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File Number: 12 -296 On September 6, 2011, the Moratorium was extended by 1 year to September 30, 2012. Discussion and Analysis Legal Analysis This analysis is in addition to earlier analyses by the City Attorney's Office related to land use regulations concerning medical marijuana dispensaries, collectives, cooperatives, and grow facilities. Special recognition is attributed to the League of California Cities City Attorney's Department for its continuing coverage of the legal impacts to cities surrounding the medical marijuana issue, including some of the research and text for this continuing analysis. In November 2011, in City of Riverside v. Inland Empire Patient's Health and Wellness Center, Division 2 of the Fourth District Court of Appeal upheld a local ordinance that banned medical marijuana dispensaries in the City of Riverside. The California Supreme Court granted review of the Riverside case, as well as Pack v. City of Long Beach ( holding that some dispensary regulations may be preempted by federal law) in January 2012. Those cases have not yet been set for hearing. In February 2012, however, in City of Lake Forest v. Evergreen Holistic Collective, Division 3 of the Fourth District struck down a local ban on medical marijuana dispensaries in the City of Lake Forest. In both Riverside and Lake Forest, the cities brought abatement actions against local dispensaries, arguing that their operation violated the zoning code and was consequently a per se public nuisance. Riverside's zoning code expressly prohibits medical marijuana dispensaries within the city, while Lake Forest's zoning code prohibits "uses that were not enumerated" within it. The Supreme Court granted certiorari in the Lake Forest decision on May 16, 2012. The court in City of Riverside found that Riverside's zoning ordinance banning dispensaries did not contradict the two California medical marijuana statutes that permit them, the Compassionate Use Act (CUA) and the Medical Marijuana Program Act (MMPA). It held that although the MMPA expressly declared that dispensaries are not subject to nuisance prosecution under state nuisance laws, this prohibition on prosecution did not extend to local nuisance laws. Accordingly, Riverside could ban dispensaries under its own law. The court followed precedent for a narrow reading of Civil Code section 3482, which provides that "nothing which is done ... under the express authority of a statute can be deemed a nuisance," noting that the state marijuana statutes do not prohibit zoning bans on marijuana dispensaries. The court further held that State law did not expressly or implicitly occupy the field of marijuana regulation to the exclusion of local controls. The court in City of Lake Forest reached the opposite conclusion, holding that Lake Forest's ban on dispensaries directly conflicted with State law. The court held that the CUA and MMPA precluded all nuisance prosecutions, not only state nuisance prosecutions. It further ruled that Civil Code section 3482, even when narrowly read, barred Lake Forest's nuisance suit because dispensary activity is exactly the activity legislatively authorized by the CUA and MMPA. The ruling in City of Lake Forest is narrow. The court construed the MMPA and CUA only to authorize dispensaries that also contain grow- sites. Thus, dispensaries operating in City of San Leandro Page 2 Printed on 611212012