Court Holds That Dispensary’s Violation of County Marijuana Cultivation Ordinance Does Not Justify Seizure of Plants But Rejects Related Takings Claim – JD Supra

On August 5, 2020, in Granny Purps, Inc. v. County of Santa Cruz, __ Cal.App.5th __ (2020) (Case No. H045387), the Sixth District Court of Appeal addressed several novel property rights issues related to a law enforcement action in the County of Santa Cruz in which officers seized more than 2,000 marijuana plants from a medical marijuana dispensary for violating a local ordinance restricting marijuana cultivation to no more than 99 plants.

Under a long line of cases, California laws allowing access to medical marijuana do not limit the ability of a local government to make land use decisions.  A local government’s inherent police power gives it broad authority to determine the appropriate uses of land within its jurisdictional boundary.  (See, e.g., City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal.4th 729, 738 (2013)).  As a result, a local government can by zoning ordinance determine that a medical marijuana dispensary is not an allowed land use anywhere in the jurisdiction.  Similarly, a local legislative body can restrict or disallow entirely the cultivation of medical cannabis.  (See County of Tulare v. Nunes, 215 Cal.App.4th 1188, 1203 (2013)).  The Courts have held that those local land use regulations do not conflict with state laws permitting medical marijuana because of the narrow scope of the state laws, which merely created an exception to the criminal laws regulating the possession and use of marijuana.

Relying on these laws, the County asserted that the marijuana was illegally possessed in violation of the cultivation ordinance and that the dispensary had no right to its return.  The dispensary then sued the County, seeking an order requiring it to return the seized cannabis plants.  The dispensary also filed claims for monetary damages, alleging causes of action for conversion, trespass, and inverse condemnation.  The

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