May 112012

UPDATE: Starting this Wednesday, May 16, patient-growers who live inside the Fresno city limits will have a chance — however slight — to ease the ban on outdoor cultivation of medical marijuana. More important, they’ll have the right to ask the police to stand down from their effort to open a new front in the Drug War.

The meeting starts at 6 p.m. Wednesday on the second floor of City Hall, 2600 Fresno St.

Read the staff report and text of the draft marijuana ordinance (12 Mb download)

YOUR PROPERTY RIGHTS MAY BE AT RISK — PROTECT THEM! Like the agenda notice says, “If you challenge these land use matters in court, you may be limited to raising only those issues you or someone else raised in oral or written testimony at or before the close of the hearing.”

The back story: Fresno has banned collective cultivation and dispensaries since 2004, leaving personal cultivation as the only lawful means within the city for patients to grow and possess their own supplies of medical marijuana. In December, acting upon a request of the Fresno Police Department, the City Council enacted an “urgency” ordinance to stop qualified patients and primary caregivers from growing their medical marijuana outdoors. This followed reports of sporadic violence and rising complaints about nuisance odors, both centered around a small number of large-scale gardens in the city.

The police want a permanent ban on all outdoor growing, even for growers with small gardens who don’t pose an actual nuisance or generate complaints from their neighbors. The Police Department also wants to be the lead enforcement agency, even though other zoning ordinances are handled by the Code Enforcement Division.

The city’s permanent medical marijuana ordinance will affect all property owners in the city, whether they use medical cannabis or not, by subjecting them to aerial police surveillance (see pp. 7-13) and potential search and seizure wherever marijuana plants are found growing outdoors. This is quite unlike the city’s other nuisance ordinances, where enforcement is complaint-driven (no black helicopters or routine aerial surveillance) and follows an administrative process to protect the due-process rights of property owners.

Allowing FPD officers to enforce the growing ban means property inspections that are labeled as a civil matter can easily turn into criminal and/or child-endangerment investigations after entry to the property is made. Landlords and other property owners also are subject to possible enforcement and fines, even where they have no actual knowledge that marijuana is being grown on their property. Homes where weapons and/or children are present will be at special risk of ancillary enforcement upon entry by police officers for the purported purpose of inspection or plant abatement.

Is it reasonable for the city to pass medical marijuana laws that ban large-scale nuisance gardens? Of course it is. Is it reasonable to pass an emergency zoning ordinance where no real state of emergency exists, and then use that pretextual emergency to authorize routine police surveillance and enforcement for civil land-use infractions? No, it’s not. Whether the city got the memo or not, medical cannabis patients are authorized under state law to grow a reasonable number of plants in the safest and most affordable manner possible — outdoors — without being subjected to arrest or nuisance actions.

If you follow the city’s logic, we should ban parking cars outdoors because cars get stolen a lot. We should ban indoor massage parlors because we know what often goes on behind closed doors there, including suspected human trafficking. We should ban liquor stores, even though liquor is legal, because they contribute to crime. For every perceived sin or vice — even the legal ones — police can advance the argument that zoning restrictions and criminal enforcement are the appropriate remedies.

But the city’s own zoning law says otherwise. It says land-use enforcement is a civil matter with procedures designed to provide adequate notice and due process. It says the city’s Department of Development and Resource Management, aka the planning department, should enforce zoning laws using its very own Code Enforcement Division. It says the planning director (currently City Manager Mark Scott), not the police chief, is authorized to take any necessary enforcement steps, including the filing of an action through the city attorney. The police want to change that. They want the right to conduct routine aerial surveillance, not just for suspected criminal activity but also for suspected violation of a zoning ordinance. And that’s not cool in my book, even though I fully understand their motivation and support reasonable cannabis growing regulations.

Do I feel strongly about this issue? Yeah, enough to file a lawsuit against the city’s knee-jerk “urgency” ordinance, which will be replaced by the permanent ordinance coming up for first hearing on Wednesday, May 16. You don’t have to believe me when I say it’s a bad idea to give the police any greater enforcement powers than those they already have, but you should at least think about the city’s proposed medical marijuana ordinance before letting it pass without comment.

The Planning Commission meeting starts at 6 p.m. Wednesday at City Hall, 2600 Fresno St. Speakers are generally limited to 3 minutes, so choose your words wisely and make sure they’re polite ones. The commission also accepts written comments. Before you go …

Read the staff report and text of the draft marijuana ordinance (12 Mb download)

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