AGENDA

REGULAR MEETING OF THE LAKEPORT CITY COUNCIL

Tuesday, May 21, 2013 City Council Chambers, 225 Park Street, Lakeport, California 95453
Any person may speak for three (3) minutes on any agenda item; however, total public input per item is not to exceed 15 minutes, extended at the discretion of the City Council. This rule does not apply to public hearings. Non-timed items may be taken up at any unspecified time.

I. II. III.

CALL TO ORDER & ROLL CALL: PLEDGE OF ALLEGIANCE: ACCEPTANCE OF AGENDA: Urgency Items:

6:00 p.m.

Move to accept agenda as posted, or move to add or delete items. To add item, Council is required to make a majority decision that an urgency exists (as defined in the Brown Act) and a 2/3rds determination that the need to take action arose subsequent to the Agenda being posted.
The following Consent Agenda items are expected to be routine and noncontroversial. They will be acted upon by the Council at one time without any discussion. Any Council Member may request that any item be removed from the Consent Agenda for discussion under the regular Agenda. Removed items will be considered following the Consent Calendar portion of this agenda.

IV.

CONSENT AGENDA:

A. B. C. V.

Ordinances: Warrants: Minutes:

Waive reading except by title, of any ordinances under consideration at this meeting for either introduction or passage per Government Code Section 36934. Approve warrant registers from May 9, 2013, and May 15, 2013. Approve minutes of the regular City Council meeting of May 7, 2013.

PUBLIC PRESENTATIONS/REQUESTS: A. Citizen Input:

Any person may speak for 3 minutes about any subject within the authority of the City Council, provided that the subject is not already on tonights agenda. Persons wishing to address the City Council are required to complete a Citizens Input form and submit it to the City Clerk prior to the meeting being called to order. While not required, please state your name and address for the record. NOTE: Per Government Code 54954.3(a), the City Council cannot take action or express a consensus of approval or disapproval on any public comments regarding matters which do not appear on the printed agenda.

VI.

COUNCIL BUSINESS: A. Planning Services Manager 1. Marijuana Cultivation Ordinance Introduce the proposed Ordinance adding Title 17, Chapter 17.38, to the Lakeport Municipal Code related to the establishment of regulations pertaining to the cultivation of medical marijuana and set a public hearing and second reading for June 18, 2013, at 6:00 p.m.

B.

City Manager 1. Designation of League Voting Delegate Nominate a voting delegate for the League of California Cities Annual Conference to be held September 18-20, 2013, in Sacramento.

VII.

CITY COUNCIL COMMUNICATIONS: A. Miscellaneous Reports, if any:

VIII. IX. X.

CLOSED SESSION: REPORT FROM CLOSED SESSION: ADJOURNMENT:

Pursuant to Government Code Section 54956.9 (Anticipated Litigation): one case.

Adjourn

Materials related to an item on this Agenda submitted to the Council after distribution of the agenda packet are available for public inspection in the City Clerks Office at 225 Park Street, Lakeport, California, during normal business hours. Such documents are also available on the City of Lakeports website, www.cityoflakeport.com, subject to staffs ability to post the documents before the meeting.

In compliance with the Americans with Disabilities Act, the City of Lakeport will make available to members of the public any special assistance necessary to participate in this
meeting. The public should contact the City Clerks Office at (707) 263-5615 to make such a request. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

_______________________________________ Janel M. Chapman, City Clerk

MINUTES
LAKEPORT CITY COUNCIL REGULAR MEETING
May 7, 2013
I. CALL TO ORDER: ROLL CALL: Mayor Engstrom called the regular meeting of the City Council of the City of Lakeport to order at 6:00 p.m. with Council Members Stacey Mattina, Martin Scheel, and Marc Spillman present. Council Member Kenneth Parlet arrived at 6:12 p.m. The Pledge of Allegiance was led by Council Member Scheel. A motion was made by Council Member Mattina, seconded by Council Member Spillman, and unanimously carried by voice vote to accept the agenda as presented.

II. III.

PLEDGE OF ALLEGIANCE: ACCEPTANCE OF AGENDA:

IV.

CONSENT AGENDA: A. B. C. D. Ordinances: Warrants: Minutes: Application No. 2013-010 Waive reading except by title, of any ordinances under consideration at this meeting for either introduction or passage per Government Code Section 36934. Approve warrant registers from April 11 and 18, and May 2, 2013. Approve minutes of the regular City Council meeting of April 16, 2013, and the special meeting of April 30, 2013. Approve application 2013-010 for the Lake County Chamber of Commerce for various events including Memorial Day Parade on May 25, 2013; Lakeport Fireworks Display on July 4, 2013; Oktoberfest on October 5, 2013; and the Holiday Lighted Parade and Hospice Light Up a Life Tree Lighting Ceremony on November 30, 2013. Approve contract with Pyro Spectaculars for 2013 Fireworks Display. Receive and file LAFCO Proposed FY 2013-2014 Budget. Approve the Amended Memorandum of Understanding Between Bicoastal Media, LLC, and the City of Lakeport for Summer Concert Series. A motion was made by Council Member Scheel, seconded by Council Member Mattina, and unanimously carried by voice vote to approve the Consent Agenda, Items A through G, as posted.

E. F. G.

Annual Fireworks Display LAFCO Proposed Budget Amendment to MOU for Summer Concert Series

Vote on Consent Agenda

V.

PUBLIC PRESENTATIONS/ REQUESTS: A. B. C. D. Citizen Input Presentation to Sound of Music Cast and Staff ProclamationMunicipal Clerks Week Introduction of New Employees There was no citizen input. Mayor Engstrom presented a Certificate of Achievement to the Cast and Staff of Clear Lake High Schools production of Sound of Music. Mayor Engstrom presented proclamations to Janel Chapman and Kelly Buendia in recognition of Municipal Clerks Week. Gabe Gaynor, a new employee in the Public Works Department, was introduced. Police volunteers Arland Sousa and Antonio Cortez were introduced. New police officers Michael Nass and Mike Sobieraj were introduced.

VI.

COUNCIL BUSINESS: A. City Engineer 1. Intersection Sign Options City Engineer Harter recommended that a hardwired blinking sign that is activated by a push button be put in at the intersection of High and Twentieth Streets. A motion was made by Council Member Scheel, seconded by Council Member Mattina, and unanimously carried by voice vote to authorize the purchase of equipment to enhance pedestrian safety at the referenced intersection as recommended by the City Engineer.

Minutes of the Lakeport City Council Meeting of May 7, 2013

Page 2

B.

Public Works 1. Dump Truck Repair A motion was made by Council Member Spillman, seconded by Council Member Parlet, and unanimously carried by voice vote to authorize the expenditure of $9,500 from the General Fund Reserve to replace the broken dump body hoist and required parts and labor.

VII.

CITY COUNCIL COMMUNICATIONS: A. Miscellaneous Reports: Council Member Spillman reported that the historic signs for Main Street should be received in mid-May. The Main Street Association has been discussing the Carnegie Library grant and has agreed to donate $1,000 as part of the match. They will hold a volunteer appreciation night on June 13. Executive Director Carol Hayes will be leaving, and they are looking for her replacement. Council Member Mattina reported that she attended the grand opening for the Lake Center of the Mendocino College. Council Member Mattina will be attending the Lake Transit and APC meetings tomorrow and the LAFCO meeting next week. Council Member Scheel reported that he also attended the college grand opening. He and the City Manager also attended Legislative Days in Sacramento. Council Member Scheel will be attending the Lake Transit, APC, and solid waste meetings tomorrow. He will be looking at the applications for Indian gaming funds next week. City Engineer Harter reported that construction on the frontage improvements has begun at Mendocino Savings Bank and will take about three weeks. The right-of-way work on the senior housing project on Martin Street is anticipated to begin next week. City Engineer Harter and public works and community development staff will be attending NPDES training in Santa Rosa next week. Police Chief Rasmussen thanked the Public Works Department staff for painting the curbs and lines in the parking lot and installing a sprinkler system. They will also be installing new signs. Administrative Services Director Buendia reported that the benefits fair will be held on May 23, and a flyer will be going out. Planning Services Manager Britton reported that the Planning Commission will be meeting tomorrow and will hold a public hearing to review the proposed medical marijuana cultivation ordinance. Public Works Director Brannigan reported that there are a few things to finish on the Fifth Street paving project. His crews are working on repairs to the docks, and he expects the docks to be in place for Memorial Day weekend. City Manager Silveira reported that the quarterly meeting of the Redwood Empire Division of the League will be held in Fortuna on May 18. Mayor Engstrom coordinated volunteers for cleanup days in Lakeport, Clearlake, and Middletown as well as the county park. A total of 594 volunteers put in 2,376 hours. Grillin on the Green will be held on August 3. The Mayor also signed up for the Memorial Day Parade on May 25.

VIII. IX. X. ATTEST

CLOSED SESSION: REPORT FROM CLOSED SESSION: ADJOURNMENT:

The meeting was adjourned to a closed session at 6:52 p.m. pursuant to

Government Code Section 54956.9 (Anticipated Litigation): two cases.

The meeting reconvened to open session at 7:16 p.m. The Mayor reported that the Council was updated on the status of anticipated litigation. Mayor Engstrom adjourned the meeting at 7:17 p.m. APPROVED ___________________________________________ THOMAS ENGSTROM, Mayor

____________________________________ JANEL M. CHAPMAN, City Clerk

CITY OF LAKEPORT
City Council Lakeport Redevelopment Agency City of Lakeport Municipal Sewer District

STAFF REPORT
RE: Introduction of an Ordinance to Establish Regulations MEETING DATE: Pertaining to the Cultivation of Medical Marijuana in the Citys Residential Zoning Districts SUBMITTED BY: Andrew Britton, Planning Services Manager PURPOSE OF REPORT: Information only Discussion Action Item 05/21/2013

WHAT IS BEING ASKED OF THE CITY COUNCIL: The City Council being is asked to: (1) Introduce the proposed Ordinance, which will amend the Citys Zoning Ordinance (Title 17, Lakeport Municipal Code) to add Chapter 17.38 and establish regulations pertaining to the cultivation of medical marijuana in the City's UR, R-1, R-2, R-3 and R-5 residential zoning districts; and (2) Set a public hearing date for second reading and adoption of the Ordinance. BACKGROUND: In recent years the City has received numerous complaints from Lakeport residents regarding the cultivation of medical marijuana. The Police Department has conducted checks at numerous locations in the City and has received reports of thefts or attempted thefts of medical marijuana. In 2007, the City adopted an ordinance (Municipal Code Chapter 9.24) which completely prohibits marijuana cultivation inside the City. The Citys current regulations do not follow State law (Health and Safety Code Section 11362.5 et. seq., known as the Compassionate Use Act of 1996 or CUA and Health and Safety Code Section 11362.7 et. seq., known as the Medical Marijuana Program Act or MMPA) and therefore are basically unenforceable and subject to legal challenges. Outdoor cultivation of marijuana has caused Lakeport residents to complain about very strong pungent odors (a skunk-like odor) from maturing plants that encroach into their adjacent outdoor yard areas. The strength of the odor is reported to be so strong as to deprive them of enjoyment of their yards. Complaints have also been received from residents of adjacent units in multifamily residences complaining of obnoxious odors from indoor marijuana cultivation. Damage to the interior of residences from the odor, mold and water has been reported by landlords. Most of these hazards are particularly acute in the fall as the plants mature before harvest. Indoor marijuana cultivation can also occur throughout the year causing continual odor problems and other related issues (mold growth, interior moisture damage and increased fire hazards). As a result of the nuisance complaints and other public safety issues associated with the cultivation of marijuana in our community, the City Council directed City staff to develop a new marijuana cultivation ordinance that is consistent with the applicable State laws regarding medical marijuana but contains reasonable regulations that are designed to address public safety concerns and potential nuisance issues associated with the cultivation of medical marijuana.

Meeting Date: 5/21/2013

Page 1

Agenda Item #VI.A.1.

Several City staff members, including representatives from the Community Development and Police Departments, met in November 2012 to discuss the development of a new ordinance. Medical marijuana cultivation ordinances from other California cities and counties were reviewed and there was a consensus that the cultivation ordinance adopted by the City of Anderson was a good starting point. The City of Andersons ordinance prohibits medical marijuana cultivation inside a residence and allows up to 50 square feet of medical marijuana cultivation to take place in a detached accessory building that is secured and provided with odor control filters. On February 5, 2013, a draft marijuana cultivation ordinance was to be considered by the City Council. However, due to the fact that the proposed ordinance will be a chapter of the Citys Zoning Ordinance, State law and the Citys Municipal Code requires it to be reviewed and approved by the Planning Commission prior to consideration by the City Council. Although the City Council did not formally review the draft ordinance in February, the Council requested the formation of an ad-hoc committee consisting of two City Council members, City staff and residents of Lakeport who expressed an interest in this issue. A committee was formed and began meeting in early March. The committee included City staff (Planning Services Manager, Police Chief and Building Official), two City Council members, and three Lakeport residents. The City Attorney also attended the committee meetings as a non-voting member and served as legal counsel. The committee met a total of four times in March and April. The draft ordinance prepared by City staff was reviewed as were other cultivation ordinances and a wide variety of information related to medical marijuana cultivation. The background materials reviewed by the committee have been shared with the Planning Commission and City Council and a web link to these materials has been posted on the Citys website (Planning Commission homepage, current staff reports and background information folder). The background documents can also be accessed via this link: https://www.dropbox.com/sh/2zsp65l36j2we2w/qafEJXGja6 Ken Wells, Chief of the Lakeport Fire Protection District, attended the March 20 meeting and provided a letter describing his agencys position on indoor marijuana cultivation activities. The letter is posted on the Citys website and states that indoor cultivation (inside a residence) is a public safety problem and that the Chief opposes these activities. The letter includes many examples of residential fires related to indoor cultivation, including one in the Lakeport Fire District and many others around Lake County. The initial draft ordinance was revised based on recommendations from the committee members. Significant changes in the original draft ordinance that were approved by the committee included: New definitions and minor changes to definitions included in the original ordinance. New and/or modified terms include: child care center; cultivation; detached, enclosed, secure structure; indoors; outdoors; rear yard; residential structure; school; and solid fence. Added subsection 3. to Section 1. B. (Intent). New language states that it is the Citys intent to enforce the provisions of the ordinance primarily on the basis of legitimate and verified complaints related to nuisance conditions and/or other public safety issues. The Police Department supported this change but emphasized that this language, if approved, will not limit the Departments ability to act on serious violations that come to their attention without a complaint. Increased the maximum allowable area for medical marijuana cultivation from 50 square feet to 80 square feet. Removed the specific wattage limit for medical marijuana cultivation lighting. New language states that the lighting shall comply with the California Building Code. Removed requirement for an audible residential alarm system serving detached, secure and enclosed accessory buildings used for the cultivation of medical marijuana.

Meeting Date: 5/21/2013

Page 2

Agenda Item #VI.A.1.

Added language prohibiting the use of flammable/volatile gas products or generators within any detached structure used for medical marijuana cultivation. Removed several references to the word criminal in Section 1. G. (Enforcement) because the possession and use of medical marijuana has been de-criminalized by the State of California. Violations of the ordinance are now deemed to be a citable offense rather than a criminal offense and are subject to the issuance of an Administrative Citation which is defined as an infraction.

Meeting notes from all four committee meetings are also posted on the Citys website and provide additional details regarding the amendments to the draft ordinance recommended by the committee as well as other discussion topics. The committee held a final meeting on April 17 at which time the revised draft ordinance was reviewed and unanimously approved to be referred to the Planning Commission for their consideration. The Lakeport Planning Commission conducted a properly-noticed public hearing on May 8, 2013, to review the draft ordinance make a recommendation to the City Council as required by the Citys Municipal Code. As noted in the Minute Order of the May 8 meeting (see Exhibit 1), the Commission heard testimony from several interested parties including two Lakeport residents who served on the cultivation ordinance committee. Following the public hearing, the Planning Commission recommended several revisions to the draft ordinance and unanimously voted to recommend adoption of the revised ordinance to the City Council. Please refer to the attached Minute Order for the specific revisions recommended by the Planning Commission. The Planning Commissions recommendation to the City Council was based on a finding that adoption of the ordinance is in the best interest of the City and its residents. The draft ordinance has been revised to incorporate the recommended changes and is attached (Exhibit 2) for consideration by the City Council. DISCUSSION: This proposed ordinance restricts the cultivation of medical marijuana in residential zoning districts to detached, enclosed and secure accessory buildings; limits the cultivation area to a maximum of 80 square feet; requires security and odor control measures to be in place; addresses the proximity of marijuana cultivation activities to schools, parks and childcare facilities; and includes other measures intended to address the potential problems associated with the cultivation of medical marijuana. As described in the Staff Report presented to the Planning Commission (Exhibit 3), the proposed ordinance is the result of substantial input by the affected stakeholders, including City staff, elected officials, and proponents/advocates for the use and/or cultivation of medical marijuana. Staff believes the proposed ordinance achieves an appropriate balance between the applicable State laws (the CUA and MMPA) governing the cultivation of medical marijuana and the Citys legal right to establish reasonable regulations that promote public health and safety and the right for residents to be comfortable and free of nuisance odors or other detrimental effects resulting from marijuana cultivation. OPTIONS: 1. Introduce the proposed Ordinance and set a public hearing date for its second reading and adoption. 2. Propose revisions to the draft Ordinance and request that it be returned to the City Council for further discussion. FISCAL IMPACT: None $ Account Number:

Meeting Date: 5/21/2013

Page 3

Agenda Item #VI.A.1.

Comments: No significant fiscal impacts are anticipated as a result of the proposed modifications to the Zoning Ordinance. Typical expenses related to the public hearing notice, ordinance publication and codification will be incurred. Positive fiscal impacts may be realized given that there will be fewer marijuana-related nuisance conditions in our community. The medical marijuana cultivation regulations may attract new residents to the City and property tax and other revenue increases are a possibility. SUGGESTED MOTIONS: Move that the City Council introduce the proposed Ordinance adding Title 17, Chapter 17.38 to the Lakeport Municipal Code related to the establishment of regulations pertaining to the cultivation of medical marijuana and set a public hearing and second reading for June 18, 2013, at 6:00 p.m. Exhibit 1: Planning Commission Minute Order (May 8, 2013 meeting) Exhibit 2: Proposed Medical Marijuana Cultivation Ordinance Exhibit 3: Planning Commission Staff Report (May 8, 2013)

Attachments:

Meeting Date: 5/21/2013

Page 4

Agenda Item #VI.A.1.

Exhibit 2
ORDINANCE NO. XXX (2013) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKEPORT ENACTING CHAPTER 17.38 OF THE LAKEPORT MUNICIPAL CODE, REGARDING MEDICAL MARIJUANA CULTIVATION

WHEREAS, the City of Lakeport Municipal Code establishes rules and regulations for living and doing business within city limits, and; WHEREAS, Health and Safety Code Section 11362.5 et. seq., known as the Compassionate Use Act of 1996, (CUA), adopted by the voters in the State of California, allows a person to use marijuana for medical purposes with a doctors recommendation without violating state criminal laws concerning the use, possession or cultivation of marijuana, and; WHEREAS, Health and Safety Code Section 11362.7 et. seq., known as the Medical Marijuana Program Act, (MMPA), was adopted by our state legislature and offers some clarification on the scope of the Compassionate Use Act of 1996 and allowed cities and other governing bodies to adopt and enforce rules and regulations related to medical marijuana, and; WHEREAS, the City may impose regulations to ensure the safety of our residents, being careful not to unreasonably limit the rights of qualified patients under the CUA and MMPA, and; WHEREAS, numerous locations in the city have had reports of thefts or attempted thefts of medical marijuana, and; WHEREAS, cultivation of medical marijuana inside of residences and attached garages create the potential for risk of fire related to the improper use or modification of electrical systems, and; WHEREAS, medical marijuana growth can pose significant safety risks for surrounding neighbors, and can cause nuisances associated with the odor of the marijuana plants and public safety issues concerning theft of plants, and; NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS: Section 1. The City Council of the City of Lakeport does hereby add the following Chapter to the Municipal Code: Chapter 17.38 Medical Marijuana Cultivation A. Legislative Findings. The City Council finds as follows: 1. In 1996, the voters of the State of California approved Proposition 215 which was codified as California Health and Safety Code Chapter 11362.5, and entitled "The Compassionate Use Act of 1996" ("the Compassionate Use Act" or CUA). The intent of the Compassionate Use Act was to enable persons who are in need of marijuana for medical purposes to obtain and use it under limited, specific circumstances, without being subject to criminal prosecution under certain state statutes.
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Draft Medical Marijuana Cultivation Ordinance

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On January 1, 2004, Senate Bill 420, codified as California Health and Safety Code Chapters 11362.7 et seq. and entitled The Medical Marijuana Program, (MMP) became effective to clarify the scope of the Compassionate Use Act. California Health and Safety Code Chapter 11362.83 expressly allows Cities and Counties to adopt and enforce ordinances that are consistent with Senate Bill 420. The City of LAKEPORT has adopted a Zoning Ordinance identified as Title 17 (Zoning) of the City of LAKEPORT Municipal Code. Prior to the enactment of this Chapter, there were no regulations addressing Cultivation of Medical Marijuana in the Zoning Ordinance. The City of LAKEPORT with a population of 4,622 (January 1, 2012) is a small town with a high percentage of non-owner occupied residential units. Landlords have complained of damage caused by unauthorized cultivation activities in their rental properties. The City of LAKEPORT Police Department, City residents and other public entities have reported adverse impacts from Medical Marijuana cultivation, including disagreeable odors; increased risk of burglary and other property crimes; and acts of violence in connection with the commission of such crimes or the occupants attempts to prevent such crimes. The creation of persistent strong odors as marijuana plants mature and flower is offensive to many people and creates an attractive nuisance, alerting persons to the location of valuable marijuana plants and creating an increased risk of crime. The indoor cultivation of substantial amounts of marijuana also frequently requires excessive use of electricity, which often creates an unreasonable risk of fire from the electrical grow lighting systems used in indoor cultivation. Children are particularly vulnerable to the effects of marijuana use, and the presence of marijuana plants has proven to be an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children including schools, child care centers, parks, and other similar locations. The City Council finds and determines that the enactment of this Chapter is exempt from environmental review pursuant to California Environmental Quality Act Guidelines Chapter 15061(b)(3) in that there is nothing in this Chapter or its implementation that could have a foreseeable significant effect on the environment.

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Intent. 1. The City Council of the City of LAKEPORT, pursuant to Chapter 17.38 of the LAKEPORT Municipal Code, hereby intends to regulate the cultivation of marijuana for medical purposes, including but not limited to, regulations as to location of the cultivation, size of the area used for cultivation, and the use of fencing or other screening and security structures, to accommodate the needs of qualified patients and their caregivers, and in furtherance of the public necessity, convenience and general welfare. Nothing in this Chapter shall be construed to authorize any use, possession, cultivation, or distribution of marijuana for non-medical purposes. 2. This Chapter is established to regulate Medical Marijuana cultivation in a manner that mitigates potential impacts on surrounding properties and persons, and that is in
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Draft Medical Marijuana Cultivation Ordinance

conformance with the provisions of California Health and Safety Code Chapter 11362.5 through 11362.83. 3. It is the intent of the City of LAKEPORT to enforce the provisions of this Chapter primarily on the basis of legitimate and verified complaints received from the public related to nuisance conditions and/or other public safety issues. C. Applicability. The provisions of this Chapter shall apply to all persons and businesses described herein whether the activities described herein were established before or after the effective date of this Chapter. Title 17, Chapter 17.36 of the Municipal Code, Nonconforming Uses, shall not apply to preexisting land or building uses inconsistent with the provisions of this Chapter. Definitions. Canopy means the total combined canopy area for all locations on a property where medical marijuana is being cultivated, including indoor areas, as measured by the horizontal extent of the plant or combination of plants at the widest point and measured in a straight line. Child care center means any licensed child care center, daycare center, or childcare home, or any preschool. Cultivation means the planting, growing, harvesting, drying, or processing of marijuana plants or any part thereof for medical use consistent with the Compassionate Use Act (Health and Safety Code Section 11362.5) or the Medical Marijuana Program Act (Health and Safety Code Section 11362.7 et. seq.). Detached, fully-enclosed and secure structure is a building completely detached from a residence that complies with the City of Lakeport Building and Zoning Codes and has a complete roof enclosure supported by connecting walls extending from the ground to the roof, and is secure against unauthorized entry, and is accessible only through one or more lockable doors. Indoors means within a fully enclosed and secure structure. Marijuana shall have the same meaning as that set forth in California Health and Safety Code Chapter 11018. "Medical Marijuana" means medical marijuana that has been recommended by a licensed physician in strict accordance with California Health and Safety Code Chapters 11362.5 through Chapter 11362.83, inclusive, commonly referred to as the Compassionate Use Act and the Medical Marijuana Program. Outdoor means any location within the City that is not within a fully enclosed and secure structure. Primary Caregiver shall have the same definition as California Health and Safety Code Chapter 11362.7(d), as may be amended. Qualified Patient shall have the same definition as California Health and Safety Code Chapters 11362.7 (c) and (f), as may be amended. Rear yard is the rear open space portion of any premises, whether fenced or unfenced.

D.

Draft Medical Marijuana Cultivation Ordinance

Residential structure is any building or portion thereof legally existing which contains living facilities, including provisions for sleeping, eating, cooking and sanitation on a premises or legal parcel located within a residential or agricultural-residential zoning district. School means an institution of learning for persons under twenty-one (21) years of age, whether public or private, offering regular course of instruction including, without limitation, a kindergarten, elementary school, middle or junior high school, or senior high school. Solid fence means a fence constructed of substantial material (such as wood) that prevents viewing the contents from one side to the other. E. Regulation of Location. 1. Medical Marijuana cultivation shall be prohibited on any parcel within the incorporated area of the City of LAKEPORT except as an accessory use to a legally established residence within a legal accessory structure on a legal parcel within the R-1, R-2, R-3, R-5 and UR zoning districts. No medical marijuana cultivation is permitted within three hundred feet of any school, child care center, park or playground. The distance between any marijuana cultivation and any school, child care center, park or playground shall be measured in a straight line, without regard to intervening structures, from the closest exterior wall of the detached accessory building in which the marijuana cultivation is occurring to the closest property line where the other building or activity is conducted. Except as provided in Chapter 17.38(E)(4), Medical Marijuana cultivation may be undertaken only by a qualified patient who must occupy the residence on the parcel proposed for cultivation as their primary residence. A qualified primary caregiver, as defined, may undertake cultivation of Medical Marijuana on behalf of his/her qualified patient(s), but only in a detached, fullyenclosed and secure accessory structure located on a parcel containing the primary caregivers or qualified patients primary residence. Cultivation shall only be permitted in a detached, fully-enclosed and secure accessory structure and said cultivation area, including the plant canopy, shall be limited to 80 square feet per parcel or residence, whichever is less. The cultivated marijuana may be used only by the qualified patient and not distributed, sold, given or transferred in any way to any other person or organization. The use of a detached, fully-enclosed and secure accessory structure for cultivation of Medical Marijuana shall not reduce the required parking required per Lakeport Municipal Code Chapter 17.23.. Outdoor cultivation shall be unlawful and a public nuisance for any person owning, leasing, occupying or having charge for possession of any parcel within any zoning district in the City of LAKEPORT. Indoor Cultivation within a residence shall be unlawful and a public nuisance with regard to any person owning, leasing, occupying or having charge for possession of any parcel within any zoning district in the City of LAKEPORT. From a public right-of-way there shall be no exterior evidence of Medical Marijuana cultivation located inside a detached, fully-enclosed and secure accessory structure.
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Development and Operational Standards: 1.

Draft Medical Marijuana Cultivation Ordinance

2.

The qualified patient or primary caregiver shall reside in the residence located on the parcel containing the detached, fully-enclosed and secure accessory structure where the Medical Marijuana cultivation occurs. The qualified patient or primary caregiver shall not cultivate Medical Marijuana in any other location within the incorporated City of LAKEPORT other than in the accessory structure located on the parcel containing his/her primary residence. The qualifying residence located on the property containing the detached, fullyenclosed and secure accessory structure in which Medical Marijuana is cultivated shall maintain kitchen, bathrooms, and primary bedrooms for their intended use and shall not be used for Medical Marijuana cultivation. Medical Marijuana cultivation shall not adversely affect the health or safety of nearby residents by creating dust, glare, heat, noise, noxious gasses, odor, smoke, traffic, vibration, or other impacts, or be hazardous due to use or storage of materials, processes, products or wastes. Residential accessory structures used for cultivation shall meet the following criteria: o The structure shall be provided with a locking door or doors. o If a secure structure is not feasible and the cultivation building is an unsecured structure then it shall additionally be surrounded by a secure solid six (6) foot high fence located within ten (10) feet of the unsecured structure and equipped with a lockable gate. o The structure shall be located in the rear yard portion of the lot and maintain a minimum of a ten (10) foot setback from the side and rear property lines and from any other building on the parcel. o Any accessory structure utilized for cultivation of marijuana shall be legally constructed with a building permit if it exceeds 120 square feet of size. No more than 80 square feet of floor area shall be used for the cultivation of marijuana. The plant canopy shall be contained within the 80 square feet of floor area. All electrical and plumbing fixtures shall be installed with a valid building permit from the City. Such building permits will only be issued to the owner of the property. If the resident is proposing to convert an existing accessory structure, or a portion of an existing structure, for cultivation of marijuana, an inspection will be required to ensure compliance with the ordinance. o Medical Marijuana cultivation lighting shall comply with the California Building, Electrical and Fire Codes as adopted by the City. o Flammable or volatile gas products or generators shall not be used within any detached structure used for the cultivation of medical marijuana. o Any detached, fully-enclosed and secure structure used for the cultivation of medical marijuana must have a ventilation and filtration system installed that shall prevent nuisance marijuana plant odors from exiting the interior of the structure. If a permanent, built-in ventilation and filtration system is installed, it shall be subject to the issuance of a building permit, approval by the Building Official and must be installed prior to commencing cultivation within the detached, fully-enclosed and secure structure.
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Draft Medical Marijuana Cultivation Ordinance

o Accessory structures utilized for cultivation shall be ventilated with odor control filters, and shall not create an odor, humidity or mold problem on the subject property or adjacent properties.
o

Other activities may occur within a detached fully-enclosed and secure accessory structure where medical marijuana is cultivated provided that the cultivation area within the structure, including the plant canopy, does not exceed 80 square feet of floor area and further provided that the cultivation area is segregated from all other building uses by permitted walls and all other conditions of this Chapter are satisfied.

7.

Wherever Medical Marijuana is grown, a copy of a current and valid, State-issued medical marijuana card or a current and valid physicians recommendation for medical marijuana must be kept available to immediately present to officers of the City and law enforcement officers upon request. Nothing in this Chapter shall be construed as a limitation on the Citys authority to abate any nuisance which may exist from the planting, growing, harvesting, drying, processing or storage of marijuana plants or any part thereof from any location, indoor or outdoor, including from within a detached, fully-enclosed and secure structure. Right of Entry: Persons designated by resolution as Code Enforcement Officers of the City are authorized to enter upon and inspect private properties to ensure compliance with the provisions of Chapter 17.38 of the LAKEPORT Municipal Code. Reasonable advance notice of any such entry and inspection shall be provided and, before entry, consent shall be obtained in writing from the owner or other person in lawful possession of the property. If consent cannot for any reason be obtained, an inspection warrant shall be obtained from a court of law prior to any such entry and inspection. In those cases where consent is denied, the City may seek to recover the costs it incurs in obtaining a warrant from the property owner and/or person in lawful possession of the property. Public Nuisance. The maintaining, cultivating or growing of marijuana upon private property within the City of LAKEPORT, unless in full compliance with the provisions of Chapter 17.38 of the LAKEPORT Municipal Code, is declared to be a public nuisance as defined in Chapter 370 of the California Penal Code and Chapter 8.22 of the LAKEPORT Municipal Code. Citable Offense: Every person who, in violation of the provisions of Chapter 17.38 of the LAKEPORT Municipal Code, maintains, permits or allows marijuana to be grown upon his or her property or premises, and every person occupying, renting or leasing the property or premises of another who maintains, permits or allows marijuana to be grown thereon in violation of this Chapter is guilty of an infraction punishable as set forth in Chapter 1.08.010 of the LAKEPORT Municipal Code. After written notice is provided to any such person of such violation, the continued existence of such violation for each and every day after the service of such notice shall be deemed a separate and distinct offense. Issuance of Citations: All persons designated by resolution as Code Enforcement Officers of the City are authorized to issue citations to persons deemed to be in violation of the provisions of Chapter 17.38 of the LAKEPORT Municipal Code.
6

8.

G.

Enforcement. 1.

2.

3.

4.

Draft Medical Marijuana Cultivation Ordinance

Such citations shall be expeditiously processed through use of the Administrative citation process or where appropriate through filing an infraction in the appropriate court of law. 5. Remedies Non-Exclusive. The remedies provided herein shall not be the exclusive means of enforcing the provisions of this Chapter nor the exclusive means available to the City to address problems associated with the cultivation of marijuana, whether for medical or other purposes. The City shall continue to have available to it the ability to pursue abatement of nuisances and other problems related to marijuana cultivation under California Penal Code Chapters 372 and 373a and other applicable provisions of law. The City may also pursue the recovery of its abatement costs in the manner provided by the LAKEPORT Municipal Code.

H.

Liability. The provisions of this Chapter shall not be construed to protect the property owner(s) of record for each legal parcel associated with the cultivation of Medical Marijuana, lessees, tenants, and other participants in the cultivation of Medical Marijuana, and members of collectives and/or cooperatives associated with the cultivation of Medical Marijuana, from prosecution pursuant to any laws that may prohibit the cultivation, sale, and/or possession of controlled substances. Moreover, cultivation, sale, possession, distribution, and use of marijuana remain violations of federal law as of the date of adoption of the ordinance creating this Chapter and this Chapter is not intended to, and does not protect any of the above described persons from arrest or prosecution under those federal laws. The property owner(s) of record for each legal parcel associated with the cultivation of Medical Marijuana, lessees, tenants, and other participants in the cultivation of Medical Marijuana, and members of collectives and/or cooperatives associated with the cultivation of Medical Marijuana, assume any and all risk and any and all liability that may arise or result under state and federal criminal laws from the cultivation of marijuana. Further, to the fullest extent permitted by law, any actions taken under the provisions of this Chapter by any public officer or employee of the City of LAKEPORT or City of LAKEPORT itself, shall not become a personal liability of such person or the liability of the City of LAKEPORT.

Section 2. If any provisions of this ordinance or its application to any person or circumstance are held invalid, the invalidity does not affect other provisions or applications of this ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. Section 3. All former ordinances including but not limited to Chapter 9.24 and resolutions, or parts thereof, conflicting or inconsistent with the provisions of this ordinance are hereby repealed. Section 4. This Ordinance shall be published in a newspaper of general circulation in the City of LAKEPORT, in the manner provided by Chapter 36933 of the Government Code of the State of California, and shall be effective 30 days after its passage. The foregoing Ordinance was introduced at a regular meeting of the City Council of the City of LAKEPORT held on May 21, 2013 and duly adopted at a regular meeting of the City Council of the City of LAKEPORT held on ______________ by the following vote:
7

Draft Medical Marijuana Cultivation Ordinance

AYES: NOES: ABSTAIN: ABSENT: ___________________________ Thomas Engstrom, Mayor ATTEST: _______________________________ KELLY BUENDIA, Deputy Clerk APPROVED AS TO FORM: ___________________________ STEVEN J. BROOKES, City Attorney

Exhibit 3

CITY OF LAKEPORT PLANNING COMMISSION

STAFF REPORT
RE: OA 13-02 / Draft Ordinance / Medical Marijuana Cultivation MEETING DATE: May 8, 2013

SUBMITTED BY: Andrew Britton, Planning Services Manager PURPOSE OF REPORT: Information only Discussion Commission Action

WHAT IS BEING ASKED OF THE PLANNING COMMISSION: Public hearing, discussion and recommendation to the City Council regarding the adoption of an ordinance that would enact Chapter 17.38 of the Lakeport Municipal Code and establish regulations pertaining to the cultivation of medical marijuana. BACKGROUND INFORMATION: Health and Safety Code Section 11362.5 et. seq., known as the Compassionate Use Act of 1996, (CUA), adopted by the voters in the State of California, allows a person to use marijuana for medical purposes with a doctors recommendation without violating state criminal laws concerning the use, possession or cultivation of marijuana. Health and Safety Code Section 11362.7 et. seq., known as the Medical Marijuana Program Act, (MMPA), was adopted by our state legislature and offers some clarification on the scope of the Compassionate Use Act of 1996 and allowed cities and other governing bodies to adopt and enforce rules and regulations related to medical marijuana. Health and Safety Code Section 11362.5(2)(d) says, in part: [state regulations imposing punishments] relating to the possessionand cultivationof marijuana shall not apply to a patient, or to a patients primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. Further, Health and Safety Code Section 11362.765(a) reads: [qualified patients or their primary caregivers] shall not be subject, on that sole basis, to criminal liability under [specified state regulations imposing punishments for marijuana cultivation, possession and use]. The state law is very clear that patients with a recommendation from their doctor may possess, cultivate and use marijuana for medical purposes. Marijuana remains an illegal drug in the eyes of the federal government; however, the current administration has chosen to not devote federal law-enforcement resources to enforcing marijuana laws in
___________________________________________________________________________________________________________ Meeting Date: May 8, 2013 Page 1 Agenda Item VI. A.

states that allow the use of medical marijuana provided the user is in compliance with state law. As noted, cultivation is specifically mentioned as being allowed for medical purposes. In addition, a California Supreme Court ruling found that a state or local jurisdiction cannot limit the amount of medical marijuana that a qualifying individual may possess beyond that which has been recommended by a physician. This ruling seems to clarify that a local jurisdiction must be careful to not deny activities specifically allowed in the CUA. However, the courts have long since allowed local governments flexibility to regulate land uses in the interest of health and safety and the establishment of guidelines for marijuana cultivation is appropriate. In February 2013, in Browne v. County of Tehema, the California Third District Court of Appeal upheld the County of Tehemas ordinance regulating the cultivation of medical marijuana, finding that the ordinance does not conflict with either the CUA or the MMPA. Consistent with previous appellate opinions regarding medical marijuana collectives and cooperatives, the Court explained that neither the CUA nor the MMPA grants qualified patients or individuals with a medical marijuana identification card an unfettered right to cultivate marijuana for medical purposes. Consequently, because the ordinance did not ban the cultivation of marijuana outright, the judgment of the trial court was affirmed. Furthermore, the appellate court affirmed a local governments right to declare cultivation of marijuana in violation of local ordinances to be a nuisance and to proceed with nuisance abatement. Tehema Countys ordinance included restrictions on the number of marijuana plants that could be cultivated as well as the location of cultivation activities. The Appellate Court found the ordinance did not conflict with state law because the ordinance merely regulated the location and quantity, but did not prohibit, the cultivation of marijuana. For example, the CUA specifically says in Section 11362.5(b)(2): 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. Therefore, the City may impose regulations to ensure the safety and well-being of our residents, being careful not to unreasonably limit the rights of qualified patients under the CUA and MMPA. Despite several challenges, the Courts have not yet found that balance. With little guidance from the Courts, there is no action the City may impose that is 100% safe from successful legal challenge. Regardless, the City should step forward and impose regulations necessary to keep our residents safe and unburdened by nuisance odors and/or other negative impacts while seeking to protect ourselves from expensive legal challenges. In recent years the City has received numerous complaints from Lakeport residents regarding the cultivation of medical marijuana. The Police Department has conducted checks at numerous locations in the City and has received reports of thefts or attempted thefts of medical marijuana. One prior incident resulted in a homeowner firing several shots in the air to scare off the suspects who he thought were trying to steal his medical marijuana. In 2007, subsequent to the gunfire incident, the City adopted an ordinance (Municipal Code Chapter 9.24) which completely prohibits marijuana cultivation inside the City. The Citys current regulations do not follow State law (the CUA and MMPA) and therefore are basically unenforceable and subject to legal challenges. Outdoor cultivation of marijuana has caused neighbors to complain about very strong pungent odors (a skunk-like odor) from maturing plants that encroach into their adjacent outdoor yard areas. The strength of the odor is reported to be so strong as to deprive
___________________________________________________________________________________________________________ Meeting Date: May 8, 2013 Page 2 Agenda Item VI. A.

them of enjoyment of their yards. Complaints have also been received from residents of adjacent units in multifamily residences complaining of obnoxious odors from indoor marijuana cultivation. Damage to the interior of residences from the odor, mold and water has been reported by landlords. Most of these hazards are particularly acute in the fall as the plants mature before harvest. Indoor marijuana cultivation can also occur throughout the year causing continual odor problems and other related issues (mold growth and interior moisture damage). As a result of the nuisance complaints and other public safety issues associated with the cultivation of marijuana in our community, the City Council directed City staff to develop a new marijuana cultivation ordinance that is consistent with the CUA and MMPA but contains reasonable regulations that are designed to address public safety concerns and potential nuisance issues. Several City staff members, including representatives from the Community Development and Police Departments, met in November 2012 to discuss the development of a new ordinance. Medical marijuana cultivation ordinances from other California cities and counties were reviewed and there was a consensus that the cultivation ordinance adopted by the City of Anderson was a good starting point. On February 5, 2013, a draft marijuana cultivation ordinance was to be considered by the City Council. However, due to the fact that the proposed ordinance will be a chapter of the Citys Zoning Ordinance, State law and the Citys Municipal Code requires it to be reviewed and approved by the Planning Commission prior to consideration by the City Council. Although the City Council did not formally review the draft ordinance in February, the Council requested the formation of an ad-hoc committee consisting of two City Council members, City staff and residents of Lakeport who expressed an interest in this issue. A committee was formed and began meeting in early March. The committee included City staff (Planning Services Manager, Police Chief and Building Official), two City Council members, and three Lakeport residents. The City Attorney also attended the committee meetings as a non-voting member and served as legal counsel. The committee met a total of four times in March and April. The draft ordinance prepared by City staff was reviewed as were other cultivation ordinances and a wide variety of information related to medical marijuana cultivation. The background materials reviewed by the committee have been shared with the Planning Commission and a web link to these materials has been posted on the Citys website (Planning Commission homepage, current staff reports and background information folder). Ken Wells, Chief of the Lakeport Fire Protection District, attended the March 20 th meeting and provided a letter (Attachment 1) describing his agencys position on indoor marijuana cultivation activities. The letter states that indoor cultivation (inside a residence) is a public safety problem and that the Chief opposes these activities. The letter includes many examples of residential fires related to indoor cultivation, including one in the Lakeport Fire District and many others around Lake County. The initial draft ordinance was revised based on recommendations from the committee members. The committee held a final meeting on April 17 at which time the draft ordinance was unanimously approved to be referred to the Planning Commission for their consideration.
___________________________________________________________________________________________________________ Meeting Date: May 8, 2013 Page 3 Agenda Item VI. A.

DISCUSSION: This proposed ordinance (Attachment 2) restricts the cultivation of medical marijuana in residential areas to detached accessory buildings; limits the cultivation area to a maximum of 80 square feet; requires security and odor control measures to be in place; addresses the proximity of marijuana cultivation activities to schools, parks and childcare facilities; and includes other measures intended to address the potential problems associated with the cultivation of medical marijuana. The proposed ordinance is the result of substantial input by the affected stakeholders, including City staff, elected officials, and proponents/advocates for the use and/or cultivation of medical marijuana. Staff believes the proposed ordinance achieves an appropriate balance between the applicable State laws (the CUA and MMPA) governing the cultivation of medical marijuana and the Citys legal right to establish reasonable regulations that promote public health and safety and the right for residents to be comfortable and free of nuisance odors or other detrimental effects resulting from marijuana cultivation. POINTS OF CONSIDERATION: Staff has reviewed the Citys General Plan for policies that would support or inhibit this type of ordinance. The Land Use Element includes a policy which promotes the facilitation of safe residential neighborhoods:

Policy LU 1.4: Safety. Facilitate safe, quiet residential neighborhoods free of

natural and manmade hazards.

The background materials provided to the Planning Commission (and posted on the Citys website) include many media reports of thefts, burglaries, violent home invasions, residential fires and other serious public safety-related problems associated with marijuana cultivation activities in northern California. Several of the criminal incidents have occurred in Lake County, including a home invasion in Kelseyville in March 2013. Staff believes that the proposed ordinance will regulate marijuana cultivation activities in a manner that will facilitate safer residential neighborhoods in Lakeport. It is also important to note that the Citys existing marijuana - related ordinance (Municipal Code Chapter 9.24) will be repealed if the ordinance is approved by the City Council. OPTIONS: 1. Accept the proposed draft ordinance that would enact Chapter 17.38 of the Lakeport Municipal Code and establish regulations pertaining to the cultivation of medical marijuana and recommend its adoption to the City Council based on the finding that the proposed ordinance is in the best interest of the City of Lakeport and its residents. 2. Propose revisions to the draft ordinance and request that it be returned to the Planning Commission for further discussion. SUGGESTED MOTION: See options listed above.
Attachments 1. March 20, 2013 Letter from Lakeport Fire Protection District 2. Draft Ordinance

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CITY OF LAKEPORT
City Council Lakeport Redevelopment Agency City of Lakeport Municipal Sewer District

STAFF REPORT
RE: Nominate Voting Delegate and Alternate(s) for League of California Cities Conference September 18-20, 2013 SUBMITTED BY: Margaret Silveira, City Manager PURPOSE OF REPORT: Information only Discussion Action Item MEETING DATE: 05/21/2013

WHAT IS BEING ASKED OF THE CITY COUNCIL/AGENCY/BOARD: The City Council is being asked to nominate a voting delegate and alternate(s) for the League of California Cities 2013 Annual Conference. BACKGROUND: The League of California Cities 2013 Annual Conference is scheduled for September 18-20, 2013, in Sacramento. An important part of the Annual Conference is the Annual Business meeting, which is scheduled for noon on Friday, September 20. At this meeting, the League membership considers and takes action on resolutions that establish League policy. In order to vote at the Annual Business meeting, each city council must designate a voting delegate. In the event that the designated voting delegate is unable to serve in that capacity, each city may appoint up to two alternate voting delegates. The Voting Delegate form must be returned to the League's office no later than August 15 so that voting delegate/alternates records may be established prior to the conference. The voting delegate and alternate(s) must be registered to attend the conference. At least one must be present at the Business Meeting and in possession of a voting card in order to cast a vote. DISCUSSION: Each member city has a right to cast one vote on matters pertaining to League Policy. In order for the City of Lakeport to vote, a delegate must be designated. It is my understanding that Mayor Pro Tem Mattina and Mayor Engstrom are planning to attend the conference and that Council Members Spillman and Parlet are unsure if they will be attending. OPTIONS: The City has the option of choosing not to designate a voting member. FISCAL IMPACT: None $ Account Number: Comments:

SUGGESTED MOTIONS: Move to nominate ______________ as the voting delegate for the League of California Cities Annual Conference to be held September 18-20, 2013, in Sacramento.
Meeting Date: 05/21/2012 Page 1 Agenda Item #VI.B.1.