County of Kern v. T.C.E.F., Inc.
200 Cal. Rptr. 3d 714
Cal. Ct. App.2016Background
- Kern County adopted a 2009 ordinance (Chapter 5.84) permitting medical marijuana dispensaries in commercial zones (treating them as pharmacies for zoning purposes).
- In 2011 the Board adopted a Dispensary Ban Ordinance that would have replaced Chapter 5.84 and banned dispensaries; voters timely submitted a protest (referendum) petition under Elections Code §9144, which suspended the ban.
- In 2012 the Board responded by (1) repealing Chapter 5.84 “in its entirety” (the Repeal Ordinance) and (2) placing an alternative regulatory measure (Measure G) on the ballot.
- Measure G passed, but was later invalidated under CEQA; as a result Measure G was voided and the County claimed no ordinance authorized dispensaries.
- County sued appellants (dispensary operators) for injunction and nuisance; the trial court granted a preliminary injunction ordering the dispensary closed. Appellants appealed.
- The Court of Appeal held the Board violated Elections Code §9145 by repealing the preexisting ordinance in a manner that had the practical effect of implementing the protested ban, and therefore the 2009 ordinance remains in force; the preliminary injunction was reversed.
Issues
| Issue | Plaintiff's Argument (County) | Defendant's Argument (Appellants) | Held |
|---|---|---|---|
| Whether the Board "entirely repealed the ordinance" under §9145 when it repealed Chapter 5.84 and later Measure G was invalidated | The Board validly repealed Chapter 5.84 (including the 2009 ordinance); with Measure G invalidated, no ordinance authorizes dispensaries | Repeal exceeded §9145: Board could not revoke the protested ban while taking other action that had the practical effect of implementing the ban; the 2009 ordinance remains | The Board violated §9145 by repealing the 2009 ordinance in a way that had the practical effect of banning dispensaries; the 2009 ordinance remains effective |
| Proper interpretation of “entirely repeal the ordinance” in §9145 | "Entirely repeal" can be satisfied by rescinding the protested ordinance without necessitating full return to status quo ante | "Entirely repeal" requires rescinding the protested ordinance and not taking additional action that implements the ordinance’s essential feature (i.e., return to status quo ante on that feature) | Court interprets "entirely repeal" to mean revoke the protested ordinance in all its parts and refrain from additional action that has the practical effect of implementing the ordinance’s essential feature |
| Whether repeal of the 2009 ordinance and the absence of any permitting regime is substantively different from an outright ban | Absence of an authorizing ordinance is not equivalent to a ban; discretionary routes (similar-use determinations or conditional use permits) remain available | Practical effect of removing the 2009 ordinance (especially given Measure G’s invalidation and County’s enforcement posture) is to prohibit dispensaries—i.e., substantively a ban | Court finds the practical effect is equivalent to a ban; theoretical discretionary exceptions are too tenuous to avoid that result |
| Remedy when §9145 violated | County urged deference to Board’s legislative authority and that repeal should stand | Appellants requested substantive restitution to the position voters would have after a lawful repeal of the protested ordinance (i.e., reinstatement of 2009 ordinance provisions) | Court deems the 2009 ordinance in force (to restore the status quo on the ordinance’s essential feature) and reverses the preliminary injunction |
Key Cases Cited
- City of Corona v. Naulls, 166 Cal.App.4th 418 (2008) (uses-permit/municipal-code principle: unenumerated uses are impermissible)
- Haraguchi v. Superior Court, 43 Cal.4th 706 (2008) (standards for appellate review of mixed law/fact questions)
- Cohen v. Board of Supervisors, 40 Cal.3d 277 (1985) (preliminary injunction legal standards and local-government context)
- White v. Davis, 30 Cal.4th 528 (2003) (balancing factors for preliminary injunctions)
- Aiuto v. City & County of San Francisco, 201 Cal.App.4th 1347 (2011) (preliminary injunction must be supported by likelihood of success on the merits)
- Duran v. Cassidy, 28 Cal.App.3d 574 (1972) (general municipal legislative power includes power to amend or repeal prior legislation)
- Martin v. Smith, 176 Cal.App.2d 115 (1959) (limitations on reenacting or enacting ordinances with essential features like repealed/rejected ones)
- Midway Orchards v. County of Butte, 220 Cal.App.3d 765 (1990) (referendum power protects an ultimate check on legislative power)
- Lindelli v. Town of San Anselmo, 111 Cal.App.4th 1099 (2003) (statutory framework and options when a municipal ordinance is suspended by referendum)