LAKEPORT, Calif. – At its Tuesday night meeting the Lakeport City Council unanimously approved the first reading of a medical marijuana cultivation ordinance that would require grows be conducted within detached structures on residential properties.
The council will hold the second reading of the ordinance at its June 18 meeting.
In February, city staff had presented a draft ordinance to the council that prohibited outdoor cultivation and required all marijuana growing to take place in outdoor accessory structures, as Lake County News has reported.
Finding that draft document too limiting and open to legal challenges, the council directed that a committee be formed to work on an alternate ordinance.
Council members Kenny Parlet and Stacey Mattina, city staffers, and city residents Howard Holtz and Kim Beall were on the committee, which met in March and April before unanimously accepting a final draft that later, with some minor modifications, was recommended to the council by the Lakeport Planning Commission.
The document before the council on Tuesday night also prohibits outdoor cultivation and requires grows to be contained in accessory outdoor structures. However, it also puts the emphasis on complaint-driven enforcement.
The new document may not be free from legal challenges. Lower Lake attorney Ron Green, who attended and participated in the committee meetings, appeared on behalf of a group calling itself the Emerald Unity Coalition. He warned that the city could be sued if it implemented the new rules.
With marijuana grows already under way, Councilman Marc Spillman asked what city residents could expect this year if they report a nuisance grow.
Police Chief Brad Rasmussen said city staff intended to immediately begin a public education campaign about the ordinance and its requirements in advance of any enforcement actions.
“We want to educate the public to make sure the information is out there and everyone understands what the consequences will be before we implement enforcement,” he said.
City officials said the consequences for noncompliance are infractions and citations, and would be routed through the city's recently approved administrative citation process. Nuisances could be abated without fines.
“It's primarily complaint-driven,” said Rasmussen.
Parlet said the committee had included a section that emphasized that dealing with grows that were nuisances or caused public safety concerns were a priority.
“We're not looking for trouble,” Parlet said. Rather, he said they were attempting to protect city residents.
Councilman Martin Scheel asked City Attorney Steve Brookes if the city would need to wait until Jan. 1 for full enforcement. Based on a judge's ruling last year in a case challenging the county's medical marijuana cultivation ordinance, enforcements were prevented against grows that were already planted by the time the county's document was accepted through Dec. 31 of last year.
Brookes said waiting until January for full enforcement might be the prudent thing to do, with the first six months devoted to public education.
“My concern overall has been avoiding litigation, obviously, but also protecting the people that are not involved in the growing of medical marijuana,” and who have their own financial interests and property, said Parlet.
He said many people have become collateral damage, losing property values and use of their property. Referring to a recent California Supreme Court ruling that upheld local governments' zoning rules with relation to medical marijuana, Parlet said the court has shown the city can do what it's proposing.
City Manager Margaret Silveira said the ordinance will take effect 30 days after the final reading, and that they would work on education between that point and January and take up enforcement on a case-by-case basis.
During public comment, Holtz asked Brookes if noncompliance without causing a nuisance is a legitimate complaint.
Brookes said he couldn't speak for police, but he said if the city received a complaint about growing with no nuisance element, he didn't think they would be willing to address it.
Rasmussen said enforcement would be based on legitimate and verified complaints. If there wasn't a violation the city wouldn't take action.
If that is the true intent, “this is probably the best ordinance in the state,” said Holtz.
Community member Tom Kalk said he thought it was a good ordinance. Noting that he didn't think most people are interested in intruding in the lives of others, Kalk said he supported the ordinance and hoped the council would approve it.
In response to Holtz's comment about the ordinance, Green said, “It's kind of laughable to think that this is one of the best in the state. It's one of the worst.”
He said its ban on outdoor cultivation was likely to be challenged, and said the city should put of implementation until Jan. 1.
“We feel you ought to allow some outdoor cultivation,” Green said, calling the proposed ordinance “unreasonable.”
He said nuisance grows already could be dealt with through the city's nuisance laws, and added that the city should stay away from trying to control indoor cultivation, suggesting any rules established to address it wouldn't be enforceable.
Green wanted the city to increase the square footage for plants from 80 square feet to 120 feet, and said an environmental impact report on the new rules should be carried out. He also wanted the city to mirror the county's ordinance – which he had said had been challenged on the vested rights legal theory – in order to have uniformity.
Mayor Tom Engstrom asked Planning Services Manager Andrew Britton about the original growing area allowed for grows under the ordinance. Britton said it originally had been 50 square feet but was raised to 80 square feet.
Beall, who runs a child care business from the home she has owned for 23 years, said last summer she lost four clients – amounting to a $24,000 annual loss – because of the marijuana that could be seen and smelled in her neighborhood.
“If you pass the ordinance, what they're saying is, you could get sued,” said Beall.
She acknowledged that was true, adding, “But good fences make good neighbors,” paraphrasing poet Robert Frost.
Beall said the draft ordinance was designed to be a middle of the road approach. “We have to be able to live together.”
The city could wait to enforce it until Jan. 1, but that would mean the city would smell like marijuana all summer, which Beall said is not likely to help the tourist industry that's important to the area.
She said she believed the ordinance would work, and noted of the committee, “We worked really hard on it.”
Lakeport resident Terri Persons also encouraged the city council to adopt the ordinance. She asked that they be proactive in educating residents and persistent on enforcement.
Scheel said banning outdoor growing had been a concern for him. He said he was contacted by two people who represent those unlikely to come to a public meeting to voice their concerns. The individuals in question grew small amounts indoors.
“Don't ask, don't tell may have to suffice for us to get something passed,” he said.
Scheel said the city has to do something, explaining that in his neighborhood he can't stand to be outdoors due to the smell of marijuana grows.
Parlet said he didn't think they could wait until January, and said Green's remarks surprised him, considering Green had attended all but one of the committee's meetings and had been instrumental in some of the changes the committee had made to the document. There also has been a number of compromises, he added.
Parlet said Green's comment about the ordinance being the worst in the state was insulting. “Ours is anything but onerous.”
He pointed out that the city had brought in stakeholders to help craft the document.
The city is hearing “the same thing over and over again” from people – that they can't go outside and enjoy their property, Parlet said.
He said the ordinance was a great piece of work and added, “We need to move forward.”
Mattina emphasized the compromise that had been employed in writing the ordinance. She said there were people who wanted to grow marijuana everywhere and others who wanted it allowed nowhere. She said Britton collected a lot of information to help them in crafting the document.
“It's the right thing to do,” she said of passing the ordinance, adding that Green's threats to sue were not the right thing to do.
Scheel moved to approve the first reading, with Mattina seconding. The vote was 5-0.
Later, at the end of the meeting, Engstrom thanked Britton for his efforts, noting it must have consumed his time since February.
Britton emphasized it wasn't a staff-driven effort. “It really was the product of input from the community,” said Britton, adding that he was glad the city was moving forward on it.
The proposed ordinance can be seen below. It begins on page 23 of the packet.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.