HomeMy WebLinkAboutOrdinances - No. 1898ORDINANCE NO. 1898
AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING
LODI MUNICIPAL CODE TITLE 8-HEALTH AND SAFETY-BY
ADDING CHAPTER 8.30, "REGULATION OF MARIJUANA
CULTIVATION," WITHIN THE CITY OF LODI
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WHEREAS, in 1996, the voters of the State of California approved Proposition
215, which was codified as Health and Safety Code Section 11362.5, et seq. and
entitled the Compassionate Use Act of 1996 ("CUA"); and
WHEREAS, the intent of Proposition 215 was to enable persons who are in need
of marijuana for medical purposes to obtain and use it under limited, specified
circumstances; and
WHEREAS, on January 1, 2004, Senate Bill 420 (Medical Marijuana Program
Act ("MMP")) became effective to clarify the scope of the Act and to allow cities and
counties to adopt and enforce rules and regulations consistent with SB 420 and the Act;
and
WHEREAS, Health and Safety Code Section 11362.83 expressly allows cities
and counties to adopt and enforce ordinances that are consistent with SB 420; and
WHEREAS, under the Federal Controlled Substances Act (21 U.S.C. §801 et
seq.), marijuana is classified as a Schedule 1 drug, meaning it has no accepted medical
use. The Federal Controlled Substances Act makes it unlawful, under federal law, for
any person to cultivate, manufacture, distribute or dispense, transport, or possess with
the intent to manufacture, distribute or dispense, marijuana; and
WHEREAS, Government Code Sections 65850(a) and 65850(c)(4), provide the
authority of the City of Lodi to regulate by ordinance the uses of land and the intensity of
land use; and
WHEREAS, the City of Lodi Police Department and residents of the City of Lodi
have reported adverse impacts from the outdoor cultivation of medical marijuana within
the City of Lodi, including offensive odors detectable beyond the property boundaries,
increased risk of trespassing, violent crime, burglary, and theft; and
WHEREAS, the strong odor of marijuana plants, which increases in intensity as
the plants mature, is highly offensive to many individuals and creates an attractive
nuisance, alerting people to the presence and location of marijuana plants, creating an
increased risk of burglary, robbery or armed robbery because of the monetary value of
the plants; and
WHEREAS, the presence of marijuana plants is an attractive nuisance to minors,
creating a potential hazard in areas frequented by minors, such as schools, parks,
recreation centers, and similar facilities; and
WHEREAS, it is the intention of the City Council of the City of Lodi that nothing in
this Ordinance be deemed to conflict with the federal Controlled Substances Act (21
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U.S.C. §841), by permitting or otherwise allowing any activity which is prohibited under
the Act; and
WHEREAS, the City Council of the City of Lodi is aware that the cultivation and
possession of marijuana for medical purposes by Qualified Patients and Primary
Caregivers, as defined under California law (Health & Safety Code, §§11362.7(f) and
11362.7(d), respectively), is permitted under state law in limited, specified
circumstances, it is the intention of the Council that nothing in this Ordinance be
construed, in any way, to expand the rights of anyone to cultivate, possess or use
marijuana under state law, engage in any public nuisance, violate the federal Controlled
Substance Act, or engage in any activity regarding the cultivation, distribution, use or
consumption of marijuana that is otherwise prohibited by law; and
WHEREAS, it is the purpose and intent of this Ordinance to ensure that
marijuana grown for medical purposes remains secure and does not find its way to
persons other than Qualified Patients or Primary Caregivers, or illicit markets; and
WHEREAS, it is the purpose and intent of this Ordinance to assist law
enforcement personnel to perform their duties effectively and in accordance with
California law; and
WHEREAS, this Ordinance is not subject to the California Environmental Quality
Act (CEQA) pursuant to Government Code Section 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and Section 15060(c)(3) (the activity is not a project as defined in Section 15378) of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly; it
prevents changes in the environment pending the completion of the contemplated
General Plan adoption and zoning ordinance review; and
WHEREAS, for the protection of the public's health, safety, and general welfare,
the City Council on November 7, 2012, adopted Ordinance No. 1867, an Uncodified
Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and
imposing a forty-five (45) day moratorium on 1) the outdoor cultivation of medical
marijuana within the City of Lodi and 2) the indoor cultivation of medical marijuana that
creates a public nuisance; and
WHEREAS, for the continued protection of the public's health, safety, and
general welfare, the City Council on December 19, 2012, adopted Ordinance No. 1868
entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi,
making findings and imposing an additional moratorium of ten (10) months and fifteen
(15) days, as permitted by Government Code Section 65858, to maintain the current
status quo and to provide time for the City to study the issue further; and
WHEREAS, for the continued protection of the public's health, safety, and
general welfare, the City Council on November 6, 2013, adopted Ordinance No. 1885
entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi,
making findings and imposing an additional moratorium of one year, as permitted by
Government Code Section 65858, to maintain the current status quo and to provide time
for the City to meet with members of the public, and to study and analyze the
complicated legal and practical issues involved in regulating the cultivation of marijuana
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for medical use, including a review of the City's General Plan and zoning ordinances,
and to make recommendations for consideration by the City Council; and
WHEREAS, the City Council finds that the cultivation of marijuana within the City
limits can adversely affect the health, safety, and well-being of the City and its residents;
and
WHEREAS, for the protection of the public's health, safety, and general welfare
other California jurisdictions have adopted regulations prohibiting the outdoor cultivation
of marijuana and/or regulations for indoor cultivation for medicinal use; and
WHEREAS, this ordinance does not prohibit the cultivation of medical marijuana
by Qualified Patients or Primary Caregivers; but merely regulates and restricts locations
of where medical marijuana can be grown and the court in the case of Mara/ v. City of
Live Oak (2013) 221 Cai.App.4th 975, held that neither the CUP or the MMP create a
constitutional right to cultivate and possess marijuana and therefore cities may prohibit
cultivation of marijuana within their jurisdictions.
NOW, THEREFORE, BE IT ORDAINED BY THE LODI CITY COUNCIL AS
FOLLOWS:
Section 1. Lodi Municipal Code Chapter 8.30, "Marijuana Cultivation," is hereby
enacted to read as follows:
CHAPTER 8.30
Marijuana Cultivation
8.30.010 Purpose and Intent.
It is the purpose and intent of this Chapter to regulate the cultivation of marijuana
in a manner that protects the health, safety, and welfare of the community. Without
regulation, the planting of marijuana will occur without the city's ability to control the
negative effects to the health, safety and welfare of the citizens of Lodi. These negative
effects include, but are not limited to, offensive odors and an increased risk of crime
such as trespass, burglary and acts of violence in connection with the commission of
such crimes or the attempts of citizens to prevent such crimes because of the presence
of valuable marijuana plants.
This Chapter is not intended to interfere with a Qualified Patient's access to medical
marijuana, as provided for in California Health & Safety Code Section 11363. Further,
this Chapter is not intended to give any person independent legal authority to cultivate
marijuana; it is intended simply to impose restrictions on the cultivation of marijuana
within city limits when cultivation is authorized by California state law for medical
purposes. No part of this Chapter shall be deemed to be in conflict with federal law
under the Controlled Substances Act (21 U.S. C. §801 et seq.) nor to permit any activity
that is otherwise prohibited under the Act or any other local, state or federal law, statute,
rule, or regulation; including the cultivation, possession, or use of marijuana for non-
medical purposes in violation of state or federal law.
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8.30.020 Definitions.
A. "Cultivation" means the planting, growing, harvesting, drying or processing of
any marijuana plants or any part thereof.
B. "Medical marijuana" means marijuana authorized in strict compliance with
Health and Safety Code Sections 11362.5, et seq.
C. "Indoor" means inside a residential structure (as defined below).
D. "Outdoor'' means any location within the city limits that is not a residential
structure (as defined below).
E. "Primary Caregiver" has the meaning set forth in Health and Safety Code
Section 11362.7.
F. "Qualified Patient" has the meaning set forth in Health and Safety Code
Section 11362.7.
G. "Residential Structure" means a group of rooms (including legal and
functioning sleeping, eating, cooking and sanitation facilities, but not more
than one kitchen) which constitutes an independent housekeeping unit,
occupied or intended for occupancy by one household, located within a
residential zoning district (as defined in this Code), the primary use of which
is as an occupied residence. Residential Structure includes an attached or
detached garage in compliance with applicable building codes.
8.30.030 Outdoor. Cultivation.
No person owning, renting, leasing, occupying or having charge, possession, or
control of any property within the City limits shall cause or allow such property to be
used for the outdoor cultivation of any marijuana plant(s) for any purpose.
8.30.040 Indoor Cultivation.
Indoor cultivation of medical marijuana is prohibited in all zoning districts of the
city, except for residential zones. Cultivation of medical marijuana by a Qualified Patient
or Qualified Caregiver may only occur within a residential structure. No person owning,
renting, leasing, occupying or having charge, possession, or control of any residential
structure within the City shall cause or allow indoor cultivation of any marijuana to be
visible from any street, sidewalk, or other place freely accessible by the public or to allow
the odor of marijuana to permeate beyond the boundaries of the parcel or property
where the indoor cultivation is occurring. Nothing in this Chapter shall be deemed to
allow indoor cultivation by a Qualified Patient or Primary Caregiver for any use other
than medicinal pursuant to Health & Safety Code Sections 11362.5 et seq.
The indoor cultivation of medical marijuana is prohibited as a home occupation.
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8.30.050 Nuisance.
Any violations of this Ordinance shall be considered and declared to be a public
nuisance and may be summarily abated by the City of Lodi pursuant to Civil Code
Section 731.
8.30.60 Penalties.
A. Nothing in this Ordinance shall be deemed to prevent the city from instituting
any appropriate legal procedures to abate, correct, enjoin or restrain any
violation of this section, including civil or criminal proceedings.
B. In any civil action for injunctive relief brought pursuant to Lodi Municipal Code
Chapter 1.1 0, a court of competent jurisdiction may award reasonable
attorney's fees and costs to the prevailing party.
C. Any person violating this ordinance shall be guilty of a misdemeanor and may
be subject to the penalties set forth in Lodi Municipal Code Chapter 1.08.
D. Each day a person is in violation of this chapter shall be considered a
separate violation.
E. The remedies and relief provided in this section shall be cumulative and in
addition to any and all other remedies available to the city under this code
and state law.
Section 2. Severability. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to
be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such
decision shall not affect the validity or effectiveness of the remaining portions of this
Ordinance or any part thereof. The City Council of the City of Lodi hereby declares that
it would have passed each section, subsection, subdivision, paragraph, sentence, clause
or phrase thereof irrespective of the fact that any one or more sections, subsections,
subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or
invalid or ineffective.
Section 3. No Mandatory Duty of Care. This Ordinance is not intended to and shall
not be construed or given effect in a manner which imposes upon the City, or any officer
or employee thereof, a mandatory duty of care towards persons or property within the
City or outside of the City so as to provide a basis of civil liability for damages, except as
otherwise imposed by law.
Section 4: CEQA. This Ordinance is exempt from the requirements of the California
Environmental Quality Act (CEQA) pursuant to Government Code Section 15060(c)(2)
(the activity will not result in a direct or reasonably foreseeable indirect physical change
in the environment), Section 15060(c)(3) (the activity is not a project as defined in
Section 15378), and Section 15061 (b)(3) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for causing a significant
effect to the environment.
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Section 5. Conflict. All ordinances and parts of ordinances in conflict herewith are
repealed insofar as such conflict may exist.
Section 6. Effective Date. This Ordinance shall be published one time in the "Lodi News
Sentinel," a daily newspaper of general circulation printed and published in the City of
Lodi, and shall be in force and take effect on November 15, 2014, which date is at least
30 days after the passage of this ordinance.
ATTEST:
Approved this 151h day of October, 2014
~t~/\~·
PHIL KATZAKIAN 1
Mayor
~-~ NIFE M. ROBISON
City Clerk
State of California
County of San Joaquin, ss.
I, Jennifer M. Robison, City Clerk of the City of Lodi, do hereby certify that
Ordinance No. 1898 was introduced at a regular meeting of the City Council of the City
of Lodi on October 1, 2014, and was thereafter passed, adopted, and ordered to print at
a regular meeting of said Council held October 15, 2014 by the following vote:
AYES: COUNCIL MEMBERS -Hansen, Mounce, and Mayor Katzakian
NOES: COUNCIL MEMBERS-Johnson
ABSENT: COUNCIL MEMBERS-Nakanishi
ABSTAIN: COUNCIL MEMBERS-None
I further certify that Ordinance No. 1898 was approved and signed by the Mayor
on the date of its passage and the same has been published pursuant to law.
NIFE M. ROBISON
City Clerk
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