(Sonoma County Super. Ct. No. SCV-246046)
The opinion of the court was delivered by: Jones, P.J.
CERTIFIED FOR PUBLICATION
In 2007, the County of Sonoma (the County) enacted Ordinance No. 5715 (the Ordinance) governing the zoning of medical cannabis dispensaries. One provision of the Ordinance required dispensaries to obtain permits to operate. In September 2009, real parties in interest Marvin Gardens Cooperative, Inc., and Terry Worden (collectively, the Cooperative) opened a medical cannabis dispensary in the town of Guerneville. The County thereafter issued a stop order to the Cooperative because it had not received the required permit for its Guerneville location. The Cooperative closed the dispensary and then sued the County challenging the validity of the Ordinance.
The trial court ultimately sustained the Cooperative's challenge, holding that the Ordinance violated the Cooperative's right to equal protection of the laws. In two separate orders, the trial court invalidated the Ordinance and issued a writ of mandate prohibiting the County from enforcing it. The County now seeks a writ of mandate compelling respondent superior court to vacate and set aside portions of those orders. Among other things, the County claims the Cooperative's action was untimely because it was not brought within 90 days of the Ordinance's enactment and is thus barred by Government Code section 65009, subdivision (c)(1)(B).*fn1 We agree with the County's limitations argument and will therefore direct the issuance of a peremptory writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
This case comes to us after a rather complex procedural history in the superior court. We will therefore set out the facts in some detail.
After passage of the Compassionate Use Act of 1996 (CUA; Health & Saf. Code, § 11362.5, added by voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996)), groups of medical marijuana users opened medical marijuana dispensaries in the County.*fn2 Until April 2007, however, the County had no specific zoning regulations that addressed such dispensaries. Because the County's zoning code is drafted in a permissive fashion,*fn3 dispensaries could not lawfully operate in the unincorporated areas of the County, since they were not a specifically allowed or permitted use.
In May 2005, the County's board of supervisors adopted an urgency ordinance imposing a temporary moratorium on the establishment of new medical marijuana dispensaries. (See § 65858, subd. (a).) In May of the following year, the board of supervisors extended the temporary moratorium until May 2007. The stated purpose of the temporary moratorium was to permit the County "time to study and determine whether to authorize medical marijuana dispensaries as an allowed use within the unincorporated area of the county, and if so, to determine the appropriate zoning districts for such establishments, to adopt regulatory standards and conditions to be imposed on such establishments, and to adopt permit or licensing procedures and background procedures for such establishments."
Following adoption of the temporary moratorium, the County's planning commission held a public hearing on a proposed zoning change to allow medical marijuana dispensaries. On September 21, 2006, the planning commission reviewed and revised a draft ordinance governing medical cannabis dispensaries. The commission approved a resolution recommending that the County's board of supervisors adopt the proposed ordinance to amend the County's zoning code.
On January 30, 2007, the County's board of supervisors held a public hearing on the Ordinance. The board heard comments from the public and voted to adopt the Ordinance subject to certain changes. The board enacted the revised Ordinance on March 20, 2007, and it became effective 30 days later. As relevant here, the Ordinance defined the term "medical cannabis dispensary," made such dispensaries a permitted use within certain zoning districts, and set location and operational standards for dispensaries within the unincorporated County. The Ordinance also added Sonoma County Code section 26-88-126(c), which states: "A Use Permit in compliance with Sections 26-92-070 and 26-92-080 shall be required for any Medical Cannabis Dispensary."
The Cooperative's Operations
In late 2003, the Cooperative opened as an informal collective in the County, and it formally organized as a cooperative corporation in 2006. For many years, the Cooperative operated a dispensary in Rio Nido. It applied for a use permit for the Rio Nido location on February 4, 2008. During the pendency of the application, the County allowed the Cooperative to conduct its business. The County made no decision on this application for over a year, and the Cooperative appears to have withdrawn it and requested a partial refund of its application fees.
In September 2009, the Cooperative relocated to a site in Guerneville. The area in which the Cooperative is now located is zoned for "limited commercial" uses, a designation that would allow operation of a medical cannabis dispensary upon receipt of a use permit. It is undisputed that the Cooperative has never applied for a use permit for its Guerneville location.
After it opened in Guerneville, the County received telephonic and written complaints from the public about the Cooperative. Field inspectors visited the new location, and on October 2, 2009, the County issued a "stop order" to the Cooperative. The stop order informed the Cooperative that a medical marijuana dispensary could not lawfully be operated at that location without a permit. The dispensary closed on or about October 7, 2009.
The Cooperative sued the County on October 13, 2009, and filed an amended pleading the next day. The amended pleading was styled as both a petition and a complaint (the Petition/Complaint). It asserted seven causes of action and included requests for a writ of administrative mandate under Code of Civil Procedure section 1094.5, a writ of mandate under Code of Civil Procedure section 1085, a temporary restraining order (TRO), a preliminary and permanent injunction, and declaratory relief. The Petition/Complaint claimed the County's actions violated the equal protection clause of the California Constitution and various statutory provisions. It requested that the trial court issue a writ or TRO and a preliminary injunction requiring the County to withdraw its stop order and "to allow COOPERATIVE to operate within State law but without requiring it to apply for a special use permit." It also asked for injunctive relief to enjoin the County's zoning ordinance to the extent that it unfairly discriminated against the Cooperative. In addition, the Petition/Complaint sought a declaration that the Ordinance's requirement that the Cooperative "obtain a special use permit before operating as a medical cannabis cooperative in the County is void on its face and as applied."
In the legal memorandum filed in support of the Petition/Complaint, the Cooperative framed the issues presented by its litigation. It explained that it was seeking to have the court resolve "whether a requirement that state-sanctioned medical cannabis cooperatives must have a special use permit violates the equal protection clause of the California Constitution." Citing Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432 (Cleburne), the Cooperative claimed the County had no rational basis for requiring medical cannabis cooperatives to obtain special use permits when it did not require drug stores to do so. It also argued that the Ordinance's permit requirement violated various state statutes because it discriminated against the members of the Cooperative on the basis of disability. Finally, the Cooperative asserted that the permit requirement and the stop order violated its members' constitutional right of assembly.
On the same day it filed its amended Petition/Complaint, the Cooperative also filed a notice and ex parte application seeking a writ of administrative mandamus or mandate, a TRO, a preliminary and permanent injunction, and declaratory relief. The notice informed the County the Cooperative would seek an order "restraining [the County] and [its] agents from enforcing that certain Stop Order, dated October 2, 2009, addressed to Plaintiff . . . ." The County opposed the application and argued the Cooperative was barred from raising a facial challenge to the Ordinance because it had not brought suit within the 90-day statute of limitations in section 65009, subdivision (c)(1)(B).*fn4 It also argued that the Cooperative had failed to exhaust its administrative remedies because it had not applied for a use permit or requested an administrative process to challenge the stop order.
At the hearing on the Cooperative's application, counsel for the Cooperative argued that section 65009 did not bar the action because the Cooperative brought suit less than two weeks after issuance of the stop order, which allegedly provided the first opportunity for the Cooperative to challenge the Ordinance. Under questioning from the court, however, counsel conceded that the Cooperative was limited to an as-applied challenge since the Ordinance had been enacted long before the Cooperative brought suit.*fn5
The County's counsel contended the Cooperative's challenge was facial in nature and thus barred because it had not been brought within 90 days of the Ordinance's enactment. She also argued the Cooperative could not bring an as-applied challenge because it had failed to exhaust either of its two available administrative remedies. The Cooperative could either have applied for a permit for its Guerneville location or followed the procedures in the Sonoma County Code for filing an appeal from the stop order and requesting an administrative hearing.
The December 7, 2009 Order
The trial court issued a written decision on December 7, 2009 (the December 7 Order), in which it made three key rulings. It first found the Cooperative was making both facial and as-applied challenges to the Ordinance. Relying on Travis v. County of Santa Cruz (2004) 33 Cal.4th 757 (Travis), it held the Cooperative's facial challenges to the Ordinance timely, because application of section 65009's 90-day statute of limitations "would be unfair to property owners who first experience the impact on their own property subsequent to the passage of 90 days." Second, the trial court concluded the Cooperative's failure to apply for a use permit for the Guerneville location "bars the prosecution of an 'as-applied' attack on the [O]rdinance." Third, the court sustained the Cooperative's facial challenge to the Ordinance because the County failed to "proffer evidence supporting [the County's] argument that there is a rational basis for the classification to further a legitimate government interest." The trial court reasoned that this ...