The California Supreme Court unanimously granted review of the Fourth District Court of Appeal’s published opinion in Union of Medical Marijuana Patients, Inc. v. City of San Diego. On review, the Supreme Court case will address issues regarding what constitutes a “project” for purposes of CEQA. [Union of Medical Marijuana Patients, Inc. v. City of San Diego, 4 Cal.App.5th 103 (4th Dist. 2016); Rev. Granted (Supreme Court Case No. S238563).]

The case involves a challenge to the City of San Diego’s enactment of an ordinance allowing medical marijuana facilities in the city, subject to certain conditions and permitting requirements. The ordinance amended the city’s municipal code to regulate the establishment and location of “medical marijuana consumer cooperatives.” The city adopted the ordinance without conducting environmental review under the California Environmental Quality Act (CEQA) because it had determined that the ordinance was not a “project” subject to CEQA.

Shortly thereafter, the Union of Medical Marijuana Patients, Inc. (UMMP) filed a petition for writ of mandate seeking to overturn the city’s approval. UMMP argued that the ordinance was a “project” subject to CEQA, and therefore, the city was required to comply with CEQA before adopting the ordinance. The city, on the other hand, argued that the ordinance was not a project subject to CEQA, and therefore, no CEQA review was required. The trial court sided with the city and denied the petition. The Court of Appeal affirmed.

Simply stating that the petition for review is granted, the Supreme Court’s order granting review provides no insight into why it believed the case warranted review. The recent passage of Proposition 64, which legalized recreational marijuana cultivation and use in California, may help explain the high court’s interest in this case. As local agencies develop ordinances and strategies to deal with the new law, they will have to grapple with this precise issue. The court’s decision will help agencies answer the threshold question of whether CEQA applies to an action at all. Given the current backlog of CEQA cases on the court’s docket, there is no telling when the court will decide the case.

Another interesting tidbit is that the Supreme Court’s grant of review was not accompanied by a depublication order, and therefore, it remains citable as persuasive (but not binding) authority under the new California Rule of Court 8.1115(e)(1).

(Chris Stiles)