory references are to the Public Resources Code unless otherwise noted.
In this appeal, CCB contends the commonsense exemption to CEQA does not apply to the City's adoption of the ordinance. We conclude the ordinance did not change the law and affirm the judgment.
FACTS
2004 resolution
In 2004, the City adopted resolution No. 252-04, "a resolution declaring that businesses selling or otherwise distributing medical marijuana are not permitted uses." (Capitalization omitted.)
Resolution No. 252-04 ordained:
" ... There are no permitted uses in any zones similar in type to medical marijuana dispensaries."
" ... Even if such similar uses existed, due to the negative secondary effects of medical marijuana dispensaries, such businesses are more obnoxious or detrimental to the welfare of the community than any permitted uses."
" ... Medical marijuana dispensaries are not permitted uses within any zone in the City of Bakersfield."
2013 ordinance
In May 2013, the California Supreme Court held that state medical marijuana statutes do not preempt local bans on facilities that distribute medical marijuana. (City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 737 (Inland Empire).) Specifically, the court recognized that, under their traditional land use and police powers, cities and counties may "allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and ... enforce such policies by nuisance actions." (Id. at p. 762.)
In response to Inland Empire, a city council member requested the city attorney's office draft and present to the city council an ordinance consistent with the case. Later in May 2013, the city council gave notice of a public hearing on a project described as "Amendment to Title 17 (Zoning) of the Bakersfield Municipal Code adding Section 17.04.463 defining a medical marijuana dispensary, and amending Section 17.08.050 prohibiting a medical marijuana dispensary from any zone district within the city."
In June 2013, the city council conducted a public hearing on the proposed ordinance. City Attorney Virginia Gennaro described the ordinance as "really a continuation of some historical direction by the City Council," referring to resolution No. 252-04, which "has been on the books for over nine years, and staff has repeatedly referred to that resolution when people have called asking what the City's policy and what the City's position is on medical marijuana dispensaries." Gennaro explained the proposed ordinance was the result of the state high court's guidance in Inland Empire and further stated:
"I would submit to you tonight that really, in the most—in the clearest and the simplest form, you are simply taking your resolution from 2004, and you are codifying it into a resolution [sic]. What does it mean and—and what will [it] do? And basically it will give you, it will give us, it will give the city attorney, your code enforcement, and your police department an
additional enforcement tool that is endorsed by the California Supreme Court. If adopted ... it will not allow City staff to knock down doors, close businesses, and arrest people in a unilateral fashion.
"We will continue to respond to complaints, and we will continue to conduct logical, orderly investigations, and if this ordinance is on the books, we will now be able to use this ordinance if we need to proceed to court and [obtain] a civil injunction from the local courts in order to enforce the law. [¶] So as you requested, this ordinance is being presented to you tonight for your consideration, and it is consistent with the [Inland Empire] decision, and it's also consistent with [our] past practice."
Many members of the public spoke against the proposed ordinance and one person spoke in its favor.
Council member Maxwell stated that the City did not have "an ability to take [the] one or two medical marijuana shops that are causing all the problems and truly shut them down until [Inland Empire]."
Although no medical marijuana dispensaries would be permitted in the City under the proposed ordinance, Gennaro indicated that only dispensaries that cause trouble would be targeted for enforcement: "I would submit to you that just like most of your code enforcement, it's operated on a complaint basis and ... resources are limited.... [W]e will have to triage those complaints and—and go to the more than just, 'Hey, this is a medical marijuana shop['] ... [to] the ones that are really causing the trouble."
On June 26, 2013, the city council adopted ordinance No. 4731, adding Bakersfield Municipal Code (BMC) section 17.04.463 and amending BMC section 17.08.050. BMC section 17.04.463 provides: "'Medical marijuana dispensary' means a facility or location where marijuana is made available for medical purposes in accordance with California Health and Safety Code Section 11362.5 et seq." BMC section 17.08.050 now provides: "The following uses are specifically prohibited within any zone district: [¶] A. Medical marijuana dispensary."
On the same date, the City received a letter from Ganong Law, a law firm representing "numerous patient associations." The law firm took the position that the ordinance was not exempt from CEQA and that the City must conduct an initial study pursuant to California Code of Regulations, title 14, section 15063. It wrote that "at least 25 patient associations (i.e., 'medical marijuana dispensaries') operat[e] in the City." The firm suggested that, as a result of the ordinance, "many existing patient associations will cease to operate" and "patients who currently obtain their medication from the existing patient associations will be required to travel greater distances (e.g.[,] outside the City) in order to continue to receive the treatment they need." The increased travel, in turn, would result in increased air pollutants. Ganong Law also suggested that a reasonably foreseeable consequence of the ordinance would be increased indoor cultivation of medical marijuana by individual users, which would result in increased electricity and water use in residential areas.
Notice of exemption
On July 1, 2013, the City filed a notice of exemption, stating that the "project" of amending the municipal code was exempt from CEQA because "it can be seen with certainty that there is no possibility adoption of the text amendments to the [BMC] will have a significant effect upon the environment."
PROCEDURAL HISTORY
On July 29, 2013, CCB filed a petition for writ of mandate seeking to set aside the ordinance. CCB alleged the ordinance was not exempt from CEQA and, therefore, the City violated its duty to conduct an initial study under CEQA.
On April 4, 2014, the trial court heard argument on the petition. At the request of the City and with no objection from CCB, the court took judicial notice of certain provisions of the Bakersfield Municipal Code not contained in the administrative record.
These were, from Title 1 (General Provisions), 1.40.010; from Title 5 (Business Taxes, Licenses and Regulations), 5.02.010 and 5.02.070; and from Title 17 (Zoning), 17.06.040, 17.08.040, 17.68.090, and 17.72.010.
Former BMC section 17.12.040 (renumbered in May 2014 to BMC § 17.06.040 without change) provided: "No land shall be used, and no building or structure shall be erected, constructed, enlarged, altered, moved or used in any zone, as shown upon the zoning map, except in accordance with the regulations established by this title."
BMC section 17.08.040 provides: "Uses other than those specifically mentioned in this title as uses permitted in each of the zones may be permitted therein, provided such uses are similar to those mentioned and are, in the opinion of the Planning Commission and City Council, as evidenced by a resolution in writing, not more obnoxious or detrimental to the welfare of the community than the permitted uses specifically mentioned in the respective zones." (Italics added.)
BMC section 1.40.010 B. provides in relevant part: "[A]ny condition caused or permitted to exist in violation of any of the provisions of this code shall be deemed a public nuisance and may be, by the city, summarily abated as such, and each day such condition continues shall be deemed a new and separate offense." Similarly, BMC section 17.72.010 C. provides in relevant part: "Any building or structure erected or maintained, or any use of property, contrary to the provisions of this title shall be and the same is unlawful and a public nuisance ...."
Given that medical marijuana dispensaries were never an expressly permitted use in the City, the trial court found that the 2004 resolution (as well as the 2013 ordinance) "merely confirm[ed] publicly that medical marijuana dispensaries and any uses similar to a medical marijuana dispensary were expressly impermissible under the [BMC]." The court explained:
"The City of Bakersfield has, at all relevant times, had zoning laws that identified particular uses that were permitted in particular zoning areas, but none specified a medical marijuana dispensary or any similar use as a permitted use in any area. There is no evidence that any parties sought or obtained a written resolution from the City Council which permitted such use. And I am citing the [BMC] sections 17.06.040 and 17.08.040.
"Any medical marijuana dispensary or similar use which failed to take the necessary steps to obtain City approval for their nonconforming operation before opening their doors for business would be in violation of the [BMC]. As such, the operation would be a nuisance per se. Citing [BMC] sections 1.40.010 and 17.72.010. Also ... [City of Monterey v.] Carrnshimba [(2013) 215 Cal.App.4th 1068] at [p]age 1095 [(Carrnshimba) and] ... [City of Claremont v.] Kruse (2009) 177 Cal.App.4th 1153] at [p]age 1165 [(Kruse)]." (Italics added, underlining omitted.)
The court then reasoned: "Medical marijuana dispensaries are unlawful under the [BMC] both before and after the Ordinance was adopted in 2013. The Ordinance did nothing to expand, amend, or change this unlawful status in any way. [¶] As stated by the Court in Black Property Owners [Assn.] v. City of Berkeley (1994) ... 22 Cal.App.4th 974, at pages 985 and 986 [(BPOA)], the question under CEQA is the potential impact on the existing environment[al] changes in the [BMC]. [¶] In the case before this Court, nothing has changed in the [BMC]. The City has always had the power, under [the BMC], to declare such conduct to be a nuisance and seek to abate it."
Based on its determination that the adoption of the 2013 ordinance did not change the law, the trial court determined that it could be said with certainty that it would not have an effect on the environment. Therefore, the court concluded the ordinance qualified for the commonsense exemption and denied the petition.
DISCUSSION
"CEQA and its implementing administrative regulations ... establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations." (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380, fn. omitted (Muzzy Ranch).) "The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. [Citations.] An activity that is not a 'project' as defined in the Public Resources Code (see § 21065[]) and the CEQA Guidelines[] (see § 15378) is not subject to CEQA. [Citation.]" (Id. at p. 380.)
"'Project' means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." (§ 21065.)
The Guidelines for the Implementation of the CEQA (Cal. Code Regs., tit. 14, § 15000 et seq.; hereafter CEQA Guidelines).
"The second tier concerns exemptions from CEQA review. The Legislature has provided that certain projects, such as ministerial projects and repairs to public service facilities of an emergency nature, are exempt. [Citations.] In addition, pursuant to the Legislature's command (see Pub. Resources Code, § 21084, subd. (a)), the CEQA Guidelines list categorical exemptions or 'classes of projects' that the resources agency has determined to be exempt per se because they do not have a significant effect on the environment. [Citations.]" (Muzzy Ranch, supra, 41 Cal.4th at p. 380.)
"A project that qualifies for neither a statutory nor a categorical exemption may nonetheless be found exempt under what is sometimes called the 'commonsense' exemption, which applies '[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment' [citation]." (Muzzy Ranch, supra, 41 Cal.4th at p. 380, quoting CEQA Guidelines, § 15061, subd. (b)(3).)
CEQA Guidelines, section 15061 provides in part:
"(a) Once a lead agency has determined that an activity is a project subject to CEQA, a lead agency shall determine whether the project is exempt from CEQA.
"(b) A project is exempt from CEQA if:
"(1) The project is exempt by statute.... [¶] (2) The project is exempt pursuant to a categorical exemption....
"(3) The activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
"(4) The project will be rejected or disapproved by a public agency. [Citation.] [¶] (5) The project is exempt pursuant to the provisions of Article 12.5 of this Chapter." (Italics added.)
"If a public agency properly finds that a project is exempt from CEQA, no further environmental review is necessary. [Citation.] The agency need only prepare and file a notice of exemption [citations], ... including a brief statement of reasons to support the finding of exemption [citation]. If a project does not fall within an exemption, the agency must 'conduct an initial study to determine if the project may have a significant effect on the environment.' [Citation.]" (Muzzy Ranch, supra, 41 Cal.4th at p. 380.) The third tier comes into play if the agency determines substantial evidence exists that the project may cause a significant effect on the environment; in that case, an environmental impact report must be prepared. (Id. at p. 381; § 21100.)
We review the City's actions for prejudicial abuse of discretion pursuant to section 21168.5. "[O]ur review of the administrative record for error is the same as the trial court's; we review the agency's action, not the trial court's decision." (Muzzy Ranch, supra, 41 Cal.4th at p. 381.) "Throughout [our review], we must bear in mind that '[t]he foremost principle under CEQA is that the Legislature intended the act "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.'" [Citation.]" (Ibid.)
The agency invoking the commonsense exemption has the burden of proving that it applies. "An agency's duty to provide such factual support 'is all the more important where the record shows, as it does here, that opponents of the project have raised arguments regarding possible significant environmental impacts.' [Citation.]" (Muzzy Ranch, supra, 41 Cal.4th at p. 386.)
"Ordinances passed by cities are clearly activities undertaken by a public agency and thus potential 'projects' under CEQA." (Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 789, fn. 2.) On the other hand, it has been held that a city's ratification and acknowledgment of existing law is exempt from CEQA review where the city "has taken no action to change" the law. (See BPOA, supra, 22 Cal.App.4th at p. 986 [no obligation to evaluate the environmental effects of preexisting ordinance where city ratified and acknowledged ordinance but "took no action to expand, amend, or change [it] in any way"].)
In the present case, CCB contends the 2013 ordinance may have a significant effect on the environment because the City's intention in adopting the ordinance was to provide an "additional enforcement tool." CCB's concern is that the City will begin to use public nuisance actions to force the closure of existing medical marijuana dispensaries and this, in turn, could result in potential significant effects to the environment if qualified patients in the City then begin growing their own marijuana or driving greater distances to obtain medical marijuana.
Based on the June 5, 2013, public meeting, it does appear the city attorney and at least one council member believed that the City did not have the authority to shut down medical marijuana dispensaries prior to Inland Empire and that a new zoning ordinance was necessary to allow the City to enforce public nuisance actions against problematic marijuana shops. However, their belief was not correct; a new ordinance was not necessary to provide an "enforcement tool" to shut down medical marijuana dispensaries in the City. Even without adopting the 2013 ordinance, the City had the authority—pursuant to former BMC sections 17.12.040 (now BMC § 17.06.040), 17.08.040 and 17.72.010—to bring an action to abate a public nuisance against any medical marijuana dispensary operating in the City on the ground the dispensary was not a permitted use. (See, e.g., Carrnshimba, supra, 215 Cal.App.4th at pp. 1091-1096 [affirming summary judgment in favor of city against medical marijuana dispensary for public nuisance action where dispensaries were not a permitted use under local law]; Kruse, supra 177 Cal.App.4th at pp. 1163-1168 [operation of medical marijuana dispensary without the city's approval was a nuisance per se and could be enjoined]; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 430-433 (Naulls) [affirming trial court's finding that medical marijuana dispensary was a nonpermitted, nonconforming use and noting "where a particular use of land is not expressly enumerated in a city's municipal code as constituting a permissible use, it follows that such use is impermissible"].)
Thus, the trial court was correct that the 2013 ordinance did nothing to change the City's zoning laws with respect to medical marijuana dispensaries. Since it made no change in the law, the adoption of the 2013 ordinance is exempt from CEQA. (See BPOA, supra, 22 Cal.App.4th at p. 986.) Stated differently, "it can be seen with certainty that there is no possibility that [the adoption of the 2013 ordinance] may have a significant effect on the environment" (CEQA Guidelines, § 15061 (a)(3)) because the regulatory environment related to medical marijuana dispensaries in the City did not change.
CCB's attempts to show the 2013 ordinance did effect a change in the law are not persuasive. Relying on language in the 2004 resolution suggesting that only "'businesses'" were subject to the resolution, CCB argues the 2013 ordinance is broader than the 2004 resolution. (The resolution declared that "businesses selling or otherwise distributing medical marijuana are not permitted uses" and "such businesses are more obnoxious or detrimental to the welfare of the community than any permitted uses." (Italics added, boldface and capitalization omitted.).) But even before the 2004 resolution was adopted, medical marijuana dispensaries, whether operating as "businesses" or not, were not a permitted use under the zoning laws. CCB next offers the hypothetical situation of a qualified patient providing medical marijuana to his roommate, who is also a qualified patient, within the privacy of their shared apartment. CCB asserts this activity would not necessarily be a prohibited use of the apartment under prior law but would be prohibited under the 2013 ordinance. CCB offers no legal support for this assertion, however, and we do not believe this hypothetical demonstrates the 2013 ordinance changed the law in a manner that could have a significant effect on the environment. Both before and after the 2013 ordinance, a code enforcement agency arguably could attempt to abate the hypothetical roommates' activity on the ground the conduct is not a permitted use in any zone, and the hypothetical roommates could defend against the charge, arguing their conduct does not constitute a "use" of the apartment regulated by the BMC. In sum, CCB has failed to show the adoption of the 2013 ordinance effected a change in law.
DISPOSITION
The judgment is affirmed. The City is awarded costs on appeal.
/s/_________
KANE, J.
WE CONCUR: /s/_________
HILL, P. J.
/s/_________
SMITH, J.
It has been observed that the commonsense exemption "is not a true exemption" because it is a determination that CEQA does not apply. (See May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1327-1328.) That is, an activity is not actually a "'project'" for CEQA purposes if there is no possibility the activity might cause a physical change in the environment. (Ibid.; § 21065.)