City of Indian Wells

44-950 Eldorado Drive,
Indian Wells

12/15/2016

File #: ORD-130-16 Item #: A.

Ordinance to Establish Regulations and Permit Procedures for Residential
Indoor Marijuana Cultivation
RECOMMENDED ACTION:
Council ADOPTS Ordinance by title only and waives further reading, amending Title 8 of the Indian
Wells Municipal Code by adding Chapter 8.46 entitled Residential Indoor Marijuana Cultivation.

City of Indian Wells

Page 1 of 1

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Printed on 12/8/2016

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 ORDINANCE NO.___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF INDIAN
WELLS, CALIFORNIA, AMENDING TITLE 8 OF THE INDIAN WELLS
MUNICIPAL CODE BY ADDING CHAPTER 8.46 ENTITLED
“RESIDENTIAL INDOOR MARIJUANA CULTIVATION”
WHEREAS, the City of Indian Wells, California (the “City”) is a municipal
corporation, duly organized under the constitution and laws of the State of California;
and
WHEREAS, California Government Code section 65800 et seq. authorizes the
adoption and administration of zoning laws, ordinances, rules and regulations by cities as
a means of implementing the General Plan; and
WHEREAS, the City passed Ordinance No. 696 on October 12, 2016; and
WHEREAS, Ordinance No. 696 was adopted to bring the City into full compliance
with Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA”)
and to regulate the personal, medical, and commercial use of marijuana pursuant to local
authority preserved in the AUMA; and
WHEREAS, the AUMA would make it lawful for those individuals to “possess,
plant, cultivate, harvest, dry, or process not more than six living marijuana plants and
possess the marijuana produced by the plants”; and
WHEREAS, the AUMA would authorize cities to “reasonably regulate” without
completely prohibiting cultivation of marijuana 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”; and
WHEREAS, the AUMA would authorize cities to completely prohibit outdoor
cultivation on the grounds of a private residence, up to and until a “determination by the
California Attorney General that nonmedical use of marijuana is lawful in the State of
California under federal law”; and
WHEREAS, many AUMA provisions took effect on November 9, 2016, including
the ability to cultivate marijuana inside a private residence or accessory structure; and
WHEREAS, the indoor cultivation of marijuana has
the health and safety of the occupants; including structural
to increased moisture and excessive mold growth which can
fire and electrocution; additionally, the use of pesticides
chemical contamination within the structure; and

potential adverse effects to
damage to the building due
occur and can pose a risk of
and fertilizers can lead to

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Attachment #1

 WHEREAS, based on the experiences of other cities, these negative effects on
the public health, safety, and welfare are likely to occur, and continue to occur, in the
City due to the establishment and operation of marijuana cultivation, processing, and
distribution uses; and
WHEREAS, the City believes a Recreational Indoor Marijuana Cultivation permit
is a reasonable requirement to ensure that all marijuana grown in the City is grown in
code-compliant structures that reduce the risk of fire, mold, or other structural damage
and contamination;
WHEREAS, the City has determined a Recreational Indoor Marijuana Cultivation
permit is necessary to the public health, safety, and welfare in the City; and
WHEREAS, this Ordinance would add Chapter 8.46 to the Indian Wells Municipal
Code to establish permitting regulations to allow for indoor cultivation of marijuana in a
private residence or accessory structure thereto in a manner that will ensure any
cultivation is safe, secure, and does not create a public nuisance to others living in the
City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIAN
WELLS, DOES ORDAIN AS FOLLOWS:
SECTION 1. Chapter 8.46 entitled “Residential Indoor Marijuana Cultivation” is
hereby added to Title 8 “Health and Sanitation” of the Indian Wells Municipal Code, and
shall read in its entirety as follows:
“Chapter 8.46
RESIDENTIAL INDOOR MARIJUANA CULTIVATION
Sections:
8.46.010
8.46.020
8.46.030
8.46.040
8.46.050
8.46.060
8.46.070
8.46.080
8.46.090
8.46.100

Purpose
Definitions
Applicability
Review and Appellate Authority
Application and Notice
Findings
Expiration and Renewals
Suspension and Termination
Subsequent Applications
No Sale or Transfer

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 8.46.010

Purpose.

The purpose of this chapter is to prescribe the requirements for Residential Indoor
Marijuana Cultivation (“RIMC”) and detail the process and requirement for permitting
such use. Hereafter referred to as an “RIMC Permit”, this Chapter is intended to serve
as an instrument of the City’s reasonable regulation of residential indoor marijuana
cultivation as provided by California Health and Safety Code, Section 11362.2(b)(1) and
further detailed in this Municipal Code under Chapter 21.90.
8.46.020

Definitions.

“Cultivation” means the marijuana cultivation process including, but not limited to,
planting, harvesting, drying, processing, or maintenance activities.
“Cultivation area” includes the area where marijuana plants are cultivated, cultivationrelated materials and supplies are stored, and any marijuana processed from the
cultivation in excess of 28.5 grams is kept in a locked space not visible from a public
place.
“Day care” means a facility, center, or home requiring a license that is issued by the
State of California which provides for the care, health, safety, supervision, or guidance
of a child’s social, emotional, and educational growth on a regular basis, in a place
other than the child’s own home, or any facility meeting the definition of California
Health and Safety Code Section 1596.76
“Directly engage” in cultivation means to handle the marijuana plants in the cultivation
process.
“Group Home” means any community care facility regulated and licensed by a Federal
and/or State agency. Unlicensed community care facilities or those community care
facilities the regulation of which is not otherwise preempted by State or Federal law
shall not constitute group homes.
“Indirectly engage” in cultivation means to assist, even if not handling marijuana plants,
in the cultivation process.
“Personal Use” means to possess, use, or give away to persons 21 years of age or older
without any compensation whatsoever.
“Residence” means a private residence such as a house, apartment unit, mobile home,
or similar dwelling.

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 “Youth Center” means any public or private facility that is primarily used to host
recreational or social activities for minors, including, but not limited to, private youth
membership organizations or clubs, social service teenage club facilities, video arcades,
or similar amusement park facilities
8.46.030

Applicability.

(a)
A person may directly or indirectly engage in residential indoor marijuana
cultivation only after obtaining and maintaining a valid RIMC permit from the City of
Indian Wells.
(b)
An RIMC Permit authorizes:
1.
Only one person,
2.
To directly or indirectly engage in residential indoor marijuana
cultivation for personal use,
3.
At only one residence, and
4.
Within only the authorized cultivation area at the residence.
(c)
A RIMC Permit does not authorize:
1.
Construction or improvements of any structure,
2.
A property-at-large for marijuana cultivation,
3.
The permit holder or any others to engage in any activity licensed
by the State of California under Division 10 of the Business and
Professions Code, or
4.
The following people to directly or in directly engage in residential
indoor marijuana cultivation:
(a)
The permit holder’s family members,
(b)
Cohabitants,
(c)
Guests,
(d)
Future residents, or
(e)
Any other person other than the permit holder.
(d)
A person may not hold more than one RIMC Permit at a time. Multiple permit
holders may be authorized to engage in residential indoor marijuana cultivation at the
same residence, but a residence must include no more than one cultivation area, and
no residence may cultivate more than six plants in total, regardless of how many permit
holders are present.
8.40.040

Review and Appellate Authority.

(a)
Applications for a RIMC Permit will be processed and reviewed by the Community
Development Director or his or her designee. The Community Development Director
may approve or deny an application based on the findings provided in section 8.46.060.
(b)
A decision by the Community Development Director may be appealed to the City
Manager or his or her designee by the following parties within 15 days after receipt of
the Community Development Director’s final decision:

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 1.
2.
8.46.050

The applicant,
Owners or residents of the property.

Application and Notice.

(a)
The Community Development Director may approve the forms and submittal
materials required for a complete application.
(b)
The City Council may by resolution require an application fee.
(c)
The City will provide written notification of the complete application to the
applicant, indicating whether the application has been approved or denied.
8.46.060

Findings.

The Community Development Director or his or her designee may approve an
application for an RIMC Permit if the following findings are made:
(a).

Applicant:
The applicant must:
1.
Be 21 years of age or older.
2.
Complete a Live Scan with the California Department of Justice, at
the applicant’s own cost.
3.
Have no felony convictions for the illegal possession for sale,
manufacture, transportation, or cultivation of a controlled
substance within the last five years,
4.
Have no pending code enforcement actions with the City, and
5.
Have no outstanding payments due to the City.
6.
Show proof of fee title ownership or other proof of ownership, or
provide a signed, notarized affidavit of any landlord or property
owner other than the applicant that acknowledges and grants
permission for cultivation to occur on the property.

(b).

Residence:
1.
2.
3.

The residence must be the primary dwelling of the applicant.
The residence must not include more than one cultivation area.
The residence must not be used for any of the following activities:
(i)
Day care,
(ii)
Youth center,
(iii)
Group Homes, and
(iv)
Any facility that does not allow cultivation of marijuana by
law or policy.

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 (c).

Cultivation Area:
1.

Location and Use
(i)
The cultivation area must be located within the residence or
within an accessory structure. The residence, accessory
structure, and all plumbing, electrical, and other utilities
must be properly permitted by the City or appropriate
regulatory agency.
(ii)
The cultivation area must be used exclusively for residential
indoor marijuana. The cultivation area may not be shared
with any space used for sleeping, cooking, eating, bathing,
or other residential activities.
(iii)
The cultivation area must not be used or prepared in a
manner to cultivate more than six marijuana plants.
(iv)
The following chemicals may not be used or stored in the
cultivation area, and if stored elsewhere in the home must
be stored in leak and fireproof containers sufficient to
provide storage up to required safety standards:
1.
Explosive gases, including, but not limited to: Butane,
Propane, Xylene, Styrene, Gasoline, Kerosene,
Oxygen (O2), Carbon dioxide (CO2) or Hydrogen
(H2).
2.
Dangerous poisons, toxins, or carcinogens, including,
but not limited to: Methanol, Iso-propul Alcohol,
Methylene Chloride, Acetone, Benzene, Toluene, or
Tri-chloro-ethylene.

2.

Access and Security
(i)
(ii)
(iii)

(iv)

The cultivation area must be accessible by only one lockable
door. Any windows, skylight, ventilation, or other opening
must be lockable.
Access to the cultivation area must be restricted to the
applicant or other permit holders authorized for the
cultivation area.
The cultivation area must not be visible from anywhere
outside the residence. Any windows, skylight, ventilation, or
other opening must be sufficiently covered or opaque as to
obscure visibility of the cultivation area from any adjacent
property.
The cultivation area must not produce odors, sounds, or
other emissions that are sensible from adjacent properties
and may indicate marijuana cultivation.

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 3.

Required Inspection
(i)

(ii)
8.46.070
(a)

Prior to the issuance or renewal of any RIMC Permit, an
inspection of the cultivation area shall be conducted by City
Staff including, but not limited to, Code Enforcement,
Building, and Fire officials at the City’s discretion.
A RIMC Permit expires, if not renewed, one year from the
date of approval.

Expiration and Renewal.

A RIMC Permit may be renewed, if prior to the expiration, the permit holder:
1.
Completes forms and submittal materials for renewal as required by
the Community Development Director or his/her designee;
2.
The permit holder passes an inspection approved by the
Community Development Director; and
3.
Pays a renewal fee as approved by resolution by the City Council.

8.46.080

Suspension and Termination.

(a)
The City may suspend or terminate a RIMC Permit at any time for failure to
comply with applicable governing regulations.
(b)
If a RIMC Permit is suspended, the suspension will be effective and the permit
holder’s marijuana crop may be impounded until the permit holder:
1.
Demonstrates compliance with the applicable governing
regulations, and
2.
Pays a fine as set forth in section 8.46.080(d).
(c)
If a RIMC Permit is terminated, the permit holder’s marijuana crop may be
impounded. The permit holder may not apply for another RIMC Permit until the permit
holder pays a fine as set forth in section 8.46.080(d).
(d)
Violations of any terms of an RIMC Permit is hereby deemed a violation of the
Municipal Code and may be subject to Administrative Citation, that may escalate with
successive violations, as detailed further in Chapter 8.08 of this Municipal Code.
(e)
A suspension or termination of a RIMC Permit may be appealed to the City
Manager or his or her designee by the permit holder.
8.46.090
(a)

Subsequent Applications.

Application for a Different Residence
1.
If a permit holder applies for a RIMC Permit for a residence other
than specified on the existing permit, the existing RIMC Permit will
be suspended upon application for the new permit.

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 (i)

2.
3.
4.

Where practicable, the address for the existing RIMC
Permit residence will be inspected to confirm removal
of cultivation.
If the application is approved, the existing RIMC Permit is
rescinded.
If the application is denied, the existing RIMC Permit is reinstated.
If the applicant appeals a denial of the application, the existing
RIMC Permit remains suspended until a final decision is reached.

(b)

Application for a Different Cultivation Area in the Same Residence
1.
If a permit holder applies for a RIMC Permit for the residence on
the existing permit, but for cultivation area other than specified on
the existing permit, the existing permit will terminate upon
approval of the application.

(c)

Application for Same Cultivation Area in Same Residence
1.
If another individual applies for a RIMC Permit for the same
cultivation area, no permit will be issued if the existing permit has
been terminated or suspended. An additional RIMC Permit for the
same cultivation area shall only be issued if all Permits related to
that cultivation area remain in good standing with the City.

8.46.100

No Sale or Transfer. An RIMC Permit may not be sold or transferred.”

SECTION 2.
SEVERABILITY.
If any section, subsection, subdivision,
paragraph, sentence, clause or phrase of this ordinance, or any part thereof is for any
reason held to be unconstitutional, such decision shall not affect the validity of the
remaining portion of this ordinance or any part thereof. The City Council hereby declares
that it would have passed each section, subsection, subdivision, paragraph, sentence,
clause or phrase thereof, irrespective of the fact that any one or more section, subsection,
subdivision, paragraph, sentence, clause or phrase be declared unconstitutional.
SECTION 3. EFFECTIVE DATE. This Ordinance shall take effect and be in force
30 days after passage.
SECTION 4. PUBLICATION. The City Clerk is directed to publish this Ordinance
within the manner and in the time prescribed by law.

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 PASSED, APPROVED, AND ADOPTED by the City Council of the City of Indian
Wells, California, at a regular meeting held on this 17th day of November, 2016.

___________________________
DANA W. REED
MAYOR
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
CITY OF INDIAN WELLS )

ss.

CERTIFICATION FOR ORDINANCE NO. ____
I, Anna Grandys, City Clerk of the City Council of the City of Indian Wells, California, DO
HEREBY CERTIFY that Ordinance No. ____, having been regularly introduced at the
meeting of November 17, 2016, was again introduced, the reading in full thereafter
unanimously waived, and duly passed and adopted at a regular meeting of the City
Council held on this 15th day of December, 2016, and said Ordinance was passed and
adopted by the following stated vote, to wit:
AYES:
NOES:
and was thereafter on said day signed by the Mayor of the City of Indian Wells.
ATTEST:

APPROVED AS TO FORM:

_________________________________
ANNA GRANDYS
CITY CLERK

________________________________
STEPHEN P. DEITSCH
CITY ATTORNEY

25

 RESOLUTION NO. 2016-__
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIAN
WELLS, CALIFORNIA, ESTABLISHING FEES FOR RESIDENTIAL
INDOOR MARIJUANA CULTIVATION PERMITTING AND FINDING
THIS ACTION EXEMPT FROM CALIFORNIA ENVIROMENTAL
QUALITY ACT
WHEREAS, the City of Indian Wells adopted Ordinance No. 698 modifying Title 8
of the Indian Wells Municipal Code by adding Chapter 8.46 relating to Residential Indoor
Marijuana Cultivation (“RIMC”) Permitting; and
WHEREAS, Section 8.46.030 of the Indian Wells Municipal Code authorizes the
City Council to establish permitting fees for the processing of RIMC permits; and
WHEREAS, Government Code section 66018 provides prior to adopting certain
fees the City must provide notice and conduct a public hearing; and
WHEREAS, on December 5, 2016 a duly noticed public hearing was held by the
City Council.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Indian
Wells as follows:
SECTION 1. Fee Adoption. The City Council hereby ESTABLISHES the fee for
processing of Residential Indoor Marijuana Cultivation Permitting as set forth in the
attached Exhibit “A” which is incorporated herein by this reference.
SECTION 2. Severability. If any provision, clause, sentence or paragraph of this
Resolution or the application thereof to any person or circumstances shall be held invalid,
such invalidity shall not affect the other provisions of this Resolution, which can be given
effect without the invalid provision or application and, to this end, the provisions of this
Resolution are hereby declared to be severable.
SECTION 3. CEQA. This Resolution does not commit the City to any action that
may have a significant effect on the environment and qualifies as being Categorically
Exempt from California Environmental Quality Act pursuant to Section 15060(c)(2). As a
result, such action does not constitute a project subject to the requirements of the
California Environmental Quality Act. The City Clerk of the City of Indian Wells is
authorized and directed to file a Notice of Exemption with the appropriate official of the
County of Riverside, California, within five (5) days following the date of adoption of this
Resolution.
SECTION 4. Effective Date. This Resolution shall take effect upon its adoption or
upon the effective date of Ordinance No. 698, whichever date occurs later.

Attachment #1

213

 City of Indian Wells
Resolution No. 2016-___
Page 2

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Indian
Wells, California, at a regular meeting held on this 15th day of December, 2016.

____________________________
RICHARD BALOCCO
MAYOR

CERTIFICATION FOR RESOLUTION NO. 2016-__
I, Anna Grandys, City Clerk of the City of Indian Wells, California, DO HEREBY CERTIFY
that the whole number of the members of the City Council is five (5); that the above and
foregoing Resolution was duly and regularly passed and adopted at a regular meeting of
the City Council of the City of Indian Wells on the 17th day of November, 2016, by the
following vote:
AYES:
NOES:
ATTEST:

APPROVED AS TO FORM:

______________________________
ANNA GRANDYS
CITY CLERK

____________________________
STEPHEN P. DEITSCH
CITY ATTORNEY

214

 City of Indian Wells
Resolution No. 2016-___
Page 3

EXHIBIT “A”
Residential Indoor Marijuana Cultivation Permit
Live Scan Application/Processing - 0.375 hrs.
Issue Permit/Inspection Schedule - 0.75 hrs.
Payment/Accounting - 0.25 hrs.
On-Site Inspection - 1.00 hrs.
TOTAL PERMIT FEE

=
=
=
=

$21.22
$42.44
$11.81
$65.83
$141.30

215