Tehama County Superior Court Judge Richard Scheuler made the ruling Friday. It was distributed to the Tehama County Board of Supervisors Tuesday afternoon.
“I’m very pleased. I thought we would prevail and we did,” said Tehama County Supervisor Bob Williams. “I thought Judge Scheuler was very thorough in his ruling. We knew the ordinance was legal and within our rights.”
The lawsuit was filed on June 7 by J. David 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, and claims the county’s ordinance makes it legally impossible for them to exercise their Proposition 215 right to cultivate medical marijuana for themselves.
In his argument to the court, Tehama County Counsel Will Murphy said “the burden to sustain such a challenge is steep … The challenger must demonstrate that the ordinance inevitably poses a present total and fatal conflict with state law.”
In his ruling, Scheuler said the court “finds as a matter of law that the state medical marijuana law does not preempt 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.
“All freedoms may be limited,” Scheuler stated in his ruling.
The judge said the ordinance does not restrict or modify the limited criminal defense offered by medical marijuana laws.
Scheuler ruled the county’s creating the “potential for zoning enforcement as to medical marijuana is not the same as criminalizing it,” and it clearly “does not prohibit medical marijuana, but equally clearly it does seek to govern location and manner,” through zoning regulations.
“No legal activity is free of zoning laws,” he states.
The 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.
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.”
via : The Corning Observer
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