A Trifecta Of Outliers: Three Cases On The Outer Edges Of Land Use And Environmental Practice

By William W. Abbott

Three recent cases land at the periphery of the zone of interest for land use practitioners. While not warranting an exhaustive review, these decisions can and should be slated away for potential future use.

Medical Marijuana Regulation: An ordinance regulating dispensaries was not a “zoning ordinance”, and therefore, did not have to be adopted in accordance with the Government Code provisions regulating the adoption or amendment of zoning codes. An operator of a dispensary was not operating as a lawful activity at the time of the code change, and therefore, was not entitled to treatment as if the use was a vested legal non-conforming use. Conejo Wellness Center, Inc. v. City of Agoura Hills (March 29, 2013, B237718) ___ Cal.App.4th ___.

Exhaustion of Administrative Remedies under the APA: While exhaustion of administrative remedies is a common requirement when challenging many agency actions, this requirement does not apply to declaratory relief challenges against state agencies involving regulations adopted under the California Administrative Procedures Act (APA). In Coastside Fishing Club v. California Fish and Game Commission (April 15, 2013, D061121) ___Cal.App.4th ___, the Fourth Appellate District held that the California APA did not require a petitioner to exhaust administrative remedies in order to challenge Commission regulations creating marine protected areas and marine managed areas.

 Non Disclosure of Agency Documents: In response to a demand for University documents potentially relevant to a University issued study on the economic effects of Proposition 2 (on the November 2008 statewide ballot), the Regents of University of California successfully argued that certain internal documents did not have to be disclosed under the Public Records Act. The Regents asserted an exemption, based upon three different theories: the catchall provision involving the balancing the benefits of non-disclosure over disclosure (Government Code section 6255), the balancing test for preliminary drafts not retained in the ordinary course of business (Government Code section 6254(a), and the “researcher’s” privilege. The decision recites the University’s position about how the academic research process works, and the need/benefit of informal exchange of ideas and criticism, (a process which in this author’s mind shares similarities to the CEQA documentation process.) The court of appeal acknowledged its earlier decision in Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, and distinguished the two decisions on the basis that the Regents had provided the necessary justification to support application of an exemption to disclosure based upon the trial court’s recognition that the public interests in non disclosure outweighed the public benefits in disclosure. The Humane Society of the United States v. The Superior Court of Yolo County (2013) 214 Cal.App.4th 1233. Comment: the case reflects extensive briefing at the trial court, resulting in the trial court individually examining over 3,000 documents. Disputes over public records can prove to be very expensive to resolve.

 William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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