Supervisor Fennell Talks About the Large Number of Notices to Abate Currently Going Out to Some Residents
Southern Humboldt is currently being blanketed with “Notices to Abate” as the Humboldt County Planning and Building Department’s Code Enforcement office mobilizes to bring several thousand marijuana growers into cannabis cultivation compliance.
To date, about 330 NTAs, known colloquially as ‘abatement orders’ and as ‘cease and desist letters’ have been served to property owners suspected of growing cannabis for commercial purposes without a permit. The Southern Humboldt community is receiving the majority of the NtAs because marijuana has been the primary economic engine in the area since the 1980s.
According to John Ford, Director at the Humboldt County Planning and Building Department, the stated goals of the program are to decrease the environmental degradation caused by illegal growing to the rivers and the endangered salmonid species, and to provide a “level playing field” to those residents who have gone to the trouble and expense of getting permits.
However, as more letters go out, there is fear and speculation about the County’s “real motives.” Some talk about the need for a community meeting to get a better understanding of the Abatement program and a community-wide strategy of response. People speak of a fear this program is setting a precedent of government intrusion.
Several people who have received the NTA’s report they didn’t have any cannabis growing this season. Local attorney Ed Denson said about 30 people have asked for his assistance and five of those tell him they had no cannabis on their property when they “were abated.” One woman, who spoke to Lauren Schmitt of KMUD on condition of anonymity, said: “I feel like I was CAMP-ed on when I wasn’t even growing.”
She also said she feels like the process puts her in the position of “proving her innocence” instead of the county having to present evidence she was violating the ordinance.
Supervisor Estelle Fennell sat down for an hour Friday to address the issue.
First, Fennell wants people to know that “growing your own medicine” remains legal. However, the rules for medical marijuana are changing. 2018 is the last year that collectives remain a fully legal entity. After this year, a collective will only be allowed to serve four patients, and the collective must not be doing so for a profit. Fennell also said that the legalization and regulation of commercial cannabis means that a medical recommendation is not a permit to grow large amounts. She stated,
The question for some to contemplate when they are [growing medicinal cannabis] is, if it’s pretty obvious that it’s more than personal, that’s where the abatement comes in. The abatement is only for areas that are considered to be commercial in nature. The county has absolutely no interest in taking anyone’s right either to cultivate their own personal medicine or their own personal recreational cannabis. The county has no interest in it. We really have been very strong on that.
For people who grow medical marijuana outdoors, the canopy is limited to 100 square feet on parcels one acre or smaller, and 200 square feet for parcels one to five acres in size. The ordinance posted on the Planning Dept website does not mention parcels larger than five acres.
Another topic Supervisor Fennell emphasized was “There are people in this county who would like nothing better than to see people leave their rural homes. And that is something that I am absolutely, completely against. I am firmly on the side of property rights. I am firmly on the side of having the right to live in this beautiful piece of the world. And I am really hoping that people can see that eventually, it’s going to work out.”
Fennell encourages people to come and see her so she can help shepard them through the abatement process.
There have been no reports of anyone getting an NTA focused on their home. Ed Denson said none of the people who have contacted him have received an NTA that included a charge for their cabin or home being unpermitted. Fennell said that the board has been “very strong” on this point.
However, many people who have received NTA’s have fewer than 50 plants and are growing with stored water in a manner they feel is environmentally responsible. To make this aspect of the abatement process more comprehensible, Fennel explained there are 11 areas that are considered by Department of Fish and Wildlife to be “impacted,” and require more enforcement to accommodate the cumulative impacts of the density of cultivation activity. Fennell said many people who have received abatement orders are in those watersheds. She listed them as the Salmon Creek area, Redwood Creek area, the Middle Mattole river and the Upper Mattole river, Sprowl Creek and Headwaters Mattole River, Hoaglin Creek, Little Van Duzen and Butte Creek, and the Van Duzen River.
People who live in these areas can expect abatement for much smaller patches than people who live in less impacted watersheds.
Fennell strongly advocated compliance and permitting as the best possible strategy for landowners who received an abatement notice if they want to grow in the future. Fennell said, “What’s going to happen as we move forward is that people who really want to grow, who want to be able to support their families growing cannabis, can do so legally, with a permit.” She said, “No one has to grow in the shadows anymore.”
When asked to speak about the complexity and the expense of the permitting process, Fennell said there are misconceptions about the costs and that the revised application process, known as 2.0, offers an easier path forward.
Regarding the costs, Fennell said,
There is a lot of misunderstanding regarding permitting. This is probably due to what happened coming out of the box, with a lot of people going to consultants to see how they could work with the county, perhaps because they were leery about going directly to the county after all these years of being outside the system. But that raised the cost of getting permits substantially. Consultant fees are very high. And then there are fees with the various state agencies, and I can’t tell you exactly what the fees are at the county, but they are very small compared to the other costs. I think the costs come in with bringing your cannabis cultivation operation into [code]compliance. Or if you are going to do a manufacturing operation, all of the permits that goes with building.
Then, Fennell continued, explaining that Humboldt County’s 2.0 cannabis rules strive to accommodate the very small cultivator, and to make the process “more user-friendly.” Persons who wish to grow fewer than 3,000 square feet of cannabis can now get a ministerial permit from the county. Fennell said, “It’s actually not that expensive, but it’s [also] not free … under 2.0 we’ve really tried to make it more and more friendly for the small growers. If you want to grow under 3,000 square feet, that’s a zoning clearance. In other words, you don’t need a special permit.” For an existing cultivator who wants a permit for a 3,000 square foot operation, according to Fennell, “you don’t have to comply with the road regulations that you have to do with the larger ones so long as you are living on site and you have legal access to water. That is a very easy permit to get.”
“The next cost, though, is the excise tax,” she said. Outdoor cultivation carries an excise tax of $1 per square foot and double that for mixed light. The excise tax is billed whether or not one cultivates with the permit and whether or not one successfully sells their harvest once it’s grown.
Fennell said, “Those are the costs I know about, but there are more. For instance, for the state, you’ve got to do a thorough and complete site plan that spells out where your garden is, where your water source is, and if you get a micro-business license, you’ll need to say where it’s processed, etc.”
When asked how likely it will be that people will lose their property in this abatement process, Fennell said, “that will only happen if they refuse to get rid of the plants when they get the notice. An abatement notice gives you 10 days to address that … Your first order of business is to get rid of the plants and to bring the hoop house down … if that is done within 10 days, then there is no fine.”
Fennell continued, “What many people have the opportunity to do, at that point, is to decide ‘Do I really want to continue to do this?’ If they do, they can sign a compliance agreement and get into the system.”
The goal of the fines, explained Fennell, is to encourage people to get into compliance. “This goes back to cleaning up garbage dumps, which used to be mainly what mainly Code Enforcement dealt with in the old days. If you can clean it up in those 10 days, you do not have a fine.”
She acknowledged that grading is more challenging to remedy but said, “[Landowners] have to work with the county and find a way to somehow address it.”
Regarding the “Burden of Proof” issue raised by the people who do not currently have any cannabis growing, Fennell said that the Planning Director, John Ford, has told her that it is legal to assume in rural Humboldt County that the presence of a greenhouse is grounds for an abatement order on cannabis. Fennell said that after a notice has been issued that “all one has to do is provide a photograph [of the site] and have an inspection” to prove any erroneous charges are unfounded.