City of Monterey v. Carrnshimba CA6
215 Cal. App. 4th 1068
Cal. Ct. App.2013Background
- Jhonrico Carrnshimba operated a medical marijuana Dispensary through MyCaregiver Cooperative, Inc. in Monterey after relocating to the city in late 2009.
- Carrnshimba applied for a city business license describing a healthcare/cooperative retail business, not disclosing the Dispensary use.
- City staff later learned the operation was a Dispensary, which Monterey’s Zoning Ordinance did not permit; a cease-and-desist was issued.
- City adopted a moratorium (Ordinances 3441, 3445) banning Dispensaries within Monterey for a defined period starting January 2010.
- The City sued to abate a public nuisance; a preliminary injunction issued, followed by summary judgment and a permanent injunction tied to the moratorium.
- Appellants continued to operate the Dispensary during and after the moratorium; tenancy and use ended by 2011, but the appeal proceeded for merits despite mootness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Dispensary a pre-moratorium permitted use? | Monterey | Carrnshimba | Not a permitted pre-moratorium use; nuisance per se. |
| Does the post-moratorium moratorium retroactively validate the nuisance? | Monterey | Carrnshimba | Moratorium retroactivity not explicit, but applying it to unlawful preexisting use was proper; nuisance per se. |
| Was the Dispensary use barred for lack of a business license, making it a nuisance per se? | Monterey | Carrnshimba | Pre-moratorium license noncompliance supports nuisance per se; however, the court based its ruling on pre-moratorium use as not permitted. |
| Did appellants exhaust administrative remedies before challenging the use? | Monterey | Carrnshimba | Exhaustion not required to reach merits; nonetheless, the court elected to address merits. |
| Is Monterey's City Code as applied discriminatory against MyCaregiver? | Monterey | Carrnshimba | No; ordinance interpretation was reasonable and not discriminatory as applied. |
Key Cases Cited
- City of Corona v. Naulls, 166 Cal.App.4th 418 (Cal. Ct. App. 2008) (nonpermitted, nonconforming uses may be nuisances per se when not properly approved)
- Kruse, 177 Cal.App.4th 1153 (Cal. Ct. App. 2009) (administrative remedies exhaustion and denial of permits; continued illegal operation supports nuisance)
- Environmental Charter High School v. Centinela Valley Union High Sch. Dist., 122 Cal.App.4th 139 (Cal. Ct. App. 2004) (mootness and public interest considerations in injunctions)
- Avco Community Developers, Inc. v. South Coast Regional Comm., 17 Cal.3d 785 (Cal. 1976) (vested rights doctrine; changes in zoning after approvals do not create vested rights)
- Abbot Ford, Inc. v. Superior Court, 43 Cal.3d 858 (Cal. 1987) (public interest in continuing issues; mootness exception for matters of public importance)