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Pot gardens may fail the sniff test

Smelly pot gardens could face fines of up to $250 a day if the Medford City Council decides to approve a draft ordinance to head off neighborhood complaints once cannabis becomes legal on July 1.

“I would be in favor of it,” Councilor Tim Jackle said.

He said he and other councilors have received many calls from residents annoyed at the pungent smell of medical marijuana plants.

On July 1, Ballot Measure 91 takes effect, allowing a resident 21 or older to grow up to four marijuana plants for recreational use and to possess up to eight ounces of dried cannabis flowers. Voters approved Measure 91 last November.

The new ordinance will be considered by the City Council on Thursday and would require pot growers to prevent odors from emanating outside their backyards.

The ordinance would require 7- to 8-foot fences around marijuana gardens, and the plants themselves couldn’t grow any taller than the height of the fence. The city would require a permit be obtained from the Building Department prior to construction of the fence. A locking mechanism would need to be installed on the gate leading into the enclosure.

The enclosure can be made of chain link, wood, masonry, metal, stonewall or a combination of materials. If chain link is used, the ordinance states any opening cannot be larger than 1 ¼ inches.

Any production or processing of marijuana would have to be screened from public viewing, according to the proposed ordinance. Fabrics, tarps or shade screens cannot be used to obscure the marijuana, the proposed ordinance states.

Violations of the fence ordinance or the screening ordinance also carries a $250-a-day fine.

Jackle said he likens a marijuana odor regulation to a noise ordinance.

“Like any other nuisance, you have to make the argument that the smell has risen to the point of being a nuisance,” Jackle said.

In other states, growers apparently have installed scrubbers to eliminate odors from indoor grows, Jackle said. He acknowledged it would be more difficult to control odors from outdoor gardens.

He said he believes the city has the ability to regulate odors or require fencing without being in conflict with Measure 91.

Kevin McConnell, deputy city attorney, said other jurisdictions in the country have passed laws dealing with odors from marijuana.

“Marijuana supporters might think it’s an underhanded attempt to get around Measure 91,” he said.

McConnell said small backyard marijuana gardens likely won’t generate complaints from neighbors.

“It’s the big grows with the skunk type of strains that create the odors,” he said.

He said the city is trying to craft an ordinance that addresses the inevitable complaints by residents over their neighbor’s backyard pot garden.

McConnell said there are other ways marijuana growers can control the smell, including indoor operations or using some strains of marijuana that have been developed to produce low odors, McConnell said.

The draft ordinance likely will be tweaked or changed before it comes back to the council for a vote, he said.

One tweak councilors could consider is requiring three separate complaints from different neighbors before a violation is declared, he said. Another possible tweak is defining what an offensive or noxious odor might be, McConnell said.

The enclosures around marijuana gardens are an extension of the language in Measure 91 that requires pot plants not be visible and kept secure from children, McConnell said.

David Fidanque, executive director of the American Civil Liberties Union, which helped draft Measure 91, said cities have to be careful not to draft ordinances that attempt to undermine marijuana legalization.

“They shouldn’t try to do through the back door what they couldn’t do through the front door,” Fidanque said.

Cities can enact regulations that provide reasonable restrictions on time, place and manner of growing or selling marijuana, he said.

However, when a city creates a specific ordinance related to marijuana, it better have good reasons, Fidanque said.

“The question is what’s reasonable,” Fidanque said. “Why is the aroma of marijuana more offensive than garbage?”

He said that the time, place and manner restrictions are a legal “gray” area in Measure 91.

Voters approved Measure 91, in part, because of the failed prohibition on marijuana that encouraged the black market, Fidanque said.

“The more we bring marijuana out of the shadows and regulate it, the more we keep it away from criminals,” he said.

Reach reporter Damian Mann at 541-776-4476 or dmann@mailtribune.com. Follow him on Twitter at www.twitter.com/reporterdm.

Proposed rules would limit the height of marijuana plants grown in Medford yards to no taller than the property's fence. Mail Tribune / Bob Pennell illustration