LAKEPORT, Calif. – A Lake County judge on Friday granted a preliminary injunction to several plaintiffs who sued the county over its interim urgency marijuana cultivation ordinance, and while the injunction protects qualified growers acting in compliance with state law the judge ruled that those protections are only good through the end of this year.

While Judge David Herrick offered those short-term protections, perhaps his most important finding was that the county's ordinance did not violate state law when it came to the issue of plant numbers. The ordinance limits the number of plants that can be grown on residential parcels; however, it does not expressly limit the number of plants a patient can grow.

“I think that's its redeeming constitutional feature,” he said.

Herrick made the ruling in the case of Don Merrill and three anonymous plaintiffs who sued the county last month, just days after the Board of Supervisors passed the ordinance in a 4-1 vote on Monday, July 9.

The ordinance's limits include six plants 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.

Merrill and his co-plaintiffs had filed suit, contending that the ordinance's limits were not enough to satisfy their medical needs.

County Counsel Anita Grant said after the hearing that the county will carefully consider what steps to take next.

“At this point the county is going to have to consider its options and we'll be reviewing very carefully the transcripts of the judge's ruling,” she said. “It is significant to us that the court confirmed our authority under the law to regulate land use, including the cultivation of marijuana and to abate land use violations when conditions create a nuisance to society.

Grant said the Board of Supervisors will move forward with a hearing set for next Tuesday, Aug. 21, at which time the supervisors will consider staff's recommendation to extend the interim urgency ordinance. That meeting will take place at 6 p.m. at Kelseyville High School Activity Center.

Grant also pointed out that Herrick's ruling is only good for those subjects growing marijuana before the ordinance was passed on July 9. It doesn't apply to anyone putting plants in today.

Considering the power to abate

Senior Deputy County Counsel Bob Bridges and Community Development Director Rick Coel appeared on behalf of the county during the Friday afternoon hearing, with Joe Elford, the attorney for Merrill and the co-plaintiffs, appearing by telephone.

Herrick said at the hearing's start that there were issues that still needed to be addressed, particularly Elford's argument applying to the county's power to abate.

Elford's filings had suggested that in order to abate a nuisance the county must first determine that the conduct constitutes a nuisance rather than summarily declaring it so and enforcing the nuisance ordinance.

Herrick used the example of having an ordinance declaring tire burning a nuisance. If a county official discovered a pile of burning tires, it made no sense to Herrick that the county would have to give notice and go through a due process hearing in order to abate the nuisance rather than first putting out the fire.

Herrick said he thought that if a governmental body declared something to be a public safety issue that nuisance ordinances would allow them to do a summary abatement, without the hearing process. Elford said that was true, but the body would need to prove there was a problem.

Bridges said the board ruled there was a public safety problem in passing its ordinance.

Herrick asked Elford if he was contending that such nuisance ordinances cannot be summarily enforced.

“They need to go under the proper procedures,” Elford said. “Due process requires that.”

Bridges told the court that the county had within its police powers the right under extreme situations to set limits on activities.

Herrick said it was his finding that when an ordinance declares something a public nuisance, the ordinance can be summarily enforced.

The judge at one point seemed impatient with the attorneys, who were not responding to his specific questions about whether summary enforcement of the ordinance could take place.

In the case of burning tires and rabid dogs, Elford said the county would have to demonstrate exigent circumstances under specific cases. “Here they're not doing that.”

The constitutional question

Moving into his ruling, Herrick considered whether the county's ordinance was constitutional.

He referenced the Lake Forest case, named for the Southern California city that was involved in a suit where an appeals court ruled that cities couldn’t shut down dispensaries that grew their own marijuana.

While the California Supreme Court is reviewing the case, Herrick said he found “sound legal analysis” in the appeals court decision, which he used to consider the Merrill case.

The central argument in Merrill's case is that the county ordinance was seeking to amend the state's Compassionate Use Act. However, Herrick didn't find that to be true, saying it was his conclusion that the ordinance did not expressly limit the total number of plants that can be grown.

“As written, it only limits the number and manner in which marijuana can be grown by a qualified patient and collective on residential parcels outdoors,” he said.

While the county's numerical limits on plants are arguably arbitrary, Herrick said they appeared to be reasonable in the same way that setbacks and screening requirements in the ordinance appeared reasonable.

Herrick said the county's findings “appear to be logical and sound and were based upon regular due process hearings,” and he accordingly found that the ordinance was not an unconstitutional usurpation of the Compassionate Use Act or the state's Medical Marijuana Program law. Nor did he find the numerical limits on plants to be an unconstitutional amendment of the Compassionate Use Act.

With regard to the county's ability to propagate and enforce such ordinances, Herrick disagreed that there must be a hearing in each nuisance case before abatement took place.

“Generally, dangers that don't ripen into injury can be abated,” he said, quoting a 1948 case that dealt with a wooden building surrounded by flammable debris that was held as a fire hazard despite the fact that it hadn't burned or caused actual harm to anyone. As such, he said there can be summary abatements.

Taking up vested rights

Then Herrick turned to the issue of vested rights, which Elford had argued. That doctrine, as it applies to California land use law, holds that a land use can continue even when subsequent zoning changes make that use impermissible.

In that regard, Herrick said he disagreed with the county's analysis that the general zoning ordinances which existed when this year's outdoor marijuana grows were planted put the qualified patients and collective growers on notice that their activity was already illegal and a nuisance, and therefore could be enjoined.

It has been the county's consistent argument that any use not specifically allowed within the zoning ordinance is not a legal use.

Herrick said it was a matter of whether or not qualified patients had a right under the Compassionate Use Act or the Medical Marijuana Program to cultivate marijuana prior to the adoption of the ordinance.

In that context, he didn't find that growing marijuana was illegal based on the zoning ordinance.

State laws passed for medical marijuana patients were meant to create an affirmative defense to certain criminal charges, Herrick said. However, that doesn't necessarily mean people have a right to do it.

“So it's my opinion and my finding that marijuana cultivation activities that were commenced prior to the adoption of this ordinance, and that conform to the requirements and restrictions of the Compassionate Use Act and MMP (Medical Marijuana Program) cannot be abated by virtue of the ordinance,” he said.

He said he would grant a preliminary injunction that protects this year's outdoor grows that conform to state law from abatement. He said the injunction's language can mirror the limited temporary restraining order he granted in the case previously, which was specific just to the plaintiffs.

“I want it to be clear that this is a limited injunction,” Herrick said, with protections in the injunction ending Jan. 1, 2013.

Herrick asked Elford and Bridges to work together to collectively draft the language of the preliminary injunction. They agreed they would.

Herrick concluded that Elford's “facial challenges” – which go to the ordinance's basic constitutionality, and seek to strike it in its entirety – were unlikely to succeed in a trial for a permanent injunction, while the arguments Elford made under the vested rights theory, which were essentially challenges based on application, were likely to succeed.

In balancing the hardships, Herrick said he found for the plaintiffs.

Also on Friday, Herrick denied without prejudice the ex parte application of Ron and Conrad Kiczenski to join Merrill's case. Herrick previously had denied the father and son's request for a temporary restraining order against the county over the cultivation ordinance.

“We're in extreme imminent danger,” Ron Kiczenski told the court.

Herrick summarized for the Kiczenskis the actions he took in the Merrill case, which – if the Kiczenskis are following California law – would appear to apply to them.

Herrick noted that it cannot be said today that qualified patients are not aware of the ordinance.

He said the problem with the Kiczenskis' application was essentially a procedural one, explaining that ex parte applications usually only are granted for emergency situations.

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