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BY THEO DOUGLAS Californian staff writer firstname.lastname@example.org
Kern County's embattled ordinance governing where medical marijuana dispensaries may locate will remain in effect for at least a month while the county conducts a mandatory preliminary environmental review, a judge ruled Friday.
Kern County Superior Court Judge Kenneth Twisselman II followed up on his Aug. 9 finding that the county violated the California Environmental Quality Act by not conducting an environmental review before sending Measure G to voters June 5, 2012.
Twisselman did not, however, suspend or invalidate Measure G.
Instead, he let it stand, ordering the county to conduct the relatively low-level remedy of a preliminary review.
If the county finds that its ordinance does not adversely affect the environment, and complies with CEQA, then Measure G should remain in effect.
However, if upon preliminary review the county decides that higher-level environmental review is required -- an initial study or a formal EIR -- or if Twisselman is not satisfied with the county's review, the judge said he will invalidate Measure G.
"Here's an opportunity to show the court why you think this (ordinance) is exempt from CEQA. If you satisfy the court, then the ordinance remains in effect," Twisselman said. "If you don't satisfy the court, then the ordinance will be invalid."
The county will have 30 days for its review from the date Twisselman's ruling is issued in writing.
Outside court, Deputy County Counsel Charles Collins praised Twisselman for his detailed remarks and said a preliminary review is just the first step to determine whether CEQA applies.
"A preliminary review is asking the question 'Does an exemption apply?'" Collins said. "Then, we will document that and then make a return to the court."
Long Beach attorney Jamie Hall represents Channel Law Group, which sued the county on behalf of T.C.E.F. Inc., et al, a group of county medical marijuana patients and patient collectives and cooperatives.
Hall emphasized that if the county discovers its ordinance is having any adverse environmental impacts, it must do further study. Those impacts could be on air or water quality or the creation of a public nuisance.
"That preliminary review is not something that's going to be accepted as fact," Hall said. "They're going to return it back to the court, and the court's going to assess it for validity, and I will be given -- petitioners will be given -- an opportunity to object to either the form or substance of the review."
Challenging a medical marijuana ordinance based CEQA is still a relatively new concept.
Channel Law Group's suit against Kern County may be only the second such case on record, and thus far, it's doing better than a case filed in 2011 against the San Bernardino County Board of Supervisors.
In that case, filed by a Riverside attorney, a San Bernardino Superior Court judge ruled there's "no possibility" the county's ordinance banning dispensaries in unincorporated areas and restricting patient cultivation would have an adverse effect on the environment.
His ruling is being appealed.
Measure G says medical marijuana collectives and cooperatives can only operate on industrial land and must be at least a mile from schools, day care centers, churches, public parks and other collectives and cooperatives.
It only applies in unincorporated Kern, not in incorporated cities like Bakersfield, which has its own rules.