Request denied: Pot can stay put
October 19, 2012
A Nevada County Superior Court judge has denied a request by a woman who had sought an injunction against her neighbor's pot grow, claiming it was causing her serious medical problems.
Kathryn and Dale Southgate, who live in the 12000 block of Scotts Valley Road, had requested a temporary restraining order and injunctive relief against Renee Johnson; the temporary restraining order had been denied previously by Judge Sean Dowling.
Kathryn Southgate alleged that Johnson — who has Hodgkin's lymphoma — has an illegal pot grow of 24 to 30-plus "sequoia" marijuana plants in full bloom, which were 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."
Attorney Peter Lemmon, who was representing the Southgates, had filed a civil suit claiming negligence, nuisance and trespass and requesting injunctive and declaratory relief.
Lemmon had argued that although the request for the restraining order notes that Johnson's garden violates the county's new cultivation ordinance, the basis of the request had to do with property rights.
Dowling issued a tentative ruling denying the request for a preliminary injunction last week; a hearing on the request that had been set for Friday was vacated after the Southgates chose not to contest the ruling. They later filed a request for dismissal.
In his ruling, Dowling noted that the cultivation of medical marijuana has been authorized by the state Legislature, and has placed that cultivation beyond the reach of nuisance abatement. He noted that the Legislature intended to bar civil nuisance prosecutions, and to preclude nuisance claims, against medical marijuana gardens.
He added that Nevada County has enacted an ordinance regulating medical marijuana cultivation, however, and that grounds for complaints include garden size and offensive odors.
But Dowling found that the Southgates did not prove their case on a number of grounds.
First, he said an objection by Johnson's attorney as to lack of foundation was sustained because the Southgates did not show any personal knowledge of the specifics of Johnson's medical marijuana grow.
He also agreed with an objection regarding the alleged production of pollen, since the Southgates did not prove there were any male plants at the grow; female plants produce the bud and male plants produce pollen.
Dowling turned acerbic in his discussion of an exhibit meant to prove that Kathryn Southgate was being harmed medically by her neighbor's grow.
"Exhibit D is an about.com article regarding marijuana allergy," Dowling wrote, noting the article discussed pollen allergies and the possibility of anaphylactic shock from smoking marijuana.
"Unless plaintiff is smoking marijuana, the extreme allergic reaction of anaphylaxis is not likely to occur," he wrote. "This exhibit is certainly not an adequate substitute for a professional opinion from a medical doctor or other qualified expert."
Dowling concluded that the mere existence of the medical marijuana garden was not enough for a preliminary injunction, and that odor alone is not a sufficient ground for an injunction, either.
The grow would have to violate the ordinance by subjecting neighbors "of normal sensitivity" to "reasonably objectionable odors."
"The evidence shows plaintiff Kathryn Southgate is not of normal sensitivity, but rather of high sensitivity," Dowling added.
"I'm glad that we got the ruling that we did," said Johnson's attorney, Jeffrey Lake. "We're relieved the case has been dismissed and Renee is not being subjected to any further harassment in court, at least at this point on this issue."
Lake said the cultivation ordinance "cuts against the idea of being a good neighbor," adding that Nevada County "should realize that the ordinance required neighbors to rat out other neighbors, as it's drafted and enforced. It's turning citizens against each other. That should not be the purpose or the focus."
Johnson currently is in the midst of appealing a citation issued after a compliance check on her grow was performed by the Nevada County Sheriff's Narcotics Task Force; in that matter, she is being represented by Stephen Munkelt.
To contact Staff Writer Liz Kellar, email firstname.lastname@example.org or call (530) 477-4229.