LAWSUIT CHALLENGES MARIJUANA NUISANCE ORDINANCE

A civil lawsuit filed September 11 in Ukiah against the Mendocino
County Board of Supervisors and Sheriff Tom Allman challenges the
nuisance ordinance limiting parcels to no more than 25 marijuana plants.

The suit contends the 25 plant per parcel rule contradicts state law,
which places no limit on the number of plants a qualified patient or
caregiver may cultivate. It also claims Mendocino County Code Section
9.31 sets an arbitrary limit to the number of plants a medical
marijuana cooperative or collective may grow.

"One primary advantage of the suit is the court will oversee the
process," says Pebbles Trippet of the Mendocino County Medical
Marijuana Advisory Board. "Other than an appeal directly to the
voters, the courts have been the fairest avenue so far for medical
marijuana users."

A review of the nuisance ordinance had been underway for two and a
half years according to Trippet, who views that Health and Human
Services should have oversight rather than code enforcement. She was
pleased when supervisors recently exempted marijuana cultivation from
misdemeanor enforcement of 9.31.

"It has been like a tug of war," says Trippet

Under the nuisance abatement ordinance, exceeding the 25-plant limit
is similar to having too many animals on a property, litter or other
nuisance. Proposed revisions of the 9.31 ordinance are being
circulated by a BOS subcommittee.

Some proposed changes impose a minimum setback from an occupied, legal
residential structure and require that gardens not be visible from the
public right of way.

"These changes, if adopted should reduce the level of neighborhood
controversy that is often associated with marijuana gardens in
residential neighborhoods," says Supervisor John McCowen.

Another change would be to authorize up to 99 plants with a special
permit on some parcels if certain criteria were met.

"Cities and counties are able to enact laws to regulate nuisances
under their "general police powers" that give them broad authority to
legislate to protect the public health, safety and welfare," says
McCowen. "It is preposterous to say the county lacks the ability to
regulate to prohibit nuisances. A simple analogy is that everyone is
able to legally drink milk but not everyone is allowed to keep cows in
their backyard.

"Proposition 215 and Senate Bill 420 protect the right of medical
marijuana patients to use medical marijuana consistent with the
recommendation of their doctor, but nothing in either law specifies
where and how it can be cultivated or dispensed."