17.89.010 Intent.
17.89.020 Applicability.
17.89.030 Definitions.
17.89.040 Prohibition of marijuana cultivation, processing, transport and/or deliveries.
17.89.060 Cultivation of marijuana in residential/commercial zone district for personal use.
17.89.070 Prohibition of medical marijuana collectives, cooperatives, dispensaries, processing, transport and/or deliveries.
17.89.090 Medical marijuana collectives, cooperatives, and dispensaries.
17.89.100 Enforcement.
A. The City Council hereby finds that the cultivation of medical marijuana significantly impacts, or has the potential to significantly impact, the City's jurisdiction. These impacts include damage to buildings in which cultivation occurs, improper and dangerous electrical alterations and use, inadequate ventilation, increased occurrences of home-invasion robberies and similar crimes, nuisance impacts to neighboring properties due to noxious odors, and increased crime.
B. It is acknowledged that the voters of the State of California have provided a criminal defense to the cultivation, possession, and use of marijuana for medical purposes through the adoption of the Compassionate Use Act in 1996 pursuant to Proposition 215 codified in Health and Safety Code section 11362.5. The Compassionate Use Act (CUA) does not address land use or other impacts that result from the cultivation of medical marijuana.
C. The purpose of this section is to adopt rules consistent with the CUA and the Medical Marijuana Program Act (MMPA) commencing with Health and Safety Code section 11362.7 to regulate medical marijuana in a manner that protects the public health, safety, and welfare of the community, prevent adverse impacts which such activities may have on nearby properties and residents without interfering with the rights of qualified patients and their primary caregivers to possess or cultivate medical marijuana pursuant to state law.
D. The CUA is limited in scope providing a defense from criminal prosecution for possession and cultivation of marijuana to qualified patients and their primary caregivers. The scope of the MMPA is also limited; it established a statewide identification program of qualified patients, persons with identification cards, and their primary caregivers providing an affirmative defense to certain enumerated criminal sanctions that would otherwise apply to transporting, processing, administering or distributing marijuana.
E. The CUA and MMPA do not appear to have facilitated the stated goals of providing access to marijuana for patients in medical need of marijuana; the predominant use of marijuana continues to be for recreational and not medicinal purposes. The report entitled, "California Chiefs Association Position Paper on Decriminalizing Marijuana" (September, 2009), states, "[it has become clear, despite the claims of use by critically ill people that only about 2% of those using crude marijuana for medicine are critically ill. The vast majority of those using crude marijuana as medicine are young and are using the substance to be under the influence of THC [tetrahydrocannabinol] and have no critical medical condition.]"
F. Facilities purportedly dispensing marijuana for medicinal purposes are commonly referred to as medical marijuana dispensaries, medical marijuana cooperatives or medical marijuana collectives; however, these terms are not defined anywhere in the CUA or MMPA. Significantly, nothing in the CUA or MMPA specifically authorizes the operation and the establishment of medical marijuana dispensing facilities.
G. The CUA and the MMPA do not require or impose an affirmative duty or mandate upon local governments, such as the City of Gridley, to allow, authorize, or sanction the establishment and/or the establishment and operation and of facilities dispensing medical marijuana within its jurisdiction. Moreover, the CUA/MMPA do not create a constitutional right to obtain medical marijuana.
H. It is critical to note that neither Act abrogates the City's powers to regulate for public health, safety, and welfare. Health and Safety Code section 11362.5(b)(2) provides that the Act does not supersede any legislation intended to prohibit conduct that endangers others. In addition, Health and Safety Code section 11352.83 authorizes cities and counties to adopt and enforce rules and regulations consistent with the MMPA.
I. On August 25, 2008, Edmond G. Brown, the California Attorney General, issued "Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use" (the Attorney General Guidelines"), which sets regulations intended to ensure the security and non-diversion of marijuana grown for medical use by qualified patients. Health and Safety Code section 11362.81(d) authorizes the Attorney General to "develop and adopt appropriate guidelines to ensure the security and non-diversion of marijuana grown for medical use by patients qualified under" the CUA/MMPA. Nothing in the Guidelines imposes an affirmative mandate or duty upon local governments, such as the City of Gridley, to allow, sanction, or permit the establishment and/or the operation of facilities dispensing marijuana within their jurisdictional limits.
J. Marijuana remains an illegal substance under the Federal Controlled Substances Act, 21 U.S.C. 801, et. seq. and is classified as a "Schedule I Drug" which is defined as a drug or other substance that has a high potential for abuse, which is not currently accepted as medical use for treatment in the United States, and it has not been accepted as safe for its use under medical supervision. Furthermore, the Federal Controlled Substances Act (FCSA) makes it unlawful for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense marijuana. The Federal Controlled Substances Act contains no statutory exemption for the possession of marijuana for medical purposes. The City of Gridley does not wish to be in violation of federal law.
K. The City has the power to regulate permissible land uses throughout the City and to enact regulation for the preservation of public health, safety, and welfare of its residents and community pursuant to the City of Gridley's police powers as authorized in Article XI, Section 7 of the California Constitution. The City also has the power through the City Council to declare actions and activities that constitute a public nuisance pursuant to Government Code 38771.
L. The City Council finds that neither the CUA nor the MMPA preempts the City's exercise of its traditional police powers in enacting land use and zoning regulations, as well as legislation for preservation of public health, safety, and welfare, such as this zoning ordinance prohibiting the cultivation and establishment and operation of medical marijuana cooperatives and collectives within the City.
M. The City Council finds that the public health, safety, and general welfare of the City and its residents necessitates and requires the adoption of this zoning ordinance, prohibiting the cultivation and the establishment and operation of medical marijuana cooperatives and collectives, and prohibits the processing, transport and/or delivery of marijuana and its products in order to: (a) protect and safeguard against the detrimental secondary negative effects and adverse impacts of facilities dispensing medical marijuana; (b) preserve and safeguard minors, children, and students in the community from the deleterious impacts of medical marijuana cultivation and facilities; and (c) preserve the City's law enforcement services, in that monitoring and addressing the negative secondary effects and adverse impacts will likely burden the City's law enforcement resources. The City Council further finds that due to negative secondary effects and adverse impacts of facilities dispensing medical marijuana, the establishment and operation of these facilities will negatively impact the City.
N. The zoning code, Title 17, of the Gridley Municipal Code, is consistent with the City of Gridley 2030 General Plan's goals, policies, and objectives and do not permit or contemplate the cultivation of marijuana nor the establishment or operation of medical marijuana cooperatives, collectives, or similar facilities that engage in dispensing of marijuana for medical purposes.
(Ord. 823-2016 § 36 (part), 2016)
A. Nothing in this Chapter is intended, nor shall it be construed, to burden any defense to criminal prosecution under the CUA/MMPA.
B. Nothing in this Chapter is intended, nor shall it be construed, to make legal any cultivation, sale or other use of medical marijuana that is otherwise prohibited under California law.
C. Nothing in this Chapter is intended, nor shall it be construed, to preclude any landlord from limiting or prohibiting medical marijuana cultivation by tenants.
D. Nothing in this Chapter is intended, nor shall it be construed to exempt any activity related to the cultivation of medical marijuana from any applicable electrical, plumbing, land use, or other building or land use standards or permitting requirements.
E. All cultivation and sale of medical marijuana within the City shall be subject to the provisions of this Chapter.
F. Any medical marijuana cultivation that legally occurred prior to the effective date of this ordinance does not have non-conforming rights provided in Chapter 17.03.
(Ord. 823-2016 § 36 (part), 2016)
As used herein the following definitions shall apply:
A. "Cultivation" means the planting, growing, harvesting, drying, or processing of marijuana plants or any part thereof.
B. "Fully enclosed and secure structure" means a space within a building that complies with the California Building Code, as adopted in the City, or, if exempt from permit requirements, that has a complete roof enclosure supported by connecting walls extending from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments, is secure against unauthorized entry, and is accessible only through one or more lockable doors. Walls and roofs must be constructed of solid materials that cannot be easily broken through, such as two inch by four inch (2" x 4") or thicker studs overlaid with three-eighths inch (3/8") or thicker plywood or the equivalent. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement. If indoor grow lights or air filtration systems are used, they must comply with the California Building, Electrical, and Fire Codes as adopted in the City.
C. "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.
D. "Indoors" means within a fully enclosed and secure structure.
E. "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.
F. "Medical marijuana" means marijuana used for medical purposes in accordance with California Health and Safety Code section 11362.5.
G. "Medical marijuana collective, cooperative, or dispensary" means a collective, cooperative, dispensary, operator, establishment, provider, association or similar entity that cultivates, distributes, delivers or processes marijuana for medical purposes relating to a qualified patient or primary caregiver, pursuant to the CUA and MMPA.H.
H. "Outdoor" means any location within the City that is not within a fully enclosed and secure structure.
I. "Parcel" means property assigned a separate parcel number by the Butte County Assessor.
J. "Primary caregiver" means a primary caregiver as defined in Health and Safety Code Section 11362.7(d).
K. "Qualified patient" means a qualified patient as defined in Health and Safety Code Section 11362.7(f).
(Ord. 823-2016 § 36 (part), 2016)
A. Marijuana cultivation by any person, including primary caregivers and qualified patients, collectives, cooperatives or dispensaries is prohibited in all zone districts within the City of Gridley.
B. All transport and/or deliveries of medical cannabis are expressly prohibited within the City of Gridley. No person shall conduct any transport and/or deliveries that either originate, terminate, or pass through within the City limits.
C. All commercial processing of medical cannabis is expressly prohibited within the City of Gridley.
(Ord. 823-2016 § 36 (part), 2016)
If Section 17.89.040, or any subsection, sentence, clause, phrase or portion of Section 17.89.040 is held by a court of competent jurisdiction to be invalid or unconstitutional, that portion shall be deemed a separate, distinct and independent provision and the following Section 17.89.060 shall apply in lieu of Section 17.89.040.
(Ord. 823-2016 § 36 (part), 2016)
It is unlawful to cultivate medical marijuana in any zone district allowing residential use by right including AR-5, R-1, R-2, R-3, R-4, R-S, PD, and MUCZ, DMU, OR NMU (Mixed Use) Overlay, or, zone districts allowing residential use by conditional use permit including C-1, C-2, M-1,M-2, and M-3, overlay zones unless a zoning Administrative Review is first secured and all of the following criteria are met:
A. Indoor cultivation: Medical marijuana may be cultivated only in a fully enclosed and secure structure (refer to subsection 5. below) by a qualified patient or primary caregiver in a residential zone (AR-5, R-1, R-2, R-3, R-4, R-S, PD, MUCZ, DMU, and NMU and with a conditional use permit within the C-1, C-2, M-1, M-2, and M-3 zones) if an administrative review is first secured and all of the following criteria are met:
1. The applicant must reside on the property and must be either a qualified patient or primary caregiver.
2. 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 to cause or allow such parcel to be used for the cultivation of marijuana, unless the person is a qualified patient or primary caregiver, growing the amount of marijuana per qualified patient authorized by Health and Safety Code Section 11362.77(a-b) and (d-f), not to exceed the per parcel limit in subsection B. of this section.
3. The owner of the property, if other than the applicant, has consented in writing to the cultivation of marijuana on the property. A notarized affidavit from the owner and proof of property ownership shall be submitted to the City with the application for an administrative review.
4. No plants may be cultivated within the primary living unit, second unit, nor garage area whether attached or detached. The cultivation of the plants shall occur within an accessory building separated by a minimum of six (6) feet from the garage and/or primary/second unit(s) area and shall be at least thirty (30) feet from any habitable and/or garage structure on any adjacent property.
5. The accessory building shall be:
a. No greater than 120 square feet calculated from the outside wall dimensions;
b. Constructed on a concrete foundation/slab, with a minimum 2" x 4" stud wall construction having an exterior finish to match the existing primary residence;
c. Provided with no more than 1200 watts of power for use in the structure provided with a subpanel at the accessory structure and a meter that can verify the amount of use;
d. Shall have all electrical, exhaust, piping, supply lines, and water lines reviewed and approved by the City's Building Official;
e. Screened and not visible from other adjacent property;
f. Reviewed, inspected, and approved by the City Building Official;
g. Located no closer than one thousand (1,000) feet from any school, childcare, or residential day care for children and adults, nor shall it be located within one thousand (1,000) feet of any residential development of other sensitive populations such as seniors, disabled, and/or developmentally disabled persons.
h. Located no closer than six hundred (600) feet from any restaurant, food preparation for public consumption, or cottage food operator;
i. The site is not within one thousand (1,000) feet of any park, library, or recreational area commonly used by minor children;
j. The existence of City, County, or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
k. A map that reflects the restrictive distances noted above shall be submitted with the application for administrative review.
6. No compressed gases shall be stored within the accessory structure nor used to enhance the growth of the cultivated marijuana including but not limited to propane, butane, oxygen, carbon dioxide, or others. The City's staff may enter the site upon issuance of a 24 hour notice, or as determined if there exists health and safety concerns and may consist of the City's code enforcement officer, fire marshal, building official, or others and shall inspect the premises at least one time/year or as needed based upon complaint.
7. The cultivation of medical marijuana shall not be an allowed home occupation nor as a cottage food operator.
8. All cultivated marijuana is for the personal use for a qualified patient residing on the property and none of the cultivated marijuana may be distributed in any form, crude leaf, distilled, and or in foods to any other person, collective, cooperative, or dispensary and if so, may be prosecuted under the fullest extent of the law.
9. The Administrative Review approval is valid for a period of one year and may be extended annually provided the conditions with which the original approval and any other conditions required based on potential changed circumstances on the site. The administrative review extension shall be applied for a minimum of thirty (30) days prior to the expiration of the original review approval.
B. 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 to cause or allow such premises to be used for the outdoor cultivation of marijuana plants.
(Ord. 823-2016 § 36 (part), 2016)
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