{"id":5638,"date":"2017-04-06T14:06:28","date_gmt":"2017-04-06T21:06:28","guid":{"rendered":"http:\/\/www.newsmolo.com\/EDC\/2019\/?p=5638"},"modified":"2025-11-29T14:08:22","modified_gmt":"2025-11-29T22:08:22","slug":"land-use-and-marijuana-how-we-got-here","status":"publish","type":"post","link":"http:\/\/www.newsmolo.com\/EDC\/2019\/2017\/04\/06\/land-use-and-marijuana-how-we-got-here\/","title":{"rendered":"Land Use and Marijuana: How We Got Here"},"content":{"rendered":"

Victor Ponto & Marc Tran \u2013 Best Best & Krieger.]<\/em><\/p>\n

In the wake of Proposition 64\u2019s 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\u2019s 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 \u2013 the Compassionate Use Act.)<\/p>\n

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.<\/p>\n

Court Decisions<\/strong><\/p>\n

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\u2019 decisions in these cases allowed jurisdictions to ban medical marijuana dispensaries and cultivation through local zoning laws.<\/p>\n

In\u00a0City of Riverside v. Inland Empire Health and Wellness Center,\u00a0<\/em>the court\u00a0dealt with the issue of whether California\u2019s 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 \u201cforming an association of qualified individuals who collectively cultivate medical marijuana and redistribute [it] to each other.\u201d After ignoring the City\u2019s 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.<\/p>\n

In\u00a0Maral v. City of Live Oak<\/em>, 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\u2019s ban, contending that Live Oak\u2019s ordinance violated the Compassionate Use Act. In 2013, the California Court of Appeal, using the reasoning that the\u00a0Inland Empire Health and Wellness Center\u00a0<\/em>case applies to the cultivation of medical marijuana as well as its distribution, found that California law does not preempt a city\u2019s police power to prohibit the cultivation of all marijuana within that city.<\/p>\n

Legislative Action<\/strong><\/p>\n

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 theInland Empire Health and Wellness Center\u00a0<\/em>case, municipalities have the power to regulate or ban the cultivation and distribution of medical marijuana as decided upon in the\u00a0City of Live Oak\u00a0<\/em>case.<\/p>\n

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\u2019s 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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:<\/p>\n