Agenda - Planning Commission - 07/18/2013 - Special

Home

Zoning Bulletin June 25, 2013 I Volume 7 j Issue 12 ("MMC") conflicts with California's Compassionate Use Act ("CUA") or Medical Marijuana Program Act ("MMP"). It also addressed the is- sue of whether an ordinance restricting MMC's to commercial and manufacturing zones violates the equal protection clause of the Cali- fornia Constitution. The Background/Facts: The County of Tulare (the "County") restricted the location of medical marijuana collectives and coopera- tives ("MMC's") to commercial and manufacturing zones, pursuant to § 15.3 of the County zoning ordinance (the "Ordinance"). Jeffrey Nunes, Jr. and Foothill Growers Association, Inc. (collectively, the "Collective") operated an MMC in an agricultural zone in the County. The County brought an action for injunctive relief. It sought to require the Collective to discontinue the nonconfouuiing use of the property. It argued that the Collective's use of the property violated the Ordinance and also, based on that violation, was a public nuisance. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the trial court issued summary judgment in favor of the County. The court issued an injunction prohibiting the Collective from operating an MMC at that location in violation of the zoning ordinance. The Collective appealed. They argued that the Ordinance was in- valid and unenforceable because: (1) it conflicted with the CUA and the MMP; and (2) it was unconstitutional in violation of the equal protection clause of the California Constitution. Among other things, the CUA (Health & Saf. Code, § 11362.5) and the MMP (Health & Saf. Code, §§ 11362.7 to 11362.9) exempt the col- lective or cooperative cultivation of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit those activities. The equal protection clause of the California Constitution provides that "persons similarly situated with respect to the legitimate purpose of the law receive like treatment." (See Cal. Const., art. I, § 7.) The Collective argued, among other things, that the Ordinance's re- striction of the total number of marijuana plants in any MMC to 99 was contrary to, and therefore preempted by, the CUA and MMP. Also, the Collective argued that the Ordinance violated the equal protection clause of the California Constitution because it treated MMC's unequally from individuals who grow medical marijuana —singling out MMC's for special zoning restrictions (as to location). DECISION: Affirmed. The Court of Appeal, Fifth District, California, held that the Ordinance's restriction of the total number of marijuana plants in any © 2013 Thomson Reuters 9