Agenda - Planning Commission - 08/04/2016

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Zoning Bulletin June 25, 2016 I Volume 10 I Issue 12 power of county voters to protest a newly adopted ordinance. More specifically, it addressed the issue of whether additional action taken by a county board of supervisors following receipt of a protest petition may or may not have the practical effect of implementing the essential feature of the protested petition. The Background/Facts: In 2009, the County of Kern (the "County") enacted an ordinance that effectively authorized medical marijuana dis- pensaries in commercially zoned areas. Then, in 2011, the County ap- proved a new ordinance that banned medical marijuana dispensaries throughout the County's jurisdiction. The new ordinance would have repealed and replaced the 2009 ordinance if it had become effective. However, the new ordinance banning dispensaries did not become ef- fective because it was suspended by operation of California Elections Code § 9144 when the County received a valid protest petition from its voters. In response to the protest petition, in 2012, the County's Board of Supervisors (the "Board"): (1) presented County voters with an alternate ordinance called referendum "Measure G"; and (2) adopted a separate repeal ordinance that stated "Chapter 5.84 of Title 5 of the Kern County Ordinance Code is hereby repealed in its entirety." Chapter 5.84 was where the 2011 dispensary ban would have been codified and where the predecessor 2009 ordinance, authorizing dis- pensaries in commercially zoned areas, was set forth. Voters approved Measure G by 69%, thus supporting its provisions that authorized dispensaries to operate in industrial zones subject to restrictions. Then, in 2014, the County sued the operators (the "Dispensary Operators") of a medical marijuana dispensary that was operating in the County. The County asked the court to issue a preliminary and per- manent injunction against the operation of the dispensary. The County alleged that its zoning ordinance did not authorize medical marijuana dispensaries to operate in the County because, since they were not specifically permitted (given the adoption of the repeal ordinance in 2012), they were prohibited by the County's zoning ordinances and therefore constituted a public nuisance. In response, the Dispensary Operators argued that the repeal ordinance of 2012 was illegal. Based on that illegality, they contended that the 2009 ordinance —authorizing medical marijuana dispensaries in commercially zoned areas —remained in effect. Accordingly, they maintained that their dispensary, which was located in a commercially zoned area, was an authorized use. The trial court ultimately granted the County the preliminary injunc- tion against the Dispensary Operators. That injunction directed the Dispensary Operators to cease and desist their medical marijuana dis- pensary operations. © 2016 Thomson Reuters