A. Current County Marijuana Restrictions
On December 13, 2011, the Board of Supervisors adopted Ordinance SCC 2011-04, an amendment to the Zoning Plan, to prohibit in the unincorporated area of the County the operation of Medical Marijuana Dispensaries, as that term is defined in Ordinance SCC 2011-04.
On January 28, 2014, the Board of Supervisors adopted Ordinance SCC 2014-02, an amendment to the Zoning Plan, to regulate the cultivation of marijuana in the unincorporated area of the County. That ordinance contains the following general restrictions on the cultivation of marijuana: (1) Outdoor cultivation is prohibited; (2) Cultivation within a residence or other structure used or intended for human occupancy is prohibited; (3) Cultivation may only occur within a detached residential accessory structure and may not exceed twelve plants. The cultivation within a detached residential accessory structure must also comply with various other requirements.
Ordinance SCC 2014-02 was subject to a referendum and was approved by the Shasta County electorate at the November 2014 election. On February 2, 2016, after the State of California passed the Medical Marijuana Regulation & Safety Act, the Board of Supervisors adopted Ordinance SCC 2016-01, to require a zoning permit for the cultivation of marijuana in detached structures accessory to residences, and to explicitly prohibit the delivery of medical marijuana by dispensaries in the unincorporated area of the County.
B. The Adoption of the Adult Use of Marijuana Act
On November 8, 2016, the California electorate approved Proposition 64, known as the “Adult Use of Marijuana Act” or “AUMA.” The AUMA, among other things, establishes new laws relating to the personal cultivation of marijuana and to commercial marijuana activity.
1. The AUMA Provisions on Personal Cultivation
As related to personal cultivation of marijuana, the AUMA provides, in pertinent part: (1) It shall not be a violation of state or local law, for persons 21 years of age or older to possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants. Health and Safety Code §11362.1(a)(3). This shall be referred to as "Personal Cultivation."; (2) A city, county, or city and county may enact and enforce reasonable regulations to reasonably regulate Personal Cultivation. Health & Safety Code § 11362.2(b)(1); (3) however, no city, county, or city and county may completely prohibit Personal Cultivation inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure. Health & Safety Code § 11362.2(b)(2); (4) a city, county, or city and county, may completely prohibit Personal Cultivation outdoors upon the grounds of a private residence. Health & Safety Code § 11362.2(b)(3). However, this ability to prohibit outdoor Personal Cultivation will cease upon a determination by the California Attorney General that nonmedical use of marijuana is lawful in the State of California under federal law, and any complete County prohibitions on outdoor Personal Cultivation are deemed repealed upon the date of such determination by the California Attorney General. Health & Safety Code § 11362.2(b)(4).
2. The AUMA Provisions on Commercial Marijuana Activity
The AUMA establishes a comprehensive system to control and regulate the cultivation, distribution, transport, storage, manufacturing, processing, and sale of nonmedical marijuana and marijuana products for adults 21 years of age and over. Some of the pertinent provisions are summarized as follows: (1) It designates the State Department of Consumer Affairs (DCA) to serve as the lead regulatory agency for all marijuana, both nonmedical and medical; (2) it designates the Department of Public Health (DPH) to oversee testing and manufacturing for all marijuana, while the Department of Food & Agriculture (DFA) will oversee cultivation (3) it requires the DCA, DPH, and DFA, by January 1, 2018, to develop and issue licenses for commercial marijuana activity, which includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, delivery, or sale of marijuana and marijuana proposition; (4) it prohibits the retail sale of marijuana by businesses that sell alcohol or tobacco; (5) it permits licensed businesses, subject to local approval, to sell nonmedical marijuana for the purposes of on-site consumption by adults. Those businesses may not sell or permit the consumption of alcohol or tobacco; (6) it permits licensed retailers to deliver nonmedical marijuana to adult customers, subject to local approval. The AUMA also contains the following “Local Control” provisions.
(1) Nothing in the AUMA relating to the state licensing of commercial marijuana activity shall be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under the AUMA including, but not limited to, local zoning and land use requirements, business license requirements, and requirements relating to reducing exposure to second hand smoke, or to completely prohibit the establishment or operation of one or more types of businesses licensed under the AUMA within the local jurisdiction. Business & Professions Code § 26200(a).
(2) a local jurisdiction may allow for the smoking, vaporizing, or ingesting of marijuana or marijuana products on the premises of a retailer or a microbusiness licensed under the AUMA by the State if: (a) access to the area where marijuana consumption is allowed is restricted to persons 21 years of age and older; (b) marijuana consumption is not visible from any public place or non-age restricted area; and (c) sale or consumption of alcohol or tobacco is not allowed on the premises. Business & Professions Code § 26200(d).
(3) a local jurisdiction may establish standards, requirements, and regulations regarding health and safety, environmental protection, testing, security, food safety, and worker protections in addition to those established by the State. Business & Professions Code § 26201.
(4) a local jurisdiction shall not prevent transportation of marijuana or marijuana products on public roads by a licensee transporting marijuana or marijuana products in compliance with AUMA provisions relating to the state licensing of commercial marijuana activity. Business & Professions Code § 26080. While the County may prohibit the commercial delivery of marijuana to customers located within the County’s jurisdiction, the County may not prohibit the transport of marijuana through the County to another jurisdiction by a licensee transporting marijuana or marijuana products in compliance with the AUMA provisions.
C. Proposed Amendments to the Shasta County Zoning Plan
In light of the passage of the AUMA, and adverse impacts associated with the cultivation and distribution of marijuana as stated in previous findings by the Board of Supervisors in Shasta County Code sections 17.88.310 and 17.88.320, amendments to the Shasta County Zoning Plan to regulate the cultivation of marijuana and to regulate commercial marijuana activity in the unincorporated area of the County should be considered, in furtherance of the public necessity, convenience, and general welfare.
Some of the proposed amendments to consider include, but are not limited to: (1) Continuing to prohibit outdoor cultivation of marijuana for medical and nonmedical purposes; (2) requiring a permit for cultivation of marijuana for medical and nonmedical purposes within a private residence as well as within an accessory structure; (3) distinguishing a six plant limit for cultivation for nonmedical purposes from the twelve plant limit for medical purposes; and (4) prohibiting commercial marijuana activity.
Pursuant to Section 17.92.080 of the Shasta County Code, potential amendments to the Shasta County Zoning Plan may be initiated by the Board’s adoption of a resolution of intent to consider amendments to the Shasta County Zoning Plan. The attached resolution is designed to comply with this requirement.
Adoption of the resolution does not commit the Board to approve any proposed amendments or otherwise commit the Board to any particular course of action.
After adoption of the resolution, the Shasta County Department of Resource Management will study the matter, propose amendments to the Shasta County Zoning Plan, and submit any proposed amendments to the Shasta County Planning Commission, in accordance with section 17.92.080 of the Shasta County Code, for the Planning Commission’s consideration. The Planning Commission would then make a recommendation to the Board concerning any such proposed amendments.