UPDATE February 20: CalNORML has filed its appeal.
UPDATE February 6: California NORML will appeal a court decision upholding Tehama’s ordinance restricting patients’ right to grow medical marijuana. 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, et al., effectively makes it impossible for many patients to obtain their medicine in accordance with Prop. 215.
Attorney J. David Nick will be appealing a ruling by Superior Court Judge Richard Schueller, who dismissed a lawsuit to declare the ordinance invalid on Jan. 28th. “After careful consideration of all potential issues NORML has decided to appeal the illogical ruling of the Tehama County Superior court,” says Nick. “Never before has an appellate court approved a rewriting of statewide law under the masquerade that its a zoning provision. 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 CUA 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. We are confident that the 3rd District Court of Appeal will have a more accurate view of the law.”
See: Pot group appealing court ruling
COURT RULES TEHAMA CULTIVATION RESTRICTIONS VALID
February 3, 2011 – Superior Court Judge Richard Schueller dismissed Cal NORML’s legal challenge to Tehama county’s ordinance restricting medical marijuana cultivation. The court held that the county’s powers to regulate nuisances through zoning ordinances were not preempted by the CUA or SB 420. The court ruled that “creating the potential for zoning enforcement as to medical marijuana is not the same as criminalizing it.” The court cited the Kruse v Claremont decision, which upheld the city’s right to ban a medical marijuana dispensary.
Unlike Claremont, however, Tehama’s ordinance limits the right of individual patients to grow. Unlike collectives, patients are explicitly protected under Prop 215. Judge Schueller also cited the Buchanan bill, H&SC 11362.768, which declares that nothing shall prohibit local govts from passing ordinances “further restricting the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, of provider.” Cal NORML attorney J. David Nick points out that the Buchanan bill does not apply to individual patients or caregivers, nor does it override the legislative intent of SB 420.
The Tehama ordinance restricts the amount of marijuana patients or collectives can grow to 12 mature plants on 20 acres or less; requires 100 foot setbacks from neighboring property, and forbids any cultivation within 1000 feet of schools, school bus stops, churches, parks, or youth facilities.
Cal NORML believes the ordinance violates Prop 215 because it effectively makes it impossible for patients to supply their medical needs. Since Tehama county has also banned dispensaries of any kind, this effectively leaves those patients who can’t grow on their own property without any legal access to medication.
Corning Observer: Tehama court tosses marijuana lawsuit