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19 Inter Office Memo

DATE: TO: FROM:

August 9, 2011 Board of Supervisors Alan Weaver, Director ~-~1 Department of Public Works and Planning
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SUBJECT:

Resolution No. 12251- Amendment to Text Application No. 364 (Applicant Fresno County) ACTION

RECOMMENDED

Conduct public hearing and adopt Ordinance approving Amendment to Text Application No. 364 amending Sections 803.1 and 843.1 of the Fresno County Zoning Ordinance relating to Medical Marijuana Cultivation Facilities in the M-1 (Light Manufacturing), M-2 (General Industrial) and M-3 (Heavy Industrial) Zoning Districts. BACKGROUND / DISCUSSION

An Amendment to the Zoning Ordinance is a legislative act requiring final approval from your Board. If approved, the amended Zoning Ordinance would then become effective 30 days after adoption. On July 13, 2010, your Board adopted Resolution of Intention No.1 0-269 initiating a Zoning Ordinance Text Amendment relating to medical marijuana, along with directing staff to prepare a comprehensive Ordinance addressing possession, consumption, distribution, and cultivation of medical marijuana in the unincorporated areas of Fresno County. Also, on July 12, 2011, your Board approved the first reading of the proposed Medical Marijuana Ordinance and is scheduled to consider the second reading on August 9, 2011. As proposed by staff and consistent with your Board's July 12, 2011 hearing, approval of Amendment to Text Application No 364 would define and add Medical Marijuana Cultivation Facility as use permitted in the County's M-1, M-2, and M-3 Zoning Districts, subject to licensing requirements under Chapter 6.6 of Title 6 of the County Ordinance Code. On July 21,2011, the Planning Commission considered the subject application. As part of the public testimony portion of the hearing, a representative of the City of Selma spoke in opposition to the proposal indicating that the Selma City Council voted to oppose Medical Marijuana Cultivation Facilities within one-half mile of the City or within Selma's Sphere of Influence. Selma staff indicated that they were not made aware of the public hearings and approval of the proposal would negatively impact joint efforts to improve and beautify the Golden State Corridor. Selma staff also noted that the City is currently working with a major commercial

Board of Supervisors August 9, 2011 Page 2 tenant and is concerned that if such a facility is located nearby, that tenant would relocate to Kern County. In addition, one letter was received from the City of Fowler requesting that two provisions be added to the proposed Ordinance requiring that if an application for a License and/or Site Plan Review Application is filed for a Medical Marijuana Cultivation Facility within their Sphere of Influence that Fowler be notified at least 60 days prior to formal consideration of the matter and be provided the opportunity to comment upon the application, including a request that the County consider the imposition of additional Operational Conditions to alleviate potential adverse effects upon the City. In addition, the City requested that notification be provided to individuals applying for a Medical Marijuana Cultivation Facility Business License that the facility, if approved in the County, will not be grandfathered in as a legal non-conforming use upon annexation, and instead, will be subject to the City's Ordinances pertaining to medical marijuana. Upon consideration of the staff presentation, testimony and correspondence, the Planning Commission voted unanimously (seven to zero) to recommend that your Board approve Amendment to Text Application No. 364, with direction to staff to meet with concerned cities prior to today's Board hearing. As of the date of the drafting of this Agenda Item, staff is coordinating a meeting with the cities that have expressed concern and will report the outcome of the meeting to your Board. As it relates to the City of Fowler's request, staff is not opposed to the City's request; however, staff does not recommend that the proposed provisions be made part of the Ordinance because currently all Site Plan Review Applications within a city's Sphere of Influence are routed to each affected city (and staff will continue to do this), and each City may have differing provisions relating to the legal status of an existing use upon annexation. Rather, staff recommends that your Board provide direction for staff to include a general notification regarding the issue of continued use upon annexation on the Medical Marijuana Cultivation Facility Business License Application form. REFERENCE BAI BAI SAl SAl SAl BAI BAI MATERIAL

#13, July 13, 2010 #9, August 24, 2010 #6, September 14, 2010 #12, October 26, 2010 #9, December 7,2010 #4, February 1, 2011 #6, July 12, 2011

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Agenda Item

DATE: TO: FROM: SUBJECT:

August 9,2011 Board of Supervisors Planning Commission Resolution No. 12251 - Amendment to Text Application No. 364 Applicants: Request: Fresno County Amend Sections 803.1 and 843.1 of the Fresno County Zoning Ordinance relating to Medical Marijuana Cultivation Facilities in the M-1 (Light Manufacturing), M-2 (General Industrial) and M-3 (Heavy Industrial) Zoning Districts.

PLANNING COMMISSION ACTION: At its hearing of July 21,2011, the Commission considered the Staff Report and public testimony (summarized in Exhibit "A"). A motion was made by Commissioner Ferguson and seconded by Commissioner Mendes to forward Amendment to Text Application No. 364 to the Board of Supervisors with a recommendation for approval with direction to staff to meet with concerned cities and report the outcome of said meeting to the Board of Supervisors at its August 9, 2011 hearing. This motion passed on the following vote:

ADMINISTRATIVE OFFICE REVIEW_---l'~=.:'-"*"~"""'L=-·--'fAt""""'-....Ioo!\,=r"'A.r:...=.---------page BOARD ACTION: DATE APPROVED AS RECOMMENDED

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Board of Supervisors August 9,2011 Page 2

VOTING:

Yes:

Commissioners Rocca, Yates None

Ferguson, Mendes, Borba, Gill, Niswander,

No: Absent: Abstain:

Commissioner Goodman None

ALAN WEAVER, DIRECTOR Department of Public Works and Planning Secretary-Fresno County Planning Commission
I

Attachments

RESOLUTION NO. 12251 EXHIBIT "A" Amendment to Text Application No. 364 Staff: The Fresno County Planning Commission considered the Staff Report dated July 21,2011, and heard a summary presentation by Department staff and staff from the Sheriff's Office. County staff presented the Staff Report and described the proposal and offered the following information: On July 13, 2010 and on September 14,2010, the Board of Supervisors adopted separate Interim Urgency Ordinances prohibiting new Medical Marijuana Dispensaries and outdoor cultivation pending completion of a compressive Medical Marijuana Ordinance. On July 12, 2011, the Board of Supervisors considered and approved the first reading of the proposed Medical Marijuana Ordinance. The Ordinance addresses possession, consumption, distribution, and cultivation of medical marijuana. The proposed Ordinance limits cultivation of medical marijuana to the County's M-1, M-2 and M-3 Industrial Zone Districts. Staff is not opposed to the City of Fowler's request; however, it is recommended that these provisions not be made part of the Ordinance because all Site Plan Review Applications within a city's Sphere of Influence are already routed to each effected city and each city may have differing provisions relating to the status of an existing use upon annexation. The proposed Medical Marijuana Cultivation Facilities are required to meet operational, separation and security requirements. Medical Marijuana Cultivation Facilities are limited to a maximum of 99 marijuana plants. Sheriffs Office: Sheriff's staff presented the following information: The Sheriff supports approval of the proposed Ordinance.

Applicant:

No one wants this type of use in their backyard. Today, marijuana continues to be illegal under state and federal law. However, with passage of Proposition 215, limited protection was provided to qualified patients and primary caregivers. Unfortunately, there are not state-wide regulations, so individual cities and counties have to adopt their own regulations. The Medical Marijuana Ordinance would prohibit dispensaries in Fresno County. After the City of Fresno adopted an Ordinance prohibiting dispensaries in the City, the unincorporated County islands exploded with new dispensaries. There is current a dispensary located across the street from an elementary school. The only way we can eradicate marijuana grows is to have probable cause or demonstrate the grows are not being grown by either qualified patients or primary caregivers. Others: A representative of the City of Selma spoke in opposition to the proposal and offered the following information: The Selma City Council voted to oppose Medical Marijuana Cultivation Facilities within one-half mile of the City or within Selma's Sphere of Influence. Selma was not made aware of the public hearings and approval of the proposal would negatively impact joint efforts to improve and beautify the Golden State Corridor. Selma is also current working with a major commercial tenant and is concerned that if such a facility is located nearby, that tenant would relocate to another city. Under the City/County Memorandum of Understanding, the County is required to consult with the cities on these types of matters. The cities will be impacted when properties containing these facilities are annexed. The County should investigate the possibility of designating light manufacturing sites away from the cities to accommodate this proposed use.

Correspondence:

One letter was received from the City of Fowler requesting that two provisions be added to the proposed Ordinance as follows: If an application for a License and/or Site Plan Review Application is filed for a Medical Marijuana Cultivation Facility within their Sphere of Influence, that the City be notified at least 60 days prior to formal consideration of the matter and be provided the opportunity to comment upon the application, including a request that the County consider the imposition of additional Operational Conditions to alleviate potential adverse effects upon the City; and Notification shall be provided to individuals applying for a Medical Marijuana Cultivation Facility that the facility will not be grandfathered in as a legal non-conforming use upon annexation, and instead, will be subject to the City's Ordinances pertaining to medical marijuana.

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Items\2011 \OB-09-11\AT364_Al.doc

County of Fresno
DEPARTMENT OF PUBLIC WORKS AND PLANNING ALAN WEAVER DIRECTOR

Planning Commission Staff Report Agenda Item No.6 July 21, 2011
SUBJECT: Amendment to Text Application No. 364

Amend Sections 803.1 and 843.1 of the Fresno County Zoning Ordinance relating to Medical Marijuana Cultivation Facilities in the M-1 (Light Manufacturing), M-2 (General Industrial) and M-3 (Heavy Industrial) Zoning Districts. APPLICANT: STAFF CONTACT: Fresno County Bernard Jimenez, Manager

(559) 600-4497
RECOMMENDATION:
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Consider and recommend approval of Amendment to Text Application No. 364; and Direct the Secretary to prepare a Resolution forwarding the Commission's recommendation for approval to the Board of Supervisors.

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EXHIBITS: 1. 2. 3. Proposed Section 803.12 - SPECIFIC DEFINITIONS GROUP K Proposed Section 843.1 - USES PERMITTED Board of Supervisor's Agenda Item #6 - July 12,2011

IMPACTS ON JOB CREATION: Approval of the recommended action would not affect the efforts to create jobs in Fresno County.

DEVELOPMENT SERVICES DIVISION
2220 Tulare Street. Suites A & B I Fresno. California 93721 I Phone (559) 600-4497 1 6(){)-4022 1600-4540 I FAX 600-42(){) Equal Employment Opportunity. Affirmative Action. Disabled Employer

ENVIRONMENTAL

ANALYSIS:

It has been determined, pursuant to Section 15061 (b)(3) of the State CEQA Guidelines that the project will not have a significant effect on the environment and is not subject to the California Environmental Quality Act (CEQA). PUBLIC NOTICE: Notification of today's hearing was published in the Fresno Business Journal on July 8, 2011. PROCEDURAL CONSIDERATIONS:

Adoption of a Zoning Ordinance Amendment is a legislative act requiring action by the Board of Supervisors. The Planning Commission's action is advisory to the Board. The Board is scheduled to hear this matter on August 9, 2011. The Amendment, upon adoption, will become effective 30 days later. BACKGROUND: On July 13,2010, the Fresno County Board of Supervisors considered and adopted an Interim Urgency Ordinance prohibiting the establishment of new Medical Marijuana Dispensaries in the unincorporated areas of Fresno County pending completion of a Zoning Ordinance Text Amendment initiated on the same day (Resolution of Intention No.1 0-269). The Board also directed staff to prepare a comprehensive Ordinance addressing possession, consumption and distribution, and cultivation of medical marijuana in Fresno County. On September 14, 2010, the Board extended said Interim Urgency Ordinance and it remains in effect until July 13,2012. On September 14, 2010, the Board also considered and adopted a second Interim Urgency Ordinance prohibiting the outdoor cultivation of medical marijuana collectives in all Zone Districts in the unincorporated areas of Fresno County pending completion of Development Standards intended to regulate such activity. On October 26,2010, the Board extended said Interim Urgency Ordinance and it remains in effect until September 14, 2011. On December 7, 2010, the Board considered and provided direction to staff regarding regulating Medical Marijuana Dispensaries in the unincorporated areas of Fresno County. The Board considered testimony from the Sheriffs Office staff, and from the public both in support and opposition to dispensaries. At the conclusion of the hearing, the Board directed staff to proceed with the preparation of the Medical Marijuana Ordinance prohibiting Medical Marijuana Dispensaries.

Staff Report - Page 2

On July 12, 2011, the Board considered and approved the first reading of an Ordinance to amend the Fresno County Ordinance Code by adding Chapter 6.6 (Business License and Regulations) and Chapter 11 (Public Peace, Morals and Welfare) thereby adopting regulations relating to possession, consumption and distribution, and cultivation of medical marijuana (See Exhibit 1). The second reading of the Ordinance is also scheduled for August 9, 2011. ANALYSIS I DISCUSSION: In 1996, the voters passed Proposition 215, The Compassionate Use Act, permitting seriously ill persons to use medical marijuana providing they first obtain a doctor's recommendation. Proposition 215 also provided a defense for doctors against professional or legal sanctions for recommending marijuana. In 2004, the Legislature clarified The Compassionate Use Act with the adoption of SB 420 (Medical Marijuana Program). The intent of SB 420 is to: 1. Clarify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers; and 2. Promote uniform and consistent application of the act among the counties within the state; and 3. Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. Since the adoption of SB 420, many California jurisdictions have experienced the proliferation of medical marijuana dispensaries and cultivation grows located in a variety of locations with insufficient regard for public health, safety, welfare, or land use compatibility. Land use issues include loitering, trespass, and compatibility with schools, parks and other places where children are present. Other than the Interim Urgency Ordinances adopted by the Board in 2010, the County has no Development Standards applicable to Medical Marijuana Facilities. There are no license requirements, and the Zoning Ordinance makes no reference to medical marijuana. With the anticipated addition of Chapter 6.60 to the County Ordinance Code in August, the Board will have established licensing requirements for Medical Marijuana Cultivation Facilities. This chapter defines Medical Marijuana Cultivation Facilities, where the use can be located and operational and physical improvement requirements, including the requirement that all cultivation of medical marijuana shall at all times occur within a secure, locked, and fully enclosed structure, including a ceiling, roof or top. Section 6.60.030 of the proposed Ordinance indicates that Medical Marijuana Cultivation Facilities shall be a minimum of 1,000 feet from any school, public park or playground, recreation area, sports facility, adult business, day care facility, church, chapel, youth-orientated

Staff Report - Page 3

establishment, places of worship or other Medical Marijuana Cultivation Facility. Chapter 6.60.30 also specifies that Medical Marijuana Cultivation Facilities are only allowed within the County's M-1, M-2 and M-3 Industrial Zoning Districts. Since Medical Marijuana Cultivation Facilities will be defined in Section 10.60.010 of the Ordinance Code, and the Ordinance Code provides "location requirements" for Cultivation Facilities, these Standards are not being duplicated in the Zoning Ordinance. By adding a specific entry for Medical Marijuana Facilities to the "USES PERMITTED" Section of the M-1 District (Note: the M-2 and M-3 Districts allow all the permitted uses included in the M-1 District), Medical Marijuana Cultivation Facilities will be prohibited in all Zoning Districts except the M-1, M-2 and M-3 Districts. State law requires that there be consistency between the General Plan (the document which defines the long-term development objectives) and the Zoning Ordinance. The consistency requirement applies to the text of the Zoning Ordinance in that the uses authorized by the Ordinance must be compatible with the Goals and Policies of the General Plan. The Urban Industrial Policies of the General Plan provides for manufacturing and processing activities. One of the objectives of the industrial designation is to direct development to sites where conflicts with other land uses are minimized. The use authorized under this proposal is limited exclusively to Medical Marijuana Cultivation Facilities and the intent is to separate this type of land use from sensitive uses, including residences, schools, churches, recreational parks and other similar uses. Based upon the proposed separation requirements contained in the license provisions of the Ordinance Code, there are approximately 34 sites in Fresno County that could potentially accommodate cultivation operations. CONCLUSION: Staff recommends that Medical Marijuana Cultivation Facilities as licensed under Chapter 6.60 of the Fresno County Ordinance Code be added to the M-1, M-2 and M-3 Zoning Districts (See Exhibit 3). (Note: Bold and underline Sections are proposed as additions to the Ordinance and strikethrough sections are to be deleted). PLANNING COMMISSION Recommended • • Motion MOTION:

Approve Amendment to Text No. 364 as proposed; and Direct the Secretary to prepare a Resolution forwarding the Commission's recommendation for approval to the Board of Supervisor's.
County Ordinance and Staff Report\AT 364 SR.doc

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Staff Report - Page 4

Exhibit 1
SECTION 803.12 - SPECIFIC DEFINITIONS GROUP K. (Amended by Ord. 490.133 adopted 6-7-77)

MAJOR STREET OR MAJOR HIGHWAY shall mean a highway with intersections at grade and on which partial control of access and geometric design and traffic control measures are used to expedite the safe movement of through traffic. Major streets or major highways shall be designated in the Circulation Element of the General Plan of the County of Fresno. MARQUEE shall mean a permanent roofed structure attached to and supported by the building and projecting over public property. MEDICAL MARIJUANA CULTIVATION FACILITY as defined in Chapter 10.60.10 of Title 10 of County Ordinance Code. This does not include "Medical Marijuana Dispensary", which is a prohibited use in all zoning districts, as defined in Chapter 10.60.10 of Title 10 of County Ordinance Code. (Added by Ord. adopted 8-9-11) MEDICAL OFFICE shall mean any building or portion of a building used or intended to be used as an office for the practice of any type of medicine, including chiropractics, dentistry or optometry. It shall also include clinics of a medical or dental nature. MEDICAL OR DENTAL CLINIC shall mean the same as "Medical Office." MOBILEHOME shall mean a "Trailer" in excess of eight feet wide or forty feet long designed to be used with or without a permanent foundation, and equipped to contain one (1) "Dwelling Unit". (Amended by Ord. 490.175 re-adopted 5-29-79) MOBILEHOME PARK shall mean an area or tract of land developed and operated in accordance with Title 25, California Administrative Code, where two (2) or more mobile home spaces are rented or leased or held out for rent or lease to accommodate "mobilehomes" used for human habitation. (Added by Ord. 490.175 re-adopted 5-29-79) MOBILEHOME PARK SERVICES shall mean commercial services available within the park only to residents, their guests and park employees. The Special Standards of Section 855-N (Mobilehome Park Services) shall apply. (Added by Ord. 490.188 adopted 10-29-79) MOTEL shall mean a building or group of buildings used for transient residential purposes containing guest rooms or dwelling units with automobile storage space provided in connection therewith, which building or group is designed, intended, or used primarily for the accommodation of transient automobile travelers, including groups designated as auto cabins, motor courts, motor hotels and similar designation. MOTOR HOME shall mean a "Recreational Vehicle" in which the portions providing motive power and habitable space are constructed as a single unit. (Added by Ord. 490.175 readopted 5-29-79) NONCONFORMING BUILDING shall mean a building or portion thereof which was lawful when established but which does not conform to subsequently established zoning or zoning regulations. (See Section 876 for regulations.)

Exhibit 2
SECTION 843 "M-1" -LIGHT MANUFACTURING DISTRICT

The "M-1" (Light Manufacturing) District is intended to provide for the development of industrial uses which include fabrication, manufacturing, assembly or processing of material that are in already processed form and which do not in their maintenance, assembly, manufacture or plant operation create smoke, gas, odor, dust, sound, vibration, soot or lighting to any degree which might be obnoxious or offensive to persons residing in or conducting business in either this or any other district.

SECTION 843.1 - USES PERMITTED The following uses shall be permitted in the "M-1" District. All uses shall be subject to the Property Development Standards in Section 843.5. A. RELATED USES 1. Advertising structures. 2. Animal hospitals and shelters. 3. Automobile repairs (conducted within a completely enclosed building). 4. Automobile re-upholstery. 5. Automobile service stations. 6. 7. Banks. Caretaker's residence, which may include an office for the permitted industrial use. (Amended by Ord. 490.152 adopted 7-10-78) Commercial uses that are incidental to and directly related to and serving the permitted industrial uses. Delicatessens.

8.

9.

10. Electrical supply. 11. Equipment rental or sale 12. Farm equipment sales and service. 13. Frozen food lockers. 14. Grocery stores. 15. Boarding and training, breeding and personal kennels. (Amended by Ord. 490.36 adopted 7-25-67)

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16. Ice and cold storage plants 17. Mechanical car, truck, motor and equipment wash, including self-service. (Added by Ord. 490.23 adopted 12-28-65) 18. Newspaper publishing 19. Offices: a. Administrative. b. Business. c. General. d. Medical e. Professional 20. New and used recreational vehicle sales and service. (Added by Ord. 490.129 adopted 1-11-77) 21. Restaurants. 22. Signs, subject to the provisions of Section 843.5-K. 23. Truck service stations. 24. Truck driver's training schools. (Amended by Ord. T-070-341 adopted 4-23-02) B. ADULT BUSINESSES that are licensed under Chapter 6.33 of Ordinance Code, including uses such as: 1. 2. 3. 4. 5. 6. Bars. Restaurants. Theaters. Video stores. Book stores. Novelty sales. (Added by Ord. T-074-346 adopted 7-30-02)

C.

MANUFACTURING 1. Aircraft, modification, storage, repair and maintenance 2. Automotive: a. b. c. d. e. Painting. Automotive reconditioning. Truck repairing and overhauling. Upholstering. Battery assembly (including repair and rebuilding) limited to the use of previously manufactured components.

(Added by Ord. 490.33 adopted 1-17-67)

3. 4. 5. 6.

Boat building and repairs. Book binding. Bottling plants. Ceramic products using only previously pulverized clay and fired in kilns only using electricity or gas. Commercial grain elevators. Garment manufacturing.

7. 8.

9. Machinery and shop (no punch presses over twenty (20) tons or drop hammers): a. Blacksmith shops. b. Cabinet or carpenter shops. c. Electric motor rebuilding. d. Machine shops. e. Sheet metal shops. f. Welding shops. g. Manufacturing, compounding, assembly or treatment of articles or merchandise from previously prepared metals. 10. Manufacturing, a. b. c. d. e. f. compounding, processing, packing or treatment of such products as:

Bakery goods. Candy. Cosmetics. Dairy products. Drugs. Food products (excluding fish and meat products, sauerkraut, wine, vinegar, yeast and the rendering of fats and oils) if connected with an adequate sewer system. g. Fruit and vegetables (packing only). h. Honey extraction plant. i. Perfume. j. Toiletries. 11. Manufacturing, compounding, assembly or treatment of articles or merchandise from the following previously prepared materials: a. Canvas. b. Cellophane. c. d. Cloth. Cork.

e. Felt. f. Fibre. g. Fur. h. Glass. i. Leather. j. Paper, no milling.

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Precious or semi-precious stones or metals. Plaster. Plastic. Shells. Textiles. Tobacco. Wood. Yarns. and maintenance of electric or neon signs

12. Manufacturing 13. Novelties. 14. Planing mills.

15. Printing shops, lithographing, publishing. 16. Retail lumber yard. 17. Rubber and metal stamps. 18. Shoes. 19. Stone monument works. 20. Storage yards: a. b. c. d. e. f. g. Contractors storage yard. Draying and freight yard. Feed and fuel yard. Machinery rental. Motion picture studio storage yard. Transit storage. Trucking yard terminal, except freight classifications.

21. Textiles. 22. Wholesaling and warehousing. 23. Wholesale meat cutting and packing, provided there shall be no slaughtering, fat rendering or smoke curing. (Added by Ord. 490.21 adopted 9-14-65) D. PROCESSING 1. Creameries. 2. Laboratories. 3. Blueprinting and photocopying. 4. Laundries.

5. Carpet and rug cleaning plants.

6. Cleaning and dyeing plants.
7. Tire retreading, recapping, rebuilding.

8. Lumber drying kilns; gas, electric or oil fired only.
(Added by Ord. 490.77 adopted 8-17-72) 9. Feather cleaning and storage of cleaned feathers within an enclosed structure. (Added by Ord. 490.82 adopted 11-21-72) E. FABRICATION 1. Rubber, fabrication of products made from finished rubber. 2. Assembly of small electric and electronic equipment. 3. Assembly of plastic items made from finished plastic. F. OTHER USES 1. Agricultural uses. 2. Communication equipment buildings.

3. Electric transmission substations. 4. Off-street parking.

5. Medical Marijuana Cultivation Facility licensed under Chapter 6.6 of Title 6 of County Ordinance Code. (Added by Ord. adopted 8-9-11) & 6.Public utility service yards with incidental buildings. &.-7.Electric distribution substations. 7,.8.Temporary or permanent telephone booths. 8,,9.Water pump stations.

Exhibit 3

6

Agenda Item

DATE: TO: FROM:

July 12, 2011 Board of Supervisors

Alan Weaver, Director Department of Public Works and Planning Margaret Mims, Sheriff

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SUBJECT:

Medical Marijuana Ordinance

RECOMMENDED ACTION: Conduct first hearing on proposal to add Chapter 6.6 to Title 6, Business License and Regulations, and Chapter 11 to Title 10. Public Peace, Morals and Welfare to the Fresno County Ordinance Code thereby adopting regulations relating to possession, consumption, distribution, and cultivation of medical marijuana. Set second hearing for August 9,2011, and waive reading in its entirety. Staff recommends approval of the proposed Medical Marijuana Ordinance that is intended to address possession, consumption, distribution, and cultivation of medical marijuana in the unincorporated areas of Fresno County. The proposed Ordinance also reflects the direction provided to staff at your Board's December 7,2010 Board hearing regarding prohibiting medical marijuana dispensaries in the unincorporated areas of Fresno County. ALTERNATIVE ACTION: Your Board may determine to modify or deny the proposed Ordinance Code Amendments. FISCAL IMPACT: Preparation of the proposed Medical Marijuana Ordinance is a net County cost, which is being absorbed within the Department's existing budget in Org. No. 43600200. This cost will, however, defer and/or displace other current overall workload activities budgeted in this account.

ADMINISTRATIVE

OFFICE REVIEw~.&Ito.oo!~a~'2<.::Jo.(t,.Ji~i..._'...:.({)..z::::.......:YL~;{,(_..::;._..:;;... APPROVED AS RECOMMENDED

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Board of Supervisors July 12, 2011 Page 2 IMPACTS ON JOB CREATION: action would not affect the efforts to create jobs in Fresno

Approval of the recommended County. BACKGROUND/DISCUSSION:

On July 13, 2010, your Board considered and adopted an Interim Urgency Ordinance prohibiting the establishment of new Medical Marijuana Collective Dispensaries in the unincorporated areas of Fresno County pending completion of a Zoning Ordinance Text Amendment initiated on the same day. On September 14, 2010, your Board extended said Interim Urgency Ordinance and it remains in effect until July 13, 2012, unless earlier terminated. On September 14, 2010, your Board considered and adopted an Interim Urgency Ordinance prohibiting the outdoor cultivation of medical marijuana collectives in all zone districts in the unincorporated areas of Fresno County pending completion of the development of standards intended to regulate such activity. On October 26,2010, your Board extended said Interim Urgency Ordinance and it remains in effect until September 14, 2011, unless earlier terminated. On December 7, 2011, your Board considered and provided direction to staff regarding regulating Medical Marijuana Dispensaries in the unincorporated areas of Fresno County. Your Board considered testimony from Department's and Sheriffs Office staff, and from the public both in support and opposition to dispensaries. At the conclusion of the hearing, your Board directed staff to proceed with the preparation of the Medical Marijuana Ordinance prohibiting Medical Marijuana Dispensaries. On February 2, 2011, your Board received a presentation from the Sheriffs Office on issues related to marijuana criminal investigations on Federal land and on large marijuana groves in Fresno County. Your Board received the presentation but took no formal action. Based on your Board's action and direction, the County Administrative Officer's (CAO) Office convened taskforce meetings with staff representatives from the Sheriffs Office, Agriculture Department, Department of Public Health, Auditor-ControlierlTreasurer-Tax Collector and Department of Public Works and Planning to initiate and prepare a comprehensive draft Medical Marijuana Ordinance that addresses consumption, cultivation, and distribution of medical marijuana in Fresno County. Today's Agenda Item represents the efforts of the taskforce committee. In addition, staff has scheduled July 21, 2011, for the Planning Commission to consider Amendment to Text Application No. 364 (initiated by your Board on July 13, 2010), relating to the location of Medical Marijuana Cultivation Facilities in the County's Industrial (M-1, M-2 and M-3) Zoning Districts. The amendment to the Zoning Ordinance will be considered by your Board on August 9, 2011, along with the second reading of the proposed County Ordinance Code amendments addressed in this Agenda Item. As part of preparation of the proposed Medical Marijuana Ordinance, staff surveyed each of the 15 cities in Fresno County and reports the following relating to actions that each city has taken relative to medical marijuana as follows:

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Fresno - Adopted Ordinance banning dispensaries Clovis - Adopted Ordinance banning dispensaries Sanger - Adopted Ordinance banning dispensaries Reedley - Adopted Ordinance banning dispensaries Orange Cove - Adopted Ordinance banning dispensaries Parlier - Adopted Ordinance banning dispensaries Kingsburg - Adopted Ordinance prohibiting dispensaries Fowler - Adopted Ordinance banning dispensaries Selma - Adopted Interim Urgency Ordinance prohibiting dispensaries Kerman - Adopted Ordinance banning dispensaries San Joaquin - Adopted Interim Urgency Ordinance banning dispensaries Firebaugh - Adopted Ordinance banning dispensaries Mendota - No action taken Huron - Information unavailable (staff was unable to confirm at the time this Agenda Item was drafted whether the city has taken any action) Coalinga - Adopted Ordinance banning dispensaries Proposed Medical Marijuana Ordinance Summary:

Below is a summary of the proposed Medical Marijuana Ordinance. Possession and Consumption: No on-site consumption of medical marijuana shall occur except by qualified patients who live on the property as their principal place of residence. Distribution: Medical Marijuana Dispensaries are prohibited in Fresno County. Cultivation:
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Cultivation of medical marijuana may only occur pursuant to the issuance of a valid Medical Marijuana Cultivation Business License from Fresno County: and Cultivation shall only occur within a secure, locked, and fully enclosed structure, including a ceiling, roof or top; and Cultivation shall be limited to the County's Industrial Zoning Districts (M-1, M-2, and M-3); and Proposed cultivation sites shall meet location criteria (minimum of 1,000 feet from any school, public park or playground, recreation area, amusement park, sports facility, adult business, day care facility, church, chapel, youth-Orientated establishment, places of worship or other Medical Marijuana Cultivation Facility); and The maximum number of medical marijuana plants shall not exceed 99; and Cultivation facilities shall provide specific security improvements (all windows, roofs, roof hatches, sky lights, ceilings, entrances, exits and doors shall be secured, require that alarms and closed circuit televisions be present on-site, require uniformed security guard present at all times during hours of operation): and Hours of operation shall be limited from 8:00 a.m. to 8:00 p.m. daily; and Prohibit Medical Marijuana Collective Dispensary operations from possessing a license from the State Department of Alcohol Beverage Control or an Adult Business License.

Fc.o17 (eFonns-0904)

Board of Supervisors July 12,2011 Page 4 Enforcement: The Sheriff's Office, with administrative assistance from Public Works and Planning, will have primary responsibility for enforcement of the proposed Medical Marijuana Ordinance. Adoption of the proposed Medical Marijuana Ordinance is found to be exempt from environmental review pursuant to California Environmental Quality Act (CECA) Guidelines Section 15061(b)(3). The County finds that the adoption of this Ordinance does not have the potential for causing a significant adverse effect on the environment. OTHER REVIEWING AGENCIES: Copies of this Agenda Item were provided to the Sheriffs Office, Agriculture Department, Department of Public Health, and the Auditor-Controllerrrreasurer-Tax Collector's Office. REFERENCE MATERIAL BAI #13, July 13, 2010 BAI#9,Augu~24,2010 BAI #6, September 14, 2010 BAI #12, October 26,2010 BAI #9, December 7,2010 BAI #4, February 1, 2011

FC..o17 (eForms-0904)

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BEFORE THE BOARD OF SUPERVISORS OF THE COUNTY OF FRESNO STATE OF CALIFORNIA ORDINANCE NO. _

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AN ORDINANCE AMENDING THE ORDINANCE CODE OF THE COUNTY OF FRESNO BY ADDING CHAPTER 10.60 TO TITLE 10 - PUBLIC PEACE, MORALS AND WELFARE AND CHAPTER 6.6 TO TITLE 6 - BUSINESS LICENSES AND REGULATIONS, THEREOF ADOPTING REGULATIONS RELATING TO POSSESSION, CONSUMPTION, DISTRIBUTION, AND CULTIVATION OF MARIJUANA. The Board of Supervisors (herein referred to as Board) of the County of Fresno ordains as follows: SECTION 1: The Fresno County Board of Supervisors finds:

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A.

In 1996, the voters of the State of California approved Proposition 215 (codified as

California Health and Safety Code Section 11362.5, and entitled "The Compassionate Use Act of 1996"). The intent of the Proposition was to enable persons who are in need of marijuana for medical purposes to use it without fear of criminal prosecution under limited, specified circumstances. The Proposition further provides that "nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purpose: B. In 2004. the Legislature enacted Senate Bill 420 (codified as California Health and

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Safety Code Sections 11352.7 et seq.) to clarify the scope of Proposition 215. and to provide qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes with a limited defense to certain specified State criminal statutes. Health and Safety Code Section 11362.83 expressly allows cities and counties to adopt and enforce ordinances that are consistent with Senate Bill 420. C. The Federal Controlled Substances Act, 21 U.S.C. Sections 801 et seq., classifies

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marijuana as a Schedule I Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United

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States, and that has not been accepted as safe for use under medical supervision. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, or posses with intent to manufacture, distribute or dispense marijuana. The Federal Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution, dispensation or possession of marijuana for medical purposes. D. Proposition 215 and Senate Bill 420 primarily address the criminal law, providing

qualifying patients and primary caregivers with limited immunity from state criminal prosecution under certain identified statutes. Neither Proposition 215 nor Senate Bill 420, nor the Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use adopted pursuant to Senate Bill 420, provides comprehensive civil regulation or premises used for marijuana CUltivation. The unregulated cultivation of marijuana in the unincorporated area of Fresno County can adversely affect the health. safety. and well-being of the County and its residents. Comprehensive civil regulation of premises used for marijuana cultivation and dispensation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated marijuana cultivation and dispensation. and that are especially significant if the amount of marijuana cultivated on a Single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place.

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E.

In many communities in which so-called medical marijuana "dispensaries" have been

established, law enforcement aqencies have documented the serious and adverse impacts associated with such dispensaries. These communities and the media have reported increased crime. including burglaries, robberies. violence, illegal sales of marijuana to and use of marijuana by minors and others without medical need in the areas immediately surrounding such medical marijuana dispensaries. Other negative secondary effects include the smoking of marijuana in public areas and adverse impacts on neighboring businesses (including odor complaints). The County of Fresno could reasonably anticipate experiencing similar adverse impacts and effects from any marijuana dispensaries established in the unincorporated County.

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F.

Additionally,

a number of sources, including the United States Department

of Justice's

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California

Medical Marijuana website [which contains various documents marijuana

and reports related to and the

issues surrounding

use (http://www.usdoj.gov/dea/ongoingllegalization.html) published by the California Dispensaries Police Chiefs

"White Paper on Marijuana Association's establishment

Dispensaries"

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Task Force on Marijuana of marijuana dispensaries are burglaries,

(April 22, 2009)], have concluded that the Among the crimes

can lead to an increase in crime.

citied as typical examples immediately surrounding

robberies, sales of illegal drugs in the areas as well as other public nuisances such as loitering,

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such dispensaries,

smoking marijuana in public places, sales to minors and driving while under the influence of marijuana. The Board of Supervisors of the regulatory finds that these data and conclusions justify the

implementation G.

and safety measures

included in this Ordinance.

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Additionally

there have been many reports of violence incidental to the outdoor whether medical or non-medical. There have been reports of at least One of the two shootings landowners resulted in

cultivation

of marijuana,

two shootings death.

within Fresno County related to marijuana.

The reports of marijuana related threats to neighboring in recent months.

and other citizens from neighbors

have escalated

There have also been many complaints of marijuana.

regarding the unpleasant smell of marijuana

odor from the outdoor cultivation

Additionally,

the strong

may create an attractive nuisance, alerting persons to the location of the The outdoor

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valuable plants and creating a risk of burglary, robbery and armed robbery. cultivation welfare. H. Fresno County is within a High Intensity Drug Trafficking Marijuana of marijuana

poses a current and immediate threat to public health, safety and

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Area, as deSignated by the cultivation continues to be a

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White House Office of National Drug Control Policy. serious problem within Fresno County. eradication of marijuana

The County has received Federal grants for the

grown on public lands. marijuana are indistinguishable when on the

I.

Medical marijuana and non-medical plant.

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marijuana

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J.

Nothing in this Ordinance shalJ be construed to allow the use of marijuana for non-

medical purposes, or allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal under state or federal law. No provision of this Ordinance shall be deemed a defense or immunity to any action brought against any person by the Fresno County District Attorney, the Attorney General of the State of California, or the United State of America. K. This Ordinance is hereby found to be categorically exempt from environmental review

pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15061 (b)(3). SECTION 2: The Ordinance Code of the County of Fresno is hereby amended by

adding Chapter 10.60 to Title 10, including Sections 10.60.010 through 10.60.070 to read in its entirety as follows: "XI. MEDICAL MARIJUANA 10.60.010 DEFINITIONS: For purposes of this Chapter and Chapter 6.60, the following definitions shall apply: A. "Cultivation" is the planting, growing, harvesting. drying, processing, or storage of one

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or more marijuana plants or any part thereof. B. 11018. C. "Medical marijuana" is defined in strict accordance with California Health and Safety "Marijuana" has the same meaning as defined by Health and Safety Code Section

Code Sections 11362.5 and 11362.7 et seq. D. "Medical marijuana dispensary" or ·'dispensary" means any facility or location, whether

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fixed or mobile, where medical marijuana or items containing medical marijuana (e.g. food or drink products) is made available to, and/or exchanged with, and/or distributed or sold to four or more qualified patients, persons with an identification card, or primary caregivers. Unless otherwise regulated by this code or applicable law, "medical marijuana dispensary" shall not include the following uses: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life-threatening illness

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licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of

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Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable E. law including, but not limited to, Health and Safety Code Section 11362.5 et seq.

"Medical marijuana cultivation facility" means any location at which a qualified
card, or primary caregiver cultivates marijuana for medical

patient, person with an identification purposes. F.

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"Person with an identification card" shall have the same meaning set forth in Health

and Safety Code Section 11362.7. G.

"Primary caregiver" shall have the same meaning set forth in Health and Safety Code

Section 11362.7. H.

"Qualified patient" shall have the same meaning set forth in Health and Safety Code

Section 11362.7. 10.60.020 REGULATIONS APPLICABLE TO THE CONSUMPTION OF MEDICAL

MARIJUANA: No on-site consumption person with an identification 10.60.030 A. MEDICAL of medical marijuana shall occur except by a qualified patient or

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card who lives on the property as their principal place of residence. DISPENSARY AS A PROHIBITED USE:

MARIJUANA

A medical marijuana

dispensary

as defined in Section 11.10.020 is a prohibited use in all

zone districts in the County of Fresno. 10.60.040 CULTIVATION OF MEDICAL MARIJUANA: area of Fresno County is with

The CUltivation of marijuana plants in the unincorporated

unlawful and hereby declared to be a public nuisance that may be abated in accordance this Chapter unless the cultivation is pursuant to a valid medical marijuana license rhereinafter referred to as "business cultivation

business

license") issued by the Treasurer-Tax

Collector or

pursuant to the provisions

of Title 6, Chapter 6.60.10.

No person owning, leasing, occupying, area of Fresno County

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having charge or possession

of any premises within the unincorporated

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shall cause, allow, suffer, or permit such premises to be used for the cultivation of marijuana plants in violation of this Chapter. 10,60.050 AMORTIZATION OF NON-CONFORMING MEDICAL MARIJUANA DISPENSARY: Any marijuana dispensary existing on the effective date of this Ordinance, which does not conform to the provisions of this Chapter, shall be regarded as a non-conforming use which may be continued until six months after the effective date of this Ordinance. On or before such date, all such non-conforming uses shall be terminated. 10.60.060 VIOLATION AND ENFORCEMENT: Each and every violation of this Chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by Title 1, Chapter 1.13 of this Code. Additionally, as a nuisance per se, any violation of this Chapter shall be subject to injunctive relief, revocation of the medical marijuana cultivation business license, revocation of the certificate of occupancy for the location, disgorgement and payment to the County of any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or equity. The County may also pursue any and all remedies and actions available and applicable under local and state laws for any violations this Chapter. The Fresno County Sheriff's Office, with administrative assistance from the Department of Public Works and Planning, shall have primary responsibility for enforcement of the provisions of this Chapter. Nothing in this Chapter shalt be construed as imposing on the enforcing Officer or the County of Fresno any duty to issue any notice to abate, nor to abate, nor to take any other action with regard to any marijuana dispensary in violation of this Chapter, and neither the enforcing officer nor the County of Fresno shall be held liable for failure to issue an order to abate, nor for failure to abate, nor for failure to take any other action with regard to any marijuana dispensary in violation of this Chapter. 11/ 11/
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10.60.080 SEVERABILITY: If any part of this Chapter is for any reason held to be invalid, unlawful, or unconstitutional, such invalidity, unlawfulness or unconstitutionality shall not affect the validity, lawfulness, or constitutionality of any other part of this Chapter." SECTION 3: The Ordinance Code of the County of Fresno is hereby amended by adding Chapter 6.60 to Title 6, including Sections 6.60.010 through 6.60.100, to read in its entirety as follows: "TITLE 6, CHAPTER 6.60 - BUSINESS LICENSES AND REGULATIONS 6,60.010 GENERAL BUSINESS LICENSE REGULATIONS: The definitions set forth in Title 10, Chapter 10.60.010 shall apply to this Chapter. The provisions of Chapter 6.04 are not applicable to medical marijuana CUltivationbusiness licenses issued pursuant to this Chapter 6.60. The cultivation of marijuana plants in the unincorporated area of Fresno County is unlawful and deemed a public nuisance unless the cultivation is pursuant to a valid medical marijuana cultivation business license issued by the Treasurer-Tax Collector pursuant to the provisions of this Chapter. 6.60.020 MEDICAL MARIJUANA CULTIVATION BUSINESS LICENSE -CONTENTS APPLICATION: A. Written application for a license under this Chapter shall be made to the Treasurer-Tax OF

Collector of the County, on forms acceptable to the Treasure-Tax Collector, accompanied by a non-refundable fee as specified in Section 3001 of the Master Schedule of Fees, Charges and Costs Recovery. Fees or costs incidental to the filing of a complete application, and/or associated with the mandatory Site Plan Review Application, and/or to meet other provisions of this Chapter are not included in the application fee. The application shall be signed by the applicant or applicants. The application shall include the following: 1. The name, address and telephone number for the applicant. The applicant must

be a qualified patient, a person with an identification card or a primary caregiver; and

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2.

The name of each qualified patient, person with an identification with the licensee in the cultivation for marijuana cultivated participants"): of marijuana,

card, or primary either directly or

caregiver who will participate by providing (hereinafter 3. reimbursement

pursuant to the business license and or state-issued medical marijuana

referred to as "cultivation

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A copy of the current medical recommendation participants; and

card for the applicant and cufivatlon 4. acknowledge 5. A statement,

signed by the applicant and all cultivation

participants,

that they

that they may be subject to prosecution An agreement. signed by the applicant

under federal or state taws; and and all cultivation participants, to waive,

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release, indemnify and defend the County from any and all legal liability related to or arising from the application conditions cultivated; 6. cultivated, for a license, the issuance of the license. or the enforcement of the

of the license, and/or the operation and

of any facility at which medical marijuana is

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The address of the real property upon which the medical marijuana will be a description of the nature of the proposed use or development, requirements and an explanation

of how the proposed

business will satisfy the applicable

set forth in Sections

6.60.070 and 6.60.080 of this Chapter, and 7. The notarized signature of all property owners of the proposed site indicating the and acknowledgement that the property owner may be

owners' consent to the application subject to prosecution

under federal or state laws; and by the Board by ordinance or resolution for processing the

8.
application; 9. necessary B.

The fee prescribed and

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Such other information to ensure compliance

and documentation

as the County determines

is

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with state law and this Chapter. participants must be fingerprinted and photographed by the

The applicant and cultivation

Sheriff's Office at the applicant's

expense.

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6.60.030 MEDICAL MARIJUANA CULTIVATION BUSINESS LICENSE - REVIEW AND APPROVAL; APPEAL FROM DENIAL:
A.

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License applications shall be processed by the Treasurer-Tax Collector with

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investigation and reports by the Department of Public Works and Planning in the form of a Site Plan Review Application and the Sheriffs Office in accordance with this Chapter. Such reports shall be submitted to the Treasurer-Tax Collector not later than 90 working days from the date of distribution of the application. In considering an application for a license pursuant to this Chapter, the Treasurer-Tax Collector shall issue the license only upon the Department of Public Works and Planning and/or the Sheriffs Office finding the following: 1. The medical marijuana CUltivationfacility is consistent with the infrastructure

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requirements contained in this Chapter; and

2.

The medical marijuana cultivation facility is located in any of the following Zoning

Districts: M-1, M-2, and M-3; and

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3.
requirements:

The medical marijuana cultivation facility is consistent with the following location

a.

The medical marijuana cultivation facility shall be a minimum of 1,000 feet

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from any school, public park or playground, recreation area, amusement park, sports facility, adult business, day care facility, church, chapel, youth-orientated establishment. places of worship or other medical marijuana cultivation facility; and

4.

The Department of Public Works and Planning has approved a Site Plan Review

Application; and 5. The Sheriff's Office has certified that neither the medical marijuana cultivation

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applicant nor the cultivation participants have been convicted of a felony within the past ten years. B. In the event the report of the Department of Public Works and Planning andlor the

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Sheriff's Department is adverse to the issuance of the license, the Treasurer-Tax Collector shall not issue the license. The Treasurer-Tax Collector's decision to approve or deny a license shall

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be final. There shall be no appeal to the County Planning Commission or the Board of Supervisors. C. The applicant may seek judicial review of the Treasurer-Tax Collector's denial of an

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application as provided by the California Code of Civil Procedure Section 1094.5 or its successor.

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6.60.040 LICENSE TRANSFER PROHIBITED:
A licensee shall not transfer ownership or control of a medical marijuana cultivation business license to any other person or entity. All changes in ownership shall require a new license application and approval.

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6.60.050 TERM AND RENEWAL OF MEDICAL MARIJUANA LICENSE:
Each medical marijuana cultivation business license under this Chapter shall be issued to expire on June 13th, provided that no license shall be issued to expire more than one year from the date of issuance. When a license is issued during any licensing period, the TreasurerTax Collector shall pro-rate the license fee as of the first of the month nearest to the date of issuance.

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A license may be renewed only upon the licensee filing with the Treasurer-Tax Collector
a written request for renewal accompanied by a new application, copy of the license to be renewed and the applicable fee. The request for renewal shall be made at least 60 working days before the expiration date of the license. When made less than 60 days before the expiration date, the expiration of the license shall not be stayed.

6.60.060 INFRASTRUCTURE REQUIREMENTS FOR MEDICAL MARIJUANA CULTIVATION
FACILITIES: The cultivation of medical marijuana within the County of Fresno shall at all times

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occur within a secure, locked, and fully enclosed structure, including a ceiling, roof or top, and shall meet the following requirements: A.
The exterior appearance of the structure shall be compatible with the exterior

appearance of structures already constructed or under construction within the immediate area,

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and shall be maintained so as to prevent blight or deterioration, or substantial diminishment or impairment of property values within the immediate area. B. Alarms. Closed Circuit Television 1. 2. A Sheriff-approved 24-hour centrally monitored alarm system is required. Closed Circuit Television (CClV) video monitoring shall be installed that meets

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the following criteria:

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a.
period of 14 days.

Continuous 24-hour operation and recording with minimum archival

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b.

Sufficient cameras, angles of observation and lighting to allow facial

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feature identification of persons in interior and exterior areas where marijuana is present at any time. c. Sufficient cameras, angles of observation and lighting to allow facial

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feature identification of persons in the immediate exterior areas of doors, windows or other avenues of potential access. d. All CCTV recordings shall be accessible to law enforcement officers at all

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times during operating hours and otherwise upon reasonable request. All CCTV recording systems shall have the capability of producing tapes, DVDs or other removable media of recordings made by the CCTV system. e. To prevent tampering, the recorder shall be kept in a secure location and

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all recordings shalt be date and time stamped. C. Windows 1. Windows and glass panes shall have vandal-resistant glazing, shatter-resistant

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film, glass block. or bars installed equipped with latches that may be released quickly from the inside to allow exit in the event of emergency. 2. Windows vulnerable to intrusion by a vehicle must be protected by boUards or

landscaping grade separation reasonably sufficient to prevent such intrusion. D. Roofs. roof hatches. skylights, ceilings For buildings in which a cultivation facility is located:

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1.

All means of gaining unauthorized

access to the roof shall be eliminated.

Exterior roof ladders shall be secured with locked ladder covers. 2. 3. cultivation Roof hatches and skylights shall be secured so as to prevent intrusion. Where a cultivation facility is located in a building with other tenants, the facility shall be secured against unauthorized access from other tenant spaces or systems or

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common areas, including access through crawl spaces, ceiling spaces, ventilation other access paints concealed from the common areas. E. Visibility 1. No marijuana

may be visible from any location off the property on which a

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cultivation facility is located. 2. Exterior landscaping within ten feet of any building in which a CUltivation facility is be considered places where a person

located shall be free of locations which could reasonably could conceal themselves 3. considering

natural or artificial illumination.

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Exterior building lighting and parking area lighting must be of sufficient footof any individual committing a

candles and color rendition, so as to allow the ready identification crime on-site at a distance of no less than 40 feet.

F.

Fire suppression

system in compliance with NFPA 13,

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An approved automatic fire sprinkler system, designed

shall be provided in buildings and portions thereof used as a cultivation facility. G. Entrances, 1. exits, doors primary entrance/exit

A cultivation facility shall have a single, plainly identified

site that is visible from public or common areas. 2. Any exit or entrance that is not visible from a public or common area shall be exit only. Such emergency exits shall be self-closing, self-

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plainly marked as an emergency

locking, equipped with an alarm and not used except in an emergency. 3. Any aluminum door shall be fitted with steel inserts at the lock receptacles.

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4.
set-screw

Any outward opening doors shan be fitted with hinge stud kits, welded hinges or hinge pins.

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5.
6.

Panic exit hardware shall be "push-bar" design. Double doors shall be fitted with three-point locking hardware and push-bars

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consistent with fire agency regulations or requirements. 7.

AU emergency exits shall be solid core doors featuring hinge-pin removable

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deterrence. Emergency exit doors shall have latch guards at least 12 inches in length protecting the locking bolt area. Latch guards shall be of minimum O.125-inch thick steel, affixed to the exterior of the door with non-removable bolts. and attached so as to cover the gap between the door and the doorjamb for a minimum of six inches both above and below the area of the latch.

8.

All glass doors or doors with glass panes shall have shatter-resistant film affixed

to prevent glass breakage. 6.60.070 OPERATING REQUIREMENTS FOR CULTIVATION FACILITIES:

A.

The hours of operation of a cultivation facility shall be no earlier than 8 a.m. and no later

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than 8 p.m., seven days a week. B. No persons under the age of 18 are allowed at, in, or on a cultivation facility, unless such

individual is a qualified patient and accompanied by their parent or documented legal guardian. C. The licensee and each cultivation participant shall be limited to CUltivation of medical

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marijuana at one cultivation facility at anyone time. D. The following records must be maintained at the cultivation facility at all times and

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available for inspection by the Sheriff's Office: 1. A record identifying the name of the licensee and each cultivation participant, as

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well as the name ofthe physician providing the recommendation for medical marijuana for each person and shall reflect whether the recommendation is written or oral. The record shall identify the city and county of residence for the licensee and each cultivation participant. 2. Current records of any transaction by which a cultivation participant pays money

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for marijuana from the cultivation facility during the two-year period preceding the current date. Such records must include at a minimum the following information: III

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1
2

a.
b.

The name of the cultivation participant The amount of cash involved, if any;

that paid money;

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c.
d.

The method of payment if not by cash; and The amount of marijuana involved. participant, that:

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3.

An agreement, a.

signed by the licensee and every cultivation

Within seven days of request by the Sheriff's Office, they will produce for a record, current to within 48 hours, of costs of cultivation, and of the licensee and every cultivation number. facility shall not

inspection overhead 4. participant E.

by law enforcement and operating

expenses;

A record showing the identification by name, home address and telephone

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The total quantity of marijuana grown or located at any cultivation plants, whether mature or immature. or ingestion of marijuana

exceed 99 marijuana F.

No smoking or any other consumption

is allowed at a

cultivation facility. G. Cultivation facilities shall be available for inspection by the Sheriff, the Director of the or their

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Department respective

of Public Works and Planning, the fire authority having jurisdiction authorized representatives, hours. at all times during operating

hours and upon reasonable

notice during non-operating H.

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A cultivation facility shall have on its premises,

posted in a prominent location, a copy of home

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its business license and a document telephone cultivation

that provides the names, home addresses, telephone

numbers and 24-hour emergency participant,

numbers of its licensee and every

I.

A licensed,

uniformed security guard shall be present at a cultivation facility at all times

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during hours of operation.

J.

The licensee shall not hold or maintain a license from the State Department Control to sell alcoholic beverages,

of Alcohol

Beverage beverages.

or operate a business that sells alcoholic

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K.

The licensee shall not hold or maintain a business license from the County of Fresno to

operate an adult business pursuant to the provisions of Title 6, Chapter 6.33. 6.60.080 FACILITY LIMITS. NAMING:

A.

A cultivation facility must have a unique identifying name, identified on the medical

marijuana business license application, for purposes of tracking membership and facilities. 6.60.090 VIOLATION AND ENFORCEMENT: Each and every violation of this Chapter shall constitute a separate violation and shall subject to all remedies and enforcement measures authorized by Title 1, Chapter 1.13 of this Code. Additionally, as a nuisance per se, any violation of this Chapter shall be subject to injunctive relief, revocation of the medical marijuana cultivation business license, revocation of the certificate of occupancy for the location, disgorgement and payment to the County of any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy avaitable at law or equity. The County may also pursue any and all remedies and actions available and applicable under local and state laws for any violations committed by the licensee and the cultivation participants. The Fresno County Sheriff's Office, with administrative assistance from the Department of Public Works and Planning, shall have primary responsibility for enforcement of the provisions of this Chapter. Nothing in this Chapter shall be construed as imposing on the enforcing officer or the County of Fresno any duty to issue any notice to abate, nor to abate, nor to take any other action with regard to any marijuana cultivation in violation of this Chapter, and neither the enforcing officer nor the County of Fresno shall be held liable for failure to issue an order to abate, nor for failure to abate, nor for failure to take any other action with regard to any marijuana cultivation in violation of this Chapter. 6.60.100 SEVERABILITY:

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If any part of this Chapter is for any reason held to be invalid, unlawful. or unconstitutional, such invalidity, unlawfulness or unconstitutionality shall not affect the validity, lawfulness, or constitutionality of any other part of this Chapter."

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SECTION 4:

This Ordinance shall take effect and be in force thirty (30) days from and

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after its passage. Upon the effective date of this Ordinance, Interim Urgency Ordinance Nos. 10-014 and 10-019 shall expire and become null and void.

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5 6 THE FOREGOING WAS PASSED AND ADOPTED BY THE FOLLOWING VOTE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF FRESNO THIS __ _______ 2011, TO-WIT: DAY OF

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8 9
10 11 AYES: NOES: ABSENT: CHAIRMAN BOARD OF SUPERVISORS ATTEST:

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BERNICE SIEDEL, CLERK BOARD OF SUPERVISORS

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5 6 7 8 AN ORDINANCE AMENDING THE ZONING PROVISIONS OF THE ORDINANCE CODE OF THE COUNTY OF FRESNO BY ADDING TEXT TO SECTIONS 803.12 AND 843.1, OF THE ZONING ORDINANCE TO ADDRESS MEDICAL MARIJUANA CULTIVATION FACILITIES IN THE M-1 (LIGHT MANUFACTURING), M-3 (HEAVY INDUSTRIAL) ZONE DISTRICTS. The Board of Supervisors of the County of Fresno ordains as follows: Section 1: The Ordinance Code of the County of Fresno is hereby amended by M-2 (GENERAL INDUSTRIAL), AND BEFORE THE BOARD OF SUPERVISORS OF THE COUNTY OF FRESNO STATE OF CALIFORNIA ORDINANCE NO. _

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adding text to Sections 803.12 and 843.1, pertaining to Amendment to Text No. 364 thereof to read as set forth in Exhibit "1" attached hereto and incorporated herein by reference. Section 2: after its passage. THE FOREGOING ORDINANCE was passed and adopted by the following vote of the Board of Supervisors of the County of Fresno this 9th day of August 2011, to-wit: AYES: NOES: ABSENT: This Ordinance shall take effect and be in force thirty (30) days from and

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CHAIR, Board of Supervisors Fresno County, California ATTEST: BERNICE SEIDEL Clerk to the Board of Supervisors By: , Deputy

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Exhibit 1

SECTION 803.12 - SPECIFIC DEFINITIONS GROUP K. (Amended by Ord. 490.133 adopted 6-7-77)

MAJOR STREET OR MAJOR HIGHWAY shall mean a highway with intersections at grade and on which partial control of access and geometric design and traffic control measures are used to expedite the safe movement of through traffic. Major streets or major highways shall be designated in the Circulation Element of the General Plan of the County of Fresno. MARQUEE shall mean a permanent roofed structure attached to and supported by the building and projecting over public property. MEDICAL MARIJUANA CULTIVATION FACILITY as defined in Chapter 10.60.10 of Title 10 of County Ordinance Code. This does not include "Medical Marijuana Dispensary", which is a prohibited use in all zoning districts, as defined in Chapter 10.60.10 of Title 10 of County Ordinance Code. (Added by Ord. adopted 8-9-11) MEDICAL OFFICE shall mean any building or portion of a building used or intended to be used as an office for the practice of any type of medicine, including chiropractics, dentistry or optometry. It shall also include clinics of a medical or dental nature. MEDICAL OR DENTAL CLINIC shall mean the same as "Medical Office." MOBILEHOME shall mean a "Trailer" in excess of eight feet wide or forty feet long designed to be used with or without a permanent foundation, and equipped to contain one (1) "Dwelling Unit". (Amended by Ord. 490.175 re-adopted 5-29-79) MOBILEHOME PARK shall mean an area or tract of land developed and operated in accordance with Title 25, California Administrative Code, where two (2) or more mobilehome spaces are rented or leased or held out for rent or lease to accommodate "mobilehomes" used for human habitation. (Added by Ord. 490.175 re-adopted 5-29-79) MOBILEHOME PARK SERVICES shall mean commercial services available within the park only to residents, their guests and park employees. The Special Standards of Section 855-N (Mobilehome Park Services) shall apply. (Added by Ord. 490.188 adopted 10-29-79) MOTEL shall mean a building or group of buildings used for transient residential purposes containing guest rooms or dwelling units with automobile storage space provided in connection therewith, which building or group is designed, intended, or used primarily for the accommodation of transient automobile travelers, including groups designated as auto cabins, motor courts, motor hotels and similar designation. MOTORHOME shall mean a "Recreational Vehicle" in which the portions providing motive power and habitable space are constructed as a single unit. (Added by Ord. 490.175 readopted 5-29-79) NONCONFORMING BUILDING shall mean a building or portion thereof which was lawful when established but which does not conform to subsequently established zoning or zoning regulations. (See Section 876 for requlations.)

SECTION 843 IM-1" - LIGHT MANUFACTURING DISTRICT

The IM-1" (Light Manufacturing) District is intended to provide for the development of industrial uses which include fabrication, manufacturing, assembly or processing of material that are in already processed form and which do not in their maintenance, assembly, manufacture or plant operation create smoke, gas, odor, dust, sound, vibration, soot or lighting to any degree which might be obnoxious or offensive to persons residing in or conducting business in either this or any other district.

SECTION 843.1 - USES PERMITTED The following uses shall be permitted in the "M-1" District. All uses shall be subject to the Property Development Standards in Section 843.5. A. RELATED USES 1. Advertising structures. 2. Animal hospitals and shelters. 3. Automobile repairs (conducted within a completely enclosed building). 4. Automobile re-upholstery. 5. Automobile service stations. 6. Banks.

7. Caretaker's residence, which may include an office for the permitted industrial use. (Amended by Ord. 490.152 adopted 7-10-78) 8. Commercial uses that are incidental to and directly related to and serving the permitted industrial uses. 9. Delicatessens.

10. Electrical supply. 11. Equipment rental or sale 12. Farm equipment sales and service. 13. Frozen food lockers. 14. Grocery stores. 15. Boarding and training, breeding and personal kennels. (Amended by Ord. 490.36 adopted 7-25-67)

16. Ice and cold storage plants 17. Mechanical car, truck, motor and equipment wash, including self-service. (Added by Ord. 490.23 adopted 12-28-65) 18. Newspaper publishing 19. Offices: a. b. c. d. e. Administrative. Business. General. Medical Professional

20. New and used recreational vehicle sales and service. (Added by Ord. 490.129 adopted 1-11-77) 21. Restaurants. 22. Signs, subject to the provisions of Section 843.5-K. 23. Truck service stations. 24. Truck driver's training schools. (Amended by Ord. T -070-341 adopted 4-23-02) B. ADULT BUSINESSES that are licensed under Chapter 6.33 of Ordinance Code, including uses such as: 1. 2. 3. 4. 5. 6. Bars. Restaurants. Theaters. Video stores. Book stores. Novelty sales. (Added by Ord. T-074-346 adopted 7-30-02)

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MANUFACTURING 1. Aircraft, modification, storage, repair and maintenance 2. Automotive: a. b. c. d. e. Painting. Automotive reconditioning. Truck repairing and overhauling. Upholstering. Battery assembly (including repair and rebuilding) limited to the use of previously manufactured components.

(Added by Ord. 490.33 adopted 1-17-67)

3. 4. 5.

Boat building and repairs. Book binding. Bottling plants.

6. Ceramic products using only previously pulverized clay and fired in kilns only using electricity or gas. 7. 8. 9. Commercial grain elevators. Garment manufacturing. Machinery and shop (no punch presses over twenty (20) tons or drop hammers): a. b. c. d. e. f. g. Blacksmith shops. Cabinet or carpenter shops. Electric motor rebuilding. Machine shops. Sheet metal shops. Welding shops. Manufacturing, compounding, assembly or treatment of articles or merchandise from previously prepared metals. compounding, processing, packing or treatment of such products as:

10. Manufacturing,

a. Bakery goods. b. Candy. c. Cosmetics. d. Dairy products. e. Drugs. f. Food products (excluding fish and meat products, sauerkraut, wine, vinegar, yeast and the rendering of fats and oils) if connected with an adequate sewer system. g. Fruit and vegetables (packing only). h. Honey extraction plant. i. Perfume. j. Toiletries. 11. Manufacturing, compounding, assembly or treatment of articles or merchandise from the following previously prepared materials: a. Canvas. b. Cellophane. c. d. Cloth. Cork. e. Felt. f. Fibre. g. Fur. h. Glass. i. Leather. j. Paper, no milling.

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Precious or semi-precious stones or metals. Plaster. Plastic. Shells. Textiles. Tobacco. Wood. Yarns. and maintenance of electric or neon signs

12. Manufacturing 13. Novelties. 14. Planing mills.

15. Printing shops, lithographing, publishing. 16. Retail lumber yard. 17. Rubber and metal stamps. 18. Shoes. 19. Stone monument works. 20. Storage yards: a. Contractors storage yard. b. Draying and freight yard. c. Feed and fuel yard. d. Machinery rental. e. Motion picture studio storage yard. f. Transit storage. g. Trucking yard terminal, except freight classifications. 21. Textiles. 22. Wholesaling and warehousing. 23. Wholesale meat cutting and packing, provided there shall be no slaughtering, fat rendering or smoke curing. (Added by Ord. 490.21 adopted 9-14-65) D. PROCESSING 1. Creameries. 2. 3. 4. Laboratories. Blueprinting and photocopying. Laundries.

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5. Carpet and rug cleaning plants. 6. Cleaning and dyeing plants. 7. Tire retreading, recapping, rebuilding. 8. Lumber drying kilns; gas, electric or oil fired only. (Added by Ord. 490.77 adopted 8-17-72) Feather cleaning and storage of cleaned feathers within an enclosed structure. (Added by Ord. 490.82 adopted 11-21-72)

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E.

FABRICATION 1. Rubber, fabrication of products made from finished rubber. 2. Assembly of small electric and electronic equipment. 3. Assembly of plastic items made from finished plastic.

F.

OTHER USES 1. Agricultural uses. 2. Communication 3. 4. equipment buildings.

Electric transmission substations. Off-street parking.

5. Medical Marijuana Cultivation Facility licensed under Chapter 6.6 of Title 6 of County Ordinance Code. (Added by Ord. adopted 8-9-11) 6. Public utility service yards with incidental buildings. 7. Electric distribution substations. 8. Temporary or permanent telephone booths. 9. Water pump stations.

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July 19,2011

JUL 2 1 2011
DEPT. OF PUBLIC WORKS & PLANNING

Fresno County Board of Supervisors 2281 Tulare Street, #301, Hall of Records, Fresno, CA 93721-2198 Fresno County Planning Commission 2220 Tulare Street, 6th floor Fresno, CA 93721 Re:

FRESNO COUNTY

Proposed Medical marijuana Ordinance and related Zoning Text Amendment Application No. 364

Dear Chairman Larson and Members of the Board: Dear Chair Niswander and Members of the Planning Commission: We are writing to you concerning the pending Medical Marijuana Ordinance and related Zoning Text Amendment Application No. 364 ("Ordinance"). The Ordinance and zoning change will allow the cultivation of medical marijuana in unincorporated industrial areas of the County, subject to certain locational restrictions and the issuance of a Medical Marijuana Cultivation Business License ("License"). To obtain the License, the operator must satisfy certain conditions and there are specified infrastructure requirements. Additionally, if the Department of Public Works and Planning and/or the Sheriff's Department is adverse to the license, the Treasurer-Tax Collector shall not issue the license. The license is apparently processed concurrently with a Site Plan Review Application. County staff has identified possible areas under the Ordinance for medical marijuana cultivation within the City of Fowler's Sphere of Influence. The City understands the County's intent in adopting the Ordinance but is concerned about the effect of allowing medical marijuana cultivation so close to the City and the potential adverse effects upon the citizens and businesses of Fowler. The City is also concerned with what happens if the location is annexed into the City and the cultivation is not in compliance with City ordinances. To address these concerns, the City requests that two provisions be added to the Ordinance. First, a requirement that if an application for a License and/or Site Plan is made for a facility within any City's sphere of influence, the City be notified at least sixty (60) days prior to formal consideration of the matter and be provided an opportunity to comment upon the application, including a request that the County consider the imposition of additional operational conditions to alleviate potential adverse effects upon the City.

128 South

Fifth

Street

Fowler,

CA 93625

Voice: 559-834-3113

Fax: 559-834-0185

Second, text should be added, and included in any approved License within a City's sphere of influence, stating substantially the following: "The property is within the City of sphere of influence and may be annexed into the City at a future date. The City's ordinance may not allow the operation of the Medical Marijuana Cultivation Facility and the applicant could be forced to cease operation upon annexation to the City of ." The Ordinance should expressly provide, and notify the applicant, that the facility will not be grandfathered in as a legal non-nonconforming use upon annexation, and instead. will be subject to the City's ordinances pertaining to medical marijuana. The foregoing text should be in a format so that it is highlighted and stands out from the rest of the text. Thank you for your consideration.

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David Elias City Manager

Cc:

Margaret Mims, Sheriff Alan Weaver, Director of Public Works and Planning City Council

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