Agenda - Planning Commission - 06/07/2018

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Zoning Bulletin May 10, 2018 I Volume 12 I Issue 9 lective opened. They also argued that, in any case, the City should be estopped from enforcing the Code against them because the City had collected a marijuana business tax from the Plaintiffs. The trial court denied the Plaintiffs' petition. The Plaintiffs appealed. DECISION: Judgment of Superior Court affirmed. The Court of Appeal, Sixth District, California; upheld the City's compliance order against the Plaintiffs, concluding that the Plaintiffs' medical marijuana collective was not a "medical office" as permitted by the Code in the Commercial Office zone and was thus not a permitted use in the Commercial Zone. The court also concluded that the City was not estopped from enforcing the Code against the Plaintiffs. In determining whether the medical marijuana collective qualified as a "medical office," as the Plaintiffs had argued, the court looked to the language of the City Code. The Code defined a medical office as "of- fices of doctors, dentists, chiropractors, physical therapists, acupunctur- ists, optometrists and other similar health related occupations, where patients visit on a daily basis." The Plaintiffs had argued that a medical marijuana collective was a "medical office" because it was a "health - related occupation," and because "medical marijuana collectives provide a medical and health -related service." The City, on the other hand, had argued that, unlike the specifically enumerated professions in the Code's definition of "medical office," a medical marijuana collec- tive had neither physicians nor patients. Acknowledging that the definition of "medical office" was "reason- ably susceptible of both proffered interpretations," the court agreed with the City that a medical marijuana collective is not a "medical of- fice" under the Municipal Code. The court found that a medical marijuana collective did not fall within any of the specifically listed oc- cupations in the Code's definition of "medical office." The court also concluded that a medical marijuana collective was not a "similar health related occupation" to qualify as a "medical office" under the Code given that medical marijuana collectives do not have doctors or similar health care professionals on site treating patients as did all the examples of "medical offices" listed in the Code. Moreover, the court noted that none of the listed occupations in the Code's "medical office" definition provided a good or service that was illegal under federal law —as was medical marijuana collectives. (See 21 U.S.C.A. §§ 812(b)-(c), 841- 844.) Further, noting its inclination to give deference to the City on its interpretation of its Code, the court found that the City "consistently interpreted the medical office category to exclude medical marijuana collectives." Thus, the court concluded that because the Plaintiffs' medi- cal marijuana collective was not a permitted ("medical office") use when it opened, it could not be a legal nonconforming use now. © 2018 Thomson Reuters 7