In County of Sonoma v. The Superior Court of Sonoma County, (— Cal.Rptr.3d —-, Cal.App. 1 Dist., December 15, 2010), a court of appeal considered whether a cannabis dispensary’s challenge to a county’s zoning ordinance was timely. The court of appeal held that the dispensary’s facial challenge to the ordinance was not timely because it was not filed within 90 days from the enactment of the ordinance.
The County of Sonoma (“County”) enacted Ordinance No. 5715 (“Ordinance”) in 2007 to govern the zoning of medical cannabis dispensaries. Prior to 2007, County had no specific zoning regulations that addressed medical cannabis dispensaries. County’s zoning code is permissive, which means that “‘any use not enumerated in the code is presumptively prohibited.'” Therefore, dispensaries could not lawfully operate in unincorporated areas of County. The Ordinance was enacted on March 20, 2007, and it became effective 30 days later. The Ordinance allowed dispensaries as a permitted use in certain zoning districts and also “set location and operation standards for dispensaries within the unincorporated County.”
Marvin Gardens Cooperative, Inc. (“Marvin Gardens”) opened as an informal collective in 2003 and formally organized as a cooperative corporation in 2006. Marvin Gardens operated a medical cannabis dispensary in Rio Nido, which was within the County limits, for many years. On February 4, 2008, Marvin Gardens applied for a use permit for its Rio Nido location. Marvin Gardens withdrew its application and requested a partial refund after a year had passed and County had failed to make a decision on the application. Marvin Gardens relocated the dispensary to a site in Guerneville, also located within Sonoma County, in September 2009. The area in which the dispensary is located is zoned for “limited commercial” uses. Operation of a dispensary would be allowed in this area upon receipt of a use permit. However, Marvin Gardens never applied for a use permit for the Guerneville location.
County received complaints about the dispensary. On October 2, 2009, County issued a “stop order” which informed Marvin Gardens that the dispensary could not be operated at its current location without a permit. Marvin Gardens closed the dispensary on October 7, 2009.
Marvin Gardens brought a lawsuit against County claiming County violated the equal protection clause of the California Constitution. In response, County claimed that Marvin Gardens “was barred from raising a facial challenge to the Ordinance because it had not brought suit within the 90-day statute of limitations” and also that Marvin Gardens had failed to exhaust its administrative remedies. The trial court found that Marvin Garden’s right to equal protection was violated under the Ordinance.
The court of appeal found Marvin Gardens’ action barred by Government Code section 65009, subdivision (c)(1)(B) because Marvin Gardens brought a facial challenge to the Ordinance and the action was not brought within 90 days of the enactment of the Ordinance. Section 65009, subdivision (c)(1)(B) provides that no action or proceeding shall be maintained “[t]o attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance” unless that “action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision.” The Ordinance became effective on April 20, 2007. Marvin Gardens did not file its action until October 13, 2009, which County contended was 810 days too late.
Marvin Gardens asserted its action was timely because it filed the action only 11 days after County issued its stop order on October 2, 2009. Marvin Gardens claimed the applicable statute of limitations can be found in section 65009, subdivision (c)(1)(E), which provides that a 90-day statute of limitations begins to run after a decision is made regarding a permit or other administrative action.
The court found that if “a party brings a facial challenge to a zoning ordinance, the limitations period begins to run on the date the ordinance becomes effective.” Where “a party challenges conditions attached to a conditional use permit or other permit, the limitations period runs from the date of the final administrative action on the permit.” Here, Marvin Gardens never applied for a permit for its Guerneville location and therefore “its action cannot be viewed as a challenge to a condition attached to a conditional use permit or any other permit.” The court found Marvin Gardens’ challenge did not fit within section 65009, subdivision (c)(1)(E). Marvin Gardens’ challenge to the Ordinance was a facial challenge because the challenge was to an alleged defect in the Ordinance itself. A facial challenge to an ordinance is required by section 65009, subdivision (c)(1)(B) to be brought within 90 days from the enactment of the ordinance. Marvin Gardens’ facial challenge to the Ordinance was therefore barred because it was not brought within 90 days from its enactment.
The court also rejected the claim that the action was timely because it was brought within 90 days from “enforcement proceedings.” It appears the trial court found that the stop order issued by County on October 2, 2009, amounted to “enforcement proceedings.” The court of appeal rejected this ruling because it found the stop order was not a final adjudicatory administrative decision. There was no administrative decision in this case because Marvin Gardens never applied for a permit.
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