Antioch City Council to Tackle Possible Prohibition-Regulation of Medical Marijuana Cultivation

On Tuesday, the Antioch City Council will direct staff on whether or not to develop an ordinance or prohibition on medical marijuana cultivation.

This is in response to the State of California adopting AB 266, the “Medical Cannabis Regulation and Control Act”, which comprehensively addresses several aspects of the medical use of marijuana, including its cultivation. The measure has been signed into law by Governor Brown.

The City of Antioch has until March 1, 2016 to adopt an ordinance. If they do not, then local prohibition/regulation will be precluded, and the State will have exclusive jurisdiction. However, the law does provide that the State will not issue a license for the cultivation of medical marijuana if a local agency has prohibited cultivation, or adopted regulations, prior to March 1, 2016.

According to the Staff report, Proposition 215 establishes guidelines for the number of plants for a user of medical marijuana which is six mature plants or 12 immature (without buds) plants.

In July, the Oakley City Council failed to act on an “urgency Marijuana Grow Ordinance” and is expected to bring the ordinance back in early 2016 for discussion.

According to the Staff Report:

It may be prudent for cities to adopt their own ordinances. If, after the adoption of the new State rules, a city finds those rules to be acceptable, it could rescind its ordinance and then merely rely on State oversight and regulation.

The cultivation and use of medical marijuana raises many issues.

• Some concerns involve moral issues and the half-century of the “War on Drugs” from the Federal Government. There are also societal issues of how the widespread use of drugs will affect society in general.
• marijuana plants emit an odor while growing that neighbors may find offensive, with subsequent complaints to the city to deal with the problem.
• marijuana plants under cultivation may be attractive to burglars wishing to steal them, possibly leading to violence between the burglar and the owner.
• Cultivation for sale is, and continues to be, illegal under state law.
• Given the issues of odor nuisance and possible criminal activity, cities may wish to consider prohibiting the outdoor cultivation of marijuana, or of limiting the number and location of plantings and require secured areas for cultivation.
• Prohibiting cultivation would be relatively straightforward but may raise substantial objection from some members of the community. Prohibition may also be somewhat difficult on individuals using marijuana for medical purposes, but the law presently does allow cities to make that choice.
• The remainder of this report discusses possible regulations for cultivation if Antioch were to choose regulation rather than prohibition. Our neighboring City of Oakley is currently considering a regulation ordinance.
• Number of plants. Proposition 215 established guidelines for the number of plants that it would be reasonable for a user of medical marijuana to have. That number is six mature plants or 12 immature (those without buds) plants. (California Norml Website, “Patient’s Guide to Medical Marijuana in California.”)
• Property line setbacks. It would appear to be reasonable, for odor control purposes, to establish a minimum setback from all property lines for plantings. A 10-foot setback would be feasible for many typical lots, although not a guarantee to resolve odor complaints.
• Security. It would also appear to be reasonable to require six-foot high fencing around the yards where cultivation occurs, along with locking gates.
• Private enforcement. Allowing private individuals to seek judicial remedies against cultivators who are creating odor nuisances would relieve the City of becoming involved in such subjective issues.
• Permit requirement. A simple permit process which outlines the regulations could be adopted. If complaints were received by the City regarding numbers of plants or violation of setback, inspections could occur. If the cultivator refused to allow an inspection, then the permit could be revoked. When the issue of prohibition is under consideration, objections have been heard that prohibiting cultivation when “plants are already in the ground” would be an unconstitutional taking of property. However, cannabis is an annual plant, going through its entire life cycle within a year. Most plants go through their entire life cycle in 4 – 10 months (The Daily Smoker, Aug. 3, 2015). Thus if an ordinance were adopted in December or January, that would be before the normal planting season and would not trigger the “plants in the ground” objection.
  
  OPTIONS The City Council appears to have the following options:

1. Do Nothing. If the City Council does not adopt an ordinance prior to March 1, 2016, Antioch will have no jurisdiction over medical marijuana cultivation and the State will simply enforce its own regulations in our City.
2. Adopt a prohibition ordinance. The City Council could adopt an ordinance prohibiting the cultivation of marijuana.
3. Adopt a regulation ordinance. The City Council could adopt an ordinance regulating the cultivation of medical marijuana. The types of regulations that could be included in such an ordinance have been discussed above. Staff requests that the Council discuss this matter and provide direction to staff so that if an ordinance is desired, one can be drafted to suit the policy directives of the Council.

If you go:
Tuesday November 24, 2015
Antioch City Council Meeting
7:00 pm
200 H Street, Antioch CA