How Does Your Pot Garden Grow?

Elk Grove city officials want to put out what neighbors complain is a growing stink.

The city may adopt regulations that would control how—and where—card-carrying medical marijuana users can cultivate their medicine, after residents aired concerns about neighboring pot grows.

In one case, a grower put up a chain link fence in an empty lot behind homes in Sheldon and cultivated dozens of marijuana plants. Nearby residents say the strong odor emanating from blooming pot plants has driven them inside, where they keep their doors and windows shut tight.

“It smells like there’s a skunk in my backyard,” Kathy Kokkos said. “I don’t have any problem with medical marijuana. I just think it needs to be controlled.”

In addition to the stench, residents say these backyard grows are a public safety problem because of their proximity to schools and neighboring children as well as lack of security and potential to entice crime.

“They’re creating an attractive nuisance,” Councilmember Patrick Hume said.

Medical marijuana advocates, however, say patients have a right to grow the plant in a way that's affordable and convenient.

Elk Grove isn't the only place medical marijuana growers face increased scrutiny. Federal prosecutors last week announced a statewide crackdown on California pot gardens, accusing them of abusing the state's medical marijuana laws.

The Elk Grove City Council recently asked staff to draft an ordinance regulating medical marijuana cultivation.

The ordinance would likely:

• Require a permit
• Restrict growing to indoors, either inside a residence or an outdoor structure such as a greenhouse
• Require growers to have the property owner’s written permission to cultivate marijuana
• Require growers to reside on the property where the marijuana is cultivated
• Medical marijuana grows would also be subject to inspections

Patients' rights

Police Chief Robert Lehner said other jurisdictions, such as Corning, have successfully adopted regulations that balance patients’ rights and the impacts on neighbors.

“What you see in every one of them is some element of getting at fairness,” Lehner said at the council's Sept. 28 meeting. “It says, we’re going to recognize your right under the California Compassionate Use Act to grow and use medical marijuana, however we’re going to regulate the manner in which you grow and use your marijuana in such a way as to not have an effect on your neighbor.”

Lehner told the council that there are a number of cases within the city that are small enough to be legal, but still cause a nuisance for neighbors.

Robert Faulkner said he hasn’t been able to use his own backyard because the stench from his neighbor’s medical marijuana plants and smoke is so bad.

“We can’t use our whole house fan,” he added.

In Laguna West, Hume said, one grower had marijuana planted so close to the fence that neighboring children could reach out and pick it.

At the meeting, council members left little doubt where they stood on the issue.

“I say we strive to have the strictest, most burdensome policy in California,” Councilmember Gary Davis said.

Dale Gieringer, director of the California National Organization for the Reform of Marijuana Laws, said there are some legitimate issues that can be regulated by cities.

“The problem is they often go well beyond and tromp on everybody else’s rights,” Gieringer said. "The city should be aware that if they impinge on the privacy and medical rights of individual patients who need marijuana for medical use, they’re going to be inviting a lawsuit.

“If they stick to legitimate public nuisances and larger gardens, there shouldn’t be a problem.”

Requiring outdoor structures to grow marijuana, however, could be cost prohibitive for some patients, Gieringer said.

“There are a lot of poor people for whom growing their own pot is the only way they can get medicine,” Gieringer said. “It’s a very affordable way to get medicine and taking that right away, we regard as an attack on Prop 215 itself.”

Gardens or dispensaries?

Medical marijuana cultivation in Elk Grove has also raised a dispute over whether larger grows are dispensaries or gardens for patient collectives.

In July, residents living in the rural Sheldon area were surprised when a chain link fence went up on an empty lot behind their homes.  

A bamboo screen shielded the area, but upon further inspection, neighbor Tom Higgins discovered a half dozen or more marijuana plants.

“The only thing stopping people from going in and taking the plants is a chain link fence and a padlock that would take one minute for someone to cut off,” Higgins said, adding that neighbors have seen various people coming and going from the site.

Plants multiplied over the summer and at one point there were as many as 50 plants with water hoses and electrical cords running from the interior of the fence to an electrical box several feet away, Higgins said.

“All we’re saying is that it’s not safe,” Higgins said.

City officials say the Sheldon grow is a medical marijuana dispensary, which are prohibited anywhere in the city.

Last month, city attorneys filed a request in Sacramento County Superior Court for a preliminary injunction.

Property owners Leonard and Betsy Kendrick rented the land to Freddy Valenzuela, who represents the Norcal Medicinal Collective.

“They are going after gardens that are not dispensaries and have no connection whatsoever with dispensaries,” said Peter Goldbeck, an attorney for Valenzuela.

Goldbeck, who said he is not representing Valenzuela on the Elk Grove issue but is familiar with the case, said Norcal Medicinal Collective is a “grower/patient” collective.

“Medical marijuana is not dispensed on the property at all,” Goldbeck said. “It’s not dispensed outside of the group of patients who are growing.”

City officials declined to comment due to pending litigation.

Elk Grove’s municipal code defines dispensaries as “any facility where medical marijuana is made available to, distributed by, or distributed to a qualified patient or primary caregiver.”

Neighbors said they were told that Valenzuela’s plants would be out by Sept. 31, but as of last Monday as many as three dozen plants were still on the property.

Betsy Kendrick said she and her husband didn’t know Valenzuela was going to be growing medical marijuana when their son rented the property to him.

“I just want them out,” she said.