The Concord City Council instructed the city attorney to develop the most defensible city ordinance banning all outside medical marijuana growing on all the city's approximately 38,000 parcels, regardless of size or situations of lots.
The Planning Commission -- without any modifications or any reservations -- approved the proposed ordinance; it is now set for public hearing and vote in the Council chamber at 6:30 p.m. Tuesday, March 26.
The public hearing notice -- which appeared in the Contra Costa Times legal section of Tuesday, March 12 -- neglected to provide directions to obtain the staff report and proposed ordinance. One should go to www.cityofconcord.org, government, boards and commissions, planning commission, then to agenda of Feb. 6.
It appears that the city would be taking property rights in violation of the Fifth Amendment of the U.S. Constitution. Also, it is not acknowledging, in a balanced way, the rights of medical marijuana patients as approved by a vote of the people, in 1996, passing California Prop. 215, also known as the Compassionate Care Act.
I have followed public policy issues in relation to marijuana and other drugs, since 1963. In Contra Costa County, I served on the Alcohol and Other Drugs Advisory Board as its policy chair (the only member to publicly support Prop. 215).
In the Feb. 6 staff report to the Concord Planning Commission, the city attorney rightfully pointed out that no court has found that medical marijuana patients or caregivers can either grow outside or inside or neither. So Concord can arbitrarily prohibit outdoor growing and "leave" indoor growing "so long as it does not unduly burden the ability of medical marijuana patients/caregivers to cultivate medical marijuana."
Then there is no discussion of the economic, psychological or health impacts on the medical marijuana patients or growers. The city attorney then admits that the Concord Police Department is violating the 2008 California Court of Appeals decision in People v. Kelly which specifies the quantity of dried marijuana and mature or immature plants per qualified patient.
Where has Concord been given the right to either practice medicine or void a California Appellate Court decision?
Enforcement of the proposed ordinance is limited to Concord's current nuisance procedures and to the issuance of administrative citations and fines. But with abatement there is no amended language guaranteeing the preservation and return of either dry or grown marijuana plants.
Concord appears to propose ignoring the U.S. Fourth Amendment and case law that requires the return of seized medical marijuana.
The city, almost flippantly, declares that it can ignore the California Environmental Quality Act (CEQA) and force growers off the land. This would prohibit all care for a garden enriching the soil, bird, microbial and animal life and water retention and filtration properties of cannabis roots and leaf decay.
This is not a "common sense CEQA exemption," especially since there is an indirect effect on the environment by requiring transportation out of Concord -- having already also banned medical marijuana dispensaries.
The rationale for this ordinance is imbalanced and does not justify treating all parcels the same. It should include a mediation process to allow resolution of individual property disputes and specific mitigation. All neighbors should have the fullest enjoyment of their property rights, too.
Make yourself heard by calling the mayor or City Council at 925-671-3158 or sending written testimony to both the city at email@example.com and to myself at 925-524-0272 or AccessJoeP@gmail.com.
Follow the meeting on the local government cable channel, watch a replay or get access via streaming online or archive at www.cityofconcord.org and check out "Video & TV." See you at 6:30 p.m. Tuesday, March 26, at 1950 Parkside Drive.
Partansky is a former chair of the county Alcohol and Other Drugs Advisory Board's policy committee.