By Victor Ponto & Marc Tran – Best Best & Krieger.
In the wake of Proposition 64’s passage, California local governments may find themselves questioning how to apply land use laws to marijuana legalization. The Control, Regulate, and Tax Adult Use of Marijuana Act (AUMA), which was passed by 57 percent of the state’s voters in November, makes the recreational cultivation and use of marijuana legal for individuals over the age of 21. Prop. 64 also legalized the commercial cultivation, sale and transportation of recreational marijuana. (The use of cannabis products for medical purposes was legalized in 1996 under Prop. 215 – the Compassionate Use Act.)
This raises questions of whether and to what extent local control is allowed under AUMA. In order to understand the issues involved, a quick review of the evolution of the intersection between land use controls and marijuana is necessary.
Court decisions and legislative actions governing land use are a part of the foundation as to what local governments can and cannot do under AUMA, and form strong precedent for local authority over marijuana uses within a jurisdiction.
Two key court cases play an integral part in establishing the extent to which local governments may control the cultivation, sale and distribution of marijuana. The courts’ decisions in these cases allowed jurisdictions to ban medical marijuana dispensaries and cultivation through local zoning laws.
In City of Riverside v. Inland Empire Health and Wellness Center, the court dealt with the issue of whether California’s medical marijuana statutes preempted a local ban on facilities that distribute medical marijuana. In 2009, the Inland Empire Health and Wellness Center opened a medical marijuana dispensary in Riverside, Calif. The Center was composed of various sellers of cannabis products working out of stalls with the sole purpose of “forming an association of qualified individuals who collectively cultivate medical marijuana and redistribute [it] to each other.” After ignoring the City’s notice that medical marijuana operations were locally banned, the court issued an injunction against the Center. The Center appealed and, in 2013, the California Court of Appeal held that local governments may ban marijuana dispensaries outright under local zoning authority. The California Supreme Court subsequently affirmed the decision in 2014.
In Maral v. City of Live Oak, the California Court of Appeal addressed the issue of whether local governments could ban the cultivation of marijuana through enactment of local ordinances. The plaintiffs challenged the City of Live Oak’s ban, contending that Live Oak’s ordinance violated the Compassionate Use Act. In 2013, the California Court of Appeal, using the reasoning that the Inland Empire Health and Wellness Center case applies to the cultivation of medical marijuana as well as its distribution, found that California law does not preempt a city’s police power to prohibit the cultivation of all marijuana within that city.
In 2015, the California Legislature adopted the Medical Marijuana Regulation and Safety Act (MMRSA) to comprehensively regulate medical marijuana. The MMRSA recognized and preserved local control to regulate or ban medical cannabis cultivation, transportation and distribution. The MMRSA confirmed and clarified that, in addition to the complete land use control over retail dispensaries recognized in the Inland Empire Health and Wellness Center case, municipalities have the power to regulate or ban the cultivation and distribution of medical marijuana as decided upon in the City of Live Oak case.
Although the MMRSA allowed municipalities to regulate or ban cannabis cultivation, manufacturing, transportation and distribution of medical cannabis within their jurisdictions, it required some local enabling legislation to accomplish some aspects of this. If a city chose to regulate these activities comprehensively, it needed to adopt an overlay of local regulatory standards that were at least as strict as the state’s default regulations. Specifically, the MMRSA provided that, if a city had not banned or regulated cannabis cultivation by March 1, 2016, then cultivation in that city would be subject only to state law on this issue.
Throughout the State, jurisdictions adopted ordinances all out banning the cultivation, transportation and distribution of medical marijuana. Other local agencies chose to permit certain uses. In terms of cultivation, some cities limited indoor and outdoor cultivation and the number of plants an individual could grow, and required approval by property owners for cultivation of medical marijuana.
The mobile delivery of products consistently created issues for cities because of the inherent transitory nature of the activity, and mobile delivery services were often attempts to avoid the effects of local dispensary bans. As a result of the MMRSA, many cities elected to ban transportation altogether or regulate the transportation of medical marijuana by limiting hours of operation, the amount of money or marijuana that can be carried at one time and the time spent at one location.
Like MMRSA, AUMA allows for local governments to create their own marijuana regulations within certain parameters. Under AUMA, local governments have the ability to do a number of things, including:
- Banning all marijuana-related businesses outright, including marijuana dispensaries, delivery services and any recreational marijuana retail services.
- Banning outdoor cultivation of marijuana, unless the California Attorney General determines marijuana is no longer illegal under federal law. (If marijuana is federally legalized, outdoor cultivation could be regulated, but not prohibited.).
- Reasonably regulating indoor cultivation in private residences, but not ban it outright. AUMA allows individuals to grow up to six marijuana plants in their home, and to possess all of the marijuana those plants provide.
Of course, this raises the question of what constitutes a reasonable regulation. While AUMA is silent on this issue, the cases discussed above can be used to fill in the blanks. Using those cases, local governments have come up with a number of solutions, including permitting schemes, registration lists, and other variations.
Of course, because AUMA is silent, there is a risk of litigation – the courts may be asked to interpret what constitutes a reasonable regulation.
Where We Are Now
Current law allows for recreational use of marijuana throughout California, and next year, the commercial sale of recreational cannabis products will also be legal. Given the parameters of Prop. 64, combined with the case law and legislative actions that we’ve seen over the past few years, jurisdictions within California have various options as to what they can and cannot regulate in terms cultivation, transportation, commercial sales and personal use when it comes to marijuana. Taxation and revenue issues also must be addressed.
Victor Ponto is an associate with the Municipal Law practice group Best Best & Krieger, based in Ontario. Victor’s practice involves advising public agencies and private businesses on a variety of issues, including those related to marijuana legalization. He has drafted dozens of land use ordinances regulating marijuana and regularly leads workshops and lectures on regulatory options related to marijuana. He can be reached at email@example.com.
Marc Tran is also an associate with the Municipal Law practice group Best Best & Krieger, based in Ontario. Marc advises clients on zoning and planning issues. He can be reached at firstname.lastname@example.org.