IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

No. S238563

UNION OF MEDICAL
MARIJUANA PATIENTS,
INC.,
Plaintiff and Appellant,
Superior Court of California
v. San Diego County
CITY OF SAN DIEGO, 37-2014-00013481-CU-TT-CTL
Defendant and Respondent, Hon. Joel Wohlfeil
CALIFORNIA COASTAL
COMMISSION,
Real Party in Interest.

Appellant’s Opening Brief

Julian K. Quattlebaum (SBN # 214378)

jq@channellawgroup.com
Jamie T. Hall (SBN # 240183)
jamie.hall@channellawgroup.com
Channel Law Group, LLP
8200 Wilshire Blvd.
Suite 300
Beverly Hills, CA 90211
(310) 982-1760
fax: (323) 723-3960

Attorneys for Plaintiff and Appellant

 TABLE OF CONTENTS

Page
COVER PAGE ................................................................................. 1
TABLE OF CONTENTS ................................................................. 2
TABLE OF AUTHORITIES ........................................................... 4
APPELLANT’S OPENING BRIEF ................................................ 7
ISSUES PRESENTED .............................................................. 7
INTRODUCTION ...................................................................... 7
STATEMENT OF THE CASE .................................................. 8
LEGAL DISCUSSION ............................................................. 14
I. The California Environmental Quality Act
Provides the Relevant Legal Framework. ...................... 14
A. The purpose of CEQA is to protect the
environment to the fullest extent possible,
including by fostering informed agency
decision-making and increased public
participation. ................................................................ 14
B. CEQA analysis consists of a three-tiered
process. ......................................................................... 16
C. The Court should review the agency action for
abuse of discretion, but recognize that the
question of whether an activity constitutes a
project under CEQA is a matter of law to be
decided without deference to the agency’s decision. ... 17
II. Under Supreme Court Precedent, the
Ordinance is a Project. .................................................... 19
A. Muzzy Ranch, interpreting CEQA and its
implementing regulations, defines a project
as an “activity . . . of a general kind with
which CEQA is concerned, without regard to
whether the activity will actually have
environmental impact.” ............................................... 19

2
 B. The City erred in its determination that the
enactment of the Ordinance did not constitute
a project under CEQA................................................... 24
C. CEQA review is not premature. ................................... 28
1. Meaningful environmental review is
possible before the enactment of zoning
ordinances, even when the zoning ordinance
requires potential users obtain a CUP
before operation. ....................................................... 28
2. Broader Planning Documents such as
Zoning Ordinances That Regulate the Use
and Development of Land are “Projects”
under CEQA Even when No Physical
Development is Proposed ......................................... 29
3. Mitigation opportunities would be
foreclosed by delay..................................................... 33
4. The Ordinance has the potential to cause
reasonably foreseeable environmental
impacts that are not speculative............................... 37
5. Muzzy Ranch looks to the type of claimed
environmental impacts to determine
whether the impact is unduly speculative. .............. 45
III. It is illogical to deem an activity not a project
based on a lesser showing than would be
required to claim a common-sense exemption or
support a Negative Declaration....................................... 46
IV. Zoning Ordinances are per se projects under
Rosenthal and Rominger.................................................. 50
V. The enactment of the Ordinance was a project. ............. 52
CONCLUSION ......................................................................... 54
CERTIFICATE OF COMPLIANCE ............................................. 55
PROOF OF SERVICE ................................................................... 56

3
 TABLE OF AUTHORITIES

Page
Cases:
Apartment Assn. of Greater Los Angeles v. City of Los
Angeles
(2001) 90 Cal.App.4th 1162 ................................................... 29
Black Prop. Owners Assn. v. City of Berkeley
(1994) 22 Cal.App.4th 974 ..................................................... 31
Bozung v. Local Agency Formation, Comm’n
(1975) 13 Cal.3d 263 .............................................................. 51
Burbank-Glendale-Pasadena Airport Auth. v. Hensler
(1991) 233 Cal.App.3d 577 .................................................... 16
Citizens of Goleta Valley v. Bd. of Supervisors
(1990) 52 Cal.3d 553 ........................................................ 15, 16
Citizens of Palm Desert v. Bd. of Supervisors
(1974) 38 Cal.App.3d 272 ...................................................... 51
City of Santa Ana v. City of Garden Grove
(1979) 100 Cal.App.3d 521 ........................................ 29, 31, 32
Davidon Homes v. City of San Jose
(1997) 54 Cal.App.4th 106 ......................................... 47, 48, 49
DeVita v. Cnty. of Napa
(1995) 9 Cal.4th 763 ................................................... 26, 31, 32
Edna Valley Assn. v. San Luis Obispo Cnty. etc.
Coordinating Council
(1977) 67 Cal.App.3d 444 ................................................ 29, 32
Friends of Mammoth v. Bd. of Supervisors
(1972) 8 Cal.3d 247 ................................................................ 14
Friends of Sierra R.R. v. Tuolumne Park & Recreation
Dist.
(2007) 147 Cal.App.4th 643 ................................. 18, 33, 34, 35
Fullerton Joint Union High Sch. Dist. v. State Bd. of
Educ.
(1982) 32 Cal.3d 779 ........................................................ 29, 34

4
Kaufman & Broad-South Bay, Inc. v. Morgan Hill
Unified Sch. Dist.
(1992) 9 Cal.App.4th 464 ................................................. 18, 34
Laurel Heights Improvement Assn. v. Regents of Univ. of
California
(1988) 47 Cal.3d 376 ........................................................ 15, 24
Morehart v. Cnty. of Santa Barbara
(1994) 7 Cal.4th 725 ............................................................... 31
Mountain Lion Found. v. Fish & Game Comm’n
(1997) 16 Cal.4th 105 ............................................................. 14
Muzzy Ranch Co., v. Solano Cnty. Airport Land Use
Comm’n
(2007) 41 Cal.4th 372 ..................................................... passim
No Oil, Inc. v. City of Los Angeles
(1974) 13 Cal.3d 68 .......................................................... 20, 51
Pala Band of Mission Indians v. Cnty. of San Diego
(1998) 68 Cal.App.4th 556 ..................................................... 36
Plastic Pipe & Fittings Assn. v. California Bldg.
Standards Comm’n
(2004) 124 Cal.App.4th 1390 ................................................. 29
Rominger v. Cnty. of Colusa
(2014) 229 Cal.App.4th 690 ......................................... 7, 31, 51
Rosenthal, v. Bd. of Supervisors
(1975) 44 Cal.App.3d 815 .................................................. 7, 50
San Joaquin Raptor/Wildlife Rescue Ctr. v. Cnty. of
Stanislaus
(1996) 42 Cal.App.4th 608 ..................................................... 14
Union of Med. Marijuana Patients, Inc. v. City of San
Diego
(2016) 4 Cal. App. 5th 103 ....................................................... 8
Union of Med. Marijuana Patients, Inc. v. City of San
Diego
(2016) 4 Cal.App.5th 103 ................................................. 41, 42

5
Vineyard Area Citizens for Responsible Growth, Inc. v.
City of Rancho Cordova
(2007) 40 Cal.4th 412 ............................................................. 18

Statutes:
Health & Saf. Code, § 11362.5 .................................................. 10
Pub. Resources Code, § 21000 ................................................... 14
Pub. Resources Code, § 21065 ........................................... passim
Pub. Resources Code, § 21080 ........................................... passim
Pub. Resources Code, § 21168.5 ................................................ 18

Other:
1 Kostka & Zischke, Practice Under the California
Environmental Quality Act 17 (January 2011) .................... 15
60 Ops. Cal. Atty. Gen. 335 (1977) ............................................ 51
Cal. Code Regs., tit. 14, § 15000 .......................................... 14, 16
Cal. Code Regs., tit. 14, § 15002 .......................................... 14, 15
Cal. Code Regs., tit. 14, § 15004 ................................................ 37
Cal. Code Regs., tit. 14, § 15060 ................................................ 17
Cal. Code Regs., tit. 14, § 15061 ........................................ passim
Cal. Code Regs., tit. 14, § 15063 ................................................ 27
Cal. Code Regs., tit. 14, § 15064 ................................................ 40
Cal. Code Regs., tit. 14, § 15070 ................................................ 27
Cal. Code Regs., tit. 14, § 15260 ................................................ 17
Cal. Code Regs., tit. 14, § 15378 ........................................ passim
Cal. Code Regs., tit. 14, § 21080 ................................................ 52
Cal. Code Regs., tit. 14, § 25061 ................................................ 17

6
 APPELLANT’S OPENING BRIEF

ISSUES PRESENTED

1. Is amendment of a zoning ordinance an activity directly

undertaken by a public agency that categorically constitutes a
“project” under CEQA?
2. Is a “the enactment of a law allowing the operation of
medical marijuana cooperatives in certain areas of a municipality
under certain conditions is the type of activity that may cause a
reasonably foreseeable change to the environment,” categorically?

INTRODUCTION

In Muzzy Ranch Co. v. Solano Cnty. Airport Land Use Comm’n

(2007) 41 Cal.4th 372, the California Supreme Court held, “That
the enactment or amendment of a general plan is subject to
environmental review under CEQA is well established.” 41
Cal.4th at p. 385. This case presents a preliminary dispositive
question for a wide swath of litigation under CEQA, the answer
to which would seem to be implicit in that ruling: is passing a
zoning ordinance a “project” under CEQA? To answer this
question in the affirmative would provide clarity to governments
across California as to when they must perform CEQA analysis,
prevent countless suits, demurrers and appeals from reaching the
courts, and ensure the public is informed whenever an agency
passes a zoning ordinance. Muzzy Ranch, supra; Rominger v.
Cnty. of Colusa (2014) 229 Cal.App.4th 690; and Rosenthal, v. Bd.
of Supervisors (1975) 44 Cal.App.3d 815 all support the

7
proposition that CEQA review is required each time a zoning
ordinance or amendment is enacted. If the Court of Appeal’s
decision became the law of the land, agencies would be allowed to
forgo analyzing zoning ordinances by claiming that impacts were
too speculative, without being forced to meet the heightened
burden of proof required to claim the common-sense exemption,
undergo the increased public scrutiny that attends the
preparation of a Negative Declaration, or undergo any CEQA
compliance whatsoever. (Union of Med. Marijuana Patients, Inc.
v. City of San Diego (2016) 4 Cal. App. 5th 103, 110.)
Muzzy Ranch dictates preliminary CEQA review on a
categorical basis whenever local governments undertake
activities of the general type to which CEQA applies. (Muzzy
Ranch, supra, 41 Cal.4th at p. 381.) CEQA and its implementing
guidelines1, as read by Muzzy Ranch and the sources cited below,
stated simply, say that CEQA requires at least a minimal
analysis under CEQA of any activities “of a general kind with
which CEQA is concerned, without regard to whether the activity
will actually have environmental impact.” (Ibid.)

STATEMENT OF THE CASE

The City of San Diego (the “City”) has a complicated history

regarding the regulation of medical marijuana. On October 6,
2009 the San Diego City Council voted to initiate a process that
culminated in the adoption on March 28, 2011, of an ordinance
setting forth a process to permit marijuana facilities.

1
Located at 14 California Code of Regulations § 15000 et. seq.
(the “Guidelines”)

8
Administrative Record2 16. However, a petition was circulated to
amend the ordinance AR 32. In response, the City Council
repealed the ordinance in September, 2011. AR 32. In a widely-
attended, noticed public hearing on April 22, 2013, the City
Council directed the Mayor and City Attorney to develop a new
ordinance, City of San Diego Ordinance No. O-20356 (the
“Ordinance” or “Project”), to allow medical marijuana facilities.
AR 16, 231. Thereafter, on December 5, 2013, the Planning
Commission held a noticed public hearing to discuss the proposed
Ordinance. AR 27. Discussion of the Ordinance lasted two and a
half hours, and numerous members of the public attended and
spoke. AR 27.
The Ordinance came before the City Council in a noticed
public hearing on February 25, 2014. AR 32. After nearly three
hours of discussion, with numerous members of the public
providing comments, the City Council voted 8–1 to amend and
approve. AR 31, 32. Final adoption of an ordinance requires a
second, noticed public hearing, with public comments, which
occurred on March 11, 2014. AR 43.
The Ordinance made amendments to the City’s Land
Development Code that allows medical marijuana facilities to
operate in specific commercial and industrial zones. AR 42. The
Ordinance authorizes the establishment of up to four "Medical
Marijuana Consumer Cooperatives" ("dispensaries") per City

2
Citations to the Administrative Record will follow the format
of “AR [Page Number]”. Thus, citation to page 16 will be AR 16.
Further, the Administrative Record will be abbreviated as either
“AR” or “Record.”

9
Council District.3 AR 33. In other words, the City authorized up
to 36 dispensaries in the City. AR 1904. At the time the
Ordinance was adopted, there was evidence that there were
approximately 26,451 patients in the City of San Diego. AR 1661.
Numerous dispensaries existed in the City at the time the
Ordinance was adopted, but the City did not view these
dispensaries as legally established uses. AR 1660.
Because the Ordinance limited the location of Coops to certain
zoning districts and mandated buffer zones separating
dispensaries from residential zones, certain sensitive uses, or
other dispensaries, only 30 dispensaries could actually be
established in the City. AR 1904. Further due to the Ordinance’s
restrictions, in some City Council Districts it was not possible to
site up to four dispensaries, and in at least one City Council
District, no dispensaries could be established. AR 255. The City
of San Diego is vast, but due to the Ordinance’s buffer zones and
other locational requirements, Coops will be concentrated in
certain parts of the City. AR 1660, 254, 257.
The City did not conduct an initial study under CEQA. Rather,
the City concluded that the Ordinance was not a project under
CEQA, stating:

The ... Ordinance is not subject to [CEQA] pursuant

to CEQA Guidelines Section 15060(c)(3), in that it is
not a Project as defined by CEQA Guidelines Section
3
The Ordinance defined a "Medical Marijuana Consumer
Cooperative" as “a facility where marijuana is transferred to
qualified patients or primary caregivers in accordance with the
Compassionate Use Act of 1996 and the Medical Marijuana
Program Act, set forth in California Health and Safety Code
sections 11362.5 through 11362.83." AR 26.

10
 l5378. Adoption of the ordinance does not have the
potential for resulting in either a direct physical
change in the environment, or a reasonably
foreseeable indirect physical change in the
environment. Future projects subject to the ordinance
will require a discretionary permit and CEQA review,
and will be analyzed at the appropriate time in
accordance with CEQA.

AR 28. The City did not analyze any of the environmental effects
the ordinance might as the result of the development allowed by
the ordinance, traffic the ordinance may generate, or indoor
cultivation by current patients that may be induced if
dispensaries are systematically relocated. Id. Its only justification
for asserting that adopting the Ordinance had no potential for
environmental impacts was that “[f]uture projects subject to the
ordinance will require a discretionary permit and CEQA review,
and will be analyzed at the appropriate time in accordance with
CEQA.” Id. But future review of permits issued under an
ordinance cannot result in any changes to the ordinance.
Ordinances must be subject to environmental review when they
are enacted, even if they require individual users to obtain
permits before operation. The enactment of the ordinance fixes
higher level land use policies which cannot be changed upon
further review. These policies enacted by zoning ordinances
always have the potential to effect the environment, and their
effects must be analyzed under CEQA.
Appellant is a California corporation whose members consist
of medical cannabis patient associations, medical cannabis
patients, and ordinary citizens that would be affected by the

11
Project’s environmental impacts. Appellant’s members reside in
cities and counties throughout California, including the City of
San Diego. Clerk’s Transcript (“CT”) pp. 81–84; CT pp. 85–97.
To alert the City of potential resulting environmental impacts
of which the City was likely unaware, Appellant commented on
the Ordinance by submitting two lengthy letters to the City and
raised the legal deficiencies asserted by this suit. AR 1658–1733,
1902–1923. Among other things, Petitioner alerted the City to the
fact that the Ordinance would cause: (1) the operation of
dispensaries to be systematically relocated to locations which are
compliant with the Ordinance, (2) the development of
dispensaries in such areas, and (3) potential increased travel and
personal cultivation by patients due to the Ordinance’s undue
restrictions on where dispensaries may operate.4 Petitioner
highlighted that each of these activities have the potential to
create at least some changes to the physical environment
including environmental impacts such as traffic and air pollution,
both within and outside the City. Id.

4
Before the Ordinance, all dispensaries across San Diego were
non-conforming. After the Ordinance, dispensaries will be
incentivized to relocate to the few areas where they can conform
to the Ordinance. Before the Ordinance convenience for patients
would be one of the most important considerations in
determining where to locate a dispensary. After the Ordinance,
compliance takes precedence. It is foreseeable that this may
result in physical changes to the environment, as it is hardly an
unthinkable notion that, all other things being equal, people have
a tendency to behave in accordance with the law and so as to
avoid its penalties.

12
 Appellant filed its Petition for Writ of Mandate on April 29,
2014 naming the City of San Diego as the Respondent and the
California Coastal Commission as a Real Party in Interest. CT
pp. 1–11.
The trial court conducted a hearing on the Petition for Writ of
Mandate, denied the Petition for Writ of Mandate, and entered
judgment on April 22, 2015. CT pp. 135–144. Judge Wohlfeil held
that Petitioner had standing to prosecute the appeal, but
sustained the City’s argument that the Ordinance was not a
project under CEQA. CT pp. 107–111.
On May 18, 2015, Petitioner filed its notice of appeal
regarding the denial of the Petition for Writ of Mandate, and on
October 14, 2016 the Fourth Appellate District Court of Appeal
affirmed the trial court’s judgment. CT pp. 156–159 [Notice of
Appeal]; Court of Appeal, Fourth Appellate District Judgment.
Petitioner filed a Petition for Review on the issues of whether
zoning ordinances are categorically projects and whether zoning
ordinances regulating medical marijuana are categorically
projects, and the Supreme Court granted review on January 11,
2017.

13
 LEGAL DISCUSSION

I. The California Environmental Quality Act

Provides the Relevant Legal Framework.

A. The purpose of CEQA is to protect the

environment to the fullest extent possible,
including by fostering informed agency
decision-making and increased public
participation.

The California Environmental Quality Act (“CEQA”) is a

“comprehensive scheme designed to provide long-term protection
to the environment.” (Mountain Lion Found. v. Fish & Game
Comm’n (1997) 16 Cal.4th 105, 112.) The Legislature enacted
CEQA to require public agencies to “give prime consideration to
preventing environmental damage when carrying out their
duties.” (Ibid.) For this reason, courts must interpret CEQA “to
afford the fullest possible protection to the environment within
the reasonable scope of the statutory language.” (Ibid. (quoting
Friends of Mammoth v. Bd. of Supervisors (1972) 8 Cal.3d 247,
259.)
Allowing the public to oversee the government’s
environmental review is a fundamental objective of CEQA and its
implementing regulations, contained in 14 CCR § 15000 et. seq.
(“Guidelines”). San Joaquin Raptor/Wildlife Rescue Ctr. v. Cnty.
of Stanislaus (1996) 42 Cal.App.4th 608, 614 (citing Guidelines §
15002); see also CEQA §§ 21000(g). The Guidelines state that one
of the four basic purposes of CEQA is to “[d]isclose to the public
the reasons why a governmental agency approved the project in
the manner the agency chose if significant environmental effects

14
are involved.” (§ 15002.) To ensure that CEQA adequately
protects the environment as intended Guidelines explicitly
enshrine public oversight in its definition of the purposes of
CEQA.
“CEQA is primarily a procedural statute . . . .” 1 Kostka &
Zischke, Practice Under the California Environmental Quality
Act 17 (January 2011). Although CEQA is intended both to avoid,
reduce or prevent environmental damage when possible by
requiring alternatives or mitigation measures and to provide
information to decisionmakers and the public concerning the
environmental effects of proposed activities, it is this second goal
to which CEQA makes no exception. Guidelines § 15002. As the
supreme court stated in Citizens of Goleta Valley v. Bd. of
Supervisors (1990) 52 Cal.3d 553, 576:

The wisdom of approving this or any other

development project, a delicate task which requires a
balancing of interests, is necessarily left to the sound
discretion of the local officials and their constituents
who are responsible for such decisions. The law as we
interpret and apply it simply requires that those
decisions be informed, and therefore balanced.

It is therefore critical that CEQA’s procedural rules be

“scrupulously followed” (Laurel Heights Improvement Assn. v.
Regents of Univ. of California (1988) 47 Cal.3d 376, 392) so that
“the public will know the basis on which its responsible officials
either approve or reject environmentally significant action, and
the public, being duly informed, can respond accordingly to action
with which it disagrees.” (Ibid.)

15
 As noted in Burbank-Glendale-Pasadena Airport Auth. v.
Hensler (1991) 233 Cal.App.3d 577, 596:

One of the basic purposes of CEQA is to inform

governmental decision makers and the public about
the potential, significant environmental effects of
proposed activities. (Guidelines, § 15002, subd.
(a)(1).) “ 'The EIR process protects not only the
environment but also informed self-government.' ”
([Citation].) As stated in Guidelines section 15200,
“The purposes of review of EIR's and negative
declarations include: [¶] (a) Sharing expertise, [¶] (b)
Disclosing agency analyses, [¶] (c) Checking for
accuracy, [¶] (d) Detecting omissions, [¶] (e)
Discovering public concerns, and [¶] (f) Soliciting
counter proposals.” Guidelines section 15201 provides
that “Public participation is an essential part of the
CEQA process.

This court has also indicated, referring to the EIR, “Its purpose is
to inform the public and its responsible officials of the
environmental consequences of their decisions before they are
made.” (Citizens of Goleta Valley v. Bd. of Supervisors, supra, 52
Cal.3d at p. 564, emphasis in original.) This is equally true of the
entire statutory scheme. Post hoc rationalizations or claims (even
if they are correct) made by attorneys for an agency after it has
already made its decision (and been sued) come too late to serve
the purposes of the statute.

B. CEQA analysis consists of a three-tiered

process.

CEQA and its implementing regulations contained in 14

California Code of Regulations § 15000 et. seq. (the “Guidelines”)

16
set out a three-tier process of CEQA review. In the first tier, the
agency conducts preliminary review to determine whether or not
an activity is covered by CEQA at all—i.e., whether the activity
constitutes a “project” under CEQA. Muzzy Ranch, supra, 41
Cal.4th at p. 380 (citing Guidelines § 15060 and CEQA § 21065.)).
If the activity is a project under CEQA, the agency must then
proceed to the second tier and ask whether an exemption applies.
Id. (citing CEQA § 21080(b)(1), (2) and CEQA Guidelines §§
25061(b)(1) and 15260). If a public agency properly finds that a
project is exempt from CEQA, no further environmental review is
necessary. (Muzzy Ranch, supra, 41 Cal.4th at p. 380.) If the
activity is a project under the first tier, and is not exempt under
tier two, then the agency must continue to the third tier of CEQA
analysis, conducting an initial study to determine if the project
may have a significant effect on the environment ([Guidelines] §
15063, subd. (a)) and preparing either a negative declaration, a
mitigated negative declaration or an EIR. Muzzy Ranch, supra,
41 Cal.4th at pp. 380–81.

C. The Court should review the agency action

for abuse of discretion, but recognize that
the question of whether an activity
constitutes a project under CEQA is a
matter of law to be decided without
deference to the agency’s decision.

In CEQA appeals, the appellate court reviews the agency

action independently of and under the same standards as the

17
trial court. (See Vineyard Area Citizens for Responsible Growth,
Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.) Those
standards are the typical ones applied in appellate review.
“In any action or proceeding ... to attack. review, set aside,
void or annul a determination, finding, or decision of a public
agency on the grounds of noncompliance with this division, the
inquiry shall extend only to whether there was a prejudicial
abuse of discretion. Abuse of discretion is established if the
agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial
evidence." (Pub. Resources Code, § 21168.5.)Whether an act
constitutes a "project" within the purview of CEQA is an issue of
law which can be decided on undisputed data in the record on
appeal, and thus presents no question of deference to agency
discretion or review of substantiality of evidence. (Kaufman &
Broad-South Bay, Inc. v. Morgan Hill Unified Sch. Dist. (1992) 9
Cal.App.4th 464, 470.) In dealing with an agency's conclusion
that the action in question was not a project within the meaning
of CEQA, a trial court employs its own analysis of undisputed
facts in the record and decides the question as a matter of law
without deference to the agency's decision. (Friends of Sierra R.R.
v. Tuolumne Park & Recreation Dist. (2007) 147 Cal.App.4th 643,
652.)

18
 II. Under Supreme Court Precedent, the
Ordinance is a Project.

A. Muzzy Ranch, interpreting CEQA and its

implementing regulations, defines a
project as an “activity . . . of a general kind
with which CEQA is concerned, without
regard to whether the activity will actually
have environmental impact.”

This case presents a question of the meaning of the term

“project” as used in CEQA. CEQA § 21065 and CEQA Guidelines
§ 15061 and § 15378 provide relevant statutory and regulatory
authority.
CEQA § 21065 is contained in CEQA’s “Definitions” chapter
and defines a “project” as:

an activity which may cause either a direct physical

change in the environment, or a reasonably
foreseeable indirect physical change in the
environment, and which is any of the following: [¶]
(a) An activity directly undertaken by any public
agency. . . .

(emphasis added). This section establishes a multipart test, the

first part of which requires that the activity “may cause” either a
direct or indirect environmental impact.5 Whether an activity
should be determined to meet this “may cause” test by looking at
the general type of activity or by looking at the activity’s actual
anticipated environmental effects is a primary subject of this

5
That the City’s enactment of the Ordinance constitutes an
“activity directly undertaken by any public agency” is not in
dispute.

19
dispute. The Court in Muzzy Ranch v. Solano County Airport
Land Use Com’n provides the answer, as is discussed below.
(Muzzy Ranch Co., supra, 41 Cal.4th 372.)
Guidelines § 15378 offers guidance on how to interpret CEQA
§§ 21065. It states:

(a) ‘Project’ means the whole of an action, which has a

potential for resulting in either a direct physical
change in the environment, or a reasonably
foreseeable indirect physical change in the
environment, and that is any of the following: [¶] (1)
An activity directly undertaken by any public agency
including but not limited to . . . enactment and
amendment of zoning ordinances. . . .

Guidelines § 15378 rewords the statutory language “an activity

which may cause” from CEQA § 21065 to “the whole of an action,
which has a potential for resulting.” This change specifies that an
entire activity must be considered, but otherwise is essentially
synonymous with the language in the statute. It is important to
note that neither the Guidelines nor CEQA itself define a project
as something that will in fact have an impact on the
environment. “[T]he definition of project for CEQA purposes is
not limited to agency activities that demonstrably will impact the
environment. ‘. . . CEQA does not speak of projects which will
have a significant effect, but those which may have such effect.’”
(Muzzy Ranch Co., v. Solano Cnty. Airport Land Use Comm’n,
supra, 41 Cal.4th at p. 383. (quoting No Oil, Inc. v. City of Los
Angeles (1974) 13 Cal.3d 68, 83, fn 16.) And in the defining of
project, CEQA does not even speak of significant effects, but
simply of effects on the environment. See Guidelines § 15387 (“. . .

20
potential for resulting in either a direct physical change in the
environment, or a reasonably foreseeable indirect physical
change in the environment . . .”)
In the context of determining whether an activity is a project
under CEQA, the test covers an even broader range of activities,
because a “project” includes not only activities which have merely
the potential to have a significant effect on the environment, the
concept encompasses activities that have merely the potential to
have any effect on the environment. The Court of Appeal erred in
dismissing Appellant’s arguments on the grounds that the
impacts cited were “speculative” and might not happen. But that
is not the question that should have been analyzed. If the
possibility of effects on the physical environment is reasonably
foreseeable, regardless of whether those impacts are insignificant
and regardless of whether they are likely, the activity is a project
and must be analyzed to see if it is, for example, exempt under
the common-sense exemption. It is certainly not appropriate to
hide that analysis behind a determination that the activity is not
a project, and transfer the agency’s obligation to first articulate
its rationales from the contemplated process involving the local
public to a hearing before a court. Allowing an agency to wait
until it is before the court to first articulate its analysis of the
potential for impacts to the environment undermines one of the
primary functions of CEQA, fostering informed public decision-
making and accountability.
The Guidelines contain a specific section to deal with agency
activities which actually will not harm the environment in any
major way, which applies during the second tier of CEQA
analysis, the common-sense exemption. This section applies even

21
if a project has some environmental impacts and allows agencies
to forgo full CEQA review of projects which actually will not
cause significant environmental impacts. This section, Guidelines
§ 15061, titled “Review for Exemption.” reads:

(a) Once a lead agency has determined that an

activity is a project subject to CEQA [i.e., a “project”],
a lead agency shall determine whether the project is
exempt from CEQA.

...

Where it can be seen with certainty that there is no

possibility that the activity in question may have a
significant effect on the environment, the activity is
not subject to CEQA.

This second tier of CEQA applies as soon as an agency merely

has determined whether an activity has the “potential for
resulting in either a direct physical change in the environment,
or a reasonably foreseeable indirect physical change in the
environment,” i.e., (that the activity is a project). Guidelines §
15378 (emphasis added).
The Court in Muzzy Ranch provides a way to interpret the
statutory sections and the guidelines harmoniously, which takes
into account the guiding purpose of CEQA, the practical
considerations of the relative burdens of preparing a notice of
exemption compared to the difficulty of citizen oversight over
activities for which absolutely no environmental review is
conducted by the agency, and CEQA’s overall scheme of
successively narrowing down which activities must undergo full

22
EIR preparation by setting out a series of increasingly restrictive
tests. Muzzy Ranch says that “. . .whether an activity constitutes
a project subject to CEQA is a categorical question respecting
whether the activity is of a general kind with which CEQA is
concerned, without regard to whether the activity will actually
have environmental impact.” (Muzzy Ranch Co., v. Solano Cnty.
Airport Land Use Comm’n, supra, 41 Cal.4th at p. 381.) “The
question,” as framed by the Court in Muzzy Ranch is “whether
the [agency]'s [action] is the sort of activity that may cause a
direct physical change or a reasonably foreseeable indirect
physical change in the environment so as to constitute a project.”
(Id. at p. 382 (citing Guidelines § 21065) (emphasis added). This
is a very broad test which merely determines whether or not an
activity is subject to CEQA at all. Id.
This Court of Appeal failed to recognize that a municipality’s
adoption of an ordinance regulating certain land uses in certain
areas of a municipality under certain conditions (a “zoning
ordinance”) is “[an activity] of a general kind with which CEQA is
concerned” (actual environmental impacts of the project
notwithstanding), that is, categorically a “project” under CEQA.
(Muzzy Ranch, supra, 41 Cal.4th at p. 381.)
The enactment of the Ordinance in this case, which allows the
previously disallowed land use of operating medical marijuana
cooperatives, in certain areas of a municipality, and under
certain conditions certainly constitutes “[an activity] of a general
kind with which CEQA is concerned.” Ibid.
The statutory and regulatory structure of CEQA support the
Court’s decision in Muzzy Ranch and its application to the
Ordinance. CEQA, as implemented by the regulations and

23
interpreted by the Court in Muzzy Ranch defines “project”
extremely broadly. This is by statutory design. Tier 1 of CEQA
analysis applies to many agency activities so that no activity that
might cause environmental impacts goes undetected. CEQA and
its implementing regulations contain myriad exemptions,
including the common-sense exemption, so that projects that are
very unlikely to cause significant environmental impacts need
not be over-analyzed. Considering this structure, and that “[t]he
foremost principle under CEQA is that the Legislature intended
the act ‘to be interpreted in such manner as to afford the fullest
possible protection to the environment within the reasonable
scope of the statutory language,’” the Court in Muzzy Ranch
adopted a categorical approach to the first tier of CEQA based
solely on the type of activity in question “without regard to
whether the activity will actually have environmental impact.”
(Laurel Heights Improvement Assn. v. Regents of Univ. of
California, supra, 47 Cal.3d at p. 390; Muzzy Ranch Co., v.
Solano Cnty. Airport Land Use Comm’n, supra, 41 Cal.4th at p.
381. Zoning ordinances, and certainly zoning ordinances such as
the instant Ordinance, categorically constitute activities “of a
general kind with which CEQA is concerned.” (Muzzy Ranch Co.,
v. Solano Cnty. Airport Land Use Comm’n, supra, 41 Cal.4th at p.
381.)

B. The City erred in its determination that

the enactment of the Ordinance did not
constitute a project under CEQA.

Here, the City decided the Ordinance was not a project.

Rather than undergo the second step of CEQA analysis and bear

24
the burden of factually demonstrating that the common-sense
exemption applies by demonstrating that “it can be seen with
certainty that there is no possibility that the activity may have a
significant effect on the environment,” the City simply claimed
that the “[a]doption of the [O]rdinance does not have the
potential for resulting in either direct physical change in the
environment or reasonably forseeable [sic] indirect physical
change in the environment,” explaining that “[f]uture projects
subject to the ordinance will require discretionary permit [sic]
and CEQA review and will be analyzed at the appropriate time in
accordance with CEQA[.]” AR 439. Rather than admit that the
Ordinance was a project under CEQA and have to argue that the
common-sense exemption applies, the City postponed all
environmental analysis until such later point in time when it is
eventually called on to consider individual Conditional Use
Permits (“CUPs”) for dispensaries. However, at such time it will
be too late to consider alternatives that might allow greater
mitigation of impacts than the review of a single proposal will
afford. To use the instant Ordinance as an example, once it has
passed, it becomes too late for the City to decide that it should
change the maximum allowed number of dispensaries, the
permitted zones in which such uses should be allowed or the
required setbacks from sensitive uses. Those mandatory features
of the Ordinance have a practical effect on where, how and how
much future development under the Ordinance will take place,
and cannot be changed when environmental review occurs during
review of future CUP applications.
These types of questions present themselves whenever a
municipality passes an ordinance regulating land use in a

25
municipality, which is why the Supreme Court in Muzzy Ranch
held that the land use plan at issue was categorically a project
subject to CEQA. The TALUP “contained binding regulatory
consequences for local government . . .” and “‘. . . embod[ied]
fundamental land use decisions that guide the future growth and
development of cities and counties,’ and amendment of these
plans ‘have a potential for resulting in ultimate physical changes
to the environment.’” (Muzzy Ranch Co., v. Solano Cnty. Airport
Land Use Comm’n, supra, 41 Cal.4th at pp. 385–385 (citing
DeVita v. Cnty. of Napa (1995) 9 Cal.4th 763, 793–794).) At the
time these plans are written, the agency has enough information
that it can proceed with CEQA review. A Notice of Exemption
need only consist of a few paragraphs of analysis. A Negative
Declaration can be prepared if there is not substantial evidence
in the record that significant environmental impacts will occur.
But by claiming that the Ordinance is not a project, the City is
avoiding all analysis under CEQA.
Structurally, CEQA’s three tiers of analysis narrow down a
wide field of activities to those few activities for which an EIR is
required. The first tier of CEQA takes the field of all agency
actions to determine which ones are, potentially, in the broadest
sense, subject to CEQA, namely those that may have some impact
on the environment. Out of that field of actions, the second tier
exempts activities from further analysis if an enumerated
exemption applies, or if “it can be seen with certainty that there
is no possibility that the activity in question may have a
significant effect on the environment” (Guidelines § 15061.) If the
activity is not exempt and it cannot be shown that it has no
potential to cause a significant effect on the environment, it

26
reaches the third tier and must undergo an initial study. After
the initial study, the agency may avoid preparation of a full
environmental impact report if the initial study finds there is “no
substantial evidence that the project or any of its aspects may
cause a significant effect on the environment.” (Guidelines §
15063.) In that case, the agency is required to prepare a “negative
declaration” documenting such determination. (See Guidelines §
15070 et seq.)
The City has essentially argued that, when analyzing zoning
ordinances, the first tier question of whether the enactment of an
ordinance is a project should be judged by the evidence in the
record demonstrating whether that ordinance actually will have
environmental impacts. This is completely inappropriate at the
first level of CEQA analysis. Each successive tier of CEQA
represents a more intensive, more fact-based inquiry,
culminating in a full EIR. Simultaneously, each successive tier of
CEQA further narrows a broad field of potentially regulated
activity. It does not make sense to ask, as the very first question
in analyzing whether or not an activity is subject to
environmental review, whether the evidence in the record
establishes that the activity will result in environmental impacts.
The City, upon examination of the record, concluded that the
adoption of the Ordinance did not “have the potential for
resulting in either direct physical change in the environment or
reasonably [foreseeable] indirect physical change in the
environment.” AR 439. This was improper. The City should have
concluded that the adoption of the Ordinance was a project as a

27
matter of law because it was an activity “of a general kind with
which CEQA is concerned.” (Muzzy Ranch Co., v. Solano Cnty.
Airport Land Use Comm’n, supra, 41 Cal.4th at p. 381.)
Additionally, environmental analysis of higher level planning
actions, such as the adoption of general plan amendments and
zoning ordinances, is necessary in order to serve one of the
fundamental purposes of the statue itself – informed
decisionmaking. Compliance with CEQA’s procedural
requirements is essential to insure informed decisionmaking and
accountability.

C. CEQA review is not premature.

1. Meaningful environmental review is

possible before the enactment of zoning
ordinances, even when the zoning
ordinance requires potential users
obtain a CUP before operation.

The City sought to justify its choice to forgo all CEQA review
in passing the Ordinance by pointing to the fact that the
Ordinance requires that users receive a CUP before beginning
operation. However, “[t]hat further governmental decisions need
to be made before a land use measure's actual environmental
impacts can be determined with precision does not necessarily
prevent the measure from qualifying as a project.” (Muzzy Ranch
Co., v. Solano Cnty. Airport Land Use Comm’n, supra, 41 Cal.4th
at p. 383 (“. . . we expressly rejected the board's argument that its
approval was not a CEQA project ‘merely because further
decisions must be made before schools are actually constructed,

28
bus routes changed, and pupils reassigned.’ [Citation]. That the
board's approval of the plan was an essential step leading to
potential environmental impacts, including construction of a new
high school, was sufficient. [Citation]. Nor was the board's
approval exempt from CEQA merely because it had to be ratified
by the voters. [Citation].”) (citing Fullerton Joint Union High
Sch. Dist. v. State Bd. of Educ. (1982) 32 Cal.3d 779, 794–798).

2. Broader Planning Documents such as

Zoning Ordinances That Regulate the
Use and Development of Land are
“Projects” under CEQA Even when No
Physical Development is Proposed

A proposed physical development is not a prerequisite to an

activity constituting a project. If this were the case, several
activities considered by the courts to be “projects” would actually
not be projects at all, such as the enactment of a general plan
(City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d
521, 532), enactment of regulations (Plastic Pipe & Fittings Assn.
v. California Bldg. Standards Comm’n (2004) 124 Cal.App.4th
1390, 1413; Apartment Assn. of Greater Los Angeles v. City of Los
Angeles (2001) 90 Cal.App.4th 1162, 1169), approval of a regional
transportation plan (Edna Valley Assn. v. San Luis Obispo Cnty.
etc. Coordinating Council (1977) 67 Cal.App.3d 444, 447–449),
and approval of an airport land use plan (Muzzy Ranch Co., v.
Solano Cnty. Airport Land Use Comm’n, supra, 41 Cal.4th at pp.
382–385).
The reason why environmental review is conducted for these
types of higher level plans and regulatory schemes (even when no

29
physical development is necessarily proposed) is clear – they
embody fundamental land use decisions that guide the future
growth and development of cities and counties and therefore have
the potential for ultimate physical changes in the environment.
(Muzzy Ranch Co., v. Solano Cnty. Airport Land Use Comm’n,
supra, 41 Cal.4th at p. 385.)
With this fact in mind, the Legislature has deemed certain
activities categorically "projects" pursuant to Section 20180(a).
Included in the list of activities deemed to be projects are "the
enactment and amendment of zoning ordinances." (Pub.
Resources Code, § 21080, subd. (a), emphasis added.) The court of
appeal in Rominger explained why subdivisions, one of the items
on the list, was a “project,” stating:

In essence, by enacting subdivision (a) of section

21080 the Legislature has determined that certain
activities, including the approval of tentative
subdivision maps, always have at least the potential
to cause a direct physical change or a reasonably
foreseeable indirect physical change in the
environment. This makes sense. It virtually goes
without saying that the purpose of subdividing
property is to facilitate its use and development. (See
Gov.Code, § 66424 [defining “subdivision” for
purposes of the Subdivision Map Act “the division, by
any subdivider, of any unit or units of improved or
unimproved land, or any portion thereof, shown on
the latest equalized county assessment roll as a unit
or as contiguous units, for the purpose of sale, lease,
or financing, whether immediate or future,” italics
added].) Presumably no one goes to the trouble of
subdividing property just for the sake of the process;
the goal of subdividing property is to make that
property more useable. And with the potential for
greater or different use comes the potential for

30
 environmental impacts from that use. Thus, the
Romingers are correct that under subdivision (a) of
section 21080, the approval of a tentative subdivision
map is categorically a CEQA project.

(Rominger v. Cnty. of Colusa (2014) 229 Cal.App.4th 690, 702,

emphasis added.)
It also makes sense that zoning ordinances are the types of
activities that have at least the potential to cause a direct
physical change or a reasonably foreseeable indirect physical
change in the environment. This is because zoning ordinances, by
their very nature, regulate the use of land.

The purpose of a zoning law is to regulate the use of

land. (See 1 Longtin's Cal. Land Use (2d ed. 1987) §§
3.02–3.03, pp. 234–236.) The procedures by which
counties or cities enact and administer zoning
ordinances are regulated exclusively by sections
65800 through 65912. . . . Section 65850 states
permissible purposes of local zoning laws; all those
purposes pertain to land use.

(Morehart v. Cnty. of Santa Barbara (1994) 7 Cal.4th 725, 750.)

Muzzy Ranch, even went so far as to apply the same force to
one of the CEQA Guidelines that extended the list of activities
that were categorically made subject to CEQA by Public
Resources Code section 21080.
That the enactment or amendment of a general plan is subject
to environmental review under CEQA is well established. (DeVita
v. Cnty. of Napa, supra, 9 Cal.4th at pp. 793–795, 38 Cal.Rptr.2d
699, 889 P.2d 1019; [Black Prop. Owners Assn. v. City of Berkeley
(1994) 22 Cal.App.4th 974, 985], 28 Cal.Rptr.2d 305; [City of

31
Santa Ana v. City of Garden Grove, supra, 100 Cal.App.3d at p.
532], 160 Cal.Rptr. 907.) “Although [they are] not explicitly
mentioned in the CEQA statutes, general plans ‘embody
fundamental land use decisions that guide the future growth and
development of cities and counties,’ and amendments of these
plans ‘have a potential for resulting in ultimate physical changes
in the environment.’ [Citation.] General plan adoption and
amendment are therefore properly defined in the CEQA
guidelines [citation] as projects subject to environmental review.”
(DeVita v. Cnty. of Napa, supra, at pp. 793–794 [enactment or
amendment of general plan]; see also Id. at p. 538 [revision of
sphere of influence guidelines]; City of Santa Ana v. City of
Garden Grove, supra, at pp. 532–533 [enactment of general plan];
Edna Valley Assn. v. San Luis Obispo Cnty. etc. Coordinating
Council, supra, 67 Cal.App.3d at p. 449 [adoption of regional
transportation plan]; see generally CEQA Guidelines, § 15378,
subd. (a)(1).) Muzzy Ranch Co., v. Solano Cnty. Airport Land Use
Comm’n, supra, 41 Cal.4th at p. 385.) In a footnote to the citation
to CEQA Guidelines, § 15378, subd. (a)(1), this Court quoted the
regulation in a manner that emphasizes it viewed such a
categorical interpretation of Public Resources Code section 21080,
subdivision (a) as consistent with the remainder of CEQA:
“Section 15378, subdivision (a)(1) of the CEQA Guidelines
explains in pertinent part that “project” includes “any activity
undertaken by a public agency that reasonably might affect the
environment, including but not limited to ... enactment and
amendment of zoning ordinances, and the adoption and

32
amendment of local General Plans or elements thereof.” (Muzzy
Ranch Co., v. Solano Cnty. Airport Land Use Comm’n, supra, at
fn. 4.)

3. Mitigation opportunities would be

foreclosed by delay.

The City’s reliance on Friends of Sierra R.R. v. Tuolumne Park

& Recreation Dist., supra, 147 Cal.App.4th 643 in the lower
courts ignores the significant differences between the facts of that
case and those presented here. In that case, there were no
development plans and no concrete development proposals. The
court ruled that

CEQA review would have been premature because no

particular development plans had been announced.
Therefore, we hold that the transfer was not a project
within the meaning of CEQA. As we will explain,
some plan with an identifiable impact on the right-of-
way would have to be on the table before the CEQA
review process could be meaningfully carried out.

(Friends of Sierra R.R. v. Tuolumne Park & Recreation Dist.,

supra, 147 Cal.App.4th at p. 651.)
However, the court noted that

Environmental documents (environmental impact

reports or negative declarations) “should be prepared
as early as feasible in the planning process to enable
environmental considerations to influence project
program and design.” (Cal.Code Regs., tit. 14, §
15004, subd. (b).) Without first carrying out CEQA
review, agencies must not “take any action which
gives impetus to a planned or foreseeable project in a

33
 manner that forecloses alternatives or mitigation
measures that would ordinarily be part of CEQA
review.” (Cal.Code Regs., tit. 14, § 15004, subd.
(b)(2)(B).)

(Friends of Sierra R.R. v. Tuolumne Park & Recreation Dist.,

supra, 147 Cal.App.4th at p. 654.) It is the current ability of the
Respondent to approve meaningful alternatives and mitigation
measures that distinguishes the current case from Friends of
Sierra R.R. Because the impacts of the ultimate development of
the parcel at issue in that case were so uncertain as to render the
formulation of alternatives or mitigation measures impossible,
the court was correct in finding that CEQA review was
premature. In the current case, however, the specific
consequences of the City’s actions are sufficiently predictable to
make the formulation of alternatives that will have less impact
on the environment not only possible, but required under the law.
In contrasting Kaufman & Broad-South Bay, Inc. v. Morgan
Hill Unified Sch. Dist., supra, 9 Cal.App.4th 464, with Fullerton
Joint Union High Sch. Dist. v. State Bd. of Educ., supra, 32
Cal.3d 779, the court observed that

CEQA review is premature if the agency action in

question occurs too early in the planning process to
allow meaningful analysis of potential impacts.
Although environmental review must take place as
early as is feasible, it also must be “late enough to
provide meaningful information for environmental
assessment.”

34
(Friends of Sierra R.R. v. Tuolumne Park & Recreation Dist.,
supra, 147 Cal.App.4th at pp. 654–55.) The key distinction in
Kaufman & Broad was that the action at issue in Kaufman &
Broad

did not “commit the [school district] to any definite

course of action” or “in any way narrow the field of
options and alternatives available” to the school
district. More importantly, environmental review at
that stage would be “meaningless” because “[t]here is
simply not enough specific information about the
various courses of action available to the [school
district] to warrant [environmental] review at this
time.” For those reasons, the court held that there
was no project.

(Friends of Sierra R.R. v. Tuolumne Park & Recreation Dist.,

supra, 147 Cal.App.4th at p. 655 (citations omitted).) The case
acknowledges what the key issue really was:

The reasonably foreseeable likelihood of some

development on the West Side Lumber Company
property, combined with the possibility that the
development could impact the historical resource
included within the larger property, does not trigger
CEQA review. CEQA review has to happen far
enough down the road toward an environmental
impact to allow meaningful consideration in the
review process of alternatives that could mitigate the
impact.

(Friends of Sierra R.R. v. Tuolumne Park & Recreation Dist.,

supra, 147 Cal.App.4th at p. 657.)

35
 Pala Band of Mission Indians v. Cnty. of San Diego (1998) 68
Cal.App.4th 556 is similarly inapposite because, once again, no
definite plans were on the table.

[B]ecause all 10 of the proposed landfill sites

identified in the siting element are only “tentatively
reserved,” preparation of an EIR (including a
program EIR) would be premature and is not yet
required under CEQA.

(Pala Band of Mission Indians v. Cnty. of San Diego, supra, 68

Cal.App.4th at p. 560.) In explaining why the CEQA review was
premature, the decision noted the difference between the
tentative reservation which had occurred and the ultimate
reservation contemplated by the statutory scheme involved and
quoted the observation by the lower court that “[i]f this site is
ultimately reserved for development as a landfill then CEQA
protects [Pala] because it will require an EIR which will study
environmental impacts, including alternative sites.” (Pala Band
of Mission Indians v. Cnty. of San Diego, supra.)
In the present case, it is clear that there is an available
mitigation measure, namely distributing the permissible
locations in a manner that would provide easier access to
patients throughout the City, thereby reducing the
environmental impacts associated with the formulation of the
ordinance that was adopted by the City. Unlike the situation in
Friends of Sierra R.R., there were specific plans on the table
when the Ordinance was adopted. The terms of the ordinance
were specific, and those specifics could have been modified to
provide a less impactful alternative. Such mitigation measures

36
available prior to the adoption of the Ordinance will have been
foreclosed when future site-specific reviews occur. Opening Brief
at 11:14–20. Thus, to avoid running counter to Cal.Code Regs.,
tit. 14, § 15004, subd. (b)(2)(B), quoted above, such mitigation
measures were required to be evaluated before the Ordinance
was adopted.

4. The Ordinance has the potential to

cause reasonably foreseeable
environmental impacts that are not
speculative.

The enactment of the Ordinance was an essential step to

causing the eventual operation of legally operating medical
marijuana dispensaries in San Diego. The potential for this to
result in development and redevelopment of real estate to
accommodate the use, and the displacement of existing users
which do not conform to the new ordinance due to the market
forces of competition is reasonably foreseeable. It is not
speculative to conclude that the adoption of the Ordinance may
cause patients to have to drive farther to obtain medicine or force
patients to cultivate their own medicine indoors.
There are two countervailing effects at issue regarding
whether the Ordinance is likely to increase patient travel and
increase local cultivation. On the one hand allowing legal
operators might increase the overall supply of dispensaries,
increasing accessibility for patients. On the other hand, new
operators in compliance with the Ordinance will have a large
competitive advantage compared to non-compliant operators who
may be forced out of business as a result. Since the Ordinance

37
only allows a few dispensaries to compliantly operate to serve a
very large population and area and places stringent regulations
on where they may be located, the Ordinance may have the effect
of concentrating the provision of medical marijuana at the
locations where the new dispensaries are allowed. Rather than
increasing access to dispensaries by allowing them wherever they
currently operate, the Ordinance allows a small number of
dispensaries to operate under strict locational requirements,
which will likely force many of the City’s more conveniently
located dispensaries to shut down. Compliant dispensaries will
outcompete non-compliant dispensaries, and the land use will,
overall, shift to comply with the Ordinance. Indeed, this is the
very point of zoning regulations – to encourage people to operate
under its conditions rather than however they used to operate. It
is the City’s burden to prove that “it can be seen with certainty
that there is no possibility that the activity in question may have
a significant effect on the environment,” and that the reasonably
foreseeable relocation of services will not cause increased traffic
and air pollution, not the public’s burden to prove that such
environmental impacts will occur. Furthermore, it is extremely
difficult to see how, as a matter of categorical analysis and a
question of law, the City and lower courts concluded that an
ordinance allowing and regulating a new type of land use cannot
possibly cause any environmental impacts. It should be an
uncontroversial proposition that when a previously unpermitted
land use becomes explicitly permitted, people will make physical
changes to the environment to take advantage of the newly

38
allowed land use.6 Operators under the new ordinance will have
to physically convert spaces previously built for other uses—the
new use previously was not allowed. New businesses will open,
many of them will remodel the spaces they lease, and some of
them may even build new structures to take advantage of the
Ordinance. These are reasonably foreseeable environmental
impacts.
No one would argue that a zoning ordinance which relegated
heavy industry to densely populated areas would not be subject to
CEQA because the individual factories built under the ordinance
would be required to obtain CUPs. Zoning ordinances set out the
general rules for what types of land uses are allowed, in what
areas, and under what conditions, while CUPs analyze individual
applications to operate specific enterprises under the appropriate
zoning ordinance. When an agency enacts a zoning ordinance
allowing a particular land use in particular areas, subject to
particular requirements, the consequences of that activity are
sufficiently definite that the agency can investigate whether it
might actually have any environmental impacts.
The Ordinance in question has the potential to cause
intensified and displaced development, increased vehicle miles
travelled, and increased medical marijuana cultivation. Indeed,
similar concerns attend any ordinance allowing a previously
unpermitted land use. Any development to take advantage of the
newly allowed use would impact the physical environment. When

6
These changes are even more reasonably foreseeable
considering the fact that so many individuals opted to establish
dispensaries in the City of San Diego even when such activity
was unpermitted.

39
a previously not unpermitted use becomes permitted, people will
reasonably foreseeably develop properties to take advantage of
the newly allowed land use. They will reasonably foreseeably
develop those properties in the areas where they are allowed
under the relevant ordinance, rather than in other areas, and the
likely environmental impacts intensity attendant to the chosen
intensity and distribution of the land use can be analyzed.
The Court of Appeal committed a critical error of law in
analyzing whether the Ordinance was a project. The Court of
Appeal relied on section 15064 of the Guidelines, which provides,
“A change which is speculative or unlikely to occur is not
reasonably foreseeable.” (Cal. Code Regs., tit. 14, § 15064(d)(3))
However, while it might be speculative to conclude that a change
which was unlikely to occur would, in fact occur, and thus one
could properly argue that it would not be reasonably foreseeable
that such a change would occur, but it is reasonably foreseeable
that such a change might occur. Whenever one is attempting to
predict what might occur, there is always a certain level of
speculation involved. To argue that the mere fact that a change is
unlikely renders it ineligible for consideration as a reasonably
foreseeable potential indirect physical change in the environment
would turn decades of CEQA precedent on its head (see, e.g.,
those cases cited at Muzzy Ranch Co., v. Solano Cnty. Airport
Land Use Comm’n, supra, 41 Cal.4th at p. 385). It would also be
wholly inconsistent with the approach implicit in the common
sense exemption contained in Guidelines section 15061,
subdivision (b)(3), which requires more than merely that a

40
change be unlikely, it requires that the agency be able to see
“with certainty that there is no possibility that the activity in
question may have a significant effect on the environment.”
Furthermore, in the instant case, the Court of Appeal failed to
analyze the potential impacts of the adoption of the ordinance.
Instead, it demanded that the Appellant establish that the
foreseeable indirect environment impacts of the adoption of the
Ordinance would occur. For example, the Court of Appeal held
that “UMMP's assumption that the Ordinance will significantly
reduce the number of illegal cooperatives is speculative and
unfounded.” (Union of Med. Marijuana Patients, Inc. v. City of
San Diego (2016) 4 Cal.App.5th 103, 121.) (emphasis added.
Similarly, with respect to the negative impacts of indoor
cultivation, the Court of Appeal held:

This argument fails because it is based on the same

unwarranted assumption that we discussed above,
namely that the enactment of the Ordinance will
make it more difficult for patients to access medical
marijuana in the City because it will cause current
illegal cooperatives to close and will locate legal
cooperatives in inconvenient locations. As we have
explained above, there is no basis for UMMP's
assumption that the enactment of the Ordinance will
make it more difficult to access medical marijuana in
the City than prior to the enactment of the
Ordinance.

(Union of Med. Marijuana Patients, Inc. v. City of San Diego,

supra, 4 Cal.App.5th at p. 122 (emphasis added).)
The Court of Appeal added, “Moreover, in the context of their
cultivation argument, UMMP asks us to make a further

41
unwarranted and speculative assumption. UMMP assumes that
when faced with inconveniently located cooperatives, a
significant number of patients will decide to set up their own
cultivation operation.” (Union of Med. Marijuana Patients, Inc. v.
City of San Diego, supra, 4 Cal.App.5th at p. 122 (emphasis
added).)
Finally, the Court of Appeal committed the same error with
respect to an activity that undeniably would constitute the
required physical change to the environment if it were to occur,
namely construction activity:

UMMP's final argument is that the cooperatives

established under the Ordinance will have to be
located somewhere, and “this may result in new
construction activity.” According to UMMP, the
possible construction activity will have an impact on
the environment.

We reject the argument because it is purely

speculative to assume that the establishment of the
cooperatives permitted under the Ordinance will
require any new buildings to be constructed, as
cooperatives could simply chose to locate in available
commercial space in an existing building.

(Union of Med. Marijuana Patients, Inc. v. City of San Diego,

supra, 4 Cal.App.5th at p. 123 (footnote omitted; emphasis
added).) Obviously, even the Court of Appeal was able to foresee
that there were at least two possible consequences with regard to
how the establishment of Coops under the ordinance might occur,
either new construction of locating in an available building. Even
under the latter scenario, however, there would be physical

42
changes to the environment, at the very least, new signage. The
question in the current analysis is not whether such physical
change is significant. That is part of the analysis to be
undertaken after the activity has been recognized as a project,
something the City never got to.
The Court of Appeals’ conclusion in footnote 13 (omitted in the
above quote) that the concept of displaced development is not
applicable is also incorrect. The court held,

Displaced development as discussed in Muzzy Ranch

occurs when the enactment or amendment of a land
use plan restricting residential development in one
area will have the reasonably foreseeable effect of
causing residential development to shift to a different
area where it previously was not anticipated at that
level. (Id. at pp. 382–383, 60 Cal.Rptr.3d247, 160
P.3d 116.) Here, the Ordinance is not the type of
general land use restriction that will shift necessary
development to a different area than previously
expected. Thus, displaced development is not at
issue.

(Ibid.) The only explanation for such a conclusion is that the court
viewed displaced development as something that could only occur
when residential development was involved, a wholly
unwarranted conclusion. Just as in Muzzy Ranch, it is reasonable
to anticipate the City’s actions here in “placing a ban on
development in one area of a jurisdiction may have the
consequence . . . of displacing development to other areas of the
jurisdiction.” (Muzzy Ranch Co., v. Solano Cnty. Airport Land
Use Comm’n, supra, 41 Cal.4th at p. 383.)

43
 It is not the public’s burden to demonstrate, at the first tier of
CEQA analysis, that environmental impacts will occur. The
Court of Appeal erred in dismissing potential environmental
impacts during the first tier of CEQA analysis on the basis that
those potential environmental impacts might not occur. The use
of the word “potential” in the CEQA guidelines, and the use of the
word “may” in the statute indicate that activities which might not
cause environmental impacts are nonetheless projects if they also
might cause environmental impacts. (Guidelines § 15387; CEQA
§ 21065.) Furthermore, claiming that zoning ordinances are not
projects because there is a chance that residents will only use
existing structures to operate under them is nonsense.
The potential environmental impacts of zoning ordinances are
myriad and obvious –people will alter physical space to comply
with zoning ordinances. The magnitude and likelihood of the
environmental impacts of individual zoning ordinances differ, but
whether a single property is being re-zoned to allow a single
additional low-impact use, or an entire downtown corridor will
allow buildings to be twice as high, zoning ordinances have the
potential to impact the environment. If the particular zoning
ordinance at issue will not affect the environment, the agency can
claim the common-sense exemption. But if the agency is unable
to even meet the burden to prove “with certainty that there is no
possibility that the activity in question may have a significant
effect on the environment,” and the common-sense exemption
applies, it should not be allowed to sidestep CEQA at the first
stage simply because reasonably foreseeable environmental

44
impacts have not been proven to exist. (Guidelines § 15061 (b)(3);
see Muzzy Ranch Co., v. Solano Cnty. Airport Land Use Comm’n,
supra, 41 Cal.4th at p. 383.)

5. Muzzy Ranch looks to the type of

claimed environmental impacts to
determine whether the impact is unduly
speculative.

In Muzzy Ranch, the Court considered two arguments raised

by the agency before determining that the adoption of the land
use plan by the agency constituted a project subject to CEQA.
The agency had argued that any displaced “development was
inherently too speculative to be considered a reasonably
foreseeable effect of an airport land use compatibility plan” and
that “because the TALUP merely advises the jurisdictions it
affects, it cannot be the legal cause of environmental changes
that result if the jurisdictions follow its advice.” (Muzzy Ranch
Co., v. Solano Cnty. Airport Land Use Comm’n, supra, 41 Cal.4th
at p. 382.) The Court’s analysis regarding the displaced
development argument is instructive. (Id. at p. 348.) In
determining whether “displaced development was inherently too
speculative,” the Court never analyzed the specifics of the land
use plan at issue. (Id. at p. 382.) Indeed, if it had, it would have
concluded that there was no possibility of displaced development,
since any such displaced development had already been caused
by existing regulations, as it concluded after turning to analyze
the applicability of the common-sense exemption. (Id. at p. 389.)
Instead, the court only analyzed whether displaced development
is a theoretically possible environmental impact. (Id. at pp.

45
381–385.) The Court noted that “[t]he population of California is
ever increasing[,]” that providing more housing is a “legal and
practical necessity,” and that “[d]epending on the circumstances,
a government agency may reasonably anticipate that its placing a
ban on development in one area of a jurisdiction may have the
consequence, notwithstanding existing zoning or land use
planning, of displacing development to other areas of the
jurisdiction.” (Id. at pp. 382–383 (emphasis added).) However,
when determining whether or not enacting the TALUP
constituted a Project under CEQA the Court did not analyze
whether the particular restrictions contained in the TALUP
would, in the context of the existing environment and regulatory
scheme, actually cause any displaced development (such analysis
occurs under the second tier of CEQA), rather the Court analyzed
whether or not the alleged environmental impact, displaced
development, was “categorically outside the concern of CEQA.”
(Id. at p. 383.) There is no reason for this Court to rule that
environmental impacts due to displaced development, increased
traffic, and increased indoor marijuana cultivation are
“categorically outside the concern of CEQA” now. (Ibid.)

III. It is illogical to deem an activity not a project

based on a lesser showing than would be
required to claim a common-sense exemption
or support a Negative Declaration.

CEQA Guidelines section 15061, subdivision(b)(3) describes

the “common-sense” exemption. (“Where it can be seen with
certainty that there is no possibility that the activity in question
may have a significant effect on the environment, the activity is

46
not subject to CEQA.”) The court in Davidon Homes v. City of San
Jose, read this strongly worded exemption as placing the burden
of proof on the agency to demonstrate that the common-sense
exemption applied. (Davidon Homes v. City of San Jose (1997) 54
Cal.App.4th 106, 116 (“[T]he agency must itself provide the
support for its decision before the burden shifts to the challenger.
Imposing the burden on the members of the public in the first
instance to prove a possibility or substantial adverse
environmental impact would frustrate CEQA’s fundamental
purpose of ensuring that governmental officials ‘make decisions
with environmental consequences in mind.’”).)
It is important to note that in Muzzy Ranch the Court held
that the CEQA common sense exemption applied. That is, “it
[could] be seen with certainty that there [was] no possibility that
the [adoption of the air field land use plan at issue (the
“TALUP”)] may have a significant effect on the environment,”
because “any potential displacement the TALUP might otherwise
have effected already has been caused by the existing land use
policies” which the TALUP had incorporated. (Muzzy Ranch Co.,
v. Solano Cnty. Airport Land Use Comm’n, supra, 41 Cal.4th at p.
389 (emphasis added).)
By reaching the conclusion that the TALUP was
simultaneously a “project” under CEQA and exempt from CEQA
under the common-sense exemption because it had no possibility
of causing any significant impacts demonstrates that agencies
cannot sidestep the first tier of CEQA by claiming that the
specific action in question will not cause environmental impacts,
even if the agency can demonstrate that “it can be seen with
certainty that there is no possibility that the activity may have a

47
significant effect on the environment.” (Guidelines § 15061(b)(3).)
As explained in Davidon Homes v. City of San Jose, to claim the
common-sense exemption,

. . . the agency must itself provide the support for its

decision before the burden shifts to the challenger.
Imposing the burden on the members of the public in
the first instance to prove a possibility of substantial
adverse environmental impact would frustrate
CEQA’s fundamental purpose of ensuring that
governmental officials make decisions with
environmental consequences in mind.

(Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106,

116 (emphasis added).) When an agency determines the common-
sense exemption applies, the agency is encouraged to publish a
notice of exemption so that the public is aware of the activity
which may potentially cause environmental impacts, even though
the agency has already determined that it actually will not. Then,
if judicially reviewed, the agency’s determination would be
subject to an abuse of discretion standard, since the question of
the application of a particular exemption is a mixed question of
law and fact. In contrast, the first tier of CEQA is a categorical
question which can be decided by a court as a matter of law
without deference to the agency, and when an agency determines
that an activity is not subject to CEQA, it faces no publication
requirements.
The City never even attempted to argue that it would meet the
burden of proof required by the common-sense exemption, even
though the common-sense exemption only requires the agency
show that no significant impacts will result. This standard

48
should be an easier standard to meet than a standard showing
that there is no potential for any environmental impacts to result,
and yet the City has not attempted to and does not meet the
standard here. The City claimed that the Ordinance was not a
project based on the bald assertion that “[a]doption of the
ordinance does not have the potential for resulting in either a
direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment.” AR 28.
Its provided explanation was “[f]uture projects subject to the
ordinance will require a discretionary permit and CEQA review,
and will be analyzed at the appropriate time in accordance with
CEQA.” Id. As noted in Davidon, “[a] determination which has
the effect of dispensing with further environmental review at the
earliest possible stage requires something more.” (Davidon
Homes v. City of San Jose, supra, 54 Cal.App.4th at p. 117.) Even
if substantial evidence in the record existed that the Ordinance
would not result in any significant environmental impacts, the
City still would not be able to establish that the Ordinance
qualifies for the common-sense exemption. If the City could make
that showing, it could support a determination that the
Ordinance qualifies for a negative declaration, but the City never
adopted a negative declaration, nor did it even conduct an initial
study as required by CEQA prior to adoption of a negative
declaration.
The City attempts to forgo CEQA analysis entirely on the
basis that there are no potential environmental impacts when the
City cannot even meet the burdens imposed by the more
restrictive tiers of CEQA to prove that there will not be

49
significant impacts under the common-sense exemption or that
there is no evidence that there will be significant impacts
pursuant to the third tier of CEQA.
If an activity truly has no potential for causing environmental
impacts, the City should logically be able to show that it will not
cause significant environmental impacts under the common-
sense exemption and that there is no evidence that there will be
significant impacts under the third tier of CEQA. If the agency
cannot show that an activity will not cause significant
environmental impacts, how can it show that the activity has no
potential to cause any environmental impacts?
It should be noted that the “showing required of a party
challenging an exemption under [the commonsense exemption] is
slight, since that exemption requires the agency to be certain that
there is no possibility the project may cause significant
environmental impacts. If legitimate questions can be raised
about whether the project might have a significant impact and
there is any dispute about the possibility of such an impact, the
agency cannot find with certainty that a project is exempt.” Id.

IV. Zoning Ordinances are per se projects under

Rosenthal and Rominger.

Before CEQA § 21065 was amended to include the “may cause”

language, Rosenthal v. Board of Supervisors held that zoning
ordinances are projects under CEQA after a thorough review of
California Supreme Court precedent, and no analysis of the
specific potential environmental impacts of the ordinance in
question. (Rosenthal, v. Bd. of Supervisors, supra, 44 Cal.App.3d

50
at pp. 822–823 (analyzing No Oil, Inc. v. City of Los Angeles,
supra, 13 Cal.3d 68 and Bozung v. Local Agency Formation,
Comm’n (1975) 13 Cal.3d 263). Likewise, Concerned Citizens of
Palm Desert v. Board of Supervisors held that CEQA “makes it
clear that it applies to ‘the enactment and amendment of zoning
ordinances.’” (Citizens of Palm Desert v. Bd. of Supervisors (1974)
38 Cal.App.3d 272, 283 (quoting Pub. Res. Code § 21080).) The
office of the Attorney General also opined that “Ordinances and
resolutions adopted by a local agency are ‘projects' within the
meaning of CEQA.” (60 Ops. Cal. Atty. Gen. 335 (1977).) The
1994 amendment did not change this analysis however since, as
argued throughout this brief, the enactment of a zoning
ordinance always “may cause” environmental impacts as that
term is used in CEQA § 21065.
Since § 21065 was amended, the Rominger v. County of Colusa
court has read the statutory list of “discretionary projects”
including “the enactment and amendment of zoning ordinances”
contained in CEQA § 21080 as setting out a non-exhaustive list of
categorical projects under CEQA. (Rominger v. Cnty. of Colusa,
supra, 229 Cal.App.4th at p. 702.) This is the plainest reading of
the statutory language which says “[CEQA] shall apply to
discretionary projects proposed to be carried out or approved by
public agencies, including, but not limited to, the enactment and
amendment of zoning ordinances…” (CEQA § 21080.) The statute
says it applies to discretionary projects, and gives a non-
exhaustive list of what it means by “discretionary projects.” Each
of the projects listed is an activity “of a general kind with which
CEQA is concerned”—that’s why they were chosen as the
examples. (Muzzy Ranch Co., v. Solano Cnty. Airport Land Use

51
Comm’n, supra, 41 Cal.4th at p. 381; see CEQA Pub. Resources
Code, § 21080. Muzzy Ranch says that whether something is a
project under CEQA is a “categorical” question. CEQA Guidelines
§ 20180 gives us a statutory set of categories of projects.
However, the appellate court below disagreed with Rominger’s
analysis and has now created a split among the California
appellate courts as to whether projects are to be determined on a
categorical basis, or whether activities that would constitute
“projects” under the statute are no longer considered “projects” if
they do not cause a “direct physical change in the environment or
a reasonably foreseeable indirect physical change in the
environment.” (Pub. Res. Code § 21065.) While that is part of the
statutory definition of “project,” the statute also sets out activities
which categorically constitute projects, as Muzzy explains. Simply
put, the statute sets out a broad definition, and later sets out
some specific examples of projects, all of which meet the first
definition because they usually cause direct or “reasonably
foreseeably indirect physical change in the environment.” (See
CEQA §§ 21065 and 21080.) The statute sets out a non-
exhaustive list of the types of activities that are subject to CEQA
review. (Guidelines § 21080.) Agencies and courts must follow its
guidance.

V. The enactment of the Ordinance was a

project.

Whether or not this Court decides that the enumerated

categories listed in § 20180 are all categorically projects, and
whether or not this Court decides that all zoning ordinances are

52
categorically processes, the adoption of this Ordinance, which
allows a definite number of medical marijuana dispensaries to
operate under certain conditions, in certain areas, was an activity
“of a general kind with which CEQA is concerned,” “which may
cause either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the
environment.” (Muzzy Ranch Co., v. Solano Cnty. Airport Land
Use Comm’n, supra, 41 Cal.4th at p. 381; CEQA § 21065.)

53
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

No. S238563

PROOF OF SERVICE

I declare:
At the time of service I was at least 18 years of age and not a
party to this legal action. My business address is 8200 Wilshire
Blvd., Suite 300, Beverly Hills, CA 90211. I served document(s)
described as Appellant’s Opening Brief as follows:

By U.S. Mail

On May 19, 2017, I enclosed a copy of the document(s)

identified above in an envelope and deposited the sealed
envelope(s) with the US Postal Service with the postage fully
prepaid, addressed as follows:

San Diego County Superior Court

Attn: Hon. Joel Wohlfeil
Central Division
220 & 330 W Broadway
San Diego, CA, 92101

I am a resident of or employed in the county where the

mailing occurred (Beverly Hills, CA).

56
By overnight delivery

On May 19, 2017, I enclosed a copy of the document(s)

identified above in an envelope and deposited the sealed envelope
in a box or other facility regularly maintained by Federal
Express, with overnight delivery fees paid or provided for,
addressed as follows:

Supreme Court of California

350 McAllister Street
San Francisco, CA 94102-4797

I am a resident of or employed in the county where the

mailing occurred (Beverly Hills, CA).

By email

On May 19, 2017, I served by email (from

jamie.hall@channellawgroup.com), and no error was reported, a
copy of the document(s) identified above as follows:

Glenn Thomas Spitzer

GSpitzer@sandiego.gov
(for City of San Diego)

Mitchell Elliott Rishe

Mitchell.Rishe@doj.ca.gov
(for California Coastal Commission)

57