AGENDA ITEM NO.

4.a

REPORT TO MAYOR AND COUNCIL

TO THE HONORABLE MAYOR AND COUNCIL: DATE: March 26, 2013

SUBJECT:

PROPOSED ADOPTION OF ORDINANCE BANNNING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA

RECOMMENDATION:

Consider introduction of Ordinance No. 13-1 amending Development Code, Article II (Zoning Districts Uses and Standards), Division 1 (Development and Land Use Approvals), Section 122-57 (Prohibited Uses), barring outdoor cultivation of medical marijuana, and Article IX (General Terms), Division 1(Use Classifications), Section 122-1580 (Use Classifications) modifying the descriptions of Community Garden and Crop Production, 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 Concords 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 door neighbor was cultivating marijuana plants which created an offensive odor. The Concord Police Department investigated this complaint, and determined that the individual cultivating the marijuana was a medical marijuana patient, and therefore is lawfully permitted to do so under California law. The Concord Police Department subsequently confirmed that there are other residential properties in the City where medical marijuana 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 framework governing medical marijuana cultivation in California. (Attachment A.) In the same report, staff described two regulatory models for restricting medical marijuana cultivation: 1) the Elk Grove model, which is wideranging and entails required permitting and extensive oversight by that citys Police Department, Planning Director and Chief Building Official; and 2) the Moraga Model, which is fairly simple in scope and administration. At the conclusion of the December 11 meeting, the Council directed staff to draft a proposed ordinance akin to the Moraga model.

BAN ON OUTDOOR CULTIVATION OF MEDICAL MARIJUANA March 26, 2013 Page 2 Because the proposed ban on outdoor marijuana cultivation comprises a land use decision, Planning Commission review is required. On February 6, 2013, staff presented a report to the Planning Commission and a proposed ordinance drafted in conformity with the Councils direction. Following consideration of the report by staff and public comment the Planning Commission adopted a resolution recommending approval by the City Council of the proposed ordinance. (Attachment B) Staff is now bringing forward this ordinance and the associated Development Code amendments for proposed adoption by the Council. III. Discussion A. California Medical Marijuana Legislation

On November 5, 1996, California voters passed Proposition 215 (known as the Compassionate Use Act or CUA), which decriminalized the cultivation and use of marijuana by seriously ill individuals upon a physicians recommendation. The CUA held that Health & Safety Code Section 113571, which otherwise criminalizes the possession of marijuana, shall not apply to a patient or to a patients primary caregiver who possesses or cultivates marijuana for medicinal purposes upon the written or verbal recommendation or approval 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 patients and 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 to collective 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 recommended the use of marijuana to treat a serious illness or any other illness for which marijuana provides relief. (Section 11362.5(b)(1)(a).) The MMPA also establishes the term primary caregiver, defined as a person who is designated by a qualified patient and has consistently assumed responsibility for the housing, health, or safety of the patient. (Section 11362.5(e).) Primary caregivers are permitted to grow and supply marijuana to 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 primary caregivers who possess a state-issued identification card may possess eight ounces of dried marijuana, and may cultivate sufficient marijuana plants to meet their needs. Local law enforcement agencies throughout the state, including the Concord Police Department, follow a guideline permitting six mature or 12 immature marijuana plants per qualified patient. It is important to note that more than one caregiver or patient may reside in the same residence; alternatively, a caregiver may be growing marijuana for more than one patient at his or her property. Accordingly, local law enforcement guidelines that typically are followed do not necessarily limit the number of mature/immature plants to 6 or 12 at a single property.

All further statutory references are to Californias Health and Safety Code.

BAN ON OUTDOOR CULTIVATION OF MEDICAL MARIJUANA March 26, 2013 Page 3

B.

Applicable Federal Law

Notwithstanding the CUA and the MMPA, marijuana possession, use and cultivation remains a criminal offense 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 and caregivers. In 2005, the City of Concord adopted an ordinance banning medical marijuana dispensaries within City limits. (Concord Municipal Code Section 18-331; Development Code Section 122-57.) Concords dispensary 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 recently granted review of two cases involving challenges to similar local ordinances banning medical marijuana dispensaries. (People v. G3 Holistic (2011 WL 5416335) and City of Riverside v. Inland Empire Patients Health and Wellness Center, 136 Cal.Rptr.3d 667 (2012).) Oral argument in those cases was heard in January 2013, and comments by a number of Supreme Court justices during the hearing suggest that the court will affirm the right of cities to enact such bans. D. Legality of Ban on Outdoor Cultivation of Medical Marijuana i. Reasonable Exercise of Police Power

Under its police power, the City may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws. (Cal. Const. Art. XI, Section 7.) A land use regulation lies within the police power if it is reasonably related to the public welfare. (Associated Homebuilders, 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 addressed the scope of police power held by cities and counties as follows: Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. Apart from this limitation, the police power [of a city of county] is as broad as the police power exercisable by the legislature itself. To summarize, under its police power, Concord may regulate medical marijuana activities in any manner not preempted 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 caregivers the 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 Concords police power include: 1) a risk to public safety, based on the value of marijuana plants and the accompanying threat of break-ins, robbery and theft, and attendant violence and injury; 2) strong skunk like fumes emitted from mature 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 a location close to schools.

BAN ON OUTDOOR CULTIVATION OF MEDICAL MARIJUANA March 26, 2013 Page 4 ii. No State Law Preemption

In a decision issued on February 6, 2013, Browne v. County of Tehama (2013) 213 Cal.App.4th704, the California Court of Appeal considered for the first time whether a city or a county in California may lawfully limit outdoor cultivation of medical marijuana. At issue was Tehama Countys ordinance limiting the number of medical marijuana plants that may be grown outside, precluding marijuana cultivation within 1000 feet of schools, parks, and churches, and requiring that an opaque fence of at least six foot be installed around all marijuana grows. Upholding the ordinance, the court held that Tehamas ban is not preempted by state law. As stated by the court: The fundamental flaw in Petitioners argument is their misplaced view that the [Compassionate Use Act] somehow creates or grants unrestricted rights. Petitioners suggest that the CUA grants every qualified patient the right to cultivate...medical marijuanaBut the CUA does not create any such rightSince the CUA does not create a right to cultivate medical marijuana, restrictions on such enforcement do not conflict with the CUA. E. Proposed Development Code Ordinance Revisions

As noted above, at its December 11, 2012 meeting, the Council directed staff to draft ordinance language barring outdoor cultivation that is similar in scope to the Town of Moragas ban. The proposed ordinance is provided with this report as Attachment D, comprising amendments to Article II (Zoning Districts Uses and Standards), Division 1 (Development and Land Use Approvals), Section 122-57 (Prohibited Uses), and Article IX (General Terms), Division 1 (Use Classifications), Section 122-1580 of the Development Code (modifying the definitions of Community Garden and Crop Production, Orchard, Vineyard). Reduced to essentials, the proposed ordinance limits marijuana cultivation to occupied dwellings, dwelling units, and housing units, which are defined so as to exclude cultivation both outside and in accessory structures, including but not limited to greenhouses, storage sheds, workshops, gazebos and cabanas. Consistent with this purpose, the proposed amendments revise the Development Codes existing definitions of Community Garden, Crop Production, Orchard and Vineyard to also exclude medical marijuana cultivation. Violations of the proposed ordinance shall be considered a public nuisance, and may be enforced according to the procedures set forth in the Concord Development Code, Article VIII, Division 9, Section 122-1375; namely, through administrative abatement and issuance of administrative citations and fines. Enforcement of the proposed ban on outdoor medical marijuana cultivation may also be undertaken utilizing the remedies conferred upon the City by Civil Code Section 3494 and Code of Civil Procedure Section 731 (abatement by way of civil action filed in Superior Court), Government Code Section 38773 (imposition of liens), or other lawful authority. It should be noted that because compliance with the Compassionate Use Act and the Medical Marijuana Program Act provides a legal defense to the imposition of criminal penalties relating to medical marijuana cultivation, the City is precluded from imposing its own criminal penalties on individuals who violate the proposed ban on outdoor cultivation. For this reason, the Citys remedies are limited to the civil enforcement mechanisms described above.

BAN ON OUTDOOR CULTIVATION OF MEDICAL MARIJUANA March 26, 2013 Page 5 F. Impacts of Indoor Medical Marijuana Cultivation on Energy Use and Safety i. Equipment Potentially Used for Indoor Cultivation

Staff anticipates that if the proposed ordinance is adopted, some (but not all) of the individuals who currently cultivate marijuana outdoors may turn to indoor cultivation. In preparing this staff report, the City Attorneys Office requested the Citys Chief Building Inspector, Robert Woods, to prepare a written analysis of the type of equipment that is typically used to cultivate marijuana indoors, the impact on energy usage and the environment, and building code/life safety considerations. (Mr. Woods written analysis is provided as Attachment C to this with this report.) The following is a summary of Mr. Woods conclusions. Lighting. Growing marijuana indoors requires the use of lights to replicate sunlight in the range of light frequencies needed by the plant to grow fast and healthy. During the vegetative growth cycle, light is typically applied for 18 hours during each 24-hour cycle. To induce flowering and throughout the flowering stage, appropriate lighting typically is applied for 12 hours during each 24 hour cycle. There are two types of high intensity discharge (HID) grow lights typically used by growers: high pressure sodium (HPS) and metal halide (MH). These come in a range of sizes, the most common being 175, 250, 400, 600, and 1,000 Watts. HPS grow lights typically require a ballast to operate, which regulates the amount of voltage delivered to the lights. The ballast also consumes energy. Light emitting diode (LED) lights are available that provide a wide spectrum of light frequencies in one fixture. The LED lights also runs much cooler than MH or HPS. LED lights also have a long lifetime compared to that of MH or HPS lights. LED light fixtures are typically more expensive than MH or HPS. Thus, it is anticipated that the majority of growers may be using the MH and HPS fixtures. Temperature. Marijuana plants will tolerate temperatures between 60 degrees F and 92 degrees F. However, the ideal temperature is typically between 70 degrees F and 83 degrees F. Thus, some growers will attempt to regulate the temperature of their grow room to optimize the conditions for growth. This will necessarily require circulating fans and/or exhaust systems to create uniform temperatures. Marijuana also requires carbon dioxide (CO2) and thus requires sufficient fresh air or supplemental CO2. Accordingly, some growers may use exhaust fans with fresh air makeup to provide an adequate supply of CO2. Circulating Air. Marijuana in its natural environment is strengthened by wind currents that blow the plant around. Some growers may install circulating fans to create airflow to mimic wind to help strengthen the branches in the plants. Circulating air also helps to distribute the makeup air that contains the needed CO2. This will require additional electrical usage. Nutrients. In hydroponic growing systems, pumps will be used to circulate nutrients to the plants. These will often be regulated by a timer. ii. Effect on Energy Use

Indoor cultivation of medical marijuana will require electrical power, as outlined above. Given the City of Concords climate zone, the greatest impact on electrical use will likely be during warmer months where maintenance of lower temperatures is necessary for optimum plant growth. During cool weather periods, the heat from the lights will likely help maintain the temperature range needed by the marijuana plant without supplemental heating. Nevertheless, Mr. Woods concludes that the overall impact on energy use from medical marijuana growers will be negligible.

BAN ON OUTDOOR CULTIVATION OF MEDICAL MARIJUANA March 26, 2013 Page 6

No permits are presently required to cultivate medical marijuana in the City; thus the City does not have any statistics quantifying the number of residences where medical marijuana is grown, whether indoors or outdoors. The one indicator for which the City does have datacalls for police service relating to marijuana growsis not a reliable measure, since it only tabulates law enforcement responses to incidents or complaints concerning marijuana grows, and certainly not all such grows trigger the need for police service. It is worth noting, however, that the number of documented calls for police service relating to marijuana grows is relatively minimal. By way of example, during the calendar year 2012, the Concord Police Department responded to a total of 14 calls for service relating to marijuana cultivation. Based on current information, there is no indication that a statistically significant number of marijuana grows exist in the City, relative to the Citys total population or number of residences. Moreover, in calculating the anticipated effect of the proposed ordinance on energy usage, one must consider that not all residents who presently cultivate marijuana outside will turn to indoor cultivation if the ordinance is adopted. Indeed, many outdoor growers may forgo cultivating their own marijuana, and instead purchase medical marijuana from dispensaries in nearby cities. By the same token, individuals who currently cultivate medical marijuana indoors will not be affected at all by the ordinance, nor will the ordinance increase their energy usage. Staff also wishes to underscore that the proposed ordinance limits indoor cultivation of medical marijuana to occupied dwellings, dwelling units, and housing units, which are defined so as to exclude accessory structures. Accordingly, warehouse style growing operations are not permitted, and the size of indoor grows will be limited in scope. Based on these factors, staff does not believe that passage of the proposed ordinance will significantly increase energy use in the City. iii. Permitting and Life/Safety Issues

Chief Building Official Woods concludes that the current State building codes and the City of Concord Municipal Code adequately address the requirements for additional electrical circuits or power requirements that indoor cultivation of medical marijuana may entail. (Attachment C) Thus, no modifications to the Citys current building code regulations are needed to ensure safe installations. Notably, the proposed ordinance affirms that property owners must obtain appropriate permits from the City of Concord whenever electrical systems are altered or installed as part of a grow room, and the systems must be installed to meet current building and fire codes. G. CEQA Analysis

As noted above, there is no data or reliable information indicating that proposed ordinance will significantly increase energy use in the City. Other potential impacts to the environment from indoor cultivationsuch as the use of chemical fertilizers, pesticides and herbicideswill likely be reduced if the ordinance is adopted, since the ordinance limits medical marijuana cultivation to indoor residential spaces, whereas without the ordinance, medical marijuana can be cultivated both indoors and outdoors, on any parcel of land. Moreover, the need for pesticides and herbicides is greatly diminished in indoor grow environments. Based on these considerations, staff concludes that the ordinance does not do not constitute a project within the meaning of Section 15378 of the CEQA Guidelines, because there is no potential for resulting physical change in the environment, directly or ultimately. Even assuming the proposed amendments do comprise a project for CEQA analysis, staff believes that they fall within the common sense CEQA exemption set forth

BAN ON OUTDOOR CULTIVATION OF MEDICAL MARIJUANA March 26, 2013 Page 7 in 14 Cal Code Regs. Section 15061(b)(3), excluding projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. IV. Public Contact

Notification of the public hearing has been published in the Contra Costa Times, as required by the Concord Municipal Code. This item has also been posted at the Civic Center at least 10 days prior to the public hearing. V. Fiscal Impact

If adopted, the ordinance may in the short term result in increased calls for police service to enforce the ban on outdoor medical marijuana cultivation. However, staff anticipates that over time, the need for police enforcement will diminish, and the current number of calls for service regarding break-ins and neighborhood disputes arising from outdoor cultivation will also likely decline. While medical marijuana advocacy groups have traditionally focused their attention on dispensary bans and ordinances completely barring medical marijuana cultivation, there is a possibility that if adopted, the proposed ordinance will trigger a legal challenge, which will result in the expenditure of attorney fees and costs for the Citys defense. VI. Recommendation for Action

Staff recommends that the City Council introduce Ordinance No. 13-1, amending Development Code, Article II (Zoning Districts Uses and Standards), Division 1 (Development and Land Use Approvals), Section 12257 (Prohibited Uses), barring outdoor cultivation of medical marijuana, and Article IX (General Terms), Division 1(Use Classifications), Section 122-1580 (Use Classifications) modifying the descriptions of Community Garden and Crop Production, Orchard, Vineyard to exclude the cultivation of medical marijuana by reading of the title only and waiving further readings.

Prepared by: Valerie J. Barone Interim City Manager (925) 671-3175 Valerie.Barone@cityofconcord.org Mark S. Coon City Attorney (925) 671-3160 Mark.Coon@cityofconcord.org

Attachment A: December 11, 2012 Staff Report (City Council) Attachment B: Planning Commission Resolution No. 13-01 Attachment C: February 28, 2013 Memorandum prepared by Chief Building Official Robert Woods (Impacts from Medical Marijuana Cultivation) Attachment D: Proposed ordinance amending Development Code to ban outdoor cultivation of medical marijuana

AGENDA ITEM NO.__

4.a

_______

Attachment A REPORT TO MAYOR AND COUNCIL

TO THE HONORABLE MAYOR AND COUNCIL:

DATE: December 11, 2012

SUBJECT:

CONSIDERATION OF ORDINANCE RESTRICTING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA

Report in Brief The purpose of this report is to provide the Council with the legislative framework that governs medical marijuana cultivation. Additionally, staff seeks direction from the Council as to whether it wishes staff to prepare a proposed ordinance restricting outdoor cultivation of medical marijuana, and if so, the extent of the requirements that the Council wants that ordinance to encompass. Background During the October 9, 2012 City Council meeting, a member of the public complained that her next door neighbor was cultivating marijuana plants which created an offensive odor. The Concord Police Department investigated this complaint, and determined that the individual cultivating the marijuana was a medical marijuana patient, and therefore is lawfully permitted to do so under State law. The Concord Police Department has since confirmed that there are other residential properties in the City where medical marijuana is being cultivated on an ongoing basis, in varying quantities. Outdoor medical marijuana cultivation poses the potential threat of criminal harm as well as interference with the welfare of surrounding property owners. First, as indicated by the individual who spoke at public comment at the October 9 Council Meeting, mature medical marijuana plants often emit offensive skunk like fumes, which can interfere with the use and enjoyment of neighboring properties. Moreover, the presence of medical marijuana plants grown outdoors creates a risk to public safety, since their value and visibility encourage trespass and theft, posing the accompanying risk of violence and injury. To the extent that medical marijuana is grown in a location close to schools, there is also the potential for theft and use by school-aged children. As discussed below, while California state law protects the right of qualified medical marijuana patients and their caregivers to cultivate marijuana for medicinal purposes, no court has held that state legislation guarantees the right to cultivate marijuana outdoors, or that it restricts ordinances limiting cultivation to indoor locations. Accordingly, to the extent that the Council is in favor of such a ban, the City may lawfully enact an ordinance having this effect, so long as it does not unduly burden the ability of medical marijuana patients/caregivers to cultivate medical marijuana.

CONSIDERATION OF ORDINANCE RESTRICTING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA December 11, 2012 Page 2 Discussion a. California Medical Marijuana Legislation

On November 5, 1996, California voters passed Proposition 215 (known as the Compassionate Use Act (Act), which decriminalized the cultivation and use of marijuana by seriously ill individuals upon a physicians recommendation. The Act held that Health & Safety Code Section 113571, which otherwise criminalizes the possession of marijuana, shall not apply to a patient or to a patients primary caregiver who possesses or cultivates marijuana for medicinal purposes upon the written or verbal recommendation or approval of a physician. 2 In January 2004, the legislature passed the Medical Marijuana Program Act (MMPA). Among other things, the MMPA requires the California Department of Public Health to establish and maintain a program providing for voluntary registration of qualified medical marijuana patients and their primary caregivers through a statewide identification card system. Medical marijuana identification cards are intended to help law enforcement officers identify and verify that cardholders are legally permitted to cultivate, possess and transport certain amounts of marijuana without being subject to arrest under specific conditions. (Sections 13362.71(e), 11362.78) In addition to establishing the identification card program, the MMPA also recognizes a qualified right to collective and cooperative cultivation of medical marijuana. (Sections 11362.7, 11362.77, 11362.775.) The MMP establishes the term qualified patient, defined as a person whose physician has recommended the use of marijuana to treat a serious illness or any other illness for which marijuana provides relief. (Section 11362.5(b)(1)(a).) The MMP also establishes the term primary caregiver, defined as a person who is designated by a qualified patient and has consistently assumed responsibility for the housing, health, or safety of the patient. (Section 11362.5(e).) Primary caregivers are permitted to grow and supply marijuana to 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, qualified patients and primary caregivers who possess a state-issued identification card may possess eight ounces of dried marijuana, and may maintain no more than six mature or 12 immature marijuana plants per qualified patient. (Section11362.77(a).) In 2008, the California Court of Appeal held that Health & Safety Code 11362.77s possession guidelines were an unconstitutional amendment of Proposition 215, which does not quantify the amount of marijuana a patient may possess. (People v. Kelly (2008) 163 Cal.App.4th 124.) Notwithstanding this decision, local law enforcement agencies throughout the state, including the Concord Police Department, have continued to follow these guidelines. It is important to note that more than one caregiver or patient may reside in the same residence; alternatively, a caregiver may be growing marijuana for more than one patient at his or her property. Accordingly, local law enforcement guidelines that typically are followed do not necessarily limit the number of mature/immature plants to 6 or 12 at a property.
1 2

All further statutory references are to Californias Health and Safety Code. It should be noted that possession or use of marijuana remains a criminal offense under federal law, which categorizes marijuana as a drug with no currently accepted medical use.

CONSIDERATION OF ORDINANCE RESTRICTING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA December 11, 2012 Page 3

Under California law, medical marijuana patients and primary caregivers may associate within the state of California in order to collectively or cooperatively to cultivate marijuana for medical purposes. (Section11362.775.) Marijuana grown in this fashion is often referred to as a marijuana collective. Closely related to marijuana collectives are dispensaries. Although dispensaries are not recognized under the law, the California Attorney Generals Office has opined that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful, so long as it complies with certain guidelines. b. Banning of Medical Marijuana Dispensaries

In 2005, the City of Concord adopted an ordinance banning medical marijuana dispensaries within City limits. (Concord Municipal Code 18-331.) Concords dispensary 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 recently granted review of two cases involving challenges to similar local ordinances banning medical marijuana dispensaries, People v. G3 Holistic (2011 WL 5416335) and City of Riverside v. Inland Empire Patients Health and Wellness Center, 136 Cal.Rptr.3d 667 (2012).) The outcome of the courts decision, which is anticipated in early 2013, could directly affect Concords ordinance, and might also affect any contemplated ban on outdoor medical marijuana cultivation. c. Legality of Ban on Outdoor Cultivation of Medicinal Marijuana

Under its police power, the City may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Cal. Const. Art. XI, Section 7.) A land use regulation lies within the police power if it is reasonably related to the public welfare (Associated Homebuilders, Inc. v. City of Livermore, 18 Cal.3d 582, 600-01 (1976).) In Candid Enters, Inc. v. Grossmont Union High School District, (1985) 39 Cal.3d 878, 885, the California Supreme Court addressed the scope of police power held by cities and counties as follows: Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. Apart from this limitation, the police power [of a city of county] is as broad as the police power exercisable by the legislature itself. In Brix v. City of San Rafael, 92 Cal.App.3d 47, the Court of Appeal stated the following in a case in which San Rafael defended a challenge to its massage parlor ordinance: The reasonableness of a regulationis dependent upon the nature of the business being regulated and the degree of threat that the operation of such business presents to the tranquility, good order and well-being of the community at large. So long as a patent relationship between the regulations and the protection of the public health, safety, morals or general welfare exists, the regulation will be considered reasonable.

CONSIDERATION OF ORDINANCE RESTRICTING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA December 11, 2012 Page 4 To summarize, under its police power, Concord may regulate medical marijuana activities in any manner not preempted by state or federal law.3 Further, it does not appear that a ban on outdoor cultivation of medical marijuana is preempted. While the MMPA provides medical marijuana patients and caregivers the 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 Concords police power include: (1) malodorous fumes emitted from mature plants which can interfere with the use and enjoyment of neighboring properties by their occupants; (2) a risk to public safety, based on the value of marijuana plants and the accompanying threat of break-ins and theft, creating the accompanying risk of violence and injury; (3) the potential for theft and use by school age children where medical marijuana is cultivated in a location close to schools. Arguably, limiting marijuana growth to indoor locations benefits both marijuana patients/caregivers and the public at large, reducing the likelihood of theft and violence while at the same time reducing the offensive odor that mature marijuana plants emit. d. Outdoor Medical Marijuana Cultivation Bans by Other Local Agencies

A number of cities and counties throughout the state have adopted ordinances either banning or limiting outdoor cultivation of medical marijuana, including Clovis, Elk Grove, Moraga, Fresno County, Kings County, Lake County, Nevada County, Rocklin and San Diego. Although lawsuits are currently pending against some such jurisdictions, most of them involve county wide bans (Lake County, Nevada County, San Bernardino County, Tehama County), and there are no reported decisions outlawing such bans. The nature of these ordinances varies significantly in scope. Some, like Moragas ordinance, simply ban outdoor marijuana cultivation outright. That ordinance provides: A. No person owning, renting, leasing, occupying, or having charge or possession of any parcel shall cause or allow such parcel to be used for the outdoor cultivation of marijuana plants. No person owning, renting, leasing, occupying, having charge or possession of a parcel shall cause or allow indoor cultivation on such parcel to be visible from any street, sidewalk or other place freely accessible by the public.

B.

Other ordinances contain a vast array of additional limitations and requirements. One of the more detailed ordinances was recently adopted by the City of Elk Grove. The key elements of that ordinance are: No person other than a qualified patient or primary caregiver may engage in cultivation of medical marijuana

As noted above, marijuana is unlawful under federal law, however, California courts have held that neither Proposition 215 nor the Medical Marijuana Program Act conflict with federal law, because California laws do not legalize marijuana, but instead exercise the states reserved powers not to punish certain marijuana offenses under state law. (Garden Grove v. Superior Court (2007) 157 Cal. App. 4th 355.)

CONSIDERATION OF ORDINANCE RESTRICTING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA December 11, 2012 Page 5 Medical marijuana cannot be cultivated unless the grower obtains a permit, issued by the Chief of Police or his/her designee The Finance Director may establish a fee required to be paid upon filing of an application for a permit, not exceeding the reasonable of administering medical marijuana cultivation permits. Medical marijuana may not be cultivated outdoors except in residential and agriculturalresidential zones Medical Marijuana may not be cultivated within one thousand (1,000) feet of any school, child care center, or public park. Any detached structure used for cultivating medical marijuana must be a fully enclosed and secure structure no larger than 120 square feet in size, and must first be inspected by the Chief Building Official in consultation with the Planning Director and the Chief of Police A detached, fully enclosed and secure structure used for the cultivation of marijuana must be located in the rear yard area, maintain a minimum ten (10) foot setback from any property line, and be enclosed by a solid fence at least six (6) feet in height Indoor cultivation of medical marijuana in a residential zone cannot take place in any kitchen, bathroom or bedroom, or on any carpeted surface Any detached, fully enclosed and secure structure or residential structure used for the cultivation of medical marijuana must have a ventilation and filtration system installed that shall prevent marijuana plant odors from exiting the interior of the structure, and that is approved by the Building Official and installed prior to commencing cultivation. Adequate mechanical or electronic security systems approved by the Building Official and Chief of Police must be installed in and around the detached structure or the residential structure prior to the commencement of cultivation. Marijuana cultivation occurring within a residence shall be in an area no larger than fifty (50) square feet, regardless of how many qualified patients or primary caregivers are residing at the premises. Medical marijuana plants shall not be visible from the exterior of the building in which they are grown.

CONSIDERATION OF ORDINANCE RESTRICTING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA December 11, 2012 Page 6 e. Potential Legal Challenge to Cultivation Ban

Proponents of California medical marijuana rights are represented by a number of organizations, most prominently Americans for Safe Access (ASA) and the National Organization for the Reform of Marijuana Laws (NORML). Both groups have been aggressive in filing legal challenges against local ordinances which they believe infringe on their constituents rights. While their primary focus has been on medical marijuana dispensary bans,4challenges are also currently being litigated against certain counties and cities that have adopted ordinances banning medical marijuana cultivation outright, or making cultivation prohibitively expensive or difficult. These lawsuits assert that unduly restrictive medical marijuana cultivation bans are preempted by state law, which expressly protects the rights of qualified individuals to cultivate marijuana for medical use. Reduced to essentials, the more onerous an ordinance, the more likely it is to trigger a lawsuit. f. Staff Recommendation

Staff recommends that if the Council does wish to adopt an ordinance limiting medical marijuana cultivation, it should be fairly streamlined, and more akin to the Moraga ordinance than Elk Groves counterpart. Indeed, there are aspects of Elk Groves ordinance that are particularly problematic. As a starting point, marijuana cultivation and possession remains a criminal offense under federal law, and by setting up a permit system and accompanying inspection requirements, that ordinance entangles the Police Department (and other city departments) in overseeing marijuana cultivation, literally requiring its approval of sites where marijuana is grown, notwithstanding federal criminal prohibitions. Additionally, although each of the medical marijuana cultivation requirements contained in Elk Groves ordinance can be justified as a public safety measure, a court could conclude that the cumulative effect of these restrictions (particularly the filtration and electronic security systems requirements) renders cultivation cost-prohibitive and unreasonably burdensome. Staff concludes that the major threats to the publics safety and welfare posed by medical marijuana cultivation would be largely addressed by a simple ban on outdoor growth, with an ordinance limiting cultivation to occupied residential structures, and a requirement that indoor cultivation be limited to residential zones, and not visible from the exterior of the structure where the cultivation is taking place. Because a ban on outdoor marijuana cultivation is a land use issue, any such ban would require environmental and Planning Commission review. Staff believes that a relatively simple ordinance, along the lines of the ordinance adopted in Moraga, would speed up the review process. Fiscal Impact The fiscal impact of an ordinance restricting outdoor cultivation of medical marijuana will depend upon the nature of the ordinance (if any) that the Council chooses to adopt. This will be analyzed as part of Councils consideration of a draft ordinance, should that be Councils direction. Public Contact The agenda has been posted as required by law.
4

Indeed, ASA unsuccessfully sued the City of Concord when its ordinance banning dispensaries was first adopted.

CONSIDERATION OF ORDINANCE RESTRICTING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA December 11, 2012 Page 7

Alternative Courses of Action 1. Direct staff to draft a proposed ordinance prohibiting outdoor cultivation of medical marijuana, providing input as to the specific components that the Council wishes such an ordinance to contain. Staff would take the draft ordinance directly to the Planning Commission for review and recommendation to Council. Refer the development of an ordinance to the Councils Policy Development and Internal Operations Committee. The Committee would work with staff to draft an ordinance that would then be presented to the Planning Commission for review and recommendation to Council. Take no action.

2.

3.

Recommendation for Action Staff recommends that Council direct staff to draft an ordinance banning the outdoor cultivation of medical marijuana that is relatively limited in scope, similar to the Moraga model.

Prepared by:

Mark S. Coon City Attorney Mark.Coon@cityofconcord.org

Valerie J. Barone Interim City Manager Valerie.Barone@cityofconcord.org

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Attachment B

M E M O R A N D U M
Building Division, Community and Economic Development Department Attachment C DATE: TO: FROM: SUBJECT: February 28, 2013 Mark Coon, City Attorney Robert Woods, Chief Building Official Impacts from Indoor Medical Marijuana Cultivation

This memorandum describes the impacts of indoor medical marijuana cultivation on energy demands, building code requirements and fire/ life-safety matters. To grow marijuana indoors essentially entails trying to mimic outdoor conditions in the natural environment. It requires the right amount of light, temperature, air circulation, and nutrients. The benefit of growing indoors is that the grower can control these conditions to produce faster growing and quicker budding plants, so the time cycle to harvest may be shortened from that of plants in the natural environment. The following sections discuss the specific impacts of growing medical marijuana on building code regulations and fire- and life-safety. Impacts on Electrical Demand Lighting. Growing marijuana indoors requires the use of lights to replicate sunlight in the range of light frequencies needed by the plant to grow fast and healthy. During the vegetative growth stage a light source towards the blue light spectrum (warmer) will likely be used. For the flowering (budding) stage of growth a light source that produces yellow, amber and red spectrums (cooler) will likely be used. During the vegetative growth cycle light is typically applied 18 hours on and 6 hours off, for a total 24hour cycle. To induce flowering and throughout the flowering stage, appropriate lighting is applied 12 hours on and 12 hours off.

There are two types of high intensity discharge (HID) grow lights typically used by growers: high pressure sodium (HPS) and metal halide (MH). These types of grow lights provide light in the right spectrums needed by marijuana plans to grow successfully without sunlight. Sometimes they are used separately, but they can also be used together. MH grow lamps produce appropriate lighting for the vegetative stage while HPS grow lights will produce lighting for the flowering stage. These types of lamps produce significant amounts of light (measured in lumens) but also produce a significant amount of heat. These come in a range of sizes, the most common being 175, 250, 400, 600, and 1,000 Watts. HPS grow lights typically require a ballast to operate, which will also consume energy.

Light emitting diode (LED) lights are available that provide a wide spectrum of light frequencies in one fixture. The LEDs also runs much cooler that MH or HPS. LEDs also have a long lifetime compared to

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Building Division, Community and Economic Development Department Attachment C that of MH or HPS. LED light fixtures are typically more expensive than MH or HPS. Thus, it is anticipated that the majority of grower may be using the MH and HPS fixtures. Temperature. Marijuana will tolerate temperatures between 60 degrees F and 92 degrees F. However, the ideal temperature is typically between 70 degrees F and 83 degrees F. Thus, growers will likely regulate the temperature of their grow room to optimize the conditions for growth. This will necessarily require circulating fans and/or exhaust systems to create uniform temperatures. Exhaust fans and/or air conditioners will likely be used to reduce temperatures from the heat produced from grow lamps or from natural summer temperatures. During cold weather months the need for cooling will be less if exhaust fans pull fresh air in from the outside instead of from adjacent rooms. Marijuana also requires carbon dioxide (CO2) and thus requires sufficient fresh air or supplemental CO2. Growers will likely use exhaust fans with fresh air makeup to provide adequate supply of CO2. Fresh air will likely need to be conditioned if it modifies the grow room temperature beyond the range for optimizing growth. Filtering Exhaust Air. Marijuana plants can produce odors that could affect neighbors. Growers can install filters to control the smell of the exhausted grow room air. Carbon filters are an effective way to filter the air within the exhaust stream. The City might consider incorporating a mandatory filtering requirement in the ordinance if odors are of a concern. A slight increase in electrical usage will occur if a filter is installed in an exhaust system due to the power needed to pull air through the filter. Circulating Air. Marijuana in its natural environment is strengthened by wind currents that blow the plant around. Growers will likely install circulating fans to create airflow to produce wind to help strengthen the branches in the plants. Circulating air also helps to distribute the makeup air that contains the needed CO2. This will require additional electrical usage. Nutrients. In hydroponic growing systems, pumps will be used to circulate nutrients to the plants. These will often be driven by a timer. Impacts on Fire- and Life- Safety Emergency Egress from Bedrooms. Grow rooms should not be installed in bedrooms where such installations prevent the use of emergency egress from the bedroom directly to the exterior.

Energy Efficiency Standards The California Energy Efficiency Standards regulate lighting in residential uses. In general, lighting that is installed must be high efficacy lighting or shall be on a timer or motion sensor to meet the regulations. Most growers will likely use a timer on their lighting system and would, therefore, meet the energy regulations. Conclusions Indoor cultivation of medical marijuana will require electrical power, as outlined above. Given the City of Concords climate zone, the greatest impact on electrical use will likely be during warmer months where maintaining lower temperatures are needed for plant growth. During cool weather periods the
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Building Division, Community and Economic Development Department Attachment C heat from the lights will likely help maintain the temperature range needed by the marijuana plant without supplemental heating. It is my opinion that the current State building codes and City of Concord municipal code adequately address the requirements for additional electrical circuits or power requirements. Thus, no modifications to the Citys current building code regulations are needed to ensure safe installations. Owners should obtain appropriate permits from the City of Concord whenever electrical systems are altered or installed as part of the grow room and the systems should be installed to meet the current codes. I believe including such requirements for permits in the language of the proposed ordinance would clarify the need for appropriate permits for the installation of electrical circuits, outlets, switches, lights and/or fans and for any needed penetrations to the exterior for ventilation. It is my opinion that the increase in energy use by medical marijuana growers will be insignificant compared to the energy losses from poorly maintained and older homes. It is also my opinion that the overall impact on energy use from medical marijuana growers will be negligible simply due to the small population of legal medical marijuana growers within the City of Concord compared to the overall residential population. __________________________________ References: 1. Howtogrowmarijuana.com

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Attachment D

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ORDINANCE NO. 13-1 AN ORDINANCE AMENDING CITY OF CONCORD DEVELOPMENT CODE ARTICLE II (ZONING DISTRICTS USES AND STANDARDS), DIVISION 1 (DEVELOPMENT AND LAND USE APPROVALS), SECTION 122-57 (PROHIBITED USES), AND ARTICLE IX (GENERAL TERMS), DIVISION 1 (USE CLASSIFICATIONS), SECTION 122-1580 (USE CLASSIFICATIONS)

WHEREAS, in 1970, Congress enacted the Controlled Substances Act (CSA), which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States; and WHEREAS, in 1996, the voters of the State of California approved Proposition 215, known as the Compassionate Use Act (CUA), codified as California Health and Safety Code Section 11362.5. The CUA creates a limited exception from criminal liability for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances; and WHEREAS, in 2004, the State Legislature adopted the Medical Marijuana Program Act (MMPA), codified as California Health and Safety Code Sections 11362.7 et seq., to clarify the scope of the CUA and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with the MMPA. The CUA expressly anticipates the enactment of additional local legislation. It provides: Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. (Health and Safety Code Section 11362.5; and WHEREAS, concerns about non-medical marijuana use arising in connection with the CUA and the MMPA have been recognized by the state and federal courts. (See, e.g., Bearman v. California Medical Board (2009) 176 Cal.App.4th 1588; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383; Gonzales v. Raich (2005) 545 U.S. 1). The use, possession, distribution and sale of marijuana remain illegal under the CSA (Bearman v. California Medical Board (2009) 176 Cal.App.4th 1588), and the federal courts have recognized that: (1) despite Californias CUA and MMPA, marijuana is deemed to have no accepted medical use (Gonzales v. Raich (2005) 545 U.S. 1); and (2) the federal government may enforce the CSA despite the CUA and the MMPA (Gonzales v. Raich (2005) 545
Ord. No. 13-xx

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U.S. 1); and WHEREAS, marijuana plants, when grown outdoors, often produce a distinctive, strong odor (especially as they mature prior to harvest) that can be detectable and offensive beyond the borders of the property on which it is grown; and WHEREAS, marijuana, even when grown for medicinal purposes, has a high market value, and the strong smell and visibility of marijuana create an attractive nuisance, thereby creating the risk of burglary, trespass, robbery and armed robbery, potentially resulting in serious injury or death, and requiring the commitment of scarce police and public safety resources; and WHEREAS, adoption of text amendments to the City of Concord Development Code (Development Code) prohibiting outdoor cultivation of medical marijuana is necessary and proper to maintain and protect the public health, safety and welfare of the citizens of Concord. THE CITY COUNCIL OF THE CITY OF CONCORD DOES ORDAIN AS FOLLOWS: Section 1. Concord Development Code Article II (Zoning Districts Uses and Standards), Division 1 (Development and Land Use Approvals), Section 122-57 (Prohibited Uses) is hereby amended to read as follows; all other Uses and Standards remain unchanged: Sec. 122-57. Prohibited uses. Medical marijuana cultivation. 1. Purpose and intent. It is the purpose and intent of this provision to limit medical marijuana cultivation to enclosed, occupied dwellings, dwelling units and housing units, so as not to be visible to the general public, to provide for the health, safety and welfare of the public, to limit odor created by marijuana plants from impacting adjacent properties, and to prevent the attractive nuisance created by outdoor medical marijuana cultivation, which creates the risk of burglary, trespass, and armed robbery, posing the threat of serious injury or death, and requiring the expenditure of scarce police and public safety resources. // //
Ord. No. 13-1

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Ord. No. 13-1

2.

Applicable definitions: a. Cultivation. The planting, growing, harvesting, drying or processing of any marijuana plants or any part thereof, for medical use consistent with the Compassionate Use Act (California Health and Safety Code Section 11362.5) and the Medical Marijuana Program Act (California Health and Safety Code Section 11362.7 et seq.). b. Parcel. Any parcel of real property that may be separately sold in compliance with the Subdivision Map Act (California Government Code Section 66410 et. seq.). c. Occupied. Currently, presently, and lawfully utilized as the primary dwelling of one or more persons. d. Outdoor. Any location within the City that is not within a fully enclosed, occupied (as defined in this section) dwelling, dwelling unit or housing unit, as defined in Article IX, Section 122-1580 of the Development Code.

3.

Prohibitions. a. No person owning, renting, leasing, occupying or having charge or possession of any parcel shall cause or allow such parcel to be used for the outdoor cultivation of any marijuana plant. b. No person owning, renting, leasing, occupying, or having charge or possession of any parcel shall cause or allow indoor cultivation of marijuana on such parcel to be visible from any street, sidewalk, or other place freely accessible by the public.

4.

Compliance with Building, Fire Code and Permitting Requirements. Any person(s) cultivating medical marijuana with the use of grow lights, fans, ventilation devices or any other electrical or mechanical equipment shall comply with all applicable building and fire code requirements adopted by the City of Concord, and shall obtain all permits required for such installation. 3

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Ord. No. 13-1

5.

Enforcement. Violations of this provision shall be considered a public nuisance, and may be enforced according to the procedures set forth in the Concord Development Code, Article VIII, Division 9, Section 122-1375, and by the enforcement remedies conferred upon the City by Civil Code Section 3494, Code of Civil Procedure Section 731, Government Code Section 38773, or other lawful authority. Nothing in this provision is intended to impair any viable legal defense to a person using or in possession of medical marijuana pursuant to the Compassionate Use Act (California Health and Safety Code Section 11362.5) or the Medical Marijuana Program Act (California Health and Safety Code Section 11362.7 et. seq.). Nothing in this division is intended to authorize the cultivation, possession or use of marijuana for non-medical purposes in violation of state or federal law.

Section 2. Concord Development Code, Article IX (General Terms), Division 1 (Use Classifications), Section 122-1580 (Use Classifications) is hereby amended to read as follows; all other General Terms remain unchanged: (a) Community Garden. A private or public facility for cultivation of fruits, flowers, vegetables, or ornamental plants by more than one person or family. The intention is for persons residing within a geographic subarea of the City or who share some other common, unifying identity to participate in garden activities and to own the resulting ornamental plants, flowers and produce. This classification excludes outdoor cultivation of medical marijuana, which is banned under Section 122-57 of the Development Code. (b) Crop Production, Orchard, Vineyard. An agricultural facility for production including preparation, production, and harvesting activities. Examples include field crops, flowers and seeds, fruits and vegetables, grapes, ornamental crops, and vineyards. This classification also includes associated crop preparation services and harvesting activities such as mechanical soil preparation, irrigation system construction, spraying, crop processing and retail sales in the field, not including produce stands. This 4

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Ord. No. 13-1

classification does not include wholesale or retail nurseries. (See Retail, Nursery, Garden Center). This classification excludes outdoor cultivation of medical marijuana, which is banned under Section 122-57 of the Development Code. Section 3. This Ordinance No. 13-1 shall become effective thirty (30) days following its passage and adoption. In the event a summary of said Ordinance is published in lieu of the entire Ordinance, a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to its adoption and within fifteen (15) days after its adoption, including the vote of the Councilmembers. Additionally, a summary prepared by the City Attorneys Office shall be published once at least five (5) days prior to the date of adoption of this Ordinance and once within fifteen (15) days after its passage and adoption, including the vote of the Councilmembers, in the Contra Costa Times, a newspaper of general circulation in the City of Concord.

Daniel C. Helix Mayor ATTEST:

Mary Rae Lehman, CMC City Clerk (Seal)

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Ordinance No. 13-1 was duly and regularly introduced at a regular joint meeting of the City Council held on March 26, 2013, and was thereafter duly and regularly passed and adopted at a regular meeting of the City Council held on April 9, 2013, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Councilmembers Councilmembers Councilmembers Councilmembers

I HEREBY CERTIFY that the foregoing is a true and correct copy of an ordinance duly and regularly introduced, passed, and adopted by the City Council of the City of Concord, California.

Mary Rae Lehman, CMC City Clerk

Ord. No. 13-1