Opinion
In 2007, the County of Sonoma (the County) enacted ordinance No. 5715 (the Ordinance) governing the zoning of medical cannabis dispensaries. One provision of the Ordinance required dispensaries to obtain permits to operate. In September 2009, real parties in interest Marvin’s Gardens Cooperative, Inc., and Terry Worden (collectively, the Cooperative) opened a medical cannabis dispensary in the town of Guemeville. The County thereafter issued a stop order to the Cooperative because it had not obtained the required permit for its Guemeville location. The Cooperative closed the dispensary and then sued the County challenging the validity of the Ordinance.
The trial court ultimately sustained the Cooperative’s challenge, holding that the Ordinance violated the Cooperative’s right to equal protection of the laws. In two separate orders, the trial court invalidated the Ordinance and
Factual and Procedural Background
This case comes to us after a rather complex procedural history in the superior court. We will therefore set out the facts in some detail.
The County’s Ordinance
After passage of the Compassionate Use Act of 1996 (CUA; Health & Saf. Code, § 11362.5, added by voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996)), groups of medical marijuana users opened medical marijuana dispensaries in the County.
Following adoption of the temporary moratorium, the County’s planning commission held a public hearing on a proposed zoning change to allow medical marijuana dispensaries. On September 21, 2006, the planning commission reviewed and revised a draft ordinance governing medical cannabis dispensaries. The commission approved a resolution recommending that the County’s board of supervisors adopt the proposed ordinance to amend the County’s zoning code.
On January 30, 2007, the County’s board of supervisors held a public hearing on the Ordinance. The board heard comments from the public and voted to adopt the Ordinance subject to certain changes. The board enacted the revised Ordinance on March 20, 2007, and it became effective 30 days later. As relevant here, the Ordinance defined the term “medical cannabis dispensary,” made such dispensaries a permitted use within certain zoning districts, and set location and operational standards for dispensaries within the unincorporated County. The Ordinance also added Sonoma County Code section 26-88-126, subdivision (c), which states: “A use permit in compliance with Sections 26-92-070 and 26-92-080 shall be required for any medical cannabis dispensary.”
The Cooperative’s Operations
In late 2003, the Cooperative opened as an informal collective in the County, and it formally organized as a cooperative corporation in 2006. For many years, the Cooperative operated a dispensary in Rio Nido. It applied for a use permit for the Rio Nido location on February 4, 2008. During the pendency of the application, the County allowed the Cooperative to conduct its business. The County made no decision on this application for over a year,
In September 2009, the Cooperative relocated to a site in Guemeville. The area in which the Cooperative is now located is zoned for “limited commercial” uses, a designation that would allow operation of a medical cannabis dispensary upon receipt of a use permit. It is undisputed that the Cooperative has never applied for a use permit for its Guemeville location.
After it opened in Guemeville, the County received telephonic and written complaints from the public about the Cooperative. Field inspectors visited the new location, and on October 2, 2009, the County issued a “stop order” to the Cooperative. The stop order informed the Cooperative that a medical marijuana dispensary could not lawfully be operated at that location without a permit. The dispensary closed on or about October 7, 2009.
The Cooperative’s Action
The Cooperative sued the County on October 13, 2009, and filed an amended pleading the next day. The amended pleading was styled as both a petition and a complaint (the Petition/Complaint). It asserted seven causes of action and included requests for a writ of administrative mandate under Code of Civil Procedure section 1094.5, a writ of mandate under Code of Civil Procedure section 1085, a temporary restraining order (TRO), a preliminary and permanent injunction, and declaratory relief. The Petition/Complaint claimed the County’s actions violated the equal protection clause of the California Constitution and various statutory provisions. It requested that the trial court issue a writ or TRO and a preliminary injunction requiring the County to withdraw its stop order and “to allow COOPERATIVE to operate within State law but without requiring it to apply for a special use permit.” It also asked for injunctive relief to enjoin the County’s zoning ordinance to the extent that it unfairly discriminated against the Cooperative. In addition, the Petition/Complaint sought a declaration that the Ordinance’s requirement that the Cooperative “obtain a special use permit before operating as a medical cannabis cooperative in the County is void on its face and as applied.”
In the legal memorandum filed in support of the Petition/Complaint, the Cooperative framed the issues presented by its litigation. It explained that it was seeking to have the court resolve “whether a requirement that state-sanctioned medical cannabis cooperatives must have a special use permit violates the equal protection clause of the California Constitution.” Citing
On the same day it filed its amended Petition/Complaint, the Cooperative also filed a notice and ex parte application seeking a writ of administrative mandamus or mandate, a TRO, a preliminary and permanent injunction, and declaratory relief. The notice informed the County the Cooperative would seek an order “restraining [the County] and [its] agents from enforcing that certain Stop Order, dated October 2, 2009, addressed to Plaintiff . . . .” The County opposed the application and argued the Cooperative was barred from raising a facial challenge to the Ordinance because it had not brought suit within the 90-day statute of limitations in section 65009, subdivision (c)(1)(B).
At the hearing on the Cooperative’s application, counsel for the Cooperative argued that section 65009 did not bar the action because the Cooperative brought suit less than two weeks after issuance of the stop order, which allegedly provided the first opportunity for the Cooperative to challenge the Ordinance. Under questioning from the court, however, counsel conceded that the Cooperative was limited to an as-applied challenge since the Ordinance had been enacted long before the Cooperative brought suit.
The County’s counsel contended the Cooperative’s challenge was facial in nature and thus barred because it had not been brought within 90 days of the Ordinance’s enactment. She also argued the Cooperative could not bring an as-applied challenge because it had failed to exhaust either of its two available administrative remedies. The Cooperative could either have applied
The December 7, 2009 Order
The trial court issued a written decision on December 7, 2009 (the December 7 Order), in which it made three key mlings. It first found the Cooperative was making both facial and as-applied challenges to the Ordinance. Relying on Travis v. County of Santa Cruz (2004)
On December 17, the County filed a motion to reconsider the December 7 Order. It specifically sought reconsideration of the trial court’s ruling on the statute of limitations.
The Second Stop Order
On December 15, 2009, the County issued a second stop order to the Cooperative, because once the Ordinance was invalidated, there existed no law authorizing the operation of medical cannabis dispensaries. The Cooperative responded to the second stop order by filing an ex parte motion seeking either clarification of the December 7 Order or issuance of a TRO against the County. The Cooperative also filed a motion for leave to file a supplemental complaint. The proposed supplemental complaint alleged new facts regarding the County’s issuance of the second stop order.
The trial court granted the Cooperative’s request for a TRO on December 23, 2009, and it set both the County’s motion to reconsider and the
At the hearing, County Counsel asked the trial court to clarify what relief it had intended to grant in its December 7 Order, since that order did not indicate whether the court intended to issue a preliminary injunction, a writ of mandate, or both. The trial court indicated that it was unsure of the effect of the December 7 Order and directed the parties to submit briefs on that question.
The April 13 Order
After further argument from the parties, the trial court issued an “Order After Hearing on Respondent’s Motion for Reconsideration” on April 13, 2010 (the April 13 Order). Although it found the County was not entitled to reconsideration, it acknowledged that its original ruling “was less than entirely clear and did not accurately reflect the full decision.” It explained that it was “thus modifying the order with respect to the specific language and orders but only to more accurately and completely reflect the court’s decision and the issues decided.”
On the limitations issue, the court explained that the applicable limitations period was provided by section 65009, subdivision (c)(1)(E), which concerns actions brought “[t]o attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903,. or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.”
Turning to the Cooperative’s facial challenge to the Ordinance, the trial court explained that Cleburne, supra,
The trial court also granted the Cooperative’s motion to file a supplementary complaint and granted it a preliminary injunction. It found that “although absent the challenged ordinance there is no local zoning ordinance expressly discussing operations such as [the Cooperative’s], the zoning of the property where [the Cooperative] seek[s] to operate potentially covers their operation.”
The April 28 Order
On April 28, 2010, the trial court issued, on its own motion, a modified order (the April 28 Order). The April 28 Order explained that the court was issuing a writ of mandate pursuant to Code of Civil Procedure section 1085, thus rendering the Cooperative’s request for an injunction “effectively moot.” The trial court reiterated its view that the Cooperative’s action was timely filed under section 65009, subdivision (c)(1)(E). It noted the Cooperative was making both an as-applied and a facial attack on the Ordinance, but it found that there was no valid argument that the Ordinance was being invalidly applied, “since the alleged defect is in the [Ordinance itself, not in the manner or circumstances in which it is being applied.” The trial court nevertheless agreed with the Cooperative’s facial challenge, and it issued a writ of mandate requiring the County to cease enforcing the Ordinance.
Proceedings in This Court
On June 2, 2010, the County filed an appeal from the portion of the trial court’s April 13 Order granting the Cooperative’s request for a preliminary injunction. (Code Civ. Proc., § 904.1, subd. (a)(6).) That appeal is pending under Marvin’s Garden Cooperative Inc. v. County of Sonoma (A128666).
The County filed a petition for writ of mandate and request for stay on June 9, 2010. The County’s petition seeks review of portions of two of the trial court’s orders. First, it seeks review of the portion of the April 13 Order that invalidated the Ordinance. Second, it seeks review of the portion of the April 28 Order invalidating the Ordinance and issuing a writ of mandate under Code of Civil Procedure section 1085 that prohibits enforcement of the
On June 9, 2010, we deferred a ruling on the County’s stay request and requested informal opposition from the Cooperative. It filed its opposition on June 18, and the County replied four days later. On June 24, we issued an order to show cause and granted the County’s request for a temporary stay.
Discussion
The County challenges the trial court’s orders on a number of grounds. Its first argument is that the Cooperative’s action is barred by the 90-day statute of limitations set forth in section 65009, subdivision (c)(1)(B). The County also contends the trial court made a number of errors in its rulings on the Cooperative’s successful equal protection challenge to the Ordinance. We agree with the County that the action is barred by the statute of limitations. Therefore we do not reach the constitutional issues decided by the trial court. (See Santa Clara County Local Transportation Authority v. Guardino (1995)
I. Standard of Review
The County’s limitations argument presents a legal question that does not involve disputed issues of fact. The trial court based its decision solely on the documents submitted by the parties, and it made clear it “did not make any attempt to pass on the correctness of any evidence.” Moreover, the facts relevant to determining when the statute of limitations began to run on the Cooperative’s action are apparent on the face of the record. Where, as here, “the relevant facts are not in dispute, the application of the statute of
II. The Parties’ Contentions
The County argues the Cooperative’s action was untimely filed, because under section 65009, subdivision (c)(1)(B), challenges to a legislative body’s decision to adopt a zoning ordinance must be brought within 90 days. It notes the trial court relied exclusively on the Cooperative’s facial challenge to strike down the Ordinance. According to the County, since the challenge is a facial one, the 90-day limitations period runs from the effective date of the Ordinance. (See, e.g., Arcadia Development Co. v. City of Morgan Hill (2008)
The Cooperative asserts its action was timely because it was filed 11 days after issuance of the October 2, 2009 stop order. In the Cooperative’s view, the trial court correctly held that the applicable limitations period is provided by section 65009, subdivision (c)(1)(E). The Cooperative argues that since it brought a timely as-applied challenge, under Travis, supra,
For the reasons that follow, we hold the trial court erred in concluding the Cooperative’s action was timely filed.
III. Section 65009—Determining the Applicable Limitations Period
In enacting section 65009, the Legislature’s intent was “to provide local governments with certainty, after a short 90-day period for facial challenges, in the validity of their zoning enactments and decisions.” (Travis, supra,
The limitations periods set out in the statute are triggered by specific acts of local land use planning authorities. (Urban Habitat Program v. City of Pleasanton (2008)
Thus, to pinpoint when the statute of limitations began to run on the Cooperative’s claims, one must determine what specific governmental act or acts the Cooperative sought to challenge. (See Urban Habitat, supra,
In this case, the trial court determined the Cooperative’s only valid challenge was facial in nature. As the trial court correctly recognized, the Cooperative had not applied for a permit for the Guerneville location. The court concluded the Cooperative had made no valid as-applied challenge, “since the alleged defect is in the [Ojrdinance itself, not in the manner or circumstances in which it is being applied.”
Despite its acknowledgement that the Cooperative had failed to apply for a permit, the trial court concluded the Cooperative’s action was subject to the limitations period in section 65009, subdivision (c)(1)(E), which applies to actions seeking review of permit conditions. Further, despite its ruling that there was no valid as-applied challenge, the trial court held the Cooperative’s facial challenge was timely. The trial court explained that “according to Travis, as long as a party brings an action to challenge an ordinance within 90 days of the time that the ordinance has been enforced against the party, then the party may raise, among others, a facial attack.” It reasoned that since the Cooperative brought suit within 90 days of the County’s “enforcement proceedings,” the Cooperative’s action was timely.
IV. The Cooperative’s Action Is Barred by Section 65009, Subdivision (c)(l)(B).
The trial court’s conclusion that the Cooperative’s challenge was timely is incorrect on several grounds. First, the court’s reasoning is internally inconsistent and cannot be squared with the language of section 65009, subdivision (c)(1)(E). Second, the Cooperative’s action is not timely merely because it was brought within 90 days of the issuance of the October 2, 2009 stop order. Third, Travis, supra,
A. The Action Does Not Fall Within Section 65009, Subdivision (c)(1)(E).
The trial court recognized the undisputed fact that the Cooperative has never applied for a permit for its Guemeville location. Section 65009, subdivision (c)(1)(E) provides a 90-day statute of limitations for actions “. . . to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.” (§ 65009, subd. (c)(1)(E).) Since the Cooperative never applied for a permit, its action cannot be viewed as a challenge to a condition attached to a conditional use
We agree with the trial court that “the alleged defect is in the [Ordinance itself, not in the manner or circumstances in which it is being applied.” Indeed, it is apparent from the Petition/Complaint that the Cooperative asserted an injury arising solely from the Ordinance’s enactment. (See Travis, supra,
Having reached this conclusion, we will now examine the arguments the Cooperative advances in support of the trial court’s holding that its facial challenge was timely even though it was brought almost two and one-half years after the Ordinance’s effective date.
B. The Limitations Period Does Not Run from the Date of the Stop Order.
The trial court appears to have concluded the action was timely because it was brought within 90 days of the initiation of “enforcement proceedings”
Contrary to the trial court’s apparent assumption, the stop order is not a “final adjudicatory administrative decision,” and in its briefs in this court, the Cooperative does not contend that it is. (Hensler, supra,
Under Hensler, the limitations period for challenging the application of a land use regulation to a specific piece of property runs from date of the final adjudicatory administrative decision. (Hensler, supra,
The trial court relied on Travis, supra,
All three owners filed a petition for writ of mandate on September 7, 1999, alleging, inter alia, that the county’s ordinance was preempted by state statute and violated the federal Constitution. (Travis, supra,
The Supreme Court went on to hold that section 65009, subdivision (c)(1)(E) did not bar Travis from making a facial attack on the validity of the county’s ordinance. (Travis, supra, 33 Cal.4th at pp. 767-771.) It reasoned that Travis was not complaining of an injury arising solely from the ordinance’s enactment. (Id. at p. 768.) He was, in addition, seeking relief from the county’s imposition of permit conditions required by the ordinance. (Id. at p. 769.) As Travis had stated a timely as-applied challenge to the ordinance, the high court held that section 65009, subdivision (c)(1)(E) did not restrict the legal theories or claims Travis could make in his action.
It is immediately apparent that the case before us is factually dissimilar to Travis. Here, there was no application for a permit, and thus the Cooperative is not challenging the kind of “final administrative action” at issue in that case. (Travis, supra,
The Cooperative interprets Travis as standing for the broad proposition that once a party asserts what it claims is an as-applied challenge, its action falls within section 65009, subdivision (c)(1)(E), and it may therefore make a facial attack on the zoning ordinance; that the trial court found the as-applied challenge invalid is irrelevant. All that matters, in the Cooperative’s view, is that its so-called as-applied challenge was filed within 90 days of the enforcement proceedings against it, and its facial challenge was asserted therewith.
We do not read Travis so broadly, and we find several flaws in the Cooperative’s interpretation of the case. First, as we explained in part IV.A., ante, the Cooperative’s action simply does not fit within the plain language of section 65009, subdivision (c)(1)(E) because it does not involve a challenge to permit conditions. Thus, Travis's holding that section 65009, subdivision (c)(1)(E) does not restrict the legal theories or claims that may be made in actions challenging permit conditions is not relevant here. (See Travis, supra,
V. Conclusion
The Cooperative’s claims were based on a facial challenge to the Ordinance. To be timely, such a challenge had to have been brought within 90 days of the Ordinance’s effective date. (§ 65009, subd. (c)(1)(B); Arcadia Development Co., supra,
Disposition
The order to show cause is discharged. The County’s petition for writ of mandate is granted. Let a peremptory writ of mandate issue commanding respondent superior court to vacate the portions of its orders of April 13, 2010, and April 28, 2010, granting the Cooperative’s petition for writ of
Needham, J., and Bruiniers, J., concurred.
Notes
All further undesignated statutory references are to the Government Code.
The CUA is intended to ensure that seriously ill Californians have the right to obtain and use medicinal marijuana when recommended by a physician. (Health & Saf. Code, § 11362.5, subd. (b)(1)(A).) It encourages the state government “to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.” (Health & Saf. Code, § 11362.5, subd. (b)(1)(C).) The Medical Marijuana Program Act (MMPA; Health & Saf. Code, §§ 11362.7-11362.9), enacted by the Legislature in response to the CUA, permits certain individuals such as qualified patients and persons with valid identification cards “collectively or cooperatively to cultivate marijuana for medical purposes” without being subjected to criminal penalties for doing so. (Health & Saf. Code, § 11362.775.) Neither the CUA nor the MMPA specifically authorizes the operation of storefront medical marijuana dispensaries. (City of Claremont v. Kruse (2009)
Under a “permissive” zoning code, “any use not enumerated in the code is presumptively prohibited.” (City of Corona v. Naulls (2008)
With exceptions not relevant here, section 65009, subdivision (c)(1)(B) provides: “[N]o action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision: [f] . . . Q] (B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.”
Counsel explained that “for the purposes of right here right now we’d concede that we are in some ways limited to [an as-applied argument], but even then there’s a lot of questions that have to be answered as the statute’s been applied.” Counsel also agreed with the trial court’s observation that the Cooperative was “restricted to” an as-applied challenge “given the time that’s gone since the enactment of the [Ordinance.”
The case before us does not involve “any decision on the matters listed in Sections 65901 and 65903 . . . .” (§ 65009, subd. (c)(1)(E).) Section 65901 concerns decisions by boards of zoning adjustment or zoning administrators on applications for permits or variances. Section 65903 sets out the duties of boards of appeals that review decisions of a board of zoning adjustment or zoning administrator.
The Cooperative argues that review by extraordinary writ of the issues raised in the petition is improper. Following our review of the parties’ extensive briefing on this topic, we issued our order to show cause. As our order to show cause necessarily represents our determination that writ review is appropriate, we will not revisit the issue here. (Community Care & Rehabilitation Center v. Superior Court (2000)
In addition to the briefs of the parties, we granted the application of the League of California Cities and California State Association of Counties to file an amicus curiae brief in support of the County.
In a footnote in its return to the petition, the Cooperative asserts that despite the trial court’s ruling, it nonetheless believes it made a valid as-applied challenge. As counsel for the County correctly noted at oral argument, if the Cooperative wished to dispute the trial court’s conclusion on this point, the Cooperative should have filed its own writ petition (in the nature of a cross-petition) to bring that argument before this court. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) 1 15:227.5, p. 15-96.7 (rev. # 1,
We will not address the Cooperative’s contention—first raised at oral argument—that it should be excused from applying for a permit because any such application would have been futile. The Cooperative did not make this argument in its briefs to this court, and it is therefore forfeited. (See People v. Thompson (2010)
The mere inclusion of the words “as applied” in the prayer for relief is not determinative. As explained above, we may examine the allegations of the pleadings and the relief requested to ascertain the nature of the Cooperative’s challenge. (See Honig v. San Francisco Planning Dept., supra, 127 Cal.App.4th at p. 528.) In so doing, we will not “exalt form over substance.” (Ibid.) It is the “gravamen of plaintiff’s cause of action” that matters, “regardless of the title attached to the cause of action or the remedy sought. . . .” (Hensler, supra,
The Cooperative’s failure to exhaust this administrative remedy would thus bar its challenge to the County’s action in any event. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983)
Although the limitations period would apply even if the Cooperative did not have actual knowledge of the Ordinance’s enactment, we note the record demonstrates the Cooperative was aware prior to enactment that the Ordinance might affect its property and operations. In fact, the Cooperative participated actively in the proceedings that led to the adoption of the Ordinance. A member of the Cooperative’s board of directors spoke at the planning commission hearing on the proposed zoning change, and individuals affiliated with the Cooperative, including Worden, submitted a letter to the planning commission that specifically addressed the permit issue. In addition, the Cooperative submitted a letter to the County’s board of supervisors, and a representative of the Cooperative testified at the board’s January 30, 2007 meeting.