Oakley City Council Fails to Pass Urgency Marijuana Grow Ordinance

During a lively debate Tuesday, the Oakley City Council failed to pass an urgency ordinance that would have established interim regulations for cultivation of marijuana within the Oakley city limits.

Derick Cole, City Attorney, explained the legal overview of the law and expect the issue to be on the ballot in 2016 and then by 2016 it may be legal in some shape or form saying but today it’s not legal.

“The purpose of the interim measure is to allow the city to get control of the problem and stop things and preserve the status quo to have some room on how to consider handling this going forward. This may require an outright prohibition if that is the councils wish or may involve expanded some of the parameters here as far as what people can or cannot do which may include permissive actions such as number of plants under certain conditions,” explained Cole. “This is just a starting point.”

Under that ordinance (staff report), the thrust is to prohibit large-scale cultivation of marijuana, while offering a compassionate compromise allowing small cultivations for individual medical users. The ordinance prohibits cultivations, with the following exceptions:

• Indoor cultivation at the residence of a permitted medical marijuana user who resides on the property, cultivation occurring in the interior in an area of less than 50 square feet
• Marijuana plants are located at least 30 feet from any adjoining structures
• The location is at least 600 feet from any school property
• The cultivation is not visible from the exterior
• Lighting for the cultivation does not exceed 1,200 watts
• No illicit modifications have been made to the electrical system
• Plants are not for the person use of the permitted resident
• The cultivation does not become a commercial enterprise.

The council then heard from a dozen residents who said that Oakley was trying to pass this too quickly and sneak it through without public input.

(editor’s note – did not catch some last names due to quality of sound on the video).

Roberto Ramos highlighted this was similar to the chickens ordinance and he wanted equal treatment saying the City gave his “white neighbor” three months to get rid of her chickens and they should have 3-months with their plants.

“I want 3-months before we come back here and do this. This is a perfect subject in Oakley to protest. I don’t want to have to go there. You have to understand how I feel. A white guy comes in, you give him white privilege, I want it to end now. We need color up there, change. You guys have been up there way to long,” said Ramos. “You guys are persecuting us, the same way gays have been persecuted. It’s not right. I have a child who has medical marijuana, her life depends on it. It’s saving lives. You can’t die from it. But you can die from booze, narcotics. Shame on you.”

Keith Shaddock stated the council should give this more time and work with residents.

“if you are going to make a drastic decision like this which has been permissible for several years now we should have time and work with the city to make this so this can be cohabitable so it works. To just make a decision like this which we saw in the paper for 24-hour notice for nobody to defend our end of it we should have at least be considered to have more time with this,” explained Shaddock. “It’s for medical purpose and is going to become legalized. So why should the City of Oakley do something different than the whole county of contra costa?”

Pasco Saxton said he was there to speak for the medical community and that this was being rushed so no one would notice.

“I am here to represent the medical aspect of this which I didn’t hear the lawyer mention much rulings on doctor has a say in what we can take which is legal and healthy and is an amazing thing that is happening. This is being adopted very quickly overnight and this bulldozer kind of event will create an uproar in the community. There are a lot more people who are not here that want to be represented. We put together this skeleton crew within 24-hours, there are a lot of people in the area and we all want to work, we see tonight on the same time this is being voted you have all these new zoning and housing approvals and giant communities coming today,” said Saxton. “I believe there are a lot of people with plants in the ground who maybe want to finish there year, the timing is horrible. If this had started before grow and outdoor season could have had a chance to adopt and flow into this. But the way this is right now, it’s going to create hardship for a lot of people. We want to work with you. That is the main thing.”

Paul K stated the Council was rushing this decision but urged the council to work on something else.

“This all came so quick, I briefly read through this and for medical reasons asking us to grow in a little shed. We are all used to growing organic weed that is good and healthy. I don’t want to put chemicals on my plants and use fake lights. I am sure there has to be guidelines. I am sure some are abusing the guidelines but the guidelines have been here for 20-years. If we can slowly move into something else where everyone can be happy, but to just shut it off at a quick point, people are depending on their medical marijuana for the year. This right here is going to destroy them. They do not have the money to go to a dispensary that we do not even have here as well. They are trying to get their little medicine, live their life. There are a lot bigger drug issues on the street than marijuana,” said Paul.

Paul suggested to assist with a committee to let the council know what is really going on because they are jaded siting behind a desk getting little information from staff which is spoon fed which is one sided.

Shawn P. highlighted that there are other problems Oakley should be worrying about.

“To say that marijuana is a big problem, what about the meth problem, what about the people shooting people at churches and you guys want to sit here and take the little things that help people out like the kid who has seizures. The medicines that the doctors are prescribing don’t even work… How can you say weed is bad, half of you are probably on medicines now from the doctor. Why don’t you guys try marijuana, it might be better than the stuff you are taking now and may not give you side effects,” said Shawn P.

Joanna H. resident of San Francisco stated she was working with an attorney, speaking on behalf of medical marijuana community and larger statewide movement.

“First point, yes you do have the power to pass this ordinance but does that mean you should? If you do you are going to ignoring all these people who are in the room and all the people who are not here and some of them who already have plants in existence. To make that decisions would be ignoring a political reality that yes the medical marijuana industry is growing and greatly expanding we are looking at AB266 and other laws that could potentially greatly expand the framework of medical marijuana and cultivation. At this point, do you want to be going with the wave or against it? It’s a great opportunity to support this community and be forward thinking and develop sound reasonable well thought out tested regulations that actually apply to status of where things are right now. This community is here, it exists, they are not going to go away. Second point, if you pass this you will maintain the status quo, I think its quite the opposite, the status quo is that this is existing right now. What would be better is to take a moment and think about this decision through and think about why are we going to do this and what we are afraid of. I don’t want to see tis decision made out of fear. Fear is the odor, well there are plenty of businesses that create odor and those are tolerated. That is something that can be discussed. The other issue is burglaries and robberies. Of course that is a concern but there is no higher risk or statistics or evidence in a cultivation station than in a liquor store or bank. That is an over exaggeration. The electrical concerns is something that can be discussed with this community and be resolves.”

Brian E. explained to the council he wanted to work with the city on a better ordinance.
“I would like to work together because we are not criminals; we want to work with you. The fact that the city tried to push it through overnight is very surprising to us when we think we should all slow down and work together on this.

James Anthony , Lawyer from Oakland, explained what not to do is to pass an emergency ordinance tonight.

“It’s interesting the cases the attorney brought up tonight. This is lawsuit bait. You are about to make plants in the ground illegal. That is a property right. Farmers put effort money in the ground. Farmers put the plants in the ground in the spring, this ordinance is in July and headed to harvest,” said Anthony. “What you are looking at is you want to be able to enforce before the next spring before plants go into the ground.”

He was also critical about the suggestion of growing with chemicals and lights saying its bad and no way to grow plants. He asked the council what they really wanted to do because of two separate inquires dealing with cultivation.

“It sounds like someone wants to come out here on a large scale and grow marijuana, now that is a concern. But that concern is not going to happen tomorrow, you don’t plant in July. They will be looking to get some land but you can get in front of that. Odor, you can handle that on case by case,” said Anthony.

Oakley City Attorney Cole disagreed with some of the legal statements made.

“I am not of the opinion that marijuana cultivation is allowed in any zoning district in this city. That is one interpretation and one that many cities and counties have employed and that is in order to have a land use, you have to have a zoning ordinance that says the use is permitted as a right or you have to have a zoning ordinance that says it’s a conditional use and you have to have a permit. Our ordinance does not address marijuana cultivation at all. It’s silent and so it’s my interpretation that residential use don’t specially authorize cultivation that it is actually prohibited. So those people who have plants in the ground, I don’t believe they are in compliance with our zoning ordinance. Now there is some grey area here because residential uses, zoning ordinance do not say you can have a garden. You can grow some tomatoes plants. So there is some grey area to do what is customary and reasonable usages of a property. It’s natural for people to put a little vegetable patch in their backyard so I think there is some authority who have a couple plants 2,3,4-5 plants depending how they maintain them, but if they are putting in large amounts of plants in a residential use in residential area that they are already in violation of our zoning ordinance,” explained Cole.

Cole highlighted that what the city is doing is taking a prohibition that is implied but not expressed and making it expressed.

Oakley Councilwoman Vanessa Perry

Councilwoman Vanessa Perry started off the discussion by challenging the first speaker to get out there and vote if he wants diversity.

“Regarding the first speaker, Robert Ramos, two of us have been on here a year. I was appointed; you had no say in me being here. If you want diversity, vote. Get out there and vote,” said Perry.

The crowd greeted her with multiple people saying they will not vote for her and will campaign against her to make sure she is not elected next time.

Perry gathered herself, and then went into discussion.

“My thinking is the way this ordinance is written I do not agree with,” said Perry. “it’s my thinking as far as Prop 2015, MMPA, we voted on this, we voted to make medical marijuana legal in California and I don’t think we should being going against that. If the state wants to change it, that’s fine and I guess we do have the power to do this but we are opening ourselves up to lawsuits and a lot of upset people.”

Perry explained that she has been around a lot of people who had cancer and chemo treatments who did not want to be sick every day and this is how they got through it.

“I do see potential for burglaries, but so can anything. You get a brand new big screen tv, someone wants to take it, they are going to go in,” said Perry.

Councilwoman Sue Higgins started off by saying she has multiple sclerosis and believes in medical marijuana for medical uses.

“It’s a right and I don’t know how long the grow season it is (6-8 months) if we could think about how many plants for person we use, to limit a big grow because that is what this is talking about, the commercial use of a large grow,” said Higgins.

Oakley Councilman Randy Pope

Councilman Randy Pope explained he thought the urgency clause was because the activity may be argued as grandfathered which is why we wanted to get this under the urgency clause.

“I would not advocate for anybody who has plants in the ground to have to rip them out. What I think a lot of people who spoke tonight thought this was an act for prohibition for personal use in growing actually it codified it that you can and set forth criteria for allowing you to do it and that is where we need to have the discussion like a lot of people spoke about tonight,” said Pope. “How can you be that good neighbor for the person on either side of the fence who doesn’t want to smell it or expose their kids to it?”

Pope advocated for a discussion saying he is a police officer from Oakland with very liberal policies but that they do see violence crime around these collectives and larger grows where people are getting robbed and shot.

“We don’t want that here in Oakley or where you live. Some reasonable guidelines and restriction you have so you don’t become that target and bring stuff into your neighborhood which then make you a target in your own neighborhood because you don’t want to be that neighbor,” explained Pope.
He further explained he was in favor of a permanent ordinance but wanted discussion and a task force to be created.

“I am concerned that a large scale operation may sneak in under the wire so we do need to act tonight to prevent it from happening but I would not support anything in here that says anybody who has a little patch in their backyard has to rip it out,” said Pope. “This ordinance is imperfect and I disagree with several parts of it but I agree we need to pass something tonight and then we can work out the details on the permanent ordinance.”

Oakley Councilman Kevin Romick

Vice Mayor Kevin Romick explained he thought this needs to be a much larger discussion than what we have here saying It’s sort of one-sided presentation.

“I am sure there are other parts of the community who are not as supportive of this as you are. I think if we are going to have an open dialogue we need to invite the entire community to participate in whatever we decide to move forward with a more permanent ordinance,” said Romick.

The crowd began to interrupt Councilman Romick where he shot back at the crowd.

“You were all given an opportunity to speak. It’s our turn to speak and would appreciate it if we can withhold the cat calls down and get into discussion. This is not a two-way dialogue anymore. It’s a discussion between the council on how we want to proceed. We appreciate and respected your input. We sat quiet and listened to you and heard you concerns and complaints. Now give us the opportunity to digest that information you shared with us and come up with a solution,” said Romick. “Having catcalls and getting interrupted as we do our dialogue is not helping the situation at all and we only ask for the same respect we gave to you. Once the public discussion ended, that is it you had your opportunity.”

Back to the topic at hand, Romick said he was not sure he wanted to put an urgency order in place right now but rather wanted to look at items to talk about what the council did not like, wanted to take out right now and get something on the table.

“We want to prevent the large grows from sneaking in, that is the point,” said Romick. “That is our concern in this process.”

Oakley Mayor Doug Hardcastle

Mayor Doug Harcastle noted his involvement in Relay for Life for years and realizes medical marijuana helps people and get through it. It helps veterans get through mental disorders.

“I am a child of the 60’s as they say. You guys are not saying anything new to me,” said Hardcastle. “I’ve been there, I’ve done that. We up here have a responsibility to the whole community, not just you guys. I know you enjoy your weed and all that. We have to look out for everybody else.”

Hardcastle noted that two years ago he brought this up to the City Manager for a friend whose neighbor was growing marijuana and people were hopping over the guy’s fence and robbing him. The guy pulled out guns. It’s not always a peaceful situation Hardcastle explained.

“We are not stopping you guys from growing weed,” said Hardcastle. “You guys are not being stopped from growing, there are just limitations. We all have limitations in life and this is one you guys are just going to have to deal with because we have to look out for the rest of the community.”

Councilman Pope requested that any ordinance done tonight, there is a window of 45-days where Oakley would not enforce this law to pull up plants from the ground.

Vice Mayor Romick agreed saying they do not want anyone to come in and plant an acres of this stuff.

“If you have plants in the ground, we are not interested in taking them, what we are concerned about

Pope made a motion to move forward with the ordinance with an amendment with an intent where there would be a hold for enforcement during the 45-days while the council considers the permanent ordinance.

Councilman Pope’s motion failed to gather the 4/5 approval to pass.

Mayor Doug Hardcastle then made a motion to pass the ordinance as written which failed to get a second. He replied by stating “they are now free to do whatever they want”.

It was not determined if this ordinance or a similar ordinance will be brought back for further discussion at a later time.