CITY COUNCIL AGENDA REPORT

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1 Approved by City Manager: CITY COUNCIL AGENDA REPORT DATE: MAY 15, 2017 TO: HONORABLE MAYOR AND COUNCILMEMBERS FROM: TOM BARTLETT, A.I.C.P., CITY PLANNER SUBJECT: INTRODUCTION OF ORDINANCE NO AMENDING CHAPTER 8.13 AND SECTION OF THE CALABASAS MUNICIPAL CODE BY: 1) EXPANDING THE PROHIBITION OF MARIJUANA DISPENSARIES TO ALSO PROHIBIT ANY FORM OF MARIJUANA COMMERCE, TRADE OR INDUSTRY, INCLUDING BUT NOT LIMITED TO: COMMERCIAL CULTIVATION, PRODUCTION, PROCESSING, PACKAGING, WAREHOUSING, WHOLESALE DISTRIBUTION, SHIPPING OR DELIVERY SERVICES, CLINICAL TESTING, AND ANY OTHER BUSINESS RELATED TO MARIJUANA OR ANY MARIJUANA DERIVATIVE, WHETHER RECREATIONAL OR MEDICAL; 2) ESTABLISHING AN EXCEPTION TO THE PROHIBITIONS THEREIN TO ALLOW INSIDE A FULLY ENCLOSED AND SECURE PRIVATE RESIDENCE OR ACCESSORY STRUCTURE THE PRIVATE NON-COMMERCIAL CULTIVATION OF NOT GREATER THAN SIX MARIJUANA PLANTS, AND THE ASSOCIATED NON-COMMERCIAL PROCESSING AND USE OF MARIJUANA AND MARIJUANA PRODUCTS AS SPECIFIED IN THE STATE LAW, AND UPDATING PERSONAL USE CULTIVATION STANDARDS ACCORDINGLY; 3) REVISING THE MARIJUANA DELIVERY OR TRANSPORT PROHIBITION BY CREATING AN EXCEPTION FOR THE LAWFUL DELIVERY OR TRANSPORT OF MARIJUANA AND/OR MARIJUANA PRODUCTS TO PERSONS OR ENTITIES WITHIN THE CITY VIA PUBLIC ROADS BY PERSONS OR FIRMS LICENSED TO DO SO UNDER STATE LAW; AND, 4) UPDATING DEFINITIONS OF TERMS TO ALIGN WITH THE DEFINITIONS PROVIDED WITHIN THE STATE LAW. MEETING MAY 24, 2017 DATE: AGENDA ITEM NO. 7

2 SUMMARY RECOMMENDATION: Staff recommends that the City Council introduce Ordinance No , amending chapter 8.13 and section of the Calabasas Municipal Code to bring the Municipal Code into compliance with the newly expanded State law requiring cities to allow, and to reasonably regulate, certain medical and nonmedical ( recreational ) marijuana-based land uses and activities, while maintaining and strengthening the City s strict limitations on the cultivation, processing, and use of marijuana and marijuana products which fall outside of the new statutory parameters, and in compliance with federal law. BACKGROUND: In November 1996 the voters of the State of California passed and approved the Compassionate Use Act (Prop. 215), which allowed limited use, cultivation, possession, transport, trade, and use of marijuana and marijuana derivatives for the treatment of medical conditions for qualified patients. On January 27, 2010 the Calabasas City Council adopted Ordinance No to update the Land Use and Development Code commensurate with the recently updated General Plan. As part of that ordinance language was added to the Code, via section , which prohibited medical marijuana dispensaries in the City. Subsequently on September 14, 2011 the City Council adopted Ordinance No amending Section of the Land Use and Development Code to include provisions to allow and regulate medical marijuana uses as required by California Health & Safety Code sections and through On November 8, 2016 the voters of the State of California approved Proposition 64 (the Control, Regulate and Tax Adult Use of Marijuana Act ), which allowed for limited possession, cultivation, processing, and use of marijuana and marijuana products by persons aged 21 years or older for non-medical purposes. (See Attachment 3 for the full text of Proposition 64.) The new law expressly allows for non-medical marijuana uses and activities which are non-commercial and for personal use only. However, Proposition 64 also allows for a wide array of commercial marijuana-focused enterprises, and it sets out associated regulatory systems for each specified commercial use or activity, to include direction and guidance on how this will be accomplished through specified State agencies. This staff report does not delve into the non-mandatory commercial uses and activities, or the various regulatory and licensing parameters promulgated under Prop. 64; instead, this report focuses entirely on the few mandatory components of the new state law. Accordingly, because local participation in the commercial aspects of Prop. 64 is entirely voluntary, then such commercial activities may be prohibited at the local level. 2

3 On April 27, 2017 the Planning Commission conducted a public hearing concerning the proposed Ordinance No Following the public hearing the commission passed and approved Planning Commission Resolution No recommending to the City Council adoption of the ordinance. Findings of General Plan conformance are found within the resolution (see Attachment 2). DISCUSSION/ANALYSIS: As previously stated, passage of Proposition 64 by the voters of the State of California expanded prior statutory allowances and restrictions on the local regulation of medical marijuana by allowing for various marijuana-based uses and activities which have no relationship whatsoever to the medicinal needs of qualified patients. Prior to Prop. 64, and consistent with the previous State law, the City of Calabasas had maintained a policy of allowing limited marijuana cultivation, processing, and use for medical purposes only. By not expanding allowed uses and activities to any level beyond the state-mandated uses and activities, the City maintained a position of maximum compliance with federal law while also meeting the State law. With passage of Prop. 64, local regulations regarding possession, cultivation, processing, use and transport of marijuana now must now comply with the following statutory requirements: A. The local laws may not prohibit private residents who are aged 21 years or older from possessing, planting, cultivating, harvesting, drying, or processing not more than six living marijuana plants, and possessing the marijuana produced by such plants, when such activity occurs within a person s own private residence within an enclosed and secure structure. B. The local laws may not prohibit delivery or transport of marijuana or marijuana products within the city by a person or entity licensed to provide such transport or delivery service by the appropriate State agency (either or both of the California Department of Consumer Affairs and the California Bureau of Marijuana Control), where such delivery service is accomplished via public roadways. C. The local laws may not prohibit private residents who are under a physician s care from possessing, planting, cultivating, harvesting, drying, or processing marijuana plants, and possessing the marijuana produced by such plants, when such activity occurs in accordance with the attending physician s direction for that person and is accomplished consistent with the California Health and Safety Code. 3

4 D. Where a local government chooses to regulate any of the above statutorily permitted marijuana-based uses or activities, such local regulation must be reasonable. Adoption of the proposed Ordinance No will allow the City to comply fully with the new expanded State law while continuing to exercise the strictest levels of local control over marijuana cultivation, processing and use, in compliance with Proposition 64, as well as applicable federal law. In short, the proposed ordinance will accomplish three things: 1) Allow those marijuana-based land uses and activities specifically identified within the new state law as being allowed and not subject to any local prohibitions (the listed uses and activities in paragraphs A, B, and C above); 2) Reasonably regulate those marijuana-based land uses and activities which local jurisdictions may reasonably regulate (per paragraph D above); and, 3) Prohibit all other marijuana-based land uses and activities which local jurisdictions may prohibit under the new state law. ENVIRONMENTAL REVIEW (C.E.Q.A.): The proposed amendment to the Municipal Code is exempt from the requirement for environmental review under CEQA because the Adult Use Marijuana Act (Proposition 64) already took effect on November 8, 2016 by virtue of the voters approval of the proposition on that date. Furthermore, the new statutes preempt any inconsistent local ordinance, and the City s proposed action is simply to amend its marijuana based land use controls (Ordinance ) to align with the new requirements of state law. Moreover, the proposed amendment will not create a new land use regulation which falls outside of the parameters of the new State law. Thus, it can be seen with certainty that no environmental impacts will result from the City s action, and consequently, and in accordance with CEQA Section and Section 15061(b)(3) General Rule of Exemption of the CEQA Guidelines, adoption of Ordinance is exempt from CEQA review. Of particular note, the California Department of Food and Agriculture (CDFA) is preparing a Program-level Environmental Impact Report (Program EIR, or PEIR) in regard to the various state regulations, processes and licenses required of that department under Proposition 64. The new state regulatory program is called the CalCannabis Cultivation Licensing Program. The Calabasas Community Development Department received a copy of CDFA s Revised Notice of Preparation 4

5 (NOP) on May 11 th -- a copy of the NOP is attached to this report as Attachment D. The complete environmental Initial Study associated with the NOP may be found at the following website: calcannabis.peir@cdfa.ca.gov. The NOP states that local governmental agencies may need to use the Program EIR prepared by CDFA when considering any permit or other approval related to the new state licensing program. However, as has been previously stated in this report, the proposed amendments to the Calabasas Municipal Code, as presented in Ordinance No , do not include any new locally permitted commercial marijuana-based land uses or activities, and include only the few limited uses allowed by preemptory state law, meaning reliance on the PEIR described in CDFA s notice will not be necessary. FISCAL IMPACT/SOURCE OF FUNDING: Staff foresees little to no fiscal impact. Code enforcement staff may face a slightly greater enforcement caseload and additional costs associated with efforts to enforce the new ordinance. However, under existing code (CMC ) costs incurred through code enforcement activities may be recouped through penalties and fines paid, on a case-by-case basis. REQUESTED ACTION: Staff recommends that the City Council introduce Ordinance No , amending chapter 8.13 and section of the Calabasas Municipal Code to bring the Municipal Code into compliance with the newly expanded State law requiring cities to allow, and to reasonably regulate, certain medical and nonmedical ( recreational ) marijuana-based land uses and activities, while maintaining and strengthening the City s strict limitations on the cultivation, processing, and use of marijuana and marijuana products which fall outside of the new statutory parameters, and in compliance with federal law. ATTACHMENTS: A. Ordinance No B. Planning Commission Resolution No C. Full Text of Proposition 64 D. Notice of Preparation for a Program EIR by the California Department of Food and Agriculture, received by the Calabasas Community Development Department on May 11, 2017 E. Correspondence received. 5

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