By Matthew Hinks
A trial court’s order granting the motion of the City of Lake Forest for a preliminary injunction against the operations of a medical marijuana dispensary has gone — well — “up in smoke”. Orange County Superior Court Judge Chafee had ruled that the city’s zoning ordinances, which did not recognize dispensaries as a permitted use and expressly prohibited unpermitted uses, established a complete ban against medical marijuana dispensaries justifying preliminary injunctive relief. The Court of Appeal in City of Lake Forest v. Evergreen Holisitc Collective, 203 Cal. App. 4th 1413 (2012), disagreed and reversed that decision.
The zoning ordinances of the City of Lake Forest are fairly typical of municipal zoning ordinances, of the type often referred to as a “Euclidean” zoning scheme, named after the zoning code adopted in the town of Euclid Ohio, and approved in the Supreme Court’s landmark decision in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). The ordinances identify certain “principal” property uses as permitted uses in each zone, uses permitted subject to a use permit and uses that are “specifically prohibited”. Among the latter category are uses not specifically permitted in the first two. In other words, unless the ordinance specifically permits, by right or conditionally, a specific use, it is expressly prohibited. No zone in the city, including the community commercial district where the defendant Evergreen’s dispensary was located, permits medical marijuana dispensaries.
The city argued that Evergreen’s dispensary constituted a per se nuisance in that the city had effectively banned dispensaries because “marijuana dispensaries are neither enumerated as a permitted use, nor as any other type of conditional or temporary use in any zoning district in the City.” (Emphasis in original) Thus, the city urged, maintaining a medical dispensary in Lake Forest constituted a per se nuisance based on City law providing that any violation of its municipal code or zoning code constituted a public nuisance.” See LFMC, § 1. 01.240(B) (“any condition caused or permitted to exist in violation of any of the provisions of any code adopted by reference by this Code, or of the provisions of any other City ordinance, shall be deemed a public nuisance which may be abated by the City Attorney in a civil judicial action”); id. § 9.208.040(B) (“any use of property contrary to the provisions of the Zoning Code shall be and the same is hereby declared to be unlawful and a public nuisance”).
The Court of Appeal overturned the trial court’s injunction ruling given its conflict with state law as expressed in the voter-approved Compassionate Use Act (“CUA”), Health & Safety Code § 11362.5 and the Medical Marijuana Program Act (“MMPA”), Health & Safety Code §§ 11362.7 & 11362.83. Noting that “an activity authorized by statute cannot be deemed a nuisance”, the court held that in enacting Health & Safety Code § 11362.775, the California legislature expressly authorized dispensaries where medical marijuana is “collectively or cooperatively . . . cultivated”. In so doing, the legislature “determined the activities it authorized at collective or cooperative cultivation sites, including a dispensary function, do not constitute a nuisance”. Accordingly, because under the city’s municipal code, “a medical marijuana dispensary always constitutes a nuisance[ ] though the Legislature has concluded otherwise”, it “directly contradicts state law”, “is preempted”, and “furnishes no valid basis for a preliminary injunction”.
In addition to its obvious importance to operators of medical marijuana dispensaries, the Court of Appeal’s opinion in the Lake Forest case could also have repercussions for a host of other municipally-styled “nuisance abatement” actions, including, notably, well-publicized litigation involving allegedly illegal outdoor advertising, including billboards and supergraphics. Nuisance law has proven to be a powerful weapon employed by municipalities in such cases, which have relied upon local ordinances declaring any violation of the municipal code (such as violations of sign permit requirements or sign size and placement regulations) per se nuisances.
The Evergreen opinion, however, could portend a significant curtailment of that power as the court addressed, not only the power of a municipality to declare per se nuisances, but also significant limitations on that power. The general police power allows municipalities to declare by ordinance what constitutes a public nuisance. Thus, “a nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance. . . .” Nuisances per se are regarded as such “because no proof is required, beyond the actual fact of their existence, to establish the nuisance.”
However, according to the Lake Forest court, while municipalities may declare by ordinance nuisances per se, those determinations “are not immune from judicial scrutiny.” For example, a municipality may not declare an activity to be a nuisance when it, in fact, is not. Nor, as the holding of Lake Forest illustrates, may a municipality declare as a nuisance per se an activity expressly authorized by statute.
Evergreen had urged in the Court of Appeal that application of the nuisance per se doctrine to prevent all land uses not specifically permitted in the Lake Forest zoning ordinances was “too vague and therefore violated due process by rendering all other uses a per se violation of the City’s zoning code”. Given that that court was able to resolve the case on statutory grounds, it declined, for prudential reasons, to address the constitutional issues. Given the spate of sign litigation cases currently pending in the Superior Courts, it may not be long before that issue does get addressed by the Courts of Appeal.
Matthew Hinks is a litigator with a wide-ranging practice that focuses primarily on the representation of real estate developers in difficult land use cases. Matt has extensive experience litigating complex mandamus actions and other claims involving signage disputes, governmental takings, CEQA challenges, planning and zoning law, civil rights violations, eminent domain issues, title disputes, lease disputes and community redevelopment and density bonus law. He has extensive experience in both federal and state courts, including trial courts and courts of appeal, as well as in arbitration, mediation and administrative settings. Contact Matt at MHinks@jmbm.com or 310.201.3558.