(A) California's medicinal cannabis laws, the Compassionate Use Act (Cal. Health and Safety Code § 11362.5), the Medical Marijuana Program (Cal. Health and Safety Code §§ 11362.7 et seq.), and the Medical and Adult-Use Cannabis Regulation and Safety Act (Cal. Business and Professions Code §§ 26000 et seq.), each recognize and preserve the authority of cities and counties under § 7 of Article XI of the California Constitution to enact and enforce reasonable regulations for the cultivation of medicinal cannabis and non-medicinal cannabis (sometimes referred to as "recreational marijuana" or "recreational cannabis").
(B) The county's unique geographic and climatic conditions, which include areas of prime agricultural land, along with a minimal population in many areas of the county, provide conditions that are favorable to cannabis cultivation. There have been multiple cannabis grows located within the county within the last year.
(C) The limited immunity from specified state cannabis laws provided by the Compassionate Use Act and Medical Marijuana Program does not confer the right to create or maintain a public nuisance. By adopting the regulations contained in this chapter, the county will achieve a significant reduction in the aforementioned harms caused or threatened by the unregulated cultivation of cannabis in the unincorporated area of San Benito County.
(D) (1) Local cannabis cultivation regulations have been upheld in other parts of the state, including by the California Court of Appeal in Browne v. County of Tehama (2013) 213 Cal. App. 4th 704. In that case, the Court specifically held that "[n]either the Compassionate Use Act nor the Medical Marijuana Program grants . . . anyone . . . an unfettered right to cultivate marijuana for medical purposes. Accordingly, the regulation of cultivation of medical marijuana does not conflict with either statute."
(2) Similarly, in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729, the California Supreme Court concurred that nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land.
(E) The unregulated cultivation of medicinal or non-medicinal cannabis in the unincorporated area of San Benito County can adversely affect the health, safety, and well-being of the county and its residents. Comprehensive regulation of premises used for cannabis cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated cannabis cultivation, and that are especially significant if the cultivation occurs outdoors, or if the amount of cannabis cultivated on a single premises is not regulated and substantial amounts of cannabis are thereby allowed to be concentrated in one place.
(F) Cultivation of cannabis has been associated with serious harmful effects in the areas where cultivation sites are located, to owners of property in such areas, and to people living, visiting, conducting business or otherwise present in the area, as reported by numerous other California counties and cities. Harmful effects at both outdoor and indoor cultivation operations have included an increase in criminal activity because of the high monetary value of the cannabis plants, adverse environmental impacts, noise pollution from generators, interference with farming practices, fire danger from grow light systems and cannabis oil extraction operations, excessive energy consumption, and strong offensive odors.
(G) The cultivation of cannabis outdoors, where it is often readily observable by neighbors and the general public, increases the risk of trespassing and burglary, and acts of violence in connection with the commission of such crimes or the occupants' attempts to prevent such crimes. Outdoor cultivation further makes the premises more prone to act as an attractive nuisance for children, and increases the likelihood of offensive odors traveling off the premises. Additionally, experience in San Benito County and elsewhere demonstrates that outdoor cultivation of cannabis is often associated with violations of local, state, and federal environmental laws and pesticide regulations, threatening harm to local waterways and groundwater quality, and endangering the public health and safety. To adequately protect the public health, safety, and welfare, it is proper and necessary to limit the outdoor cultivation of cannabis within the unincorporated area of San Benito County.
(H) The previous provisions of Chapter 11.15, which allowed limited outdoor cultivation of cannabis, did not fully mitigate these adverse effects. Prohibiting the personal cultivation of cannabis outdoors is proper and necessary to avoid the aforementioned harms, and to protect the health, safety, and welfare of the residents and businesses within the unincorporated territory of the county.
(I) The indoor cultivation of cannabis within a residence or other structure used or intended for human occupancy presents potential health and safety risks to those living in the residence or otherwise occupying the structure, especially to children, including but not limited to, increased risk of fire from grow light systems, exposure to fertilizers, pesticides, anti-fungus/mold agents, and exposure to potential property crimes. One goal of this chapter is to reduce or mitigate these risks by limiting the number of plants which may be cultivated indoors at any one location.
(J) Cannabis that is grown indoors may require excessive use of electricity, which often is obtained or connected illegally, and which may overload standard electrical systems creating an unreasonable risk of fire. If indoor grow lighting systems are powered by diesel generators, improper maintenance of the generators and fuel lines and the improper storage and disposal of diesel fuel and waste oil may create an unreasonable risk of fire and pollution.
(K) Cultivation of any amount of cannabis at locations or premises within 1,000 feet of schools, school bus stops, school evacuation sites, churches, parks, child care centers, or youth-oriented facilities creates unique risks that the cannabis plants may be observed by juveniles, and therefore be especially vulnerable to theft or recreational consumption by juveniles. Further, the potential for criminal activities associated with cannabis cultivation in such locations poses heightened risks that juveniles will be involved or endangered. Therefore, cultivation of any amount of cannabis in such locations or premises is especially hazardous to public health, safety, and welfare, and to the protection of children and the person(s) cultivating the cannabis plants. To adequately address these risks, it is proper and necessary that requests to cultivate cannabis in such locations be considered on a case-by-case basis through a waiver process administered by the San Benito County Resources Management Agency.
(L) The cultivation or other concentration of cannabis in any location or premises without adequate security increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as loitering or crime.
(M) The cultivation of cannabis upon vacant lots (i.e., premises without a permitted residential use) presents a heightened risk of the harms that Chapter 11.15 was designed to prevent, including criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards, due to the absence of an onsite caretaker eligible to cultivate cannabis in accordance with state law. Cannabis cultivation upon vacant lots is more likely to violate the registration, setback, plant limit, security, and location requirements of this chapter than cannabis cultivated accessory to a permitted residential use, is more likely to be diverted to unlawful use, and is less likely to serve the legitimate needs of persons cultivating cannabis in accordance with state law. Limiting the cultivation of cannabis to premises that contain a permitted residential use is proper and necessary to avoid the aforementioned harms, and to protect the health, safety, and welfare of the residents and businesses within the unincorporated area of the county.
(N) It is the purpose and intent of this chapter to implement state law by providing a means for regulating the cultivation of cannabis in a manner that is consistent with state law and which balances the interests of persons choosing to cultivate and use cannabis and promotes the health, safety, and welfare of the residents and businesses within the unincorporated area of the county. This chapter is intended to be consistent with California's cannabis laws, including the Medicinal and Adult-Use Cannabis Regulation and Safety Act, and towards that end, is not intended to prohibit persons from individually or jointly exercising any right otherwise granted by state law. Rather, the intent and purpose of this chapter is to establish reasonable regulations upon the manner in which cannabis may be cultivated, including restrictions on the amount of cannabis that may be individually or jointly cultivated in any location or premises, in order to protect the public health, safety, and welfare in San Benito County.
(O) In order to ensure compliance with the regulations set forth in the personal cultivation of cannabis chapter, facilitate enforcement in the event of noncompliance, and reduce hazards to emergency and other public agency personnel responding to premises where cannabis is cultivated, it is reasonable, proper, and necessary to require that all premises where cannabis is cultivated register annually with the San Benito County Resources Management Agency.
(P) Neither California's medicinal cannabis laws nor the non-medicinal cannabis laws confer the right to create or maintain a public nuisance. By adopting the regulations contained in this chapter, the county will achieve a significant reduction in the aforementioned harms caused or threatened by the unregulated cultivation of cannabis in the unincorporated area of San Benito County.
(Q) Nothing in this chapter shall be construed to allow the cultivation or use of cannabis for commercial or business purposes, or allow any activity relating to the cultivation, distribution, or consumption of cannabis that is otherwise illegal under state or federal law. No provision of this chapter shall be deemed a defense or immunity to any action brought against any person by the San Benito County District Attorney, the Attorney General of State of California, or the United States of America.
(Ord. 959, § 4, 2017; Ord. 963, § 2, 2017)