Agenda - Planning Commission - 02/02/2012

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December 25, 2011 I Volume 51 No. 24 Zoning Bulletin . Here, the court found that Riverside's zoning ordinance regulating MMDs did not "mimic" or duplicate state law; rather, it could be recon- ciled with the CUA and MMP. This was because Riverside's zoning ordi- nance differed in scope and substance from the CUA and MMP. The court explained that the CUA provides limited criminal immunity to medical marijuana users and caregivers for use, cultivation, and pos- session of medical marijuana. The MMP merely implements the CUA and also provides immunity for those involved in lawful MMDs. Neither the CUA nor the MMP provide individuals with inalienable rights to establish, operate, or use MMDs, nor do they preclude locate governments from reg- ulating MMDs through zoning ordinances. The CUA and MMP do not expressly mandate that MMDs shall be permitted within every city and county, nor do they prohibit cities and counties from banning MMDs, said the court. The Center had argued that Riverside's ordinance banning .MMDs was invalid because it was inconsistent with the MMP. The MMP, noted the Center, provides immunity for a nuisance claim arising from a violation of a section of the MMP that encompasses operating an MMD. Because s 11362.775 of the MMP exempts an operator of an MMD from liability for nuisance, the Center argued that Riverside's zoning ordinance, banning MMDs and declaring them a nuisance, was preempted by state law. The court disagreed. It said that although § 11362375 allowed lawful MMDs, a municipality could limit or prohibit MMDs through zoning regulations and prosecute such violations by bringing a nuisance action and seeking injunctive relief. The MMP provides immunity only as to lawful MMDs. An MMD operating in violation of a zoning ordinance prohibiting M1VIDs is not lawful. Because the legislature did not expressly prohibit cities from enacting zoning regulations banning MMDs or from bringing a nuisance action enforcing such ordinances, Riverside's zoning ordinance banning MMDs did not duplicate or contradict the CUA and MMP statutes. The court also found that the CUA and MMP do not fully occupy—ei- ther expressly or impliedly—the area of regulating, licensing, and zoning MMDs, to the exclusion of all local law. Neither the CUA nor the MMP address the areas of land use, zoning, and business licensing. Moreover, found the court, the CUA and MMP express "an intent to permit local regulation of MMD's." The CUA expressly provides that it does not "su- persede legislation prohibiting a person from engaging in conduct that en- dangers others." The MMP expressly states that it does not "prevent a city or other local governing body from adopting and enforcing laws consistent with [the MMP]." The court concluded that because Riverside's ban of MMDs was not preempted by the CUA or MMP, Riverside's prohibition of M1VIDs in the city through enacting a zoning ordinance banning MMDs, was a lawful method of limiting the use of property by regulating and restricting the lo- cation and establishment of MMDs in the city. See also: City of Claremont v. Kruse, 177 Cal. App. 4th 1153, 100 Cal. Rptr. 3d 1 (2d Dist. 2009), review denied, (Dec. 2, 2009). 10 © 2011 Thomson Reuters