Supervisors look to expand medical marijuana ordinance guidelines

By From page A1 | June 17, 2013

An increasingly vocal number of county residents showed up at Tuesday’s board of supervisors meeting to present their views regarding the outdoor cultivation of medical marijuana and access or lack thereof to shops or collectives dispensing their medications.

At issue is county government’s intention to craft a permanent amendment to the County Code regulating such cultivation and distribution. Back in november 2011, the Board of Supervisors enacted “urgency ordinances” that imposed a moratorium on both the outdoor cultivation and on the establishment of new medical cannabis dispensaries. Both ordinances were extended once and now are scheduled to expire at the end of October.

“Unless the board wishes to allow the ordinances to expire, adoption of a permanent amendment to the county code is necessary,” reads a document prepared on the background of the issue. Toward that end, the board voted 4-0 to adopt a Resolution of Intention which will initiate the amendment process. District 2 Supervisor Ray Nutting did not participate in Tuesday’s afternoon hearing nor in the later vote.

The most common complaints from residents about marijuana cultivation are the odor of the plants themselves and the smoke from burning of the garden waste, Chairman Ron Briggs noted to the agreement of fellow supervisors. Other concerns include potential “criminal elements” entering neighborhoods, fire dangers and lack of water or other infrastructure to operate a legal cannabis growing site. Producing for the grower’s profit is prohibited but not uncommon. District 5 Supervisor Norma Santiago described law enforcement raids on commercial farms in the South Lake Tahoe area where the growers were selling large amounts to distributors in other states.

As presented and recommended by the Planning Division of the county’s Community Development Agency, the amendment to an eventual, permanent ordinance would include specific setbacks on property lines where cultivation is occurring. Prohibitions on outdoor cultivation within a certain distance from a school, church, park or other youth-oriented facility should be in place and enforceable. Current code requires a garden to be surrounded by an opaque fence between six and eight feet tall.

Staff recommended that supervisors consider increasing the minimum size of a cannabis garden, currently 200 square feet, that thus could provide for more than one patient if one were disabled or otherwise unable to take part in the work. They also discussed ways to allow non-residents of the cultivated property to benefit from the produce. With a property owner’s authorization, a renter could cultivate on a specific parcel. The latter circumstance should include a formal notification process to alert neighbors to the proposed land use, Santiago suggested.

One speaker explained to supervisors that he lives in a house but his garden property is across the street. It would be unreasonable to require and impossible for him to build a new residence on that property, he said.

“An appeal process to provide for consideration of unique circumstances that may apply to a specific site” was suggested as well and included in the supervisors’ draft resolution.

Burning of waste or residual material from a marijuana garden would be prohibited under the proposed ordinance guidelines, according to the recommendations. But one grower described a fairly simple process of grinding it up and using it for compost, which Santiago said was “intriguing” to her.

Odor control and setback standards are significant sticking points in development of a permanent ordinance. El Dorado Hills resident Rich Stewart testified that he was negatively impacted by the smell from a small garden several houses away from his and that minimal setbacks would not be effective. He went on to suggest a system in which large acreage, 200 acres or so, could accommodate 20 acres set in the middle of the property that could supply up to 4,000 patients with a necessary annual supply of medical marijuana. It would be capable of providing full-time security and include resident owners or property managers.

“Setback standards would need to be developed to adequately provide relief from the odor but not become so restrictive as to be prohibitive,” said the recommendation documents.

A number of speakers told supervisors that they are disabled and/or live in small apartments or don’t drive and are completely unable to plant and cultivate their own supply of medicinal cannabis. The Planning Division suggested that the board consider a “greater area for growing on larger lots.”

“Advocates for medical marijuana have suggested that on large lots, residents could pool resources and grow more than the 200 square feet allowed for one individual, provided that each person is a medical marijuana user and it is not being grown for distribution,” the documents read. “This could provide an alternative for someone who is physically unable to grow and sustain their own cultivation, or lives in a location where it is impractical or prohibited to grow outside.”

Briggs said, “This board is trying to enable those who need it to get it. But not for the guys who are coming in for their own profits. We are trying to give the Sheriff’s department and law enforcement the ability to enforce (the ordinance), and there should be an appeal process for the individual and for the neighbors to appeal.

“Make it legal and I’ll plant 100 acres tomorrow,” Briggs, a certified organic farmer quipped to general laughter and applause.

He added that he has not heard many complaints in the past months since the moratoria took effect and he asked audience members how they thought it was working.

Because of the conflict between state and federal laws regarding marijuana, local jurisdictions in California have had to be careful about how they weave a way between the two. Under the federal Controlled Substances Act, marijuana is listed as a Schedule 1 Drug and “has no currently accepted medical use in treatment in the United States, and has not been accepted as safe for use under medical supervision.”

California’s Compassionate Care Act of 1996 (Proposition 215), however permits “the cultivation and use of marijuana for medical purposes.”

Peter Maurer representing the Planning Division described the conundrum to the board, and the planning documents note, “The purpose of (County) Ordinances 4970 and 4971 was to try to find the balance between the conflicting state and federal requirements.”

Pesticide spray drift and fertilizer “creep” are also issues to be considered lest those products encroach onto other residential property or agricultural operations. This was brought to the board’s attention by Farm Bureau Director Valerie Zentner and Agriculture Commissioner Charlene Carveth.

District 1 Supervisor Ron Mikulaco described his obligation to take into account a large number of constituents and to “be as fair as possible to everyone” and urged that the ordinance be “as simple as can be” especially with respect to collectives and dispensaries. Currently there are several dispensaries in the county, but the laws regulating them are somewhat unclear, and supervisors declined to give a “legal” opinion on them. The City of South Lake Tahoe has jurisdiction over dispensaries in the city limits. Placerville has the same authority, while the county has jurisdiction in the rest of the unincorporated areas of the county.

The board directed county staff to work with interested parties over the next few weeks to come up with a draft Resolution of Intention.

“I never thought I’d hear myself say this, but I’ll work with the dispensaries to vet these ideas for my constituents,” Briggs said.

Maurer noted that it will be a challenge to deal with what is “clearly against federal law, but OK in state law” and said his department would carefully “analyze what has been successful in other jurisdictions.”

Contact Chris Daley at 530-344-5063 or [email protected] Follow @CDaleyMtDemo.

Chris Daley

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