Planco's penultimate pot plan proceeding

– August 19, 2008
Kevin L. Hoover
Eye Editor


CITY HALL – With opportunities narrowing for influencing the City's draft standards for medical marijuana, the various stakeholders are becoming more assertive and their rhetoric sharpening. Last week the Planning Commission (Planco) held its next-to-last meeting on the subject, and its final package of standards will likely be approved Aug. 26 and then sent up to the City Council for final adjustments and approval.

At last week's meeting, some neighborhood activists found the new draft standards too liberal and asked for further restrictions, though some dispensary operators lobbied for loosening of the looming laws. The general upshot of the meeting was an overall tightening of the regs.

The standards attempt to balance cannabis access for Prop 215 patients with neighborhood preservation by eliminating for-profit grow houses but allowing small personal grows of up to 50 square or 250 cubic feet. Dispensaries would be capped at four, then three if one shuts down. They would be allowed to grow for patients in 25 percent of their floor space on site but not over 1,500 square feet, and with purchases from grow houses specifically prohibited. One off-site grow operation would be allowed in an industrial area of town.

The dispensaries would have to provide detailed operations reports and improve their environmental practices. Compliance would be required in one year from final passage, and use permits required. Patients would be limited to four dispensed ounces of marijuana per month.



Checks and balances


Community Development Director Larry Oetker said suppression of grow houses and street sales of medical marijuana would stem from the annual performance reviews provided by dispensaries. The reports would offer detailed tracking of quantities grown, purchased and dispensed. A third party auditor could be brought in to verify the reported figures.

Cannabis advocates have asserted that the City lacks authority to regulate dispensary practices such as amounts dispensed to patients. City Attorney Nancy Diamond said that the Planco has police power for code enforcement as long as it can be shown that a public health, welfare and safety issue is being addressed. Black market sales, neighborhood deterioration and other problems could support that justification. But, Diamond cautioned, due to always-evolving case law and ending state regulations, "the law is changing daily." She nonetheless urged the commission to continue with its process.

iCenter manager Tim Littlefield said the Planco is "anti-medical marijuana," and that its new standards "guarantee the flooding of the black market" by shutting down grow house purchases by dispensaries. However, during previous Planco meetings, Littlefield had asserted that the iCenter's purchases from grow houses are extremely limited. He further said his personal need for medical marijuana "far exceeds eight ounces per month."

iCenter owner Steven Gasparas questioned the Planco's authority as "discriminating." Later, Gasparas added that a ban on residential grow house sales would do little to abate crime. Turning to what he called the "small little group" in the audience that spoke against grow houses, he jabbed the air with his pen as he said over-the-top residential grows would continue regardless of Planco action. He likened residential cannabis growing and sales to the creation of paintings by amateur artists, which are also sold.

Eric Heimstadt of Humboldt Medical Supply (HMS) called the new standards "amazing," and said his business is already working on the required reports.

"We'd love to have everything tracked," he said. He said the originally proposed eight ounces per month was too much given contemporary cannabis's potency, and advocated for a reduction to four ounces per patient per month.

Dennis Turner of The Humboldt Cooperative (THC) said the six-month renewal of medical cannabis recommendations has been ruled illegal. Frequently punctuating his testimony with "OK?" Turner asserted that some cannabis patients smoke as much as a quarter ounce per day. He asked that THC be part of the City's solution.

"We will not give you any problems," he said. "Our subsidiary operations will take up the majority of the issues that may arise, OK? For us, OK?" he said, offering no elaboration as to the nature of the "operations."

Nip It In The Bud leader Robin Hashem asked that personal cultivation be limited to 25 square feet or 125 cubic, and that dispensaries be limited to 250 square feet of growing area. She suggested that dispensaries be capped at two.

"The only reason we have five is that no one was paying attention or understood the full consequences to our town," Hashem said.

Citizen Wade DeLashmutt has previously lobbied for an outright ban on residential grows and for having few to no dispensaries in town. He said his neighbor's grow house made his neighborhood "cave in" until eventually busted with a reported 27 pounds of marijuana, $12,000 cash and methamphetamine confiscated.

"That's what you're going to have if you let people grow in their house," Delashmutt said. "If you let them grow 50 feet, they're going to grow a hundred feet."

He further advocated a zero tolerance stance toward grow houses, sales and dispensaries, that none be allowed. "Make a stand – zero," DeLashmutt said.

Citizen Laura Albright agreed. "I'd love to see it at zero," she said. But, that being unrealistic, she said Planco should "cap it at one." She didn't want any residential growing allowed.

HSU Biology Professor Bob Gearheart advocated for no residential grows, maybe two dispensaries and a for a "full CEQA document" to be created.

That would be an environmental study under the California Environmental Quality Act, likely taking into account issues of energy consumption and solid waste. At a meeting with citizens the day before, Oetker said that dispensary use permit approvals could require traffic studies, inasmuch as some boast thousands of customers, most of whom arrive by car.

"Full disclosure in the decisionmaking is possible," Gearheart said. "It would help you, it would help the staff, it would help the community."

Citizen Ann Warner suggested that medical marijuana dispensaries be limited to the same number of existing pharmacies in Arcata – two. "These pharmacies seem adequate to address the medical needs of the residents of Arcata," she said. She asked the Planco to reorient itself towards civic improvement rather than service the marijuana industry, which has cast Arcata as a "self-defined haven of illness" populated by thousands of sick people who require marijuana.

Realtor Charlie Jordan said her opposition to commercial marijuana production in residential areas is "non-negotiable." "I just don't think you should grow orchids, grow marijuana or fix cars in residential areas," she said. She said there are "ramifications" to limiting the livelihoods of dispensary operators, and urged commissioners to find "middle ground."

Other speakers decried the reorientation of Arcata as a commercial cannabis capitol for the region.

The Planco decides

Commissioner Robert Burnett offered extensive remarks – also heavily punctuated with the "OK?" verbal tic – characterizing the Planco's emerging standards as a balanced and flexible approach to regulating medical needs with public safety. He said Gearheart's call for an environmental study was " strictly a smokescreen by people that hope to delay the process and stop it dead in its tracks."

Commissioner Michael Winkler said an appeals mechanism ought to be included in the standards so that patients and dispensaries accused of improprieties could have "due process."

While two of the four dispensaries – THC and HMS – appear ready to comply with the new standards, the regs, if adopted, could spell the end of the iCenter. Its lease on the storefront at 11th and K streets expires in October, effectively closing the business. Reopening elsewhere would require a new Conditional Use Permit, which is effectively banned by the new standards.

Following more discussion, largely led by Commissioner Paul Hagen, the commission settled on the cap of four dispensaries, reverting to three if one closes. However, Commissioner Judith Mayer called the cap a "fairly bogus thing," and counterproductive.


Detection and deterrence


iCenter's owner Gasparas's point about land use standards not deterring commercial residential grows is underlined by practical limits on grow house detection and code enforcement.

The county Drug Task Force reviews energy consumption records in developing cases against grow house operators. DeLashmutt's neighbor, Robert Rivello, consumed more than 10,000 kilowatt hours of electrical energy at his Ninth Street grow house – enough to power a small neighborhood – until DTF shut it down.

Though the Planning Commission has "police powers," a PG&E spokesman said the utility's privacy policy rules out any casual review of a residence's energy consumption by the commission or by Community Development.

According to PG&E's legal department, "Customer records/information, including usage, can only be obtained by court order (search warrant, subpoena), which are issued by the courts, by the District Attorney, or under Federal Law, the U.S. Attorney. Any government agency, including Community Development, would have to have such a court order to seek our customer records."


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