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Nevada City, Calif. February 5, 2016 – Next Tuesday, February 9th, the Nevada County Board of Supervisors will consider replacing the question on the ballot measure they voted to put before voters in the June election. Supervisors will also debate a clarifying resolution, destined to clear up “significant community confusion” and will determine who will sign the argument in favor of the ballot measure, after writing it.

Will trust bloom again?

At their January 12th meeting, supervisors voted 4-1 to ban all outdoor growing of marijuana. Resolution 16-038, also adopted by a 4-1 vote that same afternoon, calls for a related ballot measure to be on the June ballot. Supervisors repeatedly told the audience at the meeting “You will get to vote on this,” meaning the outdoor cultivation ban.

A closer reading of the ballot measure revealed no such choice for voters. A Yes vote would add further restrictions to the indoor cultivation of medical marijuana, while a No vote would leave the current language of the ordinance, including the outdoor growing ban, in place. This was confirmed by County Counsel Alison Barratt-Green who explained: “The ballot measure has no direct impact on the existing ordinance unless it’s adopted by the voters. If the ballot measure is adopted, it will supersede certain sections of the existing ordinance. If it is not adopted, then the current ordinance would remain in place.”

Supervisors were quick to distance themselves from this legal reading and proclaimed their intent to respect the “will of the voters” and stated they would clarify the language to make it perfectly clear that a Yes vote means to uphold the outdoor growing ban and a No vote means they would rescind the outdoor growing ban and implement new, yet to be defined rules.

Grafting a new question atop the cloned ballot language

Voters were supposed to vote Yay or Nay on the following question:

Shall an ordinance amending Sections G-IV 5.4(C) and G-IV 5.4(E) of the Nevada County General Code regarding Restrictions on Marijuana Cultivation within the unincorporated areas of Nevada County be adopted?

The new question reads:

Shall an ordinance be adopted which (a) bans outdoor cultivation, commercial cultivation and other commercial cannabis activities, (b) limits indoor cultivation to 12 plants per parcel in residential and rural areas, (c) prohibits indoor marijuana cultivation in unpermitted structures and areas used or intended for human occupancy, and (d) allows marijuana cultivation only by qualified patients and primary caregivers and only for medicinal purposes?

What hasn’t changed is the actual language of the ballot measure, restricting the number of plants to be grown indoors only to 12 plants, notwithstanding the size of the parcel, be it a lot adjacent to city limits or a 100-acre parcel surrounded by other large parcels.

Trimming back any doubt by clarifying the intent of the BOS with a separate resolution?

The first order of business at next Tuesday’s afternoon session is to clarify the intent of the supervisors – which actions will they take if the ballot measure meets voter approval or if fails. County Counsel’s staff report explains:

The Election Process

Elections Code section 9140 provides that the Board of Supervisors may submit to the voters an ordinance for amendment or enactment of an ordinance. If the ordinance receives a majority of the votes cast, the ordinance will be enacted. The County Elections official has 28 days after the election to certify the election results to the Board of Supervisors, who in turn will accept and certify the results. The new ordinance becomes effective ten (10) days after the date on which the Board takes this action, and would have the same force and effect as an initiative.

If the ballot measure is not approved by a majority of votes cast, then the ordinance will not become effective. The recently adopted urgency ordinance, including the ban on outdoor cultivation, would remain in effect by operation of law.

However, marijuana cultivation in Nevada County has been a very controversial and contentious communitywide issue for many years. In placing this measure on the ballot, it was the intent of the Board of Supervisors to provide the community with a full and fair forum in which to vote and express their opinions regarding marijuana cultivation in Nevada County and whether outdoor marijuana cultivation should be allowed. The attached Resolution confirms and clarifies the Board’s intentions with respect to abiding by the will of the voters, including its commitment to repeal the outdoor cultivation ban and consider alternative outdoor regulations should the measure fail to pass in June.

The portion of resolution clarifying the Board’s intent reads as follows:

1. In placing the proposed Ballot Measure on the June 7, 2016 ballot, it is the intent of the Board of Supervisors to provide all registered Nevada County voters with a full and fair forum in which to vote and express their opinions regarding marijuana cultivation in Nevada County and whether outdoor marijuana cultivation should be allowed.

2. If the Ballot Measure is approved by a majority of the registered voters voting on the measure, it is the intent of the Board of Supervisors to approve the Ballot Measure at the next available meeting after the results of the election have been certified by the County Elections Official.

3. If the Ballot Measure is not approved by a majority of the registered voters voting on the measure, it is the intent of the Board of Supervisors to reject the Ballot Measure, to repeal the ban on outdoor cultivation of marijuana and to consider and adopt other outdoor regulations at the next available meeting after the results of the election have been certified by the County Elections Official.

Cloning the Supervisors and staff

The clarifying resolution also proposes the writing of the ballot argument in favor of the measure by Supervisors Dan Miller and Hank Weston, in their capacity as Chair and Vice Chair respectively. First, they’ll discuss the new ballot measure, then vote on the new question and the clarifying resolution, then write the argument in favor of it.

Pursuant to Elections Code section 9162(a), the Board of Supervisors hereby appoints the Chair and Vice Chair of the Board of Supervisors as a subcommittee to write and publish the primary argument for, and in rebuttal to the primary argument against the ballot measure, if any, and to determine the signatories for the primary ballot argument and rebuttal, consistent with the requirements of Elections Code section 9162, et seq.

County Counsel’s office will write the impartial analysis of the ballot measure, after having written the original ordinance, the ordinance updates, the ballot measure and the clarification language. This is codified in  Elections Code 9160. Regarding this particular impartial analysis, County Counsel stated in a previous interview  “When I write an impartial analysis, I write for the people, not for the Board or the Sheriff’s office.” The impartial analysis is limited to 500 words.

Fertile ground for more questions to sprout

Given the clarification is designed to regain the trust of the public and make the voter’s choice perfectly clear, why not incorporate the resolution language in the ballot measure?

With the BOS’ intent not reflected in the ballot measure and should the measure fail, could a legal eagle make the argument that the BOS does not have the authority to substantially alter the existing ordinance? In plain English, can a resolution supersede ballot language? The question might be worth exploring in light of the elections process and its consequences, as detailed by County Counsel in the staff memo: “If the ballot measure is not approved by a majority of votes cast, then the ordinance will
not become effective. The recently adopted urgency ordinance, including the ban on outdoor cultivation, would remain in effect by operation of law.

A major argument for fast-tracking the outdoor cultivation ban without any input from stakeholder groups was a March 1st deadline included in the state’s Medical Marijuana Regulation and Safety Act. Governor Brown signed AB 21 on February 3rd, removing the deadline for local governments to craft their own regulations ahead of the state rules. Could the BOS reconsider the amended ordinance and the ballot measure, convene a working group composed of members of the public, overseen by one or two members of the BOS and craft regulations addressing the very legitimate concerns of all parties?

In their first-ever primer on the medical cannabis industry, Bank of America/Merryl-Lynch stated in December 2015: “We calculate up to $2.9bn of current legal medicinal sales in under half of US states. In our view, scientific, clinical and anecdotal evidence support medicinal cannabis while recent media attention has contributed to public awareness. Given these trends, we analyzed the current medical marijuana landscape to see how products are used and sold, how drug companies are becoming more involved, and how impactful FDA approved cannabis based drugs could become. We believe current sales could at least double over the next few years if more states legalize marijuana and if FDA-approved cannabis products catch on in popularity.” The paper, under the Biotechnology heading, is entitled Medical cannabis has high POTential: a joint biotech & tools primer. Biotech is a fast-growing industry providing high-paying jobs. Given Nevada County’s ideal growing conditions for cannabis, shouldn’t economic opportunities be considered? If yes, would a sunset clause on the ballot measure provide the opportunity for a second look at regulations?

In the staff report for the January 12th meeting, the county acknowledged potential health and safety risks brought on by indoor marijuana cultivation: “The Indoor Cultivation of substantial amounts of Marijuana within a residence presents potential health and safety risks to those living in the residence, especially to children, including but not limited to increased risk of fire from grow light systems and improper electrical wiring, exposure to fertilizers, pesticides, anti-fungus/mold agents, and exposure to potential property crimes targeting the residence.” By confining medical marijuana cultivation to indoors only, is the county increasing the risk of fires likely to spread to adjacent homes and the wildland?

The Board of Supervisors has a duty to enact common-sense regulations and the voters have a right to expect their vote on any local measure to be meaningful. A blanket prohibition on outdoor growing will do little to nothing to eradicate the large-scale commercial grows highlighted in the Sheriff’s presentation on January 12th, these grows have been illegal from the very beginning.  Adding a cancer patient’s plot in the mix will not strike a blow against cartels. No doubt there is a need for regulation, but since when is Nevada County in the business of foisting a one-size-fits-all cookie-cutter measure on all property owners?

The Nevada County BOS will debate the issue on Tuesday, February 9th starting at 1:30 pm. Doors will open around 1:20 pm and additional seating will be available in the lobby of the Rood Center, complete with live-streaming. The full agenda for the meeting can be downloaded here, complete with links to all supporting documents.