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Local Governments May Regulate Cultivation of Marijuana

On February 6, 2013, in Browne v. County of Tehema (C068800) the Third District Court of Appeal upheld the County of Tehema’s ordinance (“Ordinance”) regulating the cultivation of medical marijuana, finding that the Ordinance does not conflict with either the Compassionate Use Act (“CUA”) or the Medical Marijuana Program Act (“MMPA”). Consistent with previous appellate opinions regarding medical marijuana collectives and cooperatives, the Court explained that neither the CUA nor the MMPA grants qualified patients or individuals with a medical marijuana identification card an unfettered right to cultivate marijuana for medical purposes. Consequently, because the Ordinance did not ban the cultivation of marijuana outright, the judgment of the trial court was affirmed. Furthermore, the appellate court affirmed a local government’s right to declare cultivation of marijuana in violation of local ordinances to be a nuisance and to proceed with nuisance abatement.

The Ordinance declared as a nuisance the cultivation of more than a certain number of marijuana plants depending on the size of the parcel. Additionally, the Ordinance prohibited cultivation of any marijuana within 1000 feet of schools, parks and other sensitive uses, required the marijuana grow to be surrounded by an opaque six-foot fence and established setback requirements. The Court found the Ordinance did not conflict with state law because the Ordinance merely regulated the location and quantity, but did not prohibit, the cultivation of marijuana.

In another development relating to medical marijuana the State Supreme Court heard oral argument in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., et al. (S198638). A key issue here is whether cities and counties can ban medical marijuana dispensaries. For further information, please contact Ruthann G. Ziegler at 800.464.3559.