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Concord medical marijuana cultivation ordinance

Concord medical marijuana cultivation ordinance

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Published by Bud Green
Concord Ordinance 13-1 prohibits growing medical cannabis outdoors in the city of Concord. Passed first reading March 26, 2013, and final approval on April 9, 2013.
Concord Ordinance 13-1 prohibits growing medical cannabis outdoors in the city of Concord. Passed first reading March 26, 2013, and final approval on April 9, 2013.

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Published by: Bud Green on Mar 27, 2013
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 DATE: March 26, 2013
SUBJECT: PROPOSED ADOPTION OF ORDINANCE BANNNING OUTDOORCULTIVATION OF MEDICAL MARIJUANARECOMMENDATION: Consider introduction of Ordinance No. 13-1 amendingDevelopment Code, Article II (Zoning Districts Uses andStandards), Division 1 (Development and Land Use Approvals),Section 122-57 (Prohibited Uses), barring outdoor cultivation of medical marijuana, and Article IX (General Terms), Division1(Use Classifications), Section 122-1580 (Use Classifications)modifying the descriptions of “Community Garden” and “CropProduction, Orchard, Vineyard” to exclude the cultivation of medical marijuana.I. Introduction
 The City Council is being asked to consider an ordinance amending the City of Concord’s Development Code(Development Code), which will have the effect of banning the outdoor cultivation of medical marijuana.
II. Background
 During the October 9, 2012 City Council meeting, a member of the public complained that her next doorneighbor was cultivating marijuana plants which created an offensive odor. The Concord Police Departmentinvestigated this complaint, and determined that the individual cultivating the marijuana was a medicalmarijuana patient, and therefore is lawfully permitted to do so under California law. The Concord PoliceDepartment subsequently confirmed that there are other residential properties in the City where medicalmarijuana is being cultivated on an ongoing basis, in varying quantities.At the December 11, 2012 City Council Meeting, staff presented a report outlining the legal frameworkgoverning medical marijuana cultivation in California. (Attachment “A.”) In the same report, staff describedtwo regulatory models for restricting medical marijuana cultivation: 1) the Elk Grove model, which is wide-ranging and entails required permitting and extensive oversight by that city’s Police Department, PlanningDirector and Chief Building Official; and 2) the Moraga Model, which is fairly simple in scope andadministration. At the conclusion of the December 11 meeting, the Council directed staff to draft a proposedordinance akin to the Moraga model.
March 26, 2013Page 2Because the proposed ban on outdoor marijuana cultivation comprises a land use decision, PlanningCommission review is required. On February 6, 2013, staff presented a report to the Planning Commissionand a proposed ordinance drafted in conformity with the Councils direction. Following consideration of thereport by staff and public comment the Planning Commission adopted a resolution recommending approvalby the City Council of the proposed ordinance. (Attachment “B”)Staff is now bringing forward this ordinance and the associated Development Code amendments for proposedadoption by the Council.
III. Discussion
A. California Medical Marijuana LegislationOn November 5, 1996, California voters passed Proposition 215 (known as the Compassionate Use Act orCUA), which decriminalized the cultivation and use of marijuana by seriously ill individuals upon aphysician’s recommendation. The CUA held that Health & Safety Code Section 11357
, which otherwisecriminalizes the possession of marijuana, shall not apply to a patient or to a patient’s primary caregiver whopossesses or cultivates marijuana for medicinal purposes upon the written or verbal recommendation orapproval of a physician.In January 2004, the legislature passed the Medical Marijuana Program Act (MMPA). Among other things,the MMPA established a program providing for voluntary registration of qualified medical marijuana patientsand their primary caregivers through a statewide identification card system. (Sections 13362.71(e), 11362.78.)In addition to establishing the identification card program, the MMPA also recognizes a qualified right tocollective and cooperative cultivation of medical marijuana. (Sections 11362.7, 11362.77, 11362.775.) The MMPA establishes the term qualified patient,defined as a person whose physician has recommendedthe use of marijuana to treat a serious illness or any other illness for which marijuana provides relief. (Section11362.5(b)(1)(a).) The MMPA also establishes the term “primary caregiver,” defined as a person who isdesignated by a qualified patient and “has consistently assumed responsibility for the housing, health, orsafety” of the patient.” (Section 11362.5(e).) Primary caregivers are permitted to grow and supply marijuanato designated qualified patients, and a person may serve as a primary caregiver to more than one patient,provided that the patients and caregiver all reside in the same city or county. (Section 11362.7(d)(2).)Under the MMPA and subsequent appellate decisions interpreting the Act, qualified patients and primarycaregivers who possess a state-issued identification card may possess eight ounces of dried marijuana, andmay cultivate sufficient marijuana plants to meet their needs. Local law enforcement agencies throughout thestate, including the Concord Police Department, follow a guideline permitting six mature or 12 immaturemarijuana plants per qualified patient. It is important to note that more than one caregiver or patient mayreside in the same residence; alternatively, a caregiver may be growing marijuana for more than one patient athis or her property. Accordingly, local law enforcement guidelines that typically are followed do notnecessarily limit the number of mature/immature plants to 6 or 12 at a single property.
All further statutory references are to California’s Health and Safety Code.
March 26, 2013Page 3B. Applicable Federal LawNotwithstanding the CUA and the MMPA, marijuana possession, use and cultivation remains a criminaloffense under federal law, which categorizes marijuana as a drug with “no currently accepted medical use.”C. Banning of Medical Marijuana Dispensaries
Marijuana dispensaries are storefront operations which sell marijuana to qualified medical marijuana andcaregivers. In 2005, the City of Concord adopted an ordinance banning medical marijuana dispensaries withinCity limits. (Concord Municipal Code Section 18-331; Development Code Section 122-57.) Concordsdispensary ban followed the lead of a number of other cities throughout the state of California, and since then,additional cities have enacted similar bans. It should be noted that the California Supreme Court recentlygranted review of two cases involving challenges to similar local ordinances banning medical marijuanadispensaries. (
People v. G3 Holistic
(2011 WL 5416335) and
City of Riverside v. Inland Empire PatientsHealth and Wellness Center,
136 Cal.Rptr.3d 667 (2012).) Oral argument in those cases was heard in January2013, and comments by a number of Supreme Court justices during the hearing suggest that the court willaffirm the right of cities to enact such bans.D. Legality of Ban on Outdoor Cultivation of Medical Marijuanai. Reasonable Exercise of Police PowerUnder its police power, the City may make and enforce within its limits all local, police, sanitary and otherordinances and regulations not in conflict with general laws. (Cal. Const. Art. XI, Section 7.) A land useregulation lies within the police power if it is reasonably related to the public welfare. (
AssociatedHomebuilders, Inc. v. City of Livermore,
18 Cal.3d 582, 600-01 (1976).) In
Candid Enterprises, Inc. v.Grossmont Union High School District,
(1985) 39 Cal.3d 878, 885, the California Supreme Court addressedthe scope of police power held by cities and counties as follows:Under the police power granted by the Constitution, counties and cities haveplenary authority to govern, subject only to the limitation that they exercisethis power within their territorial limits and subordinate to state law. Apartfrom this limitation, the police power [of a city of county]… is as broad as thepolice power exercisable by the legislature itself. To summarize, under its police power, Concord may regulate medical marijuana activities in any manner notpreempted by state or federal law. As discussed in detail below, local restrictions on outdoor cultivation of medical marijuana are not preempted. While the MMPA provides medical marijuana patients and caregiversthe right to cultivate medical marijuana, it does not guarantee their right to grow marijuana outdoors. The justifications for the banning of outdoor medical marijuana cultivation under the City of Concord’s policepower include: 1) a risk to public safety, based on the value of marijuana plants and the accompanying threatof break-ins, robbery and theft, and attendant violence and injury; 2) strong “skunk like” fumes emitted frommature plants which can interfere with the use and enjoyment of neighboring properties by their occupants,and: 3) the potential for theft and use by school age children where medical marijuana is cultivated in alocation close to schools.

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