January 5th, 2017

By: Chris Butcher

In Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal. App. 5th 103, the City enacted an ordinance adopting regulations for medical marijuana consumer cooperatives (“cooperatives”) in the City. The ordinance permits cooperatives through a conditional use permit in several zones in the City, including certain commercial and industrial zones. It allows up to four cooperatives in each of the City’s nine City Council districts and requires that cooperatives to be located 1,000 feet from public parks, churches, childcare centers, playgrounds, minor-oriented facilities, residential care facilities, schools, and other cooperatives, and 100 feet from residential zones. The ordinance defines the term “cooperative” to mean “a facility where marijuana is transferred to qualified patients or primary caregivers in accordance with the Compassionate Use Act of 1996 and the Medical Marijuana Program Act.”

After the City Council adopted the ordinance without undertaking review under CEQA, the plaintiff filed a petition for writ of mandate against the City in April 2014.

The court held that the enactment of the ordinance did not constitute a project under CEQA. The court explained that the enactment of a zoning ordinance would not constitute a CEQA project unless it might cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.

The court also held that the ordinance would not result in a reasonably foreseeable indirect physical change in the environment, finding all of the plaintiff’s arguments speculative and unwarranted. First, the plaintiff contended that the ordinance, by restricting the location of cooperatives, would force patients to travel to cooperatives far from their residences, creating traffic and air pollution. Second, the plaintiff argued that patients in the City would undertake their own indoor cultivation of marijuana rather than travel to inconveniently located cooperatives and such indoor cultivation would have harmful environmental impacts, including increased electricity use. Finally, the plaintiff argued that the ordinance might result in new construction activity because the cooperatives established under the ordinance would have to be located somewhere.

Key Point:  

Not all zoning ordinances constitute a project under CEQA. Only a zoning ordinance that may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment constitutes a project under CEQA.