LAKE COUNTY, Calif. – As it prepared to discuss placing a proposed marijuana cultivation initiative on the June 5 ballot, the Board of Supervisors on Tuesday had a considerable number of comments and reports to consider.

The board voted 5-0 to place the Lake County Medical Marijuana Cultivation Act of 2012 on the June Ballot.

The proposed initiative allows qualified patients, primary caregivers, collectives and dispensaries to grow up to 12 plants on parcels of a half-acre or less or 24 plants on a half acre or more in residential districts, and up to 84 plans on parcels seven acres or more.

Lake County Citizens for Responsible Regulations and Lake County Green Farmers Association are behind the effort to get the initiative on the ballot.

Previously, they also collected signatures for a referendum on the county’s marijuana cultivation ordinance, passed last fall. The board rescinded that ordinance last month, as Lake County News has reported.

For Tuesday’s meeting, the board had several new documents submitted for the initiative issue, including additional letters from county department heads, the Lake County Farm Bureau, homeowners and the Lake County Association of Realtors.

Previously they had received reports from the County Counsel’s Office, Probation Department and Community Development Department

Linda Beil, a Lake Pillsbury homeowner, submitted her concerns to the board, explaining that she and fellow homeowners felt marijuana cultivation had no place in their subdivision, where it is threatening “our safety, out water supply, our environment.”

Beil reported that one grower is cutting down old growth trees in order to expand cultivation and that homeowners fear retaliation for speaking out.

The Realtors association said they’re concerned about property rights and infringements, and that growing marijuana falls into the nuisance category due to its offensive odor, the fact that it attracts crime such as home invasion robberies and damage done to residential units lowers property values.

Unlike the county’s ordinance, the proposed initiative does not require tenants to disclose grows to landlords, and the association said that could expose landlords to property seizure by the federal government. The group also is concerned that Realtors could be targeted for prosecution if their clients are involved in growing activities.

Among the department heads weighing in were County Administrative Officer Kelly Cox and Debra Sommerfield, deputy county administrative officer for economic development.

The memorandum to the board Cox and Sommerfield submitted suggested that the initiative’s passage would “negatively influence the perception of Lake County in the eyes of current visitor types, and potentially contribute to a decline in family-oriented travel to Lake County,” while also attracting “other types of visitors.”

They also raised concerns about the impact on agriculture and downstream runoff affected by herbicides, fertilizers and other chemicals.

Lake County Air Quality Management District Air Pollution Control Officer Doug Gearhart said the primary issue for his agency is nuisance odors from the plants. High sensitivity in some people can lead to medical issues.

“Air Districts statewide are discussing the issue of nuisance odor from medical marijuana growing operations, and several other Air Districts in the state already have on-the-ground experience trying to deal with odors,” he wrote. “Reports indicate significant resource expenditure with very little benefit to reducing nuisance odors and no clear path forward to prevent future nuisance conditions.”

He said very little can be done to an established grow site to mitigate odors, and the Lake County Air Quality Management District is restricted in its response by its federal mandates.

“Anything short of removal of the nuisance-causing plants could be considered a violation of our Federal mandates, placing the LCAQMD and staff at risk,” he said.

Staff safety in such investigations also would be a concern, he said.

If the Board of Supervisors directs his agency to implement a program related to marijuana, “It is likely to have a significant fiscal impact on the LCAQMD and the County,” Gearhart concluded.

District Attorney Don Anderson said he could not take a position on the document, which he said addresses land use and does not establish criminal penalties, and therefore would not have a fiscal impact on his office or give him prosecutorial authority.

“This office can not take a position on whether or not this ordinance would be beneficial or detrimental to the county,” Anderson wrote.

Sheriff Frank Rivero came out against the initiative. In his analysis, Rivero noted that the proposed plant quantities “far exceed the accepted legitimate medical needs of an average individual patient.”

He said the document also fails to set penalties for violations, and he argues that the initiative – which he does not believe could withstand judicial scrutiny – would prevent criminal prosecutions for the cultivation of an unlimited number of plants and interfere with his agency’s authority to even investigate such complaints.

“It’s worth reiterating at this point that the basic and undisputed tenets of California jurisprudence dictates that local ordinances cannot run contrary to state laws and survive judicial reviews,” Rivero’s letter to the board stated.

He added, “I supported the previous ordinances recently passed and subsequently rescinded by the Board providing legitimate medical marijuana patients safe access. But, for the reasons outlined in this document, I believe the ordinance now before the Board conflicts with the best interests of Lake County’s residents.”

Proponents respond

Lake County Citizens for Responsible Regulations submitted comments on each of the department reports Monday night.

The group countered the department heads’ findings, arguing that they failed to acknowledge “the current and longtime financial benefits to the county of responsible cannabis cultivation,” don’t give justifications for some of their statements and confused land use provisions.

The group’s response also suggested that, “Given the economy, the price of gas, and the algae problem in Clear Lake, traditional tourism is likely to continue to decline. It is time for the county to reverse its policy, allow dispensaries around the lake, and promote cannabis tourism.”

Regarding concerns about the Right to Farm Ordinance, the group suggested that common sense dictates that cannabis “is a plant and an agricultural crop, just like corn, grapes and tobacco, federal law notwithstanding. Since medical cannabis is a legal agricultural (cultivated and farmed) crop in California, it should be entitled to the same protects under the Right to Farm Ordinance as any other agricultural crop.”

Further, the group objected to county counsel’s analysis that the Right to Farm Ordinance only applies to agricultural activities conducted for commercial purposes, and offer a broader definition.

“That being said, the large collective gardens are generally commercial operations, with the primary grower being paid an income from the other collective members for his or her efforts. There is a legal distinction between making an income and making a ‘profit,’” the group contended, adding that California law does not prevent a cannabis provider from making a profit, “despite a widespread misperception to the contrary.”

The matter, ultimately, may be left up to the California Supreme Court to decide, but in the mean time the group quoted a Feb. 7 letter from retired state Sen. John Vasconcellos, a member of the Medical Marijuana Task Force that drafted SB 420, “The Medical Marijuana Program Act of 2003.”

Vasconcellos said that the bill’s language neither prohibits nor explicitly authorizes profit, and was carefully worded to accommodate differing opinions of task force members, some of whom wanted to outlaw profit and others who did not.

Vasconcellos’ letter said nobody is required to obtain authorization from the state Legislature to make a profit, adding, “The language does not in any respect purport to prohibit profit – if that had been the intent, the language would have so stated clearly. It obviously does no such thing.”

He said a similar section governing collectives and cooperatives also is silent on the profit issue.

Regarding issues brought up by Community Development, Water Resources and other departments about impacts on neighbors, water sources, use of fertilizers and pesticides, and overall impact quality of life, the group said that the ordinance would limit grow sizes, thereby addressing those concerns.

All of the documents are posted below.

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022112 Board of Supervisors - Marijuana Initiative Analysis022112 BOS - Additional Marijuana Initiative Reports110411 Lake County Marijuana Cultivation Initiative