SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO CENTRAL DIVISION UNLIMITED CIVIL CASE 1 1 1 1 MICHAEL S. GREEN, an individual, and DOES 1 through, inclusive, v. Plaintiffs, 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, inclusive, Defendants Case No.: 1CECG01 MWS FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION [C.C.P. Secs.,, 0,, (a,, 0(a; P.R.C. Sec. ] - 1 -
1 1 1 1 Plaintiff Michael S. Green (hereinafter referred to as Plaintiff alleges as follows: I. PARTIES 1. Plaintiff is, and at all times herein mentioned was, a resident of the City of Fresno.. Plaintiff is ignorant of the true names and capacities of Plaintiffs named herein as Does 1 through, inclusive, and therefore brings action with by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained.. Defendant City of Fresno is a political subdivision of the State of California and is sued as a municipal corporation organized and existing under a municipal charter.. Defendant Jerry P. Dyer is sued in his official capacity as the Chief of Police of the City of Fresno. Plaintiff is informed and believes Defendant Dyer has authority over the enforcement of all state laws within the City at all times mentioned herein.. Defendant Mark Scott is sued in his official capacity as interim Director of Development and Resource Management for Defendant City of Fresno. Plaintiff is informed and believes Defendant Scott has authority over the development and enforcement of land-use and zoning regulations within the City at all times mentioned herein.. Does 1 through, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to Plaintiff at this time. When their true names and capacities are ascertained, Plaintiff will amend this complaint by inserting their true names and capacities herein. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiff s damages as alleged herein were proximately caused by such Defendants.. At all times herein mentioned, Defendants, including Doe Defendants, and each of them, were the agents, servants, and employees of each of the other Defendants 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 other Defendants. II. INTRODUCTION. In, California voters passed the Compassionate Use Act (referred to hereinafter as CUA, which decriminalized the cultivation and use of marijuana by seriously ill individuals - -
1 1 1 1 with a doctor s recommendation. The Act's stated purpose was to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes and to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. (Health and Safety Code Secs..(b(1(A-(B.. In 0, the California Legislature enacted the Medical Marijuana Program Act (referred to hereinafter as MMPA. The express intent was to (1 Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. ( Promote uniform and consistent application of the act among the counties within the state. ( Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. (Stats. 0, ch., section 1, subd. (b(1-(.. Interim urgency Ordinance -1, which placed an immediate ban on the outdoor cultivation of medical cannabis in the City, was heard and duly enacted by the Fresno City Council on or about December 1,. (A true and correct copy of the text of Ordinance -1 and City staff report is attached hereto as Exhibit A.. The ban was extended for months, 1 days, through Ordinance 1-, which was duly enacted by the Council on or about January, 1. (A true and correct copy of the Fresno City Council minutes of December 1,, and January, 1, is attached hereto as Exhibit B. 1. Ordinance 1-1, which established a permanent ban on the outdoor cultivation of cannabis in the City, was heard and duly enacted by the Fresno City Council on or about June, 1. The new law took effect on or about August, 1. (A true and correct copy of the text of Ordinance 1-1 is attached hereto as Exhibit C. 1. Pursuant to Health and Safety Code Secs..(d and.(f, Plaintiff holds a statutory right to possess, use and cultivate medical cannabis in the matters set forth herein. 1. Plaintiff 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 ordinance is enforced, Plaintiff 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. - -
1 1 1 1 1. Pursuant to Ordinance 1-1, Plaintiff is subject to nuisance abatement, fine andor prosecution of a misdemeanor by Defendants for outdoor cultivation of medical cannabis. Plaintiff is informed and believes that other medical cannabis patients in the City have been subjected to summary abatement and other enforcement measures. Implementation of this ordinance has had, and will continue to have, a severe impact on Plaintiff's statutory rights and vested property rights, which causes Plaintiff immediate and irreparable harm. III. JURISDICTION AND VENUE. This court has jurisdiction over this action pursuant to the California Constitution, Article VI, Section, because this case is a cause not given by statute to other trial courts.. Venue is proper in this court because Defendants reside in or are situated in Fresno County. IV. FACTS APPLICABLE TO ALL CAUSES OF ACTION. Plaintiff is a qualified patient as defined in Health and Safety Code Sec..(f and.(d.. Plaintiff's mother is a primary caregiver as defined in Health and Safety Code Sec..(d and has permitted the outdoor cultivation of medical cannabis by Plaintiff at her home in a City residential zoning district at all times mentioned herein.. Plaintiff holds a personal property right in the matters set forth herein in that all times herein he possessed at least one medical cannabis plant growing outdoors in the City and has expended substantial time and money obtaining equipment and supplies for outdoor cultivation.. Plaintiff lacks suitable building space, high-intensity lighting equipment, knowledge and financial resources required to install and operate an indoor growing system safely and affordably. Plaintiff further lacks access to medical cannabis collective cultivation sites, with dispensaries and cooperatives prohibited in the City pursuant to Ordinance 0-.. Fresno Municipal Code Sec. 1--C-1 authorizes the continuation of non-conforming land uses for five years after passage of a zoning ordinance restricting such uses, where such use is maintained in connection with a conforming building. - -
1 1 1 1. Government Code Sec. 00, subdivision (c(1(b, requires Plaintiff to commence an action to review, set aside and void a decision to adopt or amend a zoning ordinance within 0 days after the legislative body's decision. This action is timely filed.. California Code of Regulations Sec. (d provides that challenges to the approval of a project must be filed within 0 days. This action is timely filed. The original first cause of action is deleted in its entirety (Original Complaint, :1-. The amended first cause of action is drawn from the original second cause of action (Original Complaint, :-:. The original third cause of action is deleted in its entirety (Original Complaint, :-:. The amended second cause of action raises a new challenge as authorized by relevant portions of the California Environmental Quality Act. FIRST CAUSE OF ACTION For Declaratory Relief; Ordinance 1-1 is pre-empted by state law and therefore void. Plaintiff incorporates by reference the allegations set forth in the previous paragraphs.. On or about December 1,, interim urgency Ordinance -1 was enacted by the Fresno City Council. The ordinance declared the outdoor cultivation of medical marijuana to be a nuisance per se, pursuant to Fresno Municipal Code Sec. -0(l, and each violation also shall be deemed a misdemeanor. On or about January, 1, Ordinance 1- was enacted, extending the City's outdoor cultivation ban for months, 1 days.. On or about June, 1, Ordinance 1-1 was enacted by the Fresno City Council. The ordinance declares the outdoor cultivation of marijuana to be a nuisance per se, pursuant to Fresno Municipal Code Sec. -0(l, and each violation also shall be deemed a misdemeanor. The ordinance took effect on or about August, 1.. The MMPA added Health and Safety Code Sec.., which provides that qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients, who associate within the State of California in order to collectively or cooperatively cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to criminal sanctions for the possession of marijuana [], cultivation of marijuana [], possession for sale [0], transportation [0], maintaining a place for sale, giving away or use of marijuana [], making premises available for the manufacture, storage or distribution - -
1 1 1 1 of controlled substances [.], or the abatement of a nuisance created by premises used for manufacture, storage or distribution of controlled substance [0].. Health and Safety Code Sec.. exempts qualified patients and their primary caregivers not only from criminal prosecution for authorized collective or cooperative activities, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation sites do not constitute a nuisance. 0. In equal manner, Health and Safety Code Sec.. exempts individual qualified patients and their primary caregivers not only from criminal prosecution for authorized possession and cultivation of medical cannabis, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized for qualified patients and their primary caregivers, including the cultivation of medical cannabis, do not constitute a nuisance. 1. Under Ordinance 1-1, the outdoor cultivation of medical cannabis always constitutes 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. Article, Section of the California Constitution and Government Code Sec. 0 prohibit the enactment and enforcement of municipal laws that conflict with the general laws of the State.. An actual controversy has arisen and now exists between Plaintiff and Defendants concerning their respective rights and duties in that Plaintiff contends he is authorized by the Compassionate Use Act and the Medical Marijuana Program Act to possess and grow medical cannabis without being subject to criminal or civil sanctions pursuant to Ordinance 1-1; whereas Defendants dispute these contentions and contend that Ordinance 1-1 is consistent with all state laws and imposes sanctions for outdoor cultivation of medical cannabis by Plaintiff and others similarly situated in a manner that is not prohibited by the CUA andor MMPA.. Plaintiff desires a judicial determination of his rights and duties, and a declaration as to whether Ordinance 1-1 is consistent with the CUAMMPA and all applicable state laws, and, if so, the enforcement methods that City shall use to effect compliance.. A judicial declaration is necessary and appropriate at this time under the circumstances in order that Plaintiff may ascertain his rights and duties under Ordinance 1-1, rather than expose himself to possible criminal andor civil sanctions for non-compliance. - -
1 1 1 1 SECOND CAUSE OF ACTION For Declaratory Relief; Ordinance 1-1 is void because it was enacted contrary to CEQA. Plaintiff incorporates by reference the allegations set forth in the previous paragraphs.. Enactment and amendment of zoning ordinances is a project under the express terms of the California Environmental Quality Act (hereinafter CEQA. (Calif. Code of Regulations Sec. 1(a(1 Accordingly, Ordinance 1-1 is a project under CEQA.. In passing Ordinance 1-1, the Fresno City Council made findings in 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 CEQA. (CCR Sec. 1(b(. The findings adopted by the Fresno City Council for Ordinance 1-1 declare there is no possibility of environmental impact because outdoor cultivation in the City was already banned pursuant to interim Ordinance 1-. However, interim Ordinances -1 and 1- were categorically exempt from CEQA's review process, whereas Ordinance 1-1 is categorically subject to CEQA review as a permanent change to the City's zoning law.. Evidence of the potential environmental harms of indoor marijuana cultivation was provided by Plaintiff to the Fresno Planning Commission at or before its meeting on or about May, 1, where text amendment application TA--001 and environmental finding for environmental assessment EA--001 were duly heard by the commission. 0. On or about June, 1, Plaintiff submitted similar evidence to the City Clerk's office for distribution to members of the Fresno City Council. (A true and correct copy of Plaintiff's written testimony and attachments is attached hereto as the latter part of Exhibit C. 1. The City has offered no evidence that Ordinance 1-1 has no possibility of creating an environmental impact.. An actual controversy has arisen and now exists between Plaintiff and Defendants concerning their respective rights and duties in that Plaintiff contends the City Council made purported environmental findings for Ordinance 1-1 that do not meet the requirements for an exemption pursuant to CCR Sec. 1(b(, and further contends that an initial study of Ordinance 1-1 is required pursuant to CCR Sec. 0(k(; whereas Defendants dispute these contentions and contend that Ordinance 1-1 was enacted in a manner consistent with CEQA, with no initial study required. - -
1 1. A judicial declaration is necessary and appropriate at this time under the circumstances in order that Plaintiff may ascertain his rights and duties under Ordinance 1-1, rather than expose himself to possible criminal andor civil sanctions for noncompliance. RELIEF REQUESTED. Wherefore, Plaintiff, on behalf of himself and others similarly situated, prays judgment as follows:. For a declaration that Ordinance 1-1 is unlawful, void and of no force and effect; and. For issuance of a temporary restraining order, preliminary injunction, and permanent injunction restraining and enjoining Defendants from enforcing, or threatening to enforce, Ordinance 1-1 by any means, whether criminal, civil or administrative; and. For costs of suit and attorney fees herein incurred; and. For such other and further relief as the court may deem proper. 1 1 Dated: MICHAEL S. GREEN IN PRO PER By: Michael S. Green, In Pro Per VERIFICATION I, Michael Steven Green, am an individual plaintiff in the above-entitled action. I have read the foregoing complaint and know the contents thereof. The same 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. [date] [signature] - -