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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

Channel Law Group, LLP
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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF FRESNO – UNLIMITED CIVIL CASE

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

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Petitioners,

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vs.

Case No. 14CECG01316 MWS
UNLIMITED CIVIL JURISDICTION
PETITIONERS’ OPENING BRIEF IN
SUPPORT OF PETITION FOR WRIT
OF MANDAMUS UNDER THE
CALIFORNIA ENVIRONMENTAL
QUALITY ACT

CITY OF FRESNO, a municipal corporation
Respondent.

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

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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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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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I. INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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order to determine the significance of the reasonably foreseeable environmental impacts

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

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

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

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

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

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impacts. (Verified Petition, ¶¶ 1-2.)

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

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

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

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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.”
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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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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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

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fully complied with CEQA.

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II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
Since 1996, California has authorized the use of medical marijuana for medical purposes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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available where “it can be seen with certainty that there is no possibility that the activity in

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question may have a significant effect on the environment” (emphasis added). The burden of

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

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Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 116 (“[T]he agency must itself

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provide the support for its decision before the burden shifts to the challenger. Imposing the

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burden on the members of the public in the first instance to prove a possibility or substantial

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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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

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

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

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

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

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“showing required of a party challenging an exemption under [the commonsense exemption] is

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slight, since that exemption requires the agency to be certain that there is no possibility the

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project may cause significant environmental impacts. If legitimate questions can be raised about

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whether the project might have a significant impact and there is any dispute about the possibility

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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

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

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

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

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

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IV. DISCUSSION
CEQA was designed to encourage environmental protection by disclosing to decision-

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

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

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

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

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

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

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

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

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

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

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environment.
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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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

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

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

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

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

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and the City improperly relied on the common sense exemption.

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A. The Ordinance is a Project

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

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

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

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

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

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

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

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139 Cal.App.4th 1356, 1377.

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

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

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

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

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

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

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

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

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

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

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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,

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

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

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Guidelines § 15060(c).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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the Ordinance may have a significant effect on the environment.

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C. The Ordinance Will Result in Displaced Development Impacts

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

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

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

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cultivation ban, in part, on the environmental impacts associated with such activity, citing odors,
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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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

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

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bringing those same impacts to new locations outside the City. “[A] government agency may

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reasonably anticipate that its placing a ban on development in one area of a jurisdiction may have

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the consequence, notwithstanding existing zoning or land use planning, of displacing

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development to other areas . . . .” Muzzy Ranch Co. v. Solano County Airport Land Use Com.

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(2007) 41 Cal. 4th 372, 383. Moreover, “[t]hat further governmental decisions need to be made

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before a land use measure's actual environmental impacts can be determined with precision does

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not necessarily prevent the measure from qualifying as a project.” Id.

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[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.

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

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

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

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environmental impacts associated with indoor cultivation of medical marijuana, Petitioners

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

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

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

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

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

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

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

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//

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//

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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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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.)

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

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

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marijuana indoors, including in single-family residential zones, implicate significant
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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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may have a significant effect on the environment.

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

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

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

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

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

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

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

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

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

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

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

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

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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

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

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

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

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

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other jurisdictions.

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E. The City was Required to Conduct an Initial Study

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

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

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

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

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

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

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

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

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significant environmental impacts of a project.")

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

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

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

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

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

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individual impacts be?"

Common sense would argue that the

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V. CONCLUSION

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

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

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

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

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physical, administrative and/or legal actions toward enforcement of the Ordinance until
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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA

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

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

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

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

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Respectfully submitted,

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DATED: February 27, 2015

___________________________
Jamie T. Hall
Julian K. Quattlebaum
Attorneys for Petitioner

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PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS UNDER CEQA