Concord medical marijuana cultivation ordinance

7/29/2019 Concord medical marijuana cultivation ordinance

1/29

AGENDA ITEM NO.4.a

REPORT TO MAYOR AND COUNCIL

TO THE HONORABLE MAYOR AND COUNCIL:

DATE: March 26, 2013

SUBJECT: PROPOSED ADOPTION OF ORDINANCE BANNNING OUTDOORCULTIVATION OF MEDICAL MARIJ UANA

RECOMMENDATION: Consider introduction of Ordinance No. 13-1 amendingDevelopment Code, Article II (Zoning Districts Uses andStandards), Division 1 (Development and Land Use Approvals),Section 122-57 (Prohibited Uses), barring outdoor cultivation ofmedical marijuana, and Article IX (General Terms), Division1(Use Classifications), Section 122-1580 (Use Classifications)modifying the descriptions of Community Garden and CropProduction, Orchard, Vineyard to exclude the cultivation ofmedical marijuana.

I. Introduction

The City Council is being asked to consider an ordinance amending the City of Concords Development Code(Development Code), which will have the effect of banning the outdoor cultivation of medical marijuana.

II. Background

During the October 9, 2012 City Council meeting, a member of the public complained that her next doorneighbor was cultivating marijuana plants which created an offensive odor. The Concord Police Departmentinvestigated this complaint, and determined that the individual cultivating the marijuana was a medicalmarijuana patient, and therefore is lawfully permitted to do so under California law. The Concord PoliceDepartment subsequently confirmed that there are other residential properties in the City where medicalmarijuana is being cultivated on an ongoing basis, in varying quantities.

At the December 11, 2012 City Council Meeting, staff presented a report outlining the legal frameworkgoverning medical marijuana cultivation in California. (Attachment A.) In the same report, staff describedtwo regulatory models for restricting medical marijuana cultivation: 1) the Elk Grove model, which is wide-ranging and entails required permitting and extensive oversight by that citys Police Department, PlanningDirector and Chief Building Official; and 2) the Moraga Model, which is fairly simple in scope andadministration. At the conclusion of the December 11 meeting, the Council directed staff to draft a proposedordinance akin to the Moraga model.


2/29

BAN ON OUTDOOR CULTIVATION OF MEDICAL MARIJ UANAMarch 26, 2013

Page 2

Because the proposed ban on outdoor marijuana cultivation comprises a land use decision, PlanningCommission review is required. On February 6, 2013, staff presented a report to the Planning Commissionand a proposed ordinance drafted in conformity with the Councils direction. Following consideration of thereport by staff and public comment the Planning Commission adopted a resolution recommending approval

by the City Council of the proposed ordinance. (Attachment B)

Staff is now bringing forward this ordinance and the associated Development Code amendments for proposedadoption by the Council.

III. Discussion

A. California Medical Marijuana Legislation

On November 5, 1996, California voters passed Proposition 215 (known as the Compassionate Use Act orCUA), which decriminalized the cultivation and use of marijuana by seriously ill individuals upon a

physicians recommendation. The CUA held that Health & Safety Code Section 113571

, which otherwisecriminalizes the possession of marijuana, shall not apply to a patient or to a patients primary caregiver whopossesses or cultivates marijuana for medicinal purposes upon the written or verbal recommendation orapproval of a physician.

In January 2004, the legislature passed the Medical Marijuana Program Act (MMPA). Among other things,the MMPA established a program providing for voluntary registration of qualified medical marijuana patientsand their primary caregivers through a statewide identification card system. (Sections 13362.71(e), 11362.78.)In addition to establishing the identification card program, the MMPA also recognizes a qualified right tocollective and cooperative cultivation of medical marijuana. (Sections 11362.7, 11362.77, 11362.775.)

The MMPA establishes the term qualified patient, defined as a person whose physician has recommendedthe use of marijuana to treat a serious illness or any other illness for which marijuana provides relief. (Section11362.5(b)(1)(a).) The MMPA also establishes the term primary caregiver, defined as a person who isdesignated by a qualified patient and has consistently assumed responsibility for the housing, health, orsafety of the patient. (Section 11362.5(e).) Primary caregivers are permitted to grow and supply marijuanato designated qualified patients, and a person may serve as a primary caregiver to more than one patient,provided that the patients and caregiver all reside in the same city or county. (Section 11362.7(d)(2).)

Under the MMPA and subsequent appellate decisions interpreting the Act, qualified patients and primarycaregivers who possess a state-issued identification card may possess eight ounces of dried marijuana, andmay cultivate sufficient marijuana plants to meet their needs. Local law enforcement agencies throughout the

state, including the Concord Police Department, follow a guideline permitting six mature or 12 immaturemarijuana plants per qualified patient. It is important to note that more than one caregiver or patient mayreside in the same residence; alternatively, a caregiver may be growing marijuana for more than one patient athis or her property. Accordingly, local law enforcement guidelines that typically are followed do notnecessarily limit the number of mature/immature plants to 6 or 12 at a single property.

1 All further statutory references are to Californias Health and Safety Code.


3/29


4/29


Page 4

ii. No State Law Preemption

In a decision issued on February 6, 2013, Browne v. County of Tehama (2013) 213 Cal.App.4th704, theCalifornia Court of Appeal considered for the first time whether a city or a county in California may lawfully

limit outdoor cultivation of medical marijuana. At issue was Tehama Countys ordinance limiting the numberof medical marijuana plants that may be grown outside, precluding marijuana cultivation within 1000 feet ofschools, parks, and churches, and requiring that an opaque fence of at least six foot be installed around allmarijuana grows.

Upholding the ordinance, the court held that Tehamas ban is not preempted by state law. As stated by thecourt:

The fundamental flaw in Petitioners argument is their misplaced view that the[Compassionate Use Act] somehow creates or grants unrestricted rights. Petitioners suggestthat the CUA grants every qualified patient the right to cultivate...medical marijuanaBut the

CUA does not create any such rightSince the CUA does not create a right to cultivatemedical marijuana, restrictions on such enforcement do not conflict with the CUA.

E. Proposed Development Code Ordinance Revisions

As noted above, at its December 11, 2012 meeting, the Council directed staff to draft ordinance languagebarring outdoor cultivation that is similar in scope to the Town of Moragas ban. The proposed ordinance isprovided with this report as Attachment D, comprising amendments to Article II (Zoning Districts Uses andStandards), Division 1 (Development and Land Use Approvals), Section 122-57 (Prohibited Uses), andArticle IX (General Terms), Division 1 (Use Classifications), Section 122-1580 of the Development Code(modifying the definitions of Community Garden and Crop Production, Orchard, Vineyard).

Reduced to essentials, the proposed ordinance limits marijuana cultivation to occupied dwellings, dwellingunits, and housing units, which are defined so as to exclude cultivation both outside and in accessorystructures, including but not limited to greenhouses, storage sheds, workshops, gazebos and cabanas.Consistent with this purpose, the proposed amendments revise the Development Codes existing definitions ofCommunity Garden, Crop Production, Orchard and Vineyard to also exclude medical marijuanacultivation.

Violations of the proposed ordinance shall be considered a public nuisance, and may be enforced according tothe procedures set forth in the Concord Development Code, Article VIII, Division 9, Section 122-1375;namely, through administrative abatement and issuance of administrative citations and fines. Enforcement of

the proposed ban on outdoor medical marijuana cultivation may also be undertaken utilizing the remediesconferred upon the City by Civil Code Section 3494 and Code of Civil Procedure Section 731 (abatement byway of civil action filed in Superior Court), Government Code Section 38773 (imposition of liens), or otherlawful authority.

It should be noted that because compliance with the Compassionate Use Act and the Medical MarijuanaProgram Act provides a legal defense to the imposition of criminal penalties relating to medical marijuanacultivation, the City is precluded from imposing its own criminal penalties on individuals who violate theproposed ban on outdoor cultivation. For this reason, the Citys remedies are limited to the civil enforcementmechanisms described above.


5/29


Page 5

F. Impacts of Indoor Medical Marijuana Cultivation on Energy Use and Safety

i. Equipment Potentially Used for Indoor Cultivation

Staff anticipates that if the proposed ordinance is adopted, some (but not all) of the individuals who currentlycultivate marijuana outdoors may turn to indoor cultivation. In preparing this staff report, the City AttorneysOffice requested the Citys Chief Building Inspector, Robert Woods, to prepare a written analysis of the typeof equipment that is typically used to cultivate marijuana indoors, the impact on energy usage and theenvironment, and building code/life safety considerations. (Mr. Woods written analysis is provided asAttachment C to this with this report.) The following is a summary of Mr. Woods conclusions.

Lighting. Growing marijuana indoors requires the use of lights to replicate sunlight in the range of lightfrequencies needed by the plant to grow fast and healthy. During the vegetative growth cycle, light istypically applied for 18 hours during each 24-hour cycle. To induce flowering and throughout the floweringstage, appropriate lighting typically is applied for 12 hours during each 24 hour cycle.

There are two types of high intensity discharge (HID) grow lights typically used by growers: high pressuresodium (HPS) and metal halide (MH). These come in a range of sizes, the most common being 175, 250,400, 600, and 1,000 Watts. HPS grow lights typically require a ballast to operate, which regulates the amountof voltage delivered to the lights. The ballast also consumes energy.

Light emitting diode (LED) lights are available that provide a wide spectrum of light frequencies in onefixture. The LED lights also runs much cooler than MH or HPS. LED lights also have a long lifetimecompared to that of MH or HPS lights. LED light fixtures are typically more expensive than MH or HPS.Thus, it is anticipated that the majority of growers may be using the MH and HPS fixtures.

Temperature. Marijuana plants will tolerate temperatures between 60 degrees F and 92 degrees F. However,the ideal temperature is typically between 70 degrees F and 83 degrees F. Thus, some growers will attempt toregulate the temperature of their grow room to optimize the conditions for growth. This will necessarilyrequire circulating fans and/or exhaust systems to create uniform temperatures. Marijuana also requirescarbon dioxide (CO2) and thus requires sufficient fresh air or supplemental CO2. Accordingly, some growersmay use exhaust fans with fresh air makeup to provide an adequate supply of CO2.

Circulating Air. Marijuana in its natural environment is strengthened by wind currents that blow the plantaround. Some growers may install circulating fans to create airflow to mimic wind to help strengthen thebranches in the plants. Circulating air also helps to distribute the makeup air that contains the needed CO2.This will require additional electrical usage.

Nutrients. In hydroponic growing systems, pumps will be used to circulate nutrients to the plants. These willoften be regulated by a timer.

ii. Effect on Energy Use

Indoor cultivation of medical marijuana will require electrical power, as outlined above. Given the City ofConcords climate zone, the greatest impact on electrical use will likely be during warmer months wheremaintenance of lower temperatures is necessary for optimum plant growth. During cool weather periods, theheat from the lights will likely help maintain the temperature range needed by the marijuana plant withoutsupplemental heating. Nevertheless, Mr. Woods concludes that the overall impact on energy use from

medical marijuana growers will be negligible.


6/29


7/29


8/29


9/29


10/29


11/29


12/29

CONSIDERATION OF ORDINANCE RESTRICTINGOUTDOOR CULTIVATION OF MEDICAL MARIJ UANA

December 11, 2012Page 5

Medical marijuana cannot be cultivated unless the grower obtains a permit, issued by theChief of Police or his/her designee

The Finance Director may establish a fee required to be paid upon filing of an application for apermit, not exceeding the reasonable of administering medical marijuana cultivation permits.

Medical marijuana may not be cultivated outdoors except in residential and agricultural-residential zones

Medical Marijuana may not be cultivated within one thousand (1,000) feet of any school, childcare center, or public park.

Any detached structure used for cultivating medical marijuana must be a fully enclosed andsecure structure no larger than 120 square feet in size, and must first be inspected by the Chief

Building Official in consultation with the Planning Director and the Chief of Police

A detached, fully enclosed and secure structure used for the cultivation of marijuana must belocated in the rear yard area, maintain a minimum ten (10) foot setback from any propertyline, and be enclosed by a solid fence at least six (6) feet in height

Indoor cultivation of medical marijuana in a residential zone cannot take place in any kitchen,bathroom or bedroom, or on any carpeted surface

Any detached, fully enclosed and secure structure or residential structure used for thecultivation of medical marijuana must have a ventilation and filtration system installed thatshall prevent marijuana plant odors from exiting the interior of the structure, and that isapproved by the Building Official and installed prior to commencing cultivation.

Adequate mechanical or electronic security systems approved by the Building Official andChief of Police must be installed in and around the detached structure or the residentialstructure prior to the commencement of cultivation.

Marijuana cultivation occurring within a residence shall be in an area no larger than fifty (50)square feet, regardless of how many qualified patients or primary caregivers are residing at thepremises.

Medical marijuana plants shall not be visible from the exterior of the building in which theyare grown.


13/29


14/29


15/29


16/29


17/29


18/29


19/29


20/29


21/29


22/29


23/29


24/29


25/29


26/29


27/29


28/29


29/29

Concord medical marijuana cultivation ordinance

Documents

Transcript of Concord medical marijuana cultivation ordinance