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HomeMy WebLinkAbout1071 marijuana cultivationORDINANCE NO. 1071 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH ADDING SECTION 9254, ENTITLED: "MARIJUANA CULTIVATION," TO DIVISION 9, CHAPTER 2, ARTICLE 19 OF THE UKIAH CITY CODE The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE The City Council hereby finds and declares as follows: 1. In November 1996, the voters of California approved Proposition 215, the Compassionate Use Act of 1996, which enacted Health and Safety Code Section 11362.5. Under the Compassionate Use Act, Health and Safety Code Section 11357, making it a crime to possess marijuana, and Section 11358 making it a crime to cultivate marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. 2. Since the enactment of the Compassionate Use Act, 264 persons with residence addresses in the City of Ukiah have been issued medical marijuana identification cards by the Mendocino County Sheriff's Department. 3. The number of parcels in the City used to grow marijuana has increased substantially. The City Police Department estimates that up to 250 parcels are currently being used to grow marijuana throughout the City's residential neighborhoods. 4. Marijuana plants as they begin to flower and for a period of 2 months or more during the growing season (August - October) produce an extremely strong odor, offensive to many people, and detectable far beyond property boundaries. One popular strain of marijuana is called "Skunk" or "Super Skunk" and has a strong odor that resembles the smell of a skunk. 5. The strong smell of marijuana as well as its visibility from adjacent parcels or from areas accessible to the general public advertises its presence in the neighborhood and creates both an attractive nuisance and the risk of robbery and armed robbery. 6. Recently, the City planning and police departments have received numerous odor complaints related to the growing of marijuana in residential neighborhoods. The Mendocino County Air Quality Management District ("MCAQMD") reports an accelerating MARIJUANA CULTIVATION ORDINANCE NO. 1071 1 increase in formal air quality complaints associated with the growing of marijuana in residential neighborhoods in the City of Ukiah. In 2002, the MC^QMD received two such complaints; in 2003, five complaints; and by October 31,2004, it had received over 20 formal complaints for 2004. In addition, in 2004 MCAQMD received an additional two dozen informal calls complaining about marijuana odor in residential neighborhoods in the City. 7. Several highly publicized recent events have called attention to the impact on public safety caused by the growing of marijuana in residential neighborhoods of the City. In one recent incident a property owner was shot in the hand by an intruder caught stealing marijuana from the property owner's backyard. The intruder gained entrance through a neighboring property and passed the neighbor's bedroom window, carrying a loaded handgun. In 2004 the City police department reports numerous calls to the department to respond to incidents related to the growing of marijuana in residential neighborhoods. 8. At a series of City Council meetings commencing on November 3, 2004, and concluding on July 20, 2005, several members of the public testified to problems in their neighborhoods related to marijuana cultivation, including impacts associated with intense cultivation of mature plants, growing as tall as 14 feet, within and exceeding a 100 square foot area. These impacts ranged from increased traffic to acts of violence and intimidation, and armed guards stationed in backyards. 9. The Mendocino County District Attorney refuses to prosecute persons who grow marijuana as long as the person claims to be growing it pursuant to Proposition 215 and within a 100 square foot area on his or her property. As a result, City Police have been unable to take enforcement action, even where cultivation of marijuana for sale is suspected. 10. The City of Ukiah is a relatively small city with a population of approximately 15,000 people. It has three full-time planners in its Planning Department, one part-time code enforcement officer and one building inspector. It has limited resources available to engage in extensive regulation of marijuana cultivation. 11. Limiting the number of plants per parcel that medical marijuana patients may grow in residential neighborhoods and requiring that the majority of plants be grown indoors within a secure structure should alleviate a number of the above-described problems. These requirements should substantially reduce the public nuisance caused by the odor of mature plants. It should make marijuana cultivation less visible and less attractive to young people or potential thieves. It should prevent cultivation for sale and the associated public safety problems. MARIJUANA CULTIVATION ORDINANCE NO. 1071 2 12. Prior to the enactment of Health and Safety Code Section 11362.77 in 2003, the US government established for research purposes a medical marijuana dose range of between one half and three quarters of a pound per patient per month.~ After reviewing the dose range established by the federal government, the Oakland City Council adopted a limit of three pounds per year per patient, with a related plant-count limit for cultivation. In Sonoma County medical marijuana patients were allowed to possess enough cannabis to support their personal use of up to three pounds per year. Other communities had set limits per patient of between one-half to two pounds. 13. According to Cannabis Yields by the DEA, various types of cannabis plants under various planting conditions may yield averages of 236 grams, or about one half pound, to 846 grams, or nearly two pounds. A weighted average results in an average domestic plant yield of 448 grams, or approximately 1 pound per plant.2 14. While a particular patient under Health and Safety Code Section 11362.77 may be exempt from criminal prosecution under state law, if he or she possesses eight ounces of dried marijuana, six mature plants or twelve immature plants, six mature plants can yield six to twelve pounds of marijuana which should provide access to sufficient marijuana for the medical use of most patients under the Compassionate Use Act. Any additional marijuana required by a patient can be obtained from other sources, including marijuana dispensaries in the Ukiah area, or from cultivation permitted under this ordinance in non-residential zoning districts. 15. Given the above-described public nuisance and public safety problems associated with growing marijuana in residential neighborhoods within the City, a six plant per parcel limit strikes a reasonable balance between a medical marijuana patient's requirements and the quality of life in the City's residential neighborhoods. 16. It is the City Council's intention that nothing in this Ordinance shall conflict with federal law as contained in the federal Controlled Substances Act, 21 U.S.C. Section 801 et seq., nor to otherwise permit any activity that is prohibited under that Act. It is further the City Council's intention that nothing in this Ordinance shall be construed to (1) allow persons to engage in conduct that endangers others or causes a public nuisance, (2) allow the use of marijuana for non-medical purposes, or (3) allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal. 1 See: Chronic Cannabis Use in the Compassionate Investigational New Drug Program: An Examination of Benefits and Adverse Effects of Legal Clinical Cannabis. 2. See study at: Cannabis Yields, June 1992, DEA. Information from Marijuana Patient Use And Cultivation Limits, Martin Martinez, Lifeline Foundation at www.cannabismd.orq/foundation. MARIJUANA CULTIVATION ORDINANCE NO. 1071 3 SECTION TWO Section 9254 is hereby added to Division 9, Chapter 2, Article 19 of the Ukiah City Code to read as follows. §9254: MARIJUANA CULTIVATION: Marijuana may be grown in the zoning districts of the City of Ukiah, if at all, only in accordance with the provisions of this Section. Cultivation of marijuana on parcels within the City that does not comply with this Section constitutes a violation of the zoning ordinance and is subject to the penalties and enforcement as provided in Article 22, commencing with § 9350. A. Definitions: For purposes of this Section, the following terms shall have the following meanings: 1. "Evidence" means with respect to a qualified patient, the information described in Health and Safety Code §11362.715(a)(2) or a medical marijuana identification card issued by the Mendocino County Health Department or Sheriff's Department, and with respect to a primary caregiver, evidence that the caregiver's patient is a qualified patient and a written designation from the caregiver's qualified patient designating him or her as that patient's primary caregiver, and additional information demonstrating that the primary caregiver satisfies the definition of primary caregiver in Health and Safety Code Section 11362.7(d). 2. "Owner" means the owner or owners of record of a parcel as shown on the last equalized assessment roll maintained by Mendocino County. 3. "Parcel" means property assigned a separate parcel number by the Mendocino County Assessor; 4. "Person in lawful possession" means the person who has the legal right to occupy and use a parcel on which medical marijuana is cultivated. 5. "Primary caregiver" means a "primary caregiver" as defined in Health and Safety Code Section 11362.7(d). 6. "Qualified patient" means a "qualified patient" as defined in Health and Safety Code Section 11362.7(f). 7. "Secure location" means a space within a building or structure which can only be entered through a locked door that requires a key or combination to open and which is secure against unauthorized entry. MARIJUANA CULTIVATION ORDINANCE NO. 1071 4 B. Marijuana Cultivation in Residential Zonin.q Districts. Marijuana cultivation may be permitted in the R-l, R-2, R-3, and C-N zoning districts, and on legal non-conforming residentially used parcels in the C-1, C-2, M, and A-E zoning districts in the City, subject to first securing a use permit pursuant to the provisions in Section 9262 and compliance with the following additional requirements. 1. No more than six mature or twelve immature marijuana plants may be grown on a parcel. patient. 2. The person with legal possession of the parcel must be a qualified 3. The property owner or owners have signed and filed with the Planning Department a form adopted by the Planning Department in consultation with the City Attorney that contains all of the following: a. Acknowledgment that growing marijuana on the property may constitute a violation of the federal Controlled Substances Act with potential civil and criminal penalties, including (1) imprisonment for up to five (5) years and a fine of up to $250,000 or both, and (2) the possible forfeiture of the property pursuant to 21 USC § 853; b. Consent to the use of the property for growing marijuana in accordance with this Section; and c. An agreement releasing the City and its officers, employees and agents from any liability to the applicant and the owner for issuing a use permit and for the acts or omissions of the City and its officers, employees and agents in the administration of this Section. 4. The parcel must be located not less than 300 feet from the grounds of an educational facility, park or recreation center, or facility catering to children, the elderly or the infirm, unless it is determined through the discretionary review process that a distance of not less than two hundred (200) feet will not be detrimental to the public health, safety, or general welfare. 5. The plants must be located in an indoor secure location. However, based on lot size and shape, the presence of structures and mature landscaping, and the adjacent land uses and densities, the Use Permit applicant may request that not more than two plants per parcel be grown outdoors. All outdoor plants must be kept a minimum of fifteen feet from all properly lines, kept less than six feet in height, and secured behind a six (6) foot tall locked fence/gate. MARIJUANA CULTIVATION ORDINANCE NO. 1071 5 The decision-makers must find that the growing of up to two outdoor plants per parcel would not have a detrimental impact on the public's health, safety, and general welfare." The decision-makers must also find: a. That the size and shape of the parcel, as well as the presence of structures and mature landscaping would allow the planting of no more than two (2) plants hidden from view that could comply with the yard setback and height standards above; and b. That the land uses and densities of adjacent parcels are not incompatible and would not conflict with the growing of no more than two (2) outdoor marijuana plants. 6. The facilities or equipment used in the indoor cultivation must comply with the Uniform Fire Code, Uniform Electrical Code, Uniform Mechanical Code, and Uniform Building Code, and not be deemed to create an undue fire hazard by the City's Fire Marshall, or a health or safety hazard to persons present in the building or structure where the marijuana is being grown. 7. As a condition of receiving a use permit, the applicant must sign an agreement that, for the entire time that the permit application is pending and the permit is in effect, consents to inspection of the parcel and any building or structure on the parcel by any City employee with responsibility for verifying compliance with this Section. C. Marijuana Cultivation in Non-residential Zonin.q Districts. Marijuana cultivation may be permitted in the C-1, C-2, M, A, and A-E zoning districts in the City, subject to first securing a use permit pursuant to the provisions in Section 9262 and compliance with the following additional requirements. 1. No more than twelve immature and six mature plants per qualified patient may be grown on a parcel. 2. The person with legal possession of the property must be a qualified patient or a primary caregiver. If the person is a primary caregiver: a. the limits in subsection C.1 above apply to each qualified patient he or she is a primary caregiver for; and b. a use permit shall not be approved, unless the City makes a finding based on a report from the Police Chief or his designee that the applicant does not have a criminal history that would pose a threat of marijuana sales, the diversion of marijuana to non-medical uses or of conduct that endangers others. MARIJUANA CULTIVATION ORDINANCE NO. 1071 6 3. The property owner or owners have signed and filed with the Planning Department a form adopted by the Planning Department in consultation with the City Attorney that contains all of the following: a. Acknowledgment that growing marijuana on the property may constitute a violation of the federal Controlled Substances Act with potential civil and criminal penalties, including (1) imprisonment for up to five (5) years and a fine of up to $250,000 or both, and (2) the possible forfeiture of the property pursuant to 21 USC § 853; b. Consent to the use of the property for growing marijuana in accordance with this Section; and c. An agreement releasing the City and its officers, employees and agents from any liability to the applicant and the owner for issuing a use permit and for the acts or omissions of the City and its officers, employees and agents in the administration of this Section. 4. The parcel must be located not less than 300 feet from the grounds of an educational facility, park or recreation center, religious assembly, or building or facility catering to children, the elderly or the infirm. 5. The plants must be grown indoors in a secure location. 6. The facilities or equipment used in the indoor cultivation must comply with the Uniform Fire Code, Uniform Electrical Code, Uniform Mechanical Code, and Uniform Building Code, and not be deemed to create an undue fire hazard by the City's Fire Marshall or Building Inspector, or a health or safety hazard to persons present in the building or structure where the marijuana is being grown. 7. As a condition of receiving a use permit, the applicant must sign an agreement that, for the entire time that the permit application is pending and the permit is in effect, consents to inspection of the parcel and any building or structure on the parcel by any City employee with responsibility for verifying compliance with this Section. 8. Marijuana may not be smoked or consumed on the parcel. D. Applications for Use Permits under Subsections B and C. In addition to complying with the provisions of Section 9262, applications for a use permit under Subsections B and C, above, shall comply with the following requirements. 1. The use permit shall be considered a major use permit and the Planning Commission shall conduct the initial public hearing. MARIJUANA CULTIVATION ORDINANCE NO. 1071 7 2. The application shall be accompanied by an additional fee established by resolution of the City Council that covers all costs of processing the application, including, but not limited to, the full cost of the criminal history report required by Subsection C.2.b. The City Council may establish by resolution a separate fee for a renewal application under Subsection E below. 3. A primary caregiver applicant must (1) submit to the City Police Department his or her fingerprints and his or her criminal history for use in investigating the applicant's criminal history through the Criminal Justice Information System (CJIS) and information maintained by the United States Federal Bureau of Investigation (FBI) and (2) to the extent required by law, a written consent to the use of the CJIS and FBI data base and to the use of the information obtained in acting on the application for a use permit. A public hearing shall not be scheduled until the Police Chief, or his designee, submits to the Planning Department his or her written recommendation concerning the findings required by Subsection C.2.b, above. 4. The application must include all of the following information: a. Name, address, Assessor's Parcel Number and number of plants; b. Evidence that the applicant is in lawful possession of the parcel; c. Evidence of status as a qualified patient or evidence of status as a primary caregiver as to each patient the applicant claims to be a primary caregiver for. d. Site plan showing location of plants and plans demonstrating satisfaction of the requirements of Subsections B.4 and B.5 or C.4 and C.5. e. Sufficient information to determine that a primary caregiver will only receive payments from a qualified patient that constitute bona fide reimbursement for his or her actual expense of cultivating and furnishing marijuana for the patient's approved medical treatment. 5. The use permit granted pursuant to this Section is personal to the applicant, cannot be assigned or transferred, does not run with the land, and expires twelve months after it is issued, unless renewed pursuant to Subsection E. E. Permit Renewal. The use permit must be renewed annually in connection with which the City shall conduct an inspection of the premises to verify compliance with the requirements of this Section. The permit shall expire and thereafter marijuana cultivation on the parcel shall be subject to a new use permit application, unless a renewal application accompanied by the required fee is received by the Planning Department no later than forty-five days prior to the anniversary date of the issuance of the use permit. A hearing on the renewal of the use permit shall be conducted before the Zoning Administrator, as for a minor use permit, according to the procedures in Section 9262. In addition to any other MARIJUANA CULTIVATION ORDINANCE NO. 1071 8 determinations permitted or required by Section 9262, the Zoning Administrator shall refuse to renew the permit, if he or she determines that the applicant has willfully violated any material conditions of the permit or the requirements of this Ordinance. SECTION THREE 1. ENFORCEMENT. Violations of this Ordinance shall be enforced and abated according to the requirements of the Ukiah City Code. 2. SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. The City Council hereby declares that it would have adopted this Ordinance and any section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional or otherwise invalid. 3. EFFECTIVE DATE. This Ordinance shall be published as required by law in a newspaper of general circulation in the City of Ukiah, and shall become effective thirty (30) days after its adoption. Introduced by title only on July 20, 2005, by the following roll call vote: AYES: Councilmembers Crane, McCowen, Rodin, Baldwin and Mayor Ashiku NOES: None ABSENT: None ABSTAIN: None Adopted on August 3, 2005 by the following roll call vote: AYES: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku NOES: None ABSENT: None ABSTAIN: None ATTEST: ..M~rk Ashiku, Mayor Marie Ulvila, City Clerk MARIJUANA CULTIVATION ORDINANCE NO. 1071 9