Pubdate: Sun, 29 Jan 2012
Source: Appeal-Democrat (Marysville, CA)
Copyright: 2012 Appeal-Democrat
Author: Jonathan Edwards


Live Oak trail-blazed through thickets of medical marijuana law last
month where few, if any, cities have journeyed.

The city of 8,600 residents became one of, if not the first city in
California to ban growing medical marijuana - both indoor and outdoor
- - but it's one of hundreds struggling to protect residents, allow sick
people their medicine and navigate state law.

James Maral, a Live Oak residnt who grows marijuana for himself and
his mother, is already testing the ban and state law. Maral filed a
lawsuit last week to get a temporary injunction to stop the ban, which
took effect Jan. 20. A judge denied the request on a technicality,
something Maral said he would remedy and take back to court in the
next couple weeks.

Maral's case forces the question: Can a city or county completely ban
growing and distributing marijuana? If so, where do patients like
Maral, who suffers from chronic back pain and intestinal problems, get
the medicine California voters decriminalized more than 15 years ago?

"Nothing is clear," said Bob Priebe, police chief of Moraga, an
affluent community of 16,000 tucked away in the East Bay hills between
Oakland and Walnut Creek. "That's why you find so many communities,
law enforcement and planning directors waiting to see where the next
turn on this whole thing is going to be."

Priebe led a "proactive" effort that ultimately resulted in the city
banning dispensaries and outdoor medical marijuana grows. Patients can
grow indoors so long as they do so in their main residence (not in a
shed, let's say) and keep their plants out of sight."

"It was justified," Priebe said. "It certainly wasn't going to deny
anyone with a legitimate medical issue from growing it in their home."

Live Oak, on the other hand, banned it, indoor and out. City Council
members, in the ordinance they passed, called indoor grows
"dangerous." If allowed, indoor operations would threaten residents
with electrical malfunctions and robbers willing to bust down doors to
steal drugs.

In Moraga, Priebe hasn't noticed any problems in the nine months since
the city forced all grows inside.

"We've not had any backlash, and everyone seems to be happy," Priebe
said, adding that the ban on outdoor grows and the regulation of
indoor grows sparked no legal action.

Lawsuits triggered

Other cities haven't been as lucky. Bans on dispensaries triggered
lawsuits like Maral's, some of which are now working their way to the
top of the state's legal hierarchy.

The state Supreme Court has agreed to hear four cases in which cities
banned dispensaries, not cultivation. Cities have focused their
efforts at regulating dispensaries over the last decade, because
dispensaries are easier to set up and more "aggressive," said Patrick
Whitnell, general counsel for the League of California Cities.

That's starting to change, however, as people start growing in more
back yards and neighbors complain about the smell and safety issues.

"They're a relatively new issue that's come up for cities and
counties," Whitnell said of backyard grows. "They're becoming more and
more prominent."

Tehama County Supervisor Bob Williams got wind of a problem when a few
constituents called to complain about a neighbor who was constructing
a 6-foot high fence around 2 acres on which they planned to grow
marijuana. Williams scheduled a meeting with them.

"I was met by a young mother of three who was in tears and in fear
that, if they had a grow right next to her house, she was afraid to
let her kids out of her house," Williams said.

He spearheaded an ad hoc committee to explore some sort of regulation.
Williams and his fellow board members ended up allowing outdoor grows,
but limiting the amount of plants you could grow based on lot size.

Patients living on less than 20 acres can grow as many as 12 plants so
long as they stay at least 100 feet from their neighbor's property.
Someone with 20 to 160 acres of land can grow twice as many plants
within 200 feet of their neighbor. Patients with spreads bigger than
that can grow 99 plants with 300 feet of another property line

Tehama County didn't pursue a ban, because Proposition 215 allows
patients to grow their own medicine, Williams said.

"We could end up in litigation, and it would potentially cost the
county a lot of money," Williams said. "Our board didn't want to take
that risk."

A lawsuit came anyway, although it was dismissed in Tehama County
Superior Court, the supervisor said.

Like Priebe, Williams is looking to higher courts and Sacramento
lawmakers for guidance. If Live Oak's complete ban passes legal
muster, he said Tehama County would probably take another look at
medical marijuana cultivation and consider banning it all together. He
doesn't think he's alone.

"If Live Oak is successful, we may see a lot more cities and counties
following suit," Williams said.

Violating state law

Live Oak won't be, said Kris Hermes, spokesman for Americans for Safe

"They're in clear violation of the state law," Hermes said. "There's
just no question that cultivation is a right under the law."

Proposition 215, or the Compassionate Use Act, exempts patients from a
law that declares "every person who plants, cultivates, harvests,
dries, or processes any marijuana or any part thereof, except as
otherwise provided by law, shall be punished by imprisonment."

Yes, the Compassionate Use Act shields patients who grow medical
marijuana from prosecution, but it doesn't guarantee them a right to
grow, said Thomas Brown, an Irvine attorney who has advised cities on
banning dispensaries.

Brown pointed to Assembly Bill 1300, signed by Gov. Jerry Brown last
August and took effect this month. The law spells out that cities can
regulate "the location, operation or establishment of a medical
marijuana cooperative or collective."

Thomas Brown said he thinks the same applies to cultivation, although
the issue still hasn't been hashed out in the courts.

"Cities have the right to exercise their zoning authority to prohibit
cultivation outright," Thomas Brown said.

Nothing in the Compassionate Use Act makes growing marijuana special
when it comes to a city's power to zone, he said. It's legal to own an
auto body shop, but an owner can't plop one in the middle of a
residential neighborhood if it runs afoul of that city's zoning.

"A county or city may make and enforce within its limits all local,
police, sanitary and other ordinances and regulation," according to
the state constitution, so long as they are "not in conflict with
general laws," Thomas Brown said.

'Public nuisance'

Willits, a town of about 4,900 in Mendocino County banned dispensaries
in 2006 and outdoor cultivation a year later.

"It's a public nuisance," said City Manager Paul Cayer, who echoed the
concerns of many Live Oak residents. "If there's marijuana growing
outdoors, and people in the neighborhood see it, it brings people into
the neighborhood who want to rip it off."

Also, when the marijuana plants flower, it just plain smells bad,
Cayer said.

"That leads to people in their neighborhood disrupting their peace and

But smoking, eating and otherwise using marijuana is legitimate
medicine for some people, Cayer said, and the Willits City Council
wanted to give those people access to something that could ease their
pain and nausea.

"It's a balancing act here to weigh somebody's legitimate right as a
suffering patient of disease," Cayer said, "with the needs of the
community to be secure and safe."

Balancing when you don't know the weight in the scale is hard.
Whitnell said they think banning outdoor grows is within a city's
right, but one way or the other, he hopes the courts decide soon and

"The main problem is the law is really in a state of flux," he said.
"There's a lot of uncertainty among cities as to whether they can
regulate, whether they can ban, whether they have to ban, and just how
federal authorities are going to view cities who do want to allow
dispensaries on a regular basis."

The Supreme Court could blaze through briefing and oral arguments and
come to a decision quickly, or the justices could take a couple years,
said Thomas Brown, who added that he wants it to come sooner rather
than later.

"I hope the court will see the urgency of issuing a decision to
provide some guidance at the local level."
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