California Supreme Court Holds that City of San Diego Erred in Finding Zoning Amendments Regarding Location of Medical Marijuana Dispensaries Did Not Constitute a Project Under CEQA

 UNION OF MEDICAL MARIJUANA PATIENTS, INC. v. CITY OF SAN DIEGO; CALIFORNIA COASTAL COMMISSION (August 19, 2019)

The Supreme Court reversed the decision of the court of appeal affirming the finding of the City of San Diego that adoption of an ordinance authorizing the establishment of medical marijuana dispensaries and regulating their location and operation did not constitute a project, holding that the court of appeal misapplied the test for determining whether a proposed activity has the potential to cause environmental change under Cal. Pub. Res. Code 21065.

The City of San Diego adopted an ordinance authorizing the establishment of medical marijuana dispensaries and regulating their location and operation. The central provisions of the ordinance amended various City zoning regulations to specify where the newly established dispensaries may be located. Because the City found that adoption of the ordinance did not constitute a project for purposes of CEQA, it did not conduct any environmental review. Petitioner Union of Medical Marijuana Patients (UMMP) challenged the City’s failure to conduct CEQA review in a petition for writ of mandate, which was denied by the trial court. On appeal, UMMP argued (1) the amendment of a zoning ordinance, one of the public agency activities listed in section 21080, is conclusively declared a project by that statute and (2) the City’s ordinance, in any event, satisfied the definition of a project under section 21065. The former argument was premised in part on Rominger v. County of Colusa (2014) 229 Cal.App.4th 690 (Rominger), which relied on section 21080 in concluding that a county’s approval of a tentative subdivision map, another activity listed in section 21080, was a project as a matter of law. Here, the Court of Appeal disagreed with Rominger, concluding that the amendment of a zoning ordinance is subject to the same statutory test as public agency activities not listed in section 21080. The court proceeded to find no error in the City’s conclusion that the ordinance was not a project because it did not have the potential to cause a physical change in the environment.

The California Supreme Court granted review to resolve the conflict between the two Courts of Appeal regarding the interpretation of section 21080. Upon review, the Supreme Court agreed with the Court of Appeal below that section 21080 does not override the definition of project found in section 210650. The Supreme Court thus held that the various activities listed in section 21080 must satisfy the requirements of section 21065 before they are found to a project for purposes of CEQA. Conversely, the Supreme Court concluded that the Court of Appeal misapplied the test for determining whether a proposed activity has the potential to cause environmental change under section 21065, which was established in Muzzy Ranch Co. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, and erred in affirming the City’s finding that adoption of the ordinance did not constitute a project. For that reason, the Supreme Court reversed and remanded for further proceedings.