(DATE) BOARD OF SUPERVISORS, COUNTY OF CALAVERAS STATE OF CALIFORNIA ORDINANCE NO. ADDING CHAPTER 17.95 TO THE CALAVERAS COUNTY CODE REGARDING MEDICAL CANNABIS CULTIVATION AND COMMERCIAL USES INVOLVING MEDICAL CANNABIS The Board of Supervisors of the County of Calaveras hereby ordains as follows: SECTION 1: The following chapter is added to the Calaveras County Code: CHAPTER 17.95. Medical Cannabis Cultivation and Commerce Sections 17.95.100 Authority 17.95.110 Purpose and Intent 17.95.120 Findings 17.95.130 Applicability and Interpretation 17.95.140 Scope 17.95.150 Definitions 17.95.160 Validation and Revocation of Certificates and Permits 17.95.170 Terms of Certificates and Permits; Renewal 17.95.180 License Types and Locational Requirements 17.95.190 Outdoor, Mixed Light, and Nursery Commercial Cannabis Cultivation- General Provisions 17.95.200 Application Requirements for Outdoor, Mixed Light and Nursery Commercial Cannabis Cultivation Zoning Clearance Certificates or Conditional Use Permits 17.95.210 Outdoor, Mixed Light and Nursery Commercial Cannabis Cultivation Development Standards and Operational Requirements 17.95.220 Indoor Commercial Cannabis Cultivation-General Provisions 17.95.230 Application Requirements for Indoor Commercial Cannabis Cultivation Conditional Use Permits 17.95.240 Development Standards and Operational Requirements for Indoor Commercial Cannabis Cultivation 17.95.250 Personal Cultivation and Primary Caregiver Cultivation--General 17.95.260 Application Requirements for Personal Cultivation and Primary Caregiver Cultivation Zoning Clearance Certificates - 1 -
17.95.270 Development Standards and Operational Requirements for Personal Cultivation and Primary Caregiver Cultivation 17.95.280 License Types and Locational Requirements 17.95.290 Commercial Cannabis Manufacturer, Testing Laboratory, Distributor, or Transporter General Provisions 17.95.300 Application Requirements for Commercial Cannabis Manufacturing, Testing, Distributing, or Transporting Zoning Clearance Certificates, Administrative Use Permits, and Conditional Use Permits 17.95.310 Development Standards and Operational Requirements for Commercial Cannabis Manufacturing, Testing, Distributing, or Transporting 17.95.320 Nuisance; Violations 17.95.330 Enforcement Authority 17.95.340 Right of Entry/Inspection 17.95.350 Enforcement Costs 17.95.360 Private Right of Action 17.95.370 Release of Liability and Hold Harmless 17.95.380 Fees 17.95.390 Effect of Invalidity ARTICLE 1. GENERAL TERMS 17.95.100 Authority The Calaveras County Board of Supervisors enacts this Chapter pursuant to authority granted by Article XI Section 7 of the California Constitution, Sections 25845 and 53069.4 of the California Government Code and Section 11362.83(c) of the California Health and Safety Code. 17.95.110 Purpose and Intent A. The purpose and intent of this Chapter is to quickly establish land use regulations concerning the cultivation, manufacture, testing, distribution, transportation, and storage of medical marijuana within the County of Calaveras in order to limit and control such activities in coordination with the State of California in the implementation of the Medical Marijuana Regulation and Safety Act (hereinafter MMRSA )(SB 643, AB 266, and AB 243 as adopted September 11, 2015). The County intends to proceed in the near future with the development of a revised, permanent ordinance that most effectively regulates all facets of medical marijuana activities. B. The purpose and intent of this Chapter is also intended to address the County of Calaveras s prerogative to license, permit, and control cultivation and commercial activities involving medical marijuana as set forth in the MMRSA, including, but not limited to the provisions of Business and Professions Code Sections 19315, 19316, 19320, 19322, 19332, and 19360 and Health and Safety Code Section 11362.777, in conjunction with state licensing requirements and local laws, in order to protect the public health, safety, and welfare of the residents of the County of Calaveras, and to reduce or eliminate any adverse environmental effects of existing cannabis cultivation or commercial activities involving medical marijuana in the County of Calaveras, and to prevent adverse environmental effects of any new cannabis - 2 -
cultivation or commercial activities involving medical marijuana which may be permitted in the future in accordance with this Chapter and State law. C. The purpose and intent of this Chapter is also to reduce conditions that create public nuisances by enacting regulations including, without limitation, restrictions as to location, type, and size of marijuana cultivation sites, the location, type, and size of commercial activities involving medical marijuana and the use of adequate screening, security, and other protective measures to more effectively control the adverse impacts associated with medical marijuana cultivation and commercial activities related to medical marijuana. D. The purpose and intent of this Chapter is also to consider and respect the needs of qualified patients in furtherance of the public necessity, health, safety, convenience, and general welfare within the Board's jurisdictional limits. Nothing in this Chapter shall be construed to authorize any use, possession, cultivation, manufacture, transportation, or distribution of marijuana or marijuana products for non-medical purposes or that is in violation of law. 17.95.120 Findings A. The Federal Controlled Substances Act, 21 U.S.C. 801 et seq., classifies marijuana as a Schedule I Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision. B. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, marijuana. The Federal Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution, dispensation, or possession of marijuana for medical purposes. C. In 1996, the voters of the State of California approved Proposition 215, "The Compassionate Use Act", (codified as Health and Safety Code Section 11362.5), which was intended to decriminalize cultivation and possession of medical marijuana by a seriously ill patient, or the patient's primary caregiver, for the patient's personal use, and to create a limited defense to the crimes of possessing or cultivating marijuana. The Act further provided that nothing in it shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes. D. The State enacted SB 420 in 2004 (known as the "Medical Marijuana Program Act", codified as Health and Safety Code Section 11362.7 et seq.) to expand and clarify the scope of The Compassionate Use Act of 1996 by creating the Medical Marijuana Identification Card program, creating reasonable regulations for cultivating, processing, transporting and administering marijuana, as well as limiting the amount of marijuana a qualified individual may possess. E. The Medical Marijuana Program Act defines a "primary caregiver" as an individual who is designated by a qualified patient or by a person with an identification card, and who has consistently assumed responsibility for the housing, health, or safety of that patient or person and is further defined in the California Supreme Court decision People v. Mentch (2008) 45 Cal.4 th 274. F. The State enacted the Medical Marijuana Regulation and Safety Act (MMRSA) on - 3 -
September 11, 2015 (SB 643, AB 266, and AB 243), instituting a comprehensive state-level licensure and regulatory scheme for commercial cultivation, manufacturing, distribution, transportation, laboratory testing, and dispensing of medical marijuana through numerous changes and additions to the Business & Professions Code and the Health and Safety Code. MMRSA legalizes and regulates for-profit commercial activity related to medical marijuana in California. G. The County's geographic and climatic conditions, which include dense forested areas with adequate precipitation and mild winters, provide conditions that are favorable to outdoor marijuana cultivation, allowing growers to achieve a high per-plant yield. The Federal Drug Enforcement Administration reports that various types of marijuana plants under various planting conditions may yield averages of 236 grams, or about one-half (1/2) pound, to 846 grams, or nearly two (2) pounds. H. Children (minor under the age of 18) are particularly vulnerable to the effects of marijuana use and the presence of marijuana plants or products is an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children (including schools, parks, and other similar locations). I. The unregulated cultivation of marijuana in the unincorporated area of Calaveras County can adversely affect the health, safety, and well-being of the County, its residents and environment. Comprehensive civil regulation of premises used for marijuana cultivation, including zoning regulation, is proper and necessary to reduce the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated marijuana cultivation, and that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in densely populated areas. J. Comprehensive regulation of premises used for marijuana cultivation or commercial activities related to marijuana is proper and necessary to address the risks and adverse impacts as stated herein, that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place. K. Comprehensive regulation of commercial activities related to marijuana, including but not limited to the manufacture of marijuana products, distribution of marijuana, storage of marijuana, testing of marijuana, and commercial transport of marijuana, is proper and necessary to address the risks and adverse impacts associated with such activities, which include but are not limited to risks related to the concentration of large amounts of marijuana on a single premises, fire hazards, and toxin release hazards. L. Outdoor marijuana cultivation, especially within the foothills, is creating devastating impacts to California s surface and groundwater resources. The State Water Resources Control Board, the North Coast Regional Water Quality Control Board, the Central Valley Regional Water Quality Control Board and the Department of Fish and Wildlife have seen a dramatic increase in the number of marijuana gardens, and corresponding increases in impacts to water supply and water quality, including the discharge of sediments, pesticides, fertilizers, petroleum hydrocarbons, trash and human waste. The sources of these impacts result from unpermitted and unregulated timber clearing, road development, stream diversion for irrigation, land grading, erosion of disturbed surfaces and stream banks, and temporary human occupancy without proper sanitary facilities. - 4 -
M. The immunities from certain prosecution provided to qualified patients and their primary caregivers under State law to cultivate marijuana plants for medical purposes does not confer the right to create or maintain a public nuisance. By adopting the regulations contained in this Chapter in coordination with MMRSA, the County is hoping to minimize the risks of and complaints regarding fire, odor, crime and pollution caused or threatened by the unregulated cultivation of marijuana in the unincorporated area of Calaveras County. N. Nothing in this Chapter shall be construed to allow the use of marijuana for non-medical purposes, or allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal under State law. No provision of this Chapter shall be deemed a defense or immunity to any action brought against any person by the County of Calaveras, Calaveras County District Attorney, the Attorney General of State of California, or the United States of America. O. In Browne v. County of Tehama, 213 Cal. App. 4 th 704 (2013), the California Court of Appeal stated that Neither the Compassionate Use Act nor the Medical Marijuana Program grants... anyone... an unfettered right to cultivate marijuana for medical purposes. Accordingly, the regulation of cultivation of medical marijuana does not conflict with either statute. Similarly, in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal. 4 th 729 (2013), the California Supreme Court concurred that Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land... Additionally, in Maral v. City of Live Oak (2013), 221 Cal.App. 4 th 975, 983, review denied 2014 Cal. LEXIS 2402 (March 26, 2014), the same Court of Appeal held that there is no right and certainly no constitutional right to cultivate medical marijuana... The Court in Live Oak affirmed the ability of a local governmental entity to prohibit the cultivation of marijuana under its land use authority. P. California Business and Professions Code 19315 expressly states that the chapter added to the Business and Professions Code pursuant to the MMRSA shall not be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements. Q. California Business and Professions Code 19316(a) expressly states, Pursuant to Section 7 of Article XI of the California Constitution, a city, county, or city and county may adopt ordinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activity. Any standards, requirements, and regulations regarding health and safety, testing, security, and worker protections established by the state shall be the minimum standards for all licensees statewide. R. California Business and Professions Code 19316(c) expressly states, Nothing in this chapter, or any regulations promulgated thereunder, shall be deemed to limit the authority or remedies of a city, county, or city and county under any provision of law, including, but not limited to, Section 7 of Article XI of the California Constitution. S. California Business and Professions Code 19320(d) expressly states that local jurisdictions retain the power to assess fees and taxes, as applicable, on facilities that are licensed pursuant to this chapter and the business activities of those licenses. - 5 -
17.95.130 Applicability and Interpretation A. The regulations in this Chapter shall apply to the location and permitting of cultivation of marijuana and commercial activities related to marijuana in zoning districts within which such use is authorized under the County Code. However, for the purposes of this Chapter, medical marijuana dispensaries are excluded from the definition of commercial activities related to marijuana, as medical marijuana dispensaries are separately regulated under Chapter 17.91 of the Calaveras County Code. B. All provisions of this Chapter shall apply regardless of whether the activities existed or occurred prior to the adoption of this Chapter. C. All cultivation and commercial activities related to marijuana, regardless of whether or not they have been regulated or allowed in the past, shall come into full compliance with the provisions of this Chapter within one (1) year of the adoption by the Board of Supervisors of the initial ordinance establishing this Section. This one year grace period shall not apply to cultivation and commercial cannabis activities located in zones where they are not allowed. D. Nothing in this Chapter is intended, nor shall it be construed, to exempt the cultivation of marijuana or commercial activities related to marijuana from compliance with all other applicable Calaveras County zoning, and land use regulations, as well as other applicable provisions of the County Code, or compliance with any applicable state laws. E. Nothing in this Chapter is intended, nor shall it be construed, to exempt the cultivation of marijuana or commercial activities related to marijuana regulated by this Chapter from any and all applicable local and state construction, electrical, plumbing, land use, water rights, waste water discharge, streambed alteration, or any other environmental, building or land use standards or permitting requirements. F. Nothing in this Chapter is intended, nor shall it be construed, to preclude a landlord or property owner from limiting or prohibiting cultivation of marijuana and/or from prohibiting commercial activities related to marijuana. G. Unless expressly stated otherwise, the definitions in this Chapter are intended to apply solely to the regulations in this Chapter. H. Notwithstanding the fact that Health and Safety Code Section 11362.777 declares that medical cannabis is an agricultural product for purposes of that Section and the MMRSA, (Business and Professions Code Section 19300, et. seq.), the cultivation of cannabis for medical use shall not be permitted in any zone within the County of Calaveras, unless a zoning clearance certificate or conditional use permit is first obtained from the County, and the person engaged in such activity has obtained all state licenses and permits which may be required by the applicable state licensing authorities. I. No medical cannabis activity regulated by this Chapter may be approved as an accessory use to any other use permitted under Title 17. J. If an applicant for a certificate or permit under this Chapter seeks to engage in more than one medical cannabis activity on any one parcel, a separate certificate or permit shall be required for each proposed use. K. A separate certificate or permit is required for each parcel on which an applicant proposes to engage in a medical cannabis activity regulated by this Chapter. - 6 -
L. A commercial cannabis operation shall provide to the planning director, upon request, written evidence to the planning director s reasonable satisfaction, that the operation is not engaged in interstate commerce, as it relates to medical cannabis. M. Notwithstanding any other provision of this Chapter, until the State has an operational procedure for processing licensing applications under the MMRSA, an applicant for a commercial medical cannabis activity who can otherwise demonstrate compliance with this Chapter, and who has already received the local certificate or permit required for the activity, may operate prior to the issuance of a state license under the following circumstances: 1. The applicant provides a statement from the Sheriff's Department that the applicant has completed a Department of Justice background check capturing the same information as that required of a licensee pursuant to Business and Professions Code 19322(a)(1) and has not been convicted of an offense described in Business and Professions Code 19323(b)(5)(A)-(D); and 2. The applicant files a complete application for the appropriate state license with the appropriate state licensing authority on or before January 1, 2018; and 3. The state does not deny the license application; and 4. The applicant completes the validation process pursuant to 17.95.160(A) within ten (10) days of successfully receiving the state license required for the activity. 17.95.140 Scope The provisions of this Chapter shall apply generally to all property throughout the unincorporated area of the County of Calaveras. 17.95.150 Definitions Except where the context otherwise requires, the following definitions shall govern the construction of this Chapter: A. Cannabinoid or phytocannabinoid has the same meaning as in Business and Professions Code 19300.5(e). B. Cannabis or Marijuana means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, or any other strain or varietal of the genus Cannabis that may hereafter be discovered or developed that has psychoactive or medicinal properties, whether growing or not, including the seeds thereof. Cannabis or Marijuana also means marijuana as defined by Section 11018 of the Health and Safety Code as enacted by Chapter 1407 of the Statutes of 1972. For the purposes of this Chapter, cannabis does not mean industrial hemp as defined by Section 81000 of the Food and Agricultural Code or Section 11018.5 of the Health and Safety Code. C. Caregiver or primary caregiver has the same meaning as in Health and Safety Code 19300.5(h). D. "Code" means the Calaveras County Code. E. "Code Enforcement Officer" means any person employed by the County of Calaveras and appointed to the position of code enforcement officer. F. Commercial marijuana activity or Commercial activities involving medical marijuana means either: - 7 -
1) Any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis for medical use, including nurseries, that is intended to be transported, processed, manufactured, distributed, dispensed, delivered, or sold in accordance with MMRSA for use by medical cannabis patients in California pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code; or 2) Any cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product in accordance with MMRSA. G. Commercial cannabis cultivation shall have the same meaning as Section 17.95.150(F)(1) of the Calaveras County Code. H. "Costs of Enforcement" or "Enforcement Costs" means all costs, direct or indirect, actual or incurred related to the performance of various administrative acts required pursuant to the enforcement of this Chapter, which include but are not limited to: administrative overhead, salaries and expenses incurred by County Officers, site inspections, investigations, notices, telephone contacts and correspondence, conducting hearings, as well as time expended by County staff in calculating the above expenses. The costs also include the cost of time and expenses associated with bringing the matter to hearing, the costs associated with any appeals from any decision rendered by any hearing body, the costs of judicially abating a violation, and all costs associated with removing, correcting or otherwise abating any violation, including administrative penalties of this Chapter. I. "County" means the County of Calaveras. J. "Cultivation site" means the location or a facility where medical cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or that does all or any combination of those activities in conformance with MMRSA or, to the extent that the activity is exempt from MMRSA, in conformance with local laws and regulations. K. Delivery has the same meaning as in Business and Professions Code 19300.5(m). L. Dispensary, Medical Marijuana Dispensary, or Medical Cannabis Dispensary, for purposes of this Chapter, has the same meaning as in Business and Professions Code 19300.5(n). M. Distribution has the same meaning as in Business and Professions Code 19300.5(p) N. Distributor has the same meaning as in Business and Professions Code 19300.5(q). O. Dwelling, for purposes of this Chapter, means a building intended for human habitation that has been legally established, permitted and certified as a single-family or multi-family dwelling. P. Edible cannabis product has the same meaning as in Business and Professions Code 19300.5(s). Q. "Enforcement Official" means a County Code Enforcement Officer, the County Agricultural Commissioner, or the County Sheriff, or the authorized deputies or designees of any of these officials, each of whom is independently authorized to enforce this Chapter. R. Entity has the same definition as Person except that it does not mean an individual. S. Identification card shall have the same meaning as "Identification card" as defined in the California Health and Safety Code, commencing with Section 11362.7(g). T. License, License Classification, or License Type means a state-issued license as described in Business and Professions Code 19300.7. U. Licensee has the same meaning as in Business and Professions Code 19300.5(ab). - 8 -
V. Manufactured cannabis or Manufactured cannabis products has the same meaning as Manufactured cannabis in Business and Professions Code 19300.5(ae). W. Manufacturer has the same meaning as in Business and Professions Code 19300.5(y) X. "Marijuana plant" means any mature or immature marijuana plant including the stalks of the plant, or any marijuana seedling, that is capable of producing marijuana. A "mature" marijuana plant is one whose sex can be determined by visual inspection. Y. Medical cannabis, medical cannabis product, or cannabis product has the same meaning as in Business and Professions Code 19300.5(ag). Z. Medical cannabis activity means any use of marijuana regulated by this Chapter, including but not limited to Commercial marijuana activity or non-commercial cultivation of marijuana. AA. Mobile delivery has the same meaning as the first sentence of Business and Professions Code 19300.5(m). BB. Nursery has the same meaning as in Business and Professions Code 19300.5(ah). CC. "Parcel" means any parcel of real property that may be separately sold in compliance with the Subdivision Map Act (commencing with Section 66410 of the Government Code) and also means any parcel that is described, recorded and kept in official County records specifically including documents and maps used by the County Assessor's Office, the County Tax Collector's Office and the County Recorder's Office. DD. Person has the same meaning as Person in Business and Professions Code 19300.5(aj). EE. Person with an identification card shall have the same meaning as "Person with an identification card" as defined in the California Health and Safety Code, commencing with Section 11362.7(c). FF. Personal cultivation means cannabis cultivation up to one hundred (100) square feet of total canopy area by a qualified patient, as defined in Section 11362.7 of the Health and Safety Code, who cultivates and possesses cannabis exclusively for his or her personal medical use but who does not provide, donate, sell, or distribute cannabis to any other person or entity. GG. "Primary Caregiver" shall have the same meaning as "primary caregiver" as defined in the California Health and Safety Code, commencing with Section 11362.7(d), and as further defined in the California Supreme Court decision People v. Mentch (2008) 45 Ca1.4 th 274. HH. Primary caregiver cultivation means cannabis cultivation of up to one hundred (100) square feet of total canopy per qualified patient or person with an identification card by a person who cultivates, possesses, transports, donates, or provides cannabis exclusively for the personal medical purposes of no more than two individuals for whom he or she is the primary caregiver within the meaning of Section 11362.7 of the Health and Safety Code, but who does not receive remuneration for these activities except for compensation in full compliance with subdivision (c) of Section 11362.765 of the Health and Safety Code. Transport for purposes of this subsection does not have the same meaning as 17.95.150(PP). II. "Public View" shall mean as viewed at ground level, without the use of a ladder or similar device, from any place the general public has a lawful right to be including the public right of way, a public way or neighboring premises. JJ. "Qualified Patient" shall have the same meaning as "qualified patient" as defined in the California Health and Safety Code, commencing with Section 11362.7(f). - 9 -
KK. "Residence" shall have the same meaning as Dwelling for purposes of this Chapter. LL. "Sheriff or "Sheriff s Office" means the Calaveras County Sheriff s Office or the authorized representatives thereof. MM. Testing laboratory has the same meaning as in Business and Professions Code 19300.5(z). NN. Topical cannabis has the same meaning as in Business and Professions Code 19300.5(al). OO. Total canopy area means the gross area of cannabis planting covered by the canopy of all marijuana to be cultivated on the parcel when the marijuana plants reach their maximum canopy size, including the space between the plants within a single fenced or enclosed area. PP. Transport or transportation, for purposes of this Chapter, has the same meaning as in Business and Professions Code 19300.5(am). QQ. Transporter has the same meaning as in Business and Professions Code 19300.5(aa). RR. Zoning clearance certificate, for purposes of this Chapter, means a ministerial, overthe-counter certificate of compliance provided by the Planning Department after a complete application has been filed pursuant to 17.95.200 and after verification that the proposed use is compatible with the parcel s zoning and the applicable development standards. The zoning clearance certificate is also intended to serve, whenever a local permit is not required, as the license or permit from the local jurisdiction required by Business and Professions Code 19320(a) as a condition precedent to state licensure for commercial cannabis activities. regulated by MMRSA. 17.95.160 Validation and Revocation of Certificates and Permits A. Chapter 17.90 applies to all certificates or permits issued pursuant to this Chapter, and all certificates or permits must be validated pursuant to this Chapter before the uses they authorize can commence. Certificates or permits issues pursuant to this Chapter shall not be validated until Applicant returns to the Planning Department with the State-issued license(s) required under MMRSA for the proposed use and receives a stamp or other indicia of activation from Planning Department staff. B. Certificates issued pursuant to this Chapter may be revoked pursuant to Section 17.90.050 of the Calaveras County Code for failure to comply with Title 17 of the Calaveras County Code and/or with State law, for being issued in error, or for being issued under false pretenses. C. Administrative Use Permits or Conditional Use Permits may also be revoked pursuant to Section 17.90.050 for any of the following reasons: 1. The applicant, after receiving a permit, fails or refuses to inform the County of alterations to the property that would compromise the original permit approval, has submitted false or misleading information as part of the application, fails to comply with the permit conditions, or either fails to obtain or loses through revocation any other required local, county, regional, or state permit or license. 2. After issuance of the permit, the County discovers that approving the permit violated a county, state, or local law or regulation, or the permit was otherwise issued in error. D. If a certificate or permit is revoked pursuant to this Section, the Planning Director shall notify the State Bureau of Medical Marijuana Regulation pursuant to Business & Professions Code 19320(b). - 10 -
17.95.170 Terms of Certificates and Permits; Renewal A. Any zoning clearance certificate issued pursuant to this Chapter shall automatically expire after one (1) year after date of issuance, and on the anniversary of such issuance each year thereafter, unless an annual compliance inspection has been conducted by Code Compliance, the permitted site has been found to comply with all conditions of approval, and a renewal has been approved by the Planning Department. B. Any administrative use or conditional use permit issued pursuant to this Chapter shall automatically expire after one (1) year after date of issuance, and on the anniversary of such issuance each year thereafter, unless an annual compliance inspection has been conducted by Code Compliance, the permitted site has been found to comply with all conditions of approval, and a renewal has been approved by the Planning Director. C. Notwithstanding any other provision in this Section, if a cultivation site has not been inspected by the annual renewal deadline after a timely application to renew its certificate or permit, the Planning Department may issue a renewal so long as the permitted site has not been found out of compliance with any state or local laws or with any condition of approval. This provision applies only to cultivation sites. D. If Code Compliance determines that the site for which a certificate or permit renewal is sought does not comply with the requirements of this Chapter or, if applicable, the conditions of approval, Code Compliance shall serve the certificate or permit holder with a written Statement of Non-Compliance identifying the items not in compliance, and the action that the certificate or permit holder may take to cure the non-compliance. The Statement of Non-Compliance shall also inform the certificate or permit holder of the right to file an appeal within ten (10) calendar days of the date that the written letter was delivered to the certificate or permit holder. Personal delivery or mailing the written statement to the mailing address listed on the application by regular mail, plus three (3) days after mailing, shall constitute delivery. The certificate or permit holder may request a reinspection to determine whether or not he/she has cured all issues of non-compliance. Failure to cure any items of non-compliance and request reinspection within thirty (30) days of receiving the written statement of non-compliance; or failure to file a timely appeal which results in a final determination that the appeal is granted; shall terminate the certificate or permit holder s option to renew the certificate or permit. To receive a subsequent certificate or permit, the applicant whose option to renew has been terminated will need to begin the original application process anew. E. Within ten (10) days after delivery of the Statement of Non-Compliance, the determination by Code Compliance may be appealed by the certificate or permit holder to the Code Compliance Administrative Hearing Board pursuant to Section 8.06.560, and the certificate or permit holder shall be provided with an opportunity to appear before that Board. A certificate or permit holder may also appeal the Administrative Hearing Board s determination pursuant to the Board of Supervisors pursuant to Section 8.06.560. The determination of the Board of Supervisors shall be final. F. Neither the issuing of a Statement of Non-Compliance nor the pendency of proceedings contesting it in any way operate to limit any existing power of the County of Calaveras to simultaneously or subsequently enforce County ordinances, to abate any and all nuisances, or employ any remedy available at law or equity in code enforcement activities pursuant to Title 8 or Section 17.100 of the Calaveras County Code, including - 11 -
but not limited to nuisance abatement activities or proceedings, concerning the same Parcel for which a Statement of Non-Compliance was issued. G. Neither the issuing of a Statement of Non-Compliance nor the pendency of proceedings contesting it in any way limit or prevent the Planning Director from simultaneously or subsequently initiating or continuing to pursue a permit revocation action pursuant to Section 17.95.160 of this Chapter. ARTICLE 2. COMMERCIAL & NON-COMMERCIAL CANNABIS CULTIVATION 17.95.180 License Types and Locational Requirements A. For purposes of this Chapter, Indoor means a cultivation site operated pursuant to License Type 1A, 2A, or 3A. B. For purposes of this Chapter, Outdoor means a cultivation site operated pursuant to License Type 1, 2, or 3. C. For purposes of this Chapter, Mixed Light means a cultivation site operated pursuant to License Type 1B, 2B, or 3B. D. A nursery is a cultivation site and shall be licensed pursuant to License Type 4. E. The type of zoning clearance certificate or permit issued by the Planning Department prior to engaging in the commercial cultivation of cannabis for medical use shall be determined by the zoning classification of the parcel on which the activity is to be conducted and the type of state license required for that operation pursuant to the MMRSA, in accordance with the following chart where P signifies that a zoning clearance certificate is required, AUP signifies an administrative use permit is required, CUP signifies a conditional use permit is required, and - means the use in not permitted in that zone: Outdoor/Mixed Light Cultivation Zone Personal Use 1 or 1B 2 or 2B 3 or 3B Nursery Caregiver License License License Unclassified, U ZCC* ZCC AUP** AUP - Highway Service, HS ZCC - - - - Residential Agriculture, RA ZCC ZCC AUP AUP - Rural Residential, RR ZCC ZCC AUP AUP - General Forest, GF ZCC ZCC AUP AUP - General Agriculture, A1 ZCC ZCC AUP AUP CUP*** Agriculture Preserve, AP ZCC ZCC AUP AUP - *ZCC = Zoning Clearance Certificate **AUP = Administrative Use Permit ***CUP = Conditional Use Permit - 12 -
Indoor Cultivation Zone Personal Use Caregiver 1A License 2A License 3A License Unclassified, U ZCC ZCC - - Highway Service, HS ZCC - - - Residential Agriculture, RA ZCC ZCC - - Rural Residential, RR ZCC ZCC - - Single-Family Residential, R1 ZCC - - - General Forest, GF ZCC ZCC - - General Agriculture, A1 ZCC ZCC - - Agriculture Preserve, AP ZCC ZCC - - Light Industrial, M1 - AUP AUP - General Industrial, M2 - AUP AUP - Business Park, M4 - AUP AUP - 17.95.190 Outdoor, Mixed Light, and Nursery Commercial Cannabis Cultivation General Provisions A. This section applies to all outdoor and mixed light commercial cannabis cultivation. B. All outdoor and mixed light commercial cannabis cultivation shall operate in compliance with this Chapter, MMRSA, and all other applicable state and local laws and regulations. C. Outdoor and mixed light commercial cannabis cultivation shall be allowed in specifically enumerated zones, only with a zoning clearance certificate issued by the Planning Department, administrative use permit issued pursuant to Chapter 17.83 of the Calaveras County Code, or conditional use permit issued pursuant to Chapter 17.82 of the Calaveras County Code. Outdoor, mixed light, or nursery commercial cannabis cultivation in any other zoning district in the County of Calaveras is prohibited. D. The fact that an applicant possesses other types of state or county permits, licenses, or other entitlements does not exempt the applicant from the requirement of obtaining a zoning clearance certificate, administrative use permit, or conditional use permit from the County of Calaveras to engage in outdoor, mixed light, or nursery commercial cannabis cultivation within the jurisdiction of the County. E. Outdoor, mixed light, and nursery commercial cannabis cultivation shall at all times be operated in such a way as to ensure the health and safety of employees, independent contractors, visitors to the area, neighboring property owners, and end users of medical marijuana; to protect the environment from harm to streams, fish, and wildlife; to ensure the security of the medical marijuana; and to safeguard against the diversion of medical marijuana for non-medical purposes. F. Cannabis cultivation cannot form the basis for a cultivator to apply with the County to enter into a Williamson Act contract pursuant to California Government Code Section 51200 et. seq.; however, a landowner who otherwise qualifies for a Williamson Act contract due to another qualifying agricultural operation on the property at issue shall not be denied a Williamson Act contract solely because cannabis is also cultivated on the property. - 13 -
17.95.200 Application Requirements for Outdoor, Mixed Light, and Nursery Commercial Cannabis Cultivation Zoning Clearance Certificates or Conditional Use Permits A. All applicants for outdoor, mixed light, or nursery commercial cannabis zoning clearance certificates or conditional use permits shall fill out an application administered by the Planning Department that captures, at a minimum, the following information: 1. The applicant s business name, physical address, mailing address (if different), and phone. 2. The applicant s personal name, physical address, mailing address (if different), and phone. 3. If the applicant is not the record title owner of the parcel for which a certificate or permit is sought, written consent of the owner of the parcel with original signature and notary acknowledgement. If the owner of the parcel is an entity, the written consent must be accompanied by a document demonstrating that the individual providing it is legally authorized to confer that permission on behalf of the entity. 4. If not the owner or applicant, the name, physical address, mailing address, and contact phone number of a designated adult individual permanently residing in an inhabited dwelling on the parcel containing the cultivation site (or on a contiguous parcel under common ownership) and his/her written consent to serve as an emergency contact. An applicant or certificate holder who can demonstrate that a pre-existing dwelling on the parcel was destroyed in a declared disaster may meet this requirement through compliance with Chapter 17.93 of the Calaveras County Code so long as a temporary replacement structure authorized by that Chapter is located on-site and remains inhabited by a permanent resident. 5. If an administrative or conditional use permit is required, a signed indemnification agreement per Section 17.95.370 executed by both the applicant and landowner. If the applicant and/or landowner is an entity, the agreement must be accompanied by a document demonstrating that the individual executing it is legally authorized to confer that permission on behalf of the entity. 6. If the applicant is corporation, limited liability company, or limited partnership, a datemarked printout from the California Board of Equalization s Business Search website indicating that the entity is currently listed as Active with the Board of Equalization. 7. Signed written consent to reasonable compliance inspections by County staff between the hours of 7:00 a.m. and 7:00 p.m., excluding holidays. 8. Site plan showing the entire parcel, the location and area for all cultivation on the parcel, with dimensions of each area to be used for cultivation and setbacks from property lines. 9. A description of cultivation activities (outdoor, indoor, mixed light, nursery); hours of operation; and a schedule of activities during each month of the growing and harvesting season. 10. A security plan describing how the cultivation area will be secured against access by trespassers, including discussion of all fencing, screening, gating, locks, lighting, cameras, and alarms. 11. Copy of the statement of water diversion, or other permit, license, or registration filed with the California Water Resources Control Board, Division of Water Rights, if applicable. 12. Description of legal water source, irrigation plan, and projected water usage. - 14 -
13. For any cultivation operation whose cultivation activities will occupy and/or disturb more than 1000 square feet, a copy of the Notice of Intent and Monitoring Self-Certification and other documents filed with the Central Valley Regional Water Quality Control Board demonstrating enrollment in its Cannabis Cultivation Waste Discharge Regulatory Program pursuant to General Order R5-2015-0113, or any substantially equivalent rules or orders that may be subsequently adopted by the County or other responsible agency. 14. If any on-site or off-site component of the cultivation facility, including access roads, water supply, grading or terracing impacts the bed or bank of any stream or other watercourse, a copy of the Streambed Alteration Permit obtained from the Department of Fish & Wildlife. 15. If the source of water includes a well, a copy of the well permit, unless the Environmental Management Agency determines that a copy of this permit is unavailable. 16. If the quantities of pesticides or other hazardous materials are such that a permit is required through Environmental Health, a copy of that permit. B. All conditional use permits applied for pursuant to this Section shall be submitted and processed pursuant to Chapters 17.82 and 17.88 of the Calaveras County Code. All administrative use permits applied for pursuant to this Section shall be submitted and processed pursuant to Chapters 17.83 and 17.88 of the Calaveras County Code. Appeals of decisions made by the Planning Department staff, the Planning Commission, and the Board of Supervisors with respect to an application under this Section shall be processed and heard pursuant to Chapter 17.98 of the Calaveras County Code. 17.95.210 Outdoor, Mixed Light and Nursery Commercial Cannabis Cultivation Development Standards and Operational Requirements A. Compliance with all state and local laws and with the conditions of all permits. Applicants seeking authorization to cultivate marijuana on parcels where active Code Enforcement violations of any provision of the Calaveras County Code exist shall first correct Code violations prior to receiving a County certificate or permit pursuant to this chapter. B. Possession of a current, valid required license, or licenses, issued by any agency of the State of California in accordance with the MMRSA, and regulations promulgated thereunder. C. Possession of a current, valid business license issued by the County. D. Compliance with all statutes, regulations and requirements of the California State Water Resources Control Board, Division of Water Rights, including the statement of diversion of surface water from a stream, river, underground stream, or other watercourse required by Water Code 5101, or other applicable permit, license, or registration. E. The area of cannabis cultivation shall be located as shown on the application site plan, set back at least thirty (30) feet from any property line, and the parcel shall be at least one thousand (1000) feet from any parcel containing a sensitive use as that term is defined in Calaveras County Code 17.91.060(B), measured using the shortest distance between the property lines of the respective parcels. F. The total canopy area, as defined by Calaveras County Code 17.95.150(OO) cannot occupy more than 25% of the parcel s total square footage. - 15 -
G. The cultivation area shall be fully enclosed by an eight-foot tall fence of a material and strength that reasonably prevents against access by trespassers and children and adequate screening to prevent the marijuana plants from being viewed by members of the public present on public roads, public lands and properties, and parcels containing a sensitive use as that term is defined in Calaveras County Code 17.91.060(B). H. Access to the cultivation area shall be controlled by a gate and lock system of reasonable durability and strength to reasonably prevent against access by trespassers and children. I. Maintain enrollment in Tier 1, 2, or 3, certification with the Central Valley Regional Water Quality Control Board General Order No. R5-2015-0113, if applicable, or any substantially equivalent rules or orders that may be subsequently adopted by the County or other responsible agency. J. Comply with any and all state and local laws or regulations related to the use, storage, and disposal of pesticides. K. Comply with the terms of any applicable permit or plan allowing agricultural cultivation in a Timber Preserve Zone. L. A lawful permanent dwelling must exist on either the parcel containing the cultivation site, or on a contiguous parcel in common ownership with the parcel containing the cultivation site, which must be inhabited on a permanent basis by either the owner or applicant or by a consenting adult designated by the applicant to serve as an emergency contact. Applicant must immediately inform the Planning Department of any changes to the name or contact information for this individual. An applicant or certificate holder who can demonstrate that a pre-existing dwelling on the parcel was destroyed in a declared disaster may meet this requirement through compliance with Chapter 17.93 of the Calaveras County Code so long as a temporary replacement structure authorized by that Chapter is located on-site and remains inhabited by a permanent resident. M. Consent to reasonable on-site compliance inspections by County staff between the hours of 7:00 a.m. and 7:00 p.m., excluding holidays. N. Refrain from the improper storage of or use of any fertilizer, pesticide, fungicide, rodenticide, or herbicide. O. Pay all applicable application and inspection fees. P. Comply with all laws, regulations, and standards related to weights and measures. Q. Comply with all laws, regulations, and permits issued by Fish and Wildlife. R. Comply upon request with any request by a County official or employee authorized to enforce this Chapter to examine any and all records maintained pursuant to Business and Professions Code 19327. S. Meet any specific, additional operating procedures and measures as may be imposed as conditions of approval by the county to ensure that the cultivation is consistent with protection of the health, safety and welfare of the community and will not adversely affect surrounding uses. 17.95.220 Indoor Commercial Cannabis Cultivation General Provisions A. This section applies to all indoor commercial cannabis cultivation. B. All indoor commercial cannabis cultivation shall operate in compliance with this Chapter, MMRSA, and all other applicable state and local laws and regulations. - 16 -