Chapter 17.42 — MEDICAL CANNABIS CULTIVATION REGULATIONS

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 Proposition 215 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.

B.

In 2004, the Legislature enacted the Medical Marijuana Program Act, "MMPA," Senate Bill 420 (codified as California Health and Safety Code Section 11362.7 et seq.) to clarify the scope of Proposition 215, and to provide qualified patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes with a limited defense to specified state criminal statutes.

C.

In recent years, Trinity County has seen a proliferation of illegal marijuana cultivation operations that falsely claim to be conducted in accordance with Proposition 215 and the MMPA. These operations grow marijuana not just for individuals living on the property where the marijuana is grown, but for numerous others—sometimes hundreds of persons—many of whom do not live in Trinity County, and whose status as qualified patients or primary caregivers is questionable.

D.

The proliferation of illegal marijuana cultivation operations within the county—particularly as pertains to operations intended to serve persons who are not Trinity County residents, poses serious threats to the health, safety, and well-being of the county and its residents. The deleterious impacts of such widespread cultivation include, but are not limited to: Degradation of the natural environment associated with large

marijuana grows, including diversion of, and discharges into, streams, creeks, and other natural watercourses; taking of endangered species, such as the Coho Salmon and Northern Spotted Owl; on-site grading without regarding to topography or erosion control, causing sedimentation of water bodies; erection of unpermitted and illegal buildings and structures; disposal of human waste without connection to sewage or septic systems; disposal of garbage and rubbish directly onto the property of grow sites; and the abandonment of grow sites without remediation of the aforementioned impacts.

E.

The impact of such illegal cultivation operations has been particularly acute in residential areas of the county. Property owners in these areas, many of whom have moved to the community very recently, have planted several marijuana plants, sometimes as many as hundreds, on their properties. These plants are often directly visible to surrounding properties and visible from public streets. Plants also are sometimes cultivated openly and visibly near public schools, day care facilities, parks, and other areas where children are present. Throughout the growing and processing seasons, and especially during and immediately following harvesting, noise, lighting, unpermitted structures, and vehicle traffic associated with the grow operations continue into late hours of night and early morning. As the marijuana plants bud, they also can produce a very distinct and annoying odor (sometimes described as "skunky") that can often be smelled many hundreds of feet away from the property where they are grown and throughout the community.

F.

In light of the considerable and extensive public comments provided to the planning commission and board of supervisors, received during numerous meetings held over a period of three years, the board of supervisors concludes that the deleterious impacts of illegal marijuana cultivation, as described above, are fully confirmed and supported by the great weight of evidence. The board further concludes these impacts create significant public nuisances and that the failure to enact regulations to control such operations

would be detrimental to the public health, safety, and welfare and would result in further and significant degradation of the environment.

(Ord. No. 315-797, § 1, 6-5-12; Ord. No. 315-852, § III, 7-19-22)

As used within, the following terms are defined as follows:

"Marijuana" shall refer to any plant of the genus cannabis.

"Primary caregiver," as described in People v. Mentch (2008) 45 Cal.4th 274, is a person who:

1.

Consistently provided caregiving to a qualified patient,

2.

Independent of any assistance in taking medical cannabis,

3.

At or before the time he or she assumed responsibility for assisting with medical cannabis.

"Qualified patient" means a person who is entitled to the protections of Health and Safety Code Section 11362.5 (Proposition 215).

(Ord. No. 315-797, § 1, 6-5-12)

Editor's note— Ord. No. 315-852, § III, adopted July 19, 2022, repealed § 17.42.030, which pertained to unauthorized land—declaration and derived from Ord. No. 315-797, § 1, adopted June 5, 2012.

Neither the county nor any of its officials, employees, or staff members shall take any action to enforce any provision of this title against any person who satisfies all the requirements of this chapter. Persons who satisfy all such requirements shall be considered immune from enforcement of this title against them so long as their compliance with this chapter continues.

(Ord. No. 315-797, § 1, 6-5-12; Ord. No. 315-852, § III, 7-19-22)

Cultivation, harvesting, processing, drying, and assembling of marijuana shall meet the requirements of this chapter only if such activities are undertaken for personal use.

(Ord. No. 315-797, § 1, 6-5-12; Ord. No. 315-852, § III, 7-19-22)

Activities shall be considered to be conducted for personal use in accordance with Section 17.42.050 only if they are conducted to provide for the medical needs of qualified patients living on the parcel, and/or up to no more than one qualified patient living off the parcel, and if the activities meet all the following standards:

A.

The activities are conducted exclusively on a legal parcel of property on which a single-family residence is located.

B.

Only qualified patients or qualified caregivers conduct the activities.

C.

If any person conducting the activities is not the lawful owner of the parcel, such person shall maintain a notarized letter from the legal owner(s) consenting to the cultivation, harvesting, processing, drying, or assembling of marijuana on the parcel.

D.

Each building or outdoor area in which marijuana is cultivated, harvested, processed, dried, or assembled shall be set back from the property boundaries at the farthest feasible location from neighboring residences, but at a minimum in accordance with the applicable zoning regulations, including setback limitations, for the district in which the property is located.

E.

Marijuana being cultivated, harvested, processed, dried, or assembled must be secured from public access, and must not be readily visible from off the parcel. All marijuana cultivated outdoors shall be located behind a fully enclosed opaque fence of at least six feet in height. The fence may not be constructed or covered with plastic or cloth, except that shade cloth may be used on the inside of the fence. Vegetative fences shall not constitute an adequate fence under paragraph. The fence must be adequately secured to prevent unauthorized entry. All processed marijuana must be secured to deter theft.

F.

Marijuana may not be cultivated, harvested, processed, dried, or assembled outdoors within one thousand feet of any school, recreation center, youth center, church, library, child-care facilities, substance abuse center or other public gathering area, nor shall such activities be undertaken within five hundred feet of any school bus stop.

G.

The cultivation, harvesting, processing, drying, or assembling of marijuana shall comply with the all applicable building, zoning, and environmental regulations set forth in this title and all other provisions of the county code and state law.

H.

The power source for the activities shall comply with all appropriate building and fire code standards and permitting criteria. Should a generator be used, the fuel-storage facility shall be reviewed and approved by the appropriate agency. If public utilities are available the site must connect to those utilities. Noise impacts from generator use shall be limited to the hours of eight a.m. to eight p.m.

I.

The use of butane to enhance or for additive purpose in processing marijuana is prohibited.

(Ord. No. 315-797, § 1, 6-5-12)

17.42.070 - Maximum number of plants; square footage.

The marijuana grown on any parcel shall not exceed the following number of plants or square footage in size:

A.

For parcels of one acre or less, two marijuana plants or fifty square feet;

B.

For parcels between one acre and two and one-half acres, four plants or one hundred square feet;

C.

For parcels between two and one-half acres and five acres, six plants or two hundred square feet;

D.

For parcels between five and ten acres, six plants or three hundred square feet;

E.

For parcels of ten acres or greater, eight plants or four hundred square feet.

For

purpose of these size restrictions, any stacked growing levels or stories shall be measured separately as part of the total area permitted. The term "area," as used in this section, shall also be considered contiguously (i.e., plants may not be grown in separate areas of the property and their respective square footages combined to calculate area.) No part of a plant's canopy shall extend beyond the perimeter of the permitted area.

(Ord. No. 315-797, § 1, 6-5-12)

An individual property may also cultivate additional marijuana plants so long as such plants are immature. An immature plant is one where no part of the plant is flowering or displaying its sex. The number of immature plants that may be cultivated, when combined with the number of mature plants, shall not exceed twice the number of plants permitted for each size category stated in Section 17.42.070.

(Ord. No. 315-797, § 1, 6-5-12)

Indoor cultivation of mature marijuana plants shall be limited to the same maximum size standards as stated in Section 17.42.070. Such cultivation may be conducted only in an approved accessory structure appropriate for that purpose, as defined by the current California Building and Fire Code standards.

(Ord. No. 315-797, § 1, 6-5-12)

Should marijuana cultivation, harvesting processing, drying, or assembling activities generate any odorrelated complaint from property owners or residents who reside within one-quarter mile (one thousand three hundred twenty feet) from the location of the parcel on which the activities occur, and if such odor can be independently verified in the location by a designated county representative, the county may declare the creation of such odor a public nuisance and abate the same in accordance with Chapter 8.64 of the county code or other applicable law.

(Ord. No. 315-797, § 1, 6-5-12)

17.42.110 - Other provisions.

A.

This chapter shall be enforced only by means that are civil in nature. The county shall not commence or undertake any criminal proceedings to enforce this chapter.

B.

Any activities conducted under this chapter must strictly comply with Proposition 215, the MMPA, and the California Attorney General's Guidelines for Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended.

C.

Neither the ordinance codified in this chapter, nor any of its provisions, shall be deemed to provide a defense or immunity to any action brought against any person by the Trinity County District Attorney, the Attorney General of State of California, or other state law enforcement authority. Nor is this chapter intended to alter or exempt any provision of federal law prohibiting the cultivation, processing, drying, assembly, or of cannabis, or the enforcement of federal law by federal authorities.

(Ord. No. 315-797, § 1, 6-5-12)

Chapter 17.43 - COMMERCIAL CANNABIS CULTIVATION REGULATIONS

Sections:

Footnotes:

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Editor's note— Ord. No. 315-849, § 1, adopted December 28, 2020, repealed the former Chapter 17.43, §§ 17.43.010—17.43.090, and enacted a new Chapter 17.43 as set out herein. The former Chapter 17.43 pertained to similar subject matter and derived from Ord. No. 315-843, adopted February 20, 2019 and Ord. No. 315-848, adopted December 15, 2020.

17.43.010 - Definitions.

As used herein the following definitions shall apply:

"Active building permit" means holding a valid Trinity County Building Permit and is compliant with all Trinity County Building Department requirements for building.

"Agricultural commissioner" or "agricultural commissioner's office" means the Trinity County Agricultural Commissioner's Office or the authorized representatives thereof.

"Area" is the measurement of cannabis plant growth in square feet as defined by the California Department of Food and Agriculture. As of December 21, 2016, the area is defined as canopy area, but it is subject to change. All changes by California Department of Food and Agriculture are automatically incorporated herein.

"Attorney general's guidelines" means guidelines for the security and non-diversion of cannabis grown for medical use issued by the attorney general in August 2008.

"Canopy" means the designated area(s) at a licensed premise that will contain mature plants at any point in time. This definition is intended to mirror the definition of "canopy" as defined by the State of California, or as may be amended.

"CDFW" means the California Department of Fish and Wildlife.

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

"Commercial cannabis" means any commercial cannabis activity allowed under MMRSA, AUMA and/or MAUCRSA (SB 94), as limited by the allowable licenses below, as may be amended from time to time, and all uses permitted under any subsequent enacted state law pertaining to the same or similar use for recreational cannabis. Prior to January 1, 2018, the cannabis shall be for medicinal cannabis patients in California pursuant to the Compassionate Use Act of 1996 (Proposition 215) found at Section 11362.5 of the Health and Safety Code.

"Cultivation" means the planting, growing, harvesting, drying or processing of cannabis plants or any part thereof.

"Designated area" means the hoop-house, greenhouse, and/or outdoor area(s), identified for the planting, growing and harvesting of cannabis, excluding drying, processing and other post-harvest cultivation activities. Designated area shall not exceed two hundred percent of the area for the license type unless otherwise approved by the planning director; canopy (mature plants) will not exceed the square footage allowed per license type and the additional square footage shall include immature plants (in a vegetative state prior to flowering) and access areas. Licensees propagating immature plants for distribution or seed for distribution to another licensee shall obtain a nursery license.

"EPA" means the United States Environmental Protection Agency.

"Fully enclosed and secure structure" means a space within a building or other structure, excluding greenhouses, 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 or more lockable doors and inaccessible to minors.

"Immature" which is defined under California Code of Regulations Section 8000, and, at the time of enactment, means cannabis plant that is not flowering.

"Indoor" means within a "fully enclosed and secure structure" as defined herein, using artificial lights at a rate greater than twenty-five watts per square foot.

"Legal dwelling" means a building intended for occupancy as living quarters built prior [to] 1972 or that is properly permitted by the County.

"Legal parcel" means a parcel with a distinct and separate assessor's parcel number. Where contiguous legal parcels are under identical ownership by an individual or an entity, such legal parcels shall be counted as a single parcel for purposes of this chapter. "Marijuana" and "cannabis" are used interchangeably and means any plant of the genus cannabis, as defined by Section 11018 of the Health and Safety Code.

eans a parcel with a distinct and separate assessor's parcel number. Where contiguous legal parcels are under identical ownership by an individual or an entity, such legal parcels shall be counted as a single parcel for purposes of this chapter. "Marijuana" and "cannabis" are used interchangeably and means any plant of the genus cannabis, as defined by Section 11018 of the Health and Safety Code.

"Mature" which is defined under California Code of Regulations Section 8000, and, at the time of enactment, means a cannabis plant that is flowering;

"Medical Cannabis" means cannabis or cannabis plant used for medicinal purposes in accordance with California Health and Safety Code Section 11362.7 et seq.

"Mixed light" means the cultivation of mature cannabis in a greenhouse, hoop-house, glasshouse, conservatory, hothouse, or other similar structure using one of the artificial lighting models described below:

"Mixed-light Tier I" which is defined under California Code of Regulations Title 3 Division 8 Chapter 1 Article 1 Section 8000, and, at the time of enactment, means the use of artificial light at a rate of six watts per square foot or less;

"Mixed-light Tier 2" which is defined under California Code of Regulations Section 8000, and, at the time of enactment, means the use of artificial light at a rate above six and below or equal to twenty-five watts per square foot.

"Outdoors" or "outdoor cultivation" means the cultivation of mature cannabis without the use of artificial lighting in the canopy area at any point in time. Artificial lighting is permissible only to maintain immature plants. Light deprivation is permitted.

"Planning department" means the Trinity County Planning Department, or department or agency that is designated by the Trinity County Planning Director.

"Premises" means the designated structure(s) and land specified in the application that is owned leased, or otherwise held under the control of the applicant or licensee where the commercial cannabis activity will be or is conducted. The premises may only be occupied by one county commercial cannabis cultivation license type. Multiple additional commercial cannabis activities (i.e. nursery, distribution, manufacturing, etc.) may exist on the same legal parcel.

"Primary caregiver" means a "primary caregiver" as defined in Health and Safety Code Section 11362.7(d).

"Proof of enrollment" shall mean proof of order number in good standing from the NCRWQCB or the State Water Resource Quality Control Board.

"Qualified patient" means a "qualified patient" as defined in Health and Safety Code Section 11362.7(t).

"Residential treatment facility" means a facility providing for treatment of drug and alcohol dependency.

"Self-transport" means the transportation within the State of California by a licensed cultivator of their own cannabis grown from their own licensed cultivation site. "School" means an institution of learning for minors, whether public or private (excluding homeschools), offering a regular course of instruction required by the California Education Code, or any licensed preschool or child day care facility. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education.

"Site" has the same meaning as "premises" as defined within this chapter.

"Summary abatement" means the removal of an immediate threat to the public health or safety.

"SWRCB" means the California State Water Resources Control Board.

"Watts per square foot" which is defined under California Code of Regulations Section 8000, and, at the time of enactment, means the sum of the maximum wattage of all lights identified in a designated canopy area(s) in the cultivation plan divided by the sum of the dimension in square feet of designated canopy area(s) identified in the cultivation plan.

"Wildlife exclusionary fencing" means fencing designed and installed to prevent the entry of wildlife into the enclosed area, such as cyclone or field game fencing a minimum of six feet high measured from grade.

"Variance" is defined as Trinity County Ordinance No. 315, Section 31.

"Youth-oriented facility" means public park, school, authorized bus stop or any establishment that advertises in a manner that identifies the establishment as catering to or providing services primarily intended for minors, or the individuals who regularly patronize, congregate or assemble at the establishment are predominantly minors.

(Ord. No. 315-849, § 1, 12-28-2020)