Giuliani v. Jefferson Cnty. Bd. of Cnty. Comm'rs
| Decision Date | 01 November 2012 |
| Docket Number | No. 11CA1919.,11CA1919. |
| Citation | 303 P.3d 131 |
| Parties | Marc A. GIULIANI; Footprints Health and Wellness, Inc., a Colorado corporation; Christopher Peck; and Frank Campbell, Plaintiffs–Appellants, v. JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic on behalf of the County of Jefferson; Jefferson County Division of Planning and Zoning, a division of Jefferson County; and Jefferson County Board of Adjustment, a division of Jefferson County, Defendants–Appellees. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
Hoban & Feola, LLC, Robert T. Hoban, Lauren C. Davis, C. Adam Foster, Denver, Colorado, for Plaintiffs–Appellants.
Ellen G. Wakeman, County Attorney, Eric T. Butler, Assistant County Attorney, Golden, Colorado, for Defendants–Appellees.
Opinion by Judge TAUBMAN.
¶ 1 In this action concerning whether a county may prohibit the operation of a medical marijuana dispensary 1 as a non-permitted use under a local zoning plan, plaintiffs, Marc A. Giuliani and Footprints Health and Wellness, Inc. (collectively Providers), and Christopher Peck and Frank Campbell (collectively Patients), appeal the trial court's orders partially dismissing their claims and affirming the resolution of the Jefferson County Board of Adjustment (the Board). They also appeal the trial court's summary judgment in favor of defendants, the Jefferson County Board of County Commissioners (BOCC), the Board, and the Jefferson County Division of Planning and Zoning (collectively the County). We dismiss as moot the portion of the appeal challenging the dismissal of the claims for injunctive and declaratory relief, and we affirm the dismissal as to all other claims.
¶ 2 The Providers leased a commercial unit in a shopping center located in unincorporated Jefferson County in September 2009 for the purposes of operating a medical marijuana dispensary. Believing that this use would be compatible with the official development plan (ODP) of the shopping center, as zoned, the Providers hired a contractor to perform tenant improvements on the property and obtained various permits from the County. None of the permit applications stated that the planned use of the property was a medical marijuana dispensary.
¶ 3 In late October 2009, the Providers opened their dispensary for business. Two months later, the zoning administrator, charged with the interpretation and enforcement of zoning in the county, issued a zoning violation notice to the Providers. The notice stated that the operation of a medical marijuana dispensary was not a permitted use in the shopping center's zoning district.
¶ 4 The Providers appealed the zoning violation to the Board. After hearing testimony by the zoning administrator, Giuliani, the Providers' attorney, and several patient-customers of the dispensary, the Board affirmed the zoning administrator's conclusion that the dispensary was not a permitted use in the shopping center.
¶ 5 The Providers filed this action in May 2010, seeking declaratory and injunctive relief and money damages. In March 2011, the Patients were permitted to intervene and joined the Providers' claim that the County was preempted by Amendment 20 to the Colorado Constitution from interpreting its zoning regulations so as to impose a de facto ban on medical marijuana dispensaries. At no time did the Providers or the Patients seek to amend their complaints to allege any claims under the Colorado Medical Marijuana Code, sections 12–43.3–101 to –1001, C.R.S.2012, which became effective July 1, 2010. The Code regulates both established locally approved businesses for, inter alia, the sale of medical marijuana, existing on July 1, 2010, as well as prospective new businesses. § 12–43.3–103(1)(a), C.R.S.2012.
¶ 6 The trial court granted in part the County's motion to partially dismiss the Providers' and the Patients' complaint. It then denied the Providers' and the Patients' request for a preliminary injunction. In a separate order, it affirmed the Board's resolution that the dispensary was not a permitted use. Finally, it granted the County's motion for summary judgment on all remaining claims.
¶ 7 In November 2000, Colorado voters passed Amendment 20, thereby adding article XVIII, section 14 to the Colorado Constitution. This article permits patients to possess and use medical marijuana without criminal prosecution in certain circumstances. See generally Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 975–76 (Colo.App.2011). It also states in relevant part:
No person, including a patient or primary care-giver, shall be entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana for any use other than medical use.
Colo. Const. art. XVIII, § 14(2)(d).
¶ 8 In response to Judge Loeb's special concurring opinion in People v. Clendenin, 232 P.3d 210, 217 (Colo.App.2009), and increased medical marijuana use and sales, the General Assembly enacted the Code in the 2010 legislative session to regulate dispensaries. See generally Sean T. McAllister, The New, More Regulated Frontier for Medical Marijuana, 39 The Colorado Lawyer 29 (Nov.2010).
¶ 9 In relevant part, the Code allows local governments through a majority of registered voters or a majority of members of a locality's governing board “to prohibit the operation of medical marijuana centers, optional premises cultivation operations, and medical marijuana-infused products manufacturers' licenses.” § 12–43.3–106, C.R.S.2012 (“local option” provision); see also§ 12–43.3–310, C.R.S.2012 (). Local governments are also empowered to enact reasonable regulations or other restrictions on the distribution of medical marijuana that are more restrictive than the state's regulations, based on their local zoning, health, safety, and public welfare laws. § 12–43.3–310.
¶ 10 Pursuant to this authority, the BOCC in July 2010 approved a resolution prohibiting businesses that cultivate, manufacture, or sell marijuana or marijuana products within unincorporated Jefferson County. Resolution CC 10–285 (July 6, 2010).
¶ 11 Although the Code was not in effect when the Board denied the Providers' petition for review in April 2010, or when the Providers filed their action in May 2010, it currently prescribes the regulation of medical marijuana dispensaries in Colorado. Because neither the Providers, the Patients, nor the County addressed how the Code affects the issues raised on appeal, we requested supplemental briefing from the parties to determine whether any or all of the Patients' and the Providers' claims are moot in light of the Code's enactment.
¶ 12 In its supplemental brief, the County asserts that the Patients' and Providers' claims for prospective relief are moot, because the Code would prevent the Providers from operating a medical marijuana dispensary in unincorporated Jefferson County even if they prevailed on their claims for injunctive and declaratory relief. The Patients and the Providers, however, assert that these claims are not moot because (1) article XVIII, section 14, of the Colorado Constitution creates a constitutional right to operate a medical marijuana business, and (2) section 38–1–101(3)(a), C.R.S.2012, allows the Providers' medical marijuana business to operate under a “grandfathering” provision. We disagree with the Patients and the Providers and conclude that their claims for prospective relief are moot.
¶ 13 “The central question in a mootness problem is whether a change in the circumstances that prevailed at the beginning of litigation has forestalled the prospect for meaningful relief.” Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353, 356 (Colo.1986); see also Gresh v. Balink, 148 P.3d 419, 421 (Colo.App.2006)(“A case is moot when the relief sought, if granted, would have no practical legal effect on the controversy.”).
¶ 14 Additionally, new legislation can cause a case to be moot when it forecloses the prospect of meaningful relief. Lewis v. Continental Bank Corp., 494 U.S. 472, 478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (); Ovadal v. City of Madison, Wis., 469 F.3d 625, 628–29 (7th Cir.2006) (same); Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 427 (Colo.1990)(while Colorado courts are not bound by the federal law regarding mootness, federal case law is useful as guidance); Johns v. Powell, 190 Colo. 88, 89–90, 543 P.2d 1261, 1262 (1975)(issue of prospective relief was rendered moot by new legislation); see also Air Pollution Control Com'n of Colo. Dept. of Health v. Colo.-Ute Elec. Ass'n, Inc., 672 P.2d 993, 997 (Colo.1983)(a challenge to a regulation that had since been repealed was moot).
¶ 15 Where a claim is moot on appeal, we decline to address its merits, and instead dismiss the claim. See USAA v. Parker, 200 P.3d 350, 356 (Colo.2009); Campbell v. Meyer, 883 P.2d 617, 618 (Colo.App.1994).
¶ 16 The Providers and the Patients contend that article XVIII, section 14, of the Colorado Constitution created the rights to dispense and to receive marijuana for medical use, as well as the right to be free from seizure of any property that is owned or used in connection with medical marijuana use or distribution. They maintain that their rights have been violated by the County's de facto ban on medical marijuana when it approved its zoning ordinance in 2009. They also contend that the County has deprived them of these rights without due process and in violation of their equal protection rights.
¶ 17 To the extent that these challenges state a claim for prospective declaratory and injunctive relief, we conclude that they are moot in light of the Code's express grant of authority to local governments to regulate existing and new dispensaries within their...
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