Chapter 17.38
CANNABIS CULTIVATION
Sections:
17.38.040 Regulation of location.
17.38.050 Development and operational standards.
17.38.010 Intent.
A. The city council of the city of Lakeport, pursuant to this chapter, hereby intends to regulate the personal cultivation of cannabis, including but not limited to regulations as to location of the cultivation, size of the area used for cultivation, and the use of fencing or other screening and security structures, and in furtherance of the public necessity, convenience and general welfare.
B. This chapter is established to regulate personal cannabis cultivation in a manner that mitigates potential impacts on surrounding properties and persons, and that is in conformance with the provisions of the Compassionate Use Act of 1996 (Proposition 215) and the Adult Use of Marijuana Act (Proposition 64).
C. It is the intent of the city of Lakeport to enforce the provisions of this chapter primarily on the basis of legitimate and verified complaints received from the public related to nuisance conditions and/or other public safety issues. (Ord. 914 §1(part), 2017: Ord. 889 §1(part), 2013. Formerly 17.38.020)
17.38.020 Applicability.
The provisions of this chapter shall apply to all persons described herein whether the activities described herein were established before or after the effective date of this chapter. Chapter 17.36, Nonconforming Uses, Structures, and Lots, shall not apply to preexisting land or building uses inconsistent with the provisions of this chapter. (Ord. 914 §1(part), 2017: Ord. 889 §1(part), 2013. Formerly 17.38.030)
17.38.030 Definitions.
"Cannabis," or "marijuana," shall include the definition of "cannabis" as set forth in Business and Professions Code Section 26001, subdivision (f), and Health and Safety Code Section 11018, as each may be amended from time to time, and shall be used interchangeably and shall mean all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether for a medical purpose or a nonmedical purpose, whether growing or not; the seeds thereof; the 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. This includes the separated resin, whether crude or purified, obtained from marijuana. This definition does not mean "industrial hemp" as defined by California Food and Agricultural Code Section 81000, as may be amended, or California Health and Safety Code Section 11018.5, as may be amended.
"Canopy" means the total combined canopy area for all locations on a property where cannabis/medical marijuana is being cultivated, including indoor areas, as measured by the horizontal extent of the plant or combination of plants at the widest point and measured in a straight line.
"Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis and/or marijuana.
"Detached, fully enclosed and secure structure" is a building completely detached from a residence that complies with the California Building Standards Code, as adopted by the city, or if exempt from the permit requirements of the California Building Standards Code, that has a complete roof enclosure supported by connecting walls extending from the ground to the roof, is secure against unauthorized entry, and is accessible only through one or more lockable doors.
"Indoors" means within a fully enclosed and secure structure.
"Medical cannabis" or "medical marijuana" means cannabis or marijuana that has been recommended by a licensed physician in strict accordance with Health and Safety Code Sections 11362.5 through 11362.9, inclusive, commonly referred to as the Compassionate Use Act and the Medical Marijuana Program.
"Outdoor" means any location within the city that is not within a fully enclosed and secure structure.
"Primary caregiver" shall have the same definition as Health and Safety Code Section 11362.7(d), as may be amended.
"Qualified patient" shall have the same definition as Health and Safety Code Sections 11362.7(c) and (f), as may be amended.
"Rear yard" is the rear open space portion of any premises, whether fenced or unfenced.
"Residential structure" is any building or portion thereof legally existing which contains living facilities, including provisions for sleeping, eating, cooking and sanitation on a premises or legal parcel located within a residential or agricultural-residential zoning district.
"Solid" means constructed of substantial material (such as wood) that prevents viewing the contents from one side to the other. "Solid" does not include tarpaulins, cloth material, scrap material, bushes, or hedgerows. (Ord. 914 §1(part), 2017: Ord. 889 §1(part), 2013. Formerly 17.38.040)
17.38.040 Regulation of location.
A. Cannabis cultivation shall be prohibited on any parcel within the city except as an accessory use to a legally established residential structure within a legal accessory structure on a legal parcel within the R-1, R-2, R-3, R-5 and UR zoning districts as well as permitted mixed use--residential units.
B. Except as provided in subsection C of this section, cannabis cultivation may be undertaken only by person(s) who occupy the residential structure on the parcel proposed for cultivation as their primary residence.
C. A primary caregiver, as defined, may undertake cultivation of medical cannabis on behalf of his/her qualified patient(s), but only on a parcel containing the primary caregivers or qualified patient’s primary residence.
D. Cultivation shall only be permitted in a detached, fully enclosed and secure accessory structure and said cultivation area, including the plant canopy, shall be limited to eighty square feet per parcel or residence, whichever is less, or six plants. The cultivated cannabis may not be sold to any other person or organization.
E. The use of a detached, fully enclosed and secure accessory structure for cultivation of cannabis shall not reduce the required parking required per Chapter 17.23.
F. Outdoor cultivation shall be unlawful and a public nuisance for any person owning, leasing, occupying or having charge for possession of any parcel within any zoning district in the city.
G. Indoor cultivation within a residential structure shall be unlawful and a public nuisance with regard to any person owning, leasing, occupying or having charge for possession of any parcel within any zoning district in the city. (Ord. 914 §1(part), 2017: Ord. 889 §1(part), 2013. Formerly 17.38.050)
17.38.050 Development and operational standards.
A. From a public right-of-way there shall be no exterior evidence of cannabis cultivation located inside a detached, fully enclosed and secure accessory structure.
B. Person(s) engaged in cultivation shall reside in the residence located on the parcel containing the detached, fully enclosed and secure accessory structure where the cannabis cultivation occurs, except as provided in Section 17.38.040(C).
C. Person(s) engaged in cultivation shall not cultivate medical marijuana in any other location within the incorporated city other than in the accessory structure located on the parcel containing his/her primary residence, except as provided in Section 17.38.040(C).
D. The qualifying residential structure located on the property containing the detached, fully enclosed and secure accessory structure in which cannabis is cultivated shall maintain kitchen, bathrooms, and primary bedrooms for their intended use and shall not be used for cannabis cultivation.
E. Cannabis cultivation shall not adversely affect the health or safety of nearby residents by creating dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration, or other impacts, or be hazardous due to use or storage of materials, processes, products or wastes.
F. Residential accessory structures used for cultivation shall meet the following criteria:
1. The structure shall be provided with a locking door or doors.
2. If a detached, fully enclosed, and secure structure is not feasible and the cultivation building is an unsecured structure then it shall additionally be surrounded by a secure solid six-foot-high fence located within ten feet of the unsecured structure and equipped with a lockable gate.
3. The structure shall be located in the rear yard portion of the lot and maintain a minimum of a ten-foot setback from the side and rear property lines and from any other building on the parcel.
4. Any accessory structure utilized for cultivation of cannabis shall be legally constructed with a building permit if it exceeds one hundred twenty square feet of size. No more than eighty square feet of floor area shall be used for the cultivation of cannabis. The plant canopy shall be contained within the eighty square feet of floor area. All electrical and plumbing fixtures shall be installed with a valid building permit from the city. Such building permits will only be issued to the owner of the property. If the resident is proposing to convert an existing accessory structure, or a portion of an existing structure, for cultivation of cannabis, an inspection will be required to ensure compliance with this chapter.
5. Cannabis cultivation lighting shall comply with the California Building, Electrical and Fire Codes as adopted by the city.
6. Flammable or volatile gas products or generators shall not be used within any detached structure used for the cultivation of cannabis.
7. Any detached, fully enclosed and secure structure used for the cultivation of cannabis must have a ventilation and filtration system installed that shall prevent nuisance cannabis plant odors from exiting the interior of the structure. If a permanent, built-in ventilation and filtration system is installed, it shall be subject to the issuance of a building permit, approval by the building official and must be installed prior to commencing cultivation within the detached, fully enclosed and secure structure.
8. Accessory structures utilized for cultivation shall be ventilated with odor control filters, and shall not create an odor, humidity or mold problem on the subject property or adjacent properties.
9. Other activities may occur within a detached fully enclosed and secure accessory structure where cannabis is cultivated; provided, that the cultivation area within the structure, including the plant canopy, does not exceed eighty square feet of floor area; and further provided, that the cultivation area is segregated from all other building uses by permitted walls and all other conditions of this chapter are satisfied.
10. As an alternative to the requirement set forth in subsections (F)(1) through (8) of this section, the cultivation of cannabis may occur in a prefabricated greenhouse structure constructed for nursery or agricultural purpose which does not include any service systems and which has a canopy which does not exceed eighty square feet. Said structure shall be located in an area which is fully enclosed by an opaque fence at least six feet in height. The structure must also meet all applicable permit requirements and shall be secure against unauthorized entry and accessible only through one or more lockable doors. The frame must be constructed of metal and the panels must be polycarbonate or other similar material which is no less than four mm thick. In the alternative, the structure may be a chain link or wire mesh type greenhouse which is overlaid with a one-piece cover made of polyethylene laminate fabric or other similar materials which is no less than eight ml thick. The structure shall be equipped with an odor control filtration and ventilation system(s) adequate to prevent cannabis plant odors from exiting the interior of the structure.
G. Nothing in this chapter shall be construed as a limitation on the city’s authority to abate any nuisance which may exist from the planting, growing, harvesting, drying, processing or storage of cannabis plants or any part thereof from any location, indoor or outdoor, including from within a detached, fully enclosed and secure structure. (Ord. 914 §1(part), 2017: Ord. 889 §1(part), 2013. Formerly 17.38.060)
17.38.060 Enforcement.
A. Right of Entry. Persons designated by resolution as code enforcement officers of the city are authorized to enter upon and inspect private properties to ensure compliance with the provisions of this chapter. Reasonable advance notice of any such entry and inspection shall be provided and, before entry, consent shall be obtained in writing from the owner or other person in lawful possession of the property. If consent cannot for any reason be obtained, an inspection warrant shall be obtained from a court of law prior to any such entry and inspection. In those cases where consent is denied, the city may seek to recover the costs it incurs in obtaining a warrant from the property owner and/or person in lawful possession of the property.
B. Public Nuisance. The maintaining, cultivating or growing of cannabis upon private property within the city, unless in full compliance with the provisions of this chapter, is declared to be a public nuisance as defined in Section 370 of the California Penal Code and Chapter 8.22.
C. Citable Offense. Every person who, in violation of the provisions of this chapter, maintains, permits or allows cannabis to be grown upon his or her property or premises, and every person occupying, renting or leasing the property or premises of another who maintains, permits or allows cannabis to be grown thereon in violation of this chapter, is guilty of an infraction punishable as set forth in Section 1.08.010. After written notice is provided to any such person of such violation, the continued existence of such violation for each and every day after the service of such notice shall be deemed a separate and distinct offense.
D. Issuance of Citations. All persons designated by resolution as code enforcement officers of the city are authorized to issue citations to persons deemed to be in violation of the provisions of this chapter. Such citations shall be expeditiously processed through use of the administrative citation process or where appropriate through filing an infraction in the appropriate court of law.
E. Remedies Nonexclusive. The remedies provided herein shall not be the exclusive means of enforcing the provisions of this chapter nor the exclusive means available to the city to address problems associated with the cultivation of cannabis, whether for medical or other purposes. The city shall continue to have available to it the ability to pursue abatement of nuisances and other problems related to cannabis cultivation under California Penal Code Sections 372 and 373a and other applicable provisions of law. The city may also pursue the recovery of its abatement costs in the manner provided by the Lakeport Municipal Code. (Ord. 914 §1(part), 2017: Ord. 889 §1(part), 2013. Formerly 17.38.070)
17.38.070 Liability.
The provisions of this chapter shall not be construed to protect the property owner(s) of record for each legal parcel associated with the cultivation of cannabis, lessees, tenants, and other participants in the cultivation of cannabis, and members of collectives and/or cooperatives associated with the cultivation of cannabis, from prosecution pursuant to any laws that may prohibit the cultivation, sale, and/or possession of controlled substances. Moreover, cultivation, sale, possession, distribution, and use of cannabis remain violations of federal law as of the date of adoption of the ordinance creating this chapter and this chapter is not intended to, and does not, protect any of the above described persons from arrest or prosecution under those federal laws. The property owner(s) of record for each legal parcel associated with the cultivation of cannabis, lessees, tenants, and other participants in the cultivation of cannabis, and members of collectives and/or cooperatives associated with the cultivation of cannabis, assume any and all risk and any and all liability that may arise or result under state and federal criminal laws from the cultivation of cannabis. Further, to the fullest extent permitted by law, any actions taken under the provisions of this chapter by any public officer or employee of the city or the city itself shall not become a personal liability of such person or the liability of the city. (Ord. 914 §1(part), 2017: Ord. 889 §1(part), 2013. Formerly 17.38.080)