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Update: Thanks to BOS Chair Dan Miller for his response to our request for comment: “We are setting up a meeting with county counsel to get clarification on the ballot measure. Our understanding was a ‘yes’ on the ballot measure would uphold the provisions of the emergency ordinance and a ‘no’ vote would rescind the emergency ordinance and we would return to the previous ordinance. We will, however, confirm this with county counsel. In any event, thanks for raising the question because the intent is to allow the citizens to decide what they want. ”

NEVADA CITY, Calif. January 14, 2016 – The Nevada County Board of Supervisors adopted a ban on the outdoor cultivation of all marijuana at their Tuesday meeting by a 4-1 vote. They also voted to put a ballot measure on the June ballot dealing with the urgency ordinance. But, even if voters reject the proposed ballot measure, the ban on outdoor cultivation will remain in place.

After close to six hours of testimony from the public, with an overwhelming majority asking supervisors to reconsider the proposed ban, supervisors voted by a 4-1 vote (with District 5 Supervisor Anderson the lone dissenting vote) to ban outdoor cultivation of marijuana and to place a ballot measure before voters.

Logical assumption thwarted – Was the public misinformed on Tuesday?

With supervisors justifying their vote for the immediate ban in part by stating voters will have their say in June, the public (and this reporter) assumed the ballot measure would provide a clear choice: Vote yes and uphold the ban, or Vote no and the ban is overturned. Alas, a closer reading of the ballot language shows otherwise.

The ballot measure will only add language restricting the permissible use to the cultivation of medical marijuana. The measure is not a Yea or Nay vote on the urgency ordinance.

YubaNet sought clarification on the matter from County Counsel, asking if voters turn the ballot measure down by a majority No vote, would it negate the updated urgency ordinance and outdoor growing would be allowed again?

“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,” Alison Barratt-Green wrote in her response.

More questions than ever

Several troubling questions deserve answers.

If the ballot measure only deals with fairly cosmetic changes to the existing ordinance and does not provide for a mechanism to overturn the BOS decision, why have a ballot measure and spend $72,000 of taxpayer dollars to fine-tune a land use ordinance?

Were the supervisors aware their vote would be impermeable to a vote by their constituents?

Since the proposed ballot measure and the urgency ordinance do not contain any provisions for licensing or permitting medical marijuana growing, will it even be possible for Nevada County property owners to grow any medical marijuana, be that indoors or outdoors?

According to an analysis by the Senate Committee on Governance and Finance: “In 2015, the Legislature enacted the Medical Marijuana Regulation and Safety Act (MMRSA), a package of legislation that comprehensively regulates many aspects of medical marijuana including cultivation, manufacturing, transportation, distribution, sale, and product safety. The MMRSA comprises three bills-SB 643 (McGuire, 2015), AB 243 (Wood, 2015), and AB 266 (Bonta, 2015). Among other provisions, MMRSA: Prohibits licensees from commencing activity under the authority of a state license until the applicant has obtained a license or permit pursuant to the applicable local ordinance. [emphasis added]”

Is there any legal remedy available if the voters of Nevada County reject the ballot measure?

The current ordinance vs the ballot measure

Below is a side by side comparison of the existing urgency ordinance and the Ballot Measure text:

Current languageBallot language

C. Medical Marijuana Cultivation may be undertaken only by

1. A Qualified Patient who occupies a legal Residence on the Legal Parcel being used for Medical Marijuana Cultivation as his or her primary place of Residence.

2. A Primary Caregiver on behalf of his or her Qualified Patient(s) but only on a Legal Parcel with a legal Residence which is occupied by the Qualified Patient or the Primary Caregiver as his or her primary place of Residence.

3. In conformance with all applicable State and local laws, including all regulations and restrictions as set forth in this Article.

C. Marijuana may only be cultivated

1. On a Legal Parcel improved with a permanent, occupied, legally permitted residence.

2. By a Qualified Patient on the same parcel that he or she occupies as his or her Primary Place of Residence.

3. By a Primary Caregiver, on behalf of his or her Qualified Patient(s), on the same parcel that the Primary Caregiver or the Qualified Patient(s) occupy as his or her Primary Place of Residence.

4. Only for medical purposes in accordance with federal, state and local law.

5. In conformance with all applicable State and local laws, including all regulations and restrictions adopted by the Nevada County Board of Supervisors.

E. The following limitations apply to Cultivation of Marijuana on each Premises located within the unincorporated area of Nevada County, regardless of the number of Qualified Patients or Primary Caregivers residing at the Premises or participating directly or indirectly in the Marijuana Cultivation activity. These limitations shall be imposed notwithstanding any assertion that the person(s) Cultivating Medical Marijuana are the Primary Caregiver(s) for Qualified Patients or that such person(s) are collectively or cooperatively Cultivating Marijuana.

1. Outdoor Marijuana Cultivation in any amount or quantity on property located within the unincorporated territory of Nevada County is hereby prohibited. Cultivation within any detached Accessory Structure that does not meet the definition of Indoor shall be considered Outdoor Cultivation, and is therefore prohibited within the unincorporated area of Nevada County.

2. Medical Marijuana may be Cultivated only on Legal Parcels located within any area zoned primarily for residential or rural uses (e.g., R-1, R-2, R-3, R-A, AG, AE, FR or TPZ). Medical Marijuana Cultivation shall be limited to twelve (12) Marijuana plants per Legal Parcel, whether mature, immature or seedlings, which are to be kept and cultivated only in one contiguous Indoor Cultivation area. The Indoor Cultivation of Marijuana, in any amount or quantity, on property located in any other zoning district is hereby prohibited.

3. Commercial Cannabis Activity in any amount or quantity on property located within the unincorporated territory of Nevada County is hereby prohibited.

E. Regardless of the number of Qualified Patients or Primary Caregivers living on a parcel or participating in marijuana cultivation activities, the following limitations shall apply: 1. Outdoor Marijuana

Cultivation in any amount or quantity is prohibited.

2. Indoor Marijuana Cultivation of more than twelve (12) Marijuana plants per Legal Parcel is prohibited.

3. Indoor Marijuana Cultivation may occur only on Legal Parcels located in an area zoned primarily for residential or rural uses (e.g., R-1, R-2, R-3, R-A, AG, AE, FR or TPZ).

4. Indoor Cultivation of Marijuana in any amount or quantity on any other parcel is prohibited.

5. Indoor Marijuana Cultivation is prohibited in non-permitted structures, structures that are exempt from permitting, or any portion of a structure used as, designed or intended for human occupancy.

6. Commercial Cannabis Activities in any amount or quantity are prohibited.”

Full text of Ballot Measure

AN ORDINANCE AMENDING SUBSECTIONS G-IV 5.4(C) AND G-IV 5.4(E) OF ARTICLE 5 OF CHAPTER IV OF THE NEVADA COUNTY GENERAL CODE REGARDING RESTRICTIONS ON MARIJUANA CULTIVATION

THE PEOPLE OF THE COUNTY OF NEVADA, STATE OF CALIFORNIA, ORDAIN AS FOLLOWS:

SECTION I:
Section G-IV 5.4(C) of Article 5 of Chapter IV of the Nevada County General Code regarding Marijuana Cultivation is hereby amended to read as follows:
“C. Marijuana may only be cultivated
1. On a Legal Parcel improved with a permanent, occupied, legally permitted residence.
2. By a Qualified Patient on the same parcel that he or she occupies as his or her Primary Place of Residence.
3. By a Primary Caregiver, on behalf of his or her Qualified Patient(s), on the same parcel that the Primary Caregiver or the Qualified Patient(s) occupy as his or her Primary Place of Residence.
4. Only for medical purposes in accordance with federal, state and local law.
5. In conformance with all applicable State and local laws, including all regulations and restrictions adopted by the Nevada County Board of Supervisors.”

SECTION II:
Section G-IV 5.4(E) of Article 5 of Chapter IV of the Nevada County General Code regarding Marijuana Cultivation is hereby amended to read as follows:
“E. Regardless of the number of Qualified Patients or Primary Caregivers living on a parcel or participating in marijuana cultivation activities, the following limitations shall apply:
1. Outdoor Marijuana Cultivation in any amount or quantity is prohibited.
2. Indoor Marijuana Cultivation of more than twelve (12) Marijuana plants per Legal Parcel is prohibited.
3. Indoor Marijuana Cultivation may occur only on Legal Parcels located in an area zoned primarily for residential or rural uses (e.g., R-1, R-2, R-3, R-A, AG, AE, FR or TPZ).
4. Indoor Cultivation of Marijuana in any amount or quantity on any other parcel is prohibited.
5. Indoor Marijuana Cultivation is prohibited in non-permitted structures, structures that are exempt from permitting, or any portion of a structure used as, designed or intended for human occupancy.
6. Commercial Cannabis Activities in any amount or quantity are prohibited.”

SECTION III:
The People of the County of Nevada affirm that the Board of Supervisors may adopt, without a vote of the people, such additional ordinances, resolutions or other regulations as may be necessary to reasonably interpret and clarify the provisions of this Ordinance, so long as such interpretations or clarifications (even if contrary to a prior interpretation or clarification) is not inconsistent with the language and original intent of this Ordinance. The People of the County of Nevada further affirm that voter approval shall be required to repeal or substantially amend the Ordinance in a manner that is inconsistent with its original intent.

SECTION IV:
If any provision of the amended Article or the application thereof to any person or circumstance is held invalid, the remainder of this Article, including the application of such part or provision to other circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Article are severable. The Board of Supervisors hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one (1) or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be held unconstitutional, invalid or unenforceable.

SECTION V:
Pursuant to Elections Code section 9122, this Ordinance shall not take effect until ten days after the a majority of voters voting at the June 7, 2016, general statewide election approve the Ordinance and the Nevada County Board of Supervisors declares the vote. Upon approval by the voters, the Nevada County Clerk-Recorder shall certify to the passage and adoption of this Ordinance and the Clerk of the Board shall cause the Ordinance to be published as required by law.

Related article:

Live! The Nevada County BOS meeting on Outdoor Marijuana Cultivation Ban