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The wheels of justice grind on slowly in the class action lawsuit against the county’s cannabis abatement program. Thomas v County of Humboldt is inching its way through the appeals process after being dismissed in the trial court May 12. The Institute for Justice, representing plaintiffs Corrine and Doug Thomas, Rhonda Olson, Cyro Glad and Blu Graham, on behalf of the class, filed an appeal with the Ninth Circuit on September 21. On November 22, the county’s law firm Colantuono, Highsmith & Whatley, PC, struck back with an 84 page responsive brief 13,547 words long.
The lawsuit was initially brought by The Institute for Justice (IJ) in October last year in response to Humboldt County’s cannabis abatement program, which saw several property owners (like the plaintiffs) noticed for alleged cannabis related violations via satellite and in some cases, tasked to remediate and/or pay thousands to hundreds of thousands to demolish structures because of previous owners’ actions.
A couple years after the legalization of cannabis in California, Humboldt County’s enforcement for cultivation and related violations including; grading, streamside management area development, and unpermitted structures with a “nexus to cannabis,” began occurring much more frequently, and with penalty amounts that now range from $6,000-10,000 per day, per violation. The penalties add up quickly — sometimes leading to notices threatening millions in fines and thousands in costs to bring the property up to pre-cannabis condition. “Pre cannabis condition” often entails tasks such as remediating logging legacies, replacing culverts, removing soil or capping soil that has perlite in order to prevent run-off, removing all legacy cultivation and materials that reside anywhere within 150 feet from Class C (seasonally dry) streams like planter pots and plastic, permitting structures that have existed for generations, or obtaining Agricultural- exempt permits for simple PVC pipe hoop houses, registering water use, and more.
The Institute for Justice describes the cannabis abatement program in their appeal, writing, “Humboldt County[‘s] respon[se] to the legalization of marijuana… [was] amending its code to maximize revenue at the expense of civil rights.”
The county’s response to the appeal describes one plaintiff’s case, Cyro Glad, who received an abatement notice six weeks after he purchased and now has a $900,000 lien against his new property, as a result of the previous owners’ actions.
They report,
In September 2018, Cyro Glad bought [property in] New Harris, California in the remote southeast corner of Humboldt County, a 40- acre parcel… The County used satellite images to identify Code violations there…The County chose this area for satellite analysis given the prevalence of cannabis cultivation there, as evidenced by County cannabis cultivation registrations and earlier, illicit commercial cultivation there…The notices cited a daily administrative penalty of $10,000 for up to 90 calendar days for the violations.
In the amended complaint IJ further illustrates the program as “Issu[ing] Ruinous Fines and Fees … without any regard for whether the penalty serves a valid governmental interest [while]… [T]he County’s policy and practice is to ignore… the owner’s culpability, history of similar offenses, and the severity of the impact on public health and safety.”
However, Colantuono, Highsmith & Whatley, PC, argue Humboldt County Code Enforcement’s actions are merely “routine enforcement of local land use laws.”
From the county’s Introduction and Summary of Argument, their representatives argue in this month’s filing,
Plaintiffs assemble what amounts to a law school exam, raising a plethora of claims, each assailing routine enforcement of local land use laws as applied to commercial cannabis activities illegal under federal law. Their claims were properly rejected below…. Even on its merits, the 69-page order of dismissal properly treated the facts.
They also argue, “For any or all these reasons, this ambitious, but baseless, attack on routine enforcement of local land use laws must fail.”
In layman’s terms, the county goes on to essentially say, the claims made by the IJ can’t move forward because it’s been too long since the events happened, and/or because the issues aren’t ready to be addressed yet. The people bringing the claims haven’t lost anything significant and they can either fix their problems, or are able to resolve them still. Also, the claims about fair treatment under the law don’t apply because you can’t claim a right to do something that’s illegal under federal law, nor does one have a right to unapproved permits, particularly after you broke the local rules. The county didn’t do anything wrong and their rules for how land can be used make sense. The fines and fees against the plaintiffs aren’t unfair. And, in cases like this, property owners do not have a right to a trial by jury, instead they get administrative hearings in cases like these (if they appeal their notices within ten days).
However, some residents in rural Humboldt where 97% of notices were served, Southern Humboldt’s District Two (70%), Northern Humboldt’s District Five (17%), and Mid-West’s District One (10%), may counter that code enforcement actions the past five years were anything but “rational” or “routine,” with millions in penalties and fines extracted from these “high cannabis concentration regions,” whether the current land owners were guilty of cannabis activities, or not.
As reported earlier this month, land use and water laws changed pre and post Proposition 64, which legalized commercial and the adult use of cannabis, but it also made matters more complex, particularly for the county’s unsuspecting non-cannabis-permitted rural property owners. Some were assumed guilty by geographical association. They had changed nothing about their land, but became pseudo-code enforcement-criminals overnight, due to a hoop-house, a chicken coop within 150 feet of a Class C stream, or perhaps they had not registered their water.
As we’ve reported previously, at least fifty property owners, some new buyers, were abated and then tasked to tear down unpermitted structures that were alleged to be associated with, or have a “nexus to cannabis” even from previous owners, until a law was changed in March 2022, which provides a pathway to compliance for the approximately 750 remaining unpermitted structures code enforcement said they have their eye on.
During a March 2022 Board meeting which discussed one of our articles, District One Supervisor Rex Bohn asked Code Enforcement Officer Brandon Howton for his best estimate for how many unpermitted outbuildings and other structures are affected by this policy countywide.
Brandon Howton said there were fifty structures demolished last year of approximately 800 total, adding, “We didn’t even scratch the surface.”
Howton added only “a dozen would have been permittable of the fifty” that were leveled.
Some structures were small such as chicken coops or storage sheds. Others were more substantial, such as massive metal buildings or homes.
In many cases taxes had been paid on these structures to the county for decades, like in Plaintiff Rhonda Olson, and the Thomases case. In both instances, their titles had no indication of abatement issues when the properties changed hands.
The county’s rural residents eagerly await the Appeal Court’s decision, which could potentially help to stabilize the local real estate market and economy, which has seen better days.
With so many rural property owners caught up in the cannabis abatement program, including unaware buyers without title disclosure or knowledge around the tasks entailed to remediate their new properties, this program has likely caused potential buyers to back off and impacted the local real estate market.
If buying property in rural Humboldt promises extra costs and coincides with risks of penalties and fees that in some instances surpass the lands value, could this be contributing to a reduction of property values and/or possibly contributing to an increase in For Sale signs and foreclosures, particularly in District Two, Southern Humboldt where 70% of abatements were given?
“Garberville and Whitethorn in Southern Humboldt saw some of the highest foreclosure rates in the nation during this years third financial quarter,” the Times Standard reported last month, adding, “For zip codes with over 1,000 housing units, Garberville ranked as fifth in the top of the 10 list of most foreclosures with one for every 60 housing units. Nearby, Whitethorn saw one foreclosure per 82 housing units, ranking it ninth on the list.” [Bold added for emphasis]
Whatever the outcome of the class action suit, the decision will impact not just Humboldt County’s enforcement of land use laws, but the entire ninth circuit, encompassing the Northwestern part of the country.
The Institute for Justice plans to file their reply brief to the county around Christmas. After a few months, the case will likely get set for argument, meaning at the end of February, we will find out about the argument date, which could be scheduled around the first week of May.
Stay tuned to RHBB for more on this story.
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