Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal. 5th 1171

November 21st, 2019

By: Johannah Kramer

Union of
Medical Marijuana Patients, Inc. v. City of San Diego
 (2019) 7 Cal. 5th 1171

In 2014, the City of San Diego
adopted an ordinance amending its zoning code to allow for medical marijuana
dispensaries. The ordinance capped the number of dispensaries allowed in each
city council district, placed restrictions on where the dispensaries could be
located, and required conditional use permits for all dispensaries. The City found
that adopting the ordinance was not a project, and therefore, was not subject to
CEQA. The findings stated that the ordinance did not have the potential to
cause environmental impacts, and noted that future dispensaries would require a
discretionary permit and environmental review.

The Union of Medical Marijuana Patients
(UMMP) filed a petition, arguing the ordinance should have been considered a
project subject to environmental review. The trial court disagreed and denied the
petition. On appeal, UMMP reiterated their argument and asserted that section
21080 requires zoning amendments be considered projects under CEQA as a matter
of law. The appellate court disagreed, holding that the statute did not require
such a finding; and rejected the argument that the City should have found the
ordinance to be a project. Thereafter, the California Supreme Court accepted
the case for review.

The Court first addressed the
question of whether an agency amendment of a zoning ordinance constitutes a
project as a matter of law. The Court reiterated the significance of California
Public Resources Code section 21065, which defines a ‘project’ under CEQA. Under
section 21065, an activity is a project if it “may cause either a direct
physical change in the environment, or a reasonably foreseeable indirect
physical change in the environment” and is subject to agency control in some
way (e.g., undertaken by the agency itself, funded by the agency, or subject to
licensing or permitting by the agency).

UUMP relied on section 21080’s
definition of statutory exemptions from CEQA, which states, “[e]xcept as
otherwise provided, [CEQA] shall apply to discretionary projects proposed to be
carried out or approved by public agencies, including, but not limited to, the
enactment and amendment of zoning ordinances … unless the project is exempt
from this division.” UMMP argued that section 21080’s statutory reference to
zoning amendments means that such ordinances, as a matter of law, are projects
under CEQA. This argument was supported by Rominger
v. County of Colusa
(2014) 229 Cal.App.4th 690, a case concerning the approval
of a tentative subdivision map (which is also listed in section 21080).

The Supreme Court disagreed and
disapproved the ruling in Rominger,
holding that section 21080 did not classify all zoning code amendments as projects.
Rather, the Court evaluated the plain language of 21080 and 21065 and concluded
that, when read together, the language unambiguously allows for zoning
amendments that do not meet the definition of a ‘project’ to be deemed ‘not a project’.
These zoning code amendments would fall outside of CEQA’s obligations. The
Court supported this conclusion by noting the needless costs involved in subjecting
an ordinance which did not have the potential to impact the environment to
additional environmental review.

In other words, the language of
21080, which lists various types of approvals, does not create a list of projects
mandating CEQA review. Rather, 21080 must be read together with 21065 and the
listed activities in 21080 must have the potential to result in a direct or indirect
physical change in the environment, as described in 21065.

The Court addressed whether the City
had properly concluded the zoning ordinance was not a project. The Court’s
analysis largely centered on Muzzy Ranch
Co. v. Solano County Airport Land Use Com.
(2007) 41 Cal.4th 372. Muzzy Ranch involved two issues: whether
approval of a transportation and land use plan was a project, and if so,
whether the project was exempt under the commonsense exemption. The commonsense
exemption states that a project is exempt, “[w]here it can be seen with
certainty that there is no possibility that the activity in question may have a
significant effect on the environment.” (CEQA Guidelines, §15061(b)(3).)
Despite similar language between the commonsense exemption and section 21065’s definition
of a ‘project’, the Court in Muzzy Ranch held
that the approval was a project, yet was exempt from CEQA under the commonsense

Here, the Court underscored its
decision in Muzzy, finding that the initial determination of whether an action
constitutes a project is a legal inquiry to determine if the “activity’s potential
for causing environmental change is sufficient to justify the further inquiry
into its actual effects”. The Court concluded that the somewhat “abstract”
nature of defining ‘project’ was appropriate to the “preliminary role” in “CEQA’s
three-tiered decision tree”. The Court concluded that prior to the ordinance,
dispensaries were not allowed, but illegal businesses did operate within
the City. New retail and closure of prior illegal dispensaries creating different
patterns of traffic are sufficiently plausible impacts to find the ordinance
may result in a “reasonably foreseeable indirect physical change in the environment.”
But whether the ordinance will result in “actual” impacts on the environment is
a determination best left to later tiers in the CEQA decision tree.

While the Court acknowledged
certain impacts alleged by UMMP could turn out to be minimal or nonexistent, it
held that both the City and Court of Appeal improperly attempted an evaluation
of the actual impacts. The Court held that there were potential impacts of the
ordinance, such as construction related to new dispensaries and changes in traffic
patterns. On that basis, the Court found that the ordinance was a project.

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