Concord Votes for Outdoor Medical Marijuana Cultivation Ban; Pledges to Enforce Only as Complaint-Driven

UPDATE 5/9: Stephanie Chaung of NBC Bay Area did some great research for this story, uncovering the fact that only four outdoor medical marijuana gardens were reported in complaints in Concord since 2009, and only one had a violent episode. The police sergeant she interviews speaks of home invasion robberies, something moving gardens indoors will arguably exacerbate. He cites one case where someone voluntarily moved their outdoor garden, something someone would be likely to do if they had problems.

Video at: http://www.nbcbayarea.com/news/local/Tensions-Heat-Up-Over-Medical-Pot-a...

UPDATE 4/10: Concord voted in the ordinance on its second reading, after discussing variances. City Attorney Mark Coon asked CalNORML for the Trinity ruling on variances, and it was provided. The public speakers at the meeting were all in favor of patients' rights, see video.

UPDATE 4/6: CalNORML has confirmed that Concord has a variance process for their zoning ordinances. To apply for a variance, call 671-3000 and ask for the planning department. If the variance is denied, it can be appealed to the planning commission and the city council.

March 27, 2013 - The City of Concord voted unanimously to adopt a ban on outdoor cultivation at is meeting last night, with one councilmember saying he cast his vote “reluctantly” and the others all expressing respect for marijuana’s medical properties and winning assurances from the city attorney and chief of police, both in attendance, that code enforcement would be complaint-driven.

The process began last year over a complaint about the smell of a neighbor’s medical marijuana plants. Only 14 police calls took place at marijuana grows in the town of some 58,000 parcels and 120,000 residents, yet the board decided to draft an ordinance based on nearby Moraga’s outdoor ban, which does not permit growing in any accessory structure, only inside a residence. Also considered was the Elk Grove ban, which was deemed too difficult and costly to regulate.

Fourteen people spoke at the meeting, 12 against the ordinance, one in favor and one with a mixed message. One said that lots of smells bother him, but not marijuana’s. Three middle-aged women who are medical marijuana patients rose to talk about the hardship they would face from the ordinance, and an MS patient told me the same after the meeting, saying she didn’t think she needed to speak because so many others were.

Anthony Adams, a Concord resident who has a Masters in Regional Planning from CalPoly, calculated that the ordinance was, in effect, a $75/month tax on medical marijuana patients on energy use alone, not factoring in the loss of living space and other costs. Michael Gormley, a contractor and 30-year resident of Concord, said he built a structure to grow his medical marijuana after being robbed in 2008, a structure that will now be worthless. Chris Olson said he would take legal action against the city if they passed the ordinance.

Many others were present who applauded speakers in favor of a more liberal policy. Joe Partansky and others asked the council to delay a decision and take it to a committee, and one speaker volunteered to serve on such a committee. Jeremy Dau from Cannabis Now magazine said the ordinance was in effect, “Saying yes to intoxication versus wellness,” pointing out that outdoor-grown cannabis has a fuller compliment of cannabinoids, including CBD, versus indoor grown, which is dialed for THC.

Ellen Komp from California NORML said there has been a lot of Not-In-My-Neighbor’s-Backyard-ism in the state, but that Moraga’s ordinance was about the worst example. Using CalNORML’s estimate that 2% of Californians are medical marijuana patients, she said 2400 Concordians might well be patients and questioned the finding of Concord’s chief building official Robert Woods that there would be no environmental impacts to the ordinance.

Komp asked why Sacramento’s model of secure greenhouses wasn’t considered, or an ordinance like Berkeley’s that allowed for a limited number of outdoor plants per parcel. Regarding the Tehama case cited by the city attorney, Komp said that although that facial challenge to Tehama’s ordinance was turned down, it left room for “as applied” challenges by specific patients. Read Komp’s letter to the council.

After public comments, councilmember Edi E. Birsan spoke of the people who weren’t in attendance at the meeting but who had sent in ideas. The secure greenhouse idea was “very popular,” he said. According to “us old hippies,” marijuana has been grown in Concord since 1962. Some said marijuana is stinkier than it used to be, someone else said Skunk had been around since WWII.

Birsan said for him it wasn’t about the federal ban, or the cost, or public safety, it was about, “Who decides what is an odiferous blight.” He said he would support secure greenhouses. His suggested amendments to the proposal to add the words “neighborhood complaint driven” and delineate a process for government response could not find seconds on the board. His was the reluctant “yes” vote on the measure.

Councilmember Ron Leone said his chief concern was public safety, and the others expressed unspecified public safety concerns. Leone said outdoor growing invites criminal elements and large grows, as well as selling or dispersing to kids and others. He said he feared youth seeing marijuana grows and being tempted to steal or buy pot, and also feared break-ins. “It becomes harder to sell property with a marijuana grow next door,” he said, saying outdoor grows drive down property values. He moved for adoption.

Seconding was Councilmember Laura Hoffmeister. She said she was interested in secure greenhouses, but figured it was “a lot easier to move inside.” Hoffmeister grilled the police chief and city attorney about how they would inform the public about the ordinance and implement it. “If neighbors don’t have a problem, we would never hear from them,” she noted. Both the police chief and city attorney said there would be no effort to hunt down grows about which there were no complaints. Hoffmeister said she did not believe the ordinance was overly restrictive, and that it was “a place to start.”

Vice Mayor Tim Grayson opened saying, no doubt there is benefit to medical marijuana, and that he didn’t wish to impact Concord residents with a tax, but he also had safety issues. He read from the Sacramento ordinance’s purposes and intent, and said the Concord measure came very close to accomplishing those goals, with its “intriguing simplicity.”

Mayor Daniel Helix, a former army Major General, thanked the public for their “intelligent, helpful” comments and recognized the “fully legitimate purpose for medical marijuana.” He also cited unnamed concerns for the public welfare and safety.

The City of Concord voted in favor of Prop. 215 in 1996 by a vote of 25,38l (yes) to 15,765 (no). Prop. 19, for full legalization, lost by a narrow margin in 2010 (Y:31,349; N:32,261). Similar percentages were seen in Contra Costra county as a whole.

Until recently, the Moraga ordinance was posted on the California Chief of Police Association’s website as a model ordinance. Unlike some other ordinances, including Sacramento’s, the Concord ordinance has no criminal penalties.

Patients who are impacted by Concord's new ordinance can write here.

See the Concord staff report

See state cultivation ordinances