The Humboldt County board of supervisors reviewed an outline for a possible future marijuana cultivation ordinance that would restrict the number of plants that can be grown on a given parcel. The outline reviewed by supervisors included provisions that would link the number of plants to the size of the parcel, and restrict grows to legal parcels - meaning that illegal subdivides being used to grow marijuana would violate the ordinance, if it passes in its current form.
There are two primary options currently on the table.
According to alternative one, parcels of 20 acres or less would be limited to 12 mature plants and 24 total including clones or seedlings with a 100-foot setback from the property boundary. Larger properties from 20-160 acres would be limited to 30 mature plants and no more than 60 plants total with a 300-foot setback from the property boundary. On properties of 160 acres or larger, landowners could grow as many as 99 plants.
Alternative two would declare all marijuana grows on parcels smaller than 10 acres as a "nuisance per se." Alternative two would also apply the same limits to every legal parcel over 10 acres - regardless of variations in size - to 12 mature plants or 24 immature plants for each medical marijuana recommendation. Parcels would be limited to a maximum of 99 plants, with a 100-foot setback.
Limiting the number of plants allowed per recommendation, or per patient, could get the county into legal trouble. It’s one thing to limit plant counts legally allowed on each parcel, but it’s a different matter to arbitrarily limit the number of plants allowed for each patient - since the county government isn’t legally qualified to determine the extent of a patient’s medical needs.
The outline for a draft cultivation ordinance would include an exception for medical marijuana patients growing two or fewer plants. These growers would be exempt from registration, acreage and setback requirements.
There are also several other provisions which could affect current growers. No outdoor marijuana garden would be permitted within 600 feet of a "school, park, religious institution, known or discovered native American cultural or ceremonial site, childcare center or day care, school bus stop or other sensitive uses." Gardens would have to be shielded from view by an opaque fence. And growers would have to choose between complying with Humboldt County’s current indoor cultivation ordinance or the proposed outdoor cultivation ordinance - but they could not legally do both.
A point of conflict arose over how records might be kept, and if that sensitive information will be subject to subpoena by the federal government as has happened in Mendocino County.
"That’s one of the things that’s been a sticking point for a lot of people. They don’t want the county to hold on to their information," said Davina Smith, deputy county counsel. "They’re concerned about what the county might do with it, they’re concerned about the federal government, and that’s understandable."
Coming into compliance with the terms of the outlined ordinance, if passed in its current draft form, would involve submitting an affidavit detailing sensitive information that many growers may prefer to keep secret. The ordinance would also call for an annual fee.
The information submitted to Public Health would have to include the address and assessor parcel number for the property, names of and addresses of all individuals who own, lease, or reside on the property. Applicants would also be required to submit a map with the location and number of plants cultivated on the parcel. The map would also have to include property lines, easements, and demonstration of compliance with setback requirements.
More importantly, the registration packet would require applicant’s information about where the water for irrigation is coming from, how much water will be used, and if the patient has a legal right to use the water for non-domestic use. The terms of the draft outline also require that no development take place within a Streamside Management Area.
There is still some question over whether or not the information submitted to the county by growers would be retained for the program’s records, or reviewed and returned to the applicant. If the county declines to keep the information above on record - that could stymie future efforts by the federal government to subpoena records on program participants.
1st and 2nd district supervisors Bohn and Fennell were quick to point out the risk of litigation from patients and the possibility of reprisal from the federal government.
"I see a lot of problems with this, but I’ll begin with a fundamental one for me: my duty as a representative of the county to protect the county from legal challenges if at all possible," said supervisor Fennell. "And I do see liability here from the federal government and from patients."
"The thing I’m scared of is the feds," supervisor Bohn added. "I appreciate that we’re in the middle of the beast, but I don’t want to challenge the other beast. And that’s what bothers me."
There were mixed reactions during public comment. Kathleen Bryson, a local lawyer who recently challenged Paul Gallegos for the office of Humboldt County district attorney, urged caution.
"Until Mendocino’s issue is decided, I don’t know that this can go forward," said Bryson, referring to federal subpoenas recently served to Mendocino County demanding information about members of the now defunct 9.31 program. "Those people now have their records and their names potentially going to an entity that treats cannabis like heroin."
E.B. Duggan and his wife, residents of Willow Creek, bought their property in 1987 as a place to spend their later years. Duggan says nearby distressed parcels have been purchased by outside elements that have hired "thugs and bullies" to guard the farm, and that due to smells from fertilizer or flowering plants their children and grandchildren are no longer willing to visit. "It is time for the board of supervisors to stand up and do something about this," Duggan said.
Kent Soleski, of Blue Lake, questioned the county’s wisdom in considering such an ordinance. He went on to suggest that supervisors were asking too much of county staff, and that participation in such a program could result in the criminal repercussions and the loss personal freedom for affected employees.
One Ettersberg resident pointed out the economic argument and marijuana’s central role in our local economy.
"We have one of the most famous marijuana growing regions in the world, and surely the most famous in North America. Our county in particular rightfully holds this worldwide reputation, and it is of enormous value to our economic future. Please be aware of this opportunity, and do not let the visible few who complain about harmless odor deter us from recognizing our most important industry. Let us focus then on the large picture of how we can best provide for a rich future through a healthy marijuana ordinance, rather than tailoring an ordinance to complainers and those who inexplicably insist on denying reality," said Robert Sutherland.
"You need to craft the plans through the hands of those who favor the industry, then see where their views need to be adjusted. Not the other way around as you have done. You are, I think, consulting the wrong people. And you are making a serious mistake by doing that," Sutherland added.
3rd district supervisor Mark Lovelace was quick to point out that the document reviewed during last week’s meeting was a draft outline - not a draft ordinance. He’s also emphasizing that the current outline is a starting point, rather than a finished product, and that the county is actively seeking input on crafting an ordinance that would enjoy popular support and buy-in from the public.
He wants to create an ordinance with the lowest possible barriers to entry, and he wants to do it quickly.
"I’m hopeful that we can zero in on something we can actually do this year. We know what’s going on out in these watersheds," Lovelace says. "I’m hearing from long-time back-to-the-landers how sick and saddened they are by the abusers out there. If we can do something this year to support those folks who are trying to be a part of this industry without trashing the environment or the community, I think that would be helpful."
The supervisors approved a motion to proceed with at least three public meetings to engage members of local communities, and find out more about how to craft an ordinance the public would be willing to support. At least one of those meetings will be held in the northeastern part of the county, while at least two of them will be held here in Southern Humboldt.