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HomeMy WebLinkAbout1076 Marijuana cultivationORDINANCE NO. 1076 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH AMENDING SECTION 9254, ENTITLED: "MARIJUANA CULTIVATION," 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 increase in formal air quality complaints associated with the growing of marijuana in residential neighborhoods in the City of Ukiah. In 2002, the MCAQMD ORDINANCE NO. 1076 1 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 City Council meeting on November 3, 2004, 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 a 100 square foot area. These impacts ranged from increased traffic to acts of violence and intimidation. 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 that they 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. 12. 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 ORDINANCE NO. 1076 2 any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal. SECTION 'I'WO Section 9254 is hereby added to Division 9, Chapter 2, Article 19 of the Ukiah City Code to read as follows. §9254: MARIJUANA CULTIVATION' Section 1. Definitions. As used herein the following definitions shall apply: 1. "Cultivation" means the planting, growing, harvesting, drying, or processing of marijuana plants or any part thereof. 2. "Fully enclosed and secure structure" means a space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, and which is accessible only through one or more Iockable doors. 3. "Immature marijuana plant" means a marijuana plant, whether male or female, that has not yet flowered and which does not yet have buds that are readily observed by unaided visual examination. 4. "Indoors" means within a fully enclosed and secure structure. 5. "Mature marijuana plant" means a marijuana plant, whether male or female, that has flowered and which has buds that are readily observed by unaided visual examination. 6. "Outdoor" means any location within the City of Ukiah that is not within a "fully enclosed and secure structure. 7. "Parcel" means property assigned a separate parcel number by the Mendocino County Assessor. 8. "Primary caregiver" means a "primary caregiver" as defined in Health and Safety Code Section 11362.7 (d). 9. "Qualified patient" means a "qualified patient" as defined in Health and Safety Code Section 11362.7(f). Section 2. Cultivation of Marijuana. A. Outdoor cultivation: It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any premises within any zoning district in the City of Ukiah to cause or allow such premises to ORDINANCE NO. 1076 3 be used for the outdoor cultivation of marijuana plants.. B. Indoor cultivation in residential zoning districts: It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any Parcel within any residential zoning district (R-l, R-2, R-3 and CN districts) in the City of Ukiah to cause or allow such Parcel to be used for the cultivation of more than twelve mature and twenty-four immature marijuana plants within a fully enclosed and secure structure on the Parcel. C. Indoor cultivation of marijuana restricted to Qualified Patients and Primary Care Givers: It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any Parcel within the City of Ukiah to cause or allow such premises to be used for the cultivation of marijuana, unless the person is a Qualified Patient or Primary Care Giver. D. Public nuisance prohibited: It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any Parcel within the City of Ukiah to create a public nuisance in the course of cultivating marijuana plants or any part thereof in any location, indoor or outdoor. A public nuisance may be deemed to exist, if such activity produces (1) odors which are disturbing to people of normal sensitivity residing or present on adjacent or nearby property or areas open to the public, (2) repeated responses to the Parcel from law enforcement officers, (3) a repeated disruption to the free passage of persons or vehicles in the neighborhood, (4) excessive noise which is disturbing to people of normal sensitivity on adjacent or nearby property or areas open to the public, or (5) any other impacts on the neighborhood which are disruptive of normal activity in the area. Section 3. Enforcement. The violation of this ordinance is hereby declared to be a public nuisance and may be abated by the City Attorney by the prosecution of a civil action for injunctive relief. Cultivation of marijuana on parcels within the City that does not comply with this Section 9254 constitutes a violation of the zoning ordinance and is subject to the penalties and enforcement as provided in Article 22, commencing with § 9350. SECTION THREE 1. COMPLIANCE WITH CEQA. The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c) (2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), 15061 (b)(3) (there is no possibility the activity in question may have a significant effect on the environment). In addition to the foregoing general exemptions the following categorical exemptions apply, Sections 15308 (actions taken as authorized by local ordinance to assure protection of the environment), and 15321 (action by agency for enforcement of a law, general rule, standard, or objective administered or adopted by the agency, including by direct referral to the City Attorney as appropriate for judicial enforcement). ORDINANCE NO. 1076 4 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 February 1,2006, by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku None None None Adopted on February 15, 2006 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku None None None /.~M~;~rk Ashii~u, Mayor ATTEST: Marie Ulvila, City Clerk ORDINANCE NO. 1076 5