Medical Marijuana Zoning and Land Use in Butte County, CA

Introduction

Medical marijuana has increasingly been in the news as a growing number of states throughout the U.S. have passed measures — or at least placed on the ballot an initiative — to legalize either medicinal or recreational marijuana usage. The history of marijuana in the U.S. goes back as far as the country itself: hemp (a type of marijuana plant) was used for rope, paper, and a number of other purposes because of its strong fibrous tissue.¹ It was not until the Prohibition Era of the 1920s that marijuana began to be prohibited by law in the U.S. — and within a decade, it was regulated in most states under the Uniform State Narcotic Act.²

Thus, from its very first days as a crop grown by the Virginia Company for export to England by decree of James I — and from the days of the first President of the United States, George Washington, who grew hemp as one of his main farming crops — to now, when marijuana is making a resurgence (if not for its industrial uses, then at least for its medicinal ones), much has changed in the American political and social landscape. On November 8, 2016, California residents voted to legalize marijuana use throughout the state.³ In Butte County, California, marijuana has had its own distinct history. This paper conducts a geographical analysis of the impact of growing marijuana on the surrounding environment of Butte County, examining land use laws, zoning variances, and the circumstances under which dispensaries have been allowed or disallowed compared to other parts of the state.

Literature Review

In California, medical marijuana is defined under the Compassionate Use Act of 1996, under which, with the recommendation of a physician, a patient can legally obtain and use marijuana for relief of symptoms associated with any number of illnesses or diseases that cause pain or suffering.⁴ Yet marijuana usage remained criminalized for persons not using the drug medicinally. As Andrew Boyd notes in his evaluation of medical marijuana laws in Butte County, Diane Monson had her home raided by Butte County sheriff's deputies in 2002 when deputies conducting a flyover spotted "marijuana growing in her backyard."⁵ Federal agents also assisted in the raid, and six plants were found. However, because of the state's statutory law, Monson was well within her legal right to grow, possess, and consume marijuana: her physician had in fact recommended it for her degenerative spine disease.⁶ The raid of Monson's home in Butte County is just one example of the tension between legality and criminality when it comes to the issue of growing marijuana. While California residents statewide no longer face such tension following the November 2016 vote to legalize marijuana, residents beforehand faced a significant number of unresolved questions about the issue.

In Butte County in particular, the effect of growing marijuana on the environment had taken a toll on the way that the environment was policed — deputies working with federal agents, conducting flyovers of homes, and raiding residences being just one example. Since 1913, marijuana had been banned in California.⁷ Yet the criminality of marijuana was largely associated with immigrants and carried with it a tinge of racism: the ban was first proposed "to prevent the spread of cannabis use by 'Hindoo' immigrants" and was later used as a pretext to stage raids "in the Mexican district of Los Angeles in 1914."⁸

The geographical environment where marijuana growth attracted the most attention from authorities was, in other words, the environment where immigrants happened to be most concentrated.

Since the passing of the Compassionate Use Act in 1996, however, legal dispensaries in California have become increasingly commonplace throughout the state — so much so that marijuana has become a "lucrative crop…especially in the Eastern District of California."⁹ This indicates that legal medical marijuana saw a tremendous increase in dispensaries across the state between 1996 and 2016. In Butte County, however, the situation has been far less favorable for marijuana growers. In 2010, Butte County passed Ordinance 2013, which prohibited medical marijuana dispensaries from selling marijuana in unincorporated parts of the county — a prohibition extended for nearly two years. In 2011, Butte County passed Ordinance 4037, which permanently outlawed all medical marijuana dispensaries in the county. As a result of pressure from local and federal agents, many dispensaries had by then already left the county for less hostile parts of California.¹⁰

Damian Martin also identifies conflicts between local law enforcement agents and medicinal marijuana growers, such as Patrick Kevin Kelly, whose home was raided much like Diane Monson's.¹¹ When it comes to zoning issues, Butte County has effectively declared all dispensaries to be in violation of zoning ordinances. Moreover, private growers cultivating marijuana pursuant to a doctor's recommendation have also come into conflict with law enforcement, indicating that there is no clear boundary between legality and criminality in practice. Law enforcement agents in Butte County have demonstrated through their actions and surveillance that they do not condone marijuana growing in any form — yet physicians following the letter of the law have continued to recommend marijuana usage for patients such as Patrick Kelly and Diane Monson.

Local Ordinances and Zoning Rules

The issue of medical marijuana in Butte County has clearly been a contentious one, as the record of conflicts between local growers and law enforcement suggests and as the County's own laws banning dispensaries since 2011 confirm. Beginning in 1996, zoning for medical marijuana usage was permitted, but as the County began to crack down, dispensaries left the county. By 2011, when they were totally restricted from opening, almost all had already departed.

Private growers were still permitted to cultivate marijuana under the law, provided they had received a physician's recommendation. Nevertheless, this permission did not prevent local and federal law enforcement agents from conducting home raids. Part of the problem is that County administrators have projected an unwillingness to support local medical marijuana usage, as interviews with stakeholders have indicated. This helps explain the restrictions on cultivation of medical marijuana set out in County Code 34A, which implemented a Land Use Law in Butte County governing how medical marijuana may be grown.

The ordinance establishes guidelines for cultivation areas according to "parcel size, residential requirements, setbacks, fencing, civil fines, and other issues."¹² Among its specific restrictions: "A parcel that is greater than 0.5 acres and supported by only one recommendation is allowed a maximum cultivation area of 50 square feet."¹³ A property smaller than half an acre is permitted only indoor cultivation. Properties are not allowed more than 50 square feet of outdoor growing space unless they exceed 5 acres. These conditions present considerable challenges and risks for residential growers who hold a doctor's recommendation. One significant risk is that growers with properties smaller than half an acre are required by ordinance to grow indoors — a practice that, as has been reported, carries its own hazards, including electrical fire.¹⁴

According to Butte County ordinances, cultivation of medical marijuana is also prohibited within 1,000 feet of a school, park, or other public facility; within 600 feet of a school bus stop; within 100 feet of an occupied residence on an adjacent parcel; and in any location where it is visible from a public street or situated in a zone where cultivation is otherwise prohibited.

Violations of these ordinances carry hefty fines — increased from $500 per day for each day an offense goes unaddressed to $1,000 per day.¹⁵ As local stakeholders noted in private interviews, the laws in Butte County are very unfavorable to medical marijuana cultivation, while in other parts of the state — such as San Bernardino, Oakland, and Humboldt County — the geography and legal environment are far more permissive for medical marijuana growers.¹⁶ Butte County simply is not.

As a practical consequence, individuals who suffer from chronic pain but live near a school or bus stop are prohibited from growing their own medicine under the current ordinance.

Conclusion

In conclusion, Butte County's residents, according to the survey conducted for this study, were not content with the ordinances put forward by the County. Marijuana has a long history in the United States, dating all the way back to the Founding Fathers — even to George Washington himself. Today, however, the plant carries a negative connotation among lawmakers in Butte County. While residents and users suffering from chronic pain and illness wish to see cultivation and use made easier, the 2016 statewide vote in California for full legalization will most likely change the way Butte County views marijuana growth and usage going forward.

With the new law in effect statewide, it remains to be seen how Butte County officials will approach the issue, but as the voters of California have indicated, the state wants marijuana legalized across the board. Some communities, like Butte County, may continue to resist. If its residents have any voice, however, that resistance may prove short-lived.

References

"5 Marijuana-Friendly Communities in California." LeafBuyer. https://www.leafbuyer.com/blog/5-marijuana-friendly-communities-in-california/

Barton, W. E. When Boston Braved the King. Boston: Wilde & Comp, 1899.

Bonnie, Richard, and Charles Whitebread. "The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition." Virginia Law Review, vol. 56, no. 6 (Oct. 1970), 972–983.

Boyd, Andrew. "Medical Marijuana and Personal Autonomy." Journal of Marshall Law Review, vol. 1253 (2004), 37–47.

"Butte County Board of Supervisors Agenda Transmittal." Butte County Dispensary Ban. Scribd. https://www.scribd.com/doc/129489624/Butte-County-Dispensary-Ban

California Health & Safety Code S. 11362.5 (1996). Retrieved from

Durbin, Kaitlyn. "Growing Marijuana at Home Comes with Hazards: Fire, Illness and Even Death." The Gazette, 21 Feb. 2016. http://gazette.com/growing-marijuana-at-home-comes-with-hazards-fire-illness-and-even-death/article/1570568

Gieringer, David. "The Forgotten Origins of Cannabis Prohibition in California." Contemporary Drug Problems, vol. 26, no. 2 (1999), 237–254.

Martin, Damian. "California Medical Marijuana Law: The Voters and Legislature Have Made Their Decision; Now Let Them Interpret It!" Journal of Law, Economics and Policy, vol. 105 (2015), 11–18.

Restrictions on Cultivation of Medical Marijuana. ButteCounty.

Wagner, Benjamin, and Jared Dolan. "Medical Marijuana and Federal Narcotics Enforcement in the Eastern District of California." McGeorge Law Review, vol. 109 (2012), 43–67.