LAKEPORT, Calif. – A judge on Friday granted a limited temporary restraining order to four plaintiffs who fear their marijuana plants will be eradicated by local officials acting under the authority of a 45-day interim urgency marijuana cultivation ordinance.
Judge David Herrick granted the restraining order only as it applied to Don Merrill and his three anonymous co-plaintiffs in the case.
Herrick said he would not make a global order that's going to affect every person in Lake County.
The precise wording of the order is to be drafted by Senior Deputy County Counsel Bob Bridges and attorney Joe Elford, who filed the motion earlier this month on behalf of Merrill and the three others – two men and a woman – who are medical marijuana patients.
The Board of Supervisors passed the ordinance on July 9, with Elford filing the action two days later.
The ordinance sets limits on marijuana cultivation, allowing for up to six plants to be grown outdoors on a half acre or less, 12 plants with a 75-foot setback on parcels of half an acre to one acre, 18 plants and a 150-foot setback on parcels one to five acres in size, 36 plants and a minimum 150 foot setback on five- to 40-acre parcels, and a maximum of 48 plants on parcels 40 acres and larger. There also are screening requirements.
Elford said he wanted to start by extending an olive branch to the county, which he said “represents that it has no intention of going after the plaintiffs in this case” or people like them.
He asked that the temporary restraining order make the county good on its word.
Bridges said Elford was asking to enjoin the enforcement of the ordinance, which he said the county intends to use to address egregious grows and environmental hazards. He said there are problems and “we need this ordinance.”
Bridges said he didn't have the authority to agree to Elford's stipulation, explaining that the plaintiffs were not their priority for enforcement.
The enforcements that have taken place so far have focused on dumped sewage, illegal wells, firearms and prescription drugs, said Bridges. “That's where we're going. We're going after the problems.”
“I'm simply asking for a temporary restraining order to hold them at their word,” said Elford.
He also noted during the hearing that the plaintiffs were not seeking to stop all enforcement. “We've already taken that off the table.”
Since the initial hearing on the temporary restraining order on Thursday, July 12, enforcements have taken place. “The enforcement proves this is no idle threat,” said Elford.
Once plants are uprooted there is irreparable harm, said Elford. He said the temporary restraining order would “maintain the status quo until we can get this fully adjudicated at the preliminary injunction stage.”
He said his unnamed defendants don't have the economic means to grow indoors or to purchase marijuana from a dispensary. “These are people who need more marijuana than the law allows,” he said.
Elford argued that under the state's Medical Marijuana Program law, qualified medical marijuana patients can have a minimum of six mature marijuana plants. The county ordinance clearly conflicts with that, he argued.
Merrill has a 30-member collective – which Elford said is allowed under state law – and grows his marijuana supply on a parcel of just over 10 acres. On his property he’s limited to 36 plants, but has 50.
Elford said the county can go after problems with marijuana grows through its normal code enforcement process, and doesn't need the ordinance.
Bridges said the plaintiffs' arguments were “absurd” and could lead to serious consequences for the county. He said they offered no specific facts. “All they talk about is fear and speculation.”
He said the county is prioritizing its enforcements. “Our role is not to go after legitimate patients and legitimate needs.”
The ordinance only limits outdoor cultivation, meaning there are alternatives, said Bridges. He said there are 24,000 potential sites in the county where a minimum six plants can be grown.
Bridges said that the Bill of Rights offers some of the most sacred rights – the right to bear arms, freedom of speech and freedom of the press – but he said all have reasonable regulation.
No right is totally free, said Bridges, yet he argued that the plaintiffs were saying they can grow as much marijuana as they need to. Bridges suggested they were claiming a “super right” exempt from all regulations, which he called unprecedented in the history of jurisprudence.
He said the state's marijuana laws are meant to provide a criminal defense for patients. “They would have the court turn the county into a regulatory free zone,” which Bridges said would cause the county's residents irreparable harm.
“We request the court not to let this happen, not to turn this county into a regulatory free zone, which is what the plaintiffs' requested relief takes us to,” said Bridges.
Elford said he'd never claimed people have an unfettered right to cultivate as much marijuana as they want. He said the plaintiffs were asking for their rights under the Compassionate Use Act and the Medical Marijuana Program Act.
“You can't let the subjective needs of people trump zoning,” said Bridges, noting he can't open a fast food restaurant or gas station in a residential area. “Our society doesn't work that way.”
Herrick acknowledged that the marijuana cultivation situation had gotten to the point where in many instances “it is a public safety hazard.”
He suggested that what may be the plaintiffs' most difficult hurdle is the tension between the valid exercise of governmental land use controls, restrictions and regulations versus the Compassionate Use Act.
Ultimately, however, he said he wasn't going to discuss those issues, which were more appropriate for the preliminary injunction hearing.
Herrick said it would have been impossible for the plaintiffs to have anticipated the precise language and numerical limitations the ordinance ultimately would contain at the start of the growing season.
“The immediate eradication of those plants would, in my view, constitute irreparable harm,” he said. “Once they're gone, they're gone.”
He suggested a temporary restraining order that would specifically protect the plaintiffs and the numbers of plants they need based on what they declared in their action. Herrick directed Elford and Bridges to work on the language.
A hearing on an order to show cause for a preliminary injunction will be held at 2:30 p.m. Wednesday, Aug. 15.
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