A lawsuit filed today by cannabis advocates seeks to block enforcement of the Fresno cannabis cultivation ban.
The petition for writ of mandate was filed by two co-plaintiffs, the newly formed Fresno Cannabis Association and the Los Angeles-based Union of Medical Marijuana Patients. The target of the lawsuit is Ordinance 2014-20, which bans all types of cannabis cultivation (indoor/outdoor)and imposes fines of $1,000/plant for violations.
While the lawsuit names only the City of Fresno as respondent, it challenges the procedures used by city planning staff, the Fresno Police Department and the Fresno City Council. The City determined that Ordinance 2014-20 was exempt from the review procedures of the California Environmental Quality Act. The City did not perform an Initial Study or adopt a Negative Declaration, nor did it prepare a full Environmental Impact Report. Instead, the City claimed:
Staff has performed a preliminary environmental assessment of this project and, pursuant to CEQA Guidelines, Section 15061(b)(3), has determined that there is no possibility that this project (ordinance) may have a significant effect upon the environment because the outdoor cultivation of marijuana is currently a prohibited use, and this ordinance merely prohibits additional future cultivation of marijuana indoors after the current crop year. This will not result in a substantial or postentially substantial adverse change in any of the physical conditions affected by this prohibition, including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. Instead, the prohibition is anticipated to have positive effects on the environment, including helping to reduce water consumption and eliminate offensive odors. Therefore, this project is not subject to CEQA.”
Medical cannabis advocates, in their suit, claim the City “failed to proceed in the manner required by law” when it passed the growing ban using a CEQA exemption.
Among other things, the Ordinance will require patients to drive outside the City to visit a medical marijuana dispensary to obtain their medicine, which will create traffic and air pollution. It may be fairly assumed that each of the City’s estimated 10,117 patients will need to go to a medical marijuana dispensary approximately once a week to get their medicine. However, the nearest storefront medical marijuana dispensary from Fresno is 109 miles away in Bakersfield. Therefore, the City’s ban of all cultivation will result in a weekly increase of 2,205,506, or an annual increase of 115,001,384 in miles traveled. Based upon federal statistics, this would result in approximately 48,869 metric tons per year in CO2 emissions alone. It would also be expected 49,145 pounds of Reactive Organic Gasses, 36.86 tons of Nitrous Oxide and 82.93 tons of PM10 (particulate material) per year. This additional travel not only may, but will, result in a direct change in the physical environment. No further evidence is required to establish that the City is not exempt from CEQA pursuant to Sec. 15061(b)(3) of the CEQA Guidelines.
Attorney Jamie Hall of Channel Law Group in Long Beach is representing the petitioners. He was the attorney of record when a Kern County judge struck down the county’s cannabis ordinance, Measure G, in February 2014 because the the county placed the law before voters without first following CEQA procedures.
Michael Green, a Fresno native and medical cannabis patient, began work to form the Fresno Cannabis Association after the City growing ban was passed in March. As an individual, he filed a Fresno County cannabis CEQA lawsuit in April and previously challenged the City’s outdoor growing ban in 2012.
“Small-scale and collective outdoor cultivation have a positive effect on the environment, while growing bans promote the use of energy-intensive indoor gardens,” Green said. “The city and county have banned dispensaries, outdoor growing, and now indoor growing, and they’ve claimed there’s no impact on the environment every time.
“Even if they don’t respect patients, we want the City to respect CEQA when they’re developing cannabis regulations. Any reasonable environmental analysis puts outdoor and greenhouse growing back on the table.”
Fresno County Superior Court Case ID: 14 CECG 01316.