Cotati City
CA

Ordinance
878

AN INTERIM ORDINANCE ADOPTED AS AN URGENCY MEASURE OF THE CITY OF COTATI PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 65858 FURTHER EXTENDING FOR A PERIOD OF ONE YEAR A TEMPORARY MORATORIUM
(EXCEPT UNDER CERTAIN CIRCUMSTANCES) ON THE INDOOR CULTIVATION OF NONMEDICAL MARIJUANA

Information

Department:City ManagerSponsors:
Category:Community Safety (Vision for Cotati)Functions:Land Use/Development

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WHEREAS, in 1996 the voters of California approved Proposition 215, codified as California Health and Safety Code Section 11362.5 and entitled “The Compassionate Use Act of 1996;” and 

 

WHEREAS, the intent of Proposition 215 was to enable persons who are in need of medical marijuana for specified medical purposes to obtain medical marijuana, and use it under limited, specified circumstances without fear of criminal prosecution under State law; and

 

WHEREAS, in 2003, the State Legislature enacted SB 420, codified as California Health and Safety Code Section 11362.7 et seq. and entitled the “Medical Marijuana Program Act” (“MMPA”) to clarify the scope of The Compassionate Use Act of 1996; and

 

WHEREAS, effective January 1, 2016, the Medical Marijuana Regulation and Safety Act (“MMRSA”) became effective under which an extensive state regulatory scheme was established providing for the monitoring, inspecting and licensing of commercial medical marijuana businesses.  The MMRSA created a dual-licensing system under which medical marijuana businesses have to obtain both state and local licenses in order to conduct such businesses.  However, the MMRSA explicitly acknowledged that cities and counties retain the right to not only regulate such activities, but to ban them entirely.  The MMRSA also acknowledged that permissive zoning schemes can implicitly prohibit such activities, including the indoor and outdoor cultivation of medical marijuana when those zoning regulations do not expressly list such activities as permitted or conditionally permitted uses; and

 

WHEREAS, on January 26, 2016,  the City Council adopted Resolution No. 2016-4,    which confirmed that the City of Cotati Land Use Code  prohibited and prohibits the cultivation of marijuana in all zoning districts;  and

 

              WHEREAS, on November 8, 2016, the voters approved Proposition 64, the  Control, Regulate and Tax Adult Use of Marijuana Act,  which  legalizes   the recreational, nonmedical  use of marijuana in California for individuals 21 years of age and older; and

 

              WHEREAS, Proposition 64 authorizes the personal cultivation of up to six marijuana plants within a private residence or upon the “grounds” of that private residence for nonmedical purposes; and

 

              WHEREAS, pursuant to Proposition 64, the City can enact reasonable regulations for the cultivation of nonmedical marijuana that occurs inside a residence or accessory structure; and

 

              WHEREAS, Article XI, Section 7 of the California Constitution provides that a city may make and enforce within its limits all local police, sanitary and other ordinances and regulations not in conflict with general laws; and

 

              WHEREAS, California Government Code Section 65858 authorizes a city to adopt as an urgency measure an interim ordinance to protect the public safety, health, and welfare; and

 

              WHEREAS, with the passage of  Proposition 64,  it became more likely than not that the number of individuals who desired to and would cultivate nonmedical marijuana for personal use would be significant.  It was further more likely than not that substantial numbers of persons interested in cultivating nonmedical marijuana would commence doing so immediately,  unless and until local regulations and/or prohibitions (on outdoor cultivation) were enacted which controlled  such activities; and

 

              WHEREAS, the cultivation of medical and nonmedical marijuana in other cities has resulted in  calls for service to their police departments, including calls for robberies and thefts, and  an  increase in criminal activity, and it was  reasonable to assume that unless the City imposed  reasonable controls,  similar, if not greater, numbers of such incidents pertaining to the indoor cultivation of nonmedical marijuana would occur in the City of Cotati.   Similar incidents involving complaints resulting in criminal investigations and the discovery of illegal marijuana cultivations have occurred in the City of Cotati.  With the passage of Proposition 64,  absent the restrictions imposed by this ordinance, there was  a current and immediate threat to the public health, safety and welfare of substantial numbers of persons cultivating nonmedical marijuana indoors and creating the complaints and enforcement problems already being experienced in other communities and the City of Cotati  and exposing citizens to robberies, potential violence, vandalism of property and theft of marijuana plants; and

 

WHEREAS, the City  Council found that allowing the use of property within the City  for the indoor cultivation of marijuana for nonmedical purposes without the City  having any authority to establish conditions, regulations, restrictions, and limitations upon such activities presented a current and immediate threat to the public health, safety, or welfare, including but not limited to the harmful effects associated with such activities, such as: the spread of malodorous smells; indoor electrical fire hazards; inadequate ventilation; health hazards from mold and water damage; criminal activity such as robberies, burglaries, and trespassing, which have been experienced by other communities and/or are significant risks resulting from such activities; and increased nuisance conditions in neighborhoods, among others; and

              WHEREAS, based upon the experience of the State of Colorado and other states in which nonmedical marijuana has been legalized, the passage of  Proposition 64 was likely to have  significant impacts on the City’s  police department, the medical resources of the State and the regulatory function of local agencies, including the City of Cotati; and

 

              WHEREAS, the short period between Proposition 64’s qualification for the November 8, 2016, ballot and the November 8, 2016, election and Proposition 64’s creation of a complex,  state-wide licensing system for the commercial production, delivery, marketing, testing and selling of nonmedical marijuana  impeded and prevented the City  from adequately studying its impacts and the most appropriate manner in which to comprehensively address the issues implicated by the Proposition and its implementation.  The City  needed time to further study the Proposition and whether and to what extent the City’s  General Plan, development code and other regulations needed to be or should be modified to accommodate and/or address the impacts of Proposition 64 on the City  and its citizens.  Had the City Council  permitted the unregulated, indoor cultivation of nonmedical marijuana while it studied the means and methods to address such activities, those persons who were engaged in such indoor cultivation activities could have garnered rights to continue such activities as grandfathered uses, unaffected by later-enacted legislation by the City  Council.  Such an outcome presented an immediate and current threat to the ability of the City Council to properly plan and regulate such activities and would have undermined the purpose of any such plan and regulation as to those persons who were able to commence the indoor cultivation of nonmedical marijuana before such plans and/or regulations were  put into place; and

 

              WHEREAS, in order to determine the most appropriate and publicly beneficial manner in which to address the indoor cultivation of nonmedical marijuana issues implicated by Proposition 64 and the effect of  such indoor cultivation activities should the City  determine to regulate such uses within the City’s  corporate boundaries, and in order to protect residents and businesses from the potential harmful effects of some indoor nonmedical marijuana cultivators,   the City  needed time to study whether to permanently regulate such uses, including, without limitation, to study potential regulations to ensure that minors cannot get access to marijuana plants,  and, if so, the City  needed time to examine the regulations relating thereto and to permit the public adequate time to review and comment upon the issue in accordance with state law in tandem with the City’s  consideration of  any such regulations; and

 

WHEREAS, it would have been destructive of and would have rendered ineffective any proposed policies, restrictions, ordinances and regulations if, during the period they were being studied and considered by the City,  parties could have sought  to avoid their operation and effect and to stablish such uses, which said operations and activities would have defeated, in whole or in part, the objectives of such policies, restrictions, ordinances and regulations; and

 

WHEREAS, absent the adoption of an  interim urgency ordinance extending a temporary moratorium, it was likely that the establishment and operation of indoor nonmedical marijuana cultivations within the City, without appropriate controls in place to regulate same and their impacts on the community, would have resulted in harmful effects to the businesses, property owners and residents of the City; and

 

WHEREAS, because of the facts set forth above, there existed a current and immediate threat that persons would commence indoor nonmedical cultivation operations, that such commencement posed a current and immediate threat to the health, safety and welfare of the residents of the City  and  having such uses  commence operations and operate in the City  before the City had an opportunity to consider, study and/or adopt regulations governing the said indoor cultivations would render such regulations ineffective and destroy the purpose of engaging in such an analysis and process in the first place, thus constituting a current and immediate threat to the health, safety and welfare of the citizens of the City ; and 

 

              WHEREAS, on December 13, 2016,  at a duly noticed regular meeting, the City Council adopted Ordinance No. 866,  establishing a temporary moratorium on the unregulated indoor cultivation of nonmedical marijuana throughout the City for a period of forty-five days; and

 

              WHEREAS, pursuant to California Government Code Section 65858 and notice and public hearing pursuant to California Government Code Section 65090, the City Council was authorized to extend the interim ordinance for 10 months and 15 days; and

 

              WHEREAS, on January 24, 2017,  at a regular meeting, the City Council held a public hearing, following notice thereof in accordance with California Government Code Section 65090, and heard and considered public comment, oral and written, on the proposed extension of the temporary moratorium; and

 

              WHEREAS, pursuant to California Government Code Section 65858(d), at least ten days prior to the expiration of Ordinance No. 866, the City Council issued a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance; and

 

              WHEREAS, the City Council reiterated the findings supporting Ordinance No. 866 and found that it remained necessary to consider, study and/or adopt regulations governing the indoor cultivation of nonmedical marijuana; that commencement of unregulated indoor cultivation of nonmedical marijuana immediately would render potential regulations ineffective md destroy the purpose of engaging in such analysis and process, thus constituting an immediate threat to the health, safety and welfare of the citizens of the City; and that therefore the extension of the temporary moratorium on the unregulated indoor cultivation of marijuana was necessary; and              

 

              WHEREAS, accordingly, on January 24, 2017,  the City Council adopted Ordinance No. 868,  extending the temporary moratorium for a period of 10 months and 15 days; and

 

              WHEREAS, in June 2017 Governor Brown signed Senate Bill 94, merging California’s medical marijuana and adult recreational marijuana laws into a single regulatory system, known as the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”), which took effect immediately; and

 

              WHEREAS, pursuant to MAUCRSA, state licenses for both medical and adult use cannabis businesses will be available in January 2018; and

 

              WHEREAS, under MAUCRSA cities retain full land use authority as to cannabis businesses, and may allow, prohibit and/or regulate them according to local needs, and the state is prohibited from issuing a cannabis license that would violate any local ordinance; and

 

              WHEREAS, the City is presently developing a comprehensive land use ordinance that will govern personal and commercial cannabis uses in the City, which ordinance will be reviewed and considered by the City’s Planning Commission and the City Council, with public comment at each level; and

 

              WHEREAS, Ordinance No. 868 will expire on December 8, 2017; and

 

WHEREAS, the City will not have concluded its deliberations on the proposed land use ordinance prior to the expiration of Ordinance No. 868; and

 

WHEREAS, all of the considerations that led to the City Council’s adoption of Ordinance No. 866 and Ordinance No. 868 remain, and the City Council reiterates its prior findings that it remains  necessary to consider, study and/or adopt regulations governing, or the prohibition of, the outdoor cultivation of nonmedical marijuana; that commencement of outdoor cultivation of nonmedical marijuana immediately would render potential regulations or prohibition ineffective and destroy the purpose of engaging in such analysis and process, thus constituting an immediate threat to the health, safety and welfare of the residents of the City; and that therefore the further extension of the temporary moratorium on the unregulated indoor cultivation of nonmedical marijuana is necessary; and

 

WHEREAS, pursuant to Section 15001 of the California Environmental Quality Act (“CEQA”) Guidelines, this ordinance is exempt from CEQA based on the following findings:

 

(1)              This ordinance is not a project within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential for resulting in physical change in the environment, directly or ultimately. 

 

(2)              This ordinance is categorically exempt from CEQA under Section 15308 of the CEQA Guidelines as a regulatory action taken by the City  pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the consideration, evaluation and possible adoption of contemplated local legislation, regulation and policies, and is categorically exempt pursuant to CEQA Guidelines Section 15306 regarding the collection of information as part of a study leading to an action not yet approved, adopted or funded.

 

(3)              This ordinance is not subject to CEQA under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment.  For the reasons set forth in subparagraphs (1) and (2), above, and pursuant to CEQA Guidelines Section 15061, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment.

 

NOW THEREFORE, the City Council of the City of Cotati does ordain as follows:

 

Section 1.              Recitals Made Findings.  The above recitals are hereby declared to be true and correct and represent the findings of the City Council of the City of Cotati, made in the exercise of its independent judgment.  Said findings are incorporated by this reference.

 

Section 2.              Urgency Moratorium Imposed.

 

A.              Cultivation not in compliance with this ordinance. It is declared to be unlawful and a public nuisance for any person owning, leasing, occupying or having charge or possession of any parcel or premises within any zoning district in the City to cultivate nonmedical marijuana except as provided for in this ordinance. No person other than an individual 21 years of age or older may engage in the cultivation of nonmedical marijuana.

 

B.              Indoor cultivation. Indoor cultivation of nonmedical marijuana is prohibited in all zoning districts of the City, except when such cultivation occurs on a parcel with an approved private residence. All indoor cultivation of nonmedical marijuana must be in compliance with this ordinance.

 

C.              Indoor cultivation in private residence. The indoor cultivation of nonmedical marijuana on a parcel with an approved private residence shall only be conducted within a fully enclosed and secure structure or within a residence. Such cultivation shall be in conformance with the following minimum standards:

 

1.              The primary use of the property shall be for a residence. Nonmedical marijuana cultivation is prohibited as a home occupation.

 

2.              All areas used for cultivation of nonmedical marijuana shall comply with Title  VII, Chapter 2  of the City of Cotati  Code, as well as applicable law.

 

3.              Indoor grow lights shall  comply with the applicable provisions of the California Building Standards Code as adopted and amended by the Cotati City  Code, to the satisfaction of the City Building Official.

 

4.              The use of gas products (CO2, butane, propane, natural gas, etc.) or generators for cultivation of, or for manufacturing or processing of, cannabis products and nonmedical marijuana is prohibited.

 

5.              Any fully enclosed and secure structure or residence used for the cultivation of nonmedical marijuana must have a ventilation and filtration system installed that shall prevent marijuana plant odors from exiting the interior of the structure and that complies with the applicable provisions of the California Building Standards Code as adopted and amended by the City of Cotati Code.

 

6.              A fully enclosed and secure structure used for the cultivation of nonmedical marijuana shall be located in the rear yard area of the parcel, maintain a minimum ten-foot setback from any property line, and must comply with applicable height, site coverage and permit requirements of the City of Cotati Zoning Ordinance. The yard where the fully enclosed and secure structure is maintained must be enclosed by a solid fence at least six feet in height. This provision shall not apply to cultivation occurring in a garage.

 

7.              Adequate mechanical locking or electronic security systems must be installed as part of the fully enclosed and secure structure or the residence prior to the commencement of cultivation.

 

8.              Nonmedical marijuana cultivation shall be limited to six marijuana plants per private residence, regardless of whether the marijuana is cultivated inside the residence or in a fully enclosed and secure structure. The limit of six plants per private residence shall apply regardless of how many individuals reside at the private residence.

 

9.              The residential structure shall remain at all times a residence, with legal and functioning cooking, sleeping and sanitation facilities with proper ingress and egress. These rooms shall not be used for nonmedical marijuana cultivation where such cultivation will prevent their primary use for cooking of meals, sleeping and bathing.

 

10.              Cultivation of nonmedical marijuana shall only take place on impervious surfaces.

 

11.              From a public right-of-way, there shall be no exterior evidence of nonmedical marijuana cultivation occurring on the parcel.

 

12.              The nonmedical marijuana cultivation area, whether in a fully enclosed and secure structure or inside a residence, shall not be accessible to persons under 21 years of age.

 

13.              Written consent of the property owner to cultivate nonmedical marijuana within the residence or in a fully enclosed and secure structure shall be obtained and shall be kept on the premises, and available for inspection by the Building Official, Chief of Police, Fire Chief or their designee(s).

 

14.              A portable fire extinguisher, that complies with the regulations and standards adopted by the state fire marshal and applicable law, shall be kept in the fully enclosed and secure structure used for cultivation of nonmedical marijuana. If cultivation occurs in a residence, the portable fire extinguisher shall be kept in the same room as where the cultivation occurs.

D.               Definitions.

 

                            1.              "Fully enclosed and secure structure" means a space within a building that complies with the applicable provisions of the California Building Standards Code as adopted and amended by Title VII, Chapter 2 of the City of Cotati 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 roof must be constructed of solid materials that cannot be easily broken through, and must be constructed with non-transparent material.  Plastic sheeting, canvas, vinyl, or similar products or materials, regardless of gauge, are not considered solid materials. A fully enclosed and secure structure must be an accessory structure to a private residence located upon the parcel on which that private residence is situated.

             

              2.              "Indoors" means inside a fully enclosed and secure structure or within a private residence.

 

3.               “Luminaire” means a complete lighting unit consisting of lamp(s) and the parts that distribute the light, position and protect the lamp(s), and connect the lamp(s) to the power supply.

 

                            4.              "Nonmedical marijuana" means marijuana that is intended to be used for nonmedical purposes pursuant to Health and Safety Code section 11362.1 et seq., as those sections may be amended from time to time.

 

5.              "Nonmedical marijuana cultivation" or the “cultivation of nonmedical

marijuana” means the planting, growing, harvesting, drying, curing, grading, trimming or processing of marijuana plants or any part thereof pursuant to Health and Safety Code section 11362.1 et seq., as those sections may be amended from time to time.

 

6.              “Marijuana” means all parts of the plant cannabis sativa L, whether 

growing or not; the seeds thereof; the resin extracted from any part of the plant; cannabis; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.

 

7.              “Outdoors” means any location within the City  that is not within a fully

enclosed and secure structure or a private residence.

 

8.                  "Private residence" or “residence” means a house, an apartment unit, a mobile home or other similar dwelling.

 

9.              "Solid fence" means a fence constructed of substantial material, such as wood or metal, that prevents viewing the contents from one side to the other side of the fence.

 

              D.              Statutory Findings and Purpose.

 

              This ordinance is declared to be an interim ordinance as defined under California Government Code Section 65858.  This ordinance extending the moratorium on the cultivation of indoor nonmedical marijuana except as expressly regulated hereunder  is  deemed necessary to protect the public safety, health and welfare  based on the findings of the City  Council of the City of Cotati  as set forth in the recitals, incorporated by Section 1 of this ordinance, and the moratorium is hereby extended for one year.

 

Section 3.              Except as Provided in this Ordinance, Establishment, Maintenance or Operation of Nonmedical Marijuana Cultivation Indoors Declared Public Nuisance.  

 

It is unlawful and a public nuisance for any person owning, leasing, occupying, or having possession of any parcel or premises within any zoning district in the City  to cause or allow such parcel or premises to be used for the indoor cultivation of nonmedical marijuana except as provided in this ordinance.  Violations of this ordinance may be enforced by any applicable laws or ordinances, including but not limited to injunctions, or administrative penalties under the City of Cotati Code.

 

Section 4.              Severability.

 

If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect.  To this end, provisions of this ordinance are severable. The City  Council of the City of Cotati hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.

 

Section 5.              Effective Date and Duration.

 

This ordinance shall become effective immediately upon its adoption on November 28, 2017, adopted by at least a four-fifths vote of the City  Council, and shall be in effect for one year from its adoption.

 

Section 6.                  Posting.  The City Clerk shall cause this ordinance to be published and/or posted within 15 days after its adoption.

 

Meeting History

Nov 28, 2017 7:00 PM Audio/Video Cotati City Council Regular Meeting
RESULT:ADOPTED [UNANIMOUS]
MOVER:John A. Dell'Osso, Council Member
SECONDER:Wendy Skillman, Councilmember
AYES:Wendy Skillman, John C. Moore, John A. Dell'Osso, Susan Harvey, Mark Landman

Discussion