Laserfiche WebLink
Zoning Bulletin <br />September 10, 2012 I Volume 6 I Issue 17 <br />nuisance." Because medical marijuana cooperative or collective <br />cultivation projects were authorized by the express terms of Health and <br />Safety Code § 11362.775, the court found that Civil Code § 3482 ap- <br />plied, and their mere existence and operation (i.e., as dispensaries) pur- <br />suant to state law could not be deemed a nuisance under Civil Code §§ <br />3479 or 3480. <br />The court concluded that state law preempted the County's ban. <br />See also: City of Claremont v. Kruse, 177 Cal. App. 4th 1153, 100 <br />Cal. Rptr. 3d 1 (2d Dist. 2009). <br />See also: City of Corona v. Naulls, 166 Cal. App. 4th 418, 83 Cal. <br />Rptr. 3d 1 (4th Dist. 2008). <br />See also: City of Riverside v. Inland Empire Patient's Health and <br />Wellness Center, Inc., 133 Cal. Rptr. 3d 363 (Cal. App. 4th Dist. 2011). <br />See also: City of Lake Forest v. Evergreen Holistic Collective, 138 <br />Cal. Rptr. 3d 332 (Cal. App. 4th Dist. 2012). <br />Case Note: <br />In its holding, the court made clear that a complete ban, such as the County's <br />ordinance here, stood in an "entirely different relationship to California's <br />medical marijuana law than a temporary moratorium, general regulations <br />applicable to all business operations, and reasonable restrictions on the loca- <br />tion of medical marijuana collectives or cooperatives "—which all had been <br />upheld as valid. <br />Case Note: <br />The court further concluded that "the Legislature in Health and Safety Code <br />[§ J 11362.775 intended not only to bar civil nuisance prosecutions under [' <br />11570, but also to preclude nuisance claims under Civil Code [§ J 3479," the <br />general nuisance statute (i.e., applying the "special over the general" rule of <br />statutory construction). <br />Case Note: <br />The court held that the County's ordinance banning medical marijuana dis- <br />pensaries was preempted by the MMPA, notwithstanding § 11362.768. Sec- <br />tion 11362.780 provides that the MMPA does not prohibit local governments <br />from adopting ordinances that `further restrict the location or establishment <br />of a medical marijuana cooperative, collective, dispensary, operator, <br />establishment or provider." Section 11362.768(g) provides that nothing in the <br />MMPA "shall preempt local ordinances, adopted prior to January 1, 2011, <br />©2012 Thomson Reuters 7 <br />