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HomeMy WebLinkAbout3-14-11 marijuana ordMACKENZIEK.A~vNuD, EIs,AW RosE~~r WMarch ~UZGOi 1Q~ ~Q,~.~p~,, Board of Supervisors of the County of Butte MAR ~ Y~hSa~S CIO Paul Hahn, CAO and Clerk of the Board ~RQ~ ~ ZD~f 25 County Center Drive, Suite 240 Oroville, Ca 95965 ~ ~U~~RNW ItE: Proposed Cultivation Ordinance Presented to the Public at the Board's Meeting of February 22, 2011: Corraments Submitted on Behalf of Clients Dear honorable members of the Board of Supervisors and CAO Hahn: This letter provides input from me and my clients on the above referenced proposed ordi::a„ce. My clients are the owners of land in all five Supeivisorial districts. The Process As you know, normally, amendments to the County's General Plan, and/or zoning or other ordinances, for example, amendments to the County's sewage disposal ordinance brought forward in 2007, are drafted and presented in "final form" after public outreach to landowners and concerned citizens, and the incorporation of input from the public. Here, the ordinance had been drafted by County staff and law enforcement officials, and was presented to the BOS and the public, along with a recommendation that it be adopted at the very first meeting during which the public could comment on it. Further, the introductory presentation by the District Attorney and Sheriff implied that medical marijuana growers are, for the most part, criminals who grow a dangerous drug with no medical benefits, who are simply masquerading as medical providers. Finally, the introductory presentation also implied that the County is presently in the grip of a crime wave being perpetrated by those who grow marijuana, and that immediate action is required by the Board. My clients and I do not believe that the current situation is dire. Further, your Board should be aware that many Iandowners, including my clients, have already invested substantial time and resources in the coming growing season. Accordingly, my clients and I do not believe that your Board should rush into adopting an ordinance, Instead, we request that your Board either form a Board subcommittee and meet with landowners and County staff, or simply direct staff to meet with landowners or their representatives, so that adequate landowner input is received and considered, prior to adoption of the ordinance. In order to begin a dialogue, I have incorporated specific comments below, which identify potential problems with specified provisions of the proposed ordinance and also suggest ideas for solutions. Nory Qp O / 7 S 30.~8/95~902 Fax 530.899.II02 330 Wall Street' Srzite 40 Chico, Cw4 95928 ~'C . ~ ~ ~Q Gl,l.#n"~ ~~J a k~izielandlaw.com r ~ ;~ Board of Supervisors of the County of Butte and CAO Paul Hahn March 10, 2011 Page 2 Ordinance Content Inconsistency with other County Policies The proposed ordinance is inconsistent with several existing time-honored County ordinances/policies. We think that your Board should carefully consider whether or not to include policies in the proposed ordinance which conflict with existing policies, policies which have withstood the test of time and which seem to work just fine. Foa• exarnpie, for the most part, County code enforcement, and County nuisance enforcement, in particular, has always been conducted on a "complaint only" basis. The reason for this policy is that the County has never had the resources to field the number of code enforcement officers which would enable the County to conduct a comprehensive County Codc enforcement program. Hence, only those County Code violations which are actually adversely impacting neighbors are investigated and prosecuted. The proposed ordinance would begin a new era in County Code enforcement, characterized by repeated and unnoticed compliance inspections and onerous regulatory requirements, one in which the Sheriff's Office is explicitly authorized to conduct repeated warrantless compliance checks. If the proposed ordinance does not prohibit repeat inspections, or require an adequate notice, given a reasonable amount of time prior to an inspection to the landowner, then the proposed ordinance would transform the growing of medical marijuana on private property into a pervasively regulated activity. Hence, the proposed ordinance would effect a dramatic change in the manner in which the County Code enforcement program is currently operated. In our opinion, there has not been a sufficient showing made to justify such a sweeping departure from the existing code enforcement system. Finally, although it pains us to mention it, at a time when new revelations of police misconduct are brought to light almost daily, your Board should carefully consider how much power that an ordinance with the enforcement provisions set forth in this one would put in the hands of law enforcement officials, not all of whom may conduct their duties in an impartial manner. This is particularly true, where, as here, the ordinance would regulate medical marijuana, an indisputably polarizing subject. We think that your Board noticed the culture clash that occurred during your meeting of 2122111. Simply put, many of those who object to the cultivation of medical marijuana simply don't like the idea ofpeople growing and smoking marijuana. As you know, generally, law enforcement is conducted in a selective manner. We can only hope that the enforcement personnel conduct their duties by using fundamentally fair selection criteria. Unfortunately, that is not always the case. Accordingly, please carefully consider how much power your Board's proposed ordinance will put in the hands of law enforcement officials who may have very strong anti-medical marijuana biases. For example, your Board should consider adding text to the proposed ordinance Board of Supervisors of the County of Butte and CAO Paul Hahn March 10, 2011 Page 3 requiring that enforcement of the ordinance can only be undertaken after a complaint has been made concerning an undesirable impact allegedly proximately caused by the cultivation of medical marijuana by a neighboring property owner or resident living within 300 feet of a property line and/or corner of premises upon which cultivation of medical marijuana is taking place. Enforcement Provisions We are concerned about the proposed ordinance's enforcement provisions (See Section 34A-11 through Section 34A-18} which provide that, should a medical marijuana grow be found to be out of compliance in any manner with any portion of any requirement in the ordinance (See Section 34A-11), and the land owner cannot bring the grow into compliance within 72 hours, the enforcement officer may set the matter for hearing. See Section 34A-13(a). Once a hearing has been set, there is no provision in the proposed ordinance setting forth any way to call such a hearing off: If, at the hearing, a decision is made in favor of the County, the county can charge the landowner for essentially every expense the County has incurred during the hearing and the abatement of the grow, including attorneys fees. See Section 34A-13(j){1}. If the landowner cannot afford to pay those costs within 15 days, the County can then lien the property, by recording a special assessment against the property. See Section 34A-130(2). Ultimately, if the property owner cannot pay the cost of the special assessment, the property could be sold at a tax sale.' Hence, the proposed ordinance may ultimately result in the County to taking a landowner's land, simply because the land owner could not bring conditions on his land into compliance with the proposed ordinance within 72 hours of a notice of violation of the ordinance, and then could not afford to pay for an abatement within 15 days of receiving the bill. This is also a dramatic change from existing County Code enforcement policy, and one that could have catastrophic consequences. t7emember, arty violation of the ordinance is considered a nuisance and could trigger an enforcement action. A landowner could Iose his or her property because the enforcement procedure set forth in the proposed ordinance could be irretrievably set into motion, while landowner is enjoying a brief ~ Government Code section 25845(4) provides: (d) If the owner fails to pay the costs of the abatement upon demand by the county, the board of supervisors may order the cost of the abatement to be specially assessed against the parcel. The assessment may be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as are provided for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of county taxes are applicable to the special assessment. Board of Supervisors of the County of Butte and CAO Paul Hahn March 10, 2011 Page 4 summer vacation, or even a long weekend, out of the County. My clients and I request that Section 34A-13 of the proposed ordinance be amended to parallel Butte County Code section 41-2 {Code Enforcement Policy), such that code enforcement must issue a formal 10-day warning notice to those in violation of the proposed ordinance, prior to actually taking enforcement action. Of course, there could be an exception to this rule, such that if the Director of Development Services finds that there is reasonable basis to believe that the violation constitutes a threat to the health and safety of any person or persons, the enforcement officer may abate the violation, pursuant to a warrant issued by a court of competent jurisdiction. Allowable Number of Plants The proposed ordinance is unnecessarily restrictive concerning the number plants allowed in parcels of less than one acre in size, and may well be inconsistent with State law. The Medical Marijuana Program Act (Health and Safety Code section 113b2.77) allows a qualified patient ar caregiver to maintain six mature marijuana plants pre qualified patient. Onky two mature plants are allowed on parcels of less than one acre. See Section 34A-4(a)(1). This means that in Butte County, qualified patients would be required to cultivate their crop on three different parcels, if the only land they have access to are parcels of tress than one acre. This is inconsistent with the provisions of the Medical Marijuana Program Act. Six plants should be allowed on parcels of less than one acre. Allowing six plants would make the proposed ordinance consistent with the Medical Marijuana Program Act. Setback Requirements As I pointed out at your Board's meeting of 2/22/11, we believe that the setbacks set forth in Section 34A-b of the ordinance are too restrictive. Because most parcels of land are not perfectly square, the setback requireinerrt~ in tl•~e ordinance should be more realistic. Currently, for example, for a parcel size of just over one acre, the setback requirement is 100 feet. Most parcels of just aver one acre are not 100 feet wide. Hence, pursuant to the ordinance, there is no usable area on such parcels. With regard to parcels of just over one acre to 20 acres, the setback requirement of Section 34A- 6(a){2) can be excused by the Director of Development Services or your Board, based upon a f nding of unusual hardship. However, there is nothing unusual about a parcel aver one acre in size, that is less than 100 feet wide, unless that parcel is over five acres in size. Hence, the language of Section 34A-6(a)(2) should be amended to provide more flexibility. The ordinance imposes the same hardship on parcels of 20 to 60 acres and parcels of 160 to 200 acres {the smallest parcels of their respective size classes). However, there is no "hardship exemption" far the owners of parcels in these two size ranges in Section 34A-6(a)(3) and Section 34A-fi(a)(4). Hence, the proposed ordinance's setback requirements would completely preclude the owners of every narrow parcel in the County of over 20 acres in size, from cultivating medical marijuana, whether or not Board of Supervisors of the County of Butte and CAO Paul Hahn March 10, 2011 Page 5 their parcels are located in remote areas, and without regard to the proximity of their neighbors' dwellings, if indeed neighboring properties have dwellings on them at all. In this regard, there are two methods which might be employed, in conjunction with one another, to install more practical setback requirements in the proposed ordinance. The first is simply to include more land area classes in the ordinance. For example, if the ordinance set forth varying setback requirements for six or eight different classes relating to parcel size, rather than four, perhaps the impacts on parcel sizes at the bottom of each class would not be so severe. In addition, each class should contain an exemption which would apply where the shape of the premises, topography, the presence of a creek or other body of water or water (irrigation) source limits cultivation location, limited vehicular access options, dense vegetation, another natural feature, the location of existing structure(s) on the premises or any combination of these features renders the setback prohibitive, by reducing the usable area on the parcel to the goint where it is impractical to cultivate less than 100% of the allowable plants. The setback requirements in the proposed ordinance are unnecessarily restrictive in situations where neighbors are either growing medical marijuana themselves, or simply don't mind the smell or any other aspect of a medical marijuana grow on a neighboring property. Further, because medical marijuana grows are harvested annually, and hence are not permanent, they can be moved, unlike a structure or other land use. Accordingly, the ordinance should set forth an exemption for applicable setback requirements, with regard any property line and/or corner, for which the neighbor on the other side of it has given written permission, in the form of a letter directed to the Director of the Department of Development Services waiving the applicable setback requirement and indicating the distance that the neighbor prefers that the grow be set back from his or her property line andlor corner. The ordinance should indicate that a neighbor's written setback waiver may be revoked at any time, but that the revocation of a written waiver must be in writing, in the form of a letter to the Director of the Department of Development Services and shall not tfecome operative until .one year has elapsed from the date upon which the written revocation of the setback waiver is received by the Diarector of the Department of Development Services. In addition, the setbacks required seem to be excessive for larger parcels, particularly when those parcels are in remote areas without neazby residences. It would seem as if 100 feet is an adequate setback under these circumstances for parcels of 20-160 acres and parcels of over 160 acres. Of course, my clients agree that on parcels of 20-160 acres and parcels of over 160 acres, grows should be set back 300 feet from the nearest dwelling. Section 34A-10 of the proposed ordinance already includes a provision, requiring that, upon request County staff shall inform any person proposing to construct or operate a school, school bus stop, school evacuation site, church, park, child care center, or youth oriented facility regarding whether there is a registered premises upon which marijuana is cultivated within the required setback. My clients and I request that text be added to Section 34A-10 which parallels the existing provisions, but which applies in the case that the notice provisions apply when Board of Supervisors of the County of Butte and CAO Paul Hahn March 10, 2011 Page 6 a building permit is applied for to construct a dwelling within 300 feet of an existing grow. In addition, text can be added to the effect that as a condition of obtaining a permit to cultivate marijuana within 300 feet of the property line, on parcels of 2D-160 acres and parcels of over 160 acres, the permittee agrees in advance that, should an occupancy permit be issued for a dwelling, or any building or area intended far public assembly, on an adjacent property, the permittee shall move the grow to a location which is set back at least 300 feet from the said building. Finally, unless Section 34A-6 is made more flexible, for example by including setback exemptions which would apply in specified situations, this requirement could well have unintended consequences which are undesirable, such as potentially significant adverse environmental impacts, for example, erosion and degradation of water quality. Residency Requirements Section 34A-4(a)(4) requires that all persons cultivating marijuana on the premises or participating directly or indirectly in the cultivation must be Butte County residents. This residency requirement would appear to be pre-empted by federal law, because it regulates interstate commerce, which only Congress is allowed to regulate. In Gonzales v. Raich {2005) 545 U.S. 1, 125 S. Ct. 2195, the U.S. Supreme Court held that Congress could regulate individuals cultivating medical marijuana on their own land for personal use. The court's balding was based upon the premise that, by increasing the supply of medical marijuana, individual farmers who were growing medical marijuana for their own personal use could have an aggregate effect on interstate commerce. By requiring all those who participate directly or indirectly in the cultivation of marijuana on individual parcels to be Butte County residents, the ordinance essentially requires that medical marijuana farmers who own ar rent those parcels must hire farm wazkers and other .workers from within Butie County. It is likely that a court would interpret such a requirement as protectionist, similaz to an IIlinois statute, struck down by a federal court, which required trucks driving through that state to have curved mud flaps, which coincidentally, were only manufactured in that state. Brbh v. Navajo Freight Lines, 359 U.S. 520; 79 S. Ct. 962; 3 L. Ed. 2d 1003 (1959). Similarly, a New Jersey statute prohibiting the disposal of garbage brought in from other states suffered the same fate. Philadelphia v. New Jersey, 437 U.S. 617; 98 S. Ct. 2531. Such Iaws have been routinely struck down. Fencing requirements Section 34A-9 requires that all marijuana grown outside of any building must be fully enclosed by a solzd and opaque fence of approved materials by the Department of Development Services, at least 6 feet in height, or a height sufficient to conceal the marijuana from view, whichever is higher. This requirement is too restrictive, because portions of it are unnecessary in many situations. Thus, it is too restrictive. Further, it Board of Supervisors of the County of Butte and CAO Paul Hahn March 10, 2011 Page 7 is impractical, because it would dramatically increase the cast of growing medical marijuana on every parcel in the County. Finally, unless this requirement is made more flexible, for example by including exemptions in Section 34A-9 which would apply in situations, for example on remote, heavily wooded parcels, where it is not necessary to conceal medical marijuana plants from view by means of a sight obscuring fence, this requirement could well have unintended consequences which are undesirable, such as potentially significant adverse environmental impacts, such as erosion and degradation of water quality, disruption to and lar interference with •aildlife habitat areas and/or game trails (migratory, or simply habitual wildlife corridors) as well as potentially undesirable aesthetic impacts. In order to make the fencing requirement in Section 34A-9 more practical, and reduce the possibility that it will have unintended consequences, Section 34A-9 should contain an alternative method through which landowners can both provide adequate security and conceal medical marijuana plants from view, which would apply where topography, dense vegetation, another natural feature, or any combination of these features makes a sight obscuring fence unnecessary. Such an exemption could provide that where the above circumstances exist, the landowner could provide adequate security by constructing a fence of an adequate height and construction to keep trespassers out and conceal medical marijuana plants from view, through the use of dense vegetation. Forced Parcel Aggregation The definition of "parcel" in Section 34A-3(m) provides that where contiguous legal parcels are under common ownership and control, such parcels shall be counted as a single "premises," for purposes of the ordinance. This provision of the proposed ordinance would forcibly aggregate legal parcels under common ownership or control, such that the plant limits in Section 34A-4 would apply to a group of parcels under common ownership, regardless of the size of the parcels. This forcible aggregation of legal parcels under common ownership or control is unnecessarily restrictive,- and hence, impractical. The language of the definition of "parcel" in Section 34A-3(rn) should be amended to provide that, if the cultivation of medical marijuana on each separate legal parcel will meet both the plant limits and the setback requirements, without resort to an exemption, parcels under common ownership and control can. be counted as individual "premises," for purposes of the ordinance, as long as the total number of plants on all of the parcels under common ownership and control does not exceed 99 plants. Regulatory Fees As you know, many of those who spoke to you at your Board's meeting of 2122/11 requested that your Board set a fee schedule which won't price local medical marijuana prohibitively, such that those who are on a limited income cannot afford to buy it. We Board of Supervisors of the County of Butte and CAS Paul Hahn March 10, 2011 Page S have the same concerns. Regulatory fees should be set at the same level as Tehama County's fees. Tehama County's registration fee is $40 per grow. I wish to emphasize again what I indicated to your Board at your Board's meeting of 2122/11: My clients and I do not object to reasonable regulation of medical marijuana cultivation through a County ordinance, we simply object to the proposed ordinance which was introduced at your Board's above referenced meeting, for the reasons set forth above. My clients and I sincerely hope that your Board will incorporate meetings between staff and affected landowners into the process, so that adequate landowner input is received and considered, prior to adoption of the ordinance. We also request that your Board vote for an amended ordinance which addresses the concerns set forth above. Thank you very much for your consideration of the foregoing comments. Your~.~+~y truly, W: cc: Tim Snellings, Director of Development Services Bruce Alpert, County Counsel Mike Ramsey, District Attorney .Terry Smith, Sheriff