Banning Municipal Code Ch. 5.34 Marijuana Cultivation

Footnotes:

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Editor's note— Ord. No. 1506, § 1, adopted March 14, 2017, repealed the former Ch. 5.34, §§ 5.34.010—5.34.080, and enacted a new Ch. 5.34 as set out herein. The former Ch. 5.34 pertained to similar subject matter and derived from Ord. No. 1505, § 1, adopted Dec. 12, 2016.

A. The purpose of this chapter is to prevent community-wide adverse impacts including, but not limited to, increased criminal activity, fire and chemical hazards, objectionable odors, late night traffic, and the general deterioration of neighborhoods associated with marijuana cultivation.

B. Marijuana cultivation in the city can adversely affect the health, safety and well-being of city residents. Therefore, reasonable regulation of marijuana cultivation is proper and necessary to avoid the concentration of substantial amounts of marijuana in one place and 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.

(Ord. No. 1506, § 1, 3-14-17)

For the purposes of this chapter, the following definition shall apply:

"Childcare center" shall mean any licensed childcare center, daycare center, childcare home, or any preschool.

"Church" shall mean any structure or leased portion of a structure, which is used primarily for religious worship and related religious activities.

"Commercial cannabis activity" shall mean the possession, processing, transporting, obtaining, purchasing or giving away, storing, cultivation, or manufacture of marijuana for compensation or sale. "Commercial cannabis activity" shall also mean the laboratory testing, distribution, delivery, dispensing, mobile dispensing, or mobile delivery of marijuana.

"Community center" shall mean any facility open to the public at which classes, social activities, recreational activities, educational activities, support and public information are offered for all residents of the community.

"Detached accessory structure" shall mean a building completely detached from a residence that complies with the California Building Code and has a complete roof enclosure supported by connecting walls extending from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments, is secure against unauthorized entry, and is accessible only through one or more lockable doors. Walls and roofs must be constructed of solid materials that cannot be easily broken through, such as two-inch by four-inch or thicker studs overlaid with three-eighths inch or thicker plywood or the equivalent. Exterior walls must be constructed with nontransparent material. Plastic sheeting, regardless or gauge, or similar products do not satisfy this requirement.

"Enforcement officer" shall mean the chief of police, building official, code enforcement official, environmental health department director, public health officer, agricultural commissioner, fire chief, clerk of the board of supervisors, or their designees.

"Indoors" shall mean within a fully enclosed and secure building.

"Marijuana" means all parts of the plant cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodstuff. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination.

"Marijuana cultivation" or "marijuana cultivation activities" shall mean the planting, growing, harvesting, drying, processing, or storage of one or more marijuana plants or any part thereof.

"Marijuana cultivation permit" shall mean a permit issued by the city to a person over the age of twenty-one for the purposes of engaging in marijuana cultivation activities pursuant to this chapter.

"Marijuana cultivation permit holder" shall mean the applicant named on the application for a massage cultivation permit.

"Marijuana plant" shall mean any mature or immature marijuana plant, or any marijuana seedling.

"Park" shall mean any public playground, public recreation center or area, and other public areas created, established, designed, maintained, provided, or set aside by the county, and city or any other public entity or agency, for the purposes of public rest, play, recreation, enjoyment or assembly, and all buildings and structures located thereon or therein.

"Premises" shall mean a single parcel of property. Where contiguous parcels are under common ownership or control, such contiguous parcels shall be counted as a single "premises" for purposes of this chapter.

"Primary caregiver" shall have the same meaning as set forth in Health and Safety Code sections 11362.5 and 11362.7, et seq.

"Qualified patient" shall have the same meaning as set forth in Health and Safety Code sections 11326.5 and 11362.7, et seq.

"Rear yard" shall mean the rear open space portion of any premises, whether fenced or unfenced.

"Residential unit" means any building or portion thereof legally existing which contains living facilities, including provisions for sleeping, eating, cooking, and sanitation on a premises or legal parcel located within a residential or agricultural-residential zoning district.

"Responsible party" shall mean: (1) each person committing the violation or causing a condition on a premises located within the jurisdiction of the city which violates this chapter; (2) each person who has an ownership interest in that premises; or (3) each person who, although not an owner, nevertheless occupies or has a legal right or a legal obligation to exercise possession or control over that premises. In the event a person who commits the violation or causes the violation is a minor, then the minor's parents or legal guardian shall be deemed the responsible party.

"School" shall mean any institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education; excluding home school, vocational or professional institution of higher education, including a community college, junior college, college or university.

(Ord. No. 1506, § 1, 3-14-17)

Non-commercial cultivation of small amounts of marijuana for personal use is only permitted in the Ranch Agriculture (R/A), Ranch Agriculture -Hillside (R/A/H), Rural Residential (RR), Rural Residential - Hillside (RR/H), Very Low Density Residential (VLDR), Low Density Residential (LDR), Medium Density Residential (MDR) and High Density Residential (HDR) zones when all of the following conditions and standards are met:

A. Generally.

1. Marijuana cultivation is permitted only on parcels with residential units where the marijuana cultivation permit holder resides full-time. Marijuana cultivation permit holders shall not participate in marijuana cultivation in more than one location within the city. Marijuana cultivation activities may only occur within a residential unit, garage or self-contained accessory structure that is secured, locked and fully enclosed.

2. From the public right-of-way, there shall be no exterior evidence of marijuana cultivation.

3. Prior to the commencement of any marijuana cultivation, the party responsible for the marijuana cultivation shall provide the city with adequate proof of a city marijuana cultivation permit.

4. The marijuana cultivation area shall not adversely affect the health or safety of the nearby residents by creating dust, glare, excessive light, heat, noise, noxious gases, odors, smoke, traffic, vibration, or other impacts, and shall not be hazardous due to the use of storage of materials, processes, products or waste.

5. Cultivation shall not exceed six marijuana plants of any size per residential unit, and subject to the issuance of marijuana cultivation permit. The maximum number of plants shall be limited regardless of the number of qualified patients or primary caregivers residing on the property.

6. Marijuana cultivation activities shall not be upon any property or parcel containing a childcare center, school or church. Furthermore, the marijuana cultivation activities do not take place within one thousand feet of any school, childcare center, public park, government building, or church. The one thousand feet shall be measured from the closest property line of the school, childcare center, public park, government building or church, to the closest property line of the cultivation parcel.

7. Indoor grow lights shall not exceed one thousand two hundred watts and shall comply with the California Building, Electrical and Fire Codes as adopted by the city.

8. Any location used for marijuana cultivation must have a ventilation and filtration system installed that shall prevent marijuana plant odors from exiting the interior of the structure and shall comply with California Building Code section 402.3 (Mechanical Ventilation). The ventilation and filtration system must be approved by the enforcement officer and installed prior to the commencement of marijuana cultivation activities.

9. Marijuana cultivation activities shall not be accessible to persons under eighteen years of age.

B. Marijuana cultivation within residential units, specifically. In addition to those requirements listed in Subsection A. of this section, marijuana cultivation activities within a residential unit shall also comply with the following requirements:

1. The residential unit shall, at all times, maintain a kitchen, bathroom, and primary bedroom(s) for their intended purpose, and shall not be used for marijuana cultivation.

2. Any marijuana cultivation activities shall not create humidity, mold, or other nuisance condition.

C. Marijuana cultivation within detached accessory structures, specifically. In addition to those requirements listed in Subsection A. of this section, marijuana cultivation activities within a detached accessory structure shall also comply with the following requirements:

1. The structure shall be no smaller than one hundred twenty square feet in size.

2. The structure shall be located within the rear yard area of any legal parcel or premises.

3. The structure shall maintain a minimum setback of ten feet from any property line.

4. The structure shall be fully-enclosed and the area surrounding the structure must be enclosed by a solid fence at least six feet in height. The fence must be adequately secure to prevent unauthorized entry. Bushes, hedgerows, plastic sheeting, tarps or cloth material shall not constitute an adequate fence under this subsection.

5. The structure shall maintain adequate mechanical or electronic security systems, approved by the enforcement officer, and shall install such systems prior to the commencement of cultivation.

6. Any accessory structure used for marijuana cultivation must have a valid building permit issued by the city building official. The building official shall consult with the planning director and enforcement officers in consideration of any building permit application seeking a building permit for the construction or alteration of any detached accessory structure to be used for marijuana cultivation.

(Ord. No. 1506, § 1, 3-14-17)

A. There shall be no variances or deviations permitted to any standards or requirements within this chapter.

B. Nothing in this chapter is intended to authorize the cultivation, possession, or use of marijuana in violation of state law.

(Ord. No. 1506, § 1, 3-14-17)

A. Prior to commencing any marijuana cultivation, the person(s) owning, leasing, renting, occupying, or having charge or possession of any legal parcel or premises where marijuana cultivation is proposed to occur must apply for a marijuana cultivation permit within the city. The following information will be required with the initial permit application and subsequent permit extensions:

1. Adequate proof that the permit holder is twenty-one years of age or older;

2. Notarized signature from the owner of the property consenting to the cultivation of marijuana at the premises on a form acceptable to the city;

3. The name of each person owning, leasing, occupying or having charge of any legal parcel or premises where marijuana will be cultivated;

4. The physical site address of where marijuana will be cultivated;

5. A signed consent form, acceptable to the city, authorizing enforcement officers to conduct an inspection of the detached accessory structure used for marijuana cultivation upon twenty-four hours' notice;

B. The permit shall be valid for no more than one year and may be extended in increments of two years.

C. The enforcement officer may, in his or her discretion, deny any application for a marijuana cultivation permit, or extension thereof, where he or she finds, based on articulated facts, that the issuance of such permit, or extension thereof, would be detrimental to the public health, safety, or welfare. The enforcement officer shall deny an application for a marijuana cultivation permit, or extension thereof, which does not demonstrate satisfaction of the minimum requirements of this chapter. The denial of any permit application or extension shall be subject to appeal by the city council.

D. The city council may establish a fee or fees required to be paid upon filing of an application for a marijuana cultivation permit, as provided by this chapter, which fees shall not exceed the reasonable costs of administering this chapter.

(Ord. No. 1506, § 1, 3-14-17)

A. Any marijuana cultivation permit granted by the city shall become null and void if the city receives and substantiates two complaints of noxious odors resulting from indoor marijuana cultivation within a twelve month period. These complaints must originate from at least two separate individuals and two separate properties adjoining, or within proximity to, the property engaging in marijuana cultivation.

B. Upon revocation of a marijuana cultivation permit, the responsible party, property owner, tenant, or permittee shall remove all marijuana plants from the premises within thirty days of official notice from any enforcement officer.

(Ord. No. 1506, § 1, 3-14-17)

Any person aggrieved by the requirements of this chapter may file an appeal pursuant to the requirements of Chapter 5.04 of the Banning Municipal Code.

(Ord. No. 1506, § 1, 3-14-17)

A. It is unlawful and a public nuisance for any person owning, leasing, renting, occupying, or having charge or possession of any legal parcel or premises within any zoning district in the city to cause or allow such parcel or premises to be used for the outdoor cultivation of marijuana plants.

B. It is unlawful and a public nuisance for any person to cultivate marijuana inside any residential building or structure without a marijuana cultivation permit issued by the city.

C. It is unlawful and a public nuisance for any person to engage in commercial cannabis activity in any area of the city.

D. It is unlawful and a public nuisance for any person to use gas products, such as CO 2 , butane, propane, and natural gas, for the cultivation, extraction, or processing of marijuana.

E. It is unlawful and a public nuisance for any person to use generators for marijuana cultivation activities.

F. In addition to the foregoing, any use or condition caused or permitted to exist in violation of any of the provisions of this chapter shall be and is hereby declared a public nuisance and may be abated by the city or subject to any available legal remedies, including but not limited to, civil injunctions. The prohibitions outlined in this chapter shall be imposed regardless of the number of qualified patients or primary caregivers residing at the premises or participating directly or indirectly in the cultivation. Further, this prohibition shall be imposed notwithstanding any assertion that the person(s) cultivating marijuana are the primary caregiver(s) for qualified patients or that such person(s) are collectively or cooperatively cultivating marijuana.

(Ord. No. 1506, § 1, 3-14-17)

In the discretion of the enforcement officer, any person violating the provisions of this chapter shall be issued an administrative citation pursuant to Banning Municipal Code Chapter 1.20. Each such violation shall be deemed a separate offense. This section provides a civil penalty remedy that is in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this chapter.

(Ord. No. 1506, § 1, 3-14-17)