Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
California NORML has announced it will appeal a court decision upholding Tehama County's marijuana cultivation ordinance.
"We believe the ordinance is restricting patients' right to grow medical marijuana," said Dale Gieringer, director of Cal NORML, an organization dedicated to reforming California's marijuana laws. It is helping to support the lawsuit financially.
The group issued its statement in an e-mail dated Sunday.
"The ordinance, which declares it a nuisance to cultivate any marijuana at all - indoors or outdoors - within 1,000 feet of a park, church, school, school bus stop, and such, effectively makes it impossible for many patients to obtain their medicine in accordance with Prop. 215."
Attorney J. David Nick will be appealing the Jan. 28 ruling by Tehama County Superior Court Judge Richard Scheuler, who dismissed a lawsuit seeking to declare the ordinance invalid.
Among other reasons for his decision, Schueler emphasized that the county has the authority to set zoning uses even for legal activities.
Assistant County Counsel Arthur Wylene said his office expected the appeal to take place even before the ruling came out.
"Based on the petitioners' statements when filing the lawsuit, we are not at all surprised by this decision," he said. "We are confident the court of appeals will uphold the ordinance."
The lawsuit was filed on June 7 by Nick and Editte Lerman on behalf of plaintiffs Jason Browne, Dawn Browne, William Browne, Michael Black, Grant Nott, LIndsey Crooks, Brian Loucks, Jason Cater, Josh Hall and Thomas Scott.
"After careful consideration of all potential issues, Cal NORML has decided to appeal the illogical ruling of the Tehama County Superior Court," Nick said. "Never before has an appellate court approved a rewriting of statewide law under the masquerade that its a zoning provision."
Tehama County Supervisor Bob Williams said he is not at all surprised to hear of Cal NORML's decision to appeal.
"The Board of Supervisors anticipated this when we learned of the court's ruling," he said.
Nick believes the state Supreme Court and state appellate courts have repeatedly held that municipalities have no authority to restrict what the breadth of state law expressly permits.
"The state's Compassionate Use Act gives individuals the ability to create their own medicine. Certainly that right will disappear in swabs of the whole state if it can be eliminated through the 'zoning' trick," Nick stated.
In his ruling, Scheuler said the court "finds as a matter of law that the state medical marijuana law does not pre-empt the field of county zoning," and the county's marijuana ordinance is not pre-empted by any state law nor does it violate or conflict with any state law.
He also ruled against the plaintiffs' claims the ordinance is unconstitutional and that it violates the right of equal protection and right of privacy.
Scheuler states, "creating the potential for zoning enforcement as to medical marijuana is not the same as criminalizing it," and cited the Kruse versus Claremont decision, which upheld the city's right to ban a medical marijuana dispensary.
Cal NORML states, unlike Claremont, Tehama County's ordinance limits the right of individual patients to grow marijuana and makes it impossible for patients to supply their medical needs.
According to Scheuler, the ordinance "reveals what appears to be a standard zoning ordinance through which the county seeks to protect the health safety of the community," and "conflicts with state law must be 'total and fatal' before local ordinances are disallowed."
Those involved in the lawsuit are confident the Third District Court of Appeal "will have a more accurate view of the law."
The county's marijuana cultivation ordinance, adopted by the Board of Supervisors on April 6, declares it a public nuisance to grow marijuana anywhere within 1,000 feet of a school, school bus stop, church, park or youth-oriented facility.
It also states no more than 12 mature or 24 immature marijuana plants can be grown in an area 20 acres or less, and if both mature and immature plants are growing there shall be no more than 24 total.
In an area greater than 20 acres but less than 160 acres, no more than 30 mature and 60 immature plants, with no more than 60 total at one time can be grown, the ordinance states, and in an area 160 acres or greater no more than 99 plants, whether mature or immature.
The ordinance requires outdoor gardens be surrounded by an opaque fence at least six feet high and located 100 feet or more from the property boundaries; and requires every patient garden to be registered with the county health services agency.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: Corning Observer (Corning, CA)
Copyright: 2011 Freedom Communications
Contact: Letters to the Editor - Corning Observer
Website: Homepage : Corning Observer
Details: MapInc
Author: Julie R. Johnson
"We believe the ordinance is restricting patients' right to grow medical marijuana," said Dale Gieringer, director of Cal NORML, an organization dedicated to reforming California's marijuana laws. It is helping to support the lawsuit financially.
The group issued its statement in an e-mail dated Sunday.
"The ordinance, which declares it a nuisance to cultivate any marijuana at all - indoors or outdoors - within 1,000 feet of a park, church, school, school bus stop, and such, effectively makes it impossible for many patients to obtain their medicine in accordance with Prop. 215."
Attorney J. David Nick will be appealing the Jan. 28 ruling by Tehama County Superior Court Judge Richard Scheuler, who dismissed a lawsuit seeking to declare the ordinance invalid.
Among other reasons for his decision, Schueler emphasized that the county has the authority to set zoning uses even for legal activities.
Assistant County Counsel Arthur Wylene said his office expected the appeal to take place even before the ruling came out.
"Based on the petitioners' statements when filing the lawsuit, we are not at all surprised by this decision," he said. "We are confident the court of appeals will uphold the ordinance."
The lawsuit was filed on June 7 by Nick and Editte Lerman on behalf of plaintiffs Jason Browne, Dawn Browne, William Browne, Michael Black, Grant Nott, LIndsey Crooks, Brian Loucks, Jason Cater, Josh Hall and Thomas Scott.
"After careful consideration of all potential issues, Cal NORML has decided to appeal the illogical ruling of the Tehama County Superior Court," Nick said. "Never before has an appellate court approved a rewriting of statewide law under the masquerade that its a zoning provision."
Tehama County Supervisor Bob Williams said he is not at all surprised to hear of Cal NORML's decision to appeal.
"The Board of Supervisors anticipated this when we learned of the court's ruling," he said.
Nick believes the state Supreme Court and state appellate courts have repeatedly held that municipalities have no authority to restrict what the breadth of state law expressly permits.
"The state's Compassionate Use Act gives individuals the ability to create their own medicine. Certainly that right will disappear in swabs of the whole state if it can be eliminated through the 'zoning' trick," Nick stated.
In his ruling, Scheuler said the court "finds as a matter of law that the state medical marijuana law does not pre-empt the field of county zoning," and the county's marijuana ordinance is not pre-empted by any state law nor does it violate or conflict with any state law.
He also ruled against the plaintiffs' claims the ordinance is unconstitutional and that it violates the right of equal protection and right of privacy.
Scheuler states, "creating the potential for zoning enforcement as to medical marijuana is not the same as criminalizing it," and cited the Kruse versus Claremont decision, which upheld the city's right to ban a medical marijuana dispensary.
Cal NORML states, unlike Claremont, Tehama County's ordinance limits the right of individual patients to grow marijuana and makes it impossible for patients to supply their medical needs.
According to Scheuler, the ordinance "reveals what appears to be a standard zoning ordinance through which the county seeks to protect the health safety of the community," and "conflicts with state law must be 'total and fatal' before local ordinances are disallowed."
Those involved in the lawsuit are confident the Third District Court of Appeal "will have a more accurate view of the law."
The county's marijuana cultivation ordinance, adopted by the Board of Supervisors on April 6, declares it a public nuisance to grow marijuana anywhere within 1,000 feet of a school, school bus stop, church, park or youth-oriented facility.
It also states no more than 12 mature or 24 immature marijuana plants can be grown in an area 20 acres or less, and if both mature and immature plants are growing there shall be no more than 24 total.
In an area greater than 20 acres but less than 160 acres, no more than 30 mature and 60 immature plants, with no more than 60 total at one time can be grown, the ordinance states, and in an area 160 acres or greater no more than 99 plants, whether mature or immature.
The ordinance requires outdoor gardens be surrounded by an opaque fence at least six feet high and located 100 feet or more from the property boundaries; and requires every patient garden to be registered with the county health services agency.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: Corning Observer (Corning, CA)
Copyright: 2011 Freedom Communications
Contact: Letters to the Editor - Corning Observer
Website: Homepage : Corning Observer
Details: MapInc
Author: Julie R. Johnson
