Pubdate: Sun, 29 Mar 2015
Source: Appeal-Democrat (Marysville, CA)
Copyright: 2015 Appeal-Democrat
Author: Eric Vodden


Yuba County's new medical marijuana cultivation ordinance is 
cost-prohibitive for most patients to abide by and unconstitutionally 
deprives them of growing their own plants, a lawsuit filed against 
the county states.

The suit filed late Thursday by four county growers also challenges 
the Board of Supervisors' approval of the more restrictive pot 
growing regulations as an urgency ordinance. It says the county 
didn't identify any circumstances to make the ordinance an urgency 
matter, which meant it went into effect immediately instead of after 
a 30-day waiting period.

Woodrow George Powers, Patty Mowery, Theresa Morris and Eric Salerno, 
a spokesman for Yuba Patients Coalition, are listed as plaintiffs in 
the suit. It was filed by San Francisco attorney Joe Elford, the 
chief counsel for Americans With Safe Access, who said additional 
plaintiffs will be added later.

The suit seeks a court order ruling the ordinance unconstitutional 
and an injunction preventing its enforcement. It also seeks 
unspecified court costs and other "just and proper" relief.

Yuba County supervisors earlier this month approved the new ordinance 
after a series of workshops and hearings attracted vocal opponents 
and supporters. It came after a group of foothills residents 
complained of alleged criminal activity and odors centering around some grows.

Russ Brown, Yuba County spokesman, said Friday morning the county 
counsel's office had not yet reviewed the suit but added officials 
could not comment on litigation.

"Of course, this particular lawsuit was not unexpected," he said. "If 
county counsel felt there was the risk of an adverse outcome, the 
Board of Supervisors would already have been advised of such a possibility."

The previous ordinance, developed in 2012 following a lawsuit by the 
Yuba County Growers Association, allowed 18 plants on an acre or less 
and as many as 99 on 20 acres or more. The new one allows no outdoor 
plants, 12 inside an accessory structure and none in residences.

The lawsuit refers to the Compassionate Use Act approved by voters in 
1996 that "envisioned personal cultivation of marijuana by qualified 
patients for their own medical needs as the method for them to obtain 
their medicine."

But, the suit notes, Yuba County's ordinance requires patients to 
build an accessory structure equipped with electricity, and odor 
control filtration and ventilation systems. It says the ordinance 
"deprives poor qualified medical marijuana patients of the ability to 
cultivate the medicine they need, in accordance with state law, 
because they are unable to afford to pay for the accessory structure ..

"Wealthy medical marijuana patients, by sharp contrast, will be able 
to afford to build this accessory structure in order to obtain their 
medicine," the suit states.

It claims it is unconstitutional to distinguish "between these 
similarly qualified medical marijuana patients on the basis of wealth."

The suit also says the county's "peculiar definition of 'cultivation' 
as including the storage of 'any part' of a marijuana plant, the 
ordinance may be construed to prohibit even the simplest possession 
of marijuana by qualified patients."

Regarding the urgency ordinance, the lawsuit states, "The board had 
previously identified the same or similar risks of outdoor 
cultivation of marijuana and cultivation of marijuana inside 
residences in the introduced regular ordinance as were expressed in 
the urgency findings."

The urgency action effectively blocked opponents from seeking a voter 
referendum, petitions for which had already been prepared for 
circulation. Opponents still have the option of collecting signatures 
for a voter initiative, which involves a different set of requirements.

Yuba County, along with other jurisdictions in the state, is using as 
legal precedent a failed challenge by medical marijuana users against 
a Live Oak law that prohibits marijuana cultivation in that city.
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MAP posted-by: Jay Bergstrom