Ban on Outdoor Cultivation of Medical Marijuana

March 26, 2013

Page 1


REPORT TO MAYOR AND COUNCIL

DATE:March 26, 2013

SUBJECT:PROPOSED ADOPTION OF ORDINANCE BANNNING OUTDOOR CULTIVATION OF MEDICAL MARIJUANA

Recommendation:Consider adoption of ordinance amending Development Code, Article II(Zoning Districts – Uses and Standards), Division 1 (Development and Land Use Approvals), Section 122-57(Prohibited Uses), barring outdoor cultivation of medical marijuana, and Article IX (General Terms), Division 1(Use Classifications), Section 122-1580(Use Classifications)modifying the descriptions of “Community Garden” and “Crop Production, Orchard, Vineyard” to exclude the cultivation of medical marijuana.

I.Introduction

The City Council is being asked to consider an ordinance amending the City of Concord’s Development Code(Development Code),which will have the effect of banning the outdoor cultivation of medical marijuana.

II.Background

During the October 9, 2012 City Council meeting, a member of the public complained that her next door neighbor was cultivating marijuana plants which created an offensive odor. The Concord Police Department investigated this complaint, and determined that the individual cultivating the marijuana was a medical marijuana patient, and therefore is lawfully permitted to do so under Californialaw. The Concord Police Department subsequently confirmed that there are other residential properties in the City where medical marijuana is being cultivated on an ongoing basis, in varying quantities.

At the December 11, 2012 City Council Meeting, staff presented a report outlining the legal framework governing medical marijuana cultivation in California. (Attachment “A.”) In the same report, staff described two regulatory models for restricting medical marijuana cultivation: 1) the Elk Grove model, which is wide-ranging and entails required permitting and extensive oversight by that city’s Police Department, Planning Director and Chief Building Official; and 2) the Moraga Model, which is fairly simple in scope and administration. At the conclusion of the December 11 meeting, the Council directed staff to draft a proposed ordinance akin to the Moraga model.

Because the proposed ban on outdoor marijuana cultivation comprises a land use decision, Planning Commission review is required. On February 6, 2013, staff presented a report to the Planning Commission and a proposed ordinance drafted in conformity with the Council’s direction. Following consideration of the report by staff and public comment the Planning Commission adopted a resolution recommending approval by the City Council of the proposed ordinance. (Attachment “B”)

Staff is now bringing forward this ordinance and the associated Development Code amendments for proposed adoption by the Council.

III.Discussion

A.California Medical Marijuana Legislation

On November 5, 1996, California voters passed Proposition 215 (known as the Compassionate Use Act or CUA), which decriminalized the cultivation and use of marijuana by seriously ill individuals upon a physician’s recommendation. The CUAheld that Health & Safety Code Section 11357[1], which otherwise criminalizes the possession of marijuana, shall not apply to a patient or to a patient’s primary caregiver who possesses or cultivates marijuana for medicinal purposes upon the written or verbal recommendation or approval of a physician.

In January 2004, the legislature passed the Medical Marijuana Program Act (MMPA). Among other things, the MMPA established a program providing for voluntary registration of qualified medical marijuana patients and their primary caregivers through a statewide identification card system. (Sections 13362.71(e), 11362.78.)In addition to establishing the identification card program, the MMPA also recognizes a qualified right to collective and cooperative cultivation of medical marijuana. (Sections 11362.7, 11362.77, 11362.775.)

The MMPA establishes the term “qualified patient,” defined as a person whose physician has recommended the use of marijuana to treat a serious illness or any other illness for which marijuana provides relief. (Section 11362.5(b)(1)(a).) The MMPA also establishes the term “primary caregiver,” defined as a person who is designated by a qualified patient and “has consistently assumed responsibility for the housing, health, or safety” of the patient.” (Section 11362.5(e).) Primary caregivers are permitted to grow and supply marijuana to designated qualified patients, and a person may serve as a primary caregiver to more than one patient, provided that the patients and caregiver all reside in the same city or county. (Section 11362.7(d)(2).)

Under the MMPA and subsequent appellate decisions interpreting the Act, qualified patients and primary caregivers who possess a state-issued identification card may possess eight ounces of dried marijuana, and may cultivatesufficient marijuana plants to meet their needs. Local law enforcement agencies throughout the state, including the Concord Police Department, follow a guideline permitting six mature or 12 immature marijuana plants per qualified patient. It is important to note that more than one caregiver or patient may reside in the same residence; alternatively, a caregiver may be growing marijuana for more than one patient at his or her property. Accordingly, local law enforcement guidelines that typically are followed do not necessarily limit the number of mature/immature plants to 6 or 12 at a single property.

B.Applicable Federal Law

Notwithstanding the CUA and the MMPA, marijuana possession, use and cultivation remains a criminal offense under federal law, which categorizes marijuana as a drug with “no currently accepted medical use.”

C.Banning of Medical Marijuana Dispensaries

Marijuana dispensaries are storefront operations which sell marijuana to qualified medical marijuana and caregivers. In 2005, the City of Concord adopted an ordinance banning medical marijuana dispensaries within City limits. (Concord Municipal Code Section 18-331; Development Code Section 122-57.) Concord’s dispensary ban followed the lead of a number of other cities throughout the state of California, and since then, additional cities have enacted similar bans. It should be noted that the California Supreme Court recently granted review of two cases involving challenges to similar local ordinances banning medical marijuana dispensaries. (People v. G3 Holistic (2011 WL 5416335) and City of Riverside v. Inland Empire Patients Health and Wellness Center, 136 Cal.Rptr.3d 667 (2012).) Oral argument in those cases was heard in January 2013, and comments by a number of Supreme Court justices during the hearing suggest that the court will affirm the right of cities to enact such bans.

D.Legality of Ban on Outdoor Cultivation of Medical Marijuana

i.Reasonable Exercise of Police Power

Under its police power, the City may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws. (Cal. Const. Art. XI, Section 7.) A land use regulation lies within the police power if it is reasonably related to the public welfare. (Associated Homebuilders, Inc. v. City of Livermore, 18 Cal.3d 582, 600-01 (1976).) In Candid Enterprises, Inc. v. Grossmont Union High School District, (1985) 39 Cal.3d 878, 885, the California Supreme Court addressed the scope of police power held by cities and counties as follows:

Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. Apart from this limitation, the police power [of a city of county]… is as broad as the police power exercisable by the legislature itself.

To summarize, under its police power, Concord may regulate medical marijuana activities in any manner not preempted by state or federal law. As discussed in detail below, local restrictions on outdoor cultivation of medical marijuana are not preempted. While the MMPA provides medical marijuana patients and caregivers the right to cultivate medical marijuana, it does not guarantee their right to grow marijuana outdoors.

The justifications for the banning of outdoor medical marijuana cultivation under the City of Concord’s police power include: 1) a risk to public safety, based on the value of marijuana plants and the accompanying threat of break-ins, robbery and theft, and attendant violence and injury;2) strong “skunklike” fumes emitted from mature plants which can interfere with the use and enjoyment of neighboring properties by their occupants, and: 3) the potential for theft and use by school age children where medical marijuana is cultivated in a location close to schools.

ii.No State Law Preemption

In a decision issued on February 6, 2013, Browne v. County of Tehama (2013) 213 Cal.App.4th704, the California Court of Appeal considered for the first time whether a city or a county in California may lawfully limit outdoor cultivation of medical marijuana. At issue was Tehama County’s ordinance limiting the number of medical marijuana plants that may be grown outside, precluding marijuana cultivation within 1000 feet of schools, parks, and churches, and requiring that an opaque fence of at least six foot be installed around all marijuana grows.

Upholding the ordinance, the court held that Tehama’s ban is not preempted by state law. As stated by the court:

The fundamental flaw in Petitioners’ argument is their misplaced view that the [Compassionate Use Act] somehow creates or grants unrestricted rights. Petitioners suggest that the CUA grants every qualified patient the right to cultivate...medical marijuana…But the CUA does not create any such right…Since the CUA does not create a right to cultivate medical marijuana, restrictions on such enforcement do not conflict with the CUA.

E.Proposed Development Code Ordinance Revisions

As noted above, at its December 11, 2012 meeting, the Council directed staff to draft ordinance language barring outdoor cultivation that is similar in scope to the Town of Moraga’s ban. The proposed ordinance is provided with this report as Attachment D, comprisingamendments to Article II (Zoning Districts – Uses and Standards), Division 1 (Development and Land Use Approvals), Section122-57 (Prohibited Uses), and Article IX (General Terms), Division 1 (Use Classifications), Section 122-1580 of the Development Code (modifying the definitions of “Community Garden” and “Crop Production, Orchard, Vineyard”).

Reduced to essentials, the proposed ordinance limits marijuana cultivation to occupied dwellings, dwelling units, and housing units, which are defined so as to exclude cultivation both outside and in accessory structures,including but not limited to greenhouses, storage sheds, workshops, gazebos and cabanas. Consistent with this purpose, the proposed amendments revise the Development Code’s existing definitions of “Community Garden,” “Crop Production,” “Orchard” and “Vineyard” to also exclude medical marijuana cultivation.

Violations of the proposed ordinance shall be considered a public nuisance, and may be enforced according to the procedures set forth in the Concord Development Code, Article VIII, Division 9, Section 122-1375;namely, through administrative abatement and issuance of administrative citations and fines. Enforcement of the proposed ban on outdoor medical marijuana cultivation may also be undertaken utilizing the remedies conferred upon the City by Civil Code Section 3494 and Code of Civil Procedure Section 731 (abatement by way of civil action filed in Superior Court), Government Code Section 38773 (imposition of liens), or other lawful authority.

It should be noted that because compliance with the Compassionate Use Act and the Medical Marijuana Program Act provides a legal defense to the imposition of criminal penalties relating to medical marijuana cultivation, the City is precluded from imposing its own criminal penalties on individuals who violate the proposed ban on outdoor cultivation. For this reason, the City’s remedies are limited to the civil enforcement mechanisms described above.

F.Impacts of Indoor Medical Marijuana Cultivation on Energy Use and Safety

i.Equipment Potentially Used for Indoor Cultivation

Staff anticipates that if the proposed ordinance is adopted, some (but not all) of the individuals who currently cultivate marijuana outdoors may turn to indoor cultivation. In preparing this staff report, the City Attorney’s Office requested the City’s Chief Building Inspector, Robert Woods, to prepare a written analysis of the type of equipment that is typically used to cultivate marijuana indoors, the impact on energy usage and the environment, and building code/life safety considerations. (Mr. Woods’ written analysis is provided as Attachment “C” to this with this report.) The following is a summary of Mr. Woods’ conclusions.

Lighting. Growing marijuana indoors requires the use of lights to replicate sunlight in the range of light frequencies needed by the plant to grow fast and healthy. During the vegetative growth cycle, light is typically applied for 18 hours during each 24-hour cycle. To induce flowering and throughout the flowering stage, appropriate lighting typically is applied for 12 hours during each 24 hour cycle.

There are two types of high intensity discharge (HID) grow lights typically used by growers: high pressure sodium (HPS) and metal halide (MH). These come in a range of sizes, the most common being 175, 250, 400, 600, and 1,000 Watts. HPS grow lights typically require a ballast to operate, which regulates the amount of voltage delivered to the lights. The ballast also consumes energy.

Light emitting diode (LED) lights are available that provide a wide spectrum of light frequencies in one fixture. The LED lights also runs much cooler than MH or HPS. LED lights also have a long lifetime compared to that of MH or HPS lights. LED light fixtures are typically more expensive than MH or HPS. Thus, it is anticipated that the majority of growers may be using the MH and HPS fixtures.

Temperature. Marijuana plants will tolerate temperatures between 60 degrees F and 92 degrees F. However, the ideal temperature is typically between 70 degrees F and 83 degrees F. Thus, some growers will attempt to regulate the temperature of their grow room to optimize the conditions for growth. This will necessarily require circulating fans and/or exhaust systems to create uniform temperatures. Marijuana also requires carbon dioxide (CO2) and thus requires sufficient fresh air or supplemental CO2. Accordingly, some growers may use exhaust fans with fresh air makeup to provide an adequate supply of CO2.

Circulating Air. Marijuana in its natural environment is strengthened by wind currents that blow the plant around. Some growers may install circulating fans to create airflow to mimic wind to help strengthen the branches in the plants. Circulating air also helps to distribute the makeup air that contains the needed CO2. This will require additional electrical usage.

Nutrients. In hydroponic growing systems, pumps will be used to circulate nutrients to the plants. These will often be regulated by a timer.

ii.Effect on Energy Use

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

No permits are presently required to cultivate medical marijuana in the City; thus the City does not have any statistics quantifying the number of residences where medical marijuana is grown, whether indoors or outdoors. The one indicator for which the City does have data—calls for police service relating to marijuana grows—is not a reliable measure, since it only tabulates law enforcement responses to incidents or complaints concerning marijuana grows, and certainly not all such grows trigger the need for police service. It is worth noting, however, that the number of documented calls for police service relating to marijuana grows is relatively minimal. By way of example, during the calendar year 2012, the Concord Police Department responded to a total of 14 calls for service relating to marijuana cultivation, and all of those calls pertained to only four (4) locations.

Based on current information, there is no indication that a statistically significant number of marijuana grows exist in the City, relative to the City’s total population or number of residences. Moreover, in calculating the anticipated effect of the proposed ordinance on energy usage, one must consider that not all residents who presently cultivate marijuana outside will turn to indoor cultivation if the ordinance is adopted. Indeed, many outdoor growers may forgo cultivating their own marijuana, and instead purchase medicalmarijuana from dispensaries in nearby cities. By the same token, individuals who currently cultivate medical marijuana indoors will not be affected at all by the ordinance, nor will the ordinance increase their energy usage.

Staff also wishes to underscore that the proposed ordinance limits indoor cultivation of medical marijuana tooccupied dwellings, dwelling units, and housing units, which are defined so as to exclude accessory structures. Accordingly, “warehouse” style growing operations are not permitted, and the size of indoor grows will be limited in scope.

Based on these factors, staff does not believe that passage of the proposed ordinance will significantly increase energy use in the City.