Pubdate: Wed, 9 Feb 2011
Source: Corning Observer (Corning, CA)
Copyright: 2011 Freedom Communications
Contact: http://www.corning-observer.com/sections/letters-to-editor/
Website: http://www.corning-observer.com/
Details: http://www.mapinc.org/media/5071
Author: Julie R. Johnson, Tri-County Newspapers
Cited: California NORML http://www.canorml.org/
Bookmark: http://www.mapinc.org/topic/California+NORML
Bookmark: http://www.mapinc.org/people/Dale+Gieringer
Bookmark: http://www.drugsense.org/cms/geoview/n-us-ca (California)

POT GROUP APPEALING COURT RULING

California NORML has announced it will appeal a court decision 
upholding Tehama County's marijuana cultivation ordinance.

"We believe the ordinance is restricting patients' right to grow 
medical marijuana," said Dale Gieringer, director of Cal NORML, an 
organization dedicated to reforming California's marijuana laws. It 
is helping to support the lawsuit financially.

The group issued its statement in an e-mail dated Sunday.

"The ordinance, which declares it a nuisance to cultivate any 
marijuana at all - indoors or outdoors - within 1,000 feet of a park, 
church, school, school bus stop, and such, effectively makes it 
impossible for many patients to obtain their medicine in accordance 
with Prop. 215."

Attorney J. David Nick will be appealing the Jan. 28 ruling by Tehama 
County Superior Court Judge Richard Scheuler, who dismissed a lawsuit 
seeking to declare the ordinance invalid.

Among other reasons for his decision, Schueler emphasized that the 
county has the authority to set zoning uses even for legal activities.

Assistant County Counsel Arthur Wylene said his office expected the 
appeal to take place even before the ruling came out.

"Based on the petitioners' statements when filing the lawsuit, we are 
not at all surprised by this decision," he said. "We are confident 
the court of appeals will uphold the ordinance."

The lawsuit was filed on June 7 by Nick and Editte Lerman on behalf 
of plaintiffs Jason Browne, Dawn Browne, William Browne, Michael 
Black, Grant Nott, LIndsey Crooks, Brian Loucks, Jason Cater, Josh 
Hall and Thomas Scott.

"After careful consideration of all potential issues, Cal NORML has 
decided to appeal the illogical ruling of the Tehama County Superior 
Court," Nick said. "Never before has an appellate court approved a 
rewriting of statewide law under the masquerade that its a zoning provision."

Tehama County Supervisor Bob Williams said he is not at all surprised 
to hear of Cal NORML's decision to appeal.

"The Board of Supervisors anticipated this when we learned of the 
court's ruling," he said.

Nick believes the state Supreme Court and state appellate courts have 
repeatedly held that municipalities have no authority to restrict 
what the breadth of state law expressly permits.

"The state's Compassionate Use Act gives individuals the ability to 
create their own medicine. Certainly that right will disappear in 
swabs of the whole state if it can be eliminated through the 'zoning' 
trick," Nick stated.

In his ruling, Scheuler said the court "finds as a matter of law that 
the state medical marijuana law does not pre-empt the field of county 
zoning," and the county's marijuana ordinance is not pre-empted by 
any state law nor does it violate or conflict with any state law.

He also ruled against the plaintiffs' claims the ordinance is 
unconstitutional and that it violates the right of equal protection 
and right of privacy.

Scheuler states, "creating the potential for zoning enforcement as to 
medical marijuana is not the same as criminalizing it," and cited the 
Kruse versus Claremont decision, which upheld the city's right to ban 
a medical marijuana dispensary.

Cal NORML states, unlike Claremont, Tehama County's ordinance limits 
the right of individual patients to grow marijuana and makes it 
impossible for patients to supply their medical needs.

According to Scheuler, the ordinance "reveals what appears to be a 
standard zoning ordinance through which the county seeks to protect 
the health safety of the community," and "conflicts with state law 
must be 'total and fatal' before local ordinances are disallowed."

Those involved in the lawsuit are confident the Third District Court 
of Appeal "will have a more accurate view of the law."

The county's marijuana cultivation ordinance, adopted by the Board of 
Supervisors on April 6, declares it a public nuisance to grow 
marijuana anywhere within 1,000 feet of a school, school bus stop, 
church, park or youth-oriented facility.

It also states no more than 12 mature or 24 immature marijuana plants 
can be grown in an area 20 acres or less, and if both mature and 
immature plants are growing there shall be no more than 24 total.

In an area greater than 20 acres but less than 160 acres, no more 
than 30 mature and 60 immature plants, with no more than 60 total at 
one time can be grown, the ordinance states, and in an area 160 acres 
or greater no more than 99 plants, whether mature or immature.

The ordinance requires outdoor gardens be surrounded by an opaque 
fence at least six feet high and located 100 feet or more from the 
property boundaries; and requires every patient garden to be 
registered with the county health services agency. 
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MAP posted-by: Richard Lake