Code Amendment No , Ordinance Regulating the Cultivation of Medical Marijuana Board of Supervisors Hearing of March 11, 2014

Corrections  Packet page 931 Section B of ordinance should read: “The date of service is deemed to be the date of personal delivery, or five days after deposit in the mail or posting as applicable.”  Packet page 927 Section B, remove school bus stop from second sentence.

Changes from Draft for Initiation  Based on comments received some changes were made to the ordinance: Removed setback requirements from school bus stops-any rural driveway could be considered a school bus stop Changed date of service to five days after mailing or posting on site to ensure that sufficient notice is provided Changed Section C.4. to match language in Madera County ordinance regarding persons cultivating marijuana must reside on the property on a permanent basis

Issues Raised at October meeting  Based on request from the Board, issues raised during the October meeting are addressed in the project staff report to the Board

Public Notice  Published in the Mariposa Gazette February 20 and March 6  Posted notices sent to 18 locations countywide and posted on Planning website on February 20

Project  An ordinance regulating the cultivation of medical marijuana by amending Title 8 Health & Safety to include regulations for the cultivation of medical marijuana  Regulations will apply throughout all of Mariposa County  Project initiated by Resolution of Intention adopted by the Board of Supervisors on October 15, 2013

Background  In 1996, Proposition 215 was passed to allow seriously ill persons the right to use medical marijuana under a physician’s recommendation.  SB 420 was enacted by the State Legislature to establish a voluntary system for patients and caregivers to obtain ID cards that prevent them from being arrested for violations of State law regarding marijuana.  SB 420 also established amounts permissible for possesion and cultivation: 6 mature plants or 12 immature plants; ½ pound of processed marijuana

Background  In 2011, Mariposa County adopted zoning regulations prohibiting medical marijuana dispensaries, the cooperative or collective cultivation of medical marijuana, and the cultivation of medical marijuana by person(s) not residing on a parcel on a permanent basis  Summer of 2013, the Sherriff and District Attorney approached the Planning Department requesting assistance to enact regulations for the cultivation of medical marijuana.

Existing Regulations  Federal: Identifies marijuana possession, use, and cultivation as a criminal offense. Listed as a Schedule I drug with “no currently accepted medical use”  California:Proposition 215 and SB 420  Mariposa County: Medical dispensaries not allowed Cooperative or collective cultivation not allowed Cultivation by person(s) not residing on a permanent basis is prohibited Staff was not directed to modify any of these existing regulations. Staff does not find it necessary a to modify existing regulations as the proposed ordinance does not conflict with them.

Ability to Regulate Cultivation of Medical Marijuana  California Constitution, Article XI, Section 7: The County may make and enforce within it’s limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.  Browne v. County of Tehama (2013) 213 Cal.App.4 th 704: Tehama County ordinance upheld as it was not preempted by state law “Since the CUA [Compassionate Use Act] does not create a right to cultivate medical marijuana, restrictions on such enforcement do not conflict with the CUA.”

Maral v. City of Live Oak (2013) 221 Cal.App.4 th 975  Court of Appeal heard challenge to City of Live Oak’s ordinance prohibiting the cultivation of marijuana for any purpose within the City.  Ordinance was upheld in November of  “Because, as we held in Browne and our Supreme Court confirmed in Inland Empire, there is no right-and certainly no constitutional right-to cultivate medical marijuana, the premise of each cause of action in plaintiffs’ second amended complaint fails.”  Plaintiffs have petitioned the California Supreme Court to review the case and have also petitioned to have the case depublished.  Outcome of this could affect proposed ordinance.

Initiatives  2014 started off with several Initiatives that were attempting to make it onto the November 2014 ballot.  It appears that only one, the Marijuana Control, Legalization & Revenue Act is actively trying to gather signatures to try to qualify for the November 2014 ballot.  Most efforts seem to be targeting the 2016 ballot

Proposed Ordinance  Cultivation of more than 12 plants, either indoors or outdoors, on any parcel is prohibited.  Prohibits cultivation within 1,000 feet of any school, school evacuation site, church, park, child care center/day care facility, or youth oriented facility.  If person does not own parcel, notarized letter from legal owner granting permission must be obtained (to protect property owner)

Proposed Ordinance  Marijuana grown outdoors must be fully enclosed by fence at least 6 feet in height. Fences in sloped areas may have to be built in a stepped style to meet 6 ft. requirement – portions of fence may be higher than 6 ft. to meet required minimum height.  50 foot setback from parcel boundaries for outdoor grows. Enforcing officer or Board of Supervisors may reduce for unusual hardship.  Primary caregiver or qualified patient cultivating marijuana must reside on the property where cultivation occurs on a permanent basis.  Prohibited cultivation are declared a public nuisance.

Proposed Ordinance  Illegal grows could be abated at owner’s expense.  Administrative procedures could result in an administrative penalty.  Violations could result in misdemeanor and be subject to six months in jail and/or a $1,000 fine.  More than 12 plants on a parcel would be an automatic nuisance.  Abatement, administrative costs, penalties and fines could be charged to the owner or occupant. If unpaid, a lien could be placed on the property.  There is a hearing process for anyone who would like to appeal the enforcing officer’s determination. Relief can also be sought from the courts.

Objectives  To protect the health and safety of residents, visitors and businesses in Mariposa.  To allow residents who have a doctor’s recommendation for medical marijuana to cultivate medical marijuana for their medical needs.  To take away the profit in large grows.  To give protection to the people growing medical marijuana for themselves.  To limit potential access to cultivations to Mariposa youth.  To provide a visual barrier to cultivations.  To give the county tools to clean up illegal cultivations, without using general fund monies.  To protect the environment.

Other California Jurisdiction Regulations  All cultivation banned: Fresno County City of Live Oak  Outdoor cultivation banned: Lake County San Bernardino County Shasta County Madera County  Plant limits: Kern County-12 plants per parcel Mendocino County-25 plants per parcel Merced County-12 plants per parcel

12 Plant Limit  Based on SB 420 established guidelines of 6 mature or 12 immature plants  Based on other jurisdictions’ regulations  Limits exceed or match other states’ legislative guidelines for cultivation, see table from Butte County staff report  Per the CANORML website, “The Supreme Court’s recent Kelly decision has been widely misinterpreted to imply that the limits [SB 420] no longer apply, and that patients can therefore grow as much as they want. In fact, the Court’s decision lets the police arrest anyone who exceeds the guidelines, the only thing it disallows is for the guidelines to be used as a basis for conviction in criminal trials.”  Board has the ability to change the number of plants that can be cultivated

Options  Board can waive first reading and introduce the proposed ordinance  Modify the ordinance and introduce it Some options include: Increase the # of plants Provide discretionary process to increase # of plants Require indoor cultivation only Establish square footage limits rather than plants or combo Establish allowance for immature plants  Direct staff to bring back different ordinance  Take no action

Process  If Board waives first reading and introduces ordinance, second reading and adoption would take place two weeks later  Ordinance becomes effective 30 days after adoption.  County process is final after effective date.

Environmental Review  Staff recommends that the Board of Supervisors find that this ordinance is not subject to environmental review pursuant to Section 15060(c)(2), 15061(b)(3),