City of Lake Forest v. Evergreen Holistic Collective, No. G043909.

CourtCalifornia Court of Appeals
Writing for the CourtARONSON
Citation2012 Daily Journal D.A.R. 2817,2012 Daily Journal D.A.R. 4213,12 Cal. Daily Op. Serv. 2533,138 Cal.Rptr.3d 332
PartiesCITY OF LAKE FOREST, Plaintiff and Respondent, v. EVERGREEN HOLISTIC COLLECTIVE, Defendant and Appellant.
Decision Date29 March 2012
Docket NumberNo. G043909.

12 Cal. Daily Op. Serv. 2533
138 Cal.Rptr.3d 332
2012 Daily Journal D.A.R. 2817
2012 Daily Journal D.A.R. 4213

CITY OF LAKE FOREST, Plaintiff and Respondent,

No. G043909.

Court of Appeal, Fourth District, Division 3, California.

Feb. 29, 2012.As Modified March 29, 2012.

Background: City brought nuisance action against medical marijuana dispensary, based on a citywide ban against dispensaries. The Superior Court, Orange County, No. 30-2009-00298887, David R. Chaffee, J., granted a preliminary injunction shutting down the dispensary as a per se nuisance, and dispensary appealed.

Holding: The Court of Appeal, Aronson, J., held that per se ban medical marijuana dispensaries conflicted with Medical Marijuana Program Act (MMPA).

Reversed and remanded.

[138 Cal.Rptr.3d 337]

D@R Welch Attorneys at Law, Los Angeles, and David Ryan Welch for Defendant and Appellant.

Best Best & Krieger, Irvine, Jeffrey V. Dunn and Laura A. Dahl for Plaintiff and Respondent.


The trial court granted the City of Lake Forest's (the City's) request in this nuisance abatement proceeding for a preliminary injunction shutting down Evergreen Holistic Collective's (Evergreen's) medical marijuana dispensary based on a citywide ban against dispensaries. The trial court determined the City's decision not to recognize dispensaries as a permitted property use, and to prohibit unpermitted uses, established a complete ban against the activity. Evergreen contends dispensaries are authorized by Health and Safety Code section 11362.775's endorsement of “ collective [ ]” and “cooperative[ ]” medical marijuana activities, and, therefore, what the Legislature has authorized, the City may not ban.1

We conclude local governments may not prohibit medical marijuana dispensaries altogether, with the caveat that the Legislature authorized dispensaries only at sites where medical marijuana is “collectively or cooperatively ... cultivate[d].” (§ 11362.775.) Section 11362.775 exempts qualified medical marijuana patients and their primary caregivers not only from criminal prosecution for authorized collective or cooperative activities, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation sites, including a dispensary function, do not constitute a nuisance.

Under the City's municipal code, in contrast, violation of its zoning ordinances constitutes a per se, categorical nuisance. Under the City's ban, a medical marijuana dispensary always constitutes a nuisance, though the Legislature has concluded otherwise. Because the City's ban directly contradicts state law, it is preempted and furnishes no valid basis for a preliminary injunction in the City's favor. Rather, the City must show Evergreen did not grow its marijuana on-site or otherwise failed to comply with applicable state medical marijuana law or permissible local regulations. Because the trial court granted the City's injunction request solely on the basis of the City's total ban, we must reverse the preliminary injunction and remand the matter for further proceedings.

[138 Cal.Rptr.3d 338]


The City filed its nuisance complaint against Evergreen under the general nuisance statute (Civ.Code, § 3479) alleging a public nuisance (Civ.Code, § 3480). The City pleaded two nuisance causes of action against Evergreen. First, the City alleged Evergreen's dispensary activities constituted a per se nuisance because City ordinances effectively banned medical marijuana dispensaries and, therefore, operating a dispensary constituted a categorical nuisance under its municipal law. The City's second cause of action alleged operation of the dispensary created an actual nuisance “injurious to health, ... indecent and offensive to the senses, and an obstruction to the free use of property, so as to interfere with the comfortable use and enjoyment of property, which affects an entire community and, as such, is a public nuisance....” The trial court eventually granted the City's request for a preliminary injunction on the first ground only.

[1] Specifically, the City asserted its zoning code established medical marijuana dispensaries constituted a per se public nuisance by omitting dispensaries as an authorized property use at Evergreen's location in the “Commercial Community” zoning district. As the City's complaint put it, the City effectively had banned dispensaries because “marijuana dispensaries are neither enumerated as a permitted use, nor as any other type of conditional or temporary use in any zoning district in the City.” (Italics added.) For example, the relevant zoning provisions governing the commercial community district identified permitted uses, uses permitted with a permit, temporary permitted uses, accessory uses, and prohibited uses, and none included marijuana dispensaries.2 (Lake Forest Municipal Code (LFMC), §§ 9.88.020–9.88.060.)

In particular, LFMC section 9.88.020 identified certain “principal” property uses as permitted uses in the commercial community zoning district, including for example, “Administrative and professional offices,” “Animal Clinics,” “Automobile repair specialty shops,” “Cinemas and theaters,” “Civic and government uses,” “Day (care) nurseries,” “Instructional studios,” “Restaurants,” “Retail businesses,” “Service businesses,” “Wholesale businesses without warehousing,” and “Adult Businesses.” Of these, only adult businesses required City preapproval.

The zoning code also specified other uses in the commercial community district were permitted subject to a use permit, including for example, “Automobile service stations,” “Health clubs,” “Hospitals,” “Hotels and motels,” “Kennels,” “Massage establishments” as specified in another chapter of the code, “Mini-storage facilities,” “Mortuaries and crematories,” and “Vehicle washing facilities.” (LFMC, § 9.88.030.) Authorized temporary uses included “Commercial coaches” and seasonal holiday uses such as “Christmas tree sales” and “Halloween pumpkin” patches. (LFMC, § 9.88.040.) Valid accessory uses included fences, walls, and signs. (LFMC, § 9.88.050.)

In LFMC section 9.88.060, the zoning code identified the following uses as “specifically prohibited” in the commercial community district where Evergreen was located: “Automobile wrecking, junk and salvage yards,” “Bottling plants,” “Cleaning,

[138 Cal.Rptr.3d 339]

dyeing and laundry plants,” “Contractors' storage and equipment yards, work and fabricating areas,” “Rental and sales agencies for agricultural, industrial and construction equipment,” “Vehicle engine/transmission rebuilding, tire retreading, fender and body repair and paint shops,” and “Welding shops and metal plating.” The code also prohibited uses not enumerated in the foregoing sections. (LFMC, § 9.88.060 [prohibiting the above-listed uses and “Uses not permitted by [s]ections 9.88.020 through 9.88.050”].)

Seeking a preliminary injunction, the City argued Evergreen's medical marijuana activities constituted a per se nuisance because the City zoning code did not authorize Evergreen's venture for the commercial community zoning district, or elsewhere within City borders. Phrased differently, dispensing medical marijuana violated the City's zoning ordinances because it fell under no approved use category, and the violation constituted a per se public nuisance based on City law providing that any violation of its municipal code or zoning code constituted a public nuisance. (See LFMC, § 1.01.240(B) [“any condition caused or permitted to exist in violation of any of the provisions of any code adopted by reference by this Code, or of the provisions of any other City ordinance, shall be deemed a public nuisance which may be abated by the City Attorney in a civil judicial action”]; see also id., § 6.14.002(A) [public nuisances designated to include “[a]ny violation of any section of the Lake Forest Municipal Code”]; id., § 9.208.040(B) [“any use of property contrary to the provisions of the Zoning Code shall be and the same is hereby declared to be unlawful and a public nuisance”].)

Evergreen opposed the City's request for a preliminary injunction on grounds the City failed to establish its activities constituted a public nuisance, either in the ordinary sense or as a per se public nuisance. On the per se issue, Evergreen pointed out that the City Council's express moratorium on medical marijuana dispensaries had lapsed four years earlier. Evergreen suggested the City's assertion of an implied ban—based on the omission in the City code of dispensaries as a permitted use—did not rise to the level of an express legislative judgment necessary to make a particular use a nuisance per se. Specifically, Evergreen argued that relying on the City's supposed ban was too vague to support a preliminary injunction, and violated due process by failing to notify the public what activities were prohibited. Evergreen asserted its activities fell within the “Retail businesses” category authorized as a permitted use in the commercial community zoning district. Alternatively, Evergreen argued it had not violated the City's municipal code because the City did not require a business license before a new enterprise opened its doors. Evergreen also argued state medical marijuana law, including the Legislature's endorsement of cooperative and collective (§ 11362.775) distribution endeavors, prevented the City from banning dispensary activities as a public nuisance.

The trial court concluded Evergreen's operation of a medical marijuana dispensary constituted a nuisance per se under City ordinances. The court explained: “The LFMC lists all principal uses permitted ... in the Commercial Community zoning district.... Since dispensaries are not a permissible use or a conditional or temporary use, the LFMC prohibits any such unmentioned use.” Thus, the court...

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