Revised Impartial Analysis of Measure W

NEVADA CITY, Calif. March 11, 2016 – Nevada County has submitted a revised impartial analysis on Measure W to comply with a judge’s ruling. The new text is below.

IMPARTIAL ANALYSIS MEASURE W

Restrictions on Marijuana Cultivation

Measure W is a County-initiated ballot measure that was placed on the ballot by the Nevada County Board of Supervisors pursuant to Elections Code section 9140. On January 12, 2016, the Nevada County Board of Supervisors adopted Nevada County Ordinance No. 2405 (hereinafter referred to as “Existing Law”) containing new restrictions on marijuana cultivation in the unincorporated area of Nevada County. This Existing Law allows qualified medical marijuana patients and their primary caregivers to cultivate medical marijuana in qualified permitted structures on properties where those patients or their primary caregivers reside, and prohibits outdoor marijuana cultivation.

Existing Law also:

• Allows only indoor marijuana cultivation of up to 12 plants per parcel on parcels zoned primarily for residential or rural uses (e.g., R-1, R-2, R-3, R-A, AG, AE, FR or TPZ)

• Allows marijuana cultivation only for medical purposes in accordance with federal, state and local laws, including regulations and restrictions adopted by the Nevada County Board of Supervisors

• Prohibits outdoor cultivation of marijuana

• Prohibits all commercial cannabis activities

• Requires that parcels used for cultivation be occupied by the patient or primary caregiver as his or her primary place of residence

• Requires that parcels used for marijuana cultivation contain a permanent, occupied, legally permitted structure

• Prohibits marijuana cultivation in any portion of a structure used as, designed or intended for human occupancy

• Prohibits marijuana cultivation in non-permitted structures

Because the Existing Law was passed by the Board of Supervisors, it is subject to amendment or rescission by a majority vote of the Board of Supervisors. Measure W also contains the above-mentioned restrictions, and if passed, would amend Sections G-IV 5.4(C) and G-IV 5.4(E) of the Nevada County General Code accordingly.

Measure W also contains a new provision (“Section Ill”) which would allow the Board of Supervisors to adopt any additional ordinances, resolutions or other regulations necessary to reasonably interpret and clarify the ordinance, without a vote of the people, so long as the Board’s interpretation or clarification is consistent with the language and original intent of the voter-approved ordinance.

Therefore, Measure W proposes to enact a voter-approved ordinance, enacting the above-mentioned restrictions on marijuana cultivation and commercial cannabis activities in unincorporated areas of the Nevada County, which can only be changed by a vote of the people except as set forth in Section Ill of the proposed ordinance, Measure W.

A “Yes” vote on Measure W is a vote to adopt the proposed ordinance contained in Measure W which would amend Sections G-IV 5.4(C) and G-IV 5.4(E) of the Nevada County General Code, and would allow the Board of Supervisors to interpret and clarify the ordinance in accordance with Section Ill of Measure W. Any other amendments to, or rescission of, the Measure W provisions would require a vote of the people.

A “No” vote on Measure W is a vote to reject the proposed ordinance contained in Measure W. A “No” vote would result in no change to Existing Law, which can be amended or rescinded by a majority vote of the Board of Supervisors.

The above statement is an impartial analysis of Measure W. If you desire a copy of the measure, please call the Nevada County Elections office at 530-265-1298 and a copy will be mailed at no cost to you.

Next steps

Starting today and until March 20th, the revised analysis is available for public inspection In the Notice of Election published yesterday, Registrar of Voters Greg Diaz states: ” [T]here will be a 10-calendar-day public examination period of only the Revised Impartial Analysis beginning Friday, March 11, 2016 at 8:00 a.m. thru Sunday, March 20, 2016, during which a qualified voter of the jurisdiction may seek a writ of mandate or an injunction requiring any or all of the Revised Impartial Analysis to be amended or deleted. The writ of mandate or injunction request shall be filed no later than the end of the 10-calendar-day public examination period.

Background

The revision of the impartial analysis, written by County Counsel, came after attorney Heather Burke filed a writ on behalf of Forrest Hurd challenging Measure W. Stating “the ballot summary is confusing, misleading, and contains significant untruths,” Burke also filed for a Temporary Restraining Order (TRO) to prevent Nevada County from printing ballots until the matter was heard before the court. Nevada County Superior Court Presiding Judge B.Scott Thomsen granted the TRO on March 4th. He assigned the hearing on the preliminary injunction to Judge Heidelberger after Nevada County’s attorneys filed a peremptory challenge against Judge Thomas Anderson, removing him from the case.

On March 8, Judge Heidelberger heard arguments from both sides and issued her ruling later that morning.

Ruling on the preliminary injunction to show cause, Judge Heidelberger listed 5 errors needing correction if Measure W is to be on the June ballot:

  1. The Analysis states that Measure W would “codify the above restrictions on marijuana cultivation.” Petitioner argues that the restrictions are already codified by Ordinance 2405, so Measure W would not be doing any codifying of the already existing regulations.The Court agrees with Petitioner. Ordinance 2405 is already codified. Measure W seeks to amend two provisions that have already been codified. Thus, the language in the Impartial Analysis on this point is misleading.
  2. The Analysis infers that Measure W would be upholding Ordinance 2405. But, Measure W has no effect on Ordinance 2405.Again, this Court agrees with Petitioner. Measure W seeks only to amend two provisions that are already in effect. The Impartial Analysis infers that a “yes” vote would uphold Ordinance 2405. However, a “yes” vote will have no effect on Ordinance 2405. Thus, the Impartial Analysis is misleading.
  3. The Analysis infers that the voter would be maintaining existing law. But, it is actually amending two sections.As set forth above, the Court agrees with Petitioner. Ordinance 2405 is the law at this point. Measure W amends two sections and adds one provision, but does not uphold any other provisions.
  4. The Analysis makes it confusing as to what a “no” vote means. The Analysis discusses Resolution 16-082 and that if the voters vote “no,” then the Board would take some kind of action. Petitioner argues that this is confusing because the language should be limited to talking about only what a “yes” means and only what a “no” means.Petitioner again is correct in his interpretation. The Impartial Analysis improperly intertwines Resolution 16-038 and Resolution 16-082. However, only Measure W [Resolution 16-038] is before the voters. Addressing the Board’s intent resolved on another Resolution is confusing and improper.
  5. While not addressed in the Petition, the Court notes that the Impartial Analysis does not clearly delineate that a brand new provision, Article III, is also being voted upon by the public. The Impartial Analysis must make clear that two provisions are being amended and one provision is being added. The effect of the measure on existing law is not properly and clearly set forth in the Impartial Analysis as required by Elections Code §9160.

The previous text on which the ruling was based, reads as follows:

MEASURE W

Restrictions on Marijuana Cultivation

Measure W is a County-initiated ballot measure that was placed on the ballot by the Nevada County Board of Supervisors pursuant to Elections Code section 9140. On January 12, 2016, the Nevada County Board of Supervisors adopted Nevada County Ordinance No. 2405 containing new restrictions on marijuana cultivation in the unincorporated area of Nevada County. This existing law allows qualified medical marijuana patients and their primary caregivers to cultivate medical marijuana in qualified permitted structures on properties where those patients or their primary caregivers reside, and prohibits outdoor marijuana cultivation. Existing law also:

• Allows only indoor marijuana cultivation of up to 12 plants per parcel on parcels zoned primarily for residential or rural uses (e.g., R-1, R-2, R-3, R-A, AG, AE, FR or TPZ)

• Allows marijuana cultivation only for medical purposes in accordance with federal, state and local laws, including regulations and restrictions adopted by the Nevada County Board of Supervisors

• Prohibits outdoor cultivation of marijuana

• Prohibits all commercial cannabis activities

• Requires that parcels used for cultivation be occupied by the patient or primary caregiver as his or her primary place of residence

• Requires that parcels used for marijuana cultivation contain a permanent, occupied, legally permitted structure

• Prohibits marijuana cultivation in any portion of a structure used as, designed or intended for human occupancy

• Prohibits marijuana cultivation in non-permitted structures

If adopted by a majority of the voters, Measure W would create a voter-approved ordinance to codify the above restrictions on marijuana cultivation and commercial cannabis activities in unincorporated areas of the County, and would amend Sections G-IV 5.4(C) and G-IV 5.4(E) of the Nevada County General Code accordingly. The proposed ordinance would allow the Board of Supervisors to adopt any additional ordinances, resolutions or other regulations necessary to reasonably interpret and clarify the ordinance, without a vote of the people, so long as the Board’s interpretation or clarification is consistent with the language and original intent of the voter-approved ordinance.

On February 9, 2016, the Board of Supervisors adopted Resolution No. 16-082 clarifying the intention of the Board of Supervisors if this ballot measure fails, which is to abide by the will of the voters with respect to Measure W, repeal the ban on outdoor marijuana cultivation and consider and adopt other outdoor regulations related to cultivation of marijuana.

A “Yes” vote on Measure W is a vote to adopt the proposed ordinance and uphold the existing marijuana cultivation regulations contained in Measure W.

A “No” vote on Measure W is a vote to reject the proposed ordinance. If Measure W is rejected, the Nevada County Board of Supervisors has committed to repealing the existing outdoor ban on marijuana cultivation and to adopting other outdoor regulations after the County Elections Official certifies the election results. The existing marijuana cultivation regulations would remain in place in the interim period.