The San Benito County Board of Supervisors unanimously approved an urgency ordinance that adds a new chapter to the county code to restrict and regulate marijuana cultivation within the county. The ordinance will exempt marijuana crops that can be proven to have been under cultivation as of Sept. 27, 2016, but will terminate once they have been harvested. All other marijuana grows will not be exempt after Dec. 27, 2016.
The ordinance will be in effect for 45 days and can be extended beyond that by a four-fifths vote, according to Barbara Thompson, acting assistant county counsel. It could be extended in increments up to a total of two years, as the staff works on a permanent ordinance. As of Sept. 13, the number of plants will be reduced from 12 to six per parcel of land, regardless of how many patients or caregivers are living on the property or participating in the cultivation.
If the person or patient cultivating the marijuana is not the legal owner of the parcel, that person must keep a letter of consent signed by the legal owner giving permission to cultivate marijuana on the land.
There will be no outdoor cultivation within 1,000 feet of schools, parks and youth facilities, and must be at least 1,000 feet from another residence without a six-foot tall fence surrounding the marijuana. There will be no commercial cultivation, which is being declared a nuisance. And since there is a two-year limit, the staff did not add a sunset clause in the urgency ordinance, but it remains in the regular ordinance.
Concerning any indoor cultivation, the structure must comply with California Building Codes and California Electrical Codes. It must have permanent electricity installed. It also must have locking doors and be equipped with an odor control filtration system.
Additionally, to qualify for limited immunity, individuals must register by Nov. 30, 2016, and comply with applicable laws, ensure security of the marijuana, the plants cannot be visible from the public right-of-way, and not be grown within 1,000 feet of a residence, except if enclosed by a fence. The number of plants being cultivated cannot exceed the number planted during the last quarter.
Supervisor Jerry Muenzer asked Thompson how a parcel of land was being defined. She said a premises (rather than a parcel) is single legal parcel of property where there is continuous legal parcels under one common ownership or control, which would include other parcels next to each other. Supervisor Jaime De La Cruz asked her if someone is presently harvesting and had more than six plants on a parcel would they be allowed to continue harvesting.
“It depends on when they’re harvesting now,” she said. “If they’re harvesting next month they can keep their plants until they harvest. If they’re harvesting today they need to get an application for an extended amortization period. Basically, if they’re harvesting they can continue growing their crops until they harvest, and in the interim, they can file for an amortization and that would come to the board for enforcement. This particular ordinance clarifies that our limited immunity does not apply to any federal or state criminal proceedings. We would not enforce our ordinance against a parcel for a nuisance abatement while they have a valid application.”
De La Cruz asked for clarification about grows with more than six plants and if the board would determine if people could continue growing them. She told him that was true and it would be determined on a case-by-case basis using information the cultivator provides.
“Whichever way it goes, it doesn’t mean our sheriff will start on Monday morning pulling plants out?” he asked.
Thompson said the immunity process allows up to three months of cultivation and allows the property to continue cultivating and gives a grace period so people can file their applications.
Supervisor Margie Barrios asked if the urgency ordinance would stop all new grows immediately. Thompson said that is the goal, but there may be exemptions for people who may not have actually planted, but have been constructing buildings or have been making improvements in anticipation of cultivating a crop. Either way, the board would still have the final say if the growers could proceed.
Barrios commented that the regular ordinance would open a window to people who want to begin operating in the county. Thompson said that could not happen until Nov. 10, and that the board would vote on it for adoption.
Barrios asked if the urgency ordinance would require people to register immediately. Thompson said it would after a public notice was published, and then it would take 45 days to two months. She said people would have to reasonably prove that their plants were already under cultivation and that could be demonstrated with photographs of their plants. Thompson said there are a number of factors besides plant size that might qualify a person to apply, including the amount they have invested and the rate of return on the investment. Barrios asked if growers are required to report to the Board of Equalization for sales tax purposes. Thompson responded that she believed so, but did not know for certain.
“I can guarantee you that what they tell you they are receiving is not what will be on their tax returns,” Barrios said. “I hope you’ll have more proof than just their word.”
Supervisor Anthony Botelho commented that the issue is complex and as marijuana laws change in the state, supervisors will have to continue working on the ordinance. He said many of the growers who are already in the county are not desirable.
“They think they’re above the law and there’s no accountability,” he said. “We’re bringing accountability with this ordinance, today. I strongly hope that my colleagues on the board support this. I think we still need to continue working on this and go forward.”
Supervisor Robert Rivas said there are a number of issues that still need to be resolved after Prop. 64 is voted on in November. Before the supervisors took their vote, Barrios restated her position from previous meetings that it doesn’t matter what the state does.
“We still have the right as a county to create our own regulations and we will not be violating any state law, at this point, with either one of these ordinances,” she said. “Even if there are changes in October, when marijuana is voted to be used recreationally, we can still have this ordinance in place and it will not make any difference.”