In Union of Medical Marijuana Patients, Inc. v. City of San Diego, the Supreme Court today holds that a 2014 San Diego ordinance limiting the number, and restricting the location, of new medical marijuana dispensaries should have been subjected to environmental review under the California Environmental Quality Act.  Resolving a conflict in Court of Appeal case law, the high court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes that all zoning amendments are not automatically projects requiring CEQA review.  But the court then finds this particular amendment does meet the statutory definition of a CEQA reviewable project.

The court states a broad test for determining whether proposed government activity requires CEQA review:  it “is not whether the activity will affect the environment, or what those effects might be, but whether the activity’s potential for causing environmental change is sufficient to justify the further inquiry into its actual effects that will follow from the application of CEQA.”  Ironically, the San Diego zoning change meets the test not because the change restricts dispensaries, which is what the plaintiff medical marijuana patients’ advocacy group doesn’t like, but because it allows dispensaries at all.  Since marijuana dispensaries had previously been prohibited, the court finds it significant that now permitting them “could foreseeably result in new retail construction to accommodate the businesses” and “could cause a citywide change in patterns of vehicle traffic from the businesses’ customers, employees, and suppliers.”

The court’s opinion will have an impact concerning which zoning amendments in general fall within CEQA, but regarding marijuana ordinances specifically, apparently not so much.  The opinion recognizes that 2017 legislation now exempts from CEQA many local regulations of commercial cannabis activity.  San Diego argued this case is moot because, under the current law, the City could reenact its ordinance without CEQA review, but the court refuses to dismiss the case because the superior court can still grant relief by vacating the approval of the 2014 ordinance.

The court agrees with the Fourth District, Division One, Court of Appeal’s holding in this case that not all zoning amendments are necessarily CEQA projects, but it reverses the appellate court’s decision that the San Diego amendment is not a CEQA project.  On the first point, the court disapproves a 2014 Third District opinion.

The court also does a little clean-up of its own CEQA jurisprudence.  In three footnotes, it says a 1974 opinion’s analytical framework is less helpful than one in a 2007 opinion and it backs away from two labels that the same 2007 opinion placed on parts of the CEQA applicability analysis.