Martinez Votes in Outdoor Cultivation Ban; Rejects Total Ban and Greenhouse Amendment

On Wednesday, April 16 the Martinez city council voted unanimously to adopt an ordinance outlawing the cultivation of medical marijuana outdoors "or within public view." An amendment by councilmember Mark Ross to add language specifically ruling out greenhouses was rejected, as was the total ban that was called for by audience members.

After a year-long process begun after three residents complained about the smell of large marijuana gardens near their properties, he Martinez Public Safety Committee recommended in December 2013 that the council pass an ordinance limiting outdoor cultivation to six plants per parcel. However, after the California Supreme Court refused to hear the Maral case upholding a total ban on medical marijuana cultivation, and following public comments made at a March 19 meeting, the Public Safety Committee met again and recommended a complete outdoor ban. At its April 2 meeting, following more public comment, the city council directed staff to revise the pending ordinance to ban all outdoor cultivation.

City attorney Veronica Nebb, in introducing the ordinance, declared that the Maral case had decided once for all that cities and counties had the right to ban all marijuana cultivation. During the public hearing that followed, several audience members then called for city council to enact a total ban (indoors or out). Cal NORML deputy director Ellen Komp spoke, letting the council know that Cal NORML did not consider the Maral case the end of the matter, and noted that three of the seven California Supreme Court justices had voted to review the case. Komp said a legal challenge had already been filed in Fresno against their total ban, and she expected more challenges, including CEQA suits.

Noting that an attachment in the ordinance package about cultivation ordinances around California was lifted from Cal NORML's website, Komp pointed out that it was cherry-picked to include only those places that had outlawed outdoor cultivation (with the exception of Berkeley, Oakland and Santa Cruz, where outdoor was working just fine). She suggested they look at ordinances from El Dorado county, which limits plant numbers by parcel size and has environmental provisions, and the city of Sacramento, which allows secure greenhouses. She noted that Shasta residents had gathered signatures for a repeal on their outdoor ban, and that it was costing the county $80,000 to put the measure on the ballot in November.

Dr. Frank Lucido, who did his residency at the hospital in Martinez, then spoke to remind the council that marijuana is a safe and effective medicine, and implored them, "Don't make people go back inside." He called the public safety issues raised "red herrings," noting that they'd have to close banks, jewelry stores, and the antique stores Martinez is known for if they wanted to eliminate every potential public safety hazard.

Several Martinez residents rose to tell the council that the ban would impact them financially. Ben Benzakry, the owner of Emerald City Garden supply, said that he had to install better wheelchair ramps because of the disabled residents who are coming in for garden equipment. One woman said she didn't smoke marijuana, but didn't favor a "zero tolerance" ban "just because a handful of people are prejudiced against it." One audience member asked (rhetorically) why the council wouldn't just allow the making of methamphetamine and claimed that Mendocino county is no longer a safe place to live because of marijuana growing there. Another commented on the "utter chaos and lunacy" that had ensued in town after the Beer Fest that weekend, and suggested making it a pot festival instead next year to cut down on the mayhem. A few speakers noted the irony of being concerned about the "skunk" smell of marijuana in a town where the stench of the nearby oil refineries pervades the air.

Councilmember and former mayor Michael Menesini, who sits on the public safety committee, said that the ordinance was "not set in stone" and could be changed at some point in time. He called it a compromise that would be good to enact until 2016 when he expected a legalization initiative to be on the California ballot.

Councilmember Ross compared the situation to "spare the air" days disallowing the burning of wood in fireplaces, and backed a "don't ask, don't smell" policy. He called Komp back to the podium to ask whether or not a legalization would be on the ballot in 2014, and for clarification on the Kelly decision. Komp said two bills were pending in the state legislature which would regulate the commercial-sized gardens that have brought backlash against backyard grows. She snuck in a statement saying that greenhouses could be fitted with filters to take care of odors. Ross said with a 2016 legalization measure "on the horizon" he thought the outdoor ban was in the best interests of the community in the interim.

Councilmember Lara DeLaney, who seconded Ross's motion to add the phrase "or ancillary structures" to also outlaw greenhouses, cited public safety concerns while saying she was sympathetic to patients' needs. Menesini said that he would support only the ordinance as written without amendment, and Nebb said any amendment would have to go back to the Public Safety committee, so Ross withdrew it.

Mayor Rob Schroder noted that he had been to two dispensaries when the city was looking at repealing its ordinance allowing them (it they did, after public outcry). He called for FDA approval for medical marijuana. The town is currently without a police chief, as Gary Peterson has reportedly gone on disability. Chief Peterson was said to support the 6-plant ordinance.

The item will be on the council's consent calendar in two weeks. Nebb said violators of the ordinance could be subject to an infraction, but probably would just be dealt with by code enforcement. Amended language made violations a public nuisance.

Also See:
Agenda packet with ordinance

KTVU story

Cal NORML's guide to local medical marijuana growing ordinances