Opinion

Lucas v. City of Pomona

Court: California Court of Appeal
Filed: Jun 13, 2023
Status: Published
Cited by: 0 cases
Authority: More cited than 23.5%

The opinion

Filed 6/13/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

GREGORY LUCAS, B310777

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 19STCP05618)

CITY OF POMONA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of

Los Angeles County, James C. Chalfant, Judge. Affirmed.

Channel Law Group, Julian K. Quattlebaum III and Jamie

T. Hall for Plaintiff and Appellant.

Best Best & Krieger, Alisha M. Winterswyk and Ali V.

Tehrani for Defendant and Respondent.

_________________________

The City of Pomona (the City) decided to allow commercial

cannabis activities in specific locales within its boundaries. In

doing so, the City determined it was exempt from the

requirements of the California Environmental Quality Act (Pub.

Resources Code, § 21000 et seq.)1 (CEQA) and the Guidelines

adopted to implement CEQA (Cal. Code Regs., tit. 14, § 15000 et

seq.) (Guidelines). Thus, when the City chose areas to locate

commercial cannabis activities, it did not conduct additional

environmental review under CEQA.

Appellant Gregory Lucas (Lucas) wanted his storefront

property included among the locales where commercial cannabis

activity would be allowed. The City, however, excluded Lucas’s

property. Lucas then filed a petition for writ of mandate to

overturn the City’s designation of areas for permissible

commercial cannabis activities. He contended the City made the

decision improperly by foregoing further environmental review.

The superior court denied the petition and entered judgment in

favor of the City.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Legalization of Cannabis Use

On November 8, 2016, California voters approved

Proposition 64, titled “Control, Regulate and Tax Adult Use of

Marijuana Act,” and enacted a state statutory scheme legalizing,

controlling, and regulating the cultivation, manufacturing,

distribution, and sale of nonmedical (adult-use or recreational)

1 Undesignated statutory references are to the Public

Resources Code.

cannabis and cannabis products for use by adults 21 years of age

and older. On June 27, 2017, Governor Jerry Brown signed

Senate Bill No. 94 (2017–2018 Reg. Sess.), titled the “Medicinal

and Adult-Use Cannabis Regulation and Safety Act.” Senate Bill

No. 94 creates one state regulatory structure for medical and

adult-use commercial cannabis activities and provides that a

state license will not be approved for a business to engage in

commercial cannabis activity if the business activity violates any

local ordinance or regulation. The Bureau of Cannabis Control,

the California Department of Food and Agriculture, and the

California Department of Public Health were charged with

licensing and regulating commercial cannabis activities in

California. They released regulations outlining licensing

procedures for adult-use commercial cannabis and issued licenses

for such activities commencing January 1, 2018.

II. The City’s General Plan, General Plan Update, and

Environmental Impact Report

By way of background, we digress because it is important to

know about the City’s General Plan, General Plan Update, and

the Environmental Impact Report, upon which the City’s

cannabis regulations were superimposed.

State law requires that each city and county adopt a

comprehensive General Plan. (Gov. Code, § 65300.) Because the

General Plan is the constitution for all future development, any

decision by a city affecting land use and development must be

consistent with the General Plan. The City’s General Plan was

developed in 1976.

The City’s General Plan Update, developed in July 2013, is

“intended to function as a policy document to guide land use

decisions within the City’s planning area.” It provides

“comprehensive land use, housing, circulation and infrastructure,

public service, resource conservation and public safety policies for

the entire City.”

The purpose of an Environmental Impact Report (EIR) is to

“[i]nform public agency decision-makers and the public generally

of the significant environmental effects of a project, identify

possible ways to minimize the significant effects, and describe

reasonable alternatives to the project” in accordance with CEQA

and its Guidelines. An EIR also identifies whether imposition of

mitigation measures or specific alternatives to a project may

reduce significant2 or potentially significant environmental

effects to less-than-significant3 levels. Once an EIR has been

prepared, “subsequent activities within the program must be

evaluated to determine what, if any, additional CEQA

documentation needs to be prepared.”

The City’s final EIR, certified in March 2014 (2014 EIR),

evaluated possible environmental issues—pursuant to CEQA and

its Guidelines—associated with the implementation of the

General Plan Update for the development of the City through the

year 2035, and identified its environmental impacts—including

potential impacts to air quality, geology and soils, hazards and

hazardous materials, scenery and aesthetics, hydrology and

2 A “significant” effect is defined by Guidelines section 15382

as “a substantial, or potentially substantial, adverse change in

any of the physical conditions within the area affected by the

project including land, air, water, [and] ambient noise.”

3 An impact is considered “not significant” when it “may be

adverse, but does not exceed the significance threshold levels and

does not require mitigation measures.”

water quality, land use and planning, noise, population and

housing, public services, traffic, and greenhouse gas emissions. It

also proposed feasible mitigation measures to reduce or eliminate

potentially significant impacts or effects. The 2014 EIR and its

appendices comprise 889 pages total.

III. Ordinance Nos. 4254 and 4257

On August 6, 2018, the City Council voted to place a

cannabis business tax measure, Ordinance No. 4254 (Tax

Ordinance) on the ballot for the November 6, 2018 general

municipal election. The City’s voters approved the Tax

Ordinance, which established a tax on commercial cannabis

activity within the City.

On April 1, 2019, the City adopted Ordinance No. 4257

(Business Ordinance), which established a formal application

process to obtain a license to operate a commercial cannabis

business within the City. The Business Ordinance provides that,

in addition to complying with all other applicable zoning

regulations and state and local permit requirements, no

commercial cannabis permit is valid if the proposed commercial

cannabis business is located within a 1,000-foot radius of a school

providing instruction in kindergarten or any grades 1 through 12,

a day care center, or a youth and recreation center, which is in

lawful existence at the time a successful application is submitted

to the City.

As a result of the adoption of the Tax and Business

Ordinances, the Pomona Municipal Code was amended by adding

chapter 68, “Commercial Cannabis Businesses,” to regulate the

cultivation, manufacturing, sale, delivery, and transportation of

medicinal and adult-use cannabis and cannabis products in a

responsible manner to protect the health, safety, and welfare of

City residents, neighborhoods, and businesses from

disproportionately negative impacts and to enforce rules and

regulations consistent with state law.

IV. Ordinance No. 4273 – Commercial Cannabis Permit

Program Overlay District

Before formally accepting applications for its Commercial

Cannabis Permit Program, the City had to designate locations

where cannabis-related land uses would be permitted. This

action of designating specific parcels within the City where

cannabis businesses could operate in compliance with certain

ordinances was “brought forth as an ‘overlay’ within the Pomona

Zoning Ordinance.” An “overlay district” provides additional land

use regulation beyond the “underlying” zone that already exists

on the parcel.

The City’s proposed Ordinance No. 4273 establishes a

Commercial Cannabis Permit Program Overlay District (Overlay

District) in the City. The Overlay District was further divided

into four subareas in the City where cannabis-related uses would

be allowed and grouped by zoning designations and cannabis use

permits. The City planned to award up to eight commercial

cannabis permits. We refer to Ordinance No. 4273 and the

Overlay District it establishes as the Project4.

4 A “project” is an activity that 1) is undertaken or funded by

or subject to the approval of a public agency and 2) may cause

either a direct physical change in the environment, or a

reasonably foreseeable indirect physical change in the

environment. (§ 21065; Union of Medical Marijuana Patients,

Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1180 (Union).)

To establish the Overlay District for commercial cannabis

land use activity, the City, through its City Staff, conducted a

multistep analysis that included studying the scientific basis of

cannabis as it relates to potential land use impacts,

understanding existing state, federal, and industry regulations,

identifying and verifying sensitive uses, conducting a parcel-level

analysis, considering community feedback, and studying

potential environmental impacts.

As the first step in developing the Overlay District, City

Staff identified all parcels in the City that would remain eligible

for inclusion after buffering out sensitive uses (for example, the

1,000-foot buffer established by the Business Ordinance between

any retail commercial cannabis business and any public or

private K-12 school, day care center, or youth and recreation

center). As part of developing the Business Ordinance, the City

created a list of sensitive uses in June 2018, which established a

Sensitive Use Buffer Map. The remaining eligible parcels were

next grouped into Cannabis Permit Areas, based on similar

zoning, land use, and geographical features, and were field

investigated by City Staff.

City Staff analyzed the potential environmental impacts of

cannabis-related land uses. City Staff conducted field trips to six

legally operating cannabis businesses in cities similar to the City

in terms of size and demographics. City Staff also met with

planning staff from various cities with existing commercial

cannabis permit programs, including Los Angeles (L.A.) and Long

Beach, to obtain information on the day-to-day operations of

various types of cannabis businesses. City Staff met with the

L.A. County Sanitation District and L.A. County Fire

Department to understand how cannabis uses are similar or

distinct from other types of industries with respect to

environmental impacts. City Staff met with three agencies

regulating cannabis in California to understand licensing

requirements, operational requirements for cultivation and

manufacturing, and inspection/enforcement. City Staff met with

the City’s police department to better understand enforcement

against illegal dispensaries and heard directly from officers about

specific challenges related to cannabis enforcement in the City.

On May 1, 2019, at a joint meeting of the City Council and

City Planning Commission (Planning Commission), City Staff

released a draft map to the general public as a starting point to

discuss and further develop a draft Project. Throughout the year

2019, City Staff held a series of community meetings to answer

questions and address concerns related to the development of the

Project; concerns raised were incorporated into its analysis.

Lucas’s address/area was identified as a storefront location on the

draft map and was initially included within the proposed Overlay

District.

On August 28, 2019, City Staff presented a draft map at a

Planning Commission meeting and an Open House at the City

Council. Based on comments received, many revisions were

made to the Overly District draft map.

V. Determinations of Similarity

Based on research, interviews, and field visits, a total of six

types of commercial cannabis permits were identified based on

their typical land use activity:

1) “Storefront Retail” is a commercial permit type issued by

the Bureau of Cannabis Control. Storefront retail operations are

brick-and-mortar retail establishments that sell packaged

cannabis products. Customers must be over 21 years old. “This

permit type is similar in land use activity to other convenience

retail uses, such as drug stores.”

2) “Manufacturing” is a commercial cannabis permit type

issued by the California Department of Public Health.

Manufacturing refers to the extraction of cannabinoids and

terpenes from the cannabis plant for use in the production of

various cannabis products. “This permit type is similar in land

use activity to other manufacturing uses, such as the extraction

of essential oils or food and beverage production.”

3) “Cultivation” is a commercial cannabis permit type

issued by the California Department of Food and Agriculture’s

CalCannabis Division. The Business Ordinance does not permit

outdoor cultivation of any type. Indoor cultivation requires

artificial lighting to conduct indoor agricultural raising of the

cannabis plant. CalCannabis currently permits up to 22,000

square feet of indoor cultivation. “This permit type is similar in

land use activity to other crop raising uses, such as large

nurseries.”

4) “Testing” is a commercial cannabis permit type issued by

the Bureau of Cannabis Control. All cannabis products for sale

in the State of California must pass laboratory testing conducted

by a permitted cannabis testing facility. “This permit type is

similar in land use activity to other processing uses, such as

medical imaging and testing labs or scientific research facilities.”

5) “Distribution” is a commercial cannabis permit type

issued by the Bureau of Cannabis Control. Cannabis products

cannot be transported from one facility to another in California

without a license. Distribution licenses include General

Distribution for brick-and-mortar facilities that stock cannabis

items, and Distributor–Transport for transportation between

licensed facilities.

6) “Microbusiness” is a commercial cannabis permit type

issued by the Bureau of Cannabis Control. To qualify, an operator

must conduct three of the following four activities: storefront

retail, distribution, indoor cultivation up to 10,000 square feet, or

nonvolatile manufacturing. Such operations basically sell product

grown or manufactured on site in microbusiness storefronts.

Based on the entirety of its research into commercial

cannabis permit types and their associated land use activities,

City Staff determined that the six proposed land uses related to

commercial cannabis are similar enough to existing and defined

land uses within the Pomona Zoning Ordinance and the General

Plan Update or were so defined using a Determination of

Similarity (DOS) process. The DOS process applies to any land

use in the City that is not specifically listed in the zoning

ordinance.

On October 9, 2019, City Staff approved the six DOS

findings. That is to say, the City determined the six proposed

cannabis uses are consistent with and similar to already existing

land uses. As such, they would be required to meet all state,

county, and local regulations, including but not limited to zoning

standards, construction codes, fire codes and other City codes

applicable to and governing similar businesses before cannabis-

related uses could be established within the City.

The six commercial cannabis uses determined to be similar

to existing business practices are: 1) cannabis cultivation is a use

similar to raising of crops; 2) cannabis distribution is a use

similar to distributing plants; 3) cannabis manufacturing is a use

similar to manufacturing, compounding, processing, or packaging

of products; 4) cannabis retail is similar to retail stores;

5) cannabis retail storefronts are similar to retail storefronts; and

6) cannabis lab testing is similar to laboratory testing. The six

DOS findings also provide, as relevant to this appeal, that the

proposed cannabis use is not of greater intensity or density than

similar uses and would not generate more environmental

impacts.

The six DOS findings also state that the findings “shall be

final unless an appeal is made within ten (10) days after the

decision.” Nothing in the record indicates that Lucas or any

other member of the public initiated any appeal of the DOS

findings within 10 days of October 9, 2019.

VI. Findings of Consistency

In addition to its own investigation and research, the City

hired an expert environmental planning firm, Rincon

Consultants, Inc., to prepare the necessary CEQA analysis for

the Project, known as Findings of Consistency.

In October 2019, Rincon Consultants circulated its

Findings of Consistency, which evaluated the Project’s

consistency with the findings of the 2014 EIR prepared for the

General Plan Update to determine whether the Project would

have new or increased significant environmental effects beyond

those identified in the 2014 EIR.

Permitted land uses in the Project would be subject to the

development standards set forth in the existing base zoning

district (e.g., commercial zones) or base specific plan(s) (e.g., the

General Plan Update). Pursuant to Guidelines section 15183,

subdivision (a)—“Projects Consistent with a Community Plan,

General Plan Update, or Zoning”—additional environmental

review is not required for projects “which are consistent with the

development density established by existing zoning, community

plan, or general plan policies for which an EIR was certified,”

except as might be necessary to determine whether there are

project-specific significant effects.

The four established subareas in the City “were designated

upon consideration of existing sensitive uses identified in the

City . . . as well as land use analysis.” Parcels not identified

within a sensitive use buffer were “further analyzed against a

methodology which included consistency with the [General Plan

Update] land use designation, site accessibility, incompatible

land uses, and existence of legal non-conforming residential

uses.”

The Findings of Consistency included a table that identified

permitted uses and how they fall into existing, defined land use

classifications in the City based on the Pomona Zoning

Ordinance, the General Plan Update, and the six DOS:

Commercial Cannabis Permit Type Land Use Classification(s)

Manufacturing Manufacturing

Indoor Cultivation Raise Crops

Outdoor Cultivation N/A5

Distribution Manufacturing

Testing Processing

Microbusiness Manufacturing, Commercial,

Raise Crops

Retailer-Storefront Convenience Use, Retail

Store

5 Outdoor cultivation of cannabis would not be permitted in

any of the four designated subareas.

The Findings of Consistency addressed each of the

environmental issues studied in the 2014 EIR for the General

Plan Update, comparing the effects of the proposed Project to the

effects of the adopted General Plan Update.

A. Air Quality

The proposed Project would not cause growth beyond that

accommodated by the General Plan Update or result in an impact

to the Air Quality Management Plan beyond that identified in

the 2014 EIR.

Forecasted development under the General Plan Update

would generate temporary construction and long-term

operational air pollutant emissions (e.g., vehicle trips and

stationary sources), including potential increases in carbon

monoxide (CO) odors and concentrations. The 2014 EIR had

concluded that adherence to applicable General Plan policies and

South Coast Air Quality Management District’s (SCAQMD)

regulations would reduce potential air pollutant emissions on a

site-specific basis to a less-than-significant level. The 2014 EIR

had further determined that future development, per the General

Plan Update, would not result in traffic congestion at

intersections that would create objectionable odors or exceed CO

standards that may affect a substantial number of people.

Implementation of the Project would not allow development

of greater intensity than is allowed under the General Plan

Update and, as such, would not result in air pollutant emissions

or CO concentrations beyond those forecasted in the General Plan

Update. As regulated by Pomona Municipal Code section 68-27,

odor control devices and techniques—such as carbon filters and

air systems—are required in all commercial cannabis businesses

to ensure that odors from cannabis are not detectable off-site.

The proposed Project would not result in air quality impacts from

construction or operation emissions beyond those identified in the

2014 EIR.

B. Greenhouse Gas Emissions

Cannabis-related development in the Project would remain

subject to development standards set forth in the existing base

zoning district and the General Plan Update and would occur

within designated subareas currently consisting of other retail,

commercial, or industrial uses. As with other uses that could be

developed in the Project subareas, cannabis-related development

would result in greenhouse gas emissions and a demand for

energy, particularly from indoor cultivation. As regulated by

Pomona Municipal Code section 68-30, cannabis cultivation is

required to comply with state and local laws related to electricity,

water usage, water quality, discharges, and similar matters.

Cannabis-related development would be subject to regulations

aimed at achieving statewide greenhouse gas emission reduction

targets, including the 2030 target of a 40 percent reduction from

emission levels outlined in Senate Bill No. 32 (2021–2022 Reg.

Sess.). Permitted uses in the Project are also required to comply

with energy conservation measures in the California Green

Building Standards Code and 2019 Building Energy Efficiency

Standards, which include measures that increase building

performance so that new development does not result in wasteful,

inefficient, or unnecessary consumption of energy. The proposed

Project would not result in an impact related to greenhouse gas

emissions or energy consumption beyond that identified in the

2014 EIR.

C. Land Use and Planning

The Project would not introduce new land use designations

or otherwise alter the general land use patterns or development

standards; rather, it would establish locations in the City that

permit land uses related to commercial cannabis, which would

remain subject to the development standards set forth in the

existing base zoning district or the General Plan Update.

Implementation of the Project would not conflict with existing

land use designations or physically divide an established

community. It would not generate growth that would exceed

growth forecasts, impacting the Air Quality Management Plan.

Thus, the proposed Project would not involve consistency conflicts

with land use plans, policies, or regulations not identified in the

2014 EIR.

D. Noise

Because permitted use in the Project would remain subject

to existing development standards set forth in the base zoning

district or the General Plan Update to which the Project is added,

operational noise associated with such development would not

differ from what was considered in the 2014 EIR.

Implementation of the proposed Project would not result in

temporary or operational noise impacts beyond those identified in

the 2014 EIR.

E. Public Services

The 2014 EIR concluded that “development facilitated by

the General Plan increase demand for police protection services

and potentially create the need for new police protection

facilities; however, compliance with applicable codes and

regulations and compliance with General Plan Update policies

would reduce impacts to a less than significant level.” Because

permitted use in the Project areas would remain subject to

existing development standards set forth in the base zoning

district or the General Plan Update, impacts to police protection

services would not differ from what was considered in the 2014

EIR. The proposed Project would not result in the need for

additional police protection facilities. No impacts beyond those

identified in the 2014 EIR would occur.

F. Traffic

Cannabis-related development would occur within

designated subareas that currently consist of other retail,

commercial, or industrial uses. Because permitted uses in the

Project areas remain subject to existing development standards

set forth in the base zoning district or General Plan Update to

which the Project is added, and allowed development intensity

would not increase, traffic impacts associated with such

development would not differ from what was considered in the

2014 EIR. Cannabis-related development would also be required

to meet all applicable local and state regulatory standards for site

design and emergency access, including those in the California

Building Code, Pomona Municipal Code, and Fire Code.

Therefore, the Project would not generate traffic hazards or site

accessibility issues and would have no impact beyond that

identified in the 2014 EIR.

Operation of the commercial cannabis uses (i.e., cultivation,

distribution, and retail) would not substantially change traffic

patterns on area roadways and would not be expected to impact

levels of service at any nearby intersections or induce a

substantial increase in vehicle miles traveled when compared to

existing uses in designated subareas. The Project would not

increase traffic impacts to the roadway network beyond those

identified in the 2014 EIR since it would not increase

development intensity compared to the General Plan Update.

G. Conclusion

The Findings of Consistency concluded that the Project

“would not introduce new land use designations or otherwise

alter general land use patterns or development standards.” It

found “integration of the proposed [Project] would not result in

any new or increased severity of significant environmental effects

beyond those identified in the 2014 EIR.” Mitigation beyond that

identified in the 2014 EIR is “not required for any of the analyzed

environmental issue areas.” It concluded that “no additional

environmental review or documentation is required.”

VII. The City’s Public Hearing Held October 9, 2019 and

Lucas’s Objections

During a public hearing held October 9, 2019, the Planning

Commission considered a recommendation to the City Council to

approve the Project. The final draft did not include Lucas’s

storefront business property in the Overlay District.

The minutes of the public hearing identify Lucas as a

longtime resident of the City and owner of property in the City,

who “stated he was excited to be included in the overlay, because

additional security would no longer make his property a soft

target. He shared all the problems he has witnessed [in] the area

over the last several years (murder, fires, stolen copper). He

stated he doesn’t understand why his property was taken off the

overlay, because there aren’t children or other pedestrians. . . .

He stated it’s an industrial and office area where cannabis should

be welcome. He requested the Planning Commission reconsider

including this area.”

The transcript of the October 9, 2019 proceedings sets out

Lucas’s stated position at the public hearing: “Originally I saw

my area was included in the map and I thought that was a great

thing for that area. . . . [¶] So I was pretty excited when I seen

that we were included in that . . . . We had a bunch of problems

over the years. . . . In 2015 my building burnt down. In 2016 the

Fairplex sign was caught on fire. Then we had a small kitchen

fire in 2014 and by the time they got there to do the repairs

somebody had stole all the copper. So we need some help there.

There’s no residence in that area. There’s none whatsoever. I

don’t understand why [my property has been] taken off the

overlay.” “I think in this area, this is an industrial office area,

cannabis should be welcome. There’s no residents right there.

The security that has been a strength in the area, something

that’s paramount to somebody like me that has supported the

City of Pomona for 26 years. Allowing cannabis to operate in the

area will bring us a level of security that we deserve and I just

hope and pray that this Council will reconsider improving that

area.”

Other parties opposed, for different reasons, the proposed

commercial cannabis area boundaries. The City of La Verne

submitted a letter dated October 1, 2019, stating it “previously

passed an ordinance which prohibits [cannabis-related] activity

within [its] boundary.” It requested that the City of Pomona

“revise the map to consider [their] shared boundary as a sensitive

use, with a 1,000 [foot] buffer from these shared jurisdictional

lines.”

The City of Walnut, which does not permit cannabis-related

activities and shares a border with Pomona, submitted a letter

dated October 9, 2019, stating it is “formally objecting to the

establishment of a Cannabis Permit Program Overlay District, as

currently proposed.” It contended the DOS “attempting to deem

cannabis related activities (such as cultivation, distribution,

retailing and manufacturing) consistent with Pomona’s General

Plan and 2014 [EIR]” was “questionable” and expressed “concern”

that the “proper analysis required by [CEQA] has not been

attempted.” The letter provided that the proposed Overlay

District boundaries are “literally adjacent” to the City of Walnut

and “ignored how its proposal would impact the . . . proposed land

uses and development in the City of Walnut.”

At the October 9, 2019 public hearing, the City Council

voted not to recommend approval of the Project. The matter was

referred back to the Planning Commission for additional

deliberation and revisions and to make changes to the proposed

Project.

VIII. Post-October 9, 2019 Hearing Objections

On October 11, 2019, Lucas sent an email to the City

stating: “I saw when Pomona was approving my area for cannabis

and I was excited. Finally we will have enough security and be

important enough for regular police patrols. [¶] I have heard

people say cannabis should not be approved [in my area] because

kids walk home from school down that street. [¶] That is not true.

I have owned 1740 Gillette Rd since 1993 [and] have never seen

even one school kid walk by. All I see is the criminal element

from . . . surrounding fields. [¶] . . . [¶] There is no residence on

Gillette. The only people here are the homeless and criminals

from . . . surrounding areas. . . . [¶] I was thinking of selling my

building and reinvesting in a safer area. Then I saw the first

map draft and my area was on the block for a micro business so I

changed my mind and decided [to] stay. . . . [¶] . . . So why was

my area omitted? [¶] Allowing cannabis to operate in this area

will bring a level [of] security . . . that is much needed and greatly

desired. . . . [¶] I hope and pray you see the logic and the

unlimited benefits of allowing this in my area. I am begging you

[to] reconsider or correct the wrong. This is and will be one of the

best areas in the whole City to allow cannabis.”

In a letter dated October 29, 2019, the City of Claremont

expressed “concern with the proposed area along Foothill Blvd

which you are considering for the permitting of retail cannabis

sales. This particular area . . . lies in the center of what we

consider one of [the] most vulnerable communities.” Claremont

requested that “City Council consider the addition of a 1,000 foot

buffer from neighboring City borders be added” to the Overlay

District zones; Claremont posited “this buffer would preserve and

protect our neighborhoods from any potential negative impacts.”

In a letter dated October 29, 2019, the City of La Verne

again requested that the City maintain a 1,000 foot buffer from

its jurisdictional boundary.

The City of Walnut submitted a letter dated October 30,

2019, stating that the Walnut City Council “voted to formally

oppose the Overlay District as presently proposed.” Walnut City

“strongly urge[d] the City of Pomona to eliminate the

southernmost portion of Sub Area 3 along Valley [Blvd.] adjacent

to the City of Walnut.” The City of Walnut also objected to

Pomona’s reliance on Guidelines section 15183, subdivision (a) as

improper, and argued the Findings of Consistency failed to

adequately consider new and increased significant environmental

impacts posed by commercial cannabis uses. In addition, the City

Manager of Walnut expressed concern that the City’s

determination that cannabis-related activities were consistent

with the General Plan Update and 2014 EIR “raises substantial

concern that the proper analysis required by [CEQA] has not

been attempted.”

In addition, other public commenters, including a school

principal, lodged concerns about: increased traffic from residents

of surrounding cities who would come to the City because

cannabis is illegal in their cities; hazardous chemicals used in

growing released in faulty water discharges; proximity of

cannabis facilities to schools; increase in air pollution; noise from

back-up generators to be used in case of power outages; odor from

live plants; increase in crime and enforcement issues; and

greenhouse gas emissions.

IX. The City’s Hearings on November 4 and 18, 2019

At the public hearing on November 4, 2019, the City

Council introduced “for first reading” the ordinance to establish

the permissible locales for commercial cannabis activities. The

minutes of the meeting reflect that an amendment was

introduced to the Project which included an additional 600-foot

buffer from the City’s boundaries. Also removed from the Project

were 122 of the 414 parcels originally contemplated, leaving 292

parcels eligible for commercial cannabis activities. The City

Council unanimously approved the ordinance, as amended.

On November 18, 2019, the City’s development services

director replied to Lucas’s email and stated: “Thank you for

inquiring about [your] parcel along Gillette Road and its removal

from the Draft Commercial Cannabis Permit Program. I wanted

to provide you with additional information on the methodology

that we used in removing these parcels. [¶] As part of our

analysis into cannabis zoning, one step was to look at the parcel’s

General Plan ‘land use designation.’ This designation is a long-

range vision for how the City intends to use the land, beyond

existing zoning. . . . In the case of the area along Gillette Road

adjacent to the freeway, it is contemplated as ‘Neighborhood

Edge’ and ‘Activity Center.’ This would allow a combination of

retail but also multi-family residential uses. As residential uses

may be problematic in this area, given their proximity to air

quality emissions from the neighboring freeway, we believe this

is one area of the city where the long-range vision needs to be

revisited and possibly amended. Therefore, rather than

introduce a new land use such as cannabis in this area, we have

paused on these parcels and removed them from consideration at

this point in time, until we can revisit and clarify an appropriate

long-range vision and land use designation for this area. This

same analysis also led to the removal of parcels along Second

Street east of Reservoir, which have a long-term designation that

posed various land use challenges that need to be revisited.”

At the City Council meeting and public hearing held

November 18, 2019, a “second reading” and discussion of the

Project was held. The City Council adopted as appropriate the

DOS and found the Project, as amended, in compliance with

CEQA, the Business and Tax Ordinances, and the General Plan

Update. It also found the Project reflects community feedback.

The meeting minutes specify that a few individuals “spoke on

concerns” regarding the proposed cannabis locations or the

cannabis application process. The meeting minutes further

specify that Lucas “spoke in opposition of” the Project.

The transcript of the November 18, 2019 public hearing

provides context as to what exactly Lucas “spoke in opposition

of”: The property Lucas owns has “always been zoned commercial

ever since I bought it. . . . [¶] [On] May 6, 2019, Pomona issued a

map outlining the proposed cannabis areas. . . . My area was

identified as the only storefront location at that time. . . . [¶]

Then in August was the first time I’d seen an overlay with any

type of exclusion for [my] area.” Lucas “reached out” to the City

and was informed “that it was part of the general plan that

possibly that area is going to be zoned residential in the future.

I’ve owned that property for 26 years. That area will never be

residential.” “I was real excited when I saw the City of Pomona

was finally going to get into the cannabis arena, especially after

seeing Santa Ana had made 7.9 million dollars last fiscal year on

taxes.” Lucas “spen[t] two million dollars on a [commercial]

building” in that area. “I stand to lose millions. You know, if the

City takes a wrong path and discriminates against me, I don’t

think this is fair and my attorney does not think it’s fair. Failure

to do the right thing and approve the right area will not only cost

me millions; it’s going to cost the City of Pomona millions, too. So

I hope and pray that this Council sees the error in the proposed

map and the potential liability placed on the City before we even

issue our first license and make a correction.” Lucas did not

object based on Guidelines section 15183, nor did he raise any

environmental concerns.

Following City Council and City Staff discussion, a motion

to adopt the Project was approved unanimously. The motion

concluded the ordinance was exempt from CEQA and adopted the

Findings of Consistency which asserted the Project met the strict

streamlined review process and requirements in Guidelines

section 15183 and concluded that no additional environmental

review or documentation was required. The City Council directed

City Staff to file a Notice of Exemption outlining its CEQA

determination.

On November 19, 2019, the Planning Commission filed a

Notice of Exemption for the Project with the county recorder.

The exempt status relied on Guidelines section 15183. It

reasoned: “According to Section 15183 (Projects Consistent with a

Community Plan or Zoning) of the CEQA Guidelines, additional

environmental review is not required or projects ‘which are

consistent with the development density established by existing

zoning, community plan, or general plan policies for which an

EIR was certified.’ Findings of Consistency with the 2014 [EIR]

were prepared and approved by City Council.”

X. Petition for Writ of Mandate

On December 24, 2019, Lucas filed a petition for writ of

mandate (petition) against the City pursuant to Code of Civil

Procedure section 1094.5. It alleged a single cause of action—a

violation of CEQA. Lucas challenged the City’s determination

that the Project qualified for an exemption under Guidelines

section 15183, subdivision (a), and argued the City’s approval of

the ordinance establishing the Project must be vacated and

voided.

Lucas cited the Findings of Consistency and disagreed with

its conclusion. He alleged the City “is one of the few jurisdictions

in the area that allows the sale of commercial cannabis” and “the

establishment of a limited number of locales in which commercial

cannabis may be purchased will result in traffic and related air

quality impacts that were not, and could not have been, analyzed

in the 2014 EIR” because the City did not allow commercial

cannabis activities at the time the 2014 EIR was prepared. He

alleged the impacts of this “newly permitted use” are not similar

to the “impacts of the typical development contemplated” in the

2014 EIR. “Increased traffic from residents of many surrounding

communities who will come to [the City] because cannabis is

illegal in their communities is a specific impact that was not

analyzed in the 2014 EIR.”

Lucas also alleged the discussion of greenhouse gas

emissions in the 2014 EIR and the Findings of Consistency “does

not support the conclusion that there would be no significant

project specific or site-specific [greenhouse gas emission]-related

impacts.” The Findings of Consistency also “failed to take into

account . . . that there will be significant project-specific and site-

specific noise impacts due to the fact that indoor cultivation . . .

will require installation of back-up generators which will produce

significantly greater noise than the uses studied in the 2014

EIR.”

Lucas requested that the court order the City to vacate and

set aside its approval of the Project, including all permits and the

Notice of Exemption adopted by the City to facilitate the Project,

because the City “failed to comply with the provisions set forth

under [CEQA] and therefore failed to proceed in a manner

required by law.” Lucas also requested that the court order the

City to “prepare and certify a legally adequate environmental

review for the Project.”

XI. The City’s Answer

On August 5, 2020, the City filed its answer to Lucas’s

petition for writ of mandate and denied improper adoption of

exemption. The City asserted many affirmative defenses against

Lucas, including, but not limited to, lack of standing under

section 21177, failure to exhaust administrative remedies, claim

preclusion, failure to comply with CEQA, no prejudicial abuse of

discretion, and legislative discretion.

XII. Hearing, Ruling, and Judgment

The hearing on Lucas’s petition to set aside the City’s

approval of the Project took place on November 24, 2020. The

court admitted into evidence the nearly 12,200-page

administrative record. After lengthy argument, the trial court

denied Lucas’s petition.

The trial court found the “facts establish that the [Project]

excluding Lucas’s property has an impact on his business

opportunity” and thus he has “beneficial interest” standing to

raise a CEQA challenge to the City’s environmental analysis.

The court next found Lucas did not have “public interest”

standing. The court also found Lucas “exhausted his

administrative remedies.”

The trial court ruled the City was entitled to rely on

Guidelines section 15183, subdivision (a) and that the Project is

consistent with the General Plan and meets the foundational

criterion of the exemption. The court found the six DOS findings

were final and most of Lucas’s issues stemmed from the City’s

decision to approve the DOS, which “conclusively determined that

the [permitted] cannabis-related uses . . . are sufficiently similar

to the uses allowed by the underlying zoning.” (Italics added.)

In addition, the court found the substantial evidence

standard applies to review of the City’s section 21083.3

exemption. The court found substantial evidence that the Project

“do[es] not alter general land use patterns because they fall

within the uses permitted by the underlying zoning”; does not

substantially impact air quality; and will not result in increased

traffic, odor, noise, and greenhouse gas emission impacts beyond

those addressed by the 2014 EIR.

On December 15, 2020, the trial court entered judgment

against Lucas.

XIII. Measure Ballot6

Three weeks before the November 24, 2020 trial court

hearing and resulting decision, the City Council placed two

cannabis-related measures on the ballot for the general

municipal election held on November 3, 2020: 1) Measure PO,

which adopted a cannabis permit overlay identical to the Project;

and 2) a competing ballot measure, Measure PM. Measure PO

passed with 59.11 percent votes in favor to 40.89 percent against.

On December 7, 2020 (after the trial court issued its

November 24, 2020 decision), the City deemed Measure PO

adopted and ratified pursuant to City Resolution No. 2020-181.

On February 1, 2021, Lucas filed a notice of appeal from

the December 15, 2020 judgment denying the petition for writ of

mandate. He did not file an appeal from or obtain a court-

ordered stay as to the results of the November 3, 2020 election on

6 On May 25, 2022, the City filed a motion requesting

judicial notice of three documents: 1) the City’s Resolution

No. 2020-124, ordering the submission of Ballot Measure PO to

affirm the Project Ordinance and Business Ordinance at the

general election held on November 3, 2020; 2) the City’s

Resolution No. 2020-181, ratifying and adopting Measure PO

after the results of the November 3, 2020 election; and 3) the City

Council’s report dated December 7, 2020 regarding the official

election results of the November 3, 2020 election. We grant the

request for judicial notice. (Cal. Rules of Court, rule 8.252; Evid.

Code, §§ 452, subd. (b), 459; see also Evid. Code, § 200 [“public

entity” defined to include a city].)

Measure PO or the December 7, 2020 City Resolution No. 2020-

181 adopting and ratifying Measure PO.

DISCUSSION

Many issues are raised on appeal. The City argues Lucas

lacks standing to maintain his writ petition, which, it also

contends, is moot. The City also argues Lucas is precluded from

proceeding because he failed to exhaust administrative remedies.

We assume Lucas prevails on these procedural issues and

proceed to the merits of the appeal: whether the City’s

determination that the Project is exempt per section 21083.3

and/or Guidelines section 15183 was proper and whether

additional environmental review is needed.

I. CEQA, Generally

CEQA and its Guidelines embody California’s strong public

policy of protecting the environment. (Arcadians for

Environmental Preservation v. City of Arcadia (2023) 88

Cal.App.5th 418, 428–429 (Arcadians).) CEQA was enacted to

advance four related purposes: to 1) inform the government and

public about a proposed activity’s potential environmental

impacts; 2) identify ways to reduce, or avoid, environmental

damage; 3) prevent environmental damage by requiring project

changes via alternatives or mitigation measures when feasible;

and 4) disclose to the public the rationale for governmental

approval of a project that may significantly impact the

environment. (Arcadians, at pp. 428–429.)

CEQA provides a three-tiered process to guide agencies in

carrying out or approving a project which may have a significant

effect upon the environment. (Arcadians, supra, 88 Cal.App.5th

at p. 429.)

The first tier is jurisdictional, requiring the agency to

conduct a preliminary review to determine whether the proposed

activity is subject to CEQA. (Arcadians, supra, 88 Cal.App.5th at

p. 429; Association for a Cleaner Environment v. Yosemite

Community College Dist. (2004) 116 Cal.App.4th 629, 636.)

CEQA applies if the proposed activity is a “project” under the

statutory definition, unless the project falls within one of several

exemptions to CEQA. (See §§ 21065, 21080.) If the agency finds

the project is exempt from CEQA under any of the stated

exemptions,7 an agency’s CEQA inquiry ends and the agency may

proceed to file a notice of exemption, citing the relevant section of

the Guidelines and including a brief statement of reasons to

support the finding. (Guidelines, § 15062; Arcadians, at p. 429;

San Francisco Beautiful v. City and County of San Francisco

7 The agency must decide whether the activity qualifies for:

1) A statutory exemption, enacted by Legislature (see

§ 21080, subd. (b); North Coast Rivers Alliance v. Westlands

Water Dist. (2014) 227 Cal.App.4th 832, 850 (North Coast);

Union, supra, 7 Cal.5th at p. 1186); or

2) One of the 33 categorical exemptions articulated in the

Guidelines (see Guidelines, §§ 15300–15333 [listing 33 classes of

projects categorically exempt from CEQA]).

A critical difference between statutory and categorical

exemptions is that statutory exemptions are absolute, which is to

say that the exemption applies if the project fits within its terms.

(North Coast, supra, 227 Cal.App.4th at p. 850.) Categorical

exemptions, on the other hand, are subject to exceptions that

defeat the use of the exemption, and the agency considers the

possible application of an exception in the exemption

determination. (Ibid.)

(2014) 226 Cal.App.4th 1012, 1019–1020 (San Francisco).) If,

however, the project does not fall within an exemption, the

agency must proceed to the second tier and conduct an initial

study. (Santa Monica Chamber of Commerce v. City of Santa

Monica (2002) 101 Cal.App.4th 786, 792; Union, supra, 7 Cal.5th

at p. 1186; see Guidelines, § 15063.)

One exemption under Guidelines section 15183, subdivision

(a), does not require additional environmental review for projects

“which are consistent with the development density established

by existing zoning, community plan, or general plan policies for

which an EIR was certified,” except as might be necessary to

determine whether there are project-specific significant effects.

Guidelines section 15183 was promulgated on the authority of

section 21083.3, which provides a public agency need examine

only those environmental effects that are peculiar to the project

and were not addressed or were insufficiently analyzed as

significant effects in the prior EIR. (§ 21083.3, subds. (a), (b).)

The second tier of the CEQA process requires the agency to

conduct an initial study to determine whether the project may

have a significant effect on the environment. (Arcadians, supra,

88 Cal.App.5th at p. 429; Guidelines, § 15063.) If the initial

study finds no substantial evidence that the project may have a

significant effect, the agency is excused from preparing an EIR,

and instead, must prepare a negative declaration, briefly

describing the reasons supporting the determination;

environmental review ends. (Arcadians, at p. 430; San

Bernardino Valley Audubon Society v. Metropolitan Water Dist.

(1999) 71 Cal.App.4th 382, 389–390; Guidelines, §§ 15063,

subd. (b)(2), 15070.) If the initial study identifies potentially

significant environmental effects but 1) those effects can be fully

mitigated by changes in the project, and 2) the project applicant

agrees to incorporate those changes, then the agency must

prepare a mitigated negative declaration. (Arcadians, at p. 430.)

Finally, if the initial study finds substantial evidence that

the project may have a significant environmental impact that

cannot be mitigated—and thus, the project does not qualify for a

negative declaration—then the third tier of the CEQA process is

reached. (San Francisco, supra, 226 Cal.App.4th at p. 1020;

§§ 21100, 21151; Guidelines, §§ 15063, subd. (b)(1), 15080.) The

agency must prepare and certify an EIR on the proposed project

before approving or proceeding with the project. (Union, supra,

7 Cal.5th at p. 1187.) The EIR is the “heart” of CEQA, providing

agencies with in-depth review of projects with potentially

significant environmental effects. (Laurel Heights Improvement

Assn. v. Regents of the University of California (1993) 6 Cal.4th

1112, 1123; Pacific Palisades Residents Association, Inc. v. City of

Los Angeles (2023) 88 Cal.App.5th 1338, 1363.)

The CEQA requirements apply to discretionary projects

carried out or approved by public agencies, including enacting

and amending zoning ordinances, issuance of conditional use

permits, and approving tentative subdivision maps (§ 21080), but

“[m]inisterial projects proposed to be carried out or approved by

public agencies” and those the agency rejects or disapproves are

expressly exempted from CEQA. (Id., subd. (b)(1) & (5).)

Keeping these principles in mind, we turn to the merits.

II. The City Properly Determined that the Project is

Exempt per Guidelines Section 15183 and Requires

No Additional Environmental Review

Guidelines section 15183’s parallel provision in CEQA is

section 21083.3. (See generally, Remy et al., Guide to the Cal.

Environmental Quality Act (CEQA) (10th ed. 1999) pp. 511–517.)

We discuss Guidelines section 15183 instead of the statutory

provision because that is the way the parties primarily presented

their arguments to this court.

A. Guidelines Section 15183, Generally

Guidelines are “binding on all public agencies in

California.” (Guidelines, § 15000.) “In interpreting CEQA, we

accord the CEQA Guidelines great weight except where they are

clearly unauthorized or erroneous.” (Muzzy Ranch Co. v. Solano

County Airport Land Use Com. (2007) 41 Cal.4th 372, 380, fn. 2;

California Oak Foundation v. Regents of University of California

(2010) 188 Cal.App.4th 227, 240, fn. 3.)

Section 15183 of the Guidelines is a statutory provision, not

a categorical exemption—i.e., it is not among those exemptions

set forth in Guidelines sections 15300 through 15333. Guidelines

section 15183 provides that exempt classes of projects include,

but are not limited to, qualifying projects “consistent with the

development density established by existing zoning, community

plan, or general plan policies for which an EIR was certified,” as

was the case here. (Guidelines, § 15183, subd. (a).) Such projects

“shall not require additional environmental review, except as

might be necessary to examine whether there are project-specific

significant effects which are peculiar to the project or its site.”

(Ibid.; see also id. § 15183.3, subd. (d)(2)(A).) “This streamlines

the review of such projects and reduces the need to prepare

repetitive environmental studies.” (Id., § 15183, subd. (a); see

also id. § 15183.3, subd. (c).)

In approving a project meeting the requirements of

Guidelines section 15183, a public agency shall limit its

examination of environmental effects/impacts to those which the

agency, in its initial study or other analysis, determines: 1) are

peculiar to the project or the parcel on which the project would be

located; 2) were not analyzed as significant effects in a prior EIR

on the zoning action, general plan or community plan with which

the project is consistent; 3) are potentially significant (whether

off-site or cumulative) and were not discussed in the prior EIR

prepared for the general plan, community plan or zoning action;

or 4) are determined to have a more severe adverse impact than

discussed in the prior EIR. (Guidelines, § 15183, subd. (b)(1)–(4);