In the face of the passage of Proposition 64, which legalized recreational marijuana in California under a number of rules and restrictions, local jurisdictions are having to create their own local land use and regulatory guidelines.
Tuesday will see a city council workshop where they hope to provide feedback and direction to staff on the refinement of a proposed medical and personal cannabis cultivation ordinance.
The council would consider repealing the existing cultivation section of the Municipal Code Article 40.26.276 (Marijuana Cultivation), and adding a new Article 40.26A (Personal Cultivation of Marijuana) regulating activities related to non-commercial, personal use, indoor and outdoor cannabis/marijuana cultivation in residential zones, and potential performance standards for indoor and outdoor cultivation.
The other portion would consider future acts regulating, prohibiting, permitting or conditionally permitting related cannabis businesses, including retail dispensaries.
Should the city council desire to move forward with the proposed personal use cultivation ordinance, staff could bring the items back to council for a public hearing on April 4, 2017, with a final decision on the commercial cannabis land use regulations to be brought back for a public hearing prior to the July 4, 2017, commercial cannabis business moratorium expiration.
Last June, the voters approved Measure C which would allow a business license tax on marijuana businesses for an amount of up to 10 percent annual gross receipts of a business. Measure C allows for council discretion in setting the gross receipts tax rates at any lower rate, and could subsequently raise such tax rate so long as it does not exceed the 10 percent of annual gross receipts.
With the passage of the Adult Use Marijuana Act (AUMA) approved by the voters in November of 2016, new regulations were required to address both medical marijuana and marijuana, with the council enacting the urgency ordinance which expires on July 4.
Under the recently passed law – Personal Consumption and Cultivation:
- Legalizes the nonmedical use of marijuana by persons over 21 years of age.
- Persons over 21 years of age are allowed to possess, transport, purchase, obtain or give away up to 28.5 grams of non-concentrated or 8 grams of concentrated marijuana.
- No smoking of marijuana is allowed in public places (except where authorized locally).
- No smoking of marijuana is allowed where smoking tobacco is prohibited.
- Persons over 21 years of age are allowed to cultivate up to six (6) marijuana plants within a private residence, inclusive of within a greenhouse or other structure on the same parcel of the property that is not visible from a public space. A residence includes single-family homes, multi-family apartment units and mobile homes.
- Local governments may reasonably regulate but not prohibit personal indoor cultivation.
- Local governments may regulate or prohibit personal outdoor cultivation.
Key points regarding the proposed ordinance include the following:
Indoor Cultivation
- Permitted in all residential districts, all residential uses within planned development districts of a similar nature, and residential uses within mixed-use districts.
- All indoor personal cultivation, including by a qualified patient or primary caregiver shall occur in a dwelling or fully-enclosed accessory building or structure.
- Structures and equipment used for indoor cultivation, such as indoor grow lights, shall comply with all applicable building, electrical and fire code regulations as adopted by the city.
- The cumulative cultivation area for medical marijuana shall total no more than 50 contiguous square feet per qualified patient, and no larger than 250 contiguous square feet for primary caregivers, regardless of how many qualified patients or primary caregivers reside at the premises. Either a qualified patient or primary caregiver shall reside full-time on the premises where the marijuana cultivation occurs.
- For persons other than qualified patients or primary caregivers, all personal cultivation shall be conducted by persons 21 years of age or older. For persons other than qualified patients or primary caregivers, the cumulative total of marijuana plants on the property, indoor and outdoor, shall not exceed 6 marijuana plants, regardless of the number of persons residing on the property.
- Personal cultivation of marijuana shall not interfere with the primary occupancy of the building or structure, including regular use of kitchen or bathrooms.
- No exterior evidence of marijuana cultivation occurring at the property shall be discernable from the public right-of-way.
- The ordinance does not preclude any landlord from limiting or prohibiting personal cultivation of marijuana by tenants.
- The ordinance does not authorize commercial cultivation of marijuana.
Outdoor Cultivation
- Permitted in all residential districts, all residential uses within planned development districts of a similar nature, and residential uses within mixed-use districts.
- Permitted only in a rear or side yard that is entirely enclosed by a solid, opaque fence that is associated with a dwelling or secondary dwelling unit.
- The height of the marijuana plants shall not exceed the standard fence height applicable to the parcel, or 6 feet, whichever is lesser.
- The marijuana plants shall be placed at a minimum setback of 3 feet from the edge of mature canopy to the property line.
- No exterior evidence of marijuana cultivation occurring at the property shall be discernable from the public right-of-way.
- For persons other than qualified patients or primary caregivers, all personal cultivation shall be conducted by persons 21 years of age or older.
- The cumulative total of marijuana plants on the property, indoor and outdoor, shall not exceed six (6) marijuana plants, regardless of the number of persons residing on the property.
- The ordinance does not preclude any landlord from limiting or prohibiting personal cultivation of marijuana by tenants.
- The ordinance does not authorize commercial cultivation of marijuana.
- The ordinance is limited to the issue of personal cultivation of marijuana.
Staff notes: “The Police Department has raised the potential for public safety concerns with outdoor cultivation for personal use. The concerns include plant odors, potential for increased theft through the creation of an attractive nuisance, greater access to minors and increased cannabis visibility in the community.”
Staff has also prepared a Commercial Cannabis Land Use Matrix “which includes other marijuana related uses to be addressed including dispensaries, manufacturing and testing, commercial cultivation and mobile delivery. An associated Commercial Cannabis Study Areas Map is also provided to facilitate City Council discussion and feedback on possible locations for various cannabis businesses within the City.”
Staff writes, “The Commercial Cannabis Land Use Matrix is intended to focus on land use for business location purposes. There will be performance standards and additional regulatory requirements associated with operating requirements, licensing and taxation in other chapters of the Municipal Code.”
Here is the matrix:
—David M. Greenwald reporting
