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JAMIE T. HALL (Bar No. 240183) JULIAN K. QUATTLEBAUM (Bar No. 214378) CHANNEL LAW GROUP, LLP 8200 Wilshire Blvd., Suite 300 Beverly Hills, CA 90211 Telephone: (310) 982-1760 Facsimile: (323) 723-3960 Email: jamie.hall@channellawgroup.com Attorneys for Petitioners UNION OF MEDICAL MARIJUANA PATIENTS, INC. FRESNO CANNABIS ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF FRESNO – UNLIMITED CIVIL CASE

UNION OF MEDICAL MARIJUANA PATIENTS, INC., a California Corporation; FRESNO CANNABIS ASSOCIATION, an unincorporated association

Petitioners,

vs.

CITY OF FRESNO, a municipal corporation

Respondent.

Case No. 14CECG01316 MWS UNLIMITED CIVIL JURISDICTION PETITIONERS’ OPENING BRIEF IN

SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

Trial Date: May 15, 2015 Time: 9:00 am Dept.: 501 Judge: Hon. Mark W. Snauffer

Petitioners Union of Medical Marijuana Patients, Inc. and Fresno Cannabis Association

(“Petitioners”) respectfully submit the following Opening Brief in Support of Petition for Writ of

Mandamus under the California Environmental Quality Act (“Opening Brief”).

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I. INTRODUCTION

Petitioners bring a challenge under the California Environmental Quality Act (“CEQA”)

to the adoption of City of Fresno Ordinance No. 2014-20, (otherwise known as “Ordinance” or

“Project”). (Administrative Record 14-23.)1 On March 27, 2014, the Fresno City Council

adopted the Ordinance, which bans the cultivation of medical marijuana in all zoning districts in

the City of Fresno. (AR 20.) Respondent City of Fresno (“City” or “Respondent”) erroneously

concluded that the Ordinance was exempt from CEQA, citing the “common sense exemption”

and filed a Notice of Exemption (“NOE”) on April 3, 2014. (AR 2-3.)

This case presents a relatively simple question: Was the City required to consider the

environmental impacts of its efforts to ban all cultivation of medical marijuana in the City? In

other words, when presented with evidence from Petitioners that its prohibition would not

eliminate the demand for medical marijuana, but, on the contrary, would (1) require patients to

drive outside the City to obtain their medicine and (2) displace marijuana cultivation operations

outside the City, was Respondent required to analyze the extent of those resultant activities in

order to determine the significance of the reasonably foreseeable environmental impacts

associated the Ordinance? The answer, of course, is yes.

Petitioners filed a Verified Petition For Writ of Mandate to vacate and set aside the

Ordinance on or about May 7, 2014 alleging violation of CEQA. (Verified Petition, ¶

11.) Petitioners’ members consist of ordinary citizens, individual medical marijuana patients and

patient associations in the City of Fresno that would be affected by the Project’s environmental

impacts. (Verified Petition, ¶¶ 1-2.)

The Ordinance, a “project” under CEQA, is not exempt from CEQA, and the City’s

actions in adopting the Ordinance without following the steps required by CEQA and the CEQA

Guidelines2 constitute prejudicial abuse of discretion. Petitioners thus respectfully request that

1 Citations to the Administrative Record will follow the format of AR: Page Number. Thus, citation to page 5, will be AR 5. Further, the Administrative Record will be abbreviated as either “AR” or “Record.” 2 All further undesignated statutory references are to the Public Resources Code. The “CEQA Guidelines” referenced herein are codified at title 14, California Code of Regulations, § 15000 et seq.

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this Court issue a writ of mandate directing the City to set aside the Ordinance until the City has

fully complied with CEQA.

II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Since 1996, California has authorized the use of medical marijuana for medical purposes.

Health & Safety Code § 11362.5 et seq. (AR 26.) In 2012, the City adopted Ordinance No.

2012-13, which prohibited the outdoor cultivation of medical marijuana, but did not prohibit

either indoor cultivation or cultivation within an outdoor fully-enclosed and secured structure

approved by special permit. (AR 6-13.) The Mayor opted neither to veto nor approve the

Ordinance, making the effective date of approval April 8, 2014. (AR 23.) However, two years

later, the City adopted Ordinance No. 2014-20, which prohibits those forms of cultivation that

were previously exempted under Ordinance Bill No. 2012-13, resulting in a complete ban on all

cultivation of medical marijuana in the City. (AR 20.) At the time of the adoption of the

Ordinance, there was an estimated 10,117 medical marijuana patients in the City. (AR 178.)

III. STANDARD OF REVIEW

Under Pub. Res. Code § 21168.5, the standard of review for quasi-legislative proceedings

is whether the agency has abused its discretion. “Abuse of discretion” exists if Respondent fails

to proceed in a manner required by law, or if its decision was not supported by “substantial

evidence” in the record. Cal. Pub. Res. Code § 21168.5; Western States Petroleum Ass’n v.

Superior Court (1995) 9 Cal.4th 559, 566.

The “common sense exemption” under CEQA Guidelines § 15061, subdivision (b)(3), is

available 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” (emphasis added). The burden of

proof rests with the public agency to demonstrate that the common sense exemption applies.

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

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adverse environmental impact would frustrate CEQA’s fundamental purpose of ensuring that

governmental officials ‘make decisions with environmental consequences in mind.’”) Further,

“[W]hether a particular activity qualifies for the common sense exemption presents an issue of

fact, that the agency invoking the exemption has the burden of demonstrating it applies. Muzzy

Ranch Co. v. Solano County Airport Land Use Comm'n (2007) 41 Cal.4th 372, 386. 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.

Here, Petitioners raised legitimate questions regarding the significant environmental

impacts of the Ordinance. (AR 175-255, 269-276.) The City abused its discretion by ignoring

CEQA’s mandates, relying on the common sense exemption and thus evading its obligation to

conduct, in light of the possible environmental impacts raised by Petitioners, an Initial Study

pursuant to Pub. Res. Code § 15063 before adopting the Ordinance.

IV. DISCUSSION

CEQA was designed to encourage environmental protection by disclosing to decision-

makers and the public the potential environmental effects of proposed projects and alternatives

for reducing such impacts. Sections 21000-21002; CEQA Guidelines §§ l5002(a)(1),

15002(a)(4). As such, courts have repeatedly stated that informed decision-making and public

participation are fundamental purposes of the CEQA process. See Citizens of Goleta Valley v.

Bd. of Supervisors (1990) 52 Ca1.3d 553. Contrary to the mandates of CEQA, the City refused

to consider the potential that the environmental impacts brought to its attention might be

significant and failed to conduct the required environmental review of the Ordinance, namely an

Initial Study, by improperly relying on the common sense exemption. The City could not have

seen with certainty that those potential impacts would not be significant when it never even

inquired about the degree to which the obvious consequences of its actions might impact the

environment.

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The Ordinance constitutes a “project” under CEQA, the discretionary approval of which

triggers CEQA review absent an applicable exception. Specifically, the Ordinance has the

potential to result in either a direct physical change on the environment, or a reasonably

foreseeable indirect physical change in the environment. Pub. Res. Code § 21065; see also 14

Cal. Code Regs. § 15378. No exemption from CEQA’s required review applied to the project

and the City improperly relied on the common sense exemption.

A. The Ordinance is a Project

The Ordinance is a “project” subject to CEQA.3 14 Cal. Code Regs. §15002(d). A

“project” has two essential elements. First, it is an activity that may cause a direct (or reasonably

foreseeable indirect) physical environmental change. Second, it is an activity directly undertaken

by a public agency, an activity supported in whole or in part by a public agency, or an activity

involving the issuance by a public agency of some form of entitlement, permit, or other

authorization. Pub. Res. Code § 21065; 14 Cal. Code Regs. § 15378; San Lorenzo Valley

Community Advocates for Responsible Educ. v. San Lorenzo Valley Unified Sch. Dist. (2006)

139 Cal.App.4th 1356, 1377.

The term “project” as defined in Cal. Pub. Res. Code § 21065 has been broadly

interpreted by courts. For example, in a seminal case decided by the California Supreme Court,

the court stated that CEQA is “to be interpreted in such manner as to afford the fullest possible

protection to the environment within the reasonable scope of the statutory language.” Friends of

Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.

It is beyond doubt that the Ordinance will result in some direct physical changes in the

environment. Under the Ordinance, patients who cultivate their own medical marijuana in the

City will be forced to cease such activity. (AR 20.) There can be little doubt that patients who

currently cultivate their own medical marijuana will now be required to travel great distances

outside the City if they want to obtain their medicine. (AR 180, 274-275.) The materials in the

3 Notably, in approving the Ordinance, Respondent did not contest that the Ordinance constituted a “project” for purposes of CEQA. (AR 3, 17-18.)

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Record are sufficient evidence to establish this fact. Additional travel not only may, but will,

result in a direct change in the physical environment by increasing air pollutants. Id. No further

evidence is required to establish that the Ordinance is subject to CEQA under the CEQA

Guidelines § 15060(c).

B. The Ordinance Will Result in Increased Travel Causing Air Pollution

Similarly, the Ordinance’s travel implications removes the ability of the City to find with

certainty that there is no possibility that the Ordinance may have a significant effect on the

environment pursuant to CEQA Guidelines § 15061(b)(3). The Ordinance will require patients to

drive outside the City to visit a medical marijuana dispensary to obtain their medicine, which

will require travel and air pollution. (AR 180, 274.) It may be fairly reasoned that each of the

City’s estimated 10,117 patients will need to go to a medical marijuana dispensary

approximately once a week to get their medicine. (AR 178, 180.) However, the nearest storefront

medical marijuana dispensary from Fresno is 109 miles away in Bakersfield. (AR 180.)

Therefore, the City’s ban of all cultivation will result in a weekly increase of 2,205,506, or an

annual increase of 115,001,384 in miles traveled. (AR 180.) Based upon Federal Statistics, this

would result in approximately 48,869 metric tons per year in CO2 emissions alone. (AR 180.) It

would also be expected to generate 49,145 pounds of Reactive Organic Gasses, 36.86 tons of

Nitrous Oxide and 82.93 tons of PM10 per year. (AR 180.) Even if only half of the patient

population in the City opted to travel outside the City to obtain their medication, significant

environmental consequences would result from the Ordinance in the form of increased air

pollutants. However, the City failed to analyze any of the information brought to its attention

and could not, under the circumstances, have found with certainty that there is no possibility that

the Ordinance may have a significant effect on the environment.

C. The Ordinance Will Result in Displaced Development Impacts

To the extent that there may be environmental impacts associated with the indoor

cultivation of medical marijuana in the City, the ban will simply result in displacement of those

environmental impacts to other jurisdictions. The City itself premised its proposed indoor

cultivation ban, in part, on the environmental impacts associated with such activity, citing odors,

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air quality and nuisance concerns (AR 15, 26). Respondent cannot deny that the ban of indoor

cultivation may cause “a reasonably foreseeable indirect physical change in the environment” by

bringing those same impacts to new locations outside the City. “[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 . . . .” Muzzy Ranch Co. v. Solano County Airport Land Use Com.

(2007) 41 Cal. 4th 372, 383. Moreover, “[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.” Id.

[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.” Thus, contrary to the Commission's suggestion, nothing inherent in the notion of displaced development places such development, when it can reasonably be anticipated, categorically outside the concern of CEQA.

Id. (Internal citations omitted.) Petitioners raised the possibility of such displaced

development impacts, but Respondent chose not to consider them. (AR 181.)

Besides the fact that the City was already aware of and, in fact, readily admitted the

environmental impacts associated with indoor cultivation of medical marijuana, Petitioners

provided the City with ample additional evidence in an effort to convince the City to conduct a

meaningful environmental review under CEQA. Petitioners alerted the City to the fact that an

estimated 7,587 pounds of cannabis per year would need to be cultivated to meet patient needs in

the City. (AR 181.) Petitioners also cited a study entitled The Carbon Footprint of Indoor

Cannabis Production, published in The International Journal of the Political, Economic,

Planning, Environmental and Social Aspects Energy, detailing the environmental impacts of

indoor cannabis cultivation. (AR 195-204.) The following are highlights from the study: // // //

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• On average, approximately one third of cannabis production takes place under

indoor conditions. Approximately two-thirds of all cannabis is produced outdoors. (AR 181.)

• In California, 400,000 individuals are authorized to cultivate cannabis for personal

medical use, or sale for the same purpose to 2100 dispensaries. (AR 181.)

• One average kilogram of cannabis is associated with 4600 kg of carbon dioxide emissions (greenhouse-gas pollution) to the atmosphere, a very significant carbon footprint, or that of 3 million average U.S. cars when aggregated across all national production. (AR 181.)

• Indoor cannabis production utilizes highly energy intensive processes to control

environmental conditions during cultivation. (AR 181.)

• Indoor cultivation also results in elevated moisture levels that can cause extensive damage to buildings as well as electrical fires caused by wiring out of compliance with safety codes. (AR 181.)

• Indoor carbon dioxide levels are often raised to 4-times natural levels to boost plant

growth when cannabis is cultivated indoors.

• Indoor cannabis production results in electricity use equivalent to that of 2 million average U.S. homes. This corresponds to 1% of national electricity consumption. (AR 181.)

• In California, the top-producing state, indoor cultivation is responsible for about 3%

of all electricity use or 9% of household use. This corresponds to greenhouse-gas emissions equal to those from 1 million cars. (AR 181.)

• Accelerated electricity demand growth has been observed in areas reputed to have

extensive indoor Cannabis cultivation. For example, after the legalization of medical marijuana in 1996, Humboldt County experienced a 50% rise in per-capita residential electricity use compared to other parts of the state. (AR 181.)

• Shifting cultivation outdoors can nearly eliminate energy use for the cultivation

process. However, outdoor cultivation creates its own environmental impacts. These include deforestation; destruction of wetlands, runoff of soil, pesticides, insecticides, rodenticides and human waste; abandoned solid waste; and unpermitted impounding and withdrawals of surface water. These practices can compromise water quality, fisheries and other ecosystem services. However, outdoor cultivation can compromise security. (AR 181.)

It is reasonably foreseeable that the City’s ban of indoor cultivation of medical marijuana

within the City will result in an increase in cultivation outside the City. Cultivation of medical

marijuana indoors, including in single-family residential zones, implicate significant

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environmental concerns and require meaningful review under CEQA. (AR 182.) Obviously,

cultivation of medical marijuana to meet existing patients demand will need to take place outside

City limits as a result of the Ordinance (in fact, outside of the County due to the ban on

cultivation by the County of Fresno) and additional waste water will be created as a result of

these cultivation activities. (AR 182.) Moreover, additional waste plant material (a.k.a bio-waste)

will be created that must be disposed of properly. However, because these activities may take

place indoors, the proper means of disposal is unclear and the City has failed to mitigate the

foreseeable environmental impacts. (AR 182.) The City failed to analyze any of the reasonably

foreseeable impacts of the increased indoor cultivation of medical marijuana. The facts presented

by Petitioners demonstrate potential significant environmental effects in terms of (1) Greenhouse

Gas Emissions, (2) Hazards & Hazardous Materials and (3) Hydrology / Water Quality.

The City did not even attempt to rebut the evidence presented by Respondents regarding

the environmental impacts of indoor cultivation. The evidence presented by Petitioner removed

the ability of the City to find with certainty that there is no possibility that the activity in question

may have a significant effect on the environment.

D. The Ordinance’s “Positive Effects” Do Not Eliminiate Need for CEQA Review

The City wrongly concluded that the common sense exemption was applicable because

the Ordinance would have “positive effects on the environment, including helping to reduce

water consumption and to eliminate offensive odors.” (AR 3.) Activities intended to protect or

preserve the environment are not automatically immune from environmental review. The

Guidelines provide that categorical exemptions may not be used where there is a reasonable

possibility that the activity will have a significant effect on the environment (1) when “the

cumulative impact of successive projects of the same type in the same place, over time is

significant” (Guidelines, § 15300.2(b)), or (2) due to “unusual circumstances.” (Guidelines, §

15300.2(c).) See Dunn-Edwards Corp. Bay Area Air Quality Management Dist. (1992) 9

Cal.App.4th 644 (overturning amendments to air district regulations designed to reduce the

amount of volatile organic carbons in paint for failure to comply with CEQA); Building Code

Action v. Energy Resources Conservation & Dev. Com. (1980) 102 Cal.App.3d 577 (adoption of

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emergency conservation regulations establishing double-glazing standards for new residential

construction could have significant impact on air quality as result of increased glass production).

As outlined above, the Ordinance will not eliminate the demand for medical marijuana in the

City and will require patients to drive outside the City to obtain their medicine, which create both

traffic and air pollution. Moreover, the Ordinance simply displaces the impacts of cultivation to

other jurisdictions.

E. The City was Required to Conduct an Initial Study

Because the Ordinance is not exempt from CEQA, the City was required to conduct an

“Initial Study” to determine whether the Project might have a significant effect on the

environment. See CEQA Guidelines § 15070(a). While Respondent may argue that common

sense indicates that a single individual driving outside the City to obtain medical marijuana may

not be significant, CEQA clearly requires consideration of the cumulative effects of a project. It

is fundamental that a piecemeal approach to the analysis of significance is not consistent with

CEQA. Berkeley Keep Jets Over the Bay Committee v. Board of Port Comm'rs (2001) 91

Cal.App.4th 1344, 1358 ("There is no dispute that CEQA forbids "piecemeal" review of the

significant environmental impacts of a project.") Common sense would argue that the

cumulative impacts of actions by a significant segment of the population will (or at least

certainly may) themselves be significant. At the very least, the City had the obligation to inquire

about the extent of these potential cumulative impacts of the Ordinance. The common sense

exemption was not designed to allow an agency to refuse to ask the critical question raised by the

evidence presented to it, in this case, "How extensive will the occurrence of these foreseeable

individual impacts be?"

V. CONCLUSION

For the foregoing reasons, Petitioners respectfully request that this Court grant the

Petition for Writ of Mandate under CEQA, invalidate Respondent’s adoption of the Ordinance,

and require Respondent to conduct the legally required environmental review for the Project.

Moreover, Petitioners request that Respondent be enjoined and restrained from taking any

physical, administrative and/or legal actions toward enforcement of the Ordinance until

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compliance with CEQA is demonstrated. Based on the information submitted by Petitioners,

Respondent could not have found with certainty that there is no possibility that the Ordinance

may have a significant effect on the environment rendering the project exempt pursuant to

15061(b)(3) of the CEQA Guidelines.

Respectfully submitted,

DATED: February 27, 2015 ___________________________ Jamie T. Hall

Julian K. Quattlebaum Attorneys for Petitioner