[Ord. 1164-17, eff. December
7, 2017]
The purpose and intent of this chapter are to require that cannabis,
grown for any purposes including medical or nonmedical use, be cultivated
only in appropriately secured, enclosed, and ventilated structures,
so as not to be visible to the general public, to provide for the
health, safety and welfare of the public, to prevent negative impacts
to property values, to prevent odor created by cannabis plants from
impacting adjacent properties, to prevent crime associated with cannabis,
and to ensure that cannabis grown for medical purposes remains secure
and does not find its way to non-patients, minors, or illicit markets.
It is not the intent of this chapter to create conflict or inconsistency
between this chapter and (A) the Constitutions of the United States
or the state of California; (B) the federal Controlled Substances
Act; or (C) California law.
[Ord. 1164-17, eff. December
7, 2017]
For purposes of this chapter, the following definitions shall
apply, unless the context clearly indicates otherwise:
Means the removal of cannabis plants and improvements that support cannabis maintained in violation of this Chapter 5-30.
Means a room inside a residential building being utilized
by any person primarily for sleeping purposes.
Means all parts of the plant Cannabis sativa Linnaeus, Cannabis
indica, or Cannabis ruderalis, whether growing or not; the seeds thereof;
the resin, whether crude or purified, extracted from any part of the
plant; and every compound, manufacture, salt, derivative, mixture,
or preparation of the plant, its seeds, or resin. "Cannabis" also
means the separated resin, whether crude or purified, obtained from
the cannabis. "Cannabis" includes cannabis that is used for medical,
non-medical, or other purposes. "Cannabis" does not include the mature
stalks of the plant, fiber produced from the stalks, oil or cake made
from the seeds of the plant, any other compound, manufacture, salt,
derivative, mixture, or preparation of the mature stalks (except the
resin extracted therefrom), fiber, oil, or cake, or the sterilized
seed of the plant which is incapable of germination. "Cannabis" also
does not include industrial hemp, as defined in California Health
and Safety Code § 11018.5.
Cannabis activity includes the cultivation, possession, manufacture,
distribution, processing, storing, laboratory testing, labeling, transportation,
distribution, delivery or sale of marijuana and marijuana products.
Means any area indoors that is the greater of either (A)
the total area of a property that is densely or primarily occupied
by cannabis cultivation; or (B) one square foot per juvenile or mature
cannabis plant indoors on the property.
Means any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of cannabis plants, or any part
thereof.
Means a space within a building, or other structure used
for as a residence which has a complete roof enclosure supported by
connecting walls extending from the ground to the roof, which is secure
against unauthorized entry, provides complete visual screening, and
which is accessible only through one or more lockable doors and inaccessible
to minors.
Means within a fully enclosed and secure structure.
Means any location within the City of Avalon that is not
within a fully enclosed and secure structure.
Means "person with an identification card" as defined in
§ 11362.7 (c) of the Health and Safety Code, as may be amended
from time to time.
Means a single, legal parcel of property. Where contiguous
legal parcels are under common ownership or control, such contiguous
legal parcels shall constitute a single "premises" for purposes of
this chapter.
Means a "primary caregiver" as defined in § 11362.7(d)
of the Health and Safety Code, as may be amended from time to time.
Means a "qualified patient" as defined in § 11362.7(f)
of the Health and Safety Code, as may be amended from time to time.
Means the rear open space portion of any premises, whether
fenced or unfenced.
Means a private residence such as a house, apartment unit,
mobile home, or similar dwelling.
Means any building or portion thereof legally existing which
contains living facilities, including provisions for sleeping, eating,
cooking, and sanitation on a premises or legal parcel located within
a zoning district that allows residential uses.
Means a fence constructed of substantial material (such as
wood or vinyl) that prevents viewing the contents from one side to
the other.
[Ord. 1164-17, eff. December
7, 2017]
(a)
It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any parcel in the City to cause or allow such parcel to be used for the personal outdoor cultivation of cannabis plants, except in compliance with this § 5-30.030.
(b)
Outdoor personal cultivation of cannabis is permitted in all
residential zones, all residential uses within planned development
zones of a similar nature, and residential uses within mixed-use zones,
subject to the following minimum City standards:
(1)
Outdoor personal cultivation of cannabis is only permitted in
a rear yard that is entirely enclosed by a lockable, solid, opaque
fence that is associated with a dwelling or secondary dwelling unit.
(2)
The height of the cannabis plants shall not exceed the standard
fence height applicable to the parcel, or six feet, whichever is lesser.
(3)
The cannabis plants shall be placed at a minimum setback of
three feet from the edge of the canopy to the property line.
(4)
No exterior evidence of cannabis cultivation occurring at the
property shall be visible from the public right-of-way.
(5)
For persons other than qualified patients or primary caregivers,
all outdoor personal cultivation shall be conducted by persons 21
years of age or older, and the cumulative total of cannabis plants
on the property, indoor or outdoor, shall not exceed six cannabis
plants, regardless of the number of persons residing on the property.
(6)
For qualified patients and primary caregivers, the cumulative
total of cannabis plants outside shall not exceed six cannabis plants,
regardless of the number of qualified patients and primary caregivers
residing on the property.
(7)
Any residential property used for outdoor cultivation of cannabis
must take reasonable measures to prevent cannabis plant odors or particles
from becoming a public nuisance to surrounding properties or the public.
A public nuisance may be deemed to exist if the cultivation produces
odors which are disturbing to people of normal sensitivity residing
or present on adjacent or nearby property or areas open to the public.
(8)
The outdoor cannabis cultivation area shall not adversely affect
the health or safety of the nearby residents by creating dust, glare,
heat, noise, smoke, traffic, vibration, or other impacts, and shall
not be hazardous due to use or storage of materials, processes, products
or wastes.
(9)
Use, storage, or discharge into City wastewater facilities of
any hazardous chemicals in the outdoor cultivation of cannabis is
strictly prohibited. "Hazardous chemicals" shall include, but is not
limited to, any chemical or substance that is prohibited by the Federal
Environmental Protection Agency or the California Department of Food
and Agriculture.
(10)
Water usage for the outdoor cultivation of cannabis under this
Chapter shall not exceed any limitations imposed by federal, state,
or local water restrictions.
(11)
Nothing in this section is intended, nor shall it be construed,
to preclude any landlord from limiting or prohibiting cannabis cultivation
by tenants.
(12)
Nothing in this section is intended, nor shall it be construed,
to authorize commercial cultivation of cannabis, which is prohibited.
(13)
Nothing in this section is intended, nor shall it be construed,
to authorize any public or private nuisance as specified in this Code.
[Ord. 1164-17, eff. December
7, 2017]
(a)
It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any parcel in the City of Avalon to cause or allow such parcel to be used for the cultivation of cannabis plants within a fully enclosed and secure structure on the parcel, except in compliance with this § 5-30.040.
(b)
All cannabis cultivation authorized by authorized by Health
and Safety Code § 11362.1 shall be conducted indoors only
and is subject to the restrictions set forth in Health and Safety
Code § 11362.2, all other state regulations, and the following
City regulations:
(1)
Cannabis cultivation is permitted only within fully enclosed
and secure structures inaccessible to minors.
(2)
Only one cultivation area per a residence is allowed.
(3)
Cannabis cultivation areas shall not be accessible to persons
under 21 years of age. Cultivation areas shall be secured by lock
and key or other security device which prevents unauthorized entry.
(4)
Indoor cultivation of cannabis shall not exceed 25 square feet,
unless authorized by the Sheriff as part of a request for cultivation
for medical necessity under subsection (c) of this section.
(5)
Cannabis cultivation lighting shall not exceed 1,200 watts and
shall be shielded to confine light and glare to the interior of the
allowable structure. All lighting use in the cultivation of cannabis
shall comply with the City's Building Regulations as codified
in Title 8 of the Avalon Municipal Code.
(6)
The use of gas products (CO2, butane, etc.) or generators for
cannabis cultivation or processing is prohibited.
(7)
From a public right-of-way, there shall be no exterior evidence
of cannabis cultivation.
(8)
The residence shall be occupied and is required to maintain
a functioning kitchen and bathroom(s), and the use of primary bedrooms
are for their intended purpose. These rooms shall not be used for
cannabis cultivation.
(9)
Any cannabis cultivation area located within a residence shall
not create a humidity or mold problem in violation of City's
Building Regulations as codified in Title 8 of the Avalon Municipal
Code or the Health and Safety Code.
(10)
Any residence used for the cultivation of cannabis must have
proper ventilation to prevent mold damage and to prevent cannabis
plant odors or particles from becoming a public nuisance to surrounding
properties or the public. A public nuisance may be deemed to exist
if the cultivation produces odors which are disturbing to people of
normal sensitivity residing or present on adjacent or nearby properties
or areas open to the public.
(11)
The cannabis cultivation area shall not adversely affect the
health or safety of the nearby residents by creating dust, glare,
heat, noise, smoke, traffic, vibration, or other impacts, and shall
not be hazardous due to use or storage of materials, processes, products,
or wastes.
(12)
Use, storage, or discharge into City wastewater facilities of
any hazardous chemicals in the cultivation of cannabis is strictly
prohibited. "Hazardous chemicals" shall include, but is not limited
to, any chemical or substance that is prohibited by the Federal Environmental
Protection Agency or the California Department of Food and Agriculture.
(13)
Water usage for cultivation of cannabis under this chapter shall
not exceed any limitations imposed by federal, state, or local water
restrictions.
(14)
Nothing in this section is intended, nor shall it be construed,
to authorize commercial cultivation of cannabis, which is prohibited.
(c)
Cannabis Cultivation for Medical Necessity. Any person within
the City who is a qualified patient, person with an identification
card, or primary caregiver and at least 18 years of age may apply
to the Sheriff's Department for authorization to cultivate more than
six living plants per private residence if he or she can demonstrate
that there is medical necessity or the qualified patient or person
with an identification card (or the primary caregiver on behalf of
the foregoing) to cultivate more than six living plants per private
residence. The Sheriff's determination shall be based on all of the
following:
(1)
Documentation of medical need, such as a physician's recommendation;
and
(2)
Inspection of the cultivation area by the Sheriff or his or
her designee to confirm that no health or safety concerns are present;
and
(3)
The Sheriff or his or her designee may require additional specific
standards to meet the California Building Code and Fire Code, including,
but not limited to, installation of fire suppression sprinklers.
(4)
Upon a determination that there is a medical necessity to allow
the applicant to cultivate more than six living plants at a private
residence, the Sheriff shall issue a determination in writing to the
applicant that shall be valid for a period of one year. It shall be
the responsibility of the applicant to apply for another authorization
to the Sheriff annually.
(5)
In no event shall the maximum number of living cannabis plants
cultivated on the grounds of a single residence at one time exceed
six living plants.
[Ord. 1164-17, eff. December
7, 2017]
(a)
Any violation of this chapter is hereby declared to be a public
nuisance.
(b)
A violation of this chapter may be abated by the city attorney,
or other counsel retained by the City, by the prosecution of a civil
action for injunctive relief and/or by the abatement procedure set
forth in the Avalon Municipal Code.
(c)
The Sheriff, or his or her designee (hereafter the "enforcement
official"), is hereby authorized to order the abatement of any violation
of this chapter by following the abatement procedure set forth in
the Avalon Municipal Code. In addition, the enforcement official may
require any person owning, leasing, occupying, or having charge or
possession of any parcel or property to personally abate and/or remove
all medical Cannabis plants and improvements to the parcel and/or
property that exceed the limits set by this chapter.
(d)
The remedies provided herein are cumulative, alternative and
nonexclusive. The use of one does not prevent the use of any others,
and none of these remedies prevents the city from using any other
remedy at law or in equity which may be available to enforce this
chapter or to abate a public nuisance.
