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ORDINANCE NO. 13-xx
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AN ORDINANCE AMENDING CITY OF CONCORD DEVELOPMENT CODE
ARTICLE II (ZONING DISTRICTS – USES AND STANDARDS), DIVISION 1
(DEVELOPMENT AND LAND USE APPROVALS), SECTION 122-57
(PROHIBITED USES), AND ARTICLE IX (GENERAL TERMS), DIVISION 1
(USE CLASSIFICATIONS), SECTION 122-1580 (USE CLASSIFICATIONS)
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WHEREAS, in 1970, Congress enacted the Controlled Substances Act (CSA), which, among
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other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United
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States; and
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WHEREAS, in 1996, the voters of the State of California approved Proposition 215, known
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as the Compassionate Use Act (CUA), codified as California Health and Safety Code Section
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11362.5. The CUA creates a limited exception from criminal liability for seriously ill persons who are
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in need of medical marijuana for specified medical purposes and who obtain and use medical
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marijuana under limited, specified circumstances; and
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WHEREAS, in 2004, the State Legislature adopted the Medical Marijuana Program Act
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(MMPA), codified as California Health and Safety Code Sections 11362.7 et seq., to clarify the scope
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of the CUA and to allow cities and other governing bodies to adopt and enforce rules and regulations
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consistent with the MMPA. The CUA expressly anticipates the enactment of additional local
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legislation. It provides: “Nothing in this section shall be construed to supersede legislation
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prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of
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marijuana for nonmedical purposes.” (Health and Safety Code Section 11362.5; and
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WHEREAS, concerns about non-medical marijuana use arising in connection with the CUA
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and the MMPA have been recognized by the state and federal courts. (See, e.g., Bearman v. California
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Medical Board (2009) 176 Cal.App.4th 1588; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th
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1383; Gonzales v. Raich (2005) 545 U.S. 1). The use, possession, distribution and sale of marijuana
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remain illegal under the CSA (Bearman v. California Medical Board (2009) 176 Cal.App.4th 1588),
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and the federal courts have recognized that: (1) despite California’s CUA and MMPA, marijuana is
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deemed to have no accepted medical use (Gonzales v. Raich (2005) 545 U.S. 1); and (2) the federal
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government may enforce the CSA despite the CUA and the MMPA (Gonzales v. Raich (2005) 545
Ord. No. 13-xx
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U.S. 1); and
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WHEREAS, marijuana plants, when grown outdoors, often produce a distinctive, strong odor
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(especially as they mature prior to harvest) that can be detectable and offensive beyond the borders of
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the property on which it is grown; and
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WHEREAS, marijuana, even when grown for medicinal purposes, has a high market value,
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and the strong smell and visibility of marijuana create an “attractive nuisance,” thereby creating the
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risk of burglary, trespass, robbery and armed robbery, potentially resulting in serious injury or death,
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and requiring the commitment of scarce police and public safety resources; and
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WHEREAS, adoption of text amendments to the City of Concord Development Code
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(Development Code) prohibiting outdoor cultivation of medical marijuana is necessary and proper to
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maintain and protect the public health, safety and welfare of the citizens of Concord.
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THE CITY COUNCIL OF THE CITY OF CONCORD DOES ORDAIN AS FOLLOWS:
Section 1. Concord Development Code Article II (Zoning Districts – Uses and Standards),
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Division 1 (Development and Land Use Approvals), Section 122-57 (Prohibited Uses) is hereby
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amended to read as follows; all other Uses and Standards remain unchanged:
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Sec. 122-57. Prohibited uses.
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Medical marijuana cultivation.
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1.
Purpose and intent. It is the purpose and intent of this provision to limit
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medical marijuana cultivation to enclosed, occupied dwellings, dwelling units
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and housing units, so as not to be visible to the general public, to provide for
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the health, safety and welfare of the public, to limit odor created by marijuana
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plants from impacting adjacent properties, and to prevent the attractive nuisance
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created by outdoor medical marijuana cultivation, which creates the risk of
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burglary, trespass, and armed robbery, posing the threat of serious injury or
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death, and requiring the expenditure of scarce police and public safety
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resources.
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Ord. No. 13-xx
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2.
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Applicable definitions:
a.
Cultivation. The planting, growing, harvesting, drying or processing of
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any marijuana plants or any part thereof, for medical use consistent with
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the Compassionate Use Act (California Health and Safety Code Section
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11362.5) and the Medical Marijuana Program Act (California Health
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and Safety Code Section 11362.7 et seq.).
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b.
Parcel. Any parcel of real property that may be separately sold in
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compliance with the Subdivision Map Act (California Government
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Code Section 66410 et. seq.).
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c.
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Occupied. Currently, presently, and lawfully utilized as the primary
dwelling of one or more persons.
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d.
Outdoor. Any location within the City that is not within a fully
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enclosed, occupied (as defined in this section) dwelling, dwelling unit or
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housing unit, as defined in Article IX, Section 122-1580 of the
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Development Code.
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3.
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Prohibitions.
a.
No person owning, renting, leasing, occupying or having charge or
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possession of any parcel shall cause or allow such parcel to be used for
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the outdoor cultivation of any marijuana plant.
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b.
No person owning, renting, leasing, occupying, or having charge or
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possession of any parcel shall cause or allow indoor cultivation of
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marijuana on such parcel to be visible from any street, sidewalk, or
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other place freely accessible by the public.
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4.
Compliance with Building, Fire Code and Permitting Requirements.
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Any person(s) cultivating medical marijuana with the use of grow lights, fans,
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ventilation devices or any other electrical or mechanical equipment shall
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comply with all applicable building and fire code requirements adopted by the
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City of Concord, and shall obtain all permits required for such installation.
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Enforcement. Violations of this provision shall be considered a public
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nuisance, and may be enforced according to the procedures set forth in the
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Concord Development Code, Article VIII, Division 9, Section 122-1375, and
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by the enforcement remedies conferred upon the City by Civil Code Section
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3494, Code of Civil Procedure Section 731, Government Code Section 38773,
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or other lawful authority. Nothing in this provision is intended to impair any
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viable legal defense to a person using or in possession of medical marijuana
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pursuant to the Compassionate Use Act (California Health and Safety Code
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Section 11362.5) or the Medical Marijuana Program Act (California Health and
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Safety Code Section 11362.7 et. seq.). Nothing in this division is intended to
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authorize the cultivation, possession or use of marijuana for non-medical
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purposes in violation of state or federal law.
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Section 2. Concord Development Code, Article IX (General Terms), Division 1 (Use
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Classifications), Section 122-1580 (Use Classifications) is hereby amended to read as follows; all
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other General Terms remain unchanged:
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(a)
Community Garden. A private or public facility for cultivation of fruits, flowers,
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vegetables, or ornamental plants by more than one person or family. The intention is
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for persons residing within a geographic subarea of the City or who share some other
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common, unifying identity to participate in garden activities and to own the resulting
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ornamental plants, flowers and produce.
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This classification excludes outdoor cultivation of medical marijuana, which is banned
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under Section 122-57 of the Development Code.
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(b)
Crop Production, Orchard, Vineyard. An agricultural facility for production including
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preparation, production, and harvesting activities. Examples include field crops,
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flowers and seeds, fruits and vegetables, grapes, ornamental crops, and vineyards. This
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classification also includes associated crop preparation services and harvesting
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activities such as mechanical soil preparation, irrigation system construction, spraying,
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crop processing and retail sales in the field, not including produce stands. This
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classification does not include wholesale or retail nurseries. (See Retail, Nursery,
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Garden Center). This classification excludes outdoor cultivation of medical marijuana,
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which is banned under Section 122-57 of the Development Code.
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Daniel C. Helix
Mayor
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ATTEST:
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Mary Rae Lehman, CMC
City Clerk
(Seal)
Ordinance No. 13-xx was duly and regularly introduced at a regular joint meeting of the City
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Council held on March 26, 2013, and was thereafter duly and regularly passed and adopted at a
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regular joint meeting of the City Council and Redevelopment Agency held on April 9, 2013, by the
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following vote:
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AYES:
Councilmembers –
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NOES:
Councilmembers –
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ABSTAIN:
Councilmembers -
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ABSENT:
Councilmembers –
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I HEREBY CERTIFY that the foregoing is a true and correct copy of an ordinance duly and
regularly introduced, passed, and adopted by the City Council of the City of Concord, California.
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Mary Rae Lehman, CMC
City Clerk
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Ord. No. 13-xx
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