Modesto Municipal Code Art. 6 Personal Cannabis Cultivation

(a) The purpose of this Ordinance is to allow marijuana (cannabis) to be cultivated inside a private residence or inside an accessory structure, subject to certain reasonable regulations, in all zones of the City.

(b) The City has the power to regulate permissible land uses throughout the City and to enact regulations for the preservation of the public health, safety and welfare of its residents and community. This Ordinance is also consistent with the General Plan of the City which promotes safe neighborhoods and communities.

(c) This Ordinance is intended to acknowledge that the cultivation and use of cannabis is illegal under the Controlled Substances Act. Based upon the Department of Justice's James A. Cole Memo, the City has determined that this Ordinance will sufficiently meet the enforcement priorities described in the Cole Memo. This Ordinance will, among other things, safeguard minors from cannabis while granting limited immunity from local prosecution to cannabis cultivation that does not violate the restrictions and limitations set forth in this Ordinance.

(d) This Ordinance is adopted consistent with the City's police power provided by Article XI, section 7 of the California Constitution. The purpose of this Ordinance is to require that cannabis be cultivated only in appropriately secured, enclosed structures, so as not to be visible to the general public, to provide for the health, safety, and welfare of the public, to avoid nuisance odor created by cannabis plants from impacting adjacent properties, to ensure that cannabis remains secure and does not find its way to minors, illicit markets, and to prevent crime associated with cannabis.

(e) It is the purpose of this section: to require that the indoor cultivation of cannabis occur only in appropriately secured, enclosed, and ventilated structures so as not to be visible to the general public; to provide for the health, safety and welfare of the public; to prevent odor created by cannabis plants from impacting adjacent properties; and to ensure that cannabis grown for medical and nonmedical purposes remains secure and does not find its way to persons under the age of twenty-one (21) or to illicit markets. Nothing in this section is intended to impair any defenses available to qualified patients or primary caregivers or recreational use of cannabis under the applicable State law. Nothing in this section is intended to authorize the cultivation, possession, or use of cannabis in violation of state or federal law.

(Ord. No. 3683-C.S., § 3, effective February 15, 2018)

For purposes of this article, the following definitions shall apply, unless the context clearly indicates otherwise:

"Abatement" means the removal of cannabis plants and improvements that support cannabis cultivation which are in excess of the number of plants allowed to be cultivated under this article.

"Bedroom" means a room inside a residential building being utilized by any person primarily for sleeping purposes or a room primarily designed for sleeping purposes.

"Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not, or any other strain or varietal of the genus Cannabis that may exist or be discovered, or developed, that has psychoactive or medical properties, whether growing or not, including but not limited to the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" also means cannabis as defined by California Health and Safety Code section 11018 and Business and Professions Code section 26001(f), as both may be amended from time to time. Any reference to cannabis or cannabis products shall include medical and nonmedical cannabis and medical and nonmedical cannabis products, unless otherwise specified. Cannabis or cannabis product does not mean industrial hemp as defined by Health and Safety Code section 11018.5. Cannabis 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 the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

"Cannabis cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.

"Cultivation site" means a location where cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or a location where any combination of those activities occurs.

"Fully enclosed and secure structure" means a space within a building, greenhouse or other legal structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one (1) or more lockable doors and inaccessible to minors. Fully enclosed and secure structure does not include temporary or non-secure structures such as a hoop house or tents.

"Indoors" means within a fully enclosed and secure structure.

"Marijuana" shall have the same meaning as cannabis, as defined in this -article.

"Outdoors" means any location within the City of Modesto that is not within a fully enclosed and secure structure.

"Parcel" means property assigned a separate parcel number by the Stanislaus County assessor.

"Premises" means a single, legal parcel of property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall constitute a single "premises" for purposes of this article.

"Primary caregiver" means a "primary caregiver" as defined in Section 11362.7(d) of the Health and Safety Code, as may be amended from time to time.

"Private residence" means any house, apartment unit, mobile home, or other similar dwelling.

"Qualified patient" means a "qualified patient" as defined in Section 11362.7(f) of the Health and Safety Code, as may be amended from time to time.

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

"Residential structure" 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 zoning district that allows residential uses.

"Sale" or "sell" means any transaction whereby, for any consideration including trades, barters, or exchanges, title to cannabis or cannabis products is transferred from one (1) person to another.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

All outdoor cultivation of cannabis within the City is prohibited. It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any parcel within any zoning district in the City of Modesto to cause or allow such parcel to be used for the outdoor cultivation of cannabis, regardless of whether such cultivation is for medical, recreational or personal uses.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

(a) It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any parcel in the City of Modesto to cause or allow such parcel to be used for the cultivation of cannabis plants except as provided in subsections (b) and (c) of this section.

(b) Who is permitted to cultivate cannabis indoors.

(1) Only a person who is at least eighteen (18) years of age and either a qualified patient or a primary caregiver, or an adult who is at least twenty-one (21) years of age, may engage in indoor cultivation of cannabis.

(2) Residency requirement. The person cultivating the cannabis shall reside full-time on the premises where the indoor cultivation of cannabis occurs.

(3) Permission of owner. Tenants or anyone cultivating shall obtain the written permission and signature of the property owner(s) prior to cultivating cannabis. A notarized signature from the owner of the property consenting to the cultivation of cannabis at the premises on a form acceptable to the City shall be made available to the City upon request by any City official.

(c) Indoor Cultivation Standards. Cannabis cultivated indoors, within the City of Modesto, shall be in conformance with the following standards:

(1) Indoor cultivation of cannabis is permitted only within a private residence or within a fully enclosed and secure structure to a private residence that meets the requirements of this article;

(2) Cannabis cultivation and the cultivation area must be inaccessible to minors. A fully enclosed and secure structure used for the cultivation of cannabis that is separate from the main residential structure on a premises must maintain a minimum ten (10) foot setback from any property line;

(3) Cannabis cultivation may not occur in both a detached structure and inside a residence on the same parcel. Only one (1) indoor cultivation area is allowed per private residence;

(4) Cannabis cultivation areas shall not be accessible to persons under eighteen (18) years of age. Cultivation areas shall be secured by lock and key or other security device which prevents unauthorized entry;

(5) Indoor cultivation of cannabis shall not exceed six (6) cannabis plants per private residence, regardless of how many qualified adults, qualified patients, or primary caregivers are residing at the private residence;

(6) Cannabis cultivation shall not occur on any carpeted area;

(7) Cannabis cultivation lighting shall not exceed twelve hundred (1,200) watts and shall comply with the California Building, Electrical and Fire Codes as adopted by the City;

(8) The use of gas products (CO2, butane, etc.) or generators for cannabis cultivation or processing is prohibited;

(9) Cannabis cultivation for sale is prohibited;

(10) From a public right-of-way, there shall be no exterior evidence of cannabis cultivation;

(11) The residence shall be occupied and is required to maintain a functioning kitchen and bathroom(s), and the use of the primary bedrooms are for their intended purpose;

(12) Any cannabis cultivation area located within a residence shall not create a humidity or mold problem in violation of Title 9 of the Modesto Municipal Code and State Health and Safety Codes;

(13) Any structure used for the cultivation of cannabis must have proper ventilation to prevent mold damage and to prevent cannabis plant odors or particles from becoming a public nuisance to surrounding properties or the public. A public nuisance may be deemed to exist if the cultivation produces odors which are disturbing to people of normal sensitivity residing or present on adjacent or nearby property or areas open to the public;

(14) The cannabis cultivation area shall not adversely affect the health or safety of the nearby residents by creating dust, glare, heat, noise, smoke, traffic, vibration, or other impacts, and shall not be hazardous due to use or storage of materials, processes, products or wastes;

(15) Any modification to existing structures or plumbing, electrical or mechanical systems shall require a permit from the Building Official, or his or her designee.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

It is hereby declared to be unlawful for any person owning, leasing, occupying, or having charge or possession of any parcel within the City of Modesto to create a public nuisance in the course of cultivating cannabis. A public nuisance may be deemed to exist if such activity produces:

(a) Odors which are disturbing to people of normal sensitivity residing or present on adjacent or nearby property and/or areas open to the public;

(b) Repeated responses (more than three (3) times in a one (1) year time period from the date of the initial violation) to the parcel from law enforcement or code enforcement officers;

(c) Repeated disruption (more than three (3) times in a one (1) year time period from the date of the initial violation) to the free passage of persons or vehicles in the neighborhood;

(d) Excessive noise in violation of applicable City noise standards in the general plan or municipal code;

(e) Any other impacts on the neighborhood which are disruptive of normal activity in the area.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

It shall be unlawful for any person cultivating cannabis pursuant to this article to sell or offer for sale the cannabis permitted to be grown under this article.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

(a) The violation of this article is hereby declared to be a public nuisance. The City may pursue any and all legal and equitable remedies related to the enforcement of the provisions of this code, including criminal, civil, and administrative remedies and penalties and any related cost recovery authorized pursuant to this code and State law in accordance with Title 1 of the Modesto Municipal Code.

(b) Criminal. Any person violating any provision of this article may be prosecuted criminally.

(c) Civil. A violation of this article may be abated by the City Attorney by the prosecution of a civil action for injunctive relief and by the abatement procedure set forth in Title 1 of the Modesto Municipal Code.

(d) Administrative. Whenever any authorized personnel, pursuant to Modesto Municipal Code Section 1-6.103, determines that a violation of any of the provisions of any of the ordinances of the City has occurred, that personnel has the authority to issue an administrative citation to the person responsible for the violation.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

An appeal of an administrative citations for violations of this chapter shall follow the procedures set forth in Modesto Municipal Code Section 1-6.501 et seq., or such other appeal process designated by the enforcement officer.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

(a) In addition to any other remedy allowed by law, any person who violates a provision of this article is subject to criminal sanctions, civil actions, and administrative penalties pursuant to Title 1 of the Modesto Municipal Code.

(b) Any person convicted of a misdemeanor under the provisions of this article shall be punishable by a fine of not more than one thousand dollars ($1,000.00), or by imprisonment in the County Jail of the County of Stanislaus for a period not more than one (1) year, or by both such fine and imprisonment.

(c) Notwithstanding the foregoing, an administrative civil penalty may be imposed pursuant to Modesto Municipal Code section 1-6.301 et seq., for violation of Section 10-3.604(c)(5) in an aggregate amount calculated at one thousand dollars ($1,000.00), per plant in excess of six (6) plants.

(d) The remedies and penalties provided herein are cumulative, alternative and nonexclusive. The use of one (1) does not prevent the use of any others and none of these penalties and remedies prevent the City from using any other remedy at law or in equity which may be available to enforce this article or to abate a public nuisance.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)

(a) Any cannabis cultivation in violation of this article is a public nuisance and is subject to nuisance abatement pursuant to Modesto Municipal Code Section 1-6.603, including the summary abatement provisions of Modesto Municipal Code Section 1-6.604.

(b) Any cannabis cultivation in violation of this article is also subject to the California Uniform Controlled Substances Act (Division 10 of the California Health and Safety Code), including the provisions of chapter 8 (commencing with section 11469) relating to seizure, forfeiture, and destruction of property.

(Ord. No. 3683-C.S., § 3, effective January 16, 2018)