Agenda - Planning Commission - 03/01/2012

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Zoning Bulletin January 10, 20121 Volume 61 No. 1 not be used "in a manner that created a public nuisance." A "public nui- sance" was defined as use of the property in a manner that violates city, state, or federal law. The notices pointed out that sale of medicinal marijuana and the cultivation or distribution of marijuana for profit violated the California Uniform Controlled Substances Act (Health & Saf. Code SS 11000 et seq.) and the Federal Controlled Substances Act (21 U.S.C.A. SS 812 et seq.). The notices advised the Dispensaries' landlords and the Dispensaries that the dis- tribution at the two leased premises constituted public nuisance because such distribution violated state and federal law and was not an allowed or con- ditional use in any industrial zoning district in the city. The notices required distribution of marijuana at the two locations be ceased. Subsequently, the Dispensaries' landlords complied with the nuisance abatement orders by initiating proceedings to evict the Dispensaries from the leased premises. In April 2010, the Dispensaries filed with the superior court a peti- tion for a writ of mandamus or prohibition. The court denied the petition based on the Dispensaries' failure to exhaust their administrative remedies under the Code. The Code provided that a person who receives a nuisance abatement order can: correct the alleged violation; or if they do not correct the viola- tion, the director of the Department must set a hearing before the adminis- trative appeals board. After such hearing and an administrative order from the board, an aggrieved person may obtain judicial review. The Dispensaries appealed the court's decision. They argued that the doctrine of exhaustion of administrative remedies (the "Doctrine ") did not apply here; they argued that their circumstances fit within an exception to the Doctrine. DECISION: Reversed. The Court of Appeal, Sixth District, California, held that, pursuant to the Code, here, an administrative was an "illusory remedy" and thus not required for exhaustion. These circumstances fit within an excep- tion to the doctrine of exhaustion of administrative remedies. Thus, 'the lower court's ruling that the Doctrine applied and the Dispensaries failed to exhaust their administrative remedies was in error. The Dispensaries' ac- tion was ripe for judicial review. In so holding, the court explained that the Doctrine "refers to the require- ment that administrative remedies be pursued as a jurisdictional prerequisite to seeking judicial relief from an administrative action." Generally, a party must exhaust administrative remedies before he or she can seek judicial re- view; it is a jurisdictional prerequisite. However, the court acknowledged that there were exceptions to the Doctrine such as when the administrative rem- edy is: unavailable; inadequate; or would be futile to pursue. Exceptions also apply in situations where: the agency "indulges in unreasonable delay "; when the subject matter lies outside the administrative agency's jurisdiction; or when pursuit of an administrative remedy would result in irreparable harm. Thus, the court noted that "[tlhe exhaustion requirement is not applica- ble where an effective administrative remedy is wholly lacking." The court © 2012 Thomson Reuters 3