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County of Tulare v. Jeffrey Lee Nunes

April 29, 2013

COUNTY OF TULARE, PLAINTIFF AND RESPONDENT,
v.
JEFFREY LEE NUNES, JR. ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge. (Super. Ct. No. 10-239660)

The opinion of the court was delivered by: Wiseman, Acting P.J.

CERTIFIED FOR PUBLICATION

OPINION

By local zoning ordinance, the County of Tulare (the County) restricted the location of medical marijuana collectives and cooperatives (MMC's) to commercial and manufacturing zones. In violation of that ordinance, Jeffrey Nunes, Jr., and Foothill Growers Association, Inc. (Defendants), operated an MMC in an agricultural zone. The County brought an action for injunctive relief seeking to require Defendants to discontinue the nonconforming use of the property. The trial court granted the County's motion for summary judgment and issued an injunction prohibiting Defendants from operating an MMC at that location in violation of the zoning ordinance. Defendants appeal. They argue the zoning ordinance is invalid because it conflicts with the state's general law and that it is unconstitutional. Defendants are mistaken. The zoning ordinance is a reasonable exercise of the County's power to enact local legislation (Cal. Const., art. XI, § 7), and Defendants have failed to show any conflict with state law or constitutional principle. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

We begin with the County's zoning ordinance in question. Section 15.3*fn1 of Ordinance No. 352 (the County's main ordinance relating to zoning) limits the permissible locations of MMC's to certain zones in the County. Section 15.3 provides that MMC's "shall not be established or located in any zone in the County of Tulare, nor shall any building or land be used for such collectives or cooperatives, other than those located in a C-2 (General Commercial), C-3 (Service Commercial), M-1 (Light Manufacturing), or M-2 (Heavy Manufacturing) zone district." It also prohibits MMC's from being located within 1,000 feet of certain incompatible uses, such as schools, daycare facilities, places of religious worship, public parks, or other MMC's. In adopting Section 15.3, the County stated its findings and concerns regarding the potential adverse effects of MMC's on public health, safety and general welfare, including risks of increased crime, decreased property values, and deterioration of neighborhoods. The provision was clearly an effort by the County to mitigate these adverse effects.

The County learned that Defendants were operating an MMC and/or a medical marijuana dispensary on land in an unincorporated area of the County that was zoned AE-20 (Agricultural 20-Acre Minimum). Defendants were asked to refrain from this prohibited use of the property, but they did not do so.

On October 14, 2010, the County filed a complaint against Defendants (and others who are not part of this appeal) seeking a preliminary and permanent injunction for "(1) Violation of Tulare County Zoning Ordinance; and (2) Maintaining a Public Nuisance." (Capitalization omitted.) The complaint alleged:

"At all times relevant to ... this complaint, the subject property has been and currently is zoned AE-20 (Agricultural 20-Acre Minimum). [¶] ... Section 15.3 of the Zoning Ordinance requires [MMC's] to be established and located in C-2 (General Commercial), C-3 (Service Commercial), M-1 (Light Manufacturing), or M-2 (Heavy Manufacturing) zone districts. [¶] ... Defendants have not applied for a variance or a change of zone for the non-conforming use of the subject property. [¶] ... The current use of the subject property by defendants as set forth herein is unlawful and a violation of [S]section 15.3 of the Zoning Ordinance. [¶] ... [¶] ... Defendants' use of the subject property ... causes irreparable harm to property owners and residents of Tulare County in that such use of the property endangers the public health, safety and welfare, is contrary to the Zoning Ordinance, is destructive to the proper use of the land; and depreciates the value of real property in the County, particularly the real property of the defendants' neighbors."

Based on these facts, the complaint included a first cause of action for injunctive relief to prohibit the continued violation of the zoning ordinance, and a second cause of action to abate a public nuisance.*fn2 The complaint sought, in its prayer for relief, a declaration that Defendants were in violation of Section 15.3 of the zoning ordinance and an injunction ordering Defendants to "a. Close any and all business and other activities occurring at the subject property that are in violation of the Tulare County Zoning Ordinance; [¶] b. Cease and desist from using, conducting, allowing, permitting or granting permission to use the subject property for the purpose of possessing, selling, serving, storing, keeping, cultivating, giving away, and/or distributing cannabis or marijuana at the subject property unless and until defendants obtain a zoning variance permitting the use of the subject property in the [AE-20] zone."

In May of 2011, the County moved for summary judgment on its complaint. The motion for summary judgment was made on the ground that, as a matter of law, Defendants' use of the property was a violation of Section 15.3 of the zoning ordinance and also, based on this violation, a public nuisance. The County asked the trial court to grant its motion and to issue the requested injunctive relief against Defendants. The County's separate statement of undisputed facts in support of its motion included as "undisputed material facts" the timeline of the County's adoption of Section 15.3 of the zoning ordinance, Defendants' nonconforming usage of the property in violation of Section 15.3, and their failure to apply for a variance or change of zone regarding this nonconforming use of the property.

In their opposition to the motion for summary judgment, Defendants submitted a separate statement that conceded the County's asserted undisputed facts. Defendants, however, submitted three additional "facts." They asserted that the property was not used for the commercial sale of marijuana, nor for a medical marijuana "dispensary," but merely for the "collective cultivation of medical marijuana by members of the Foothill Growers Association, Inc." In opposing the motion, Defendants primarily argued (as they do on appeal) that the ordinance was unenforceable since it was allegedly contrary to the general law of the state or was unconstitutional.

On August 9, 2011, following the hearing on the motion for summary judgment, the trial court adopted its tentative ruling as the order of the court. That ruling was to grant the County's motion. The trial court explained that the "[a]uthorities submitted by [the County] ... show that [the County's] ordinances are constitutionally valid, and that there is no triable issue of fact or law ...." As a result, "[the County] [was] entitled to recover judgment against all Defendants" in "this injunctive relief action ...." The same day, the trial court issued its order granting the permanent injunction as requested in the County's complaint.

Defendants' timely notice of appeal followed.

DISCUSSION

I. Standard of review

On appeal following a trial court's grant of a summary judgment motion, we determine de novo whether an issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) In this appeal, Defendants do not contend that any material facts are in dispute; they raise only legal issues. In particular, Defendants challenge the validity of Section 15.3 of the zoning ordinance. Whether a local ordinance is unconstitutional or preempted by state statute is a question of law subject to our de novo review. (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 867.) Similarly, the interpretation and application of a ...


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