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Andrew Wilson: Novel approach, not new law, needed on marijuana

In his search for “clarity” in his guest column, Bob Hren ought to start with the false premise on which the outdoor cultivation ban was based — that an emergency ordinance was needed to provide Sheriff Royal the additional “tools” needed to deal with “large” outdoor marijuana grows.

The outdoor growing ban was part of an emergency ordinance, which amended Nevada County’s Medical Marijuana Cultivation ordinance which had been in effect since 2012. That ordinance set limits on indoor and outdoor grows, established procedures for issuing and contesting abatement notices. It also included a summary abatement procedure which allowed immediate abatement the event of an immediate threat to the public welfare. The 2016 emergency ordinance does not give the sheriff or the county any additional “tools” or powers.

The only material difference between the 2012 ordinance and the 2016 emergency ordinance is that the 2012 ordinance permits outdoor grows of up to 1,000 square feet, while the 2016 emergency ordinance bans outdoor grows entirely and places additional limits on the indoor grows allowed by the 2012 ordinance. The 2016 emergency ordinance did not change the character of the illegal grows or increase the severity of any penalties. It did not make illegal grows more illegal; it simply created more illegal grows.



The main argument in support of the ban is that the sheriff had difficulty determining whether there was probable cause to believe that a particular outdoor grow was larger than 1,000 square feet. If that is true, then the large, destructive grows which Supervisors Weston and Miller describe in their defense of the ban must have been small enough that there was some question as to whether they were larger than 1,000 square feet. As we all know, there were numerous outdoor grows which clearly exceeded the maximum permitted size and the ban gives the sheriff no additional tools to combat those grows.

The 2016 emergency ordinance did not change the character of the illegal grows or increase the severity of any penalties. It did not make illegal grows more illegal; it simply created more illegal grows.

If the 1,000 square foot limitation was a problem in combating “large” grows, that ceiling could have been lowered.




Proponents of the ban do not foster clarity by trumpeting the ills of marijuana, whether their claims are true or false. Evidence that marijuana is a “good” medicine or a “bad” drug, that it causes or cures cancer, or even that it turns Nevada County teens into maladjusted stoners, has nothing to do with whether the 2016 emergency ordinance will do what its proponents claim.

Mr. Hren muddies rather than clarifies the waters by pointing to alleged incidents in which growers delayed abatement and argues that “by banning all outdoor grows, abatement can and will be done immediately upon arrival of the sheriff.” Mr. Hren either ignores or is ignorant of the fact that this summary abatement procedure was part of the 2012 ordinance and was not changed by the 2016 emergency ordinance. So far, the sheriff has wisely refrained from using those summary procedures. Perhaps he is taking a lesson from Lake County which employed similar summary abatement procedures against grows on private property. These procedures were subsequently enjoined as unconstitutional by the federal court in Allen v. County of Lake. A similar fate likely awaits Nevada County if our sheriff fulfills Mr. Hren’s expectation.

The solution to the problem does not lie in a new law but in the unfortunately novel approach of enforcing existing laws. The first priority should be to target any and all grows on public land. There is complete agreement on all sides of the debate that these grows are the most environmentally destructive and present the greatest risk to public safety. None of these grows are even arguably legal under the 2012 ordinance, nor can any argument be made that they are exempt from state or federal criminal laws. No new “tools” are needed to combat these grows – only good old fashioned police work. And, where grows are located on public lands, the sheriff should absolutely employ summary abatement procedures. The constitutional guarantees against unlawful searches and seizures which Lake County ran afoul of in summarily abating grows on private property do not apply to grows on public land.

An equal priority should be promptly responding to and investigating complaints from citizens and issuing abatement notices if warranted. If there is any doubt, an abatement notice should be issued and any issues should be resolved in the hearing process. The third priority should be to investigate potentially illegal grows on private property which come to the attention of law enforcement from other sources, including the infamous helicopter overflights. These should be investigated and abatement notices issued where warranted.

Andrew Wilson lives in Nevada City.


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