Note: Prior ordinance history: Ord. 538.
A. 
The City Council is exempt from the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) ("CEQA") because it cannot be seen with certainty that there is no possibility that it will have a significant effect on the environment (CEQA Guidelines Section 15061(b)(3)) and because it consists of regulations and restrictions on activities to assure the maintenance, restoration, or enhancement of natural resources and the environment by prohibiting environmentally destructive components of currently unregulated marijuana cultivation (Class 7 and Class 8, CEQA Guidelines Sections 15307 and 15308).
B. 
Pursuant to Article XI, Section 7 of the California Constitution, the City of Live Oak ("City") may adopt and enforce ordinances and regulations not in conflict with general laws to protect and promote the public health, safety, and welfare of its citizens.
C. 
The Federal Controlled Substances Act (21 U.S.C. Section 801, et seq.) prohibits, except for certain research purposes, the possession, distribution, and manufacture of marijuana.
D. 
On November 5, 1996, California voters approved Proposition 215, the Compassionate Use Act of 1996 (codified at Health and Safety Code Section 11362.5) ("CUA"), an initiative that exempted certain patients and their primary caregivers from criminal liability under State law for the possession and cultivation of marijuana for medical purposes. One of the Stated purposes of the CUA is to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use has been recommended by a physician.
E. 
On December 7, 2011, the City adopted Ordinance No. 538, an Ordinance of the City Council of the City of Live Oak Regarding the Cultivation and Sale of Medical Marijuana Within the City Limits, which in part amended Chapter 17 of Zoning Regulations and in part added a new Chapter 17.17 enacting "Standards for Medical Marijuana." Ordinance No. 538 excluded medical marijuana collectives, cooperatives, and dispensaries in any zoned district in the City.
F. 
On November 8, 2016, California voters approved Proposition 64, the Adult Use of Marijuana Act ("Marijuana Act"). The passage of the Marijuana Act results in adults 21 years of age or older being able to legally grow, possess, and use marijuana for nonmedical purposes, with certain restrictions. The State will regulate nonmedical marijuana businesses and tax the growing and selling of medical and non-medical marijuana. The measure created two new taxes, one levied on cultivation and the other on retail price. Businesses will now be able to acquire a State license to sell marijuana for recreational use. Local governments can also require them to obtain a local license. The Bureau of Medical Cannabis Regulation was renamed the Bureau of Marijuana Control and became responsible for regulating and licensing marijuana businesses. Counties and municipalities are empowered to restrict where marijuana businesses could be located. Local governments are also allowed to completely ban the sale of marijuana from their jurisdictions. The Marijuana Act amends and repeals and adds sections to the Business and Professions Code, Food and Agriculture Code, Health and Safety Code, Labor Code, Revenue and Taxation Code, and Water Code.
G. 
The Marijuana Act is going to require additional extensive regulations being enacted by the State.
H. 
The Zoning Regulations are consistent with the Live Oak 2030 General Plan in that the General Plan, its goals, objectives and policies do not permit or contemplate the establishment or operation of marijuana related businesses.
I. 
It is critical to note that the Marijuana Act does not abrogate the City's powers to regulate for public health, safety and welfare. The Marijuana Act authorizes cities and counties to adopt and enforce rules and regulations consistent with the Marijuana Act.
(Ord. 563 § 1, 2017)
A. 
Nothing in this chapter is intended, nor shall it be construed, to burden any defense to criminal prosecution under the Marijuana Act.
B. 
Nothing in this chapter is intended, nor shall it be construed, to make legal any cultivation, sale or other use of marijuana that is otherwise prohibited under California law.
C. 
Nothing in this chapter is intended, nor shall it be construed, to exempt any activity related to the cultivation of marijuana from any applicable electrical, plumbing, land use or other building or land use standards or permitting requirements.
D. 
All cultivation and sale of marijuana within the City shall be subject to the provisions of this chapter, save and except for the regulation of medical marijuana that is provided for in Title 17 of this code.
E. 
This chapter applies within all areas of the City of Live Oak.
(Ord. 563 § 1, 2017)
For purposes of this chapter, the following terms have the definitions set forth below:
City.
The City of Live Oak.
"Commercial marijuana activity"
includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, or sale of marijuana and marijuana products.
Cultivation.
The planting, growing, harvesting, drying or processing of marijuana plants or any part thereof.
"Delivery"
means the commercial transfer of marijuana or marijuana products to a customer. "Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer, or independently licensed under California law, that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana products.
"Distribution"
means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes.
Fully Enclosed and Secure Structure and Accessory Structure.
Within a fully enclosed and secure structure that complies with the California Building Code, as adopted in the City of Live Oak, that has a complete roof enclosure supported by connecting walls extended from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments, is secure against unauthorized entry, and is accessible only through one or more lockable doors and accessible only to the owner or tenant. Walls and roofs must be constructed of solid materials that cannot be easily broken through such as two-inch by four-inch or thicker studs overlaid with three-eighths-inch or thicker plywood or the equivalent. Exterior walls must be constructed with nontransparent material. Plastic sheeting regardless of gauge, or similar products do not satisfy this requirement. If indoor grow lights or air filtration systems are used, they must comply with the California Building, Electrical and Fire Codes as adopted by the City of Live Oak.
Immature Plant.
A marijuana plant that has not begun to bloom or flower.
"Inside"
means inside a fully enclosed and secure structure or within a private residence.
"Licensee"
means the holder of any State-issued license related to marijuana activities, including, but not limited to, licenses issued under Division 10 of the Business and Professions Code.
"Manufacture"
means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product.
Marijuana.
"Marijuana" shall have the meaning set forth in the California Health and Safety Code Section 11018.
"Marijuana accessories"
means any equipment, products or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana or marijuana products into the human body.
"Marijuana products"
means marijuana that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing marijuana or concentrated cannabis and other ingredients.
Mature Plant.
A marijuana plant that has begun to bloom or flower, or that contains one or more blooms, flowers, or buds.
Outdoors.
Any location that is not "indoors" within a fully enclosed structure and secure structure as defined herein. For purposes of this chapter, cultivation within a "hoophouse" shall be considered outdoor cultivation.
Private Residence or Residence.
A house, an apartment unit, a mobile home or other similar dwelling.
"Sale"
includes any transaction whereby, for any consideration, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuana products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of marijuana or marijuana products by a licensee to the licensee from whom such marijuana or marijuana product was purchased.
Any term defined in this section also means the very term as defined in the California Business and Professions Code or the California Health and Safety Code, unless otherwise specified.
(Ord. 563 § 1, 2017)
Cultivation of marijuana outdoors is prohibited in all land use categories and zone districts within the City of Live Oak by any person owning, leasing, occupying, or having possession of any parcel or premises. A person may also not harvest, dry, or process marijuana plants outdoors in any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity.
(Ord. 563 § 1, 2017)
The use of any property within any zone in the City of Live Oak by any person owning, leasing, occupying, or having possession of any parcel or premises as a marijuana store, shop, dispensary, cooperative, or collective, is prohibited and shall be deemed unlawful. The establishment or operation of any business of commercial marijuana activity is prohibited in the City of Live Oak. The City also prohibits the manufacture, processing, laboratory testing, labeling, storing and wholesale and retail distribution of marijuana on any property, in any zone in the City of Live Oak. No use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for the establishment or operation of any such business or operation. Such prohibited businesses or operations may include, but are not limited to:
A. 
The transportation, storage, distribution, or sale of marijuana, marijuana products, or marijuana accessories;
B. 
The cultivation of marijuana;
C. 
The manufacturing or testing of marijuana, marijuana products, or marijuana accessories; or
D. 
Any other business licensed by the State or other government entity under Division 10 of the California Business and Professions Code, as it may be amended from time to time.
(Ord. 563 § 1, 2017)
It is declared to be unlawful and a public nuisance for any person owning, leasing, occupying or having charge or possession of any parcel or premises within any zoning district in the City to cultivate marijuana indoors except as provided for in this chapter. No person other than an individual 21 years of age or older may engage in the indoor cultivation of marijuana in the residential zone districts (R1 through R4) and in the UR Zone District, within the City of Live Oak, subject to the following limitations:
A. 
Marijuana may only be cultivated in an approved accessory structure to a private residence, located upon the grounds of a private residence that is fully enclosed and secure.
B. 
The primary use of the property shall be for a residence. Marijuana cultivation is prohibited as a home occupation.
C. 
All areas used for cultivation of marijuana shall comply with the definition of "indoors" as set forth in this chapter and in accordance with the Building Code adopted by the City.
D. 
Marijuana cultivation shall be limited to six living marijuana plants (including both mature and immature plants) on the grounds of a private residence in an approved accessory structure notwithstanding the number of individuals living in or about the private residence.
E. 
The marijuana plants shall be in a locked space.
F. 
The marijuana plants shall be not visible by normal unaided vision from a public place.
G. 
The accessory structure must be completely detached from any residence or other structure used or intended for human occupancy. The structure shall have a complete roof enclosure supported by connecting walls extending from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments. The structure shall be secure against unauthorized entry, and accessible only through one or more lockable doors. Walls and roofs must be constructed of solid materials that cannot be easily broken through, such as two-inch by four-inch or thicker studs overlaid with three-eighths inch or thicker plywood or equivalent. Exterior walls must be constructed with nontransparent material. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement.
H. 
Any accessory structure, regardless of square footage, constructed, altered or used for the cultivation of marijuana must obtain a building permit from the Building Official. The intended use for marijuana cultivation shall be disclosed in the application for building permit, and the accessory structure shall be inspected for compliance with this chapter prior to the commencement of any cultivation. The conversion of any existing accessory structure, or portion thereof, for cultivation of marijuana shall be subject to these same permit requirements, and must be inspected by the Building Official for compliance with this chapter prior to the commencement of any cultivation. Cultivation within any accessory structure may not commence without final approval of the Building Official.
I. 
The maximum electrical panel for the accessory structure shall be 50 amps. Except for temporary use in case of emergency power loss, the use of generators to supply power to any system or activities associated with marijuana is prohibited.
J. 
Light systems utilized in connection with marijuana cultivation shall not exceed 1,200 watts and shall be shielded, including adequate coverings on windows, so as to confine light and glare to the interior of the structure.
K. 
The accessory structure shall be equipped with odor control filtration and ventilation system(s) adequate to prevent marijuana plant odors from exiting the interior of the structure.
L. 
The accessory structure shall have locking doors and a working security system which shall consist of a standard audible residential alarm of at least 90 dBA, but not exceeding 110 dBA.
M. 
The marijuana cultivated pursuant to this section shall be for the personal use only of an individual or individuals residing on the property and may not be distributed to any other person, collective, cooperative or dispensary.
N. 
No person shall reside inside the accessory structure.
O. 
The residential structure on the same premises as the accessory structure shall remain at all times a residence, with legal and functioning cooking, sleeping, and sanitation facilities with proper ingress and egress.
P. 
Cultivation of marijuana in any other zone district other than those listed in this section is prohibited.
Q. 
The use of flammable or combustible products, including, but not limited to, propane and butane, for cultivation and processing is prohibited.
R. 
Each accessory structure in which the marijuana is cultivated shall meet the same front, interior side and street side yards required by the applicable zone district, and one-half the required rear yard.
S. 
The approved accessory structure must be set back at least five feet from all boundaries of the premises. Such setback distance shall be measured in a straight line from the structure in which the marijuana is cultivated to the boundary line of the premises.
T. 
This section is otherwise subject to any and all other restrictions imposed by California Health and Safety Code Section 11362.2.
(Ord. 563 § 1, 2017)
Any cultivation, processing or distribution of marijuana which takes place in violation of any provision of this chapter is unlawful, and is hereby declared a public nuisance and is subject to all enforcement actions pursuant to Chapter 14.08 of the Live Oak Municipal Code.
(Ord. 563 § 1, 2017)