Union of Medical Marijuana Patients, Inc. v. City of San Diego
4 Cal. App. 5th 103
| Cal. Ct. App. | 2016Background
- In March 2014 San Diego adopted Ordinance No. O-20356 to allow and regulate "medical marijuana consumer cooperatives" by conditional use permit, limiting locations, spacing, security, signage, hours, and capping cooperatives per City Council district. The ordinance expressly targeted commercial retail facilities.
- The City used SANDAG mapping to determine potential cooperative locations and concluded up to 30 cooperatives could locate across most council districts.
- UMMP challenged the adoption under CEQA, arguing the ordinance was a "project" because it could (1) increase vehicle travel and air pollution, (2) shift or intensify development, and (3) spur increased indoor cultivation with energy impacts.
- The City's staff concluded the ordinance was not a CEQA "project" under CEQA Guidelines §15060(c)(3) and §15378 because it would not cause a direct or reasonably foreseeable indirect physical change in the environment. The Council enacted the ordinance without CEQA review.
- The superior court denied UMMP's writ. On appeal the Court of Appeal affirmed, holding the ordinance was not a CEQA project because it did not have a potential to cause a reasonably foreseeable indirect physical environmental change.
Issues
| Issue | Plaintiff's Argument (UMMP) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether enactment of the ordinance is a CEQA "project" | Ordinance is a zoning-type enactment and thus a project under §21080(a); it will foreseeably change environmental conditions (traffic, development, indoor cultivation). | Section 21065 requires a project to have potential for direct or reasonably foreseeable indirect physical environmental change; the ordinance does not meet that requirement. | The ordinance is not a CEQA "project"—it lacks a reasonably foreseeable indirect physical change to the environment. |
| Whether §21080(a) creates a bright-line rule that all zoning enactments are projects | §21080(a) lists enactment/amendment of zoning ordinances as covered discretionary projects, so such enactments are categorically projects. | §21080(a) must be read with §21065 (and CEQA Guidelines): zoning enactments only are projects if they may cause direct or reasonably foreseeable indirect physical change. | Rejected UMMP's bright-line reading; harmonizing statutes and CEQA Guidelines requires potential physical change as an additional prerequisite. |
| Whether adoption will foreseeably increase travel and air pollution | Restrictions will force patients to travel farther, increasing vehicle miles and air pollution. | No evidence that access will worsen; ordinance legalizes up to ~30 cooperatives (where none legally existed) and SANDAG mapping shows citywide availability; preexisting illegal dispensaries had been subject to abatement. | Speculative; record shows the ordinance likely increases lawful access and does not establish a reasonably foreseeable increase in travel/air pollution. |
| Whether adoption will foreseeably increase indoor cultivation or trigger new construction | Patients deprived of access will cultivate at home (energy impacts) or new construction will occur to house cooperatives. | Those outcomes are speculative; ordinance targets commercial retail, not informal home collectives; cooperatives can occupy existing commercial space; any future construction or permits would trigger project-level CEQA review later. | Speculative chain of assumptions fails to show a reasonably foreseeable indirect physical change; any concrete future development is subject to project-level CEQA when proposed. |
Key Cases Cited
- Muzzy Ranch Co. v. Solano County Airport Land Use Com., 41 Cal.4th 372 (2007) (defines CEQA "project" inquiry as categorical question whether activity may cause direct or reasonably foreseeable indirect physical change)
- City of Riverside v. Inland Empire Patients Health & Wellness Center, 56 Cal.4th 729 (2013) (addresses local authority to abate or regulate medical marijuana dispensaries and scope of state law protections)
- Wal-Mart Stores, Inc. v. City of Turlock, 138 Cal.App.4th 273 (2006) (discusses interaction of §21080 and §21065 and CEQA Guidelines on whether certain public actions are automatically projects)
- Rominger v. County of Colusa, 229 Cal.App.4th 690 (2014) (held approval of tentative subdivision map categorically a CEQA project; Court of Appeal here disagreed with Rominger’s broader rule)
- Union of Medical Marijuana Patients, Inc. v. City of Upland, 245 Cal.App.4th 1265 (2016) (rejects speculative chains of assumptions about increased indoor cultivation and travel as basis for treating legislative acts as CEQA projects)