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Home My WebLink About1097 amend.sec.9254, marijuana cultivationORDINANCE NO. 1097 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. Section 9254 of the Ukiah City Code is hereby amended 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 lockable 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). ORDINANCE NO. 1 9. "Qualified patient" means a "qualified patient" as defined in Health and Safety Code Section 11362.7(f). Section 2. Cultivation of Mariiuana. 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 Parcel within any zoning district in the City of Ukiah to cause or allow such Parcel to be used for the outdoor cultivation of marijuana plants. B. Indoor cultivation in residential zonina 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-1, 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 mariiuana 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. A. The violation of this ordinance is hereby declared to be a public nuisance. B. A violation of the ordinance may be abated by the City Attorney by the prosecution of a civil action for injunctive relief and by the summary abatement procedure set forth in subsection C below. C. Summary abatement procedure. ORDINANCE NO. 2 1. The Code Enforcement Officer and the Director of Planning, or his or her designee (hereafter, the "Enforcement Official"), are hereby authorized to order the abatement of any violation of this Section 9254 by issuing a notice to abate. The notice shall: a. Describe the location of and the specific conditions which represent a violation of the Section and the actions required to abate the violation. b. Describe the evidence relied upon to determine that a violation exists, provided that the Enforcement Official may withhold the identity of a witness to protect the witness from injury or harassment, if such action is reasonable under the circumstances. c. State the date and time by which the required abatement actions must be completed. d. State that to avoid the civil penalty provided in subsection C.1.h below, and further enforcement action, the Enforcement Official must receive consent to inspect the premises where the violation exists to verify that the violation has been abated by the established deadline. e. State that the owner or occupant of the property where the violation is located has a right to appeal the notice by filing a written notice of appeal with the City Clerk by no later than three business days from the service of the notice. The notice of appeal must include an address, telephone number, fax number, if available, and email address, if available. The City may rely on any of these for service or notice purposes. If an adequate written appeal is timely filed, the owner or occupant will be entitled to a hearing as provided in subsection C.3 below. f. State that the order to abate the violation becomes final if a timely appeal is not filed or upon the issuance of a written decision after the appeal hearing is conducted in accordance with subsection C.3 below. g. State that a final order of abatement may be enforced by application to the Superior Court for an inspection and/or abatement warrant or other court order. h. State that a final order to abate the nuisance will subject the property owner and the occupant to a civil penalty of $500 for each day that the violation continues after the date specified in the notice under subsection C.1.c, when the violation must be abated. The penalty may be recovered through an ordinary civil action, or in connection with an application for an inspection or nuisance abatement warrant. i. State that in any administrative or court proceeding to enforce the abatement order the prevailing party is entitled to recover a reasonable attorneys fee from the other party or parties to the action, if the City elects, at the initiation of an ORDINANCE NO. 3 individual action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding. 2. The notice described in subsection C.1 above shall be served in the same manner as summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure, or by certified mail, return receipt requested, at the option of the City. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation pursuant to Government Code Section 6062. 3. Not sooner than five business days after a notice of appeal is filed with the City Clerk, a hearing shall be held before the City Manager or a hearing officer designated by the City Manager to hear such appeals. The appellant shall be given notice of the date, time and place of the hearing not less than five days in advance. The notice may be given by telephone, fax, email, personal service or posting on the property. At the hearing, the Enforcement Official shall present evidence of the violation, which may include, but is not limited to, incident and police reports, witness statements, photographs, and the testimony of witnesses. The property owner and the occupant of the property where the violation is alleged to exist shall have the right to present evidence and argument in their behalf and to examine and cross-examine witnesses. The property owner and property occupant are entitled at their own expense to representation of their choice. At the conclusion of the hearing, the City Manager or hearing officer shall render a written decision which may be served by regular first class mail on the appellants. 4. A final order to abate the nuisance will subject the property owner or owners and any occupant or occupants of the property who are cultivating marijuana in violation of this Section 9254 to a civil penalty of $500 for each day that the violation continues after the date specified in the notice under subsection C.1.c, when the violation must be abated. The Enforcement Official or the City Manager or hearing officer hearing an appeal pursuant to subsection C.3 may reduce the daily rate of the civil penalty for good cause. The party subject to the civil penalty shall have the burden of establishing good cause, which may include, but is not limited to, a consideration of the nature and severity of the violation, whether it is a repeat offense, the public nuisance impacts caused by the violation, and the violator's ability to pay. The daily penalty shall continue until the violation is abated. The penalty may be recovered through an ordinary civil action, or in connection with an application for an inspection or nuisance abatement warrant. D. 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. E. The remedies and penalties provided herein are cumulative, alternative and non-exclusive. The use of one does not prevent the use of any others and none of these ORDINANCE NO. 4 penalties and remedies prevent the City from using any other remedy at law or in equity which may be available to enforce this section or to abate a public nuisance. 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). 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 18, 2007, by the following roll call vote: AYES: Councilmember Thomas, Crane, McCowen, and Mayor Rodin NOES: None ABSENT: Councilmember Baldwin ABSTAIN: None Adopted on August 1, 2007 by the following roll call vote: AYES: Councilmember McCowen, Baldwin, and Vice Mayor Crane NOES: None ABSENT: Cou pember T mas, and yor Rodin ABSTAIN: No ~r'"~-~---- ougla .Crane, Vice Mayor ORDINANCE NO. 5 / _ ,!GATT \\ ~~~ `_ L rown, City Clerk 6