Chapter 9.44
CULTIVATION AND POSSESSION OF RECREATIONAL MARIJUANA
Sections:
9.44.040 Cultivation of recreational marijuana.
9.44.050 Cultivation restrictions.
9.44.100 Administrative remedies.
9.44.010 Findings.
The city council adopts this chapter based upon the following findings:
Certain provisions of the AUMA became effective November 9, 2016, and contain provisions that allow local governments to reasonably regulate or ban certain activities thereunder.
The City of Escalon police department, city residents and other public entities have reported adverse impacts from recreational marijuana cultivation, including increased risk of burglary and other property crimes, acts of violence in connection with the commission of such crimes or the occupants’ attempts to prevent such crimes, as well as disagreeable odors and unsanitary conditions. The creation of persistent strong odors as marijuana plants mature and flower are offensive to many people and creates an attractive nuisance, alerting persons to the location of valuable marijuana plants and creating an increased risk of crime. The indoor cultivation of substantial amounts of marijuana frequently requires excessive use of electricity, which creates an unreasonable risk of fire from the electrical grow lighting systems used for indoor cultivation. Children are particularly vulnerable to the effects of marijuana use. The presence of marijuana plants has proven to be an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children including schools, parks, and other similar locations.
The City of Escalon has a compelling interest in protecting the health, safety, and welfare of its residents and businesses, and in preserving the peace and quiet of the neighborhoods in which marijuana grows. In order to protect the public health, safety and welfare, it is the desire of the city council to ban all recreational marijuana-related businesses, including marijuana dispensaries, delivery services, any marijuana retail services and outdoor cultivation. Further, the city council desires to place restrictions regarding the amount of recreational marijuana that may be cultivated and possessed, the size of the area used for cultivation, the design and security of structures used for cultivation, and the locations and manner in which recreational marijuana may be cultivated.
Nothing in this chapter shall be deemed to conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. Section 800 et seq., or to otherwise permit any activity that is prohibited under that Act or any other local, state or federal law, statute, rule or regulation.
Nothing in this chapter shall be construed to (A) allow persons to engage in conduct that endangers others or causes a public nuisance, or (B) allow any activity relating to the cultivation, distribution or consumption of marijuana that is illegal under state or federal law.
This chapter is hereby found to be categorically exempt from environmental review pursuant to CEQA Guidelines Section 1506l(b)(3). (Ord. 563 § 3 (Exh. A), 2017)
9.44.020 Purpose and intent.
It is the purpose and intent of this chapter to require that recreational marijuana be cultivated only in appropriately secured, enclosed, and ventilated structures so as not to be visible to the general public. Further, to provide for the health, safety and welfare of the public, to prevent odor created by marijuana plants from impacting adjacent properties, and to ensure that marijuana grown remains secure and does not find its way to illicit markets. Nothing in this chapter is intended to authorize the cultivation, possession, or use of marijuana for nonrecreational purposes in violation of state or federal law.
Further, it is also the purpose and intent of this chapter to prohibit outdoor cultivation on the grounds of a private residence, as well as to completely prohibit the establishment or operation of any marijuana business licensed under Division 10 of the California Business and Professions Code within its jurisdiction, including marijuana dispensaries, marijuana retailers, commercial indoor cultivation and marijuana delivery services. (Ord. 563 § 3 (Exh. A), 2017)
9.44.030 Definitions.
For purposes of this chapter, the following definitions shall apply:
A. Whenever the word “city” is used in this chapter, it shall mean the City of Escalon.
B. “Recreational marijuana activity” includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, delivery or sale of marijuana and marijuana products.
C. “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana.
D. “Delivery” means the commercial transfer of marijuana or marijuana products to a customer. “Delivery” also includes the use by a retailer of any technology platform owned and controlled by the retailer, or independently licensed under California law that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana products.
E. “Distribution” means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes.
F. “Licensee” means the holder of any state-issued license related to marijuana activities, including but not limited to licenses issued under Division 10 of the California Business and Professions Code.
G. “Manufacture” means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product.
H. “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; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include:
1. Industrial hemp, as defined in Section 11018.5 of the California Health and Safety Code; or
2. The weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product.
I. “Marijuana products” means marijuana that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing marijuana or concentrated cannabis and other ingredients.
J. “Person” includes any individual, firm, co-partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular.
K. “Private residence” means a house, an apartment unit, a mobile home, or other similar dwelling.
L. “Sale” includes any transaction whereby, for any consideration or compensation, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuana products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same.
M. Any term defined in this section also means the very term as defined in the California Business and Professions Code or the California Health and Safety Code, unless otherwise specified.
N. “Detached, fully enclosed and secure structure” means a building completely and entirely detached from a residence that complies with the Escalon building code and the Escalon Municipal Code and has 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 roofs must be constructed of solid materials that cannot be easily broken through, such as two-inch by four-inch or thicker studs overlaid with three-eighths-inch or thicker plywood or the equivalent. Exterior walls must be constructed with nontransparent material. Plastic sheeting, regardless of gauge, thin corrugated fiberglass sheeting, or similar products do not satisfy this requirement. (Ord. 563 § 3 (Exh. A), 2017)
9.44.040 Cultivation of recreational marijuana.
The following regulations shall apply to the cultivation of recreational marijuana within the city:
A. Outdoor Cultivation. It is unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any legal parcel or premises within any zoning district in the city to cause or allow such parcel or premises to be used for the outdoor cultivation of marijuana plants.
B. Cultivation in Nonresidential Zones. Cultivation of recreational marijuana is prohibited in all commercial, office, business park, mixed use, industrial, public-semipublic, and resource conservation zoning districts except on legal nonconforming residential properties.
C. Indoor Cultivation in Residential Zones and Legal Nonconforming Residential Properties in Other Zones. The indoor cultivation of recreational marijuana in a residential zone or on legal nonconforming residential properties in other zones shall only be conducted within a detached, fully enclosed and secure structure no greater than 120 square feet in size or within a residential structure conforming to the following minimum standards:
1. Any detached structure, regardless of square footage, constructed, altered or used for the cultivation of recreational marijuana must have a corresponding valid building permit duly issued by the building official.
2. Indoor grow lights shall not exceed 1,200 watts and shall comply with the California Building, Electrical and Fire Codes as adopted by the city and the Escalon fire district. Gas products (including, without limitation, CO2, butane, propane, and natural gas) or generators shall not be used within any residential structure or detached structure used for the cultivation of recreational marijuana.
3. Any detached, fully enclosed and secure structure or residential structure used for the cultivation of recreational marijuana must have a ventilation and filtration system installed that shall prevent marijuana plant odors from exiting the interior of the structure and that shall comply with the California Building Code Section 402.3, Mechanical Ventilation. The ventilation and filtration system must be approved by the building official and installed prior to commencing cultivation within the detached, fully enclosed and secure structure or residential structure.
4. A detached, fully enclosed and secure structure used for the cultivation of recreational marijuana shall be located in the rear yard area of a legal parcel or premises, maintain a minimum 10- foot setback from any property line, and the area surrounding the structure must be enclosed by a solid fence at least six feet in height.
5. Adequate mechanical or electronic security systems approved by the building official and chief of police must be installed in and around the detached structure or the residential structure prior to the commencement of cultivation.
6. Any recreational marijuana cultivation occurring within a residence or detached, fully enclosed and secure structure shall be limited to an area no larger than 50 square feet, regardless of how many persons reside at the premises.
7. Cultivation of recreational marijuana shall not take place in the kitchen or bathrooms of any building. The area used for cultivation of recreational marijuana shall not reduce the required parking spaces for any such structure.
8. Recreational marijuana cultivation may not occur in both a detached, fully enclosed and secure structure and inside a residence on the same parcel.
9. Recreational marijuana cultivation areas, whether in a detached, fully enclosed and secure structure or inside a residence, shall not be accessible to any persons under 21 years of age. (Ord. 563 § 3 (Exh. A), 2017)
9.44.050 Cultivation restrictions.
A. Only residents residing at the location may cultivate recreational marijuana.
B. Tenants must have their landlords’ written consent to cultivate recreational marijuana on leased premises.
C. Maximum of six marijuana plants, whether mature or immature, are permitted.
D. No cultivation in conjunction with a business. No sales of goods or services. The cultivation shall not occur in conjunction with any business. No products or services shall be sold from the property where the cultivation occurs.
E. Inspections. The cultivation operation shall be open for inspection by any law enforcement officer or city code enforcement officer between the hours of 8:00 a.m. and 9:00 p.m. seven days a week, or at any time upon responding to a call for service related to the property where the cultivation is occurring. (Ord. 563 § 3 (Exh. A), 2017)
9.44.060 Prohibited actions.
No person or entity shall locate, operate, own, maintain, manage, conduct, or allow to be operated or maintained, or aid, abet, or assist in the operation of any recreational marijuana-related businesses, including marijuana dispensaries, delivery services, any marijuana retail services, indoor commercial cultivation and outdoor cultivation of any type in the city. (Ord. 563 § 3 (Exh. A), 2017)
9.44.070 Enforcement.
A. Any use or condition caused, or permitted to exist, in violation of any of provisions of this chapter shall be, and hereby is, declared a public nuisance and may be summarily abated by the city pursuant to Section 731 of the California Code of Civil Procedure. The property owner or lessee shall be liable for all costs associated with abatement, including administrative, labor, material and other costs.
B. Right of Entry. Persons designated as code enforcement officers and City of Escalon police officers are authorized to enter upon and inspect private properties to ensure compliance with the provisions of this code. Reasonable advance notice of any such entry and inspection shall be provided. (Ord. 563 § 3 (Exh. A), 2017)
9.44.080 Criminal penalties.
Any person who violates, causes or permits another person to violate any provision of this chapter commits a misdemeanor, and upon conviction thereof, shall be punished as provided in Chapter 1.08 EMC. (Ord. 563 § 3 (Exh. A), 2017)
9.44.090 Civil injunction.
The violation of any provision of this chapter shall be, and hereby is, declared to be contrary to the public interest and shall, at the discretion of city, create a cause of action for injunctive relief. (Ord. 563 § 3 (Exh. A), 2017)
9.44.100 Administrative remedies.
In addition to the civil remedies and criminal penalties set forth above, any person who violates the provisions of this chapter may be subject to administrative remedies as set forth by city ordinance. (Ord. 563 § 3 (Exh. A), 2017)
9.44.110 Judicial review.
Judicial review of a decision made under this chapter may be had by filing a petition for a writ of mandate with the San Joaquin County superior court in accordance with the provisions of the California Code of Civil Procedure Section 1094.5. Any such petition shall be filed within 90 days after the day the decision becomes final as provided in California Code of Civil Procedure Section 1994.6, which shall be applicable for such actions. (Ord. 563 § 3 (Exh. A), 2017)