052113 lakeport city council agenda packet

7/30/2019 052113 Lakeport City Council Agenda Packet

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Any person may speak for three (3) minutes on any agenda item; however, total public input per item is not to exceed 15 minutes, extended at the discretion of the

City Council. This rule does not apply to public hearings. Non-timed items may be taken up at any unspecified time.

I. CALL TO ORDER & ROLL CALL: 6:00 p.m.

II. PLEDGE OF ALLEGIANCE:

III. ACCEPTANCE OF AGENDA: Move to accept agenda as posted, or move to add or delete items.

Urgency Items: To add item, Council is required to make a majority decision that an urgency e

(as defined in the Brown Act) and a 2/3rds determination that the need to take

action arose subsequent to the Agenda being posted.

IV. CONSENT AGENDA: The following Consent Agenda items are expected to be routine and noncontroversial. They will be acted upon bCouncil at one time without any discussion. Any Council Member may request that any item be removed from th

Consent Agenda for discussion under the regular Agenda. Removed items will be considered following the Conse

Calendar portion of this agenda.

A. Ordinances: Waive reading except by title, of any ordinances under consideration at this

meeting for either introduction or passage per Government Code Section 3693

B. Warrants: Approve warrant registers from May 9, 2013, and May 15, 2013.

C. Minutes: Approve minutes of the regular City Council meeting of May 7, 2013.

V. PUBLIC PRESENTATIONS/REQUESTS:

A. Citizen Input: Any person may speak for 3 minutes about any subject within the authority of the City Council, provided that thesubject is not already on tonights agenda. Persons wishing to address the City Council are required to complete

Citizens Input form and submit it to the City Clerk prior to the meeting being called to order. While not required,

please state your name and address for the record. NOTE: Per Government Code 54954.3(a), the City Council c

take action or express a consensus of approval or disapproval on any public comments regarding matters which

appear on the printed agenda.

VI. COUNCIL BUSINESS:

A. Planning Services Manager

1. Marijuana Cultivation Ordinance Introduce the proposed Ordinance adding Title 17, Chapter 17.38, to the Lakep

Municipal Code related to the establishment of regulations pertaining to the

cultivation of medical marijuana and set a public hearing and second reading fo

June 18, 2013, at 6:00 p.m.

B. City Manager

1. Designation of League

Voting Delegate

Nominate a voting delegate for the League of California Cities Annual Conferen

to be held September 18-20, 2013, in Sacramento.

VII. CITY COUNCIL COMMUNICATIONS:

A. Miscellaneous Reports, if any:

VIII. CLOSED SESSION: Pursuant to Government Code Section 54956.9 (Anticipated Litigation):

one case.

IX. REPORT FROM CLOSED SESSION:

X. ADJOURNMENT: Adjourn

Materials related to an item on this Agenda submitted to the Council after distribution of the agenda packet are available for public inspection in the City Clerks Office at

Park Street, Lakeport, California, during normal business hours. Such documents are also available on the City of Lakeports website,www.cityoflakeport.com , subject to

staffs ability to post the documents before the meeting.

n compliance with theAmericans with Disabilities Act, the City of Lakeport will make available to members of the public any special assistance necessary to participate in

meeting. The public should contact the City Clerks Office at (707) 263-5615 to make such a request. Notification 72 hours prior to the meeting will enable the City to ma

reasonable arrangements to ensure accessibility to this meeting.

_______________________________________

Janel M. Chapman, City Clerk

AGENDAREGULAR MEETING OF THE LAKEPORT CITY COUNCILTuesday, May 21, 2013

City Council Chambers, 225 Park Street, Lakeport, California 95453
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MINUTESLAKEPORT CITY COUNCIL

REGULAR MEETINGMay 7, 2013

I. CALL TO ORDER:

ROLL CALL:

Mayor Engstrom called the regular meeting of the City Council of the City of

Lakeport to order at 6:00 p.m. with Council Members Stacey Mattina, Martin

Scheel, and Marc Spillman present. Council Member Kenneth Parlet arrived a

6:12 p.m.

II. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was led by Council Member Scheel.

III. ACCEPTANCE OF AGENDA: A motion was made by Council Member Mattina, seconded by Council Memb

Spillman, and unanimously carried by voice vote to accept the agenda as

presented.IV. CONSENT AGENDA:

A. Ordinances: Waive reading except by title, of any ordinances under consideration at this

meeting for either introduction or passage per Government Code Section 369

B. Warrants: Approve warrant registers from April 11 and 18, and May 2, 2013.

C. Minutes: Approve minutes of the regular City Council meeting of April 16, 2013, and th

special meeting of April 30, 2013.

D. Application No. 2013-010 Approve application 2013-010 for the Lake County Chamber of Commerce fo

various events including Memorial Day Parade on May 25, 2013; Lakeport

Fireworks Display on July 4, 2013; Oktoberfest on October 5, 2013; and the

Holiday Lighted Parade and Hospice Light Up a Life Tree Lighting Ceremony o

November 30, 2013.

E. Annual Fireworks Display Approve contract with Pyro Spectaculars for 2013 Fireworks Display.

F. LAFCO Proposed Budget Receive and file LAFCO Proposed FY 2013-2014 Budget.

G. Amendment to MOU for

Summer Concert Series

Approve the Amended Memorandum of Understanding Between Bicoastal

Media, LLC, and the City of Lakeport for Summer Concert Series.

Vote on Consent Agenda A motion was made by Council Member Scheel, seconded by Council Membe

Mattina, and unanimously carried by voice vote to approve the Consent

Agenda, Items A through G, as posted.

V. PUBLIC PRESENTATIONS/ REQUESTS:

A. Citizen Input There was no citizen input.

B. Presentation to Sound of Music

Cast and Staff

Mayor Engstrom presented a Certificate of Achievement to the Cast and Staff

Clear Lake High Schools production of Sound of Music.

C. ProclamationMunicipal Clerks

Week

Mayor Engstrom presented proclamations to Janel Chapman and Kelly Buend

in recognition of Municipal Clerks Week.

D. Introduction of New Employees Gabe Gaynor, a new employee in the Public Works Department, was

introduced. Police volunteers Arland Sousa and Antonio Cortez were

introduced. New police officers Michael Nass and Mike Sobieraj were

introduced.

VI. COUNCIL BUSINESS:

A. City Engineer

1. Intersection Sign Options City Engineer Harter recommended that a hardwired blinking sign that is

activated by a push button be put in at the intersection of High and Twentiet

Streets. A motion was made by Council Member Scheel, seconded by Counci

Member Mattina, and unanimously carried by voice vote to authorize the

purchase of equipment to enhance pedestrian safety at the referenced

intersection as recommended by the City Engineer.


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Minutes of the Lakeport City Council Meeting of May 7, 2013 Page

B. Public Works

1. Dump Truck Repair A motion was made by Council Member Spillman, seconded by Council Mem

Parlet, and unanimously carried by voice vote to authorize the expenditure of

$9,500 from the General Fund Reserve to replace the broken dump body hois

and required parts and labor.

VII. CITY COUNCIL COMMUNICATIONS:

A. Miscellaneous Reports: Council Member Spillman reported that the historic signs for Main Street sho

be received in mid-May. The Main Street Association has been discussing theCarnegie Library grant and has agreed to donate $1,000 as part of the match.

They will hold a volunteer appreciation night on June 13. Executive Director

Carol Hayes will be leaving, and they are looking for her replacement.

Council Member Mattina reported that she attended the grand opening for t

Lake Center of the Mendocino College. Council Member Mattina will be

attending the Lake Transit and APC meetings tomorrow and the LAFCO meeti

next week.

Council Member Scheel reported that he also attended the college grand

opening. He and the City Manager also attended Legislative Days in

Sacramento. Council Member Scheel will be attending the Lake Transit, APC,

and solid waste meetings tomorrow. He will be looking at the applications fo

Indian gaming funds next week.

City Engineer Harter reported that construction on the frontage improvemen

has begun at Mendocino Savings Bank and will take about three weeks. The

right-of-way work on the senior housing project on Martin Street is anticipate

to begin next week. City Engineer Harter and public works and community

development staff will be attending NPDES training in Santa Rosa next week.

Police Chief Rasmussen thanked the Public Works Department staff for painti

the curbs and lines in the parking lot and installing a sprinkler system. They w

also be installing new signs.

Administrative Services Director Buendia reported that the benefits fair will b

held on May 23, and a flyer will be going out.

Planning Services Manager Britton reported that the Planning Commission wi

be meeting tomorrow and will hold a public hearing to review the proposed

medical marijuana cultivation ordinance.

Public Works Director Brannigan reported that there are a few things to finish

on the Fifth Street paving project. His crews are working on repairs to the

docks, and he expects the docks to be in place for Memorial Day weekend.

City Manager Silveira reported that the quarterly meeting of the Redwood

Empire Division of the League will be held in Fortuna on May 18.

Mayor Engstrom coordinated volunteers for cleanup days in Lakeport,

Clearlake, and Middletown as well as the county park. A total of 594 volunte

put in 2,376 hours. Grillin on the Green will be held on August 3. The Mayor

also signed up for the Memorial Day Parade on May 25.

VIII. CLOSED SESSION: The meeting was adjourned to a closed session at 6:52 p.m. pursuant to

Government Code Section 54956.9 (Anticipated Litigation): two cases.

IX. REPORT FROM CLOSED SESSION: The meeting reconvened to open session at 7:16 p.m. The Mayor reported t

the Council was updated on the status of anticipated litigation.

X. ADJOURNMENT: Mayor Engstrom adjourned the meeting at 7:17 p.m.

ATTEST APPROVED

____________________________________ ___________________________________________

JANEL M. CHAPMAN, City Clerk THOMAS ENGSTROM, Mayor


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Meeting Date: 5/21/2013 Page 1 Agenda Item #VI.A.1.

CITY OF LAKEPORTCity Council

Lakeport Redevelopment AgencyCity of Lakeport Municipal Sewer District

STAFF REPORT

RE: Introduction of an Ordinance to Establish RegulationsPertaining to the Cultivation of Medical Marijuana in the CitysResidential Zoning Districts

MEETING DATE: 05/21/2013

SUBMITTED BY: Andrew Britton, Planning Services Manager

PURPOSE OF REPORT: Information only Discussion Action Item

WHAT IS BEING ASKED OF THE CITY COUNCIL:

The City Council being is asked to: (1) Introduce the proposed Ordinance,which will amend the CitysZoning Ordinance (Title 17, Lakeport Municipal Code) to add Chapter 17.38 and establish regulationspertaining to the cultivation of medical marijuana in the City's UR, R-1, R-2, R-3 and R-5 residential zoningdistricts; and (2) Set a public hearing date for second reading and adoption of the Ordinance.

BACKGROUND:

In recent years the City has received numerous complaints from Lakeport residents regarding the cultivationof medical marijuana. The Police Department has conducted checks at numerous locations in the City andhas received reports of thefts or attempted thefts of medical marijuana. In 2007, the City adopted an

ordinance (Municipal Code Chapter 9.24) which completely prohibits marijuana cultivation inside the City.The Citys current regulations do not follow State law (Health and Safety Code Section 11362.5 et. seq.,known as the Compassionate Use Act of 1996 or CUA and Health and Safety Code Section 11362.7 et.seq., known as the Medical Marijuana Program Act or MMPA) and therefore are basically unenforceableand subject to legal challenges.

Outdoor cultivation of marijuana has caused Lakeport residents to complain about very strong pungentodors (a skunk-like odor) from maturing plants that encroach into their adjacent outdoor yard areas. Thestrength of the odor is reported to be so strong as to deprive them of enjoyment of their yards. Complaintshave also been received from residents of adjacent units in multifamily residences complaining of obnoxiousodors from indoor marijuana cultivation. Damage to the interior of residences from the odor, mold andwater has been reported by landlords. Most of these hazards are particularly acute in the fall as the plantsmature before harvest. Indoor marijuana cultivation can also occur throughout the year causing continualodor problems and other related issues (mold growth, interior moisture damage and increased fire hazards).

As a result of the nuisance complaints and other public safety issues associated with the cultivation ofmarijuana in our community, the City Council directed City staff to develop a new marijuana cultivationordinance that is consistent with the applicable State laws regarding medical marijuana but containsreasonable regulations that are designed to address public safety concerns and potential nuisance issuesassociated with the cultivation of medical marijuana.


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Several City staff members, including representatives from the Community Development and PoliceDepartments, met in November 2012 to discuss the development of a new ordinance. Medical marijuanacultivation ordinances from other California cities and counties were reviewed and there was a consensusthat the cultivation ordinance adopted by the City of Anderson was a good starting point. The City ofAndersons ordinance prohibits medical marijuana cultivation inside a residence and allows up to 50 squarefeet of medical marijuana cultivation to take place in a detached accessory building that is secured andprovided with odor control filters.

On February 5, 2013, a draft marijuana cultivation ordinance was to be considered by the City Council.However, due to the fact that the proposed ordinance will be a chapter of the Citys Zoning Ordinance,State law and the Citys Municipal Code requires it to be reviewed and approved by the PlanningCommission prior to consideration by the City Council. Although the City Council did not formally reviewthe draft ordinance in February, the Council requested the formation of an ad-hoc committee consisting oftwo City Council members, City staff and residents of Lakeport who expressed an interest in this issue.

A committee was formed and began meeting in early March. The committee included City staff (PlanningServices Manager, Police Chief and Building Official), two City Council members, and three Lakeportresidents. The City Attorney also attended the committee meetings as a non-voting member and served aslegal counsel.

The committee met a total of four times in March and April. The draft ordinance prepared by City staff wasreviewed as were other cultivation ordinances and a wide variety of information related to medical marijuanacultivation. The background materials reviewed by the committee have been shared with the PlanningCommission and City Council and a web link to these materials has been posted on the Citys website(Planning Commission homepage, current staff reports and background information folder). Thebackground documents can also be accessed via this link:https://www.dropbox.com/sh/2zsp65l36j2we2w/qafEJXGja6

Ken Wells, Chief of the Lakeport Fire Protection District, attended the March 20 meeting and provided aletter describing his agencys position on indoor marijuana cultivation activities. The letter is posted on theCitys website and states that indoor cultivation (inside a residence) is a public safety problem and that theChief opposes these activities. The letter includes many examples of residential fires related to indoorcultivation, including one in the Lakeport Fire District and many others around Lake County.

The initial draft ordinance was revised based on recommendations from the committee members.Significant changes in the original draft ordinance that were approved by the committee included:

New definitions and minor changes to definitions included in the original ordinance. New and/ormodified terms include: child care center; cultivation; detached, enclosed, secure structure; indoors;outdoors; rear yard; residential structure; school; and solid fence.

Added subsection 3. to Section 1. B. (Intent). New language states that it is the Citys intent toenforce the provisions of the ordinance primarily on the basis of legitimate and verified complaintsrelated to nuisance conditions and/or other public safety issues. The Police Department supported thischange but emphasized that this language, if approved, will not limit the Departments ability to act onserious violations that come to their attention without a complaint.

Increased the maximum allowable area for medical marijuana cultivation from 50 square feet to 80square feet.

Removed the specific wattage limit for medical marijuana cultivation lighting. New language states thatthe lighting shall comply with the California Building Code.

Removed requirement for an audible residential alarm system serving detached, secure and enclosedaccessory buildings used for the cultivation of medical marijuana.
https://www.dropbox.com/sh/2zsp65l36j2we2w/qafEJXGja6https://www.dropbox.com/sh/2zsp65l36j2we2w/qafEJXGja6https://www.dropbox.com/sh/2zsp65l36j2we2w/qafEJXGja6


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Added language prohibiting the use of flammable/volatile gas products or generators within anydetached structure used for medical marijuana cultivation.

Removed several references to the word criminal in Section 1. G. (Enforcement) because thepossession and use of medical marijuana has been de-criminalized by the State of California. Violationsof the ordinance are now deemed to be a citable offense rather than a criminal offense and aresubject to the issuance of an Administrative Citation which is defined as an infraction.

Meeting notes from all four committee meetings are also posted on the Citys website and provideadditional details regarding the amendments to the draft ordinance recommended by the committee as wellas other discussion topics.

The committee held a final meeting on April 17 at which time the revised draft ordinance was reviewed andunanimously approved to be referred to the Planning Commission for their consideration.

The Lakeport Planning Commission conducted a properly-noticed public hearing on May 8, 2013, to reviewthe draft ordinance make a recommendation to the City Council as required by the Citys Municipal Code.As noted in the Minute Order of the May 8 meeting (see Exhibit 1), the Commission heard testimony fromseveral interested parties including two Lakeport residents who served on the cultivation ordinancecommittee.

Following the public hearing, the Planning Commission recommended several revisions to the draftordinance and unanimously voted to recommend adoption of the revised ordinance to the City Council.Please refer to the attached Minute Order for the specific revisions recommended by the PlanningCommission. The Planning Commissions recommendation to the City Council was based on a finding thatadoption of the ordinance is in the best interest of the City and its residents.

The draft ordinance has been revised to incorporate the recommended changes and is attached (Exhibit 2)for consideration by the City Council.

DISCUSSION:

This proposed ordinance restricts the cultivation of medical marijuana in residential zoning districts to

detached, enclosed and secure accessory buildings; limits the cultivation area to a maximum of 80 squarefeet; requires security and odor control measures to be in place; addresses the proximity of marijuanacultivation activities to schools, parks and childcare facilities; and includes other measures intended toaddress the potential problems associated with the cultivation of medical marijuana.

As described in the Staff Report presented to the Planning Commission (Exhibit 3), the proposed ordinanceis the result of substantial input by the affected stakeholders, including City staff, elected officials, andproponents/advocates for the use and/or cultivation of medical marijuana. Staff believes the proposedordinance achieves an appropriate balance between the applicable State laws (the CUA and MMPA)governing the cultivation of medical marijuana and the Citys legal right to establish reasonable regulationsthat promote public health and safety and the right for residents to be comfortable and free of nuisanceodors or other detrimental effects resulting from marijuana cultivation.

OPTIONS:

1. Introduce the proposed Ordinance and set a public hearing date for its second reading and adoption.

2. Propose revisions to the draft Ordinance and request that it be returned to the City Council for furtherdiscussion.

FISCAL IMPACT:

None $ Account Number:


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Comments: No significant fiscal impacts are anticipated as a result of the proposed modifications to theZoning Ordinance. Typical expenses related to the public hearing notice, ordinance publication andcodification will be incurred.

Positive fiscal impacts may be realized given that there will be fewer marijuana-related nuisance conditionsin our community. The medical marijuana cultivation regulations may attract new residents to the City andproperty tax and other revenue increases are a possibility.

SUGGESTED MOTIONS:

Move that the City Council introduce the proposed Ordinance adding Title 17, Chapter 17.38 to theLakeport Municipal Code related to the establishment of regulations pertaining to the cultivation of medicalmarijuana and set a public hearing and second reading for June 18, 2013, at 6:00 p.m.

Attachments:Exhibit 1: Planning Commission Minute Order (May 8, 2013 meeting)Exhibit 2: Proposed Medical Marijuana Cultivation OrdinanceExhibit 3: Planning Commission Staff Report (May 8, 2013)


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Exhibit 2

1

ORDINANCE NO. XXX (2013)

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKEPORT

ENACTING CHAPTER 17.38 OF THE LAKEPORT MUNICIPAL CODE,REGARDING MEDICAL MARIJUANA CULTIVATION

WHEREAS, the City of Lakeport Municipal Code establishes rules and regulations for livingand doing business within city limits, and;

WHEREAS,Health and Safety Code Section 11362.5 et. seq., known as the CompassionateUse Act of 1996, (CUA), adopted by the voters in the State of California, allows a person to usemarijuana for medical purposes with a doctors recommendation without violating state criminallaws concerning the use, possession or cultivation of marijuana, and;

WHEREAS, Health and Safety Code Section 11362.7 et. seq., known as the MedicalMarijuana Program Act, (MMPA), was adopted by our state legislature and offers some clarificationon the scope of the Compassionate Use Act of 1996 and allowed cities and other governing bodiesto adopt and enforce rules and regulations related to medical marijuana, and;

WHEREAS, the City may impose regulations to ensure the safety of our residents, beingcareful not to unreasonably limit the rights of qualified patients under the CUA and MMPA, and;

WHEREAS, numerous locations in the city have had reports of thefts or attempted thefts ofmedical marijuana, and;

WHEREAS, cultivation of medical marijuana inside of residences and attached garages createthe potential for risk of fire related to the improper use or modification of electrical systems, and;

WHEREAS, medical marijuana growth can pose significant safety risks for surroundingneighbors, and can cause nuisances associated with the odor of the marijuana plants and publicsafety issues concerning theft of plants, and;

NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS:

Section 1. The City Council of the City of Lakeport does hereby add the following Chapter to theMunicipal Code:

Chapter 17.38 Medical Marijuana Cultivation

A. Legislative Findings.

The City Council finds as follows:1. In 1996, the voters of the State of California approved Proposition 215 which was

codified as California Health and Safety Code Chapter 11362.5, and entitled "TheCompassionate Use Act of 1996" ("the Compassionate Use Act" or CUA).

2. The intent of the Compassionate Use Act was to enable persons who are in need ofmarijuana for medical purposes to obtain and use it under limited, specificcircumstances, without being subject to criminal prosecution under certain statestatutes.


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Draft Medical Marijuana Cultivation Ordinance

5

2. The qualified patient or primary caregiver shall reside in the residence located on theparcel containing the detached, fully-enclosed and secure accessory structure where theMedical Marijuana cultivation occurs.

3. The qualified patient or primary caregiver shall not cultivate Medical Marijuana in anyother location within the incorporated City of LAKEPORT other than in the

accessory structure located on the parcel containing his/her primary residence.4. The qualifying residence located on the property containing the detached, fully-

enclosed and secure accessory structure in which Medical Marijuana is cultivated shallmaintain kitchen, bathrooms, and primary bedrooms for their intended use and shallnot be used for Medical Marijuana cultivation.

5. Medical Marijuana cultivation shall not adversely affect the health or safety of nearbyresidents by creating dust, glare, heat, noise, noxious gasses, odor, smoke, traffic,vibration, or other impacts, or be hazardous due to use or storage of materials,processes, products or wastes.

6. Residential accessory structures used for cultivation shall meet the following criteria:

o The structure shall be provided with a locking door or doors.o If a secure structure is not feasible and the cultivation building is an unsecured

structure then it shall additionally be surrounded by a secure solid six (6) foothigh fence located within ten (10) feet of the unsecured structure and equippedwith a lockable gate.

o The structure shall be located in the rear yard portion of the lot and maintain aminimum of a ten (10) foot setback from the side and rear property lines andfrom any other building on the parcel.

o Any accessory structure utilized for cultivation of marijuana shall be legallyconstructed with a building permit if it exceeds 120 square feet of size. No morethan 80 square feet of floor area shall be used for the cultivation of marijuana.The plant canopy shall be contained within the 80 square feet of floor area. Allelectrical and plumbing fixtures shall be installed with a valid building permitfrom the City. Such building permits will only be issued to the owner of theproperty. If the resident is proposing to convert an existing accessory structure,or a portion of an existing structure, for cultivation of marijuana, an inspectionwill be required to ensure compliance with the ordinance.

o Medical Marijuana cultivation lighting shall comply with the California Building,Electrical and Fire Codes as adopted by the City.

o Flammable or volatile gas products or generators shall not be used within anydetached structure used for the cultivation of medical marijuana.

o Any detached, fully-enclosed and secure structure used for the cultivation ofmedical marijuana must have a ventilation and filtration system installed thatshall prevent nuisance marijuana plant odors from exiting the interior of thestructure. If a permanent, built-in ventilation and filtration system is installed, itshall be subject to the issuance of a building permit, approval by the BuildingOfficial and must be installed prior to commencing cultivation within thedetached, fully-enclosed and secure structure.


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Such citations shall be expeditiously processed through use of the Administrativecitation process or where appropriate through filing an infraction in the appropriatecourt of law.

5. Remedies Non-Exclusive. The remedies provided herein shall not be the exclusivemeans of enforcing the provisions of this Chapter nor the exclusive means available to

the City to address problems associated with the cultivation of marijuana, whether formedical or other purposes. The City shall continue to have available to it the ability topursue abatement of nuisances and other problems related to marijuana cultivationunder California Penal Code Chapters 372 and 373a and other applicable provisions oflaw. The City may also pursue the recovery of its abatement costs in the mannerprovided by the LAKEPORT Municipal Code.

H. Liability.

The provisions of this Chapter shall not be construed to protect the property owner(s) ofrecord for each legal parcel associated with the cultivation of Medical Marijuana, lessees,tenants, and other participants in the cultivation of Medical Marijuana, and members of

collectives and/or cooperatives associated with the cultivation of Medical Marijuana, fromprosecution pursuant to any laws that may prohibit the cultivation, sale, and/or possessionof controlled substances. Moreover, cultivation, sale, possession, distribution, and use ofmarijuana remain violations of federal law as of the date of adoption of the ordinancecreating this Chapter and this Chapter is not intended to, and does not protect any of theabove described persons from arrest or prosecution under those federal laws. The propertyowner(s) of record for each legal parcel associated with the cultivation of Medical Marijuana,lessees, tenants, and other participants in the cultivation of Medical Marijuana, and membersof collectives and/or cooperatives associated with the cultivation of Medical Marijuana,assume any and all risk and any and all liability that may arise or result under state and federalcriminal laws from the cultivation of marijuana. Further, to the fullest extent permitted bylaw, any actions taken under the provisions of this Chapter by any public officer or employee

of the City of LAKEPORT or City of LAKEPORT itself, shall not become a personalliability of such person or the liability of the City of LAKEPORT.

Section 2.

If any provisions of this ordinance or its application to any person or circumstance are held invalid,the invalidity does not affect other provisions or applications of this ordinance that can be giveneffect without the invalid provision or application, and to this end the provisions of this ordinanceare severable.

Section 3.

All former ordinances including but not limited to Chapter 9.24 and resolutions, or parts thereof,

conflicting or inconsistent with the provisions of this ordinance are hereby repealed.Section 4.

This Ordinance shall be published in a newspaper of general circulation in the City of LAKEPORT,in the manner provided by Chapter 36933 of the Government Code of the State of California, andshall be effective 30 days after its passage.

The foregoing Ordinance was introduced at a regular meeting of the City Council of the City ofLAKEPORT held on May 21, 2013 and duly adopted at a regular meeting of the City Council of theCity of LAKEPORT held on ______________ by the following vote:


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AYES:NOES:ABSTAIN:ABSENT:

___________________________Thomas Engstrom, Mayor

ATTEST: APPROVED AS TO FORM:

_______________________________ ___________________________KELLY BUENDIA, Deputy Clerk STEVEN J. BROOKES, City Attorney


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___________________________________________________________________________________________________________

Meeting Date: May 8, 2013 Page 1 Agenda Item VI. A.

CITY OF LAKEPORT

PLANNING COMMISSION

STAFF REPORT

RE: OA 13-02 / Draft Ordinance / Medical

Marijuana Cultivation

MEETING DATE: May 8, 2013

SUBMITTED BY: Andrew Britton, Planning Services Manager

PURPOSE OF REPORT: Information only Discussion Commission Action

WHAT IS BEING ASKED OF THE PLANNING COMMISSION:

Public hearing, discussion and recommendation to the City Council regarding the

adoption of an ordinance that would enact Chapter 17.38 of the Lakeport Municipal

Code and establish regulations pertaining to the cultivation of medical marijuana.

BACKGROUND INFORMATION:

Health and Safety Code Section 11362.5 et. seq., known as the Compassionate Use Act

of 1996, (CUA), adopted by the voters in the State of California, allows a person to use

marijuana for medical purposes with a doctors recommendation without violating state

criminal laws concerning the use, possession or cultivation of marijuana. Health and

Safety Code Section 11362.7 et. seq., known as the Medical Marijuana Program Act,(MMPA), was adopted by our state legislature and offers some clarification on the scope

of the Compassionate Use Act of 1996 and allowed cities and other governing bodies to

adopt and enforce rules and regulations related to medical marijuana.

Health and Safety Code Section 11362.5(2)(d) says, in part:

[state regulations imposing punishments] relating to the possessionand cultivationof

marijuana shall not apply to a patient, or to a patients primary caregiver, who possesses

or cultivates marijuana for the personal medical purposes of the patient upon the written

or oral recommendation or approval of a physician.

Further, Health and Safety Code Section 11362.765(a) reads:

[qualified patients or their primary caregivers] shall not be subject, on that sole basis,

to criminal liability under [specified state regulations imposing punishments for marijuana

cultivation, possession and use].

The state law is very clear that patients with a recommendation from their doctor may

possess, cultivate and use marijuana for medical purposes. Marijuana remains an illegal

drug in the eyes of the federal government; however, the current administration has

chosen to not devote federal law-enforcement resources to enforcing marijuana laws in

Exhibit 3


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___________________________________________________________________________________________________________


states that allow the use of medical marijuana provided the user is in compliance with

state law.

As noted, cultivation is specifically mentioned as being allowed for medical purposes. In

addition, a California Supreme Court ruling found that a state or local jurisdiction cannot

limit the amount of medical marijuana that a qualifying individual may possess beyond

that which has been recommended by a physician. This ruling seems to clarify that a

local jurisdiction must be careful to not deny activities specifically allowed in the CUA.

However, the courts have long since allowed local governments flexibility to regulate land

uses in the interest of health and safety and the establishment of guidelines for marijuana

cultivation is appropriate. In February 2013, in Browne v. County of Tehema, theCalifornia

Third District Court of Appeal upheld the County of Tehemas ordinance regulating the

cultivation of medical marijuana, finding that the ordinance does not conflict with either

the CUA or the MMPA. Consistent with previous appellate opinions regarding medical

marijuana collectives and cooperatives, the Court explained that neither the CUA nor the

MMPA grants qualified patients or individuals with a medical marijuana identification card

an unfettered right to cultivate marijuana for medical purposes. Consequently, because

the ordinance did not ban the cultivation of marijuana outright, the judgment of the trialcourt was affirmed. Furthermore, the appellate court affirmed a local governments right

to declare cultivation of marijuana in violation of local ordinances to be a nuisance and

to proceed with nuisance abatement. Tehema Countys ordinance included restrictions

on the number of marijuana plants that could be cultivated as well as the location of

cultivation activities. The Appellate Court found the ordinance did not conflict with state

law because the ordinance merely regulated the location and quantity, but did not

prohibit, the cultivation of marijuana.

For example, the CUA specifically says in Section 11362.5(b)(2): Nothing in this section

shall be construed to supersede legislation prohibiting persons from engaging in conduct

that endangers others, nor to condone the diversion of marijuana for nonmedical

purposes. Therefore, the City may impose regulations to ensure the safety and well-beingof our residents, being careful not to unreasonably limit the rights of qualified patients

under the CUA and MMPA. Despite several challenges, the Courts have not yet found

that balance. With little guidance from the Courts, there is no action the City may impose

that is 100% safe from successful legal challenge. Regardless, the City should step forward

and impose regulations necessary to keep our residents safe and unburdened by

nuisance odors and/or other negative impacts while seeking to protect ourselves from

expensive legal challenges.

In recent years the City has received numerous complaints from Lakeport residents

regarding the cultivation of medical marijuana. The Police Department has conducted

checks at numerous locations in the City and has received reports of thefts or attemptedthefts of medical marijuana. One prior incident resulted in a homeowner firing several

shots in the air to scare off the suspects who he thought were trying to steal his medical

marijuana. In 2007, subsequent to the gunfire incident, the City adopted an ordinance

(Municipal Code Chapter 9.24) which completely prohibits marijuana cultivation inside the

City. The Citys current regulations do not follow State law (the CUA and MMPA) and

therefore are basically unenforceable and subject to legal challenges.

Outdoor cultivation of marijuana has caused neighbors to complain about very strong

pungent odors (a skunk-like odor) from maturing plants that encroach into their adjacent

outdoor yard areas. The strength of the odor is reported to be so strong as to deprive


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them of enjoyment of their yards. Complaints have also been received from residents of

adjacent units in multifamily residences complaining of obnoxious odors from indoor

marijuana cultivation. Damage to the interior of residences from the odor, mold and

water has been reported by landlords. Most of these hazards are particularly acute in the

fall as the plants mature before harvest. Indoor marijuana cultivation can also occur

throughout the year causing continual odor problems and other related issues (mold

growth and interior moisture damage).

As a result of the nuisance complaints and other public safety issues associated with the

cultivation of marijuana in our community, the City Council directed City staff to develop

a new marijuana cultivation ordinance that is consistent with the CUA and MMPA but

contains reasonable regulations that are designed to address public safety concerns and

potential nuisance issues.

Several City staff members, including representatives from the Community Development

and Police Departments, met in November 2012 to discuss the development of a new

ordinance. Medical marijuana cultivation ordinances from other California cities and

counties were reviewed and there was a consensus that the cultivation ordinance

adopted by the City of Anderson was a good starting point.

On February 5, 2013, a draft marijuana cultivation ordinance was to be considered by the

City Council. However, due to the fact that the proposed ordinance will be a chapter of

the Citys Zoning Ordinance, State law and the Citys Municipal Code requires it to be

reviewed and approved by the Planning Commission prior to consideration by the City

Council. Although the City Council did not formally review the draft ordinance in

February, the Council requested the formation of an ad-hoc committee consisting of two

City Council members, City staff and residents of Lakeport who expressed an interest in this

issue.

A committee was formed and began meeting in early March. The committee included

City staff (Planning Services Manager, Police Chief and Building Official), two City Councilmembers, and three Lakeport residents. The City Attorney also attended the committee

meetings as a non-voting member and served as legal counsel.

The committee met a total of four times in March and April. The draft ordinance prepared

by City staff was reviewed as were other cultivation ordinances and a wide variety of

information related to medical marijuana cultivation. The background materials reviewed

by the committee have been shared with the Planning Commission and a web link to

these materials has been posted on the Citys website (Planning Commission homepage,

current staff reports and background information folder).

Ken Wells, Chief of the Lakeport Fire Protection District, attended the March 20 th meeting

and provided a letter (Attachment 1) describing his agencys position on indoor marijuanacultivation activities. The letter states that indoor cultivation (inside a residence) is a public

safety problem and that the Chief opposes these activities. The letter includes many

examples of residential fires related to indoor cultivation, including one in the Lakeport Fire

District and many others around Lake County.

The initial draft ordinance was revised based on recommendations from the committee

members. The committee held a final meeting on April 17 at which time the draft

ordinance was unanimously approved to be referred to the Planning Commission for their

consideration.


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DISCUSSION:

This proposed ordinance (Attachment 2) restricts the cultivation of medical marijuana in

residential areas to detached accessory buildings; limits the cultivation area to a

maximum of 80 square feet; requires security and odor control measures to be in place;

addresses the proximity of marijuana cultivation activities to schools, parks and childcare

facilities; and includes other measures intended to address the potential problems

associated with the cultivation of medical marijuana.

The proposed ordinance is the result of substantial input by the affected stakeholders,

including City staff, elected officials, and proponents/advocates for the use and/or

cultivation of medical marijuana. Staff believes the proposed ordinance achieves an

appropriate balance between the applicable State laws (the CUA and MMPA) governing

the cultivation of medical marijuana and the Citys legal right to establish reasonable

regulations that promote public health and safety and the right for residents to be

comfortable and free of nuisance odors or other detrimental effects resulting from

marijuana cultivation.

POINTS OF CONSIDERATION:

Staff has reviewed the Citys General Plan for policies that would support or inhibit this type

of ordinance. The Land Use Element includes a policy which promotes the facilitation of

safe residential neighborhoods:

Policy LU 1.4: Safety. Facilitate safe, quiet residential neighborhoods free ofnatural and manmade hazards.

The background materials provided to the Planning Commission (and posted on the Citys

website) include many media reports of thefts, burglaries, violent home invasions,

residential fires and other serious public safety-related problems associated with marijuana

cultivation activities in northern California. Several of the criminal incidents have occurred

in Lake County, including a home invasion in Kelseyville in March 2013. Staff believes thatthe proposed ordinance will regulate marijuana cultivation activities in a manner that will

facilitate safer residential neighborhoods in Lakeport.

It is also important to note that the Citys existing marijuana- related ordinance (Municipal

Code Chapter 9.24) will be repealed if the ordinance is approved by the City Council.

OPTIONS:

1. Accept the proposed draft ordinance that would enact Chapter 17.38 of the Lakeport

Municipal Code and establish regulations pertaining to the cultivation of medical

marijuana and recommend its adoption to the City Council based on the finding that

the proposed ordinance is in the best interest of the City of Lakeport and its residents.

2. Propose revisions to the draft ordinance and request that it be returned to the Planning

Commission for further discussion.

SUGGESTED MOTION:

See options listed above.

Attachments 1. March 20, 2013 Letter from Lakeport Fire Protection District

2. Draft Ordinance


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