County of Tulare v. Nunes
155 Cal. Rptr. 3d 781
Cal. Ct. App.2013Background
- County of Tulare zoning ordinance restricts medical marijuana collective/cooperative locations to certain zones (C-2, C-3, M-1, M-2) and bans them in AE-20 agricultural zones, with buffer restraints and nuisance provisions.
- Defendants operated an MMC on AE-20 land in an unincorporated area in violation of Section 15.3.
- The County filed an Oct 14, 2010 complaint seeking preliminary and permanent injunction and nuisance abatement for violating the zoning ordinance.
- In May 2011 the County moved for summary judgment; the trial court granted it and issued a permanent injunction.
- Defendants appeal contending the ordinance conflicts with or is preempted by state medical marijuana laws and is unconstitutional; the trial court’s ruling is upheld on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 15.3 conflicts with general/state law | County argues no preemption; ordinance regulates land use consistent with police power | Nunes contends ordinance conflicts with the Compassionate Use Act and MMPA | No conflict; ordinance is valid and not preempted |
| Whether the equal protection clause invalidates Section 15.3 | MMC classifications serve legitimate zoning interests | MMC treated differently from individuals growing marijuana | Rational basis upheld; MMC not similarly situated to individuals; valid under equal protection |
| Whether growing medical marijuana can be deemed an agricultural use in AE-20 | Zoning may accommodate agricultural/commercial uses | Marijuana cultivation should be treated as agricultural use under AE-20 | Growing marijuana is not an agricultural use under the AE-20 zoning; local regulation permissible |
| Whether amendments to MMPA/language permit local zoning regulation of MMCs | Local agencies may regulate locations under MMPA amendments | Amendments impermissibly revise the CUA | Local regulation permitted; amendments clarify rather than preempt or override; consistent with prior decisions |
Key Cases Cited
- O’Connell v. City of Stockton, 41 Cal.4th 1061 (Cal. 2007) (preemption framework for local ordinances vs. state law)
- American Financial Services Assn. v. City of Oakland, 34 Cal.4th 1239 (Cal. 2005) (local regulation preemption standards; duplicative/contradictory rules invalid)
- County of Los Angeles v. Hill, 192 Cal.App.4th 861 (Cal. App. 2011) (local regulation of medical marijuana dispensaries permissible if consistent with MMPA)
- City of Claremont v. Kruse, 177 Cal.App.4th 1153 (Cal. App. 2009) (local regulation of medical marijuana dispensaries; zoning authority)
- Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920 (Cal. 2008) (CUA creates narrow defense, not broad right to marijuana use)
- People v. Mentch, 45 Cal.4th 274 (Cal. 2008) (MMPA immunities recognized; context for prosecutions)
- People v. Kelly, 47 Cal.4th 1008 (Cal. 2010) (limits on MMPA section 11362.77 where it burdens CUA criminal defenses)
- Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721 (Cal. 1982) (legislative amendments aligning with prior case law constitute endorsement)