PREVIOUSLY:

On Monday we reported that the county, after some internal debate, decided to allow marijuana cultivators with existing grows to continue registering through the end of the year, and that, in response, an attorney for the Humboldt Mendocino Marijuana Advocacy Project (HuMMAP) threatened to sue.

To recap briefly, the county’s Commercial Medical Marijuana Land Use Ordinance had some contradictory language. One section stated that anyone who had a grow operation in place before Jan. 1, 2016, needed to register with the Department of Planning & Building within 180 days of when the ordinance took effect in order to get a Zoning Clearance Certificate or discretionary permit. That would have been Aug. 23. Elsewhere in the ordinance, though, it said people could register and apply for permits through the end of 2016.

The county issued a policy statement late last week arguing that the Board of Supervisors’ legislative intent was to encourage growers to come into compliance with regulations, and regarding the contradictory language, the director of the Planning & Building Department has the right to offer guidance when regulations are unclear. So the interim director, Rob Wall, signed a policy statement saying growers could indeed register through the end of the year.

HuMMAP’s attorney disagreed with the county’s interpretation and said that by effectively extending the deadline to register the county had violated a settlement agreement reached in July.

Today the county responded to HuMMAP with the letter reproduced below:

Dear Ms. [Rachel] Doughty [HuMMAP’s attorney]:

We are in receipt of your letter of September 25, 2016, claiming that the issuance of the Director’s Policy Statement No. 16-006, constitutes an amendment of Ordinance No. 2544 in violation of the settlement agreement and Court order in HuMMAP v. County of Humboldt, Case No. CV-160171.  We disagree with your allegations for the reasons explained below.

The administrative record shows that the intent of the Board of Supervisors was to have a cutoff date for all existing and new grows as December 31, 2016.  They also directed staff to determine what “good standing” meant pursuant to state law.  Staff came up with the 180 day requirement (August 23rd) for determination of good standing. But the overall purpose of the Ordinance was to bring existing illegal grows into environmental compliance.  People may apply for a permit without pre-registering, but they will have the burden to prove a pre-existing grow.

Many people contacted the Planning Department and were confused as to which date applied.  Planning staff sent out its policy statement as a clarification that is allowed by state law to interpret the ambiguity.  The courts give great deference to the agency’s interpretation of an ambiguity especially when it is viewed with the ordinance’s purpose in its entirety and it is in accord with the legislative record.  Also, even without an ambiguity, a court may disregard a literal meaning that is in conflict with a clear legislative purpose. 

You were personally informed of staff’s position on the deadline during our settlement negotiations and had no issue with it at that time.  The Settlement Agreement only references the December 31st deadline and that the County will do an EIR before it continues the application period beyond that date.   We are in the process of doing the EIR. Your client also stated that they wanted as many illegal grows to be brought into environmental compliance as possible.  Precluding any more applications for existing grows before December 31st would be contrary to your previous position. 

We will not revoke the policy statement and the cutoff date for all applications remains December 31, 2016.  If you have any questions, please let us know. 

Sincerely,
Jeffrey S. Blanck
County Counsel