Fresno outdoor marijuana growing ban - Comments by Bud | Cannabis (Drug) | Medical Cannabis

May 16, 2012


Fresno Planning Commission

From: Michael S. Green Re: Text amendment application TA-11-001 and environmental finding for environmental assessment EA11-001, prohibiting the outdoor cultivation of medical cannabis

Honorable commission members: The Fresno Police Department has proposed a permanent ban on the outdoor cultivation of medical cannabis anywhere in the city of Fresno. The proposed action follows the enactment of an urgency ordinance by the Fresno City Council, also at the urging of Fresno police. This letter is to express my opposition to the outdoor cultivation ban as being unfair to qualified patients who cannot afford the expense and difficulty of growing cannabis indoors. Banning the use of natural soil and sunlight to grow plants outdoors is more than a novel legal concept. In an agricultural community like Fresno, it's a landuse precedent that impinges on property rights in an effort to fight crime. The proposed ordinance impacts patients and primary caregivers who have been authorized to cultivate their medical cannabis – both collectively and as individuals – since Senate Bill 420 took effect in 2004. Well before that, California voters said patients and caregivers should not be punished for growing and using medical cannabis in reasonable amounts. After more than 15 years, Proposition 215 is a broken promise in Fresno, as evidenced first through the city's ban on all types of collectives and dispensaries, and now through the city's proposed ban on outdoor cultivation. Under state law, six mature plants is the minimum threshold for state-authorized cultivation by qualified patients. The proposed CEQA findings in EA-11-001 are also inadequate. Driving all cannabis cultivation indoors in the state's fifth-largest city will impact the environment through a significant increase in electrical consumption and related air emissions; increased risk of utility theft and structure fires; potential discharge of plant nutrients and other chemicals to wastewater systems; potential hazards to first responders including electrical shock and hazardous chemicals; increased blight in neighborhoods with large numbers of vacant or rental housing units that can conceal illicit grow sites in close proximity to schools and other sensitive uses; and other equally significant impacts. TA-11-001 is not a comprehensive medical cannabis cultivation law; it will exacerbate problems with illicit indoor grow sites and directly contribute to their growth in numbers. The proposed ordinance rests on the shaky legal foundation of two cases under review by the California Supreme Court, both of which address only whether cities may ban dispensaries and other medical cannabis businesses. Having banned all collectives and storefront dispensaries, Fresno now proposes to ban all outdoor personal cultivation on private property, with the likelihood that indoor growing restrictions are soon to follow. Under California law, challenges to the proposed zoning ordinance may be limited to only those issues that are raised at or before the public hearing. The following issues are raised in response to specific elements of the staff report, draft ordinance and draft environmental findings, collectively labeled as agenda item VIII-A for the Planning Commission meeting of May 16, 2012:

PAGE 1 “Currently, the city has no explicit rules or regulations governing the outdoor cultivation of medical marijuana.” The city of Fresno has banned outdoor and indoor cultivation and distribution by medical cannabis dispensaries and cooperatives since 2004, most recently with Ordinance 2007-42. Presumably, this ordinance could be applied to people who operate large-scale outdoor marijuana gardens, although published California case law holds that dispensary bans like Fresno's are unconstitutional. Unlike the city of Fresno, the state Legislature has provided explicit rules governing the cultivation of medical marijuana, and it chose to apply those rules equally to indoor and outdoor cultivation. Among other provisions, the Medical Marijuana Program Act (SB 420) establishes a minimum threshold of six mature cannabis plants as a reasonable and objective standard by which patients can demonstrate their full compliance with state law to police officers and others. (Health and Safety Code Sec. 11362.77) The Legislature also provided limited immunity against criminal sanctions – and civil nuisance actions – to qualified patients and primary caregivers who grow and possess a reasonable number of plants on an individual basis (H&S Sec.11362.765) or as part of a collective (H&S Sec.11362.775). “There have been violent incidents associated with the cultivation of marijuana, including reports of four shootings within the city of Fresno, one resulting in death.” The report does not specify a time range or indicate what percentage of those incidents occurred at outdoor gardens. The 2010 fatality occurred near an outdoor garden across from Roeding Park. That homicide was one of the 45 reported in 2010 statistics compiled by the Fresno Police Department. In 2011, 35 homicides were reported, none apparently related to marijuana cultivation. Thousands of robberies and aggravated assaults are reported to Fresno police each year (Exhibit A). While any act of violence is unfortunate, the Police Department's own data does not support findings that outdoor cannabis cultivation poses a greater risk to public safety than indoor cultivation. “... Marijuana growers are constantly vigilant with many possessing handguns and/or rifles to protect their fields.” This overbroad and prejudicial statement unfairly labels all medical cannabis patients as gun-toting criminals-in-waiting tending their overgrown “fields” of illicit marijuana. The police are using a handful of large gardens as poster children to justify a citywide growing ban, even though those same gardens were investigated and their owners found to be in compliance with state law. The right to possess guns for self-defense is protected by the U.S. Constitution. The Fresno City Council recently passed legislation allowing city residents to obtain concealed weapons permits more easily. The right of citizens to possess guns to protect themselves on their own property is well-established under federal and California law, but if guns are perceived to be the problem, an ordinance banning them instead of outdoor marijuana gardens would be more effective. The better approach would be to secure outdoorgrown plants with reasonable requirements that include fencing and locked access, visual screening, height limits, setbacks, and allowed cultivation areas that vary by parcel size and zoning. PAGE 2 “It has been determined that there is no possibility of significant adverse (environmental) effects as a result of this proposal.” This statement is not supported by any objective data. As mentioned above, forcing all medical cannabis to be grown indoors will result in increased electrical consumption and greater potential risks to public health posed by indoor gardens, whether they are operated legally or illegally.

A 2011 study of energy consumption related to cannabis cultivation was compiled by Evan Mills, an energy analyst and staff scientist at the Lawrence Berkeley National Laboratory. “In California, the topproducing state (of marijuana), indoor cultivation is responsible for about 3% of all electricity use or 8% of household use .... This corresponds to the electricity use of 1 million average California homes, greenhouse-gas emissions equal to those from 1 million average cars, and energy expenditures of $3 billion per year.” (The full report is attached as Exhibit B.) The city of Arcata in Humboldt County prohibits the outdoor cultivation of cannabis by patients and collectives. Not surprisingly, local media in Arcata and Eureka carry frequent stories about house fires, utility theft and excess energy usage at indoor grow sites. Arcata is now considering a November ballot measure that would impose an energy tax on households that use more than 300 percent of baseline usage. (An Arcata Eye article is attached as Exhibit C.) On April 9, 2012, the U.S. Attorney's Office announced three residents of the Fresno-Clovis area pleaded guilty to mortgage fraud and/or marijuana cultivation charges related to indoor grow sites. “According to court documents, the defendants defrauded lenders in order to buy houses in Fresno and Mendocino Counties. The houses were used to grow marijuana. Three of the houses caught on fire due to the unlawful diversion of electricity.” As of May 16, 2012, the full press release is at Excess electrical consumption related to indoor marijuana cultivation is a matter of statewide concern. Senate Bill 1207 (Fuller, R-Bakersfield) would require an electrical or gas corporation to require a CARE program participant whose electricity or gas usage exceeds 600% of baseline usage to participate in an energy savings assistance program that includes a residential energy audit and would make participation in an energy savings assistance program mandatory if a CARE program participant’s electricity or gas usage exceeds 600% of baseline usage. The bill would authorize an electrical or gas corporation to remove a CARE program participant from the program if, after the completion of a residential energy audit, the program participant’s monthly electricity or gas usage exceeds 600% of baseline usage, as specified. CARE program participants receive discounted electrical rates based upon income guidelines. As of Monday, May 14, SB 1207 was on suspense status in Appropriations. As the fifth-largest city in California, Fresno already bears its proportionate share of cannabis-related energy consumption, which can only increase when outdoor cultivation is banned entirely as the city proposes. Fresno County and other counties in the San Joaquin Valley are routinely classified as “extreme” non-attainment areas for air-quality standards set by the U.S. Environmental Protection Agency. High energy costs, equipment expenses and potential safety risks related to indoor cultivation also present significant obstacles to providing patients with safe and affordable access to medical marijuana. Outdoor cultivation remains the safest and most affordable means of cultivation available to qualified patients and primary caregivers, as well as the one with the smallest carbon footprint. The 2009 update of the California Police Chiefs Association's “White Paper on Marijuana Dispensaries” contains data about the proliferation of grow houses in residential areas and some of the potential safety hazards created by those houses, including several documented examples of house fires, blown powerpole transformers and home-invasion robberies. On page 12 it states, “From an environmental standpoint, the carbon footprint from greenhouse gas emissions created by large indoor marijuana grow operations should be a major concern for every community in terms of complying with Air Board AB-32 regulations, as well as other greenhouse gas reduction policies.” (Excerpts from the report pertaining to indoor grow sites are attached as Exhibit D.) “The proposed text amendment will maintain the status quo for purposes of CEQA.” The claim here is that the city's moratorium on outdoor cultivation somehow represents the city's land-use status quo. To the contrary, the city's interim urgency ordinances disrupted the status quo by barring the

previously lawful cultivation of medical cannabis by patients outdoors, as well as the continued use of their personal and real property for successive outdoor harvests from year to year. In the city's view, “no new cultivation can occur” outdoors while the moratorium is in place, therefore the “old” state-authorized cultivation by patients either a) doesn't exist, or b) exists but is no longer the status quo. Prior to Dec. 15, 2011, patient cultivation of medical cannabis was legal in Fresno, both indoors and outdoors, and city zoning laws were silent on the subject, by the city's own admission. Interim urgency ordinance 2011-41 was adopted purportedly pursuant to Government Code Sec. 65858, allowing the 45day ban to take effect without the normal public hearings before the Fresno Planning Commission and Airport Land Use Commission. Ordinance 2012-3 extended the first urgency ordinance for 10 months, 15 days, also purportedly pursuant to Gov. Code Sec. 65858. The design and intent of interim urgency ordinances is to preserve the land-use status quo pending the development of new regulations. Here, the state zoning law was misapplied to deprive qualified patients of their vested property rights as the run-up to a permanent outdoor growing ban. Police and city officials have stated consistently since Dec. 15 that a permanent outdoor growing ban was the only option under consideration. There was no need to study or develop comprehensive regulations, rather a perceived need to pass the outdoor growing ban quickly to interrupt the property rights of patients. Ordinance 2012-3 as invalid on its face, being based upon the misuse of Gov. Code Sec. 65858 to pass an urgency zoning ordinance that does not pertain to building permits, housing subdivisions or other development approvals as required by that statute. State-authorized patient cultivation in reasonable amounts, both indoors and outdoors, is the legal status quo in Fresno, not the invalid cultivation ban. PAGE 3 Re: anti-marijuana operations by the U.S. Attorneys' Offices and federal drug agents. Although all marijuana cultivation remains illegal under federal law, the only issue before the Planning Commission involves a text amendment to a city zoning ordinance that is purported to be compliant and consistent with California's medical marijuana laws. The U.S. government may not use officers of the Fresno Police Department or other agents of the city to enforce federal drug laws while ignoring state laws, as state appellate courts have repeatedly held. What the U.S. government does or doesn't do regarding medical marijuana cultivation is not relevant to TA-11-001. Should the commission wish to address the concerns of federal law enforcement, it should do so with the knowledge that federal law doesn't distinguish between outdoor or indoor cultivation, nor is marijuana necessarily the greatest threat to public safety in any given locale. Methamphetamine production and distribution by gangs and drug-trafficking organizations (DTOs) was considered the biggest threat in the 2011 Central Valley High Intensity Drug Trafficking Area report prepared by the National Drug Intelligence Center (NDIC). As for marijuana, the report includes these conclusions: “NDIC assesses with medium confidence that DTOs and criminal groups of all ethnicities, as well as local independents, will increase their use of dwellings in residential areas and warehouses, barns, and large buildings in rural areas to house sophisticated cultivation operations. Mexican DTOs will remain the primary cultivators of cannabis at outdoor locations.” The city's outdoor cultivation ban won't stop indoor cultivation by criminals, and it arguably could endanger public safety by making illegal residential grow operations in Fresno far more numerous. PAGE 4 Re: “Examples of the public threat to health, safety or welfare...” Most of these examples are not supported by any objective, reasonable or statistical data. We are told of “numerous reports” of violence, reminded about five marijuana-related shootings (but not the thousands of

assaults and robberies detailed in Exhibit A), and “anecdotal evidence.” There is no objective or reasonable evidence that, “The chance of an innocent victim, who lives near a marijuana field, being injured by stray gunfire is high,” nor that it is any higher than the chance of being injured by stray gunfire in areas of the city where medical marijuana is not cultivated. This is not meant to diminish the rightful concerns of law enforcement, but to give them added dimension and some sense of context. Large-scale cultivation and small-scale cultivation do not pose the same potential risk to public safety, nor is the presence of weapons limited to outdoor grow sites or even to grow sites in general. Wherever one goes in Fresno, weapons are likely close by. TA-11-001 doesn't fix that problem, as zoning ordinances in general are inappropriate vehicles to regulate gun possession. Re: Complaints about nuisance odors Many varieties of cannabis plants can get smelly before harvest. Yet large-scale and small-scale cultivation do not pose the same potential for creating nuisance odors, nor are nuisance odors confined to outdoor cultivation sites. Indoor grow rooms can and do create similar odors outside when growers choose not to install (or cannot afford to install) a system of air ducts, fans and expensive filters. Beyond the capital costs, indoor odor-control systems also generate significant operating expenses for electricity and replacement filters. A small-scale outdoor garden with adequate fencing, reasonable setbacks and visual screening is more sustainable and energy-efficient than an indoor garden of the same size. Reasonable limits on the size of permitted cultivation areas will reduce neighbor complaints and mitigate the city's rightful concerns about nuisance odors generated by larger, unregulated outdoor gardens. “Many marijuana grows are nothing more than profit making schemes.” Banning all outdoor growing by non-criminals, aka qualified patients and primary caregivers, will do nothing to deter criminals from making illegal profits wherever and whenever they can. Taken to its logical conclusion, this statement says the only way to stop illicit sales of marijuana is to prohibit lawful cultivation altogether, even when done by individual patients whose only “scheme” is to use medical cannabis for health purposes. Do that, and the city will have effectively repealed Prop. 215 and SB 420. The statement also fails to observe that the Medical Marijuana Program Act authorizes patients and caregivers to collectively and cooperatively cultivate their supplies of medical cannabis. (Health and Safety Code Sec. 11362.775) Because law enforcement priorities remain in flux statewide, many nonprofit collectives and dispensaries have been labeled as “profit making schemes” that can result in prosecution in many localities, including Fresno. Yet the attorney general's office and state appellate courts have concluded that nonprofit collectives may operate lawfully under the provisions of SB 420. PAGE 5 Re: Cities with cultivation moratoria or bans Some of the cities listed are facing legal challenges to their medical cannabis ordinances. (I was unable to locate Lakespoint.) Specifics from some of the city ordinances cited are instructive: Anderson: Prohibits all outdoor cultivation and also indoor cultivation in a residence or attached building. Ordinance 765 includes findings that “The indoor cultivation of substantial amounts of marijuana also frequently requires excessive use of electricity, which often creates an unreasonable risk of fire from the electrical grow lighting systems used in indoor cultivation.” The regulatory approach in Anderson's more restrictive ordinance was favored by Fresno City Council member Westerlund, who has expressed concerns that an outdoor growing ban could increase the number of indoor grows and the potential social harms associated with them, including cultivation in close proximity to children.

Live Oak: Per Ordinance 538, “Marijuana cultivation by any person, including primary caregivers and qualified patients, collectives, cooperatives or dispensaries is prohibited in all zone districts within the City of Live Oak.” Both indoors and outdoors. Redding: Previously permitted medical cannabis cultivation and operation of storefront dispensaries, but repealed its ordinance following the Pack v. Long Beach appellate court ruling, which is now under review by the state Supreme Court. A Shasta County judge cited another appellate case that held Lake Forest's dispensary ban invalid before refusing the city's request to shut down a collective-dispensary that remained open in violation of the city's new ban. The city is now amending its complaint in light of the Lake Forest ruling: Moraga: The town's ordinance makes clear that only civil enforcement actions are authorized: “Notwithstanding any provision of this code to the contrary, no violation of this chapter shall be deemed a misdemeanor, infraction or crime of any kind. Any violation of this chapter shall be subject to all civil enforcement remedies set forth in Title 1, at the discretion of the town.” Re: Section 12-2104(a) The city's Public Nuisance Abatement Ordinance is found in Article 6 of Chapter 10 of the Fresno Municipal Code. Among other provisions, the nuisance abatement ordinance provides designated city “directors” with right of entry to property for purposes of inspection and/or abatement upon issuance of an administrative warrant. Administrative and enforcement procedures are not specified in TA-11-001, which does not amend the city's current Public Nuisance Abatement Ordinance. The constitutional rights to avoid self-incrimination and to be protected against unreasonable search and seizure are critical concerns for all people, but especially for medical cannabis patients who may be accused of “profit-making,” weapons violations, child endangerment or other alleged crimes during the enforcement of a purported civil violation and/or summary abatement. Because of these concerns, the administrative and enforcement procedures utilized by the city attorney should either be expressly tied to the Public Nuisance Abatement Ordinance procedures (FMC 10-601 et seq.), or the “civil enforcement process” in Section 12-2104(a) of TA-11-001 should be described in detail and codified in a manner similar to the Public Nuisance Abatement Ordinance. To ensure that qualified patients don't face criminal sanctions in violation of state law, the draft ordinance should be amended to include language similar to Moraga's ordinance: “Notwithstanding any provision of this code to the contrary, no violation of this chapter shall be deemed a misdemeanor, infraction or crime of any kind. Any violation of this chapter shall be subject to all civil enforcement remedies set forth in (insert codified reference here), at the discretion of the city attorney.” Re: Section 12-2104(c) Any person or property owner cited for a violation is subject to abatement, actual, administrative and enforcement costs, which can create a substantial economic hardship for qualified patients and primary caregivers. Enforcement costs can include investigative expenses and attorney's fees. Landlords and commercial property owners who do business with or lease property to medical cannabis patients, knowingly or unknowingly, are also subject to fine, civil injunction, summary abatement and recovery of costs, pursuant to Section 12-2103. It is not known if local officials will apply pressure to landlords and commercial property owners in similar fashion to enforcement tactics used by federal officials against medical cannabis dispensaries, but Section 12-2104(c) gives the city full authority to do so.

Health and Safety Code Sec. 11362.83 allows cities to adopt laws consistent with SB 420. Conversely, state law does not allow cities to adopt laws that are inconsistent with SB 420. Fresno has already banned all collectives and dispensaries, and now proposes to eliminate the safest and most affordable method known by which individual patients can grow their own cannabis. Telling patients in essence to grow a few plants in a closet or in a bathtub – or go without their medicine – is inconsistent with common sense, much less the provisions of Prop. 215 and the Medical Marijuana Program Act. More specifically, Health and Safety Code Secs. 11362.83(a) and (b) only authorize cities to regulate medical cannabis collectives and dispensaries in a manner consistent with SB 420. It's not a blank check that authorizes cities to ban or severely restrict cultivation by individual qualified patients. 11362.83. Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: (a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective. (b) The civil and criminal enforcement of local ordinances described in subdivision (a). (c) Enacting other laws consistent with this article. (emphasis added) The overriding goal and purpose of both Prop. 215 and SB 420 is to provide safe and affordable access to medical cannabis patients through a combination of personal and collective cultivation activities. The express intent of the Medical Marijuana Program Act (SB 420) was to “(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, section 1, subd. (b)(1)-(3).) To date, the city has not passed laws designed to enhance safe access, nor to promote uniform and consistent application of SB 420 between nearby cities and Fresno County. Rather, it has diminished safe access by banning all types of collectives and imposing unreasonable limits on personal cultivation. Of special concern is parity with Fresno County's cultivation law, which was a concern expressed by Fresno City Council members. TA-11-001 does not impose restrictions on indoor cultivation in similar fashion to Fresno County's ordinance requiring business licenses for indoor cultivation, which is further limited to manufacturing and industrial zones. Although enforcement of the county's ordinance is problematic in light of the Pack ruling out of Long Beach, the main point here is that the county's outdoor growing ban has arguably contributed to an increase of nuisance gardens in the city, just as the county's dispensary ban has reportedly resulted in collectives establishing new locations in the city. PAGE 6 Re: Riverside v. Inland Empire, Pack v. Long Beach, et al For the moment, these cases provide no authority or legal basis to justify the city's proposed ordinance, as they are under review by the California Supreme Court. Even if upheld, these cases address bans on commercial collectives and dispensaries, not bans on state-authorized, small-scale patient cultivation. The summation of the Pack decision is inaccurate; the court ruled that Long Beach's permitting system for dispensaries violated federal law, not that all types of city or state marijuana regulations do. That means Fresno County's system of medical marijuana business licenses is on hold, while TA-11-001 is presumably lawful because it does not require licenses or permits to grow cannabis.

In the Riverside case, a total ban on dispensaries is “simply a means of regulation or restriction.” In a more recent case, an ordinance declaring medical cannabis cultivation by collectives and dispensaries to be a nuisance per se in the City of Lake Forest was voided on appeal. “Here, the City's per se ban on medical marijuana dispensaries prohibits what the Legislature authorized in section 11362.775, namely a place for the lawful distribution of medical marijuana and, more generally, using property to grow, store, and distribute medical marijuana.” (City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App. 4th 1413, 1445-46) “The contradiction is direct, patent, obvious, and palpable.” In like fashion, Health and Safety Code Sec. 11362.765 provides that individual patients and caregivers shall not be subject to criminal sanctions or nuisance actions for using property to grow or store medical cannabis. As the court ruled in Lake Forest, “...Sections 11362.765 and 11362.775 expressly negate section 11570 as a nuisance remedy against the medical marijuana activities identified in those sections.” By imposing sanctions upon qualified patients on the sole basis of their cultivation of medical cannabis, Fresno's proposed outdoor growing ban – like the urgency ordinances that preceded it -- directly conflicts with state law and is subject to legal challenge. CITY EXHIBIT A – ENVIRONMENTAL ASSESSMENT EA-11-001 “Enactment and amendment of zoning ordinances” is a “project” under the express terms of the California Environmental Quality Act (CEQA). (Calif. Code of Regulations Sec. 15378(a)(1)) Accordingly, the city's proposed outdoor cultivation ban, TA-11-001, is a project under CEQA. CEQA exempts certain projects from environmental review provided they meet the appropriate criteria. The city does not claim that TA-11-001 is entitled to a categorical exemption from CEQA, but instead that it qualifies for the so-called “common sense” exemption: “Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” (CCR Sec. 15061(b)(3)) EA-11-001 attempts to establish that there is no possibility of environmental impact by claiming that outdoor cultivation has ceased in the city of Fresno, making indoor-only cultivation the status quo. The city has offered no evidence to establish with certainty that outdoor cultivation has ceased, or that the interim urgency ordinances didn't create an environmental impact by banning outdoor cultivation. Urgency ordinances are categorically exempt from CEQA review; a permanent amendment is not. Common sense suggests that an ordinance forcing all medical cannabis to be grown indoors will significantly increase electrical consumption and create other potential environmental impacts when the ordinance is applied to thousands of patients on a citywide basis. If the proposed outdoor growing ban is not exempt in another category, the “common-sense” exemption may not be applied as an easy fix. Exhibits B, C and D of this letter should serve to dispel any claim of certainty that there is no possibility that the proposed ordinance can create a significant environmental impact and/or increased threats to public health and safety related to increased indoor cultivation. To comply with CEQA, the city must conduct an initial study of TA-11-001 pursuant to CCR Sec. 15002(k)(2).

Respectfully submitted,

Michael S. Green

Fresno, CA 93703

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