SAN DIEGO (CN) — A state appellate panel has found San Diego's ordinance for medical marijuana dispensaries does not damage the environment through pollution from patients traveling to get their medicine.
Despite involving a controversial topic — medical marijuana — the case mostly focused on what whether a project is subject to review under the California Environmental Quality Act.
The Union of Medical Marijuana Patients sued San Diego and California Coastal Commission in 2014, claiming the city's ordinance for establishing medical marijuana cooperatives does not comply with the California Environmental Quality Act.
The Fourth Appellate District panel affirmed a ruling by San Diego Superior Court Judge Joel Wohlfeil which found the city's dispensary ordinance did not constitute a project under CEQA and the city was not required to conduct an environmental analysis prior to enacting the ordinance.
Union of Medical Marijuana Patients' attorney Jamie Hall, with Channel Law Group in Beverly Hills, said they plan to appeal the case to the state Supreme Court.
In 2013, the San Diego City Council directed the city attorney to develop an ordinance to allow medical marijuana facilities in the city. The ordinance was adopted in March 2014 and amended several parts of the city's municipal code to regulate the establishment and location of medical marijuana cooperatives. It restricts the number of cooperatives to no more than four in each of the nine City Council districts - a maximum of 36 cooperatives serving more than 1.37 million people.
Cooperatives must also be located at least 1,000 feet away from public parks, churches, childcare centers, playgrounds, minor-oriented facilities, residential care facilities, schools and other cooperatives, and 100 feet from residential zones. The ordinance also requires the cooperatives follow certain requirements for lighting, security, signage and operating hours.
A mapping report by the San Diego Association of Governments showed even though the ordinance theoretically allows 36 cooperatives in the city, the restrictions mean only 30 cooperatives could be established. One of the nine council districts could not accommodate any cooperatives, while two of the districts could only accommodate three cooperatives instead of four, according to the ruling.
The Union of Medical Marijuana Patients submitted two letters to the city prior to the ordinance's adoption arguing the ordinance was a "project" as defined by CEQA and not exempt from an environmental impact study.
The group claimed that based on the 2 to 3 percent of Californians who use medical marijuana, more than 26,000 patients resided in San Diego. They argued the ordinance would create a negative environmental impact by requiring thousands of patients to drive across the city to obtain their medicine, resulting in "traffic and air pollution."
Additionally, the group said the ordinance would push patients to grow their own marijuana at home and cited the environmental impact of large-scale indoor marijuana cultivation — including high energy consumption associated with such operations. The restrictions would also shift development to certain areas of the city, the group claimed.
Wohlfeil found the ordinance was not a project subject to CEQA review and denied the group's petition for a writ of mandate.
CEQA defines a project as an "activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment." So the group argued the ordinance may cause an indirect physical change to the environment through increased traffic or building and construction changes made by dispensary owners.
But writing for the panel, Fourth Appellate District Judge Joan Irion rejected the group's argument that all enactments of zoning ordinances constitute projects under CEQA as a matter of law. She noted a CEQA's two-prong requirement, that a zoning ordinance would constitute a project only if there is a potential for a change in the environment and if the action fits into certain public agency activities.
Irion also rejected the group's argument the ordinance could result "in a reasonably foreseeable indirect physical change in the environment," finding the ordinance actually increases access to medical marijuana since it allows the legal establishment of the cooperatives where none existed before 2014. With 30 cooperatives in eight of nine council districts, patients will not have to travel "especially long distances" to obtain their medicine, Irion wrote.
Irion called the group's argument that the ordinance would lead medical marijuana users to set up their own indoor cultivation production "pure speculation," adding that "UMMP assumes that when faced with inconveniently located cooperatives, a significant number of patients will decide to set up their own cultivation operation."
The judge also said the group's final argument that the ordinance would create new construction in certain parts of the city was "speculative," pointing out many cooperatives could be located in existing commercial space. If new construction is required, that specific project would be subject to the appropriate CEQA review at that time, she said.
Hall said the case is a "really important CEQA case" because it asks what constitutes a project under CEQA, and that the panel's decision Friday has created a split in the appellate court.
"Cities are given more flexibility to defer their environmental review. It's a bad precedent. If you're a city that thinks CEQA is a nuisance, you will agree with this decision," Hall said.
Hall said CEQA requires "cooperation and thoughtfulness and an evaluation of alternatives" that San Diego's cap on dispensaries does not allow.
San Diego has recently cracked down on illegal marijuana dispensaries and launched the "Buy Safe, Buy Legal" campaign to encourage medical marijuana users to shop only at businesses with city-approved legal licenses.
City Attorney's Office spokesman Gerry Braun provided the following emailed statement:
"When the City Council provided a legal pathway for permitting medical marijuana dispensaries, it properly reviewed the environmental impacts of that ordinance. We are pleased that the Court of Appeal gave no credence to this meritless lawsuit that would have set back the process to the Wild West days when there were no rules."
Deputy City Attorney Glenn Spitzer handled the case for San Diego, Braun said.
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