LAKE COUNTY, Calif. – Just days after the Board of Supervisors passed an interim urgency ordinance to address the county’s burgeoning marijuana cultivation, three medical marijuana patients are seeking a temporary restraining order to stop the county from moving forward with the regulations.
County Counsel Anita Grant said her office received notice on Wednesday of the hearing, which is scheduled to take place Thursday at 4:30 p.m. in Lake County Superior Court. The matter is to go before Judge David Herrick in Department 1.
Attorney Joseph Elford arranged for the hearing. He is chief counsel for Americans for Safe Access. However, both Elford and Americans for Safe Access spokesman Kris Hermes told Lake County News that the group isn’t bringing the action.
Elford said he’s representing three clients whose names are not being released. “Right now they want to remain anonymous,” he said. “There is a significant risk of retaliation, unfortunately.”
The two men and one woman are being named as John Does and Jane Doe, respectively, in the action, the documents for which Elford plans to file ahead of the hearing on Thursday.
Grant said Deputy County Counsel Bob Bridges and Community Development Director Rick Coel will represent the county at the Thursday hearing.
Elford’s filing is in reaction to the supervisors’ 4-1 vote on Monday to pass a 45-day interim urgency ordinance. The vote followed a heated seven-hour meeting at the Lake County Fairgrounds.
The ordinance allows 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, and the potential for fines and jail time for growers who are out of compliance.
Supervisors Anthony Farrington and Denise Rushing, who are members of a board-appointed marijuana cultivation advisory committee, advocated for changing the original, stricter plant numbers Coel had proposed with numbers closer to what had been proposed by the committee.
The majority of the board accepted those numbers, with Board Chair Rob Brown the dissenting vote due to his concerns that the plant numbers were too high. He said at Tuesday’s board meeting that he considers the ordinance the most liberal of its kind in the state.
Elford’s filing came in advance of the issuance of the final ordinance document, which Coel was still reworking to the board’s specifications Wednesday afternoon.
“They don’t even have the ordinance in their hands yet to know what they’re trying to sue us on,” Coel said.
Attorney: Ordinance doesn’t meet medical needs
Elford said the ordinance is “mildly better” than what was proposed a few weeks ago, however he maintained it’s still preempted by state law.
“State law is clear here,” he said, referring to the 1996 Compassionate Use Act.
He said the law allows for medical marijuana patients to cultivate and possess whatever is necessary to treat their medical conditions.
“For one person that may be a single plant,” Elford said.
However, as an example, Elford said that, in the case of one of his three clients in the case, the six-plant limit for a small residential parcel is only a fraction of what he needs.
That man has lung cancer, lives on a residential parcel that’s less than half an acre in size, and lacks the financial ability to cultivate indoors, meaning he must take advantage of the limited outdoor growing season to grow the supply he needs for the year, Elford said.
Elford said his client uses marijuana in edible form to treat his nausea and chronic pain. When marijuana is ingested rather than smoked, Elford said it takes three to five times the supply to meet the need.
“He needs, realistically, 18 plants to satisfy his medical marijuana needs for a year,” Elford said.
Elford said SB 420, enacted by the state Legislature in 2004, attempted to apply limits to what medical marijuana patients could possess. However, the California Supreme Court ruled in the case People v. Kelly that those attempts by the Legislature to amend a voter initiative were unconstitutional.
What’s not clear is how the county can move forward with regulating marijuana grows, which even halfway through the season are continuing to spring up in large numbers around the county.
Both Grant and Coel said the county’s interpretation has been that, according to zoning law, if a use – like marijuana cultivation – is not specifically allowed, it’s not legal.
“It’s in three different sections of the zoning ordinance,” Coel said.
That interpretation has been held up repeatedly throughout the country, according to Coel.
Elford argued that Proposition 215 supersedes those zoning rules.
However, while marijuana advocates argue that the Compassionate Use Act gives them the right to grow, Grant noted, “There isn’t any right that’s absolute,” adding there always are restrictions.
“There has never been a court decision that said there was unfettered authority to just grow, cultivate anywhere,” Grant said.
Grant said the law on medical marijuana in California remains in flux, and she’s hoping the California Supreme Court will offer clarifications.
Coel said the right to violate basic zoning isn’t given to other more longstanding uses.
He said the county wouldn’t allow someone to go into the middle of town and put in a pear orchard. Neither are beehives or livestock allowed on residential parcels.
Coel is concerned that Lake County took too long to tighten up its regulations, which other jurisdictions around Northern California have been doing.
Coel has researched other jurisdictions, noting that many of them have prohibited outdoor cultivation – including the city of Ukiah and, locally, the city of Lakeport. Neighboring Mendocino County also doesn’t allow outdoor cultivation on parcels under a certain size, he said.
Those rules have stood, according to Coel.
“There’s no other place for them to go,” he said of growers, adding that Lake County has become “ground zero for the fight now.”
Coel said he plans to meet with sheriff’s staff soon to plan how to move forward on nuisance grows.
Considering other options
Coel said it’s hard to get an injunction on urgency ordinances, which also are immune to referendums.
“It’s really difficult because these are immediate, serious health threats going on,” he said.
Elford argued that if a serious emergency had existed, the board would have acted earlier than it did – such as before the growing season started.
He said the temporary restraining order he’s seeking will be carefully crafted to allow the county to move forward with addressing issues involving grows on vacant parcels.
People don’t have the right to squat and camp on property and plant, Elford said. “That’s by no means what we’re saying.”
He suggested the ordinance can go away and the county still has ways to address nuisance issues.
However, he said the county must prove grows are a nuisance, and not apply broad findings that don’t take into account personal medical needs.
“They’re just basically saying, we’re going to call this a nuisance per se, and you can’t prove your innocence,” he said.
Elford said case law elsewhere has established that just because a jurisdiction makes an emergency finding doesn’t mean one actually exists.
“We’re not asking for the world here,” he said.
“All we’re trying to do is maintain the status quo so this can be sorted out in a judicial fashion,” he said, noting his clients want a hearing before irreparable harm is caused by the sheriff carrying out abatements.
If the temporary restraining order isn’t granted, Elford is prepared to take other steps, including going directly to the First District Court of Appeal in San Francisco, where he said petitioners are entitled to an immediate appeal.
Grant said it’s premature to try to guess what the court might do.
However, she said that even if the temporary restraining order that Elford is seeking is granted, there wouldn’t necessarily be a permanent consequence for the county.
She said the Board of Supervisors and its marijuana cultivation advisory committee could continue efforts to set up cultivation rules.
“This doesn’t end the conversation, no matter what,” Grant said.
Email Elizabeth Larson at firstname.lastname@example.org .