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California Supreme Court Takes Up Medical Marijuana CEQA Case

The California Supreme Court has granted review in Union of Medical Marijuana Patients, Inc. v. City of San Diego, a case that will have broad application to California Environmental Quality Act (“CEQA”) review of zoning ordinances, and a more narrow application to the CEQA review of zoning of marijuana establishments. With the recent passage of Proposition 64, the Adult Use of Marijuana Act, how the Supreme Court rules in this case will add yet another element that local jurisdictions will need to pay heed to when considering how to navigate the uncharted territory of marijuana regulation.

Under CEQA, local agencies must conduct some level of environmental review of any decision that would constitute a “project.”  “Project” is defined under CEQA as an action that has the potential to result in either a direct physical change, or a reasonably foreseeable indirect physical change to the environment.  The petition for review asks the Court to answer two questions.

First, Petitioners, a corporation of medical cannabis associations and patients, ask the Court to rule whether an amendment of a zoning ordinance is categorically a “project” subject to CEQA, or in the alternative, whether local governments should determine CEQA applicability by examining each zoning ordinance on a case-by-case basis to determine whether it is reasonably foreseeable that the ordinance may cause a change to the environment.  In the underlying action here, the City of San Diego adopted a zoning ordinance allowing a limited number of medical marijuana establishments to operate in certain areas of the City.  The City determined that the zoning ordinance was not a “project” subject to CEQA.  Petitioners objected, arguing that the ordinance would cause at least some environmental impacts to traffic and air pollution and, thus, should be reviewed under CEQA.  Resolution of this issue will either establish a bright line rule that all zoning ordinances must be reviewed under CEQA, or, alternatively, allow local governments the discretion to determine whether each specific zoning ordinance is a “project” subject to CEQA review.

Second, Petitioners raise the question of whether the enactment of a law allowing the operation of medical marijuana cooperatives in certain areas of a local agency’s jurisdiction is categorically not subject to CEQA review.  The Court’s ruling here could set a significant precedent for local agencies as they grapple with zoning for both medical and recreational marijuana facilities.

Meyers Nave will continue to monitor developments in this case and provide updates as they become available.