Judge: No restraining order in medical marijuana case
October 3, 2012
A woman who had sought a temporary restraining order against her neighbor’s pot grow collapsed into loud sobs after a judge refused to grant her request Friday morning.
Kathryn and Dale Southgate, who live in the 12000 block of Scotts Valley Road, had requested the TRO and injunctive relief against Renee Johnson.
Kathryn Southgate alleged in her declaration that Johnson — who has Hodgkin’s lymphoma — has an illegal pot grow of 24 to 30-plus “sequoia” marijuana plants in full bloom, which are emitting noxious and offensive odors.
“My severe allergic reactions to the pollen and noxious odors are putting my general health in acute stress, and I am fearful that all the anti-allergy medications I am having to take to survive in my home will have long-lasting if not permanent deleterious effects upon my health,” she wrote. “Indeed, I have had to leave my home as of this date because I cannot live there.”
“Is there a private right of action beyond the ordinance that is already in place? I’m struggling with what the remedy could be.”
— Judge Sean Dowling
Attorney Peter Lemmon, who is representing the Southgates, has filed a civil suit claiming negligence, nuisance and trespass and requesting injunctive and declaratory relief.
Johnson is being represented by Jeffrey Lake and Stephen Munkelt.
In Nevada County Superior Court Friday, Lemmon argued that although the request for the restraining order notes
that Johnson’s garden violates the county’s new cultivation
ordinance, the basis of his request has nothing to do with the ordinance.
“We’re talking about property rights,” he said. “These people can’t enjoy their property.”
“A nuisance cannot exist if the activity is lawful,” said Judge Sean Dowling, who noted the cultivation ordinance was designed to balance competing rights and agreed that the ordinance failed to protect the Southgates from the odor of the marijuana.
The flip side, however, was Johnson’s right to grow her medicinal marijuana, he said.
“Is there a private right of action beyond the ordinance that is already in place?” Dowling asked. “I’m struggling with what the remedy could be.”
Dowling questioned the urgent need for a temporary restraining order, noting that the Southgates had lived next to Johnson for 12 years.
“I am concerned about the distress of your client, but this did not happen overnight,” he said.
After Dowling refused to grant the request, Kathryn Southgate began sobbing loudly before leaving the courtroom. Her cries were still clearly audible from outside the courtroom throughout the rest of the hearing, however.
A hearing on permanent injunctive relief was set for Oct. 12.
After the hearing, Johnson said she had been growing marijuana for about three or four years but that the Southgates had never complained directly to her about odor issues. She also alleged that many of their neighbors also grow marijuana.
Dale and Kathryn Southgate could not be reached for comment.
Johnson suspects a complaint by her neighbors was the reason for a compliance check performed recently by the Nevada County Sheriff’s Narcotics Task Force, just a few days after she received a fraudulent abatement letter with Nevada County Sheriff’s Office “letterhead.”
The bogus notice informed her that she was in violation of the cultivation ordinance, as well as state and federal law, and informed her that she was required to immediately abate her marijuana.
The week after Johnson received the letter — which was reported to law enforcement — deputies did a compliance check on her garden and found it to be out of compliance. She has since filed an appeal, which is being handled by Munkelt.
To contact Staff Writer Liz Kellar, email email@example.com or call (530) 477-4229.
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