Oct 272012

Fresno’s ban on outdoor cannabis gardens faces a new legal challenge, this time on environmental grounds.

In December 2011, the Fresno City Council passed a so-called urgency ordinance prohibiting outdoor cannabis gardens anywhere in the city. The ordinance passed after police cited concerns about a handful of large-scale gardens, some of them within residential neighborhoods. A 2010 shooting death during an attempted heist of an outdoor cannabis garden across from Roeding Park was cited as justification for urgency legislation, even though more than a year passed between the shooting and the introduction of the ordinance.

Police officials declared outdoor cannabis gardens to be an “attractive nuisance” and also pointed to a rising number of citizen complaints about odors during the flowering season. That was enough for the City Council, which extended the temporary ban in January 2012 and voted to make it permanent in June.

Violations of the ordinance can be prosecuted as a misdemeanor, but the more common scenario involves “rip your plants out or we’ll rip them for you” visits by local police or code-enforcement officers. The permanent ordinance authorizes such summary abatement, as well as legal actions and fines against landlords and property owners.

The environmental impacts of an outdoor growing ban were not given much consideration, if any. The City Council made findings that the ordinance was exempt from the California Environmental Quality Act’s standard requirement to prepare an initial review, followed by a full EIR if needed. Yet driving all cannabis cultivation indoors in the state’s fifth-largest city will impact the environment through a significant increase in electrical consumption and related air emissions; increased risk of utility theft and structure fires; potential discharge of plant nutrients and other chemicals to wastewater systems; potential hazards to first responders including electrical shock and hazardous chemicals; increased blight in neighborhoods with large numbers of vacant or rental housing units that can conceal illicit grow sites; and other equally significant impacts.

A 2011 study of energy consumption related to cannabis cultivation was compiled by Evan Mills, an energy analyst at the Lawrence Berkeley National Laboratory. “In California, the top-producing state (of marijuana), indoor cultivation is responsible for about 3% of all electricity use or 8% of household use …. This corresponds to the electricity use of 1 million average California homes, greenhouse-gas emissions equal to those from 1 million average cars, and energy expenditures of $3 billion per year.” Ban outdoor growing and those numbers can only go up.

As for nuisance odors, they can be mitigated by permitting small-scale home cultivation AND collective gardens in non-residential areas. It’s no accident that personal cultivation skyrocketed after collectives were banned throughout the Central Valley. After years of doing nothing to address the problem, the City Council now takes the novel view that’s it’s OK to ban certain plants from being grown under natural sunlight, a dangerous precedent to set in an agricultural community.

As a qualified patient, I filed a legal challenge against the temporary ordinance in April. The first amended complaint against the permanent ordinance was filed Oct. 19 in Fresno County Superior Court. The amended lawsuit makes two claims: 1) the outdoor growing ban is pre-empted by the Medical Marijuana Program Act (SB 420) and Compassionate Use Act (Prop. 215), and 2) the city failed to conduct an initial review of the ordinance as required by the California Environmental Quality Act.

In a polarized environment that views patients, potheads and drug cartels as one and the same, rational debate is difficult. It’s even harder with the federal government’s campaign against dispensaries and collective grow sites. In the Central Valley, that campaign is dubbed Operation Mercury, a hodge-podge of local sheriffs and federal DEA agents that threatens property owners with federal asset forfeiture and criminal prosecution.

Between the feds, the sheriff and the local police, it’s open season on medical cannabis patients and growers. If you’re a Prop. 215 patient-grower in the Fresno-Clovis area, avoid encounters with law enforcement, even if you’re fully state-compliant. Remember the law doesn’t provide you immunity from arrest, just an affirmative defense in state court – and no defense at all in federal court.

Accordingly, you should demand a warrant before granting access to your property, and consult an attorney immediately if you get a warning letter or notice of abatement. Rest assured it’s not “just a civil matter” if officers want to see your garden or talk to you about it. Defense attorneys will all tell you the same thing: “You have the right to stay silent … so would you please, oh pretty please, just SHUT THE F**@?! UP!!??” Don’t hurt your own cause by talking to the cops or giving them free entry to your property. The risks far outweigh your desire for transparency and respect.

Looking ahead, outdoor growing bans are likely to be passed by hundreds of cities and counties in coming years, often on a bogus “urgency” basis. And just like the dispensary bans that preceded them, the legality of outdoor growing bans will be settled by an appellate court. In the meantime, Prop. 215 growers who plant outdoor cannabis gardens in Fresno and elsewhere will have to remain cautious and vigilant.

  2 Responses to “Suit challenges Fresno ban on outdoor cannabis gardens”

  1. u think i could still grow next year 2013 in my property

    • Outdoor growing is banned next year in the city of Fresno, just like it was this year. How often and how effectively the ordinance will be enforced are separate questions.

      Another key question will involve the city’s definition of outdoor growing: “Outdoor” shall mean any location that is not totally contained within a “fully enclosed and secure building” that has been approved by special permit issued by the city’s Development and Resource Management Department.

      Another definition from the city ordinance: “Fully enclosed and secure structure” shall mean a space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, and which is accessible only through one or more lockable doors.

      So in theory, backyard greenhouses are allowed, but only those that meet all Building Code standards and which also have passed a city building inspection. I’m guessing the police will take the stance that free-standing greenhouses built with PVC pipe won’t qualify, making greenhouse growing a more pricey option than it may appear to be at first glance.

      Greenhouses also won’t spare you from scrutiny by neighbors and/or law enforcement. Police have set up a snitch line for anonymous tips, and several greenhouses were found at this recent bust: http://www.fresnobee.com/2012/10/16/3031537/fresno-police-crack-major-pot.html.

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