Nevada County Board of Supervisors to consider pot ordinance amendments
March 8, 2013
Nevada County is set to propose amendments to its Cannabis Cultivation Ordinance for consideration by the board of supervisors, county officials announced Thursday.
The amendments relate to the ability to operate collectives and the point person for appeal hearings, which were major talking points during the two robustly attended public hearings on the ordinance last year.
"The issue we wanted to clarify is that one can collectively cultivate as long as there is one person living on the property," said Assistant County Counsel Marcos Kropf.
"A qualified patient may also cultivate medical marijuana as a bona fide member of a Medical Marijuana Collective, on a legal parcel or premises that is occupied, and serves as the primary legal residence for at least one of its members," the amended section of the ordinance reads.
The ordinance has always taken that position, but needed clarification, said County Counsel Allison Barratt-Green.
Following the passage of the cultivation ordinance on May 8 of last year, Patricia Smith, president of the Nevada County Chapter of Americans for Safe Access, declared the ordinance a "de facto ban on collectives.
"They're using nuisance as a vehicle to ban collectives," she said in the days following. "They're hurting the very people (that Proposition 215 was supposed to serve.)"
Kropf said the amendment was not undertaken as a result of pressure from the opposition, but was done to make the ordinance's original position more clear. The section of the ordinance is intended to prevent individuals from growing marijuana on vacant property, Kropf said.
The other salient amendment cleared up inconsistencies in the ordinance regarding who is responsible for establishing appeal hearings, Kropf said. Previous to the amendment, some sections declared the Nevada County Sheriff's Office as the responsible party, while other sections identified the Board of Supervisors clerk.
Following the proposed amendments, the board clerk will hear requests for appeals and establish dates for hearings.
"The Sheriff's Office is responsible for enforcing the ordinance," Barratt-Green said. "We just wanted to make that clear, clean that up."
The amendments, including other minor changes, will tentatively be proposed for board approval at the March 26 board meeting, according to an email sent to The Union by Kropf.
Patricia Smith could not be reached for comment late Thursday.
Americans for Safe Access-Nevada County filed suit against Nevada County last May following the board's approval (4-1 with Supervisor Terry Lamphier dissenting).
The case is set to go to trail May 14, 2013.
Attorney Jeffrey Lake had filed the suit on behalf of ASA-NC, Grassroots Solutions and Patricia Smith, who is the founder of the nonprofit patient advocacy group and the ASA chapter.
Lake initially filed a request for a temporary restraining order against the ordinance, which was denied by Nevada County Superior Court Judge Sean Dowling in June. Dowling subsequently refused to grant an injunction against the entire ordinance but agreed the county cannot enforce a de-facto ban on collectives.
Lake subsequently filed an amended complaint for injunctive and declaratory relief, claiming that the ordinance contains unlawful structural restrictions and prohibits collective cultivation and violates patients' right to privacy.
Lake also argued the ordinance violates the due process clause, the equal protection clause and the prohibition against unlawful searches and seizures. The county, however, filed a demurrer arguing that the amended complaint simply raised many of the same legal issues already decided by the court.
Dowling again issued a mixed ruling, allowing some causes of action and throwing out others. Specifically, he allowed the complaint to move forward on the contention the ordinance unlawfully prohibits collectives.
Dowling also allowed a right-to-privacy argument and found that ASA-NC had "adequately alleged an actual controversy" as to whether the county has violated state law.
What that means is that the suit has been narrowed down as to its scope but will continue to move forward, said Lake's co-counsel, Nathan Shaman.
"It will proceed with (Dowling's) ruling in place," Shaman said, "We might appeal down the road, but it is premature to do that at this point."
The parties are set to return to court April 22 for a settlement conference.
To contact Staff Writer Matthew Renda, email firstname.lastname@example.org or call 530-477-4239.
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