Chapter 18.175 — MARIJUANA CULTIVATION

Editor's note— Ord. No. 349-D, adopted May 8, 2018, amended ch. 18.175 in its entirety to read as herein set out. Former ch. 18.175, §§ 18.175.010—18.175.060, pertained to medical marijuana cultivation, and derived from Ord. No. 349-C, §§ 1A—C, 2A, 3, 4, adopted Dec. 16, 2013.

The board of supervisors finds as follows:

In 1996, the voters of the State of California approved Proposition 215 which was codified as Health and Safety Code Section 11362.5, and entitled "The Compassionate Use Act of 1996."

The intent of the Act was to enable persons who are in need of marijuana for medical puiposes to legally obtain and use it without fear of criminal prosecution under limited, specified circumstances.

This ordinance is enacted, consistent with Health and Safety Code Section 11362.7 et seq., to protect the public health, safety and welfare of Modoc County residents from the negative effects of commercial marijuana cultivation, marijuana processing, and marijuana dispensaries.

In 2004, Senate Bill 420 was enacted, codified as California Health and Safety Code Section 11362.7, et seq. and entitled the "Medical Marijuana Program Act," to clarify the scope of the Act and allow cities and counties to adopt and enforce rules and regulations consistent with its provisions.

On October 9, 2015, Governor Jerry Brown signed the "Medical Marijuana Regulation and Safety Act" ("Act") into law. The Act became effective on January 1, 2016, and contains new statutory provisions regarding marijuana cultivation and distribution.

The Act does not supersede or limit local authority for local law enforcement activity, enforcement of local ordinances, or enforcement of local permit or licensing requirements regarding marijuana (Business and Professions Code Section 19315(a));

The Act does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government's right to make and enforce within its limits all police regulations not in conflict with general laws (Business and Professions Code Section 19316(c);

On November 8, 2016, California Voters approved Proposition 64 allowing for the adult use of marijuana for recreational purposes, without the need for a doctor's recommendation, and set limits on the amount of marijuana that may be possessed and where marijuana may be consumed.

State law allows local governments to enact ordinances expressing their intent to prohibit the commercial cultivation of marijuana and their intent not to administer a conditional permit program pursuant to Health and Safety Code Section 11362.777 for the cultivation of marijuana (Health and Safety Code Section 11362.777(c)(4);

The board of supervisors finds that this chapter: (1) expresses its intent to prohibit the commercial cultivation of marijuana in the County and to not administer a conditional permit program pursuant to Health and Safety Code Section 11362.777 for the cultivation of marijuana in the county; (2) exercises its local authority to enact and enforce local regulations and ordinances, including those regarding the permitting, licensing, or other entitlement of the activities prohibited by this chapter; (3) exercises its police power to enact and enforce regulations for the public benefit, safety, and welfare of the county and its community; (4) expressly prohibits the commercial cultivation, sale, dispensing of medical marijuana in the county; and (5) regulates personal cultivation for medical and recreational users consistent with state law.

The county has adopted a zoning ordinance identified as title 18 (zoning) of the Modoc County Code.

That prior to the enactment of this section, there were no adopted rules and regulations specifically applicable to the cultivation of marijuana and the lack of such controls could lead to a proliferation of marijuana cultivation and the inability of the county to regulate this land use.

That based on the adverse secondary impacts that have occurred and the lack of any regulatory program in the county regarding the cultivation of marijuana; it is reasonable to conclude that negative effects on the public health, safety, and welfare may occur in the county as a result of the proliferation of large-scale, unregulated marijuana cultivation and the lack of appropriate regulations governing the establishment and operation of such land uses.

That unregulated large scale marijuana cultivation has rapidly increased in the county which increases the risk of criminal activity and the degradation of the natural environment.

That some marijuana grows are occurring on unattended private lands as well as residential areas without owner consent and have been the subject of criminal activities and violations that have threatened the safety and property of nearby land owners and their families.

That in some cases, people protecting the marijuana cultivation operations have been armed and constitute a threat to others who may attempt to use land in the vicinity of the operations.

That some growers are indiscriminately using chemicals and cultivation practices that are causing damage to wildlife and contamination to soil and water sources.

That some growers are clearing land without regard to the consequences resulting in the removal of vegetation, including timber, which leads to soil erosion and siltation of waterways.

That indoor cultivation of substantial amounts of marijuana within a residence presents potential health and safety risks to those living in the residence, especially to children, including risk of fire from lighting systems, exposure to chemicals and exposure to property crimes as the plants themselves may be an attractive nuisance.

Children are particularly vulnerable to the effects of marijuana use and the presence of marijuana plants in close proximity to sensitive areas where children might be present could present an unreasonable hazard or adversely affect the health, safety and welfare of children.

That the county has a compelling interest in protecting the public health, safety and welfare of its residents and businesses, in preserving the peace and quiet of the neighborhoods, and in providing access to marijuana consistent with the intent of the Act.

(Ord. No. 349-D, 5-8-2018)

A.

The Modoc County Board of Supervisors hereby intends to regulate the cultivation of marijuana including without limitation, regulations as to location, number of plants, separation from sensitive areas, use of fencing and screening, lighting, to accommodate the needs of qualified patients, and their primary caregivers, and recreational users in furtherance of the public necessity, health, safety, convenience, and general welfare.

B.

This section is established to regulate marijuana cultivation in a manner that mitigates potential impacts on surrounding properties and persons and that is in conformance with the provisions of California Health and Safety Code. Health and Safety Code Section 11362.777 expressly allows local governments to adopt and enforce ordinances which express their intent to prohibit the commercial cultivation of marijuana and their intent not to administer a conditional permit program.

(Ord. No. 349-D, 5-8-2018)

When used in this chapter, the words or phrases shall be defined as the following:

"County" means the County of Modoc.

"Commercial cannabis cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis for medical use, including nurseries, that is intended to be transported, processed, manufactured, distributed, dispensed, delivered, or sold in accordance with the Medical Marijuana Regulation and Safety Act (MMRSA) for use by medical marijuana patients or recreational cannabis users in California pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code.

"Cultivate" or "cultivation" is the planting, growing, harvesting, drying, processing, or storage of one or more marijuana plants, including nurseries, or any part thereof in any location.

"Cultivation area" is the area wherein all portions of cultivation, including the entire marijuana plant canopy. Cultivation areas shall only be allowed as an accessory use to a residence located on the same parcel.

"Enforcement officer" means the planning director or designee. The Modoc County Sheriff or designee may also serve concurrently as the enforcement officer of this provision of this title with the approval of the planning director. Nothing in this provision shall be construed to limit the authority provided to the Modoc County Sheriff by state or federal law.

"Indoor cultivation" shall mean cultivation within a lawfully permitted detached structure, not built or intended for human occupancy, which is accessory to a residence located on the same parcel. The detached accessory structure must be fully enclosed and secure against unauthorized entry and constructed of solid materials that cannot be easily broken through, otherwise the cultivation will not be considered indoor cultivation.

"Marijuana" shall have the same definition as in California Health and Safety Code Section 11018 as it now reads or subject to any successor amendments. Marijuana shall mean any or all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin or separated 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, including marijuana infused in foodstuff or any other ingestible or consumable product containing marijuana. The term "marijuana" shall also include "medical marijuana" as such phrase is used in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the attorney general for the State of California or subject to the provisions of California Health and Safety Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act). Marijuana and cannabis shall be used interchangeable throughout.

"Marijuana dispensary" or "marijuana dispensaries" means any business, office, store, facility, location retail storefront or wholesale component of any establishment, cooperative or collective that delivers (as defined in Business and Professions Code Section 19300.5(m) or any successor statute thereto) whether mobile or otherwise, dispenses, distributes, exchanges, transmits, transports, sells or provides marijuana to any person for any reason, including members of any medical marijuana cooperative or collective consistent with the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the attorney general for the State of California, or for the purposes set forth in California Health and Safety Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).

"Medical marijuana collective" or "cooperative or collective" means any group that is collectively or cooperatively cultivating and distributing marijuana for medical purposes that is organized in the manner set forth in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the attorney general for the State of California or subject to the provisions of California Health and Safety Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).

"Parcel" means any parcel of real property that may be separately sold in compliance with the Subdivision Map Act (commencing with Section 66410 of the Government Code.)

"Primary caregiver" shall have the same definition as in California Health and Safety Code Section 11362.7 et seq. as it now reads or as amended.

"Processing" means any method used to prepare marijuana or its byproducts for commercial retail and/or wholesale, including but not limited to: drying, cleaning, curing, packaging, and extraction of active ingredients to create marijuana related products and concentrates.

"Qualified patient" shall have the same definition as California Health and Safety Code Section 11362.7 et seq. as it now reads or as amended.

"Residence" means a domicile properly permitted for human occupancy and habitable at the time of cultivation on the same parcel.

"Sensitive uses" are those uses considered to be sensitive to the cultivation of marijuana and as such should be separated from cultivation by a distance equal to or greater than 1,500 feet as measured from the property line of where the sensitive use is located to the property line of the cultivation area. Sensitive uses include public schools, parks, daycare facilities, youth centers, churches, school bus stops, or any establishment, public or private, that caters primarily to persons under 18 years of age, as set forth in California Health and Safety Code Section 11362.3.

"Sheriff" means the Modoc County Sheriffs Office or authorized representatives thereof.

(Ord. No. 349-D, 5-8-2018)

A.

Any person owning, leasing, occupying or having charge or possession of any parcel of land within the unincorporated area of the county who causes or allows such parcel of land to be used for the cultivation of marijuana in violation of the provisions contained herein or any provisions set forth in Division 10 of the Health and Safety Code of the State of California shall be in violation of this code and subject to chapter 8.20 (nuisance abatement) and/or chapter 18.158 (enforcement) of the Modoc County Code.

B.

The cultivation of marijuana plants, either within a residence which is being used for human habitation, in greenhouses, or in non-detached un-permitted structures, or any combination of those, on any parcel, or in any other way not in conformance with the provisions of this section is hereby declared to be a public nuisance that may be abated in accordance with chapter 8.20 (nuisance abatement and civil and criminal penalties for code violations) or [chapter] 18.158 (enforcement) of the Modoc County Code, and by any other available by law. The provision of chapter 18.154 (nonconforming uses and structures) of the Modoc County Code shall not apply to the cultivation of marijuana plants hereby declared to be a public nuisance.

C.

Cultivation is prohibited within the unincorporated area of the county except as an accessory use to a properly permitted residence, so long as the cultivation is taking place in a properly permitted ancillary detached structure that is locked and not opened to the public.

D.

The person(s) cultivating marijuana on any legal parcel shall be the owner of and residing in a lawfully constructed structure on the property. However, if the person(s) cultivating the marijuana is not the legal owner(s) of the parcel, such person(s) shall submit a notarized letter from the legal owner(s) consenting to the cultivation of marijuana on the parcel, in which case the person(s) cultivating the marijuana must reside on the property in a lawfully constructed structure. The notarized letter shall contain a provision that states "the owner of the parcel will be responsible for any and all administrative penalties owed the county and not paid by the lessee for violations of any of the provisions of section 18.175 et seq. of the Modoc County Code."

E.

A primary caregiver may cultivate a maximum of six medical marijuana plants on behalf of a qualified patient(s), but only at the qualified patient's primary residence and/or at the primary caregiver's primary residence, and only in conformance with all applicable state and local regulations and all limitations set forth in this section. There shall be no more than six plants allowed on any parcel.

F.

Cultivation is limited to a maximum of six marijuana plants per parcel, regardless of whether the use of the marijuana is for medical or recreational purposes.

G.

Cultivation within a residence or any other structure lawfully used or intended for human occupancy is prohibited. Indoor cultivation may only occur within a properly permitted, detached structure that is accessory to and located on the same parcel as the residence and in accordance with the definition of indoor cultivation as provided herein.

H.

Cultivation areas must be a minimum of 1,500 feet from sensitive uses, as defined herein. Measurement shall be in a straight line from the boundary line of the premises upon which marijuana is cultivated to the

boundary line of the premises upon which the sensitive use is occurring.

I.

Chemicals, fertilizers, or any other products or equipment associated with the cultivation of marijuana shall be used, stored and disposed of in a manner consistent with the manufacturer's instructions and/or any law that governs same. All gas products (CO 2 , butane, etc.) are prohibited.

J.

Marijuana cultivation shall not adversely affect the health, safety, or general welfare of persons at the cultivation site or at any nearby property by creating dust, glare, heat, noise, noxious gasses, toxic substances, odor, smoke, traffic, or vibration.

K.

Commercial marijuana cultivation, marijuana processing, and marijuana dispensaries shall be prohibited activities in the county, except where the county is preempted by federal or state law from enacting a prohibition on any such activity. No use permit, variance, building permit, or any other entitlement, license, or permit, whether administrative or discretionary, shall be approved or issued for the activities of commercial marijuana cultivation, commercial marijuana processing, or the establishment or operation of a marijuana dispensary in the county, and no person shall otherwise establish or conduct such activities in the county, except where the county is preempted by federal or state law from enacting a prohibition on any such activity for which the use permit, variance, building permit, or any other entitlement, license, or permit is sought.

L.

Delivery and transportation of marijuana must strictly comply with Chapter 8 sections 26080 and 26090 of Proposition 64. Transportation or deliveries not in compliance with state law are prohibited.

M.

Lights used for indoor cultivation shall comply with all applicable laws, including, but not limited to, restrictions on the use of lights or lighting that interferes with the use of any radio or other communication device.

(Ord. No. 349-D, 5-8-2018)

Violations of chapter 18.175 et seq. of the Modoc Municipal Code is a nuisance and shall be subject to chapter 8.20 (nuisance abatement and civil and criminal penalties for code violations) or [chapter] 18.158 (enforcement) of the Modoc County Code, and by any other means available by law. Furthermore, in the performance of his or her function, the enforcing officer is authorized to request and inspect any evidence that serves to confirm compliance with any or all provisions of this section, including, but not limited to, the following: (1) original documents or other evidence establishing the qualified patient or primary caregiver status of the person or persons involved in the cultivation; (2) legal residence of the person or persons

involved in the cultivation; (3) verification of the place of residence of all qualified patients for whom a primary caregiver is cultivating pursuant to Health and Safety Code Section 11362.7(d).

(Ord. No. 349-D, 5-8-2018)

The county board of supervisors finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15061(b)(3) (there is no possibility the activity in question may have a significant effect on the environment.) In addition to the foregoing general exemptions, the following categorical exemptions apply: Sections 15308 (actions taken as authorized by local ordinance to assure protection of the environment) and 15321 (action by agency for enforcement of a law, general rule, standard, or objective administered or adopted by the agency, including by direct referral to the county counsel as appropriate for judicial enforcement.)

(Ord. No. 349-D, 5-8-2018)