Agenda - Planning Commission - 08/04/2016

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June 25, 2016 I Volume 10 I Issue 12 Zoning Bulletin The Dispensary Operators subsequently filed a writ of supersedeas or other appropriate stay with the Court of Appeal. The Court of Ap- peal stayed the order granting the preliminary injunction until the ap- peal —addressing the dispute over the continued effect of the 2009 ordinance was deteiniined on its merits. DECISION: Judgment of superior court reversed. Addressing the dispute over the continued effect of the 2009 ordinance, the Court of Appeal, Fifth District, California, looked to and interpreted California Elections Code § 9145, and applied that interpre- tation to the facts of the case. The court explained that Elections Code § 9144 provides that if a petition protesting the adoption of an ordinance is presented to a board of supervisors prior to the effective date of the ordinance, the ordinance must be suspended and the board of supervisors must reconsider the ordinance. Under that reconsidera- tion, the board of supervisors could rescind (i.e., repeal) the ordinance. Alternatively, they could decide to submit the protested ordinance to the voters in accordance with § 9145. § 9145 provides that if the board of supervisors does not entirely repeal the ordinance against which the petition was filed, the board must submit the ordinance to voters, and the ordinance remains ineffective unless a majority of voters approve it. Here, the court determined that it was tasked with determining whether the Board "entirely repeal[ed] the ordinance against which a petition [wa]s filed." The court interpreted the phrase "entirely repeal the ordinance" to mean that the Board was required to: (1) revoke the protested ordinance in all its parts; and (2) not take additional action that would have the practical effect of implementing the essential feature of the protested ordinance. This interpretation resulted in a holding that was a matter of first impression (i.e., the first time the court addressed the issue): "additional action taken by a county board of supervisors following receipt of a protest petition may not have the practical effect of implementing the essential feature of the protested ordinance." Applying that interpretation, the court concluded that the Board here "did more than entirely repeal the protested ordinance banning dispen- saries when it revoked that ordinance and took the additional action of repealing the 2009 ordinance, which authorized dispensaries." The court explained that the "practical effect of repealing the 2009 ordinance was to prohibit dispensaries, which was essentially the same as the ban of dispensaries protested by voters." Therefore, the court concluded that the County violated § 9145 by repealing the 2009 ordinance and, as a result, the 2009 ordinance remained in full force and effect. Ac- cordingly, the Dispensary Operator's dispensary, which was located in a commercial zone, remained an authorized use. Thus, the County 8 © 2016 Thomson Reuters