Fresno cannabis cultivation lawsuit

 

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 9

CENTRAL DIVISION – UNLIMITED CIVIL CASE

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MICHAEL S. GREEN, an individual,

) Case No.: 12CECG01334 MWS

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and DOES 1 through 20, inclusive,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Plaintiffs/Petitioners,

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v.

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CITY OF FRESNO, a political subdivision of the State of California; JERRY P. DYER, in his official capacity as Chief of Police for the City of Fresno; MARK SCOTT, in his official capacity as Director of Development and Resource Management for the City of Fresno; and DOES 1 through 20, inclusive, Defendants/Respondents

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PLAINTIFF'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION

[C.C.P. Secs. 526, 527, 1060, 1085(a), 1086, 1103(a); Public Resources Code Secs. 21080(d), 21151, 21167, 21168.5]

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28 - 1 PLAINTIFF/PETITIONER'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF

 

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Plaintiff/Petitioner Michael S. Green (hereinafter referred to as “Plaintiff,” “Petitioner” or

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“Plaintiff/Petitioner”) alleges as follows:

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I.

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PARTIES

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1. 2.

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named herein as Does 1 through 20, inclusive, and therefore brings action with by such fictitious

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Plaint Plaintif iff/Pe f/Petit tition ioner er is, is, and at all all times times here herein in menti mentione oned d was, a resi resident dent of the the City City of Fresn Fresno. o. Plaintiff / Petitioner is ignorant of the true names and capacities of Plaintiffs /Petitioners

names. Plaintiff /Petitioner will amend this complaint to allege their true names and an d capacities when ascertained. 3.

Defendant/Respondent City of Fresno is a political subdivision of the State of California and

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is sued as a municipal corporation organized and existing under a municipal ch charter. arter. 11

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Defendant/Respondent Jerry P. Dyer is sued in his official capacity as the Chief of Police of

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the City of Fresno. Plaintiff is informed and believes Defendant /Respondent Dyer has authority

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over the enforcement of all state and City laws within the City at all times mentioned herein.

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5.

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Development and Resource Management for Defendant City of Fresno. Plaintiff /Petitioner is

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informed and believes Defendant/Respondent Scott has authority over the development and

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Defendant/Respondent Mark Scott is sued in his official capacity as interim Director of

enforcement of land-use and zoning regulations within the City at all times mentioned herein. 6.

Does 1 through through 20, incl inclusi usive, ve, are are sued sued herei herein n under under ficti fictiti tious ous name names. s. Their Their ttrue rue name namess and

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capacities are unknown to Plaintiff /Petitioner at this time. When their true names and capacities are a re 19

ascertained, Plaintiff /Petitioner will amend this complaint by inserting their true names and

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capacities herein. Plaintiff /Petitioner is informed and believes and thereon alleges that each of the 21

fictitiously named defendants is responsible in some manner for the occurrences herein alleged,

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and that Plaintiff’s/Petitioner’s damages as alleged herein were proximately caused by such

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Defendants/Respondents.

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7.

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At all all tim times es he here rein in ment mentio ione ned, d, Defe Defend ndan ants ts/Respondents, including Doe Defendants/

Respondents, and each of them, were the agents, servants, and employees of each of the other Defendants/Respondents and in doing the things alleged herein, were acting within the course and scope of said agency, servitude or employment, and with the permission and consent of each of the

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other Defendants/Respondents. 28 - 2 PLAINTIFF/PETITIONER'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF

 

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INTRODUCTION

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In 1996, 1996, Calif Californ ornia ia voters voters pass passed ed the the Compass Compassion ionate ate Use Use Act Act (refer (referred red to to herein hereinaft after er as

“CUA”), which decriminalized the cultivation and use of marijuana by seriously ill individuals with a doctor’s recommendation. The Act's stated purpose was to ensure that seriously ill

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Californians have the right to obtain and use marijuana for medical purposes and to ““ensure ensure that  patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not no t subject to criminal prosecution or sanction.” (Health and

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Safety Code Secs. 11362.5(b)(1)(A)-(B).)

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In 2003, 2003, the the Calif Californ ornia ia Legis Legislat lature ure enact enacted ed the Medi Medical cal Mari Marijua juana na Progr Program am Act Act (refer (referred red to to

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hereinafter as “MMPA”). The express intent was to “(1) Clarify the scope of the application of the

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[CUA] and facilitate the prompt identification of qualified patients and their primary caregivers in

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order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, section 1, subd. (b)(1)-(3).)

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cultivation of medical cannabis in the City, was heard and duly enacted by the Fresno City Council

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on or about December 15, 2011. (A true and correct copy of the text of Ordinance 2011-41 and

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City staff report is attached hereto as Exhibit “A.”)

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Interim Interim urgency urgency Ordinance Ordinance 2011-41, 2011-41, which placed an immedi immediate ate ban on on the the outdoor outdoor

The ban ban was extended extended for 10 months, months, 15 days, days, through through Ordina Ordinance nce 2012-3, 2012-3, which was duly duly

enacted by the Council on or about January 26, 2012. (A true and correct copy of the Fresno City Council minutes of December 15, 2011, and January 26, 2012, the text of Ordinance 2012-3 is

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attached hereto as Exhibit “B.”) 23 24

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Ordinance Ordinance 2012-13, 2012-13, which establish established ed a perman permanent ent ban ban on the ou outdoor tdoor cultivatio cultivation n of

cannabis in the City, was heard and duly enacted by the Fresno City Council on or about June 28,

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2012. The new law took effect on or about August 3, 2012. (A true and correct copy of the text of

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Ordinance 2012-13 is attached hereto as Exhibit “C.”)

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holds a statutory right to possess, use and cultivate medical cannabis ca nnabis in the matters set forth

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herein.

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Pursuant Pursuant to to Health Health and Safety Safety Code Secs. 11362.5(d) 11362.5(d) and and 11362.7(f 11362.7(f), ), Plaintiff  Plaintiff /Petitioner

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Plaintiff / Petitioner currently resides in the City and is currently growing and cultivating

outdoors at least one marijuana plant for his personal and recommended medical needs. If this 5 6 7

ordinance is enforced, Plaintiff /Petitioner will lose money invested in the planting and cultivation  process, as well as any and all medicine which may have been harvested from the plants if grown to maturity outdoors.

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and/or prosecution of a misdemeanor civil injunction by Defendants /Respondents for outdoor

Pursu Pursuan antt to Ordi Ordina nanc ncee 20122012-13, 13, Pla Plain inti tiff  ff /Petitioner is subject to nuisance abatement, fine

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cultivation of medical cannabis. Plaintiff /Petitioner is informed and believes that other medical

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cannabis patients in the City have been subjected to summary abatement and other enforcement

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measures. Implementation of this ordinance has had, and will continue to have, a severe impact on Plaintiff’s/Petitioner’s statutory rights and vested property rights, which causes Plaintiff /Petitioner immediate and irreparable harm.

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III.

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JURISDICTION AND VENUE

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VI, Section 10, because this case is a cause not given by statute to other trial courts.

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Fresno County.

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This court court has jurisdict jurisdiction ion over this action action pursuan pursuantt to the the Californi Californiaa Constitut Constitution, ion, Articl Articlee

Venue Venue iiss prop proper er in this this ccour ourtt beca because use Defenda Defendants nts/Respondents reside in or are situated in

The court court has jurisdicti jurisdiction on over this action action under Code of Civil Procedure Procedure Secs. Secs. 526, 527,

1060, 1085, 1086 and 1103; and Public Resources Code Secs. 21080(d), 21151 and 21167. 22

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// - 4 PLAINTIFF/PETITIONER'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF

 

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IV.

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FACTS APPLICABLE TO ALL CAUSES OF ACTION

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Plaintiff / Petitioner is a qualified patient as defined in Health and Safety Code Sec.

11362.7(f) and 11362.5(d). 20.

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Plaintiff’s/Petitioner’s mother is a primary caregiver as defined in Health and an d Safety Code

Sec. 11362.7(d) and has h as permitted the outdoor cultivation of medical cannabis by Plaintiff / Petitioner at her home in a City residential zoning district at all times mentioned herein. 21.

Plaintiff / Petitioner holds a personal property right in the matters set forth herein in that all

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times herein he possessed at least one medical cannabis c annabis plant growing outdoors in the City and has

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expended substantial time and money obtaining equipment and supplies for outdoor cultivation.

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knowledge and financial resources required to install and operate an indoor growing system safely

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Plaintiff / Petitioner lacks suitable building space, high-intensity lighting equipment,

and affordably. Plaintiff /Petitioner further lacks access to medical cannabis collective cultivation sites, with dispensaries and cooperatives prohibited in the City pursuant to Ordinance 2007-42. 23. Fresno Municipal Municipal Code Code Sec. Sec. 12-317-C12-317-C-1 1 authorize authorizess the continuatio continuation n of non-conform non-conforming ing land uses for five years after passage of a zoning ordinance restricting such uses, where such use is maintained in connection with a conforming co nforming building.

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commence an action to review, set aside and void a decision to adopt or amend a zoning ordinance

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within 90 days after the legislative body's decision. This action is timely filed.

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Governm Government ent Code Sec. Sec. 65009, 65009, subdivis subdivision ion (c)(1) (c)(1)(B) (B),, requires requires Plaint Plaintif iff  f /Petitioner to

California California Code Code of Regulations Regulations Sec. 15062(d) 15062(d) provides provides that that challenges challenges to the the approval approval of a

 project must be filed within 180 days. This action is timely timely filed.

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First Amended Complaint: The original first cause of action is deleted de leted in its entirety ((Original Original 22

Complaint , 5:1-22). The amended first cause of action action is drawn from the original second cause of 23 24

action (Original (Original Complaint , 5:24-7:7). The original third cause of action is deleted in its entirety (Original Complaint , 7:9-8:17). The amended second cause of action raises a new challenge as

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authorized by relevant portions of the California Environmental Quality Act.

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Second Amended Petition and Complaint:  The first cause of action has been amended to correct

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a Fresno Municipal Code reference and also to remove references to criminal and/or misdemeanor

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enforcement. The second cause of action has been amended to seek a writ of traditional mandamus

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 pursuant to relevant CEQA statutes; accordingly, new prayers of relief have also been added.

Third Amended Petition and Complaint: The first cause of action has not been amended. The second cause of action has been amended to add allegations intended to clarify the relevant CEQA statutes and procedures, in particular those that pertain to statutes of limitations and to the proper filing, posting and certification of notices of exemption.

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FIRST CAUSE OF ACTION For Declaratory Relief; Ordinance 2012-13 is pre-empted by state law and therefore void

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Plaintiff / Petitioner incorporates by reference the allegations set forth in the previous

 paragraphs.

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Fresno City Council. The ordinance declared the outdoor cultivation of medical marijuana to be a

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nuisance per nuisance  per se, se, pursuant to Fresno Municipal Code Sec. 10-605(l), and each violation “also shall

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On or about December December 15, 2011, interim interim urgency urgency Ordinance Ordinance 2011-41 2011-41 was enacted enacted by the the

 be deemed a misdemeanor.” On or about January 26, 2012, Ordinance 2012-3 was enacted, extending the City's outdoor cultivation ban for 10 months, 15 days. 28.

On or about June 28, 2012, 2012, Ordinanc Ordinancee 2012-13 2012-13 was enacted enacted by the Fr Fresno esno City Council. Council. The The

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ordinance declares the outdoor cultivation of marijuana to be a nuisance per nuisance per se, se, pursuant to Fresno 20

Municipal Code Sec. 10-605(l), and each violation “also shall be deemed a misdemeanor.” Fresno 21

Municipal Code Sec. 12-2103, with sanctions and “immediate abatement” authorized in FMC Sec.

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12-2104. The ordinance took effect on or about August 3, 2012.

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The MMPA MMPA added added Health Health and Safety Safety Code Sec. 11362.77 11362.775, 5, which which provides provides that qualified qualified

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 patients, persons with valid identification cards, and the designated primary caregivers caregivers of qualified

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 patients, who associate within the State of California California in order to collectively or cooperatively

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cultivate  marijuana for medical purposes, shall not solely on the basis of that fact be subject to cultivate criminal sanctions  sanctions for the possession of marijuana [11357], cultivation of marijuana [11358],  possession for sale [11360], transportation transportation [11360], maintaining a place for sale, giving away or - 6 PLAINTIFF/PETITIONER'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF

 

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use of marijuana [11366], making premises available for the manufacture, storage or distribution

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of controlled substances [11366.5]  ,, or  the  the abatement of a nuisance created by premises  premises used for

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manufacture, storage or distribution of controlled substance [11570].

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Health Health and Safety Safety Code Sec. 11362.775 11362.775 exempts exempts qualified qualified patients patients and and their their primar primary y

caregivers not only from criminal prosecution for authorized collective or cooperative activities, 5 6 7 8 9

 but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation cu ltivation sites do not constitute a nuisance. 31.

In equal equal manner, manner, Health Health and Safety Safety Code Sec. 11362.76 11362.765 5 exempts exempts indivi individual dual qualif qualified ied

 patients and their primary caregivers not only from criminal criminal prosecution for authorized possession and cultivation of medical cannabis, but also from nuisance abatement proceedings. Thus, the

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Legislature has determined the activities it authorized for qualified patients and their primary

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caregivers, including the cultivation of medical cannabis, do not constitute a nuisance.

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Under Ordinance Ordinance 2012-13, 2012-13, the the outdoor outdoor cultivat cultivation ion of medical medical cannabis cannabis always always consti constitute tutess a

nuisance, even though the Legislature has concluded otherwise in the MMPA. Because the City's  ban directly contradicts state law, it is pre-empted. pre-empted. Article 11, Section 7 of the California Constitution and Government Code Sec. 37100 prohibit the enactment and enforcement of municipal laws that conflict with the general laws of the State.

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33.

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Defendants/Respondents concerning their respective rights and duties in that Plaintiff /Petitioner

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contends he is authorized by the Compassionate Use Act and the Medical Marijuana Program Act

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to possess and grow medical cannabis without being b eing subject to criminal injunction, fine, abatement

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or civil sanctions pursuant to Ordinance 2012-13; 2012 -13; whereas Defendants/ Respondents dispute these

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An actual actual cont controv rovers ersy y has aris arisen en and and now exist existss betwee between n Plainti Plaintiff  ff /Petitioner and

contentions and contend that Ordinance 2012-13 is consistent with all state laws and imposes sanctions for outdoor cultivation of medical cannabis by Plaintiff/Petitioner and others similarly

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situated in a manner that is not prohibited by the CUA and/or MMPA. 23 24

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Plaintiff/ Plaintiff/Petit Petitioner ioner desires desires a judicial judicial determi determination nation of of his rights rights and and duties, duties, and a declar declaration ation

as to whether Ordinance 2012-13 is consistent with the CUA/MMPA and all applicable state laws,

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and, if so, the enforcement methods that City shall use to effect compliance.

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35.

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order that Plaintiff/Petitioner may ascertain his rights and duties under Ordinance 2012-13, rather

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than expose himself to possible criminal and/or civil sanctions for non-compliance. non-compliance .

A judicial judicial declara declaration tion is is necessary necessary and appropri appropriate ate at this time time under under the the circumst circumstances ances in in

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SECOND CAUSE OF ACTION

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Defendants/Respondents failed to follow state law when Ordinance 2012-13 was enacted, and

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further violated CEQA by making a decision that was unsupported by substantial evidence; for writ of traditional mandamus, declaratory relief and/or injunctive relief 

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36.

Plaintiff Plaintiff/Peti /Petitioner tioner incorporat incorporates es by refere reference nce the the allegatio allegations ns set forth forth in the the previous previous

 paragraphs. 37.

“Enactment “Enactment and and amendment amendment of zoning ordinances” ordinances” is is a “project “project”” under the express express terms terms of

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the California Environmental Quality Act (hereinafter “CEQA”). (Calif. Code of Regulations Sec.

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15378(a)(1), Public Resources Code Sec. 21065(a) ). Accordingly, Ordinance 2012-13 is a

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 project under CEQA. 38.

Defendan Defendants/ ts/Resp Responde ondents nts did did not conduc conductt an “initial “initial study” study” of Ordinanc Ordinancee 2012-13, 2012-13, as

that term is defined and applied in California Code of Regulations Secs. 15063 and 15365, at any time mentioned herein. 39. In passing passing Ordinance Ordinance 2012-13, 2012-13, the Fresno Fresno City Council Council made made findings findings in purported purported

compliance with CEQA: “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, the activity is not subject to

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CEQA.” (CCR Sec. 15061(b)(3))

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40.

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Possibility of Significant Effect; Environmental Assessment No. EA-11-01” for purposes of

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review by the Fresno Planning Commission and/or the Fresno City Council, prior to the

Defendants/Respondents prepared a document titled “Environmental Finding of No

approval of Ordinance 2012-13 and the findings made by Defendants/Respondents therein. 20 21

(A true and correct copy of the June 28, 2012, staff report on Ordinance 2012-13, including Environmental Assessment No. EA-11-01, is attached hereto as Exhibit “D.”)

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The envir environme onmental ntal findi findings ngs in Ordina Ordinance nce 2012-1 2012-13, 3, which which are bas based ed upon upon the finding findingss

in Environmental Assessment No. EA-11-01, are codified in Article 21 of Chapter 12 of the Fresno Municipal Code, which reads in relevant part: “The Council further finds and

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declares that this Ordinance is found to be categorically exempt from environmental review

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pursuant to the California Environmental Quality Act (CEQA), Guidelines Section 15061(b)

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(3).” (Fresno Municipal Code Sec. 12-1201.)

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Pursuan Pursuantt to Public Public Resource Resourcess Code Sec. Sec. 21168.5, 21168.5, Defenda Defendants/ nts/Resp Respond ondents ents vi violat olated ed

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CEQA by adopting findings that aren't based on substantial evidence in the administrative

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record, including, but not limited to, the following: a. The preliminary review of Ordinance 2012-13 by Defendants/Respondents wrongly

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determined no initial study is needed and that the ordinance is CEQA-exempt. No 5

substantial evidence appears in the administrative record to support that decision.

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b. The claims and findings in Environmental Assessment EA-11-01 are speculative,

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conclusory and unsupported by substantial evidence.

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c. In regard to the possible environmental impacts of Ordinance 2012-13, and the

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CEQA analysis thereof, the City's staff reports and/or other testimony provided by

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City officials are speculative, conclusory and unsupported by substantial evidence.

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d. On its face, the plain language of EA-11-01 declares that Ordinance 2012-13 is not exempt from CEQA review. On page 2, it concludes, “Finally, “Finally, there is no substantial

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evidence in the record that any of the exceptions set forth in CEQA Guidelines, Section 15002(k)(1), Section 15378(a) and Section 15061(b)(3) apply to a prohibition on

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marijuana cultivation. Therefore, Staff has determined that a 'no possibility of 15

significant effect' [sic] is appropriate for the proposed project.” (emphasis added)

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43.

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law, pursuant to Public Resources Code Sec. 21168.5.

Defendan Defendants/ ts/Resp Responde ondents nts violat violated ed CEQA CEQA by failing failing to procee proceed d in a manner manner require required d by

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a. City violated state law by adopting urgency Ordinances 2011-41 and 2012-3, in

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purported compliance with Government Code Sec. 65858, when no use permits or other entitlements requiring City approval were pending. It is only the pendency of

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such approvals that gives the City authority to invoke Government Code Sec. 65858. b. City violated state law by deciding, in full reliance upon invalid Ordinance 2012-3

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and without any substantial evidence, that the purported legal and/or environmental 23 24

conditions established by invalid Ordinance 2012-3 created a new “status quo” or baseline for purposes of analyzing the potential impacts of Ordinance 2012-13.

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c. Ordinance 2012-13 prohibits outdoor cannabis cultivation in every zoning district

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in the City. Defendants/Respondents violated state law by failing to provide legally

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adequate notice about Ordinance 2012-13 to all affected property owners in the City,

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d. Defendants/Respondents violated state law by failing to solicit comments about

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Ordinance 2012-13 from other local agencies, pursuant to Government Code Sec.

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65091(a)(3) and California Code of Regulations Secs. 15073 and 15086-15088, including, but not limited to, the Fresno Fire Department, Fresno Department of

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Public Utilities, County of Fresno, City of Clovis, City of Sanger, City of Selma, 5

Central Valley Regional Water Quality Control Board and the San Joaquin Valley

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Air Pollution Control District.

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e. Defendants/Respondents enacted Ordinance 2012-13 in violation of Fresno

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Municipal Code Sec. 12-317-C-1 by failing to provide for, allow or permit the

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continuation of non-conforming land uses, including, but not limited to, outdoor

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cannabis cultivation, for five years after the effective date of the ordinance, where

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such use is maintained in connection with a conforming building.

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The finding findingss adopted adopted by the the Fresno Fresno City Council Council for for Ordinanc Ordinancee 2012-13 2012-13 declare declare The staff

report for Ordinance 2012-13, which includes Environmental Assessment EA-11-01, makes purported claims that there is no possibility of environmental impact because lawful outdoor

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cultivation in the City was already prohibited pursuant tto o interim Ordinance 2012-3. (Exhibit D, pp. 2, 7) However, interim Ordinances 2011-41 and 2012-3 201 2-3 were categorically exempt from

CEQA's review process, whereas Ordinance 2012-13 is categorically subject to CEQA review as a  permanent change to the City's zoning law.

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45.

Substantial Substantial evidence evidence of the potential potential environment environmental al harms harms of indoor marijuana marijuana cultiv cultivation ation

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was provided by Plaintiff/Petitioner to the Fresno Planning Commission at or before its meeting on or about May 16, 2012. (A true and correct copy of the minutes of the Planning Commission

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meeting is attached as Exhibit “D.”) 46.

On or about about June June 8, 2013, 2013, Defend Defendants ants/Res /Respon pondent dentss caused caused to be p publi ublishe shed d in the

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Fresno Bee, a newspaper of general circulation in Fresno County, a notice of hearing for the 23 24

first reading of Ordinance 2012-13, pursuant to Fresno Municipal Code Sec. 12-402-B. 47.

The City's City's publi publicati cation on of the the notice notice of hearin hearing g in the Fresno Fresno Bee, Bee, and and the text text con contain tained ed

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in the notice of hearing itself, do not represent or constitute a facially valid and properly

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posted “notice of determination,” as that term is defined pursuant to Public Resources Code

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Sec. 21152(b) and California Code of Regulations Sec. 15373.

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48.

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in the notice of hearing itself, do not represent or constitute a valid “notice of exemption,” as

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that term is defined pursuant to Public Resources Code Secs. 21152(b) and 21167(d) and

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California Code of Regulations Secs. 15061(d), 15062, 15112(c)(2) and 15374.

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The City's City's publi publicati cation on of the the notice notice of hearin hearing g in the Fresno Fresno Bee, Bee, and and the text text con contain tained ed

On or or about about June June 19, 19, 2 2012, 012, Plaint Plaintiff iff/Pe /Petit tition ioner  er  submitted similar substantial evidence to the

City Clerk's office for distribution to members of the Fresno City Council. This evidence also was attached to the June 28, 2012 staff report on Ordinance 2012-13. (A true and correct copy of the staff report is attached hereto as Exhibit “E.” Exhibit “D.”)

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50.

On or about about June June 28, 2012, 2012, the the Fresno Fresno City City Counci Councill voted voted to enact enact Or Ordina dinance nce 2012-1 2012-13. 3.

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51.

On or about about July July 3, 2012, 2012, Mayor Mayor Ashley Ashley Swear Sweareng engin in sig signed ned Ordin Ordinance ance 2012 2012-13 -13 in into to

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law under the powers granted to the mayor by the Fresno City Charter Secs. 400 and 605

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and/or Fresno Municipal Code Sec. 2-104(b).

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52.

The recei receipt pt by the city city clerk clerk of Ordin Ordinance ance 20122012-13, 13, after after signing signing b by y the mayor, mayor,

constitutes the final act of “approval” of Ordinance 2012-13 (Exhibit C), as defined in California Code of Regulations Sec. 15352(a): “'Approval' means the decision by a public

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agency which commits the agency to a definite course of action in regard to a project 15

intended to be carried out by any person. The exact date of approval of any project is a

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matter determined by each public agency according to its rules, regulations, and ordinances.

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Legislative action in regard to a project often constitutes approval.”

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53.

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the resolution or ordinance, the date of receipt by the City Clerk from the Mayor shall be

Fresno Fresno Munic Municipal ipal Code Code Sec. Sec. 2-104(b) 2-104(b) state states, s, in releva relevant nt part, part, “If th thee Mayo Mayorr approve approvess

deemed the date of approval and the date of final passage.” 20 21

54.

After After being being signed signed by the mayor, mayor, Ordina Ordinance nce 2012-13 2012-13 was was receive received d and file-sta file-stamped mped b by y

the Fresno city clerk on or about July 5, 2012, making that the effective date of approval and 22

final passage under the City's charter and ordinances and also, by extension, the date of 23 24

approval pursuant to California Code of Regulations Sec. 15352(a). 55.

The enac enactmen tmentt and appro approval val of of Ordina Ordinance nce 2012-1 2012-13 3 was a legislat legislative ive ac actt by

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Defendant/Respondent City of Fresno. The public hearings held by the City prior to its

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passage were neither administrative nor quasi-judicial hearings.

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// - 11 PLAINTIFF/PETITIONER'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF

 

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56.  After  the  the approval of Ordinance 2012-13, Defendants/Respondents had the option to

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cause a notice of exemption to be filed with the Fresno County clerk and properly posted for

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30 days, pursuant to Public Resources Code Sec. 21167(d) and California Code of

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Regulations Secs. 15061(d) and 15062(b). 57.

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The City's City's June 8 notice notice of hear hearing, ing, publish published ed 20 d days ays before before the  the approval of the

ordinance, is not a valid notice of exemption. 58.

There There is no eviden evidence ce that that the City City caused caused a notice notice of of exe exempti mption on to be filed filed with, with, or

properly posted by, the Fresno County clerk after  Ordinance  Ordinance 2012-13 was approved.

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59.

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approval of Ordinance 2012-13, pursuant to California Code of Regulations Secs. 15062(d)

The statu statute te of limita limitation tionss to raise raise a CEQA CEQA challen challenge ge in this this case is is 180 days days after after

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and 15112(c)(5)(A) and Public Resources Code Sec. 21167(d).

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60.

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The Fresn Fresno o city clerk clerk's 's receipt receipt of of the signed signed and and file-stam file-stamped ped ordin ordinanc ancee on or ab about out

July 5, 2012, constitutes the final approval of the ordinance, pursuant to California Code of Regulations Sec. 15352(a), Fresno City Charter Secs. 400 and 605 and/or Fresno Municipal Code Sec. 2-104(b). Under the 180-day time limit, the last day to file a CEQA

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challenge in this was on or about January 1, 2013. 15

61.

Plainti Plaintiff/P ff/Petit etition ioner er raised raised his CEQA CEQA cause cause of action action against against Ordin Ordinance ance 2012-1 2012-13 3 on or

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about October 19, 2012, well before the 180-day time limit ended. This action is timely filed.

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62.

Plaint Plaintif iff/P f/Peti etitio tioner ner has exhaust exhausted ed all adminis administra trativ tivee remedies remedies..

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63.

The City City has offered offered no substa substantial ntial evidence evidence that that Ordinance Ordinance 2012-13 2012-13 has has no possibilit possibility y of

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creating an environmental impact, making its passage by Defendants/Respondents a prejudicial abuse of discretion pursuant to Public Resources Code Sec. 21168.5.

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64.

An actual actual controv controversy ersy has arisen arisen and now now exists exists between between Plaintif Plaintiff/Pet f/Petition itioner er and

Defendants/Respondents concerning their respective rights and duties in that Plaintiff/Petitioner Plaintiff/Petitioner 22

contends the City Council made purported environmental findings for Ordinance 2012-13 that do 23 24

not meet the requirements for an exemption pursuant to CCR Sec. 1506 15061(b)(3); 1(b)(3); and further contends that an initial study is required pursuant to CCR Secs. 15002(k)(2) and 15063(a); and

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further contends that Defendants/Respondents are required to prepare an environmental impact

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report pursuant to Public Resources Code Secs. 21080(d) and 21151 and California Code of

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Regulations Sec. 15063(b) because Plaintiff/Petitioner has  provided provided substantial evidence of

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potentially  significant environmental impacts that meets the “fair argument” standard; whereas - 12 PLAINTIFF/PETITIONER'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF

 

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Defendants/Respondents dispute these contentions and contend Ordinance 2012-13 was enacted in

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compliance with CEQA, with no initial study or environmental impact report required.  

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65.

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A judicial judicial declara declaration tion is is necessary necessary and appropri appropriate ate at this time time under under the the circumst circumstances ances in in

order that Plaintiff/Petitioner may ascertain his rights and duties under Ordinance 2012-13, 2 012-13, rather than expose himself to possible criminal and/or civil sanctions for non-compliance.

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RELIEF REQUESTED

66.

Wherefore, Wherefore, Plaintiff/P Plaintiff/Petit etitioner, ioner, on behalf behalf of himse himself lf and others others similar similarly ly situated, situated, prays

 judgment as follows:

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67.

For a declaration declaration that Ordina Ordinance nce 2012-13 2012-13 is unlawful, unlawful, void void and of no force and effect; effect; and

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68.

For issuan issuance ce of a temporary temporary restrainin restraining g order, order, prelim preliminary inary injunction, injunction, and permanen permanentt

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injunction restraining and enjoining Defendants/Respondents from enforcing, or threatening to

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enforce, Ordinance 2012-13 by any means, whether criminal, civil or administrative; and 69.

For a perem perempto ptory ry and/or and/or alte alterna rnativ tivee writ writ of manda mandate te direc directin ting: g: (a) That the decision(s) by Defendants/Respondents to approve Ordinance 2012-13, and

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any findings, assessments, resolutions and/or ordinances with respect thereto, is (are) null

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and void and of no force and effect, such decision(s) having resulted from prejudicial abuse

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of discretion and/or violation of law by Defendants/Respondents. De fendants/Respondents.

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(b) Defendants/Respondents to prepare, circulate, and consider a legally adequate

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environmental impact report, and to otherwise comply with the California Environmental

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Quality Act in any subsequent action to regulate medical cannabis. (c) That until such time as Defendants/Respondents comply with CEQA with respect to

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Ordinance 2012-13, such parties be enjoined and restrained from taking any physical,

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administrative and/or legal actions toward enforcement of said ordinance. 22 23

70.

For costs costs of of suit suit and att attorn orney ey fees fees here herein in incur incurred red.. 

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For such such othe otherr and furt further her relief relief as as the the court court may may deem deem proper proper..

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Dated:

MICHAEL S. GREEN IN PRO PER

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By: _________________________________ 

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Michael S. Green, In Pro Per - 13 PLAINTIFF/PETITIONER'S THIRD AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS; COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF

 

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VERIFICATION

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I, Michael Steven Green, am an individual petitioner and plaintiff in the abov above-entitled e-entitled action. I have read the foregoing petition and complaint and know the contents thereof. The same

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is true of my own knowledge, except as to those matters that are therein alleged on information and belief, and as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Fresno County, California, on this date.

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 ____________________ [date]

________________________________ ___________________________ _____ [signature]

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