Lakeport City Council unanimously passes first reading of medical marijuana cultivation ordinance

LAKEPORT, Calif. – At its Tuesday night meeting the Lakeport City Council unanimously approved the first reading of a medical marijuana cultivation ordinance that would require grows be conducted within detached structures on residential properties.

The council will hold the second reading of the ordinance at its June 18 meeting.

In February, city staff had presented a draft ordinance to the council that prohibited outdoor cultivation and required all marijuana growing to take place in outdoor accessory structures, as Lake County News has reported.

Finding that draft document too limiting and open to legal challenges, the council directed that a committee be formed to work on an alternate ordinance.

Council members Kenny Parlet and Stacey Mattina, city staffers, and city residents Howard Holtz and Kim Beall were on the committee, which met in March and April before unanimously accepting a final draft that later, with some minor modifications, was recommended to the council by the Lakeport Planning Commission.

The document before the council on Tuesday night also prohibits outdoor cultivation and requires grows to be contained in accessory outdoor structures. However, it also puts the emphasis on complaint-driven enforcement.

The new document may not be free from legal challenges. Lower Lake attorney Ron Green, who attended and participated in the committee meetings, appeared on behalf of a group calling itself the Emerald Unity Coalition. He warned that the city could be sued if it implemented the new rules.

With marijuana grows already under way, Councilman Marc Spillman asked what city residents could expect this year if they report a nuisance grow.

Police Chief Brad Rasmussen said city staff intended to immediately begin a public education campaign about the ordinance and its requirements in advance of any enforcement actions.

“We want to educate the public to make sure the information is out there and everyone understands what the consequences will be before we implement enforcement,” he said.

City officials said the consequences for noncompliance are infractions and citations, and would be routed through the city's recently approved administrative citation process. Nuisances could be abated without fines.

“It's primarily complaint-driven,” said Rasmussen.

Parlet said the committee had included a section that emphasized that dealing with grows that were nuisances or caused public safety concerns were a priority.

“We're not looking for trouble,” Parlet said. Rather, he said they were attempting to protect city residents.

Councilman Martin Scheel asked City Attorney Steve Brookes if the city would need to wait until Jan. 1 for full enforcement. Based on a judge's ruling last year in a case challenging the county's medical marijuana cultivation ordinance, enforcements were prevented against grows that were already planted by the time the county's document was accepted through Dec. 31 of last year.

Brookes said waiting until January for full enforcement might be the prudent thing to do, with the first six months devoted to public education.

“My concern overall has been avoiding litigation, obviously, but also protecting the people that are not involved in the growing of medical marijuana,” and who have their own financial interests and property, said Parlet.

He said many people have become collateral damage, losing property values and use of their property. Referring to a recent California Supreme Court ruling that upheld local governments' zoning rules with relation to medical marijuana, Parlet said the court has shown the city can do what it's proposing.

City Manager Margaret Silveira said the ordinance will take effect 30 days after the final reading, and that they would work on education between that point and January and take up enforcement on a case-by-case basis.

During public comment, Holtz asked Brookes if noncompliance without causing a nuisance is a legitimate complaint.

Brookes said he couldn't speak for police, but he said if the city received a complaint about growing with no nuisance element, he didn't think they would be willing to address it.

Rasmussen said enforcement would be based on legitimate and verified complaints. If there wasn't a violation the city wouldn't take action.

If that is the true intent, “this is probably the best ordinance in the state,” said Holtz.

Community member Tom Kalk said he thought it was a good ordinance. Noting that he didn't think most people are interested in intruding in the lives of others, Kalk said he supported the ordinance and hoped the council would approve it.

In response to Holtz's comment about the ordinance, Green said, “It's kind of laughable to think that this is one of the best in the state. It's one of the worst.”

He said its ban on outdoor cultivation was likely to be challenged, and said the city should put of implementation until Jan. 1.

“We feel you ought to allow some outdoor cultivation,” Green said, calling the proposed ordinance “unreasonable.”

He said nuisance grows already could be dealt with through the city's nuisance laws, and added that the city should stay away from trying to control indoor cultivation, suggesting any rules established to address it wouldn't be enforceable.

Green wanted the city to increase the square footage for plants from 80 square feet to 120 feet, and said an environmental impact report on the new rules should be carried out. He also wanted the city to mirror the county's ordinance – which he had said had been challenged on the vested rights legal theory – in order to have uniformity.

Mayor Tom Engstrom asked Planning Services Manager Andrew Britton about the original growing area allowed for grows under the ordinance. Britton said it originally had been 50 square feet but was raised to 80 square feet.

Beall, who runs a child care business from the home she has owned for 23 years, said last summer she lost four clients – amounting to a $24,000 annual loss – because of the marijuana that could be seen and smelled in her neighborhood.

“If you pass the ordinance, what they're saying is, you could get sued,” said Beall.

She acknowledged that was true, adding, “But good fences make good neighbors,” paraphrasing poet Robert Frost.

Beall said the draft ordinance was designed to be a middle of the road approach. “We have to be able to live together.”

The city could wait to enforce it until Jan. 1, but that would mean the city would smell like marijuana all summer, which Beall said is not likely to help the tourist industry that's important to the area.

She said she believed the ordinance would work, and noted of the committee, “We worked really hard on it.”

Lakeport resident Terri Persons also encouraged the city council to adopt the ordinance. She asked that they be proactive in educating residents and persistent on enforcement.

Scheel said banning outdoor growing had been a concern for him. He said he was contacted by two people who represent those unlikely to come to a public meeting to voice their concerns. The individuals in question grew small amounts indoors.

“Don't ask, don't tell may have to suffice for us to get something passed,” he said.

Scheel said the city has to do something, explaining that in his neighborhood he can't stand to be outdoors due to the smell of marijuana grows.

Parlet said he didn't think they could wait until January, and said Green's remarks surprised him, considering Green had attended all but one of the committee's meetings and had been instrumental in some of the changes the committee had made to the document. There also has been a number of compromises, he added.

Parlet said Green's comment about the ordinance being the worst in the state was insulting. “Ours is anything but onerous.”

He pointed out that the city had brought in stakeholders to help craft the document.

The city is hearing “the same thing over and over again” from people – that they can't go outside and enjoy their property, Parlet said.

He said the ordinance was a great piece of work and added, “We need to move forward.”

Mattina emphasized the compromise that had been employed in writing the ordinance. She said there were people who wanted to grow marijuana everywhere and others who wanted it allowed nowhere. She said Britton collected a lot of information to help them in crafting the document.

“It's the right thing to do,” she said of passing the ordinance, adding that Green's threats to sue were not the right thing to do.

Scheel moved to approve the first reading, with Mattina seconding. The vote was 5-0.

Later, at the end of the meeting, Engstrom thanked Britton for his efforts, noting it must have consumed his time since February.

Britton emphasized it wasn't a staff-driven effort. “It really was the product of input from the community,” said Britton, adding that he was glad the city was moving forward on it.

The proposed ordinance can be seen below. It begins on page 23 of the packet.

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052113 Lakeport City Council Agenda Packet by LakeCoNews

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Written by: Elizabeth Larson

Published: 22 May 2013

Lakeport files suit against county, Rivero over access to RIMS database

LAKEPORT, Calif. – A month after the county's sheriff cut off the Lakeport Police Department from its longtime access to a law enforcement records management system, the city of Lakeport filed a lawsuit against the county citing breach of a dispatch contract.

The suit, which names Sheriff Frank Rivero along with the county, was filed on Monday. It alleges breach of contract, breach of the covenant of good faith and fair dealing, and seeks declaratory and injunctive relief.

City Manager Margaret Silveira said Rivero's “unilateral and unjustified actions” have harmed the city and its residents, threatened public and officer safety, and undermined the “cooperative and mutually beneficial relationship” the city and county previously enjoyed.

No amount of damages can compensate the city for the breach of its contract, and so the city is seeking to obtain specific performance of the contract. Silveira said the city is seeking a preliminary injunction to return the parties to the status quo prior to the contract breach.

“Time is of the essence in this matter because every day the LPD is denied access to RIMS the public and officer safety is jeopardized,” Silveira said in an email to Lake County News.

County Counsel Anita Grant said Tuesday evening that she had not yet seen Lakeport's suit and therefore couldn't comment on it.

The lawsuit's filing follows Rivero's decision last month to cut off the Lakeport Police Department's access to the Records Information Management System, or RIMS, without warning, at first telling Police Chief Brad Rasmussen there were no issues and later, after Rasmussen went public with his concerns, alleging inappropriate uses and access.

However, during a special Board of Supervisors meeting called to discuss the matter, Rivero – when pressed – acknowledged that he could not say for certain if the access had been inappropriate because Lakeport's police officers were not under his management and he couldn't launch internal affairs investigations on their actions.

At the same time Rivero also cut off access to RIMS for Lake County Probation, and has a long-running issue with the District Attorney's Office over cutting off access to that agency as well.

Despite requests by the city, Lakeport Police and the Board of Supervisors to restore Lakeport Police's access, Rivero has refused to do so, according to Silveira, which she said is in “wanton disregard” of the county's and Rivero's obligations under the dispatch services contract between the county and Lakeport.

At the end of last month the Lakeport City Council emerged from a closed session discussion to vote to hire the law firm of Colantuono and Levin PC – which specializes in government-related casework – to handle the suit against Rivero, as Lake County News has reported.

Silveira said that for nearly 25 years Lakeport and the county have worked cooperatively with one another to share dispatch services for their respective law enforcement agencies.

Under that contract the city holds with the county, Silveira said the county's dispatch services include providing the city access to the county RIMS system, which she said is a vital tool law enforcement agencies use to gather and maintain all dispatch records as well as other local criminal offender record information.

The city maintains that under the dispatch services contract, Lakeport Police has the right to use RIMS to access records of its own calls for service through dispatch dating back some 10 years, as well as related law enforcement information gathered by the county and other agencies that pooled resources to centralize dispatching services within the county, Silveira said.

She added that the Lakeport Police Department relies on the records in the county RIMS database for day-to-day operations, using the information to conduct investigations, respond to requests for information from the public and media, prepare reports and conduct statistical analysis necessary to obtain and report on grant funding opportunities, and develop better policing methods by identifying and targeting areas of greatest needs.

She said Lakeport Police's access to RIMS protects public safety and help ensure the safety of its officers by quickly providing up-to-date information about potentially violent suspects before an officer arrives on scene.

As examples of the importance of the information, the case documents cite a May 1 incident involving a grass fire that had been dispatched near a Lakeport residence. A Lakeport Police officer had incomplete information through dispatch and was not able to quickly access information in RIMS about the fire's location.

In other instances since Rivero cut Lakeport Police's access in late April, officers have overhead incomplete radio dispatches involving sheriff's deputies “responding to potentially high risk incidents just outside the City limits,” and have not been able to quickly determine location in order to provide assistance, the suit states.

When filing cases with the District Attorney's Office, Lakeport Police is required to submit information including Computer Assisted Dispatch, or CAD, logs, from the RIMS system. Officers used to be able to easily access the information but now must call Central Dispatch and request that the CAD logs be prepared, a time consuming approach for both dispatch and officers, according to the suit.

Lakeport Police also needs to access the information in order to apply for grants and meet other grant reporting requirements, according to case documents.

In addition to having RIMS access restored, the city is asking the court to award attorney's fees.

No date has yet been set for an initial hearing in the case.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

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Written by: Elizabeth Larson

Published: 22 May 2013

Lakeside Heights update: Ground movement slows, another leak test planned

LAKEPORT, Calif. – Ground movement is slowing and studies are continuing at the site of a north Lakeport subdivision plagued by a landslide since late March.

County staff gave the Board of Supervisors the latest in a series of update on the Lakeside Heights subdivision during the board's meeting on Tuesday morning.

Seven homes have been red-tagged and about another 10 homes have been served voluntary evacuation notices, according to county officials and subdivision residents.

Supervisor Rob Brown, whose daughter and son-in-law own one of the homes damaged in the landslide, once again recused himself from the discussion, and Supervisor Jim Comstock was absent due to knee surgery.

Special Districts Administrator Mark Dellinger told the board that ground movement has slowed and less water appears to be coming out of the ground at a location on Downing Drive.

However, as of Sunday morning, a new crack was identified in front of the bus stop on Downing Drive, he said.

Emergency funding requests have been submitted to state agencies and geologists with the US Department of Agriculture's Natural Resources Conservation Service are scheduled to be on site within the next week, Dellinger said.

His department is monitoring variances between a new compound meter installed to determine how much water is going into the subdivision and individual water meters at the 29 hilltop homes.

Dellinger said a third leak detection report will be done and a geotechnical report from the county's consultant is being completed this week.

Public Works Director Scott De Leon, the incident commander the county appointed after the board declared a local emergency last month, said that his department is continuing to monitor the part of the slide above Hill Road.

He said they haven't seen movement since May 14. “If you go there every day you don't really see it,” he said.

De Leon added of the slide, “We expect that one of these days that's going to come down the hill.”

County officials previously reported that they have plans in place should the slide reach Hill Road, including alternative access to nearby Sutter Lakeside Hospital.

He said Lake County Vector Control went out and treated some standing water at the request, made at last week's board meeting, of a resident.

So far, the county has received no word from the California Emergency Management Agency or the governor's office regarding its request for a state emergency declaration, De Leon said.

Supervisor Anthony Farrington asked about a comment made at last week's meeting by a subdivision resident raising a concern that firefighters had “hammered” a water line – turning off a hydrant in mid-flow, thereby damaging water lines – while fighting a March 6 chimney fire at one of the homes.

Dellinger said he has talked to Lakeport Fire Chief Ken Wells and planned to meet with him later on Tuesday. He said Wells also is drafting a letter in response to the matter.

Wells told Lake County News in a separate interview that no such hammering took place, with firefighters only shutting off hydrants when there is no flow. He also said such hammering is difficult to do in looped water systems like the one in place in Lakeside Heights.

It also wasn't accurate that the fire required a new water meter to be installed, according to county staff.

Farrington also wanted to know if staff was considering digging up a manhole where a large water flow previously had been found to see if water flow had stopped.

Supervisor Denise Rushing suggested that they may need to dig other holes, and wanted to hear from geotechnical and hydrological experts about what should be done.

De Leon said the county is requesting additional geotechnical and hydrological study of the area.

Board Chair Jeff Smith said he was hoping they would get someone with the necessary knowledge on the project, adding they were “digging holes in the dark” and the study needed science behind it.

Dellinger said staff could look at digging up the manhole, as Farrington suggested.

He said they're also continuing to have delays with getting information from the state Department of Water Resources that could help identify well locations in the area.

Rushing, who is heading to Washington, DC this week, said she will be meeting with US Sens. Dianne Feinstein and Barbara Boxer. She asked for staff to provide her with information about the situation to take to the legislators.

Farrington asked staff to move forward with a third leak test and then to consider excavating the manhole.

During public comment, community member Randall Fitzgerald submitted a list of questions as Rushing had suggested he do at last week's meeting. The list included inquiries about the previous leak reports and the issues relating to the March 6 fire. Dellinger said he could have answers to all of Fitzgerald's questions by next week.

Farrington asked Special Districts staff if there was anything they could do for the subdivision's residents who are having to move out, including waiving of payments or payment plans.

Special Districts fiscal officer Jan Coppinger said they already are doing that. “All of these people have been good customers,” she said, adding that they will do what they can to help them.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

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Written by: Elizabeth Larson

Published: 22 May 2013

Supervisors to get Lakeside Heights update, interview treasurer-tax collector applicants

LAKEPORT, Calif. – Potential candidates for the county’s treasurer-tax collector position and an update on Lakeside Heights are on the Board of Supervisors’ agenda this week.

The meeting will begin at 9 a.m. Tuesday, May 21, in the board chambers on the first floor of the Lake County Courthouse, 255 N. Forbes St., Lakeport. It will be broadcast live on TV8.

On the agenda for 9:20 a.m. will be another in a series of updates on Lakeside Heights, where a landslide has damaged several homes and endangered many others in the 29-home subdivision.

At 9:30 a.m., the board will hold interviews for treasurer-tax collector applicants in the wake of Sandy Shaul leaving to accept a job with Marin County earlier this year.

Kay Lytton, the county’s former treasurer-tax collector who retired at the end of 2006, was appointed by the board to hold the job on a temporary basis. While it’s an elected position, it can be filled on an interim basis until the next election.

In untimed items, with County Librarian Susan Clayton retiring, the board will consider proposed modifications to job descriptions for county librarian, librarian II and branch librarian and is expected to direct Human Resources to conduct a promotional only recruitment for the county librarian position.

Animal Care and Control also will ask the board to waive the consultant selection policy and consider a proposed agreement with Jennifer Bennett, DVM, for full-time veterinary services.

The full agenda follows. Some items are out of order due to the issuance of an agenda.

TIMED ITEMS

9 a.m., A-1 to A-4: Approval of consent agenda, which includes items that are expected to be routine and noncontroversial, and will be acted upon by the board at one time without discussion; presentation of animals available for adoption at Lake County Animal Care and Control; consideration of items not appearing on the posted agenda, and contract change orders for current construction projects.

9:05 a.m.: Citizen's input. Any person may speak for three minutes about any subject of concern, provided that it is within the jurisdiction of the Board of Supervisors and is not already on the agenda. Prior to this time, speakers must fill out a slip giving name, address and subject (available in the clerk of the board’s office, first floor, courthouse).

9:10 a.m., A-5: Presentation of proclamation designating the week of May 20-26, 2013, as Public Works Week.

9:15 a.m., A-6: Consideration of letter of support for H.R. 1823 (Heck), amending the prohibition of importation or exportation of mussels to include quagga mussels.

9:20 a.m., A-7: (a) Update on Lakeside Heights Subdivision; and (b) consideration of services recommendations for continued response.

9:30 a.m., A-8: Interview applicants for treasurer-tax collector.

NONTIMED ITEMS

A-9: Continued from May 14, consideration of proposed letter regarding allocation of Proposition 39
funds.

A-10: Consideration of request for Family Medical Leave for Information Technology Director Shane French.

A-11: (a) Consideration of proposed modifications to job descriptions of county librarian, assistant county librarian, librarian II and branch librarian; (b) consideration of request for conceptual approval of changes to the librarian II and branch librarian positions; and (c) consideration of request to direct Human Resources to conduct a promotional only recruitment for the county librarian position.

A-12: (a) Consideration of request to waive consultant selection policy, determining it not to be in the county’s best interest; (b) consideration of proposed agreement between the county of Lake and Jennifer Bennett, DVM, for full-time veterinary services.

A-14: Consideration of request for letter of opposition to Assembly Bill AB 711 (Rendon) requiring the use of nonlead ammunition for the taking of wildlife in California to be sent to Senate representatives.

CLOSED SESSION

A-13: Board of Supervisors/County Counsel 1.Conference with Labor Negotiator: (a) county negotiators: A. Grant, L. Guintivano, S. Harry, M. Perry, A. Flora and C. Shaver; and (b) employee organizations: Deputy District Attorney's Association, Lake County Deputy Sheriff's Association, Lake County Correctional Officers Association, Lake County Employees Association and Lake County Safety Employees Association.

A-13: 2. Public Employee Performance Evaluation: Social Services director.

A-13: 3. Conference with legal counsel: Significant exposure to litigation pursuant to Gov. Code Sec. 54956.9(d)(2),(e)(5): city of Lakeport.

A-13: 4. Conference with legal counsel: Significant exposure to litigation pursuant to Gov. Code Sec. 54956.9(d)(2),(e)(1): Seven potential claims.

CONSENT AGENDA

C-1: Approve minutes of the Board of Supervisors meeting held on May 14, 2013.

C-2: (a) Adopt proclamation designating the week of May 20-26, 2013, as Public Works Week.

C-3: Carried over from May 14, approve plans and specifications for construction Clearlake Oaks
Senior Center, and authorize the County Administrative Officer/Purchasing Agent to advertise for bids.

C-4: (a) Adopt resolution establishing 2013-14 appropriations limits for clerk special districts governed by Board of Supervisors; and (b) adopt resolution establishing 2013-14 appropriations limit for the county of Lake.

C-5: Adopt Resolution amending Resolution No. 2012-107 establishing position allocations for Fiscal Year 2012-2013, Budget Unit No. 4014, Department of Behavioral Health (delete one Mental Health Case Manager I/II - Native American Outreach and Engagement Specialist, delete one Staff Psychiatrist (#4-0670), add one Mental Health Cultural Specialist - Native American allocations and increasing salary of Staff Psychiatrist (#1-0670)).

C-6: Adopt Resolution temporarily authorizing a road closure, prohibiting parking and authorizing removal of vehicles and ordering the Department of Public Works to post signs.

C-7: Approve agreement between the county of Lake and WRECO for hydraulic studies for Bridge Arbor Bikeway Project, in an amount not to exceed $19,480, and authorize the chair to sign.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

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Written by: Elizabeth Larson

Published: 20 May 2013