Although the federal Controlled Substances Act prohibits the use, possession, manufacture, and sale of marijuana for all purposes, numerous states have loosened their own marijuana laws.  For example, California’s Proposition 215 (the “Compassionate Use Act of 1996”) and its legislatively-adopted “Medical Marijuana Program” have removed certain state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate “medical” purposes.  Among other things, these laws exempt the “collective[ ] or cooperative[ ] cultiva[tion]” of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit such activities.

An ongoing torrent of cases have tested the scope of those state laws in the land use context.  The resulting decisions have consistently underscored our long-held understanding that land use regulation in California has historically been a function of local government.

Continue Reading Affirming Local Control of Land Use Regulation, Court Holds That <i>Ex Post Facto</i> Laws do Not Apply to Ordinances Regulating Marijuana Dispensaries

We’ve come a long way since 1911, when the initiative and referendum processes were enshrined in the state constitution to address corruption in state government caused by special interests.  For some reason that reality reminds me of a scene in Seinfeld’s “The Subway” episode, which had Elaine standing on a New York subway car carrying a large present.  An older woman approaches Elaine and this dialogue ensues:

Woman: “I started riding these trains in the forties.  Those days a man would give up their seat for a woman. Now we’re liberated and we have to stand.”

Elaine: “It’s ironic.”

Woman: “What’s ironic?”

Elaine: “This, that we’ve come all this way, we have made all this progress, but you know we’ve lost the little things, the niceties.”

Woman: “No, I mean what does ironic mean?”

Continue Reading What’s Ironic?

On January 24, 2017, the Court of Appeal for the Sixth Appellate District interpreted Government Code section 53094 and held that, unlike school districts, county boards of education cannot be exempted from local zoning requirements.  San Jose Unified School District v. Santa Clara County Office of Education, __ Cal.App.5th __ (2016) (Case No. H041088).

Section 53094 authorizes “the governing board of a school district” to “render a city or county zoning ordinance inapplicable to a proposed use of property by the school district,” under certain circumstances.  Through the adoption of section 53094, the legislature intended to forestall local obstruction of state-sanctioned school construction and school location.

Continue Reading County Boards of Education Cannot be Exempted from Local Zoning Requirements

On November 29, 2016, the Court of Appeal for the First Appellate District rejected a challenge to the sufficiency of the San Francisco’s environmental analysis and upheld the City’s approval of an arena to house the Golden State Warriors basketball team, as well as other events, and the construction of adjacent facilities, in the Mission Bay South redevelopment plan area of San Francisco.  Mission Bay Alliance v. Office of Community Investment and Infrastructure, __ Cal.App.5th __ (2016) (Case No. A148865).  My partner, Art Coon, wrote about the CEQA issues in a post here.

Continue Reading Court Upholds Golden State Warriors’ Mission Bay Event Center and Mixed-Use Development Project

On September 28, 2016, the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a petition for writ of administrative mandamus filed by the owner of a nude entertainment business to challenge the City of San Diego’s revocation of her permit. Coe v. City of San Diego, __ Cal.App.5th __ (2016) (Case No. D068814).

Continue Reading Court Affirms Trial Court’s Denial of Writ of Administrative Mandamus Challenging City’s Revocation of Nude Entertainment Permit

On August 30, 2016, the Court of Appeal for the Second Appellate District affirmed a preliminary injunction in a nuisance abatement action brought on behalf of the People of the State of California against a Los Angeles-based medical marijuana collective doing business as “Weedland” and its principal. The People ex rel. v. FXS Management, Inc, __ Cal.App.4th __ (2016) (Case No. B263965).

Continue Reading Court Affirms Preliminary Injunction Against Medical Marijuana Collective

On June 23, 2016, in Stewart Enterprises, Inc. v. City of Oakland, __ Cal.App.4th __ (2016) (Case No. A143417), the Court of Appeal for the First Appellate District issued an important decision dealing with whether a new legislative enactment may constitutionally deprive a landowner of a vested right conferred by local ordinance. The case arose out of a May 2012 building permit the City of Oakland issued for the construction of a controversial crematorium and the City’s later enactment of an emergency ordinance purporting to require a conditional use permit on new crematoria, including any crematoria that have obtained building permit for which rights to proceed have not yet vested under state law.

Continue Reading Vested Rights Conferred Under Local Ordinance Trump Conditional Use Permit Requirement Later Imposed by Emergency Ordinance

The Second Amendment states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In District of Columbia v. Heller, the Supreme Court held that the Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense. See 554 U.S. 570, 574–626 (2008). The Supreme Court has not yet clarified the entire field of Second Amendment jurisprudence, however, and given that there is an individual right to bear arms for self-defense, there is a growing split in the nation’s lower courts about whether gun sellers have Second Amendment rights.

Continue Reading When Land Use Regulations Collide with the Protections of the Second Amendment

The federal Fair Housing Act is one of the most important pieces of Congressional legislation in the last half-century or more.  It was enacted in the 1960s after the assassination of Dr. Martin Luther King, Jr., at a time of considerable social unrest.  In that era, governmental entities at all levels had explicit or implicit policies that prevented integration even when developers had an economic rationale for wanting to build more dense or more affordable housing.  Congress thus enacted the FHA “to eradicate discriminatory practices within a sector of our Nation’s economy.”

Continue Reading Rezoning Denial May Give Rise to Liability for Discriminatory Zoning Practices