‘Twas 10 nights before Christmas when the Fresno Police Department put an outdoor marijuana-growing ban on the City Council’s agenda. It was, department officials said, a matter of some urgency. Urgent enough, in fact, to bypass the normal planning process.
Upon further review (thank goodness for video), the city railroaded its cultivation ban through at the most opportune time, hoping to gain the legal upper hand while Prop. 215 patients weren’t watching. The strategy succeeded so well that the proposal didn’t get one public comment, prompting council President Lee Brand to remark, “That’s amazing.” That it was, and not in a good way.
The Dec. 15 hearing began with a report from Deputy Chief Keith Foster, who trotted out the usual scary statistics. More than 70 percent of the nation’s illicit cannabis crop comes from California. Pot can sell for $5,000 a pound or higher in other states (though it costs half that or less here). Complaints about neighborhood gardens are rising. Therefore, all backyard gardens are large-scale, for-profit enterprises designed to ship cannabis across state lines, and the only possible solution is to pass a zoning ordinance proposed by a police agency. Right now. Hurry up.
Foster said the temporary ban was needed to “research the complexities of marijuana cultivation” and to “carefully craft” an ordinance that balances the needs of patients with public safety. Which would be fine, except it’s not true: The city’s ban will be a virtual copy of Fresno County’s 2010 ban. Council Member Andreas Borges took pains to confirm this with Foster, after earlier attempting to ensure that the city’s and county’s “camping ordinances” would be identical. It’s important to create “cooperative and complementary” legislation, Borges said.
If only that spirit of cooperation were offered to medical cannabis patients, instead of portraying the entire Prop. 215 community as interstate drug runners. FPD showed a few aerial photos of large gardens, then acknowledged a) they were legal under state law, and b) most of the gardens had been fully harvested by the time of the council meeting. They mentioned the 2010 killing of a would-be pot thief, but they failed to explain why the issue suddenly became “urgent” more than a year later. Nor did they explain why that single fatality, coupled with a handful of other non-fatal shootings, is more statistically significant than the dozens of homicides and hundreds of robberies that have happened in the city since then, with no link to cannabis cultivation.
Logic didn’t enter into the debate, however. Proposition 215 and its follow-up, SB 420, are “abortions” of laws, according to Council Member Larry Westerlund. He attacked everyone from “potheads” to “unscrupulous doctors” for daring to obey those “garbage laws.” He also said he would ban all medical cannabis use within the city, if only he could. He can’t, thankfully, since Prop. 215 is now a rebellious teenager of 15 years old, reducing local lawmakers and even the feds to scolding parents who can’t control the chaos around them. Now the parents are trying to send patients to their grow rooms permanently … and good luck with that.
Fresno is not the first to use the bogus “urgency” tactic; cities and counties have passed hundreds of marijuana ordinances in recent years, and most started out as urgency measures. Under the Government Code, that’s only supposed to happen in cases of “clear and immediate danger” to public health and safety; most ordinances go through a longer process that includes public hearings. In the city’s case, the urgency claim is even more dubious than usual, having nothing to do with public safety (no winter plants, no threat) and everything to do with legal strategy.
The back story: Superior Court Judge Jeff Hamilton temporarily blocked enforcement of Fresno County’s outdoor cultivation ban in September 2010, suggesting patients had property rights to plants they already had in the ground. Keeping Hamilton’s ruling in mind, the city decided that passing the ordinance in December could reduce the number of potential plaintiffs with property claims, since they’d catch growers between harvest and spring planting.
“Our concern is we want to capture cultivation on the front end,” City Attorney James C. Sanchez said. “We want to deal with it now. The interim ordinance allows you to do it immediately, and then while that’s in place we’re moving through the process of getting the permanent ordinance.” Meaning the permanent ban.
So there you have it. A smart bomb packing a really dumb law, precisely timed to deny the property rights of legal growers. A fantastic claim that more research is needed, when a permanent ban is already scheduled for adoption. A police department turned planning department, overstating the problems that some growers cause and branding all legal growers as criminals in the process.
Top it all off with an anti-pot tirade from a former prosecutor, and you’ve got a good snapshot of how cultivation bans – and the hundreds of dispensary bans that preceded them – get passed in California: Through non-urgent “urgency” ordinances that limit public input and debate.