HomeMy WebLinkAboutCC_2016-01-19_Agenda Packet SP
SPECIAL MEETING
CITY OF ATASCADERO
CITY COUNCIL
Tuesday, January 19, 2016
5:00 p.m.
City Hall Council Chambers, 4th Floor
6500 Palma Ave, Atascadero, California
(Enter from Lewis Ave.)
ROLL CALL:
PUBLIC HEARING:
1. Ordinance Repealing Chapter 5-13 Regarding Medical Marijuana Facilities
and Adding Section 9-6.186 to Title 9 of the Atascadero Municipal Code
Prohibiting Marijuana Cultivation Facilities, Marijuana Dispensaries,
Commercial Cannabis Activities, and Medical Marijuana Deliveries
Ex-Parte Communications:
Fiscal Impact: None
Recommendation:
The Planning Commission recommends:
Council introduce for first reading, by title only, the Draft Ordinance
repealing Municipal Code 5-13 regarding Medical Marijuana Facilities and
adding Section 9-6.186 to Title 9 of the Municipal Code prohibiting
marijuana cultivation facilities, marijuana dispensaries, commercial
cannabis activities and medical marijuana deliveries. [Community
Development]
ADJOURNMENT:
The Council will adjourn to the Joint Special Meeting of the City Council and Planning Commission
to follow at 6:00 p.m.
STATE OF CALIFORNIA )
COUNTY OF SAN LUIS OBISPO )
CITY OF ATASCADERO )
LORI M. KUDZMA, being fully sworn, deposes, and says: That she is the Deputy City Clerk of the
City of Atascadero and that on January 12, 2016, she caused the above Notice to be posted at the
Atascadero City Hall, 6500 Palma Avenue, Atascadero, California and was available for public review in the
Customer Service Center at that location.
LORI M. KUDZMA, Deputy City Clerk
City of Atascadero
ITEM NUMBER: 1
DATE: 01/19/16
Atascadero City Council
Staff Report - Community Development Department
Ordinance Repealing Chapter 5-13 Regarding
Medical Marijuana Facilities and Adding Section 9-6.186 to Title 9
of the Atascadero Municipal Code Prohibiting Marijuana
Cultivation Facilities, Marijuana Dispensaries, Commercial
Cannabis Activities, and Medical Marijuana Deliveries
RECOMMENDATION:
The Planning Commission recommends:
Council introduce for first reading, by title only, the Draft Ordinance repealing Municipal
Code 5-13 regarding Medical Marijuana Facilities and adding Section 9-6.186 to Title 9
of the Municipal Code prohibiting marijuana cultivation facilities, marijuana
dispensaries, commercial cannabis activities and medical marijuana deliveries.
DISCUSSION:
Background
Atascadero currently prohibits medical marijuana facilities, which are defined as fixed or
mobile facilities where medical marijuana is made available to one or more pr imary
caregivers, qualified patients, or people with an identification card, as those terms are
defined in state law. (Mun. Code § 5-13.103.) Atascadero also prohibits the delivery of
medical marijuana to any person within the City limits, except for the delivery of medical
marijuana by a primary caregiver to a qualified patient. (Mun. Code § 5 -13.103.) The
validity of these prohibitions is beyond dispute. The California Supreme Court ruled
unanimously in City of Riverside v. Inland Empire Patients Health and Wellness Center,
Inc. (2013) 56 Cal.4th 729, that the Compassionate Use Act (Proposition 215) (“CUA”)
and the Medical Marijuana Program Act of 2004 (“MMPA”) do not preempt local
ordinances that completely and permanently ban medical marijuana facil ities.
On December 15, 2015, the Atascadero Planning Commission reviewed the draft
ordinance and voted unanimously to recommend the Council adopt it as proposed.
ITEM NUMBER: 1
DATE: 01/19/16
Analysis
On September 11, 2015, the California Legislature passed three bills that create a
broad state regulatory and licensing system governing the cultivation, testing, and
distribution of medical marijuana, the manufacturing of marijuana products, and
physician recommendations for medical marijuana. Governor Brown signed the three
bills, Assembly Bills 243 and 266 and Senate Bill 643, on October 9, 2015. The new
legislation preserves local control over marijuana facilities and land uses, including the
authority to prohibit dispensaries and other medical marijuana businesses completely.
There is however, a provision in the new legislation that requires immediate
consideration by Atascadero. Business and Professions Code section 11362.777(c)(4),
enacted as part of AB 243, provides that if a city or county does not have a land use
ordinance or regulation that either regulates or prohibits medical marijuana cultivation,
either expressly or otherwise under principles of permissive zoning (any use not listed is
deemed prohibited), or chooses not to implement a regulatory scheme by March 1,
2016, the state shall become the sole licensing authority for cultivation in that
jurisdiction. In that situation, a marijuana cultivation site may not be subject to local
enforcement.
Conclusion
The City does not have express regulations regarding marijuana cultivation, but
consistently has taken the position that the Zoning Code prohibits all medical marijuana
businesses, either expressly under Chapter 5-13 or under permissive zoning principles.
The proposed ordinance will continue that policy and consolidate all potential marijuana
businesses in express terms as part of the City’s land use regulations (Title 9), thus
eliminating any potential argument under AB 243, however meri tless, that the City does
not have a land use ordinance regulating marijuana cultivation. This approach will also
avoid having multiple references in the Municipal Code to marijuana.
The proposed ordinance would expressly prohibit medical marijuana cultivation facilities
throughout all zones of the City. The proposed definition of medical marijuana
cultivation facilities includes cultivation by individuals at their private residences. The
Court of Appeal in Maral v. City of Live Oak (2012) 221 Cal.App.4th 975, upheld an
identical complete ban on cultivation activities. The City, of course, has discretion to
create exceptions to the definition as deemed appropriate.
FISCAL IMPACT:
The proposed ordinance represents a continuation of existing enforcement policies
regarding medical marijuana facilities, so there would be no change in the fiscal impact
for the City.
ITEM NUMBER: 1
DATE: 01/19/16
ALTERNATIVES:
1. Continue the item with specific direction for staff to return with additional information
or alternative solutions. If this alternative is chosen, a date specific should be
determined because the City Council must take action on this item in time for the
Ordinance to be in place by March 1, 2016. The Council is currently scheduled to take
action on the second reading of this ordinance at the January 26 meeting which would
allow the ordinance to be in effect 30 days later or February 26, 2016, just in time to
meet the deadline. There is a chance that the state legislature may make an
amendment to the assembly bill to extend the March 1 deadline, however there is no
guarantee this will occur.
2. Take no action. This would allow the state to act as the sole licensing authority to allow
Medical Marijuana facilities as identified in AB 243.
3. Recommend the Council consider an ordinance that provides for alternative provisions
such as allowing deliveries by persons other than a qualified caregiver or to allow some
prescriptive level of personal cultivation. This alternative is not recommended because the City
does not have sufficient staffing and oversight to regulate individual or personal cultivation
activities and such activities tend to exceed the intended limitations and may lead to
substantial neighborhood nuisances. As proposed the ordinance would allow the City
additional authority to enforce medical marijuana facilities when they become a nuisance or
neighborhood impact.
ATTACHMENTS:
1. Draft Ordinance
ITEM NUMBER: 1
DATE: 01/19/16
Attachment 1
DRAFT ORDINANCE
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ATASCADERO, CALIFORNIA REPEALING
CHAPTER 5-13 REGARDING MEDICAL MARIJUANA
FACILITIES AND ADDING SECTION 9-6.186 TO TITLE
9 OF THE ATASCADERO MUNICIPAL CODE
PROHIBITING MARIJUANA CULTIVATION
FACILITIES, MARIJUANA DISPENSARIES,
COMMERCIAL CANNABIS ACTIVITIES, AND
MEDICAL MARIJUANA DELIVERIES
WHEREAS, Atascadero Municipal Code Chapter 5-13 addresses medical marijuana facilities
and deliveries in the city; and,
WHEREAS, Municipal Code section 5-13.103 prohibits medical marijuana facilities in all
zoning districts and prohibits the delivery of medical marijuana to any person within the City
limits, except for the delivery of medical marijuana by a primary caregiver to a qualified patient;
and
WHEREAS, the California Supreme Court ruled unanimously in City of Riverside v. Inland
Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, that the
Compassionate Use Act (Proposition 215) (“CUA”) and the Medical Marijuana Program Act of
2004 (“MMPA”), do not preempt local ordinances that completely and permanently ban medical
marijuana facilities; and,
WHEREAS, in Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, the Third District Court
of Appeal held, based on Inland Empire, that there was no right to cultivate medical marijuana
and that a city could implement and enforce a complete ban on this activity; and,
WHEREAS, on September 11, 2015, the California Legislature passed Assembly Bills 243 and
266 and Senate Bill 643, which together create a broad state regulatory and licensing system
governing the cultivation, testing, and distribution of medical marijuana, the manufacturing of
marijuana products, and physician recommendations for medical marijuana, including the
Medical Marijuana Regulation and Safety Act at Business and Professions Code sections 19300
through 19360; and,
WHEREAS, Governor Brown signed each bill on October 9, 2015; and,
WHEREAS, while the new legislation expressly preserves local control over medical marijuana
facilities and land uses, including the authority to prohibit medical marijuana businesses
completely, newly-enacted Business and Professions Code section 11362.777(c)(4) if a city does
ITEM NUMBER: 1
DATE: 01/19/16
not have a land use regulation or ordinance either regulating or prohibiting marijuana cultivation,
either expressly or otherwise under the principles of permissive zoning, by March 1, 2016, the
State will be sole licensing authority for the commercial cultivation of medical marijuana in that
jurisdiction; and,
WHEREAS, while the Municipal Code does not have express provisions regarding
establishments that cultivate medical marijuana, such land uses are prohibited under principles
of permissive zoning because they are not enumerated in the zoning code as either permitted or
conditionally permitted land uses (see City of Corona v. Naulls (2008) 166 Cal.App.4th 418,
431-433); and,
WHEREAS, many California cities have experienced numerous adverse impacts and secondary
effects from medical marijuana establishments that have operated illegally, including medical
marijuana dispensaries and cultivation sites; and,
WHEREAS, such adverse impacts have included hazardous construction and electrical wiring,
noxious odors and fumes affecting neighboring properties and businesses, and increased crime in
and around marijuana land uses, including burglaries, robberies, assaults, murders, and illegal
diversion of marijuana to minors; and,
WHEREAS, there is significant evidence that medical marijuana delivery services are also
targets of violent crime and pose a danger to the public; and,
WHEREAS, a California Police Chiefs Association compilation of police reports, news stories,
and statistical research regarding crimes involving medical marijuana businesses and their
secondary impacts on the community is contained in a 2009 white paper report which is attached
to the staff report presented to the City Council with this ordinance and on file with the City
Clerk; and
WHEREAS, news stories regarding adverse impacts of medical marijuana business, including
cultivation sites and delivery services, are attached to the staff report presented to the City
Council with this ordinance and on file with the City Clerk; and
WHEREAS, it is reasonable to conclude that medical marijuana establishments and delivery
services would cause similar adverse impacts on the public health, safety, and welfare in
Atascadero; and
WHEREAS, the City Council has determined that the City’s marijuana regulations should be
consolidated within Title 9 of the Municipal Code (Planning and Zoning) and should include
express provisions regarding marijuana cultivation in order to avoid a piecemeal regulatory
approach in which certain activities are prohibited expressly while others are prohibited
impliedly under permissive zoning principles; and
WHEREAS, in order to protect the public health, safety, and welfare, the City Council desires
to repeal Chapter 5.13 regarding medical marijuana facilities and add Section 9-6.186 to Title 9
ITEM NUMBER: 1
DATE: 01/19/16
of the Atascadero Municipal Code prohibiting marijuana cultivation facilities, marijuana
dispensaries, commercial cannabis activities, and medical marijuana deliveries.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO DOES
ORDAIN AS FOLLOWS:
SECTION ONE. Findings. The City Council hereby incorporates the foregoing
recitals and findings.
SECTION TWO. Repeal. The City Council hereby repeals Municipal Code Chapter 5-13.
SECTION THREE. Adoption. The City Council of the City of Atascadero hereby
adds Section 9-6.186 of Title 9 of the Municipal Code as follows:
9-6.186 Medical Marijuana Facilities.
(a) Purpose. The purpose and intent of this section is to prohibit marijuana cultivation facilities,
medical marijuana dispensaries, medical marijuana deliveries, and commercial cannabis
activities, as defined below, within the city limits. It is recognized that it is a Federal violation
under the Controlled Substances Act to possess or distribute marijuana even if for medical
purposes. Additionally, there is evidence of an increased incidence of crime-related secondary
impacts in locations associated with marijuana cultivation facilities and medical marijuana
dispensaries and in connection with medical marijuana deliveries, which is contrary to policies
that are intended to promote and maintain the public’s health, safety, and welfare.
(b) Definitions.
(1) “Commercial cannabis activity” shall have the meaning set forth in Business and
Professions Code section 19300.5(k).
(2) “Cultivation” means any activity involving the planting, growing, harvesting, drying,
curing, grading, or trimming of marijuana.
(3) "Establish" or "operate" a marijuana cultivation facility, medical marijuana
dispensary, or commercial cannabis activity (as defined in this section) means and
includes any of the following:
a. The opening or commencement of the operation of a marijuana cultivation
facility, medical marijuana dispensary, or commercial cannabis activity;
b. The conversion of an existing business, facility, use, establishment, property,
or location to a marijuana cultivation facility, medical marijuana dispensary, or
commercial cannabis activity;
c. The addition of a marijuana cultivation facility, medical marijuana dispensary,
ITEM NUMBER: 1
DATE: 01/19/16
or commercial cannabis activity to any other existing business, facility, use,
establishment, property, or location.
(4) "Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds
thereof; the resin extracted from any part of the plant; and every compound manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes
marijuana infused in foodstuff, and concentrated cannabis and the separated resin,
whether crude or petrified, obtained from marijuana. It 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 resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the
plant that are incapable of germination.
(5) "Medical marijuana" is marijuana used for medical purposes where that medical use
is deemed appropriate and has been recommended by a physician who has determined
that the person's health would benefit from the use of marijuana in the treatment of
acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic
pain, glaucoma, migraine, spasticity, or any other serious medical condition for which
marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety
Code § 11362.7.
(6) “Marijuana cultivation facility” means any business, facility, use, establishment,
property, or location where the cultivation of marijuana occurs.
(7) "Medical marijuana dispensary" means any business, facility, use, establishment,
property, or location, whether fixed or mobile, where medical marijuana is sold, made
available to, delivered to and/or distributed by or to three or more of people. "Medical
marijuana dispensary" shall include the definition of “dispensary” set forth in Business
and Professions Code section 19300.5(n). A "medical marijuana dispensary" does not
include the following uses, as long as the location of such uses are otherwise regulated
by this Code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of
the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of
Division 2 of the Health and Safety Code, a residential care facility for persons with
chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the
Health and Safety Code, a residential care facility for the elderly licensed pursuant to
Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home
health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety
Code, as long as any such use complies strictly with applicable law including, but not
limited to, Health and Safety Code § 11362.5 and following.
(c) Medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis
activities, and medical marijuana deliveries prohibited.
(1) Medical marijuana dispensaries are prohibited in all zones in the city and shall not be
established or operated anywhere in the city.
ITEM NUMBER: 1
DATE: 01/19/16
(2) Marijuana cultivation facilities are prohibited in all zones in the city and shall not be
established or operated anywhere in the city.
(3) Commercial cannabis activities are prohibited in all zones in the city and shall not be
established or operated anywhere in the city.
(4) No person may own, establish, open, operate, conduct, or manage a medical
marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity in
the city, or be the lessor of property where a medical marijuana dispensary, marijuana
cultivation facility, or commercial cannabis activity is located. No person may participate
as an employee, contractor, agent, volunteer, or in any manner or capacity in any medical
marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity in
the city.
(5) No use permit, site development permit, tentative map, parcel map, variance, grading
permit, building permit, building plans, zone change, business license, certificate of
occupancy or other applicable approval will be accepted, approved or issued for the
establishment or operation of a medical marijuana dispensary, marijuana cultivation
facility, or commercial cannabis activity.
(6) No person and/or entity may deliver or transport medical marijuana from any fixed
or mobile location, either inside or outside the city, to any person in the city, except that a
person may deliver or transport medical marijuana to a qualified patient or person with
an identification card, as those terms are defined in Health and Safety Code section
11362.7, for whom he or she is the primary caregiver within the meaning of Health and
Safety Code sections 11362.5 and 11362.7(d).
(7) Nothing contained in this section shall be deemed to permit or authorize any use or
activity which is otherwise prohibited by any state or federal law.
(d) Enforcement. The city may enforce this section in any manner permitted by law. The
violation of this section shall be and is hereby declared to be a p ublic nuisance and contrary to
the public interest and shall, at the discretion of the city, create a cause of action for injunctive
relief.
SECTION FOUR. CEQA. This Ordinance is not a project within the meaning of
section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has
no potential for resulting in physical change in the environment, either directly or ultimately. In
the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA
exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with
certainty to have no possibility of a significant effect on the environment.
SECTION FIVE. Severability. If any section, subsection, sentence, clause, or phrase
of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any
ITEM NUMBER: 1
DATE: 01/19/16
court of competent jurisdiction, such decision will not affect the validity of the remaining
portions of this ordinance. The City Council hereby declares that it would have passed this
ordinance and each and every section, subsection, sentence, clause, or phrase not declared
invalid or unconstitutional without regard to whether any portion of the ordinance would be
subsequently declared invalid or unconstitutional.
SECTION SIX. Publication.
The City Clerk shall cause this ordinance to be published in full once within fifteen (15)
days after its passage in the Atascadero News, a newspaper of general circulation, printed,
published, and circulated in the City in accordance with Section 36933 of the Government
Code. The City Clerk shall also certify the adoption and posting of this ordinance, and shall
cause this ordinance and certification together to be entered into the Book of Ordinances of the
City.
INTRODUCED at a regular meeting of the City Council held on _____________, and PASSED
and ADOPTED by the City Council of the City of Atascadero, State of California, on
____________, by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: CITY OF ATASCADERO
_____________________________ _________________________
Marcia McClure Torgerson, C.M.C., Tom O’Malley, Mayor
City Clerk
APPROVED AS TO FORM:
______________________________
Brian A. Pierik, City Attorney