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SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO CENTRAL DIVISION UNLIMITED CIVIL CASE

MICHAEL S. GREEN, an individual, and DOES 1 through 20, inclusive, Plaintiffs/Petitioners, v. 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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Case No.: 12CECG01334 MWS PLAINTIFF'S SECOND 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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Plaintiff/Petitioner Michael S. Green (hereinafter referred to as Plaintiff, Petitioner or Plaintiff/Petitioner) alleges as follows: I. PARTIES 1. 2. Plaintiff/Petitioner is, and at all times herein mentioned was, a resident of the City of Plaintiff/Petitioner is ignorant of the true names and capacities of Plaintiffs/Petitioners Fresno. named herein as Does 1 through 20, inclusive, and therefore brings action with by such fictitious names. Plaintiff/Petitioner will amend this complaint to allege their true names and capacities when ascertained. 3. 4. Defendant/Respondent City of Fresno is a political subdivision of the State of California Defendant/Respondent Jerry P. Dyer is sued in his official capacity as the Chief of Police of and is sued as a municipal corporation organized and existing under a municipal charter. the City of Fresno. Plaintiff is informed and believes Defendant/Respondent Dyer has authority over the enforcement of all state and City laws within the City at all times mentioned herein. 5. Defendant/Respondent Mark Scott is sued in his official capacity as interim Director of Development and Resource Management for Defendant City of Fresno. Plaintiff/Petitioner is informed and believes Defendant/Respondent Scott has authority over the development and enforcement of land-use and zoning regulations within the City at all times mentioned herein. 6. Does 1 through 20, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to Plaintiff/Petitioner at this time. When their true names and capacities are ascertained, Plaintiff/Petitioner will amend this complaint by inserting their true names and capacities herein. Plaintiff/Petitioner 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 Plaintiffs/Petitioners damages as alleged herein were proximately caused by such Defendants/Respondents. 7. At all times herein mentioned, Defendants/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 other Defendants/Respondents.
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II. INTRODUCTION 8. In 1996, California voters passed the Compassionate Use Act (referred to hereinafter as CUA), which decriminalized the cultivation and use of marijuana by seriously ill individuals with a doctors 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. 11362.5(b)(1)(A)-(B).) 9. In 2003, 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. (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).) 10. Interim urgency Ordinance 2011-41, 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 15, 2011. (A true and correct copy of the text of Ordinance 2011-41 and City staff report is attached hereto as Exhibit A.) 11. The ban was extended for 10 months, 15 days, through Ordinance 2012-3, which was 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 attached hereto as Exhibit B.) 12. Ordinance 2012-13, 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 28, 2012. The new law took effect on or about August 3, 2012. (A true and correct copy of the text of Ordinance 2012-13 is attached hereto as Exhibit C.) // //
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13.

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

holds a statutory right to possess, use and cultivate medical cannabis in the matters set forth herein. 14. 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 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. 15. Pursuant to Ordinance 2012-13, Plaintiff/Petitioner is subject to nuisance abatement, fine and/or prosecution of a misdemeanor civil injunction by Defendants/Respondents for outdoor cultivation of medical cannabis. Plaintiff/Petitioner 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 Plaintiffs/Petitioners statutory rights and vested property rights, which causes Plaintiff/Petitioner immediate and irreparable harm. III. JURISDICTION AND VENUE 16. 17. 18. This court has jurisdiction over this action pursuant to the California Constitution, Article Venue is proper in this court because Defendants/Respondents reside in or are situated in The court has jurisdiction over this action under Code of Civil Procedure Secs. 526, VI, Section 10, because this case is a cause not given by statute to other trial courts. Fresno County. 527, 1060, 1085, 1086 and 1103; and Public Resources Code Secs. 21080(d), 21151 and 21167. IV. FACTS APPLICABLE TO ALL CAUSES OF ACTION 19. // //
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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).

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20.

Plaintiffs/Petitioners mother is a primary caregiver as defined in Health and Safety Code

Sec. 11362.7(d) and has 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 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. 22. Plaintiff/Petitioner 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/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 Code Sec. 12-317-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. 24. Government Code Sec. 65009, subdivision (c)(1)(B), requires Plaintiff/Petitioner to commence an action to review, set aside and void a decision to adopt or amend a zoning ordinance within 90 days after the legislative body's decision. This action is timely filed. 25. California Code of Regulations Sec. 15062(d) provides that challenges to the approval of a project must be filed within 180 days. This action is timely filed. The original first cause of action is deleted in its entirety (Original Complaint, 5:1-22). The amended first cause of action is drawn from the original second cause of action (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 authorized by relevant portions of the California Environmental Quality Act. The first cause of action has been amended to correct a Fresno Municipal Code reference and also to remove references to criminal and/or misdemeanor enforcement. The second cause of action has been amended to seek a writ of traditional mandamus pursuant to relevant CEQA statutes; accordingly, new prayers of relief have also been added. // //
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FIRST CAUSE OF ACTION For Declaratory Relief; Ordinance 2012-13 is pre-empted by state law and therefore void 26. 27. Plaintiff/Petitioner incorporates by reference the allegations set forth in the previous On or about December 15, 2011, interim urgency Ordinance 2011-41 was enacted by the

paragraphs. Fresno City Council. The ordinance declared the outdoor cultivation of medical marijuana to be a nuisance per se, pursuant to Fresno Municipal Code Sec. 10-605(l), and each violation also shall 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, Ordinance 2012-13 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. 10-605(l), and each violation also shall be deemed a misdemeanor. Fresno Municipal Code Sec. 12-2103, with sanctions and immediate abatement authorized in FMC Sec. 12-2104. The ordinance took effect on or about August 3, 2012. 29. The MMPA added Health and Safety Code Sec. 11362.775, 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 [11357], cultivation of marijuana [11358], possession for sale [11360], transportation [11360], maintaining a place for sale, giving away or use of marijuana [11366], making premises available for the manufacture, storage or distribution of controlled substances [11366.5], or the abatement of a nuisance created by premises used for manufacture, storage or distribution of controlled substance [11570]. 30. Health and Safety Code Sec. 11362.775 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. 31. In equal manner, Health and Safety Code Sec. 11362.765 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
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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. 32. Under Ordinance 2012-13, 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 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. 33. An actual controversy has arisen and now exists between Plaintiff/Petitioner and Defendants/Respondents concerning their respective rights and duties in that Plaintiff/Petitioner 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 injunction, fine, abatement or civil sanctions pursuant to Ordinance 2012-13; whereas Defendants/Respondents dispute these 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 situated in a manner that is not prohibited by the CUA and/or MMPA. 34. Plaintiff/Petitioner desires a judicial determination of his rights and duties, and a declaration as to whether Ordinance 2012-13 is consistent with the CUA/MMPA and all applicable state laws, and, if so, the enforcement methods that City shall use to effect compliance. 35. A judicial declaration is necessary and appropriate at this time under the circumstances in order that Plaintiff/Petitioner may ascertain his rights and duties under Ordinance 2012-13, rather than expose himself to possible criminal and/or civil sanctions for non-compliance. SECOND CAUSE OF ACTION Invalid ordinance: Fresno City Council failed to follow state law when Ordinance 2012-13 was enacted; for writ of traditional mandamus, declaratory relief and/or injunctive relief 36. 37. Plaintiff/Petitioner incorporates by reference the allegations set forth in the previous Enactment and amendment of zoning ordinances is a project under the express terms of

paragraphs. the California Environmental Quality Act (hereinafter CEQA). (Calif. Code of Regulations Sec. 15378(a)(1)) Accordingly, Ordinance 2012-13 is a project under CEQA.
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38.

In passing Ordinance 2012-13, 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. 15061(b)(3)) 39. The findings adopted by the Fresno City Council for Ordinance 2012-13 declare there is no possibility of environmental impact because outdoor cultivation in the City was already banned pursuant to interim Ordinance 2012-3. However, interim Ordinances 2011-41 and 2012-3 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. 40. Substantial evidence of the potential environmental harms of indoor marijuana cultivation 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 meeting is attached as Exhibit D.) 41. On or about June 19, 2012, Plaintiff/Petitioner 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.) 42. 43. Plaintiff/Petitioner has exhausted all administrative remedies. The City has offered no substantial evidence that Ordinance 2012-13 has no possibility of

creating an environmental impact, making its passage by Defendants/Respondents a prejudicial abuse of discretion pursuant to Public Resources Code Sec. 21168.5. 44. An actual controversy has arisen and now exists between Plaintiff/Petitioner and Defendants/Respondents concerning their respective rights and duties in that Plaintiff/Petitioner contends the City Council made purported environmental findings for Ordinance 2012-13 that do not meet the requirements for an exemption pursuant to CCR Sec. 15061(b)(3); and further contends that an initial study is required pursuant to CCR Sec. 15002(k)(2); and further contends that Defendants/Respondents are required to prepare an environmental impact report pursuant to Public Resources Code Secs. 21080(d) and 21151 because Plaintiff/Petitioner has provided substantial evidence of impacts that meet the fair argument standard; whereas Defendants/Respondents dispute these contentions and contend Ordinance 2012-13 was enacted in compliance with CEQA, with no initial study or environmental impact report required.
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45.

A judicial declaration is necessary and appropriate at this time under the circumstances in

order that Plaintiff/Petitioner may ascertain his rights and duties under Ordinance 2012-13, rather than expose himself to possible criminal and/or civil sanctions for non-compliance. RELIEF REQUESTED 46. 47. 48. Wherefore, Plaintiff/Petitioner, on behalf of himself and others similarly situated, prays For a declaration that Ordinance 2012-13 is unlawful, void and of no force and effect; and For issuance of a temporary restraining order, preliminary injunction, and permanent judgment as follows:

injunction restraining and enjoining Defendants/Respondents from enforcing, or threatening to enforce, Ordinance 2012-13 by any means, whether criminal, civil or administrative; and 49. For a peremptory and/or alternative writ of mandate directing: (a) That the decision(s) by Defendants/Respondents to approve Ordinance 2012-13, and any findings, assessments, resolutions and/or ordinances with respect thereto, is (are) null and void and of no force and effect, such decision(s) having resulted from prejudicial abuse of discretion and/or violation of law by Defendants/Respondents. (b) Defendants/Respondents to prepare, circulate, and consider a legally adequate environmental impact report, and to otherwise comply with the California Environmental Quality Act in any subsequent action to regulate medical cannabis. (c) That until such time as Defendants/Respondents comply with CEQA with respect to Ordinance 2012-13, such parties be enjoined and restrained from taking any physical, administrative and/or legal actions toward enforcement of said ordinance. 50. 51. For costs of suit and attorney fees herein incurred. For such other and further relief as the court may deem proper. MICHAEL S. GREEN IN PRO PER By: _________________________________ Michael S. Green, In Pro Per

Dated:

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VERIFICATION I, Michael Steven Green, am an individual petitioner and plaintiff in the above-entitled action. I have read the foregoing petition and 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]