City ofI!!!!.,~~...~I",=rnK3";;"ii~..~ REPORT TO THE CITY COUNCIL AGENDA ITEM NO.9:80 0J'>1 J)

COUNCIL MEETING l.n/2..'il/';;O/«"APPROVEOBY

June 21, 2012

FROM:

BY:

SUBJECT:

JERRY P. DYER, Chief of PolicePolice Department L..:::C~ITY~M=A:.::NA:::G::::E:::R~~~~~~~ ---.J

KEITH L. FOSTER, Deputy Chief~Police Department - Investigative Services Division

TEXT AMENDMENT APPLICATION NO. TA-11-001 AND RELATED ENVIRONMENTALFINDING FOR ENVIRONMENTAL ASSESSMENT NO. EA-11-01 PROHIBITING THEOUTDOOR CULTIVATION OF MARIJUANA

RECOMMENDATION

Recommend the Council approve Environmental Assessment for Text Amendment No. TA-11-001 findingthere is no possibility the amendment may have a significant effect on the environment pursuant to CEQAGuidelines Section 15061(b)(3).

Recommend the Council adopt Text Amendment No. TA-11-001 which proposes to add Article 21 to Chapter12 of the Fresno Municipal Code related to the outdoor cultivation of marijuana. Specifically, the textamendment will prohibit the outdoor cultivation of marijuana.

EXECUTIVE SUMMARY

Text Amendment No. TA-11-001 proposes to add Article 21 to Chapter 12 of the Fresno Municipal Coderelated to the outdoor cultivation of marijuana. Specifically, the text amendment would prohibit the outdoorcultivation of marijuana.

Currently, the City has no explicit rules or regulations governing the outdoor cultivation of medical marijuana.Numerous medical marijuana cultivation sites have been established in the incorporated areas of the city. ThePublic Works and Development and Resource Management Departments have received inquiries fromprospective marijuana growers about marijuana cultivation in incorporated areas. There have been violentincidents associated with the cultivation of marijuana, including reports of five (5) shootings within the city ofFresno, one (1) resulting in death. Additionally, the police department believes numerous thefts and physicalconfrontations between marijuana growers and theft suspects are unreported. As a result, marijuana growersare constantly vigilant with many possessing handguns andfor rifles to protect their fields.

The term "outdoor" cultivation is not specifically enumerated in Proposition 215 (The Compassionate Use Actof 1996), Senate Bill 420 (Medical Marijuana Program Act), or Health and Safety Code Sections 11362.5 ­11362.83. Under the proposed ordinance, cultivation would be limited to a enclosed and secure structurewhich has a complete roof enclosure supported by connecting walls extending from the ground to the roof,secured against unauthorized entry, and accessible only through a lockable door(s).

Presented toCity CouncilDate r.} 2.111?. .Disposition_ -a/u.JJ6

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Report to CouncilMoratorium on Outdoor Cultivation of Medical MarijuanaJune21,2012Page 2

ENVIRONMENTAL FINDING

The State Guidelines for the implementation of the California Environmental Quality Act provide for theexemption of projects which will clearly have no significant effects on the environment. More specifically,Section 15061(b)(3) of the State CEQA Guidelines states:

"...CEQA applies only to projects which have the potential for causing a significant effect on theenvironment. Where it can be seen with certainty that there is no possibility that the activity in questionmay have a significant effect on the environment, the activity is not subject to CEQA."

It has been determined that there is no possibility of significant adverse effects as a result of this proposal. OnJanuary 26, 2012, the City Council adopted an interim urgency ordinance placing a moratorium on the outdoorcultivation of marijuana in the city of Fresno. The interim ordinance temporarily prohibits outdoor cultivation ofmarijuana in all districts in the incorporated areas of the city of Fresno (until December 15, 2012). As theoutdoor harvest is completed, no new outdoor cultivation can occur during this time. The proposed textamendment will maintain the status quo for the purposes of CEQA.

PLANNING COMMISSION ACTION

This text amendment was presented to the Fresno City Planning Commission on May 16, 2012. TheCommission found there is no substantial evidence in the record to indicate that the proposed text amendmentmay have a significant effect on the environment and recommends the City Council approve the Finding ofCategorical Exemption under Section 15061 (b) (3) of the CEQA Guidelines.

The commission also recommends to the City Council that the proposed Text Amendment Application No. TA­11-001, adding Article 21 to Chapter 12 of the Fresno Municipal Code (FMC) related to the prohibition of theoutdoor cultivation of marijuana, be approved.

AIRPORT LAND USE COMMISSION ACTION

This text amendment was presented to the Airport Land Use Commission on April 2, 2012. The commissionapproved the City of Fresno ordinance prohibiting outdoor marijuana cultivation as being consistent with theCompatibility Land Use Plans and Policies of the Fresno County Airport Land Use Commission.

COUNCIL DISTRICT COMMITTEES AND OTHER OUTREACH

The proposed ordinance was presented to all active Council District Plan Implementation Committees betweenJanuary and April of 2012. In addition, presentations were made to the Kiwanis Club, the Citizen's PoliceAcademy, and several Neighborhood Watch groups. In general, the input received was in support of theproposed ordinance; however, at least one committee member was opposed.

PUBLIC NOTICE

In accordance with Fresno Municipal Code Section 12-402-B, a notice of hearing was published in theFresno Bee ten (10) days prior to the council meeting. No comments have been received by staff.

Report to CouncilMoratorium on Outdoor Cultivation of Medical MarijuanaJune 21,2012Page 3

BACKGROUND/ANALYSIS

The proposed ordinance complies with applicable state laws while imposing reasonable rules and regulationsprotecting the public health, safety, and welfare of the residents and businesses within the incorporated areasof the city of Fresno.

Unless adopted, marijuana cultivation can occur without any specific regulation and creates inconsistent andincompatible land use. Marijuana is considered the dried mature processed flowers or buds of the femalecannabis plant.

Marijuana raises a number of difficult legal, social, safety, and medical issues for California cities. Marijuanause among adolescent students is increasing after a decade of gradual decline. This increase is perhapsattributable, in part, to conflicting messages imparted by the national debate over drug legalization andcriminalization. Federal law prohibits the cultivation and use of marijuana, regardless of the reason for suchuse. However, California and fifteen other states (plus Washington DC) have legalized the medical use ofmarijuana. Under current California law, non-medical users who possess not more than 28.5 grams (1 oz.) ofmarijuana, other than concentrated cannabis, are guilty of an infraction punishable by a fine of not more thanone hundred dollars (Penal Code Section 11357(b».

In 1996, the voters of the State of California approved Proposition 215 (codified as Health and Safety CodeSection 11362.5 and entitled "The Compassionate Use Act of 1996"). The intent of Proposition 215 was toenable persons, in need of marijuana for medical purposes, to obtain and use marijuana without fear ofcriminal prosecution under limited and specified circumstances. It specifically exempted patients (or a patient'sprimary caregiver) from being prosecuted under Health and Safety Code 11357 (possession of marijuana) and11358 (cultivation of marijuana) for specified amounts.

On January 1, 2004, the California State Legislature enacted Senate Bill (SB) 420 (the Medical MarijuanaProgram Act) to clarify the scope of The Compassionate Use Act of 1996 and to allow cities and othergoverning bodies to adopt and enforce rules, regulations, and laws consistent with SB 420.

On October 7, 2011, four California US attorneys held a news conference, stating many people in Californiahad simply used the law as a cover for large-scale drug operations, with tens of millions of dollars' worth ofmarijuana being sent across state lines from California. According to Melinda Haag, the U.S. Attorney in SanFrancisco, the voter-approved Compassionate Use Act, "has been hijacked by profiteers....... using the cover tomake enormous amounts of money" as California cities burgeon with marijuana storefronts purporting to servesuffering people. "This is not what the California voters intended or authorized," said Andre Birotte Jr., the U.S.Attorney in Los Angeles. "It is illegal under California law."

Federal officials said they would also concentrate on properties used to grow marijuana, particularly in theagriculturally rich central part of the state.

The safe distribution of marijuana, as contemplated by the Act, should include the safety of all the citizenry ofthe city, not just the users of medical marijuana. The goal of the ordinance is to ensure the safety of bothmedical marijuana users who cultivate marijuana and non-users who live in close proximity to the marijuanacultivation areas.

Report to CouncilMoratorium on Outdoor Cultivation of Medical MarijuanaJune 21,2012Page 4

Examples of the public threat to health, safety, or welfare are as follows:

1. There are numerous reports of violent incidents associated with the cultivation of marijuana, includingreports of five (5) shootings within the city of Fresno. One incident resulted in the death of a victim whoattempted to steal marijuana plants. The grower, who shot the victim, was convicted of voluntarymanslaughter and sentenced to 25 years in prison. This shooting occurred in the 900 block of WestBelmont Avenue, directly across from the Fresno Zoo Playland and the paddle boats on LakeWashington inside the zoo.

2. Based on anecdotal evidence received from the narcotics and intelligence units, numerous marijuana­related thefts and physical confrontations between marijuana growers and theft suspects areunreported.

3. As a result, the growers are constantly vigilant with many growers possessing handguns and/or rifles.The chance of an innocent victim, who lives near a marijuana field, being injured by stray gunfire ishigh.

4. Depending upon the type of marijuana harvested and the willingness of a grower to wait for plants toreach an optimum state of ripeness, most outdoor harvesting begins in August and (depending on theweather) ends in late November. The peak harvest is in October. During this time, marijuana buds areheavy with THe (delta-9-tetrahydrocannabinol) resin and produce a strong scent. There is sufficientevidence that marijuana cultivation attracts a considerable amount of non-residents who, by followingthe scent, drive or walk into these neighborhoods in search of marijuana cultivation fields, i.e., grows.Marijuana-related threats and conflicts involVing the growers and their neighbors continue to escalate.

5. The unregulated cultivation of outdoor marijuana close to residences and schools poses a current andimmediate threat to public health, safety, and welfare. During the 2010 fall harvest, the Fresno PoliceDepartment received 52 complaints from citizens calling on the Narcotics Hotline, specificallycomplaining of the strong odor of marijuana and increased pedestrian/vehicular traffic. Schooladministrators have complained of students, after they have walked by marijuana fields, smellingstrongly of marijuana. During the current 2011 harvest, the department received 198 complaints fromcitizens. During the recent annual harvest, the Southeast District administrative supervisor receivedapproximately three to five marijuana harvest-related complaints per week involving thirteen grows.

6. California's medical marijuana laws have unwittingly created a profitable cultivation industry fueled byhigh profitability and high demand. Marijuana production requires little investment and produces largeprofits. Marijuana costs approximately $75.00 per pound to produce and can be sold for up to $6,000per pound at the wholesale level, depending on the quality of the processed marijuana. As a result,there is significant interest in developing illegal (but highly-profitable) interstate marijuana distributionrings from California to the other 34 non-medical use states. Many marijuana grows are nothing morethan profit making schemes.

PROPOSED ORDINANCE

There are several California cities that currently are working on or have moratoriums on medical marijuanacultivation. They are: Anderson, Live Oak, Long Beach, Redding, South Lake Tahoe and Tracy. Californiacities with permanent bans are San Bernardino, Moraga, and Lakespoint.

Report to CouncilMoratorium on Outdoor Cultivation of Medical MarijuanaJune 21, 2012Page 5

In the city of Fresno, an interim ordinance is in effect until December 15, 2012, which prohibits outdoorcultivation of marijuana in all districts in the incorporated areas of the city. The ordinance being reviewedwould act as a permanent prohibition through an amendment to the municipal code.

Below are excerpts of the proposed text amendment to be added to Chapter 12 (Land Use Planning andZoning) of the Fresno Municipal Code (see the attachment for complete version):

SECTION 12-2102

DEFINITIONS: As used in this Article, the following words and phrases shall have the meaning given them inthis Section, unless the context clearly requires otherwise:

(a) "City" shall mean the city of Fresno, California.(b) "Cultivation" shall mean the planting, growing, harvesting, drying or processing of marijuana plants, or

any parts thereof.(c) "Fully enclosed and secure structure" shall mean a space within a building, greenhouse or other

structure which has a complete roof enclosure supported by connecting walls extending from theground to the roof, which is secure against unauthorized entry, and which is accessible only throughone or more lockable doors.

(d) "Outdoor" shall mean any location that is not totally contained within a "fully enclosed and securebUilding" that is permitted and zoned for that location.

(e) "Person" shall mean any individual, group of two or more individuals, collective as defined in theCompassionate Use Act, corporation, partnership or any other legal entity.

SECTION 12-2103. OUTDOOR CULTIVATION OF MARIJUANA PROHIBITED.No person owning, renting, leasing, occupying, or having charge or possession of any real property within theCity limits shall cause or allow such real property to be used for the outdoor cultivation of marijuana.

SECTION 12-2104. PENALTY AND ABATEMENT.(a) A violation of this chapter shall be prosecuted by the City Attorney through the civil enforcement

process, including injunctive relief. Each day a person is in violation of this Article shall be considered aseparate violation.

(b) Any property upon which a violation of this Article is found shall be SUbject to immediate abatement bythe City.

(c) In addition to any administrative penalty assessed for a violation of this Article, any person found inviolation of this article will be charged abatement, actual, administrative and enforcement costs asdefined in Section 1-503, calculated to recover the total costs incurred by the City in enforcing thisArticle.

Legal Requirements for Regulating the Outdoor Cultivation of Marijuana

California Health and Safety Code Section 11362.83 expressly allows cities and counties to adopt and enforceordinances that are consistent with Senate Bill 420. The City has no explicit rules or regulations governing theoutdoor cultivation of marijuana to prevent impacts on nearby residents and businesses. The proposedordinance complies with the applicable state law, as well as imposes reasonable rules and regulationsprotecting public health, safety, and the welfare of the residents and businesses within the incorporated area ofthe city of Fresno.

Nothing contained in the proposed ordinance conflicts with Federal law as enumerated in the ControlledSubstances Act, Title 21, U.S.C. Section 841, nor does it permit any activity that is prohibited under that Act.

Report to CouncilMoratorium on Outdoor Cultivation of Medical MarijuanaJune21,2012Page 6

Nothing in the proposed ordinance shall be construed to (1) allow persons to engage in conduct thatendangers others or causes a public nuisance, (2) allow the use of marijuana for non-medical purposes, or (3)allow any activity relative to the cultivation, distribution, and/or consumption of marijuana that is otherwiseillegal.

Two recent decisions in state appellate courts ruled that local jurisdictions can ban dispensaries. In Riversidev. Inland Patients (filed November 9, 2011); the court ruled that nothing in state law prevents cities or countiesfrom banning dispensaries. In a similar case in Long Beach, the court went further and ruled that only thefederal government can regulate marijuana and any attempt by a local jurisdiction is illegal and a violation ofthe Controlled Substance Act.

California laws "do not provide individuals with inalienable rights to establish, operate or use" dispensaries, nordo they say that dispensaries "shall be permitted within every city and county," wrote Justice Carol Codringtonfor a unanimous court decision in City of Riverside v. Inland Empire Patients Health and Wellness Center. Thecourt ruled that California law expressly allows localities to regulate dispensaries and restrict their locations.Codrington stated a total ban is "simply a means of regulation or restriction."

RECOMMENDATION

Staff recommends that the Council take the following actions:

1. Recommend approval of the Environmental Assessment No. EA-11-01 prepared for this project.

2. Recommend approval of Text Amendment No. TA-11-001 as proposed in the attached DraftOrdinance.

FISCAL IMPACT

There is no fiscal impact to the general fund.

JPD:KF:lc06/21/12

Attachments: Environmental Assessment No. EA-11-01, dated May16,2012Proposed Ordinance

CITY OF FRESNOENVIRONMENTAL FINDING OF NO POSSIBILITY OF SIGNIFICANT EFFECT

ENVIRONMENTAL ASSESSMENT NO. EA-11-01

THE PROJECT DESCRIBED HEREIN IS DETERMINED TO HAVE NOSIGNIFICANT EFFECT ON THE ENVIRONMENT PURSUANT TO ARTICLE 5 OF THE

STATE OF CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) GUIDELINES

APPLICANT: City of FresnoFresno Police Department2323 Mariposa MallFresno, California 93721

PROJECT LOCATION: The prohibition of the outdoor cultivation of medical marijuana is on a city­wide basis.

PROJECT DESCRIPTION: A permanent prohibition of the outdoor cultivation of marijuana through anamendment to the municipal code. Under the proposed ordinance,cultivation would be limited to a fUlly enclosed and secure structure, with afoundation, solid walls and a roof. The purpose is to contain the odor of themarijuana plant and remove the attractive nuisance, reducing the chance oftheft, physical confrontation, and violence.

This project is exempt under Section 15002(k)(1), Section 15378(a) and Section 15061(b)(3) of theCalifornia Environmental Quality Act (CEQA) Guidelines.

EXPLANATION: CEQA Section 15002(k)(1): The Lead Agency examines the project to determinewhether there is a project SUbject to CEQA. The City has determined that the activityassociated with the text amendment does not pose an impact on the environmentsuch that it constitutes a project under CEQA.

CEQA Section 15378(a): A "Project" means the whole of the action, which has thepotential for resulting in either a direct physical change in the environment, or areasonably foreseeable indirect physical change in the environment. The proposedordinance complies with applicable state law while imposing reasonable rules andregulations protecting the public health, safety, and welfare of the residents andbusinesses within the incorporated areas of the city of Fresno. The proposedamendment does not pose a direct or indirect effect on the physical environment.

CEQA Section 15061(b)(3): The activity is covered by the general rule that CEQAapplies only to projects, which have the potential for causing a significant effect onthe environment. Where it can be seen with certainty that there is no possibility thatthe activity in question may have a significant effect on the environment, the activityis not subject to CEQA. Here, there is no possibility of significant adverse effects asa result of this proposal. On December 15, 2011, the City Council adopted an interimurgency ordinance placing a moratorium on the outdoor cultivation of marijuana inthe city of Fresno. The interim ordinance was then extended by the City Council onJanuary 26, 2012. The interim ordinance temporarily prohibits outdoor cultivation ofmarijuana in all districts in the incorporated areas of the city of Fresno untilDecember 11, 2012. As the outdoor harvest is completed, no new outdoor cultivationcan occur during this time. The proposed text amendment will maintain the statusquo for the purposes of CEQA. No activity associated with the proposed amendment

No Possibility of Significant EffectEnvironmental Assessment No. EA-11-01May 16, 2012Page 2

has been identified with any certainty as causing a potential or significant effect onthe physical environment.

Finally, there is no substantial evidence in the record that any of the exceptions setforth in CEQA Guidelines, Section 15002(k)(1), Section 15378(a) and Section15061(b)(3) apply to a prohibition on marijuana cultivation. Therefore, Staff hasdetermined that a "no possibility of significant effect" is appropriate for the proposedproject.

Date:

Prepared By:

Submitted By<=;'~~~g~~==~f. r

BILL NO. _

ORDINANCE NO. _

AN ORDINANCE OF THE COUNCIL OF THE CITY OFFRESNO, CALIFORNIA, ADDING ARTICLE 21 TOCHAPTER 12 OF THE FRESNO MUNICIPAL CODERELATING TO PROHIBITING OUTDOOR CULTIVATION OFMARIJUANA IN THE CITY OF FRESNO

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" ("the Act"); and

WHEREAS, the intent of the Act was to enable persons who are in need of marijuana for

medical purposes to obtain and use it under limited, specific circumstances; and

WHEREAS, on January 1,2004, Senate Bil1420 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, California Health and Safety Code Section 11362.83 expressly allows Cities

and Counties to adopt and enforce ordinances that are consistent with Senate Bil1420; and

WHEREAS, the City has no explicit rules or regulations governing the outdoor

cultivation of marijuana to prevent impacts on nearby residents and businesses; and

WHEREAS, the City of Fresno is the fifth largest City in California and has a substantial

percentage of non-owner occupied rental properties and vacant foreclosures. The numerous

rental properties and foreclosures have attracted unauthorized marijuana cultivation activities

resulting in damage to these properties.

Page 1 of6Ordinance Re Prohibition on Outdoor Marijuana

Cultivation in the City of Fresno

WHEREAS, federal law prohibits use of marijuana, regardless of the reason for such use;

while state law decriminalizes under state law the use of medical marijuana on limited terms and

conditions; and

WHEREAS, this Ordinance complies with the applicable state law, as well as imposes

reasonable rules and regulations protecting public health, safety, and the welfare of the residents

and businesses within the incorporated area of the City of Fresno; and

WHEREAS, The City of Fresno Police Department, City residents and other public

entities have reported adverse impacts from the outdoor cultivation of marijuana within the City,

including offensive odors, increased risk of trespassing and burglary, and acts of violence in

connection with the commission of such crimes or the occupants' attempts to prevent such

crimes; and

WHEREAS, the strong odor of marijuana plants, which increases as the plants mature, is

offensive to many individuals and creates an attractive nuisance, alerting people to the location

ofvaluable marijuana plants and creating an increased risk ofcrime; and

WHEREAS; children are particularly vulnerable to the effects of marijuana use, and the

presence of marijuana plants has proven to be an attractive nuisance for children, creating an

unreasonable hazard in areas frequented by children such as schools, parks, and similar

locations; and

WHEREAS, to protect the public health, safety, and welfare, it is the desire of the City to

modify the City of Fresno Municipal Code by prohibiting the outdoor cultivation of marijuana

within the City; and

WHEREAS, it is the Council's intention that nothing in this Chapter shall be deemed to

conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. Section 841,Page 2 of6

Ordinance Re Prohibition on Outdoor MarijuanaCultivation in the City of Fresno

by permitting, or otherwise allowing, any activity which IS lawfully and constitutionally

prohibited under the Act.

WHEREAS, mindful of the fact that marijuana possession and use is prohibited under

federal law and partially decriminalized under state law, it is the Council's intention that nothing

in this Chapter shall be construed, in any way, to expand the rights of anyone to use or possess

marijuana under state law; engage in any public nuisance; violate federal law, or engage in any

activity in relation to the cultivation, distribution, or consumption of marijuana that is otherwise

illegal.

THEREFORE, THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS

FOLLOWS:

SECTION 1. Article 21 is added to Chapter 12 of the Fresno Municipal Code to read as

follows:

ARTICLE 21

OUTDOOR CULTIVATION OF MARIJUANA

Section 12-2101.12-2102.12-2103.12-2104.

Purpose.Definitions.Outdoor Cultivation of Marijuana ProhibitedPenalty and Abatement.

SECTION 12-2101. PURPOSE. The purpose of this section is to prohibit the

outdoor cultivation of marijuana in order to protect the public health, safety and welfare.

Without this prohibition, plantings of new crops of marijuana will occur without the

City's ability to control the negative effects to the health, safety and welfare of the

citizens of the City of Fresno. Those negative effects include, but are not limited to,

offensive odors, alerting people to the location of valuable marijuana plants and creating

Page 3 of6Ordinance Re Prohibition on Outdoor Marijuana

Cultivation in the City of Fresno

an increased risk of crime such as trespassing and burglary, and acts of violence in

connection with the commission of such crimes or the occupants' attempts to prevent

such crimes.

The Council further finds and declares that this Ordinance is found to be

categorically exempt from environmental review pursuant to the California

Environmental Quality Act (CEQA), Guidelines Section 15061(b)(3).

SECTION 12-2102. DEFINITIONS. As used in this Article, the following

words and phrases shall have the meaning given them in this Section, unless the context

clearly requires otherwise:

(a) "City" shall mean the City of Fresno, California.

(b) "Cultivation" shall mean the planting, growing, harvesting, drying

or processing of marijuana plants, or any parts thereof.

(c) "Fully enclosed and secure structure" shall mean a space within a

building, greenhouse or other structure which has a complete roof enclosure

supported by connecting walls extending from the ground to the roof, which is

secure against unauthorized entry, and which is accessible only through one or

more lockable doors.

(d) "Outdoor" shall mean any location that is not totally contained

within a "fully enclosed and secure building" that has been approved by special

permit, pursuant to section 12-405 of the Fresno Municipal Code, and has been

issued by the Development and Resource Management Department. All proposed

buildings and structures constructed on the property must comply with the

prevailing California Building Code Standards.Page 4 of6

Ordinance Re Prohibition on Outdoor MarijuanaCultivation in the City of Fresno

(e) "Person" shall mean any individual, group of two or more

individuals, collective as defined in the Compassionate Use Act, corporation,

partnership or any other legal entity.

SECTION 12-2103. OUTDOOR CULTIVATION OF MARIJUANA

PROHIBITED. No person owning, renting, leasing, occupying, or having charge or

possession of any real property within the City limits shall cause or allow such real

property to be used for the outdoor cultivation of marijuana.

SECTION 12-2104. PENALTY AND ABATEMENT.

(a) A violation of this chapter shall be prosecuted by the City Attorney

through the civil enforcement process, including injunctive relief. Each day a

person is in violation of this Article shall be considered a separate violation.

(b) Any property upon which a violation of this Article is found shall

be subject to immediate abatement by the City.

(c) In addition to any administrative penalty assessed for a violation of

this Article, any person found in violation of this article will be charged

abatement, actual, administrative and enforcement costs as defined in Section

1-503, calculated to recover the total costs incurred by the City in enforcing this

Article.

SECTION 2. SEVERABILITY. If any section, subsection, sentence, clause or phrase or word

of this Ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a

court of competent jurisdiction, such decision shall not affect the validity of the remaining

portions of this Ordinance. The Council hereby declares that is would have passed and adopted

Page 5 of6Ordinance Re Prohibition on Outdoor Marijuana

Cultivation in the City of Fresno

this Ordinance and each and all provisions thereof irrespective of the fact that anyone of more of

said provisions be declared unconstitutional, unlawful or otherwise invalid.

SECTION 3. EFFECTIVENESS. This ordinance shall become effective and in full force and

effect at 12:01 a.m. on the thirty-first day after its fmal passage.

* * * * * * * * * * * * * *

STATE OF CALIFORNIACOUNTY OF FRESNOCITY OF FRESNO

)) ss.)

I, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoingordinance was adopted by the Council of the City of Fresno, at a regular meeting held onthe day of ,2012.

AYESNOESABSENTABSTAIN:

Mayor Approval: , 2012

Mayor Approva1/No Return: ,2012

Mayor Veto: , 2012

Council Override Vote: , 2012

YVONNE SPENCE, CMCCity Clerk

Deputy

BY:....,....... _

APPROVED AS TO FORM:CITY ATTORNEY'S OFFICE

MDF:ns [571 76nslORD]- 5/10/12

Ordinance Re Prohibition on Outdoor MarijuanaCultivation in the City of Fresno

Page 6 of6Michael D. Flores, Deputy

BY:----,:-:::-.,----=----=-_....,.......__

FRESNO CITY COUNCIL

Supplemental Information Packet

Agenda Related Items - Meeting of June 21, 2012Supplemental Packet Date: June 19, 2012

Item(s}General Administration Item 9:30 A.M. "t:"

Supplemental Information:

Any agenda related public documents received and distributed to a majority of the City Council after theAgenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced asneeded. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.c. 54957.5(2).In addition, Supplemental Packets are available for public review at the City Council meeting in the CityCouncil Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the CityClerk's website.

Americans with Disabilities Act (ADA):

The meeting room is accessible to the physically disabled, and the services of a translator can bemade available. Requests for additional accommodations for the disabled, sign language interpreters,assistive listening devices, or translators should be made one week prior to the meeting. Please callCity Clerk's Office at 621-7650. Please keep the doorways, aisles and wheelchair seating areas openand accessible. If you need assistance with seating because of a disability, please see Security.

This page intentionally left blank.

June 18,2012

To: Fresno City Council

From: Michael S. Green

RECEIVED2n l ? II'" J' 9 p. u 2' ~4.JI,.,..;,_ n.i.

CITY CLEfiit rRES,~O CJ:.

Re: Text amendment application TA-Il-OOl and environmental finding for environmental assessmentEA-1I-00 I, prohibiting the outdoor cultivation ofmedical cannabis

Honorable council members:

The Fresno Police Department has proposed a permanent ban on the outdoor cultivation ofmedicalcannabis anywhere in the city ofFresno. The proposed action follows the enactment of an interimurgency ordinance by this Council, and subsequent extension, also at the urging ofFresno police. Thisletter is to express my opposition to the outdoor cultivation ban as being unfair to qualified patients whocannot afford the expense and difficulty of growing cannabis indoors. Banning the use ofnatural soiland sunlight to grow plants outdoors is more than a novel legal concept In an agricultural communitylike Fresno, it's a land-use precedent that impinges on property rights in an effort to fight crime.

The proposed ordinance impacts patients and primary caregivers who have been authorized to cultivatetheir medical cannabis - both collectively and as individuals - since Senate Bill 420 took effect in 2004.Well before that, California voters said patients and caregivers should not be punished for growing andusing medical cannabis in reasonable amounts. After more than 15 years, Proposition 215 is a brokenpromise in Fresno, as evidenced first through the city's ban on all types of collectives and dispensaries,and now through the city's proposed ban on outdoor cultivation. Under state law, six mature plants is theminimum threshold for state-authorized cultivation by qualified patients.

The proposed CEQA findings in EA-l 1-001 are also inadequate. Driving all cannabis cultivationindoors in the state's fifth-largest city will impact the environment through a significant increase inelectrical consumption and related air emissions; increased risk ofutility theft and structure fires;potential discharge ofplant nutrients and other chemicals to wastewater systems; potential hazards tofirst responders including electrical shock and hazardous chemicals; increased blight in neighborhoodswith large numbers ofvacant or rental housing units that can conceal illicit grow sites in close proximityto schools and other sensitive uses; and other equally significant impacts.

TA-Il-OOl is not a comprehensive medical cannabis cultivation law; it will exacerbate problems withillicit indoor grow sites and directly contribute to their growth in numbers. The proposed ordinancerests on the shaky legal foundation of two cases under review by the California Supreme Court, both ofwhich address only whether cities may ban dispensaries and other medical cannabis businesses. Havingbanned all collectives and storefront dispensaries, Fresno now proposes to ban all outdoor personalcultivation on private property, with the likelihood that indoor growing restrictions are soon to follow.

Under California law, challenges to the proposed zoning ordinance may be limited to only those issuesthat are raised at or before the public hearing. The following issues were raised at the Fresno PlanningCommission meeting ofMay 16, 2012 in response to specific elements of the staffreport, draftordinance and draft environmental findings, collectively labeled as agenda item VIII-A:

PAGEl

"Currently, the city has no explieit rules or regulations governing the outdoor eultivation ofmedical marijuana."

The city ofFresno has banned outdoor and indoor cultivation and distribution by medical cannabisdispensaries and cooperatives since 2004, most recently with Ordinance 2007-42. Presumably, thisordinance could be applied to people who operate large-scale outdoor marijuana gardens, althoughpublished California case law holds that dispensary bans like Fresno's are unconstitutional.

Unlike the city ofFresno, the state Legislature has provided explicit rules governing the cultivation ofmedical marijuana, and it chose to apply those rules equally to indoor and outdoor cultivation. Amongother provisions, the Medical Marijuana Program Act (SB 420) establishes a minimum threshold of sixmature cannabis plants as a reasonable and objective standard by which patients can demonstrate theirfull compliance with state law to police officers and others. (Health and Safety Code Sec. 11362.77) TheLegislature also provided limited immunity against criminal sanctions - and civil nuisance actions - toqualified patients and primary caregivers who grow and possess a reasonable number of plants on anindividual basis (H&S Sec.11362.765) or as part of a collective (H&S Sec. 11362.775).

"There have been violent incidents associated with the cultivation of marijuana, including reportsof four shootings within the city ofFresno, one resulting in death."

The report does not specify a time range or indicate what percentage of those incidents occurred atoutdoor gardens. The 2010 fatality occurred near an outdoor garden across from Roeding Park. Thathomicide was one of the 45 reported in 2010 statistics compiled by the Fresno Police Department. In2011,35 homicides were reported, none apparently related to marijuana cultivation. Thousands ofrobberies and aggravated assaults are reported to Fresno police each year (Exhibit A). While any act ofviolence is unfortunate, the Police Department's own data does not support findings that outdoorcannabis cultivation poses a greater risk to public safety than indoor cultivation.

" ... Marijuana growers are constantly vigilant with many possessing handguns and/or rifles toprotect their fields."

This overbroad and prejudicial statement unfairly labels all medical cannabis patients as gun-totingcriminals-in-waiting tending their overgrown "fields" ofillicit marijuana The police are using a handfulof large gardens as poster children to justify a citywide growing ban, even though those same gardenswere investigated and their owners found to be in compliance with state law.

The right to possess guns for self-defense is protected by the U.S. Constitution. The Fresno City Councilrecently passed legislation allowing city residents to obtain concealed weapons permits more easily. Theright ofcitizens to possess guns to protect themselves on their own property is well-established underfederal and California law, but ifguns are perceived to be the problem, an ordinance banning theminstead of outdoor marijuana gardens would be more effective. The better approach would be to secureoutdoor-grown plants with reasonable requirements that include fencing and locked access, visualscreening, height limits, setbacks, and allowed cultivation areas that vary by parcel size and zoning.

PAGE 2

"It has been determined tbat there is no possibility of significant adverse (environmental) effects .as a result oftbis proposal."

This statement is not supported by any objective data As mentioned above, forcing all medical cannabisto be grown indoors will result in increased electrical consumption and greater potential risks to publichealth posed by indoor gardens, whether they are operated legally or illegally.

A 2011 study of energy consumption related to cannabis cultivation was compiled by Evan Mills, anenergy analyst and staff scientist at the Lawrence Berkeley National Laboratory. "In California, the top­producing state (ofmarijuana), indoor cultivation is responsible for about 3% ofall electricity use or 8%ofhousehold use .... This corresponds to the electricity use of I million average California homes,greenhouse-gas emissions equal to those from 1 million average cars, and energy expenditures of$3billion per year." (The full report is attached as Exhibit B.)

The city ofArcata in Humboldt County prohibits the outdoor cultivation of cannabis by patients andcollectives. Not surprisingly, local media in Arcata and Eureka carry frequent stories about house fires,utility theft and excess energy usage at indoor grow sites. Arcata is now considering a November ballotmeasure that would impose an energy tax on households that use more than 300 percent ofbaselineusage. (An Arcata Eye article is attached as Exhibit C.)

On April 9, 2012, the U.S. Attorney's Office announced three residents ofthe Fresno-Clovis areapleaded guilty to mortgage fraud and/or marijuana cultivation charges related to indoor grow sites."According to court documents, the defendants defrauded lenders in order to buy houses in Fresno andMendocino Counties. The houses were used to grow marijuana Three ofthe houses caught on fire dueto the unlawful diversion ofelectricity." As ofMay 16,2012, the full press release is athttp://www.justice. gov/usao/cae/news/docs/2012/04-09-12LiengGuiltyPlea.html.

Excess electrical consumption related to indoor marijuana cultivation is a matter of statewide concern.Senate Bill 1207 (Fuller, R-Bakersfie1d) would require an electrical or gas corporation to require aCARE program participant whose electricity or gas usage exceeds 600% ofbaseline usage to participatein an energy savings assistance program that includes a residential energy audit and would makeparticipation in an energy savings assistance program mandatory if a CARE program participant'selectricity or gas usage exceeds 600% ofbaseline usage. The bill would authorize an electrical or gascorporation to remove a CARE program participant from the program if, after the completion of aresidential energy audit, the program participant's monthly electricity or gas usage exceeds 600% ofbaseline usage, as specified. CARE program participants receive discounted electrical rates based uponincome guidelines. As ofMay 14, 2012, SB 1207 was on suspense status in Appropriations.

As the fifth-largest city in California, Fresno already bears its proportionate share of cannabis-relatedenergy consumption, which can only increase when outdoor cultivation is banned entirely as the cityproposes. Fresno County and other counties in the San Joaquin Valley are routinely classified as"extreme" non-attainment areas for air-quality standards set by the U.S. Environmental ProtectionAgency. High energy costs, equipment expenses and potential safety risks related to indoor cultivationalso present significant obstacles to providing patients with safe and affordable access to medicalmarijuana. Outdoor cultivation remains the safest and most affordable means of cultivation available toqualified patients and primary caregivers, as well as the one with the smallest carbon footprint.

The 2009 update ofthe California Police Chiefs Association's "White Paper on Marijuana Dispensaries"contains data about the proliferation ofgrow houses in residential areas and some ofthe potential safetyhazards created by those houses, including several documented examples ofhouse fires, blown power­pole transformers and home-invasion robberies. On page 12 it states, "From an environmentalstandpoint, the carbon footprint from greenhouse gas emissions created by large indoor marijuana growoperations should be a major concern for every community in terms ofcomplying with Air Board AB­32 regulations, as well as other greenhouse gas reduction policies." (Excerpts from the report pertainingto indoor grow sites are attached as Exhibit D.)

"The proposed text amendment will maintain the status quo for purposes of CEQA."

The claim here is that the city's moratorium on outdoor cultivation somehow represents the city's land­use status quo. To the contrary, the city's interim urgency ordinances disrupted the status quo by barring

the previously lawful cultivation of medical cannabis by patients outdoors, as well as the continued useof their personal and real property for successive outdoor harvests from year to year. In the city's view,"no new cultivation can occur" outdoors while the moratorium is in place, therefore the "old" state­authorized cultivation by patients either a) doesn't exist, or b) exists but is no longer the status quo.

Prior to Dec. 15,2011, patient cultivation-ofmedical cannabis was legal in Fresno, both indoors andoutdoors, and city zoning laws were silent on the subject, by the city's own admission. Interim urgencyordinance 2011-41 was adopted purportedly pursuant to Government Code Sec. 65858, allowing the 45­day ban to take effect without the normal public hearings before the Fresno Planning Commission andAirport Land Use Commission. Ordinance 2012-3 extended the first urgency ordinance for 10 months,15 days, also purportedly pursuant to Gov. Code Sec. 65858.

The design and intent of interim urgency ordinances is to preserve the land-use status quo pending thedevelopment ofnew regulations. Here, the state zoning law was misapplied to deprive qualified patientsof their vested property rights as the run-up to a permanent outdoor growing ban. Police and cityofficials have stated consistently since Dec. 15 that a permanent outdoor growing ban was the onlyoption under consideration. There was no need to study or develop comprehensive regulations, rather aperceived need to pass the outdoor growing ban quickly to interrupt the property rights ofpatients.

Ordinance 2012-3 as invalid on its face, being based upon the misuse of Gov. Code Sec. 65858 to passan urgency zoning ordinance that does not pertain to building permits, housing subdivisions or otherdevelopment approvals as required by that statute. State-authorized patient cultivation in reasonableamounts, both indoors and outdoors, is the legal status quo in Fresno, not the invalid cultivation ban.

PAGE 3

Re: anti-marijuana operations by the U.S.Attorneys' Offices and federal drug agents.,Although all marijuana cultivation remains illegal under federal law, the only issue before the PlanningCommission involves a text amendment to a city zoning ordinance that is purported to be compliant andconsistent with California's medical marijuana laws. The U.S. government may not use officers of theFresno Police Department or other agents ofthe city to enforce federal drug laws while ignoring statelaws, as state appellate courts have repeatedly held. What the U.S. government does or doesn't doregarding medical marijuana cultivation is not relevant to TA-II-001.

Should the commission wish to address the concerns offederal law enforcement, it should do so withthe knowledge that federal law doesn't distinguish between outdoor or indoor cultivation, nor ismarijuana necessarily the greatest threat to public safety in any given locale. Methamphetamineproduction and distribution by gangs and drug-trafficking organizations (DTOs) was considered thebiggest threat in the 2011 Central Valley High Intensity Drug Trafficking Area report prepared by theNational Drug Intelligence Center (NDIC). As for marijuana, the report includes these conclusions:"NDIC assesses with medium confidence that DTOs and criminal groups of all ethnicities, as well aslocal independents, will increase their use ofdwellings in residential areas and warehouses, barns, andlarge buildings in rural areas to house sophisticated cultivation operations. Mexican DTOs will remainthe primary cultivators of cannabis at outdoor locations." The city's outdoor cultivation ban won't stopindoor cultivation by criminals, and it arguably could endanger public safety by making illegalresidential grow operations in Fresno far more numerous.

PAGE 4

Re: "Examples of the public threat to health, safety or welfare..."

Most of these examples are not supported by any objective, reasonable or statistical data. We are told of"numerous reports" of violence, reminded about five marijuana-related shootings (but not the thousands

ofassaults and robberies detailed in Exhibit A), and "anecdotal evidence." There is no objective orreasonable evidence that, "The chance ofan innocent victim, who lives near a marijuana field, beinginjured by stray gunfire is high," nor that it is any higher than the chance ofbeing injured by straygunfire in areas ofthe city where medical marijuana is not cultivated.

This is not meant to diminish the rightful concerns of law enforcement, but to give them addeddimension and some sense ofcontext. Large-scale cultivation and small-scalecultivation do not pose thesame potential risk to public safety,nor is the presence ofweapons limited to outdoor grow sites or evento grow sites in general. Wherever one goes in Fresno, weapons are likely close by.TA-ll-OOI doesn'tfix that problem, as zoning ordinances in general are inappropriatevehicles to regulate gun possession.

Re: Complaints about nuisance odors

Many varieties ofcannabis plants can get smelly before harvest. Yet large-scale and small-scalecultivation do not pose the same potential for creating nuisance odors, nor are nuisance odors confinedto outdoor cultivation sites. Indoor grow rooms can and do create similar odors outside when growerschoose not to install (or cannot afford to install) a system ofair ducts, fans and expensive filters. Beyondthe capital costs, indoor odor-control systems also generate significant operating expenses for electricityand replacement filters.

A small-scale outdoor garden With adequate fencing, reasonable setbacks and visual screening is moresustainableand energy-efficientthan an indoor garden of the same size. Reasonable limits on the size ofpermitted cultivation areas will reduce neighbor complaints and mitigate the city's rightful concernsabout nuisance odors generated by larger,unregulated outdoor gardens.

"Many marijuana grows are nothing more than profit making schemes."

Banning all outdoor growing by non-criminals, aka qualified patients and primary caregivers, will donothing to deter criminals from making illegal profits wherever and whenever they can. Takento itslogical conclusion, this statement says the only way to stop illicit sales ofmarijuana is to prohibit lawfulcultivation altogether, even when done by individual patients whose only "scheme" is to use medicalcannabis for health purposes. Do that, and the city will have effectively repealed Prop. 215 and SB 420.

The statement also fails to observe that the Medical Marijuana Program Act authorizes patients andcaregivers to collectively and cooperatively cultivate their supplies ofmedical cannabis. (Health andSafety Code Sec. 11362.775)Because law enforcement priorities remain in flux statewide, manynonprofit collectives and dispensaries have been labeled as ''profit making schemes" that can result inprosecution in many localities, including Fresno. Yetthe attorney general's office and state appellatecourts have concluded that nonprofit collectives may operate lawfully under the provisions ofSB 420.

PAGES

Re: Cities with cultivation moratoria or bans

Some ofthe cities listed are facing legal challenges to their medical cannabis ordinances. Specifics fromsome ofthe city ordinances cited are instructive:

Anderson: Prohibits all outdoor cultivation and also indoor cultivation in a residence or attachedbuilding. Ordinance 765 includes findings that "The indoor cultivation ofsubstantial amounts ofmarijuana also frequently requires excessive use ofelectricity,which often creates an unreasonable riskoftire from the electrical grow lighting systems used in indoor cultivation." The regulatory approach inAnderson's more restrictive ordinance was favored by Fresno City CouncilmemberWesterlund, who hasexpressed concerns that an outdoor growing ban could increase the number of indoor grows and thepotential social harms associated with them, including cultivation in close proximity to children.

Live Oak: Per Ordinance 538, "Marijuana cultivation by any person, including primary caregivers andqualified patients, collectives, cooperatives or dispensaries is prohibited in all zone districts within theCity of Live Oak." Both indoors and outdoors.

Redding: Previously permitted medical cannabis cultivation and operation of storefront dispensaries,but repealed its ordinance following the Pack v. Long Beach appellate court ruling, which is now underreview by the state Supreme Court. A Shasta County judge cited another appellate case that held LakeForest's dispensary ban invalid before refusing the city's request to shut down a collective-dispensarythat remained open in violation of the city's new ban. The city is now amending its complaint in light ofthe Lake Forest ruling, which is also under review by the California Supreme Court:http://www.redding.com/news/2012/maY/07/judge-grants-reddings-reguest-amend-complaint-mari/

Moraga: The town's ordinance makes clear that only civil enforcement actions are authorized:''Notwithstanding any provision of this code to the contrary, no violation ofthis chapter sha1l be deemeda misdemeanor, infraction or crime of any kind. Any violation of this chapter shall be subject to all civilenforcement remedies set forth in Title 1, at the discretion ofthe town."

Re: Section 12-2104(a)

The city's Public Nuisance Abatement Ordinance is found in Article 6 ofChapter 10 of the FresnoMunicipal Code. Among other provisions, the nuisance abatement ordinance provides designated city"directors" with right ofentry to property for purposes ofinspection and/or abatement upon issuance ofan administrative warrant. Administrative and enforcement procedures are not specified in TA-1I-00l,which does not amend the city's current Public Nuisance Abatement Ordinance.

The constitutional rights to avoid self-incrimination and to be protected against unreasonable search andseizure are critical concerns for all people, but especially for medical cannabis patients who may beaccused of"profit-making," weapons violations, child endangerment or other alleged crimes during theenforcement of a purported civil violation and/or summary abatement.

Because of these concerns, the administrative and enforcement procedures utilized by the city attorneyshould either be expressly tied to the Public Nuisance Abatement Ordinance procedures (FMC 10-601 etseq.), or the "civil enforcement process" in Section 12-2104(a) ofTA-1I-001 should be described indetail and codified in a manner similar to the Public Nuisance Abatement Ordinance.

To ensure that qualified patients don't face criminal sanctions in violation of state law, the draftordinance should be amended to include language similar to Moraga's ordinance: ''Notwithstanding anyprovision of this code to the contrary, no violation of this chapter shall be deemed a misdemeanor,infraction or crime of any kind. Any violation of this chapter shall be subject to all civil enforcementremedies set forth in (insert codified reference here), at the discretion of the city attorney."

Re: Section 12-2104(c)

Any person or property owner cited for a violation is subject to abatement, actual, administrative andenforcement costs, which can create a substantial economic hardship for qualified patients and primarycaregivers. Enforcement costs can include investigative expenses and attorney's fees. Landlords andcommercial property owners who do business with or lease property to medical cannabis patients,knowingly or unknowingly, are also subject to fine, civil injunction, summary abatement and recoveryof costs, pursuant to Section 12-2103. It is not known if local officials will apply pressure to landlordsand commercial property owners in similar fashion to enforcement tactics used by federal officialsagainst medical cannabis dispensaries, but Section 12-2104(c) gives the city full authority to do so.

Health and Safety Code Sec. 11362.83 allows cities to adopt laws consistent with SB 420.

Conversely, state law does not allow cities to adopt laws that are inconsistent with sa 420. Fresno hasalready banned all collectives and dispensaries, and now proposes to eliminate the safest and mostaffordable method known by which individual patients can grow their own cannabis. Telling patients inessence to grow a few plants in a closet or in a bathtub - or go without their medicine - is inconsistentwith common sense, much less the provisions of Prop. 215 and the Medical Marijuana Program Act.

More specifically, Health and Safety Code Sees. 11362.83(a) and (b) only authorize cities to regulatemedical cannabis collectives and dispensaries in a manner consistent with SB 420. It's not a blank checkthat authorizes cities to ban or severely restrict cultivation by individual qualified patients.

11362.83. Nothing in this article shall prevent a city or other local governing body from adoptingand enforcing any of the following:

(a) Adopting local ordinances that regulate the location, operation, or establishment ofa medicalmarijuana cooperative or collective.

(b) The civil and criminal enforcement oflocal ordinances described in subdivision (a).(c) Enacting other laws consistent with this article. (emphasis added)

The overriding goal and purpose of both Prop. 215 and SB 420 is to provide safe and affordable accessto medical cannabis patients through a combination ofpersonal and collective cultivation activities. Theexpress intent of the Medical Marijuana Program Act (SB 420) was to "(I) Clarify the scope of theapplication ofthe [CVA] and facilitate the prompt identification ofqualified patients and their primarycaregivers in order to avoid unnecessary arrest and prosecution ofthese individuals and provide neededguidance to law enforcement officers. (2) Promote uniform and consistent application ofthe act amongthe counties within the state. (3) Enhance the access ofpatients and caregivers to medical marijuanathrough collective, cooperative cultivation projects." (Stats. 2003, ch. 875, section 1, subd. (b)(1)-(3).)

To date, the city has not passed laws designed to enhance safe access, nor to promote uniform andconsistent application ofSB 420 between nearby cities and Fresno County. Rather, it has diminishedsafe access by banning all types of collectives and imposing unreasonable limits on personal cultivation.

Ofspecial concern is parity with Fresno County's cultivation law, which was a concern expressed byFresno City Council members. TA-II-00l does not impose restrictions on indoor cultivation in similarfashion to Fresno County's ordinance requiring business licenses for indoor cultivation, which is furtherlimited to manufacturing and industrial zones. Although enforcement ofthe county's ordinance isproblematic in light of the Pack ruling out ofLong Beach, the main point here is that the county'soutdoor growing ban has arguably contributed to an increase ofnuisance gardens in the city, just as thecounty's dispensary ban has reportedly resulted in collectives establishing new locations in the city.

PAGE 6

Re: Riverside v. Inland Empire, Pack v. Long Beach, et al

For the moment, these cases provide no authority or legal basis to justify the city's proposed ordinance,as they are under review by the California Supreme Court. Even ifupheld, these cases address bans oncommercial collectives and dispensaries, not bans on state-authorized, small-scale patient cultivation.

The summation of the Pack decision is inaccurate; the court ruled that Long Beach's permitting systemfor dispensaries violated federal law, not that all types ofcity or state marijuana regulations do. Thatmeans Fresno County's system ofmedical marijuana business licenses is on hold, while TA-ll-OOI ispresumably lawful because it does not require licenses or permits to grow cannabis.

In the Riverside case, a total ban on dispensaries is "simply a means ofregulation or restriction." In amore recent case, an ordinance declaring medical cannabis cultivation by collectives and dispensaries tobe a nuisance per se in the City of Lake Forest wasvoided on appeal. "Here, the City's per se ban onmedical marijuana dispensaries prohibits what the Legislature authorized in section 11362.775, namelya place for the lawful distribution ofmedical marijuana and., more generally, using property to grow,store, and distribute medical marijuana." (City ofLake Forest v. Evergreen Holistic Collective (2012)203 Cal.App. 4th 1413, 1445-46) "The contradiction is direct, patent, obvious, and palpable."

In like fashion, Health and Safety Code Sec. 11362.765 provides that individual patients and caregiversshall not be subject to criminal sanctions or nuisance actions for using property to grow or store medicalcannabis. As the court ruled in Lake Forest, "...Sections 11362.765 and 11362.775 expressly negatesection 11570 as a nuisance remedy against the medical marijuana activities identified in thosesections." By imposing sanctions upon qualified patients on the sole basis oftheir cultivation ofmedicalcannabis, Fresno's proposed outdoor growing ban -like the urgency ordinances that preceded it -­directly conflicts with state law and is subject to legal challenge.

CITY EXHIBIT A - ENVIRONMENTAL ASSESSMENT EA-ll-OOI

"Enactment and amendment ofzoning ordinances" is a "project" under the express terms oftheCalifornia Environmental Quality Act (CEQA). (Calif. Code ofRegulations Sec. 15378(a)(I»Accordingly, the city's proposed outdoor cultivation ban, TA-II-001, is a project under CEQA.

CEQA exempts certain projects from environmental review provided they meet the appropriate criteria.The city does not claim thatTA-II-00l is entitled to a categorical exemption from CEQA, but insteadthat it qualifies for the so-called "common sense" exemption: "Where it can be seen with certainty thatthere is no possibility that the activity in question may have a significant effect on the environment, theactivity is not subject to CEQA." (CCR Sec. 15061(bX3»

EA-II-00l attempts to establish that there is no possibility ofenvironmental impact by claiming thatoutdoor cultivation has ceased in the city of Fresno, making indoor-only cultivation the status quo. Thecity has offered no evidence to establish with certainty that outdoor cultivation has ceased., or that theinterim urgency ordinances didn't create an environmental impact by banning outdoor cultivation.Urgency ordinances are categorically exempt from CEQA review; a permanent amendment is not.

Common sense suggests that an ordinance forcing all medical cannabis to be grown indoors willsignificantly increase electrical consumption and create other potential environmental impacts when theordinance is applied to thousands ofpatients on a citywide basis. If the proposed outdoor growing ban isnot exempt in another category, the "common-sense" exemption may not be applied as an easy fix.

Exhibits B, C and D ofthis letter should serve to dispel any claim of certainty that there is no possibilitythat the proposed ordinance can create a significant environmental impact and/or increased threats topublic health and safety related to increased indoor cultivation. To comply with CEQA, the city mustconduct an initial study ofTA-ll-001 pursuant to CCR Sec. 15002(k)(2).

Respectfully sUb~tt~

/)V)~~Michael S. GreenFresno, Calif.

EXHIBIT "A"

FRESNO POLICE DEPARTMENTMONTHLYC~EDATA

DECEMBER 2011

By CrimeView Bureau

Jerry Dyer, Chiefof PoliceSteven Casto, CrimeView Bureau Sergeant

23,:1. 27Q1!!:I~:I~?S3a.=1"41 ...~~J~

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WILLFUL HOMICIDE 42 36 53 48 52 52 40 42 45 35

FORCiBlERAPE 158 164 181 149 133 99 80 88 70 51ROBBERY 1479 1 215 1232 1.275 1282 1104 984 1085 1021 1020AGGRAVATED ASSAULT 2,101 2,089 2,030 2425 2058 1788 1.878 1,720 1,898 1,809

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PERCENT CHANGE 2% 3%1 3% 3% -3% 3%1 0% 0% -5% -1%

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- PersonnelStsfl'lng lever. Source: FresnoPolleeDepartment Pen;onnel Bur9au

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EXHIBIT "B"

ENERGY UP IN SMOKE

THE CARBON FOOTPRINT OF INDOOR CANNABIS PRODUCTION

Evan Mills, Ph.D.'

AprilS, 2011

* The research described in this report was conducted and published independently by theauthor, a long-time energy analyst and Staff Scientist at the Lawrence Berkeley NationalLaboratory, University ofCalifornia. Scott Zeramby provided valuable insights intotechnology characteristics, eqnipment configurations, and market factors that influenceenergy utilization.

The report can be downloaded from: http://evan-milIs.com/energy-associates/lndoor.html

On occasion, previously unrecognized spheres ofenergy use come to light Importantexamples include the pervasive air leakage from ductwork in homes, the bourgeoningenergy intensity ofcomputer datacenters, and the electricity "leaking" from millions ofsmall power supplies and other equipment. Intensive periods of investigation, technologyR&D, and policy development gradually ensue in the wake of these discoveries.

The emergent industry ofindoor Cannabis production appears to have joined the list. Thisreport presents a model of the modem-day production process-based on public sourcesand equipment vendor data-and provides national scoping estimates of the energy use,costs, and greenhouse-gas emissions associated with this activity in the United States.'

Large-scale industrialized and highly energy-intensive indoor cultivation ofCannabis is arelatively new phenomenon, driven by criminalization, pursuit ofsecurity, and the desirefor greater process control and yields.2,3 The practice occurs in every state," and the415,000 indoor plants eradicated in 20095 represent only the tip of the iceberg.

Aside from sporadic news repOrts,6.7 policymakers and consumers possess littleinformation on the energy implications of this practice," Substantially higher electricitydemand growth is observed in areas reputed to have extensive indoor Cannabiscultivation. For example, following the legalization ofcultivation for medical purposes inCalifornia in 1996, Humboldt County experienced a 50% rise in per-capita residentialelectricity use compared to other areas.? Cultivation is today legal in 17 states, albeit notfederally sanctioned. In California, 400,000 individuals are authorized to grow Cannabisfor personal medical use, or sale to 2,100 dispensaries." Official estimates oftotal U.S.production varied from 10,000 to 24,000 metric tons per year in 2001: making it thenation's largest crop by value." As of2006, one third ofnational indoor production wasestimated to occur in California.12Based on a rising number ofconsumers (6.6% of U.S.population above the age of 12)/3 national production in 2011 is estimated for thepurposes of this study at 17,000 metric tons, one-third occurring indoors. 14

Driving the large energy requirements of indoor production facilities are lighting levelsmatching those found in hospital operating rooms (500-times greater thanrecommendedfor reading) and 30 hourly air changes (6-times the rate in high-tech laboratories, and 60­times the rate in a modem home). Resulting electricity intensities are 200 watts per squarefoot, which is on a par with modem datacenters. Indoor carbon dioxide (C02) levels areoften raised to four-times natura1levels in order to boost plant growth.

Specific energy uses include high-intensity lighting, dehumidification to remove watervapor, space heating during non-illuminated periods and drying, irrigation water pre­heating, generation of CO2by burning fossil fuel, and ventilation and air-conditioning toremove waste heat. Substantial energy inefficiencies arise from air cleaning, noise andodor suppression, and inefficient electric generators used to avoid conspicuous utility bills.

Based on these operational factors, the energy requirements to operate a standardproduction module--a 4x4x8 foot chamber-are approximately 13,000 kWh/year ofelectricity and 1.5 x 106 BTU/year of fossil fuel. A single grow house can contain 10 ormore such modules. Power use scales to about 20 TWhIyear nationally (including off-gridproduction and power theft), equivalent to that of 2 million average U.S. homes. Thiscorresponds to 1% ofnational electricity consumption or 2% of that in households-or theoutput of7large electric power plants. IS This energy, plus transportation fuel, is valued at$5 billion annually, with associated emissions of 17 million metric tons ofCOr­equivalent to that oB million average American cars. (See Figure I and Tables 1-5.)

1

Fuel is used for several purposes, in addition to electricity. Carbon dioxide, generatedindustrially" or by burning propane or natural gas, contributes about 2% to the carbonfootprint. Vehicle use for production and distribution contributes about 15% oftotalemissions, and represents a yearly expenditure of$1 billion. Off-grid diesel- and gasoline­fueled electric generators have emissions burdens that are three- and four-times those ofaverage grid electricity in California. It requires 70 gallons ofdiesel fuel to produce oneindoor Cannabis plant, or 140 gallons with smaller,less-efficient gasoline generators.

In California, the top-producing state, indoor cultivation is responsible for about 3% ofallelectricity use or 8% ofhousehold use, somewhat higher thanestimates previously madefor British Colnmbia," This corresponds to the electricity use of I million averageCalifornia homes, greenhouse-gas emissions equal to those from 1 million average cars,and energy expenditures of $3 billion per year. Due to higher electricity prices and cleanerfuels used to make electricity, California incurs 70% ofnatioual energy costs butcontributes only 20% ofnational CO, emissions from indoor Cannabis cultivation.

From the perspective of individual consumers, a single Cannabis cigarette represents 2pounds ofCO, emissions, an amount equal to running a 1OO-watt light bulb for 17 hoursassuming average u.s. electricity emissions (or 30 hours on California's cleaner grid).The emissions associated with one kilogram ofprocessed Cannabis are equivalent to thoseofdriving across country 5 times in a 44-mpg car. One single production module doublesthe electricity use of an average U.S. home and triples that of an average California home.The added electricity use is equivalent to running about 30 refrigerators. Producing onekilogram ofprocessed Cannabis results in 3,000 kilograms ofCO, emissions.

The energy embodied in the production of inputs such as fertilizer, water, equipment, andbuilding materials is not estimated here and should be considered in future assessments.

Minimal information and consideration of energy use, coupled with adaptations forsecurity and privacy, lead to particularly inefficient configurations and correspondinglyelevated energy use and greenhouse-gas emissions. If improved practices applicable tocommercial agricultural greenhouses are any indication, such large amounts ofenergy arenot required for indoor Cannabis production. IS Cost-effective efficiency improvements of75% are conceivable, which would yield energy savings ofabout $25,OOO/year for ageneric lO-module operation. Shifting cultivation outdoors virtually eliminates energy use(aside from transport), although, when mismanaged, the practice imposes otherenvironmental impacts." Elevated moisture levels associated with indoor cultivation cancause extensive damage to buildings." Electrical fires are an issue as well." For legallysanctioned operations, the application ofenergy performance standards, efficiencyincentives and education, coupled with the enforcement ofappropriate construction codescould lay a foundation for public-private partnerships to reduce undesirable impacts."Were compliant operations to receive some form of independent certification and productlabeling, environmental impacts could be made visible to otherwise unaware consumers.

***Current indoor Cannabis production and distribution practices result in prodigious energyuse, costs, and greenhouse-gas pollution. The hidden growth of electricity demand in thissector confounds energy forecasts and obscures savings from energy efficiency programsand policies. More in-depth analysis and greater transparency in the energy impacts ofthispractice could improve decision-making by policymakers and consumers alike.

2

l"iJ!ure 1. Carbon Footprint of Indoor Cannabis Production

Ballast

VentilatedLight fixture

A

&c.i"'1.I:!t~~-,,,-

., .....""" . :';;~

-.~"i'=:'<'(:1- ,. - .'(JIIP-••-.

~....<:»:

Motorized lamprails

In-line duct fan,coupled to lights

Lighting32%

....~.\

Il.- \" \

"'il'.f. /

. ./

h .. ,..._I~Ventilation &

,.~

···' "1'--' ".':~;:.: !

:~

(~..1.~. I

',--

Dehumidifier

High-intensity lamps

~

Ill l

3000kgCO,/kg

IndoorCannabis

Oscillating fan

.~j ! I ~I .!

......"~

3

1. Water purifier

Air conditioning18%

C02generator

Heater

pump.

!F;: "-:~... ,'-' _. .- ...~t-li!;l"c.<'~:;-;;:: . "'-W

f]:, .;:'I];~f •.... '. -.. " .tllii'M r--.~~ ~---'

••

sUbm~1Water heater

Air­conditioning

Vehicles

Electricgenerator

Table 1. Configuration, Environmental Conditions, and Setpoints--------- --

I

I.

7id'~,

S5%;","'.'-- \

15%:

2089 ';vehkie_mifeslc.icle·"-~-7_~(f:_~mZCv~~---- .- _...- 3-S2Cflvm/i:vCfe

,-- .. ,- ...16 :1'$Quare feet (exd.

_' Iwalking area) ,._ ,"iIi I, -:_--.__ ~ -~ - ---- ---

, .. -'_24o'I~':'-a~:felit"

)8idays: -­.~.j;io/~_~~__

• - _•• ,_. _., _._.' I ._ .. " .... ,

_. _, ~(e~i!,S~_: f!~J'~!.~!!'1g.P1J_a.s..~f'IIetal_ h8l11de.l Hlgh~press.ure soc:llum... -~1~i -- ..... ~~~'

- ----1:1' - i1S 12

----iSi ''60." ...-. -- ------~~_~l:!T --- "-.-....'._,-. :'~~"e

~~~9~.jiiI-r~-~_~~_

Growing module

Numiier-ofmoiiuies '(n a-room-_. Area-ofroom--"-- .- ,.... ------- ---~cy(:je-_duratlon_ _ _.. p~~~~_~_oi1 __~_n~M~~_~~.~~ tt!~o~gn~-~Hb~_y_~~~_

til,iminatlon---l:amptYl'"_.~C!!t:S/J.~_'!!~ . ._,, __ . _. _aallast '_osses (mix of ma_g_netlc_ &.digital)__ ~i!!p~_ ~~r__giji~_~ng r.rlO~UI~_' __ · -. -- --- - --HOlJrs/day

_-15.a_Y=~Ji=i~i.~ ..Dayllghtlng

Vtll1tii.tion------Oucte(rJiimInaires--wltil--"seaieil"-Hght"lng' .. lsoTtFMlftfooW-of liiilit"·"

_~~.p_~.r:t!!I_e!!L , _. __ ._.___ _ I.(fl:~~~(:wO ... _..Rp.c?Il}_Y!!l_!~_tt~~_(~u~plY,.a.~~ .~.~h~l.!~!!~r:a_~L .. _. __._.. .__~J~,C;_I:!_" .__ . _

__ _FJ.I~_@!'.QIl , .__ '".. , .. .. _ __~I!~~~JJllte.~,.9):' ~~_~,~.U~~i _H_E!~ ~_~l!P'p'ly__OscUatln_gJ';:m~: J?_Elr_module, whlle '_Ights or! ~ 11- - - - -- - - - - -- \

water I

-~~~PP'jt~~~~ ____ _.. _.__ . :__~: -_~:~{~(g~~~r~Ij\::~~:L_- ':I~tl!lg_ _-~IE!-~.!=-~~~j~lFl~I~-~a!!!.r:s

~~~~~~f~i~:~y~__ <:': ~..!t'~Jl_d~}~~~!PQln.t -_IlJ9h_t __~_~_:-Z~ i E.. _

___~_C__~_l'f!f!.~I1~_,_ __ __;g_&I~~~~_

DehumidificatIon 1x24 ihours

~~~-~t:~~~~~:rg;}~~~;~raHori-(moStiY .. _ .. .~.-~. .. _1SQ'~-(~_~_~·:- ~_____ ___________~I_~etrlc_!!~_~ ..~,~_t,l,n,g .__ . " ~h~n Jtg,~_~.~'!.~"_~~_I.!!~.!~__I~~Q~! ;;~t~l;l!!lt._.

___~I9~tl~_d..9_l?rJlu_~ll!!~ __~Jm)(J-'J.~ ,. .__ _ __.__...._. __..~~---=.?_~_·i__Fraction of lightIng system heat production 30%1,~rrr2'!'.~,~..tu.!!'~~t~ ,!~l}tl~~~O!l.. ._. J ._ ...

. __~J.I_~~t~_~~_I'I ._ _Qu~lc;I_~ __c;:~~_d.J_r.Q.r]e~ .~p_~~ __---- ----- ..-

Drylngspacico-n.-i:lltionlng't -osdllaflng-fcj-nst mplntalnlng ­

__~~_,~~, ]j)·_E19f __

Elocb1dtyollpjiry .grid--

-..g-riCi=/ndepende'nt -generat'lli'n-(mix-o"fctlesel;P~P~I'le" all~, g~~!I_l'I_el

vehicle"uMi-.---worke~--during ~lict\on --:--wh-olesale-cll5tr1butlon- -- -- -

-i-et8i1dlstrtbutlon--{t--bounCe;

4

40.7 ;kg/cycle

16,.9?4; metric tonnes/Y~,9~~ ': ~etrlc tonn~~!y

33%1,72,?,283

602,597'~~90:0,

2% 'share

91,033: BTU/gallon!:~-~-;6.~Q: ::~t~U!1~I1~E __1~4,2.38 'BT!JIg~ll!l-"

85%:share8%:share

5% .share

0.609 d,gC02/kWh·0.384kgCcii/kWh-_.~:-~:~;_~-~~~r-0.877 !kgC02/kWhqjj :kgC02jkWh6.989,kgC02/kWh .

- -O.-.r75 :kgCciiiki'ihO·,666k~cci2jkwh

.6~~_ :_~_g_C~.~MBTU

- $O:39q i per kWh(T1.er 5)$.O~127,:pe:r-kYrh~ --$jJ..·~~b :p~r:~.~h_­

$0.390 !per kWh-$D.166;per kWh. ~~~~~Li>!3!_g_~-n~_n-:

$3.68 !per gallonl~·9~;pe.i·.g~lio"

$4,000: $!k9.

'4.stf: ~W.ti/year173-i kgC02,t\'ear (US

aVl:!ragel.· 'i:h!dridtY u.se0" a--ty:piCci-1 .US"home - '20o.~.' (U ' 11,646 i.~h.tyear .--

- . -ElectrTdty-use-Cifaty"leal'CalffOrnla-home ~ - . '6··96·'··· kW·h·! ----2009 rkl ' r year

Piaii'tS pe-r'productloii-mod'ule·Net'productio"'per'pro-cIJctloii'-module-[h]us"~)rOcluctloii (ioil) [I]

CailfOmla-i'roduction-(20i1) [I]Fractic;j,- produced lj,doONi (Ij" -usIndoor produCtio'ri modi.i"les*",:cailf In'door 'produ-ctlon-mocluie:s-*·

- - -(:ig~reijes pei:~g~*--

9l!m..-:. ~~erag~ __.ne:~ reiflg~:~~~r_

Gasolinegenerators~" ..'EmfsSionsFactOrs-

·_~!!~..~l~~~I9'_~ __~~J~lGridelectricIty - CA [e]

--. Gr.i~ ej~rlCltY:.~-noii:-CA,'.us: [4· i5L~s!:il:ge_n:e~_~~.__

Propanegenerator**

____ .:~g~~~::~6:~![~~~~_._._.,,_., ...."..,.Blended on/off-grldgeneratIon - CA ...

·-:~!Ei~~~~-_~nj~~-9_~~.~g~:n·~~~on ,~'-_u~.~·Propanecombustion

-paces ...._ _ ..__~I.~e:t!:J_c1~_P_~_c(!._':' grid,(gll~,!,!a..:' _~!k:E) .[(1]

E.l.el:trldty price -.g.rld.(US, exd. c:A) ,[e]·.-.EI~e;tit~~~prlCj~ __!lff-g.r:I~:~.' .-. -.

Electricity price - blended on/off • CA"'·

Electrldty price - blended on/off - US"''''__ !j~~:~-~.e}!'~JfJ' - -

GasolinePrice- USaverage [f][ji~erPrice -, ,US-av~mgelfj'W_h~J~L~.p.r1~~~f CE!nna_blsj"j-

ProductIon

_FueisPropane [b]Dlesel[b]

·Ga.so.ll.ne [~r-Eh~CtriC Genel'iltlon Mix'"

GMd

"~!~~LQen~~tO~_

Propanegenerators

24~hrs

--? :d~.Y~jcvcJe

12:hrs/day60;~aVs/g.i~.re

5 :years _ .10:M~n~~um standard as of 1/2006

10:hrs/day-' I"' .--... - .... -

_1~ i~8v.s!.~de

30%:

'i7cro.:~:5.~W25%:27kW15%:5.5kW15%_._ ~_'.g~!!9rl.~I~~y.:-.pl~nt.

25imiles roundtrip7sit7IPS/cvci'e; ASSume'200/0 live

.en site11:trlpsievcle-ijjltrr~slcYae.

2089:vehlclemiles/cycle

5 ;kg .pertrlp750: vmlC)ide,

3'520 iIJ'rn/eyde'4270: v,r1yqCfe~'­

- -2Z:mpg' .. -

'~1!f5::_~.iL~Q~ __ ..._0.416'kg C02/mlle2.598 :"k9. 'C02 ,­

tf.ioa Ikg co'i/riiile ­i~~~_'~~-IJes --... -

t8.:_M~s-

4.7 lccntlnuous production-i6 isquanaeet (exe'I;' walking area)

192!~'b[~fe'et -----..... -. -.-

- -'-96.:cui:lfC~reet'per-minute:'-19:- ---- -. -. --

r

I

.I

i

i

'" I

c:roS§~coun.~ry us m!l~l!g~

.A"nUB'I e~l~slorls, -.44~:~1?9 car... ·_

Dally service (1 vehIcle)

inweekly service (2 vehIcles)Haryes(CZ:-vehides} .- -Total vehlde miles··

!@nsD0rti!tlon' Dlsb1butlonAmour1.t-trail.sPorted w~c:llesale~.UeBge~(rO.undJ~p1 ~::. - - -­RetaU (0.250z.x. 5 mUes I'()un.dtrlp)-TOtal··- - -- - - - -.-. .

- Fuel 'eConomy, -tYpical'ca-r .[ai'~n.r1ue.l. ~m!~SI~~S, tvPlca! ~r (a]

Table 2. Assumptions & conversion factors'Service Levels - - - -- - - - - -

Inumlnencee "2s-ioo,ooi:i:iuxAlrchange rates'" 30 (i:"tianges per hour

O[lera-tiiiOsn

_ _ --- ------------

9'd.e ~_IJ~tr~m~'"

Cycles!vear'4''''prodiict"lon module area-Production module volume ....

Airtiow"'*-Modu[es'pei-'.rtlom*Y!llil!rJ9. . . . .

G!aflrl9 phese_l/~_~t!ng_-~~-tlme*

DuratIon·

F1ow~r@~-p_~a_~_

Ughtlng en-time"Duration*" -I!!l1!li -- --

Hours/day·Duratfon*

EqulementAverage alr.concUtici.n1og. ageAir ccndlttener efficiency (SEER)

Fraction o"'"ligh"ting'system' heat 'productlonremoved by Jumlnalre ventilationDiesetg~n~raJor-e-ffri:len-cy* .Propane genenltor efflclencv·

Gasclliiie generator efficiency.Fraction of teits.' prcd'n with generators'"

Water use [Indoor]"!@nsportlltlon: ProductIon ph!!!se(10 modules)

i· traae and product literature; IntervIews wIthequIpmentvendors:'~.•:g~ICjiljf~~fi'Om'O:t~~_~~f~~5:':: - ~ ,- .--.-..--.-..- -.-.--.- .. -.. -. - . -j

5

Table 3.:carbon footprint of indoor Cannabis Production(Average US conditions) .

,kWh/kg i k9C:02-~mis~ions/kg !

-----.--- --.- i - •

L1ghl:lng ... -- - 1,4791 . ... .... ..- 9_8532:~O/~

Ventilation & Dehumld. 1,197 i 797: 26.1%_. -- ---------- - --.-_ .. ' -------- .-.-.- _._- -_._"--- -."..- ..-_ ...Air conditioning 827 i 551' 18.0%Space heat 197,131.. ... 4:3°/~

C6;llrocluctl0I1 ." 54r 491~60ioWaterhiiidllng.- .. 2Bi i 9: Q.6%Drying --- ·-73: .. 4B:-i.607~

Vehides-j ..... 479: .. ·····15:7%Total i 3,855! 3.059 i 100.0%Note: "C02 production" represents.cornbustionfuel to make on-site C02. Assumes 15% ofelectricity is produced in off-grid generators. As the fuels used for C02 contain moisture,additional dehumidification is required (and ailocated here to the C02 energy row). Alr­conditioning associated with C02 production (as w.ell as for lighting, ventilation, and otherincidentals) Is counted in the air-conditioning category.

6

Table 4. EquivalenciesIndoor cannabis productionconsumes...

U.S. cannabis production & distributionenergy cost... .

3%

$5

of California's totalelectricity, and

: BIllion, and results In the" emlsslons of

8%

17

,

l<ifcallfornia's:! household I

i __~I~~~J~.

milliontonnes per

year ofgreenhouse ,

gas emissions!(C02) :

1%

equa' to theemissions of

oitotal USelectricity,

and

3

erus2% i household... '.elegnclty

mlmonaverage

cars

millionaverage

cars1equal to the

emissions of

mUllontonnes per

year of, greenhouse:!gas emissions:. (C02)

4Billion, and results In theemissions of

imillion average US homes :2

$3

U.S. electricity use for Cannabisproduction Is equivalent to that of...

California cannabis production anddistribution energy cost

million average Califo'mla .homes

cailfomla eiectrldty use for cannabis·P_~~_ll~I~_1] JS _~,qul~~_I.~_~_BC? t!l_~t_C?~f~_._

A typlcal4x4x8~foot productionmodule, accomoclatlng four plants etetime, consumes asmuch electricity as...

Every 1 kilogram of cannabis producedusing national-average grfd powerresults In the emissions of...

Every 1 kilogram of Cannabis producedusing a prorated mix of grid and off­grid generatorsresults In the emissionsof...

Every 1 kilogram of Cannabis producedusing off·grld generators results In theemissions of...

1

1

2.8

3.1

4.3

average U.S. homes, or

tonnes of C02

tonnes of C02

tonnes of C02

2

; equivalent to

equivalent to

: equivalent to :

averageCalifornia

homes

4.9

5.3

7.4

or

i cross-country trips ,In a 44mpg car '

, cross-country trtps 'In a 44mpg car

, cross-country trips j

, In a 44mpg car

28average

newrefrlgerat I

ors .

Transportation (wholesale+retall)consumes.•,

One Cannabis cigarette Is like driving...

Of the total wholesale price...

52

15

24%

: gallons of gasoline per kg :

miles In a 44mpg car

Is for energy (at averageU.S. prices)

or

emittingabout

$1

2

billion dollarsannually, and

pounds of C02,which Is equivalentto operating a 100- ,waltn~htbulb for

479

17

ki"lograms ;of C02 .

perkilogram iof flnal 'J?ro~.uct

hours

.7

Table s. Indicators (Ave",ge us conOldonsj

EnefllY.Use .... fonneete.cl L.0a~_Power Density

·Elect .j:uejtom'l<e~C02

Transportation fuel

On-grid results.. Energy·cost

Energy cost

Fraction of wholesale price

. C02 enilsslonsC02 emissions

Off-grl.dre.sults (diesel)Energy cost

Ene~ycost. = .Fraction of wholesale priceC02emlssl"". . .i:Q2emlSSic:ins .

-- -- -- ----.-Blendecl0n/off grid results. En"rgycost

En"rgv.c°st....... ...Fraction of wholesale priceCOzeriiiSslOns . . .C02 emissions- - - - - ---- --- ""-"

ofwhich; i';doo.. c021,riIductlonOfwhIch;veiiic"·liiiii

FueJuse·Olllin-g:I''''dlictlo.n.· .

DI~trlblJtlon

Cost[)urlngProductlon ..Distribution

EmissionsDlIrI.ng Pniductlon.··Distribution

- i

_.i

1--

per cycle, per.production

module

2,69.8 ..0.3- -- -,,- ....

37

592 ,- - . !

1,988

1,196 . i

-----

3,012

·-682

2,141

9

8

per year, perproduction

module

3,039iy,' tts/riiodllle .190, watts/ft2

. .-12,626ikwii/module. ..1,S: i!'1BTU-

172igallons

.2;770 ~imc:iaule

846 $/kg.... !

21%i!

·9,3021I<g2,840 i kg/kg

.. __.. i

5,595;$/module1;7081$/1<943%F·····

··i4A~<Ii~g_.. 4,J.O~ik9C:O.~/kg .

-3,1941$/modul" ..~in7"g ...24%:

·10;021:kg. ....3;059 [kg<:02/kg

- -- - _. -_. -"",.'- -, -- ._. ------ -.-

..... ·····4:likgC02

...l~Ig~llc:iijsl~!(·..39!gallons/kg

.~.@$lk!i_.. $1~3:$/kg

124:"gc02/kg.. 3S51I<Qcoi Jf(, ·

Table 6. Model

LlSlh~_L.8mps_(HPS>'Bllltasts (losses)J.a_~p5_:(~_HY ­Bllilast (losses)Motorized rail motion

- to-ntrollers

VentHlItIon lindmoiStUrecontrolLu_mina~re_filns -(sealed fro_Tn_ conditioned space)_-Mal~ ~m-rans: supply - --

- Main room fans - exhaust--t.in:uID~tlii-g_fllni(18") .

DehumlcllflClltlon:COn~-!ler&

S~ceh_~- -~[~_l!~_~[when__llgh~_om

CIIrbon Dioxide-:PDrasltlc-eleetrldl;y

AC (see bel()w)In-line heater

-- oehu_~!ciJrJ~~o,! (io% ~_d_er)Monlto.r/Ol;mtro_l__

witterH_B_8ting-P_umF't_ng - Imgat!C!n

DiVln_"Dehumli:lfilciitlo.;---CircUlatl_ng _ra:ns·~~~ijg. -

EI_eCtTrdtY--iilibtOta(

Ai~_ndltl~_in,Ug~t1.rlg I_oad_s

"Loads thafcan beremotedLoads thatcan't be remOtedc_6?~F'.io:dui:tlon -heat_removal

ElectricItY Total

Number orr ,4X4x8-root: Input: : Hou,../day Haul'll/day! DllY./CYdei Da'fll/qde: ' kWh/year pel

Energytype:Penetntion Ratlng productionI energy per: Unitll : (lui' (flowert (leaf phue) i (Rower, kWh / cycle: procluctlonmodules! module, ph..I: ph_)! 'ph..) i modulel-~_!- "

elect ' foo%: - 1000 "" - iooo -lir 12! 60"- 720 -3-;_369

eiect 10C)%: 13% -I! 130 . w ·i_2i 60," 94' 438-elect-- --100%' 600, -T'-- 600·' "w --18 ra ' , 19'4'- - -910

~""100%"; - -i3% 1 , -is W 1B "is, r 2S its

elect 5%: 5.5 1; 0.3 w 1B ii: 18! 60 0, 1-el~ -50%: - io' 10 ' i W 24 24i 18! 60 2 9

,~""

100%; 454 10' 45 W 1B, 12, i81 60 47 222-eie:ct-- 100%1 24-2 -8~-i -3Q iii- -lS ·-il --181 60' 31 i45

~"" iOO%, 242 8.1: -"30 - iN ie-, 12 18i 60: 31 1'45--eiect -- 1"6(1%'-- -i30,- r:

,.TiD: -,,{"" 24' - 241- is! 60" -242 i;I~

~"" 100%! 1,035 4: 2!i9 li/ --24'- -- 24' 18i 60-" - 484 .~,:Z.6?eJec,( -50%- ---1"t,: !O_ --·--i, vi.' -~~-, - 24i _ 181 60 2' 9

"

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elect - ioo%' 450, 10'-- - -45, W 84' 394e_l~ 50%~ },11~' 16.7 ~\ W lB' 12 18: 60 35' !-~

..... ,3,039 i w 2,&118' 12,08

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ON-SITE FUEL

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Externally produced Industrial CO2

Welghted~iiverage on-51te"i-purChasedWeighted averag-e on-site ,-gui'chased

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9

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1.5

Notes for Tables

[a]. U.S. Environmental Protection Agency. "Emission Facts: Average Annual Emissions andFuel Consumption for Passenger Cars and Ligbt Trucks."http://www.epa.gov/oms!consumer/fOOO13.htm [accessed February 5, 2011]

[b]. Energy Conversion Factors, U.S. Department ofEnergy,http://www.eia.doe.gov/energyexplainedlindex.cfm?page=about_energy_units [AccessedFebruary 5, 2011]

[c]. U.S. Department ofEnergy, "Voluntary Reporting of Greenhouse Gases Program"http://www.eia.doe.gov/oiaflI605/ee-factors.html[AccessedFebruary7.2011].CA:Marnay, C., D. Fisher, S. Murtishaw, A. Phadke, L. Price, and J. Sathaye. 2002."Estimating Carbon Dioxide Emissions Factors for the California Electric Power Sector."Lawrence Berkeley National Laboratory Report No. 49945. http://industrial­energy.lbl.gov/node/148

[d]. PG&E residential tariff as of 111111, Tier 5http://www.pge.comltariffslResElecCurrent.x1s [Accessed February 5, 2011]. In practicea wide mix oftariffs apply, but the relative shares are not known.

[e]. State-level residential prices, weigbted by Cannabis production from [Reference 4], withactual tariffs and U.S. Energy Information Administration, "Average Retail Price ofElectricity to Ultimate Customers by End-Use Sector, by State,"http://www.eia.doe.gov/electricity/epmltable5_6_a.html [Accessed February 7, 2011]

[f], U.S. Energy Information Administration, Gasoline and Diesel Fuel Update (as of2114/2011) - see http://www.eia. gOYloog/infolgdulgasdiesel.asp Propane prices ­http://www.eia.gov/dnav/pettpet....Pri....Prop_a_EPLLPA]TA_dpgal_m.htm [AccessedApril 3, 2011]

[g]. Montgomery, M. 2010. "Plummeting Marijuana Prices Create A Panic in Calif."http://www.npr.orgltemplateststory/story.php?storyld=126806429

[b]. Toonen, M., S. Ribot, and J. Thissen. 2006. "Yield ofIllicit Indoor Cannabis Cultivationin the Netherlands." Journal ofForensic Science, 15(5):1050-4.http://www.ncbLu1m.nih.gov/pubmedlI7018080

[i]. See Reference 14 for derivation.

[j). Total U.S. Electricity Sales: U.S. Energy Information Administration, "Retail Sales ofElectricity to Ultimate Customers: Total by End-Use Sector"http://www.eia.gov/cneaflelectricity/epmltable5_l.html [Accessed March 5, 2011]

[k]. California Energy Commission. "Energy Almanac."http://energyalmanac.ca.gov/electricity/us....Per_capita_electricity.html [AccessedFebruary 19,2011]. See also Total California Electricity Sales: California EnergyCommission. 2009. California Energy Demand: 2010-2020 - AdoptedForecast. ReportCEC-200-2009-012-CMF), December 2009 (includes self-generation).

10

References1. This report presents a model of typical production methodologies and associated

transportation energy use. Data sources include equipment manufacturer data, trade media,the open literature, and interviews with horticultural supply vendors. All assumptions usedin the analysis are presented in Table 2. The resultant normalized (per-kilogram) energyintensity is driven by the target environmental conditions, production process, andequipment efficiencies. While less energy-intensive processes are possible (either withlower per-unit-area yields or more efficient equipment and controls), much more energy­intensive scenarios are also possible (e.g., rooms using 100% recirculated air with reheat,hydroponics, and loads not counted here such as well-water pumps and water purificationsystems). The assumptions about vehicle energy use are likely conservative, given thelonger-range transportation associated with interstate distribution. Some localities (verycold and very hot climates) will see much larger shares ofproduction indoors, and havehigher space-conditioning energy demands than the typical conditions assumed here. Someauthors [See Plecas, D. J. Diplock, L. Garis, B. Carlisle, P. Neal, and S. Landry. Journal ofCriminal Justice Research. Vol. I No 2., p. 1-12.] suggest that the assumption ofo.75kgyield per production module per cycle is an over-estimate. Were that the case, the energyand emissions values in this report would be even higher, which is hard to conceive.Additional key uncertainties are total production and the indoor fraction of total production(see note 14), and the corresponding scaling up of relatively well-understood intensities ofenergy use per unit ofproduction to state or national levels by weight offina\ product.Greenhouse-gas emissions estimates are in turn sensitive to the assumed mix ofon- andoff-grid power production technologies and fuels, as off-grid production tends to havesubstantially higher emissions per kilowatt-hour than grid power. Costs are a directfunction of the aforementioned factors, combined with electricity tariffs, which vary widelyacross the country and among customer classes. More in-depth analyses could explore thevariations introduced by geography and climate, alternate technology configurations, andproduction techniques.

2. U.S. Department ofJustice. National Drug Threat Assessment: 2010http://www.justice.gov/ndic/pubs38/38661/marijuana.htm#Marijuana

3. World Drug Report: 2009. United Nations Office on Drugs and Crime, p. 97.http://www.unodc.orglunodc/enldata-and-analysisIWDR-2009.html For U.S. conditions,indoor yields per unit area are estimated as up to 15-times greater than outdoor yields.

4. Hudson, R. 2003. "Marijuana Availability in The United States and its AssociatedTerritories." Federal Research Division, Library ofCongress. Washington, D.C.(December). 129pp. See also Gettman, J. 2006. "Marijuana Production in the UnitedStates," 29pp. http://www.drugscience.org/Archivelbcr2/app2.html

5. See http://www.justice.gov/dealprogramslmarijuana.htm6. Anderson, G. 2010. "Grow Houses Gobble Energy." Press Democrat, July 25.See

http://www.pressdemocrat.comlarticle/20100725/ARTlCLES/1007296647. Quinones, S. 2010. "Indoor Pot Makes Cash, but Isn't Green." SFGate,

http://www.sfgate.comlcgi-binlarticle.cgi?f-=/c/al2010/10/21IBAPOIFU9MS.DTL8. A study by RAND appears to have severely underestimated the true energy costs. See J. P.

Caulkins. 2010. "Estimated Cost ofProduction for Legalized Cannabis." RAND WorkingPaper, WR-764-RC. July, Although the study over-estimates the hours of lighting required,

11

it under-estimates the electrical demand and applies energy prices that fall far short of theinclining marginal-cost tariff structures applicable in many states, particularly California.

9. Lehman, P. and P. Johnstone. 2010. "The Climate-Killers Inside." North Coast Journal,March II.

10. Harvey, M. 2009. "California Dreaming ofFull Marijuana Legalisation." The SundayTimes, (September).http://business.timesonline.co.ukItol/business/industry_sectors/bealthlarticle6851523.ece

II. See Gettman, op cit., at ref 4.12. See Gettman, op cit., at ref4.13. U.S. Department ofHealth and Human Services, SAMHSA, 2009 National Survey on

Drug Use and Health (September 2010). https:llnsduhweb.rti.orgl14. Total Production: The only official domestic estimate ofU.S. Cannabis production was

10,000 to 24,000 tonnes for the year 2001. Gettman (op cit., at ref. 4) conservativelyretained the lower value for the year 2006. This 2006 base is adjusted to 2011 valuesusing 10.9%/year net increase in number ofconsumers between 2007 and 2009, per U.S.Department ofHealth and Human Services (op cit., at ref. 12). The result isapproximately 17 million tonnes of total production annually (indoor and outdoor).Indoor Share ofTotal Production: The three-fold changes in potency over the past twodecades, reported by federal sources, are attributed at least in part to the shift towardsindoor cultivation [See http://www.justice.gov/ndic/pubs37/37035/national.htm andHudson op cit., at ref 4]. A weighted-average potency of 10% THC (U.S. Office ofDrugControl Policy. 2010. ''Marijuana: Know the Facts"), reconciled with assumed 7.5%potency for outdoor production and 15% for indoor production implies 33.3%::67.7%indoor::outdoor production shares. For reference, as of2008, 6% of eradicated plantswere from indoor operations, which are more difficult to detect than outdoor operations.A 33% indoor share, combined with per-plant yields from Table 2, would correspond to a4% eradication success rate for the levels reported (415,000 indoor plants eradicated in2009) by the DEA (op cit., at ref 5). Assuming 400,000 members ofmedical Cannabisdispensaries in California (each ofwhich is permitted to cultivate), and 50% of theseproducing in the generic 10-module room assumed in this analysis, output would slightlyexceed this study's estimate of total statewide production. In practice, significant indoorproduction is no doubt conducted outside of the medical marijuana system.

15. Koomey, J., et al. 2010. "Defining A Standard Metric for Electricity Savings."Environmental Research Letters, 5, doi: I0.1088/1748-9326/5111014017.

16. Overcash, Y. Li, E. Griffing, and G. Rice. 2007. "A life cycle inventory ofcarbon dioxideas a solvent and additive for industry and in products." Journal ofChemical Technologyand Biotechnology, 82:1023-1038.

17. Specifically, 2% of total Provincial electricity use or 6% of residential use, as reported byBC Hydro in Garis, L. 2008. "Eliminating Residential Hazards Associated withMarijuana Grow Operations and The Regulation ofHydroponics Eqnipment," BritishColumbia's Public Safety Electrical Fire and Safety Initiative, Fire Chiefs Association ofBritish Columbia, 108pp. See also Bellett, G. 2010. "Pot Growers Stealing $100 millionin Electricity: B.C. Hydro studies found 500 Gigawatt hours stolen each year." AlbemiValley Times. October 8. Analysis by B.C. Hydro in 2006 identified nearly 18,000residential utility accounts in Vancouver with suspiciously high electricity use [see Garis2008]. There were an estimated 10,000 indoor operations inB.C. in the year 2003,generating $1.24B in wholesale revenue [See Plecas et al., op cit., at ref 1.].

12

18. See, e.g., this University ofMichigan resource:http://www.hrt.msu.edulenergylDefault.hbn

19. "Environmental Impacts ofPot Growth." 2009. Ukiah Daily Journal. (posted athttp://www.cannabisnews.org/united-states-cannabis-newslenvironmental-impacts-of­pot-growtbl)

20. For observations from the building inspectors community, seehttp://www.nachi.org/marijuana-grow-operations.hbn

21. See Garis, L., op cit., at ref 17.22. The City ofFort Bragg, CA, has implemented elements of this in TITLE 9-Public

Peace, Safety, & Morals, Chapter 9.34.http://city.forthragg.comlpageslsearchResults.lasso?­token.editChoice=9.0.0&SearchType=MCsuperSearch&CurrentAction=viewResult#9.32.0

13

EXHIBIT "C"

Grow House Energy Tax Could Be On November Ballot - May 12, ...

• History• Humboldt~ta~

• Obil:J.!.ary

• Aboul the Arcata Eye

• Featur~~LPJJQJQ

• Police Log Book Orders• IbiDgsJ'[IY.stuff• Submiss_tQ!LGJ,lJJtf;

• Monday, May 142012

Grow House Energy Tax Could Be OnNovember Ballot - May 12, 2012

file://lC:/UsersfMicbael/Desktop/LawsuitlCEQA/Grow House Ener...

zer n

A March 14cannabishaulat a Lewis Avenuewhole-house growincluded232 poundsofharvested, trimmed and processed poland about an ounceofhBshishwhichhad been BJ"O""under21 lights and ballasts. .Arcata Policesaid the houseconsumed14,000kilowattsofelectricityper month- nearly30 timesthe averageresidential householdusageThe residenthadenrolled in theCaliforniaAlternateRates for Energy(CARE)Program,whichcut theelectricitybill in half All of thevoluminous contrabandand equipmentwasloadedintoAPD's cannabiscaboose, above,to bebookedinto evidence, Photosby KLHIEye

Kev:iD L Hoover

Eye Editor

ARCATA - A tax on excessive residential energy use couldwind up on the NovemberballotAs presently conceived. the tax would be leviedagainst homeswhich use more than300percentof the baselineusage.

The rate could be somewhere between five and IScents perkilowatthour over the baseline.

6/18/2012 10:27 AM

Grow House EnergyTax Could Be On NovemberBallot- May 12, ... file://IC:/Users/MichaelJDesktoplLawsuitlCEQAlGrow House Ener...

30fll

Figuresfrom 2009 indicatethat some 1.,200 aftho morethan 7,000 Arcataresidencesexceedthe baselinerate.Hada taxbeen in placethat year. the City couldhave generated $2 millionin revenue.

The City's Energy Committeewill considerthe matter in depth in a public meetingMonday,May 21. The committeehas been discussingthe matter for years out of concernthatextraordinary electricity consumption. largely by illegal grow houses.is offsetting energyconservationgalns and negating An:ala's greenhousegasreductionefforts.

Between 200 and 2006, electricity usage in Arcata increased 30 percentor more thanninemillionkilowatthours,a per capita increase of24 percent.ThiswhileCOI'lSefV\\tioo effortselsewhere in Californiahave kept electricityusagefairly constanl over the last 30years.

Along with much-needed tax revenue for strained City coffers,statedgoals of the proposedtax are reduction in energy use and "developmentoffimding stnrtegyto implementprojectswhichcould offset the environmental effects:from the increase in residential energyusage."

Implementing the tax would incur costs. PG&E estimatesa $500,000 to $800.000 cost forimplementingbillingbased on usageinsteadof residential.commercialor industrialclassificationand to chargea differentrate to a subsetof customers. Placingthe measureonthe ballotwouldcost between 510,000 BOd 512,000.

The City is concernedshout unintendedconsequencesof the tax.. Somehomemedicalequipment,forexample,can consumeextraordinary amountsof electricity.

Anotherquestionis whetheror not the tax would includeparticipantsin PG&E's CAREprogramfor low-incomecustomers. The program is exploitedby industrial cannabisgrowers.whose illegal income is not reported, and amounts to a subsidy for the illegal manufacturingactivity.

ExcludingCAREcustomers,many ofwbom usethe programlegitimately> wouldcut revenueroughly in half

The revenueprojectionswere based on 2009data, whichcould be out of date. Updatedfigures were expectedfrom PG&Ethis week.

The figure of 1.200 housesexceedingbaseline energyuse(500 ofwbiclt areon the CAREprogram)is similar to estimates made by lawenforeement in 2007. At tha1time, 700 to 1,000Arcataresidenceswereconsideredto harbor illegal grows - a figure hotly contestedby somecannabisadvocates.

The councilvote to pursue thematterwas4-0, with CouncilmemberSusanOrnelasabsent

The City will m01D1t a vigorouspubliceducationprogramto help ensure participationinwhateverdecision is made. "Wereally 'WBDt public inputat this stage in the process,"saidDeputyEnvironmental Services DirectorKarenDiemer.

The EnergyCommitteeiswill considerthematterat its Monday, May 21 publicmeeting.Recommendations developedat that meting couldshape thecouncil's final decision.Below,the Eoergy Committee agenda,

ENERGYCOMMITIEEAGENDA

COUNCILCHAMBERMONDAY MAY21, 2012

736 F STREIIT, ARCATA 5:30 P.M

Specialaccommodations forthe disabledwho attendCity meetingscan be made in

advanceby contactingthe City Clerk at 822-5953. Assistivelisteningdevicesare

available.

1.ROLLCALL- RuthanneCecil, MelanieFaust,Mike Kowalski,Nate McKeever,

GwelenPaliaga, JamesRobinson.Jim Zoellick

II. Approvalof Minutes - March 19,2012 BOd April 23, 2012

m. ORALCOMMUNICATIONS

This item is providedfor people to address theCommitteeon matters not on the

agenda At theconclusionof all oral communications, theCommitteewill

6/18/2012 10:27AM

EXHIBIT "D"

WHITE PAPER ON MARIJUANA DISPENSARIES

by

CALIFORNIA POllCE CHIEFS ASSOCIATION'STASK FORCE ON MARIJUANA DISPENSARIES

© 2009 California PoliceChiefsAssn. All Rights Reserved

requested administrative agency reconsideration or petition for court review, the decisionwas tobecomeeffectiveApril 24, 2009.

B. PROLIFERATION OF GROW HOUSES IN RESIDENTIAL AREAS

In recentyears the proliferation ofgrow houses in residential neighborhoods has exploded. Thisphenomenon is countrywide, and ranges from the purchasefor purposeofmarijuanagrow operationsofsmall dwellings to "high pricedMcMansions ... .'073 Mushrooming residential marijuanagrowoperationshave been detectedin California, Connecticut, Florida, Georgia, New Hampshire, NorthCarolina, Ohio, SouthCarolina, and Texas." In 2007alone, such illegaloperationswere detectedandshut down by federaland state law enforcement officials in 41 houses in California, 50 homes inFlorida,and II homes in New Hampshire." Sincethen, the numberofresidences discovered to be soimpacted has increasedexponentially. Part ofthis recent influx of illicit residential grow operations isbecausethe "THC-rich 'B.C. bud' strain" ofmarijuanaoriginally producedin British Columbia"canbe grownonly in controlled indoorenvironments," and the Canadianmarket is now reportedlySaturated with the productof "competin~ Canadiangangs," often Asian in composition or outlawmotorcycle gangs like the Hells Angels. 6 Typically, a gutted housecan hold about 1,000plants thatwill each yield almosthalf a pound ofsmokable marijuana; this collectivelynets about 500 poundsofusable marijuana per harvest, with an averageofthree to four harvestsper year," Witha street valueof$3,000to $5,000per pound" for high-potency marijuana, and such mUlti~le harvests, "a successfulgrow housecan bring in between$4.5 millionand $10 milliona year ... ." 8 The high potencyofhydroponically grownmarijuanacan command a priceas much as six times higherthan commercialgrade marijuana.79

C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES

In HumboldtCounty,California, structurefires causedby unsafe indoormarijuanagrow operationshave become commonplace. The city ofArcata, which sports four marijuanadispensaries, was the siteofa house fire in which a fan had fallen over and igniteda fire; it had been turned into a grow houseby its tenant. Per Arcata PoliceChiefRandyMendosa,alteredand makeshift"no code" electricalserviceconnections and overloaded wires used to operatehigh-powered grow lightsand fans arecommoncausesofthe fires. Large indoormarijuana growingoperationscan create such excessivedraws ofelectricity that PG&E powerpole transformers are commonly blown. An average 1,500­square-foot tract houseused for growingmarijuanacan generatemonthlyelectrical bills from $1,000to $3,000per month. From an environmental standpoint, the carbonfootprint from greenhouse gasemissions created by large indoormarijuanagrow operations shouldbe a majorconcern for everycommunity in terms ofcomplying with Air Board AB-32regulations, as well as other greenhouse gasreductionpolicies. Typically, air vents are cut into roofs, water seeps into carpeting, windows areblackedout, holes are cut in floors, wiring isjury-rigged,and electricalcircuits are overloaded tooperate grow lightsand other apparatus. Whenfires start, they spread quickly.

The May 31, 2008 editionof the Los Angeles Times reported, "Lawenforcement officialsestimatethatas manyas 1,000 ofthe 7,500homes in this HumboldtCountycommunity are beingused to cultivatemarijuana, slashinginto the housingstock, spreading building-safety problems and sowingneighborhood discord." Not surprisingly, in this bastionof liberalpot possession rules that authorizedthe cultivation of up to 99 plants for medicinal purpose, most structural fires in the community ofArcata have been ofIate associated with marijuanacultlvanon." Chief ofPolice Mendosaclarifiedthat the actualnumberofmarijuanagrow houses in Arcata has been an ongoingsubjectofpublicdebate. Mendosaadded, "We knowthere are numerous grow housesin almostevery neighborhood inand around the city, which has been the source ofconstantcitizencomplaints." House fires causedby

© 2009 California Police Chiefs Assn. 12 All Rights Reserved

grower-installed makeshiftelectricalwiring or tipped electrical fans are now endemic to HumboldtCounty."

ChiefMendosa also observedthat since marijuanahas an illicit street value ofup to $3,000 per pound,marijuanagrow houses have been susceptible to violent armed home invasionrobberies. Large-scalemarijuana grow houses have removed significantnumbers ofaffordable houses from the residentialrental market. When property owners discover their rentals are being used as grow houses, theresidencesare often left with major structuraldamage, which includesair vents cut into roofs andfloors, water damageto floors and walls, and mold. The June 9, 2008 edition of the New YorkTimesshows an unidentifiedArcata man tending his indoor grow; the man claimedhe can make $25,000every three months by selling marijuanagrown in the bedroom ofhis rented house.82 Claims ofostensiblemedical marijuanagrowing pursuant to California'smedical marijuana laws are beingadvancedas a mostly false shield in an attempt to justify such illicit operations.

Neither is fire an uncommonoccurrenceat grow houses elsewhereacross the nation. Anotheroccurred not long ago in Holiday, Florida.83 To compoundmatters further, escape routes forfirefighters are often obstructed by blockedwindows in grow houses, electric wiring is tamperedwithto steal electricity,and some residencesare even booby-trappedto discourageand repel unwantedintruders."

D. INCREASED ORGANIZED GANG ACTIVITIES

Along with marijuanadispensariesand the grow operations to support them come membersoforganizedcriminal gangs to operate and profit from them. Membersofan ethnic Chinese drug gangwere discoveredto have operated 50 indoor grow operations in the San Francisco Bay area, whileCuban-American crime organizationshave been found to be operating grow houses in Florida andelsewhere in the South. A Vietnamesedrug ring was caught operating 19 grow houses in Seattle andPuget Sound, Washington.85 In July of2oo8, over 55 Asian gang members were indicted for narcoticstrafficking in marijuanaand ecstasy, includingmembersofthe Hop Sing Gang that had been activelyoperating marijuanagrow operations in Elk Grove and elsewhere in the vicinityofSacramento,California.86

E. EXPOSURE OF MINORS TO MARIJUANA

Minors who are exposed to marijuana at dispensariesor residenceswhere marijuanaplants are grownmay be subtly influencedto regard it as a generally legal drug, and inclined to sample it. In growhouses, childrenare exposed to dangerous fire and health conditions that are inherent in indoor growoperations." Dispensariesalso sell marijuana to minors."

F. IMPAIRED PUBLIC HEALTH

Indoor marijuanagrow operationsemit a skunk-likeodor," and foster generallyunhealthyconditionslike allowingchemicalsand fertilizers to be placed in the open, an increasedcarbon dioxide levelwithin the grow house, and the accumulationofmold, 90 all ofwhich are dangerousto any childrenoradultswho may be living in the residence," although many grow houses are uninhabited.

© 2009 California Police Chiefs Assn. 13 All Rights Reserved

This page intentionally left blank.

June 20, 2012

UFCWLocal5240 S.Market St.San Jose, CA 95113

Dear Fresno City Council Members,

I am writing today to voice my strong disapproval of the ban on outdoor cultivationof medical cannabis. I am a Special Projects Union Representative for UFCW Local 5,the United Food and Commercial Workers. We represent hardworking people frommany fields, including commercial food production, pharmacies, retail stores,textiles, and agriculture. Local 5 has agricultural jurisdiction throughout the State ofCalifornia, and we have recently started to organize unaffiliated cannabis workersthrough our Associate Membership Program.

These medical cannabis cultivators are not only patients who struggle with physicalillness, they are also good members of the community. They strive for a dignifiedway of life in these trying economic times, just like any other worker. They areconcerned with putting food on their table, taking care of their children, and makingtheir mortgage payments, just like anyone else. Our Associate Members not onlyhave access to our credit union, exclusive union discounts, and legal assistance, butwe are also working to provide a group healthcare option, and will soon beginimplementing a retirement savings plan for them as well.

Sun-grown cannabis has a significantly lower carbon footprint than indoor growncannabis. We do not need to burn more coal and oil to produce an effectivemedicine that can be grown using the Sun's own energy. Sun-grown medicine isalso significantly less expensive to grow than using artificial, indoor lighting, whichis extremely important to low-income patients. The cost of a pound ofSun-growncannabis is approximately $250-500 to produce, while an indoor pound would costthe cultivator in excess of $1000, on average. Additionally, the full power of the suncreates medical benefits through the development of the cannabis plant'S naturallyoccurringturpenes and flavonoids that simply cannot be replicated with artificiallighting.

We are currently working with the State legislature to create a robust regulatorysystem for medical cannabis cultivation and distribution with the passage of A.B.2312. We urge the Fresno City Council to not ban outdoor cultivation, and to waituntil the passage of A.a. 2312 in order to receive guidance from the legislature onthis important issue.

Sincerely,

Matthew WitemyreUFCWLocal5Special Projects Union Representative

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