UKIAH, 3/30/2017 — All four sitting supervisors deliberated Tuesday morning on how to give the county’s legal staff direction on crafting Chapter 9.30, an ordinance-in-progress which they hope will bring the county’s recreational marijuana policies in line with the state’s voter-approved Adult Use of Marijuana Act, also known as Prop 64.
In crafting the proposed ordinance, supervisors appeared to hew closely to the requests made in a letter from a group of concerned citizens. Two members of the public, Marsha Little and Robert Frassinello, took turns reading the letter out loud during the public comment period. Supervisor John McCowen, who is chair of the board, also invited Frassinello to lead the pledge of allegiance at the beginning of the meeting.
The letter, from the Ukiah Area Rural Residential Concerned Neighbors, asked that the board limit outdoor recreational cultivation to parcels ten acres or larger. The writer or writers pointed out that this provision would be in keeping with the board’s previous direction on crafting the ordinance. However, a recent memo from county counsel asked the board if the ten acre parcel size requirement would adhere to the state’s mandate of reasonableness. Prop 64 demands that local governments “enact and enforce reasonable regulations to reasonably regulate” recreational marijuana cultivation. The attorney memo points out that the county’s recently introduced medical cultivation ordinances allow 5,000 square feet of permitted medical cannabis on five-acre sites with a zoning clearance, and places no parcel size limitation on personal non-permitted grows for qualified patients and caregivers.
The board also followed the Concerned Neighbors’ request to limit recreational cultivation to 100 square feet, though county counsel’s memo noted that, “It is unknown if limiting the number of square feet, and requiring the plants to be contiguous, would be reasonable.” The “Neighbors,” referring to California’s Medical Cannabis Regulation and Safety Act, offered the opinion that “If the state legislature believes that 100 square feet of cultivation is reasonable for a medical patient then it should be reasonable for a recreational user also.” The letter, which lacked citations, asserted that: “Estimates of the percentage of cannabis produced in California that is diverted to the black market range from 50% to 95% or more.”
Ashley Oldham, a member of the public from Redwood Valley, told the board she thought it was “strange not to allow outdoor cultivation on small parcels;” and that “It’s hard to fit outdoor plants into 100 square feet.”
The neighbors did not mention the issue of plants being contiguous. The board gave staff the direction that the 100 square feet of cannabis, as measured by canopy, could be broken up into different areas around the property. Cultivators would not be allowed to stack up exemptions to permitted grows, which means that one person would not be allowed to grow plants as a patient, or a caregiver for up to two patients, plus recreational plants. A caregiver would still be allowed to grow up to 200 square feet of medical cannabis, but could not add 100 square feet of recreational weed to the allotted amount. The Concerned Neighbors stated that “We encourage the Board to limit the cumulative amount of marijuana that can be grown without a permit to 100 square feet.”
Much of the discussion had to do with the question of reasonableness, especially in terms of how to “reasonably regulate” indoor cultivation in habitable space. Supervisors agreed with the neighbors that it was undesirable to take rentable units off the market in favor of marijuana cultivation. At the same time, over-regulation of how people use the rooms in their homes, or what constitutes habitable space, presented possible conflicts with Prop 64’s “reasonableness” requirement. As Hamburg pointed out, “Some people might like to sleep in their dining rooms.”
While the board chose not to place explicit limitations on renters’ right to cultivate recreational marijuana, supervisors agreed to require that renters get written permission from a landlord to grow pot under Chapter 9.30 and a revised Chapter 9.31.
The issue of how an indoor space would be converted to accommodate pot growing was left undefined, as the Board did not agree to require registration with Planning and Building Services or a sign-off from an electrician for recreational indoor cultivators. Supervisor Dan Gjerde described himself as “lukewarm” on the idea of such a requirement. Hamburg called it an “unenforceable quagmire,” adding that obtaining such documents sounded like a costly venture. “It’s cheaper than burning the house down,” Supervisor John McCowen replied.
Supervisor Carre Brown agreed that requiring registration was “overkill,” but that the ordinance should have something in it about a correct power source. She also offered the suggestion that legal staff research how other local governments are attempting to ensure that small indoor cultivators are operating safely. As an initial step towards formulating an educational outreach plan, she advocated working with the Fire Safe Council and the Fire Chiefs Association, utility providers, and contractors’ and realtors’ organizations to inform landlords and would-be small-time recreational growers about the hazards of overburdening residential electrical systems.
The board agreed that under 9.30, zip ties would not be required. “I think for personal use, I don’t see a reason for zip ties,” Gjerde remarked. Hamburg agreed; Brown opted to “stay out of this one;” and McCowen observed that “It looks like, by indirection, we’re not including zip ties in this ordinance.” Chapter 9.31 will still be in effect in parts of the county where the county’s recently introduced medical cannabis cultivation ordinances would not apply.
The board chose to stick with their previous, Concerned Neighbors-endorsed requirement that indoor grows be at least 1000 feet from a youth-oriented facility, such as schools and licensed day-care providers in the unincorporated areas of the county. The legal memo stated that “A complete ban of indoor cultivation within the 1000 foot setback requirement is unlikely to be considered a reasonable limitation. However, allowing indoor cultivation under Proposition 64 within this setback area would create a lesser restriction for adult use marijuana than Chapter 10A.17, as drafted, would allow for medical cannabis cultivation.”
Reflecting on the variations in how different parties could define the term “reasonable,” Hamburg remarked, “I just wonder how long it will take for this to get challenged.”
Hamburg has previously recused himself from cannabis-related policy making on the basis of an opinion from the Fair Political Practices Commission (FPPC) that states that he could benefit financially from influencing cannabis business policies. He explained that county counsel had received oral confirmation from the FPPC that he could take part in crafting a recreational ordinance, and that he expects a written statement to the same effect soon.
Sarah Reith [email protected]ice.com