By Cori M. Badgley

There have been several attempts by medical marijuana dispensary proponents to get the courts to recognize a right to establish a dispensary, regardless of what the local zoning code allows. Thus far, these attempts have failed, and the most recent attempt in Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886, is no different. This time the court did not even make it to the merits, but struck the case down at the demurrer stage for lack of standing.

As the appellate court readily admitted, “Traudt’s [plaintiff’s] condition is tragic and presents perhaps the most compelling case imaginable for individual standing.” Traudt developed osteoporosis in her 20’s, and from that point on, lived a life of pain and constant illness, until she began taking medical marijuana. According to Traudt’s complaint, medical marijuana saved her life. Due to her condition, Traudt cannot venture far from her house and must be accompanied by her mother, who is her caretaker. Her mother is also unable to leave her alone because of her fragile condition. Fortunately for Traudt, a dispensary opened up within walking distance from her home, and her mother could take her in her wheelchair to the dispensary. In response to the dispensaries locating inside city limits, the City of Dana Point began shutting down the dispensaries because they are not permitted under the local zoning code. This included Traudt’s dispensary. Although the dispensary brought suit against the City, Traudt decided to initiate a lawsuit of her own, which was dismissed on demurrer for lack of standing, even though lack of standing had not been asserted by the city. Traudt appealed, and the appellate court agreed with the trial court.

According to the appellate court, “an individual medical marijuana patient is not the proper party to challenge generally applicable zoning provisions because – whatever the contours of the right to engage in cooperate or collective medical marijuana activity (see e.g., § 11362.775) – the Legislature invested this right in cooperative and collective groups and entities, not individuals.” Therefore, Traudt had no standing to bring an action against the city, and she will just have to wait and see if the dispensary has any more success.

Cori M. Badgley is an attorney 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, or 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.