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HomeMy WebLinkAboutOrdinance 545 am CERTIFICATION I, Marcia McClure Torgerson, C.M.C., City Clerk of the City of Atascadero, hereby certify that the foregoing is a true and correct copy of Urgency Ordinance No 545, adopted by the Atascadero City Council at a regular meeting thereof held on September 8, 2009, and that it has wr been duly published pursuant to State Law DATED• 6 l✓ UcLt' '1� I l Marcia McClure Torgerson, C.M.0 City Clerk City of Atascadero, California it URGENCY ORDINANCE NO. 545 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, ADOPTING AN INTERIM ZONING ORDINANCE UNDER CALIFORNIA GOVERNMENT CODE SECTION 65858(A) PERTAINING TO THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA FACILITIES WHEREAS, California cities that have permitted the establishment of Medical Marijuana Dispensaries, Cooperatives and Collectives (hereafter "Medical Marijuana Facilities") have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding such dispensaries thereby endangering the public health, safety and welfare, and, WHEREAS, there is an apparent conflict between federal and state law regarding the establishment of Medical Marijuana Facilities, and, WHEREAS, it is necessary for the City of Atascadero to study the potential impacts Medical Marijuana Facilities may have on the public health, safety, and welfare, as well as the impacts that the inconsistent and conflicting authorities may have on the City's ability to regulate such irr facilities. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY ORDAINS AS FOLLOWS SECTION 1. Findings. A. In 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5 and following, and entitled the Compassionate Use Act of 1996 (the "Act") B The intent of Proposition 215 was to enable seriously ill Californians, to legally possess, use, and cultivate marijuana under limited, specified circumstances. In addition, the Court of Appeal in People v Hochanadel (Filed August 18, 2009, California Court of Appeal Fourth District, 2009 WL 2566291) found that the Act was intended by the Legislative to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. C On January 1, 2004, SB 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act. D Comprehensive zoning regulations lie within the police power of local fr. governments City of Atascadero Urgency Ordinance No. 545 Page 2 of 5 WAW E. Neither Proposition 215 nor SB 420 authorizes Medical Marijuana Facilities F California cities that have permitted the establishment of Medical Marihuana Facilities have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding such dispensaries thereby endangenng the public health, safety and welfare. G The Supreme Court of the United States ruled in United States v Oakland Cannabis Buyers' Cooperative (2001) 532 US 483 that, notwithstanding California law, the federal Controlled Substances Act continues to prohibit marihuana use, distribution, and possession, and that no medical necessity exception exists to these prohibitions. H. The Supreme Court of the United States ruled in Gonzales v Raich (2005) 545 U S 1 that pursuant to the commerce clause, the federal government has the power to prohibit the local cultivation and use of manjuana, even though such cultivation and use complies with California law Currently, the issue of whether California medical marijuana law is preempted by federal law is the subject of ongoing litigation. I. Due to the apparent conflict between federal and state law including internal California legal conflicts, as well as the community and statewide concerns regarding the establishment of medicinal Medical Marijuana Facilities, and the fact that federal legislation and enforcement is currently in flux, it is necessary for the City of Atascadero to study the potential aw impacts such facilities may have on the public health, safety, and welfare, as well as the impacts that the inconsistent and conflicting authorities may have on the City's ability to regulate such facilities. J Based on the foregoing, the City Council finds that allowing the establishment or operation of or approving any entitlements for the establishment or operation of Medical Marihuana Facilities prior to (1) the results of pending lawsuits and potential legislation to determine whether Federal law pre-empts State law on this issue and (2) the City's monitoring of the potential impacts of such facilities in other jurisdictions, would result in an immediate threat to the public health, safety, and welfare Accordingly, the City finds that an interim prohibition on such uses and the issuance of any such applicable entitlements is necessary for a period of 45 days. SECTION 2. Environmental Review The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; rather it prevents changes in the environment pending the completion of the contemplated municipal code review aw City of Atascadero Urgency Ordinance No. 545 Page 3 of 5 am SECTION 3. Imposition of Moratorium. The City Council orders as follows A. In accordance with the authority granted the City of Atascadero under Government Code Section 65858(a), and pursuant to the findings stated herein, for a period of 45 days from the date of adoption of this ordinance 1 No Medical Marijuana Facilities may be established or operate in any zone of the City 2. No use permit, variance, zoning clearance or other applicable entitlement or approval will be accepted, approved or issued for the establishment or operation of a Medical Marihuana Facilities B As used in this ordinance, the following definitions apply- 1 "Establish" or "operate" Medical Marijuana Facilities means and includes any of the following: (a) The opening or commencement of such a business or establishment as a new business or establishment; (b) The conversion of an existing business or establishment to a business or establishment defined as Medical Marihuana Facilities in this ordinance; ter. (c) The addition of any form of business or establishment defined as Medical Marijuana Facilities in this ordinance to any other existing business or establishment. 2 "Marihuana" 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 marihuana infused in foodstuff 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. 3 "Medical Marihuana Facilities means any facility or location, whether fixed or mobile, where medical marijuana is made available to and/or distributed by or to one or more of the following: a "primary caregiver," "a qualified patient," or a person with an "identification card," as these terms are defined in California Health and Safety Code section 11362.5 and following. Medical Marijuana Facilities do 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 i�.r pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a City of Atascadero Urgency Ordinance No. 545 Page 4 of 5 +� 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 section 11362.5 and following. SECTION 4. Report on Interim Moratorium. Pursuant to Government Code section 65858, staff must prepare for consideration and issuance by the City Council a written report describing the measures taken to address the conditions which led to adoption of this Ordinance The report will be provided to the City Council so that it may be considered and issued no later than 10 days prior to the expiration of this ordinance. SECTION 5. Legal and Planning Study The Department of Community Development with the assistance of the City Attorney's Office is directed to study and analyze issues related to the establishment or operation of Medical Marihuana Facilities within the City, including but not limited to, evaluating conflicts in state and federal law concerning the validity of the Act, the legality of such facilities, the potential impacts of such facilities on public health, safety and welfare of the community, the desirability of such facilities in various zones, and the extent of regulatory controls, if any, to impose on such facilities. SECTION 6. 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 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 7 Effective Date and Duration. This ordinance is an urgency ordinance enacted under California Government Code section 65858 (a) This urgency ordinance is effective upon adoption and will extend for a period of 45 days from the date of adoption at which time it will automatically expire unless extended by the City Council in accordance with California Government Code section 65858 SECTION 8. Publication. The City Clerk is directed to cause this ordinance to be published in the manner required by law INTRODUCED, PASSED and ADOPTED by the City Council of the City of Atascadero, State of California, at a regular meeting of the City Council held on September 8, 2009, by the following roll call vote AYES Council Members Clay, Fonzi, Kelley, O'Malley and Mayor Beraud NOES None ABSTAIN None ar. ABSENT None City of Atascadero Urgency Ordinance No. 545 Page 5 of 5 Ow CITY OF ATASCADERO ElleB raud, Mayor ATTEST Marcia McClure Torgerson, C.M.C., Olty Clerk APPR D AS TO M. Brian A. Pierik, City Attorney ww err.