City of Lafayette Staff Report

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1 City of Lafayette Staff Report For: By: Chris Juram, Planning Technician Meeting Date: December 7, 2015 Subject: ZT01-15 City of Lafayette (Applicant): City-initiated zoning text amendment to amend Sections and of the Lafayette Municipal Code to define medical cannabis uses and add cannabis manufacturers, delivery of cannabis, and cannabis testing laboratories as prohibited uses and activities in Lafayette. PURPOSE To update Sections and of the Lafayette Municipal Code to: Prohibit cannabis manufacturers and delivery of cannabis. Prohibit cannabis testing laboratories. Please refer to the attached memorandum from the City Attorney for background information and analysis. CEQA COMPLIANCE Staff evaluated the project in accordance with the California Environmental Quality Act ( CEQA ) and determined the project to be categorically exempt under Section 15060(c)(2) as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment and Section 15060(c)(3) as the activity is not a project as defined in Section because it has no potential for resulting in physical change to the environment. A Notice of Exemption will be filed upon final City Council approval of the project. PUBLIC NOTICE A display advertisement was published in the Lamorinda Sun on Friday, November 27, Additionally, public notices were sent to the Lafayette Police Department, Lafayette Chamber of Commerce, and the Lafayette Homeowners Council. No public comments were received at the time this staff report was prepared. Page 1 of 2

2 Staff Report December 7, 2015 RECOMMENDATION Adopt Resolution No , forwarding a recommendation to the City Council to ban cannabis delivery and testing laboratories. ATTACHMENTS 1. City Attorney Memorandum, dated November 11, Draft PC Resolution No Draft Exhibit A - Strikethrough and Underlined Version of Proposed Modifications Page 2 of 2

3 City of Lafayette Memorandum For: City Council By: Mala Subramanian, City Attorney Date: November 11, 2015 Subject: Regulations Regarding Medical Cannabis Uses Background The City s Municipal Code currently bans medical marijuana dispensaries, per Lafayette Municipal Code ( LMC ) LMC Section defines a medical marijuana dispensary to mean any facility or location where marijuana is made available for medical purposes in accordance with Health and Safety Code Section The City also regulates the cultivation of medical marijuana. However, it is arguable that the current regulations would not be sufficient to apply to mobile medical marijuana delivery services. Beyond that, new legislation (discussed below) has altered the way the legislature defines and discusses both medical marijuana dispensaries and cultivation. As a result, we, consistent with best practices, recommend the Council move to ban or regulate all delivery services in the City, and also that the Council amend both Sections and to be fully in line with State law. The California legislature recently adopted legislation identified as the Medical Marijuana Regulation and Safety Act (AB 243, AB 266, and SB 643)(MMRSA) to comprehensively regulate medical marijuana (medical cannabis). The MMRSA recognizes and preserves local control to regulate or ban medical cannabis cultivation, transportation, and distribution. The MMRSA confirms and clarifies that, in addition to the complete land use control over retail dispensaries recognized in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729, municipalities have the power to regulate or ban the cultivation and distribution of medical marijuana. Maral v. City of Live Oak (2013) 221 Cal.App.4th 975. Although the MMRSA allows municipalities to regulate or ban cannabis cultivation, manufacturing, transportation, and distribution of medical cannabis within their jurisdictions, it requires some local enabling legislation to accomplish some aspects of this. If a city chooses to regulate these activities comprehensively, it must adopt an overlay of local regulatory standards that are at least as strict as the state s default regulations. In 2011, the Lafayette City Council passed an ordinance banning marijuana dispensaries and cultivation in the City. At the time, several California cities were involved in challenges to their zoning ordinances based on arguments that the ordinances allowed medical marijuana uses Page 1 of 2

4 either explicitly or implicitly or that the ordinances were somehow preempted by state medical marijuana laws. The Lafayette City Council wished to clarify under the law even during that period of flux that marijuana uses were prohibited in the City. The Council adopted an ordinance amending the City s Code to clarify that medical marijuana dispensaries were prohibited in all zones. Analysis The cultivation, transportation, and distribution of marijuana can create problems relating to public health and safety, crime, water and air quality, and energy consumption. Marijuana uses can create nuisance activity such as loitering and criminal activity in business and residential districts. Specifically, mobile delivery can create issues relating to responsibility and resources to monitor and enforce state law, questions of patient qualification, and risks relating to the high use of large sums of cash for mobile transactions. Staff recommends the Council adopt a ban for marijuana transportation. Mobile delivery of products consistently creates issues for cities because of the inherent transitory nature of the activity. A quick search of weedmaps.com identifies at least five cannabis delivery services that currently offer service in Lafayette. These mobile delivery services are often attempts to avoid the effects of local dispensary bans. State law will regulate the delivery of medical marijuana unless delivery is explicitly prohibited by local ordinance. In light of the foregoing, the City has the option to ban or regulate mobile delivery. Regulations could include hours of operation, amount of money or marijuana that can be carried at one time, and time spent at one location. Staff recommends the Council also adopt a ban for marijuana testing laboratories. Marijuana testing laboratories pose many of the same risks as dispensaries, delivery services, or cultivation, including strong odors, loitering, illegal sales, distribution of marijuana, trespassing, theft, violent crime such as robberies or attempted robberies, fire hazards, and problems associated with mold, fungus, and pests. Allowing testing laboratories in the City introduces many of the risks the City has hoped to avoid through its longstanding regulation of marijuana dispensaries and cultivation. Recommendation Adopt the attached Ordinance banning cannabis delivery and testing laboratories. Page 2 of 2

5 IN THE MATTER OF: BEFORE THE PLANNING COMMISSION OF THE CITY OF LAFAYETTE A Resolution of the of the City ) of Lafayette recommending approval of a Zoning Text ) Amendment ( ZT01-15 ) to amend Section ) and of the Lafayette Municipal Code ) to prohibit deliver of cannabis and cannabis ) Resolution testing in the City ) WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section , et seq. and entitled the Compassionate Use Act of 1996 ( the Act ); and WHEREAS, the intent of Proposition 215 was to enable persons who are in need of medical marijuana for medical purposes to obtain it and use it under limited, specified circumstances; and WHEREAS, in 2003, the California Legislature adopted SB 420, the Medical Marijuana Program ( MMP ), codified as Health and Safety Code Section et seq., which permits qualified patients and their primary caregivers to associate collectively or cooperatively to cultivate marijuana for medical purposes without being subject to criminal prosecution under the Penal Code; and WHEREAS, neither the Compassionate Use Act ( CUA ) nor the MMP require nor impose an affirmative duty or mandate upon local governments to allow, authorize, or sanction the establishment of facilities that cultivate or process medical marijuana within its jurisdiction; and WHEREAS, in May 2013, the California Supreme Court issued its decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729, holding that cities have the authority to regulate or ban outright medical marijuana land uses; and WHEREAS, under the Federal Controlled Substances Act, codified in 21 U.S.C. Section 801 et seq., the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need; and WHEREAS, on October 9, 2015, Governor Jerry Brown signed the Medical Marijuana Regulation and Safety Act ( Act ) into law; and WHEREAS, the Act becomes effective January 1, 2016 and contains provisions which allow for local governments to regulate licenses and certain activities thereunder; and WHEREAS, the Act contains a provision which sets forth that the State shall become the sole authority for regulation under certain parts of the Act, unless local governments have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana (Health and Safety Code (c)(4); and WHEREAS, several California cities have reported negative impacts of marijuana cultivation, processing, and distribution uses, including offensive odors, illegal sales, and distribution of marijuana, Page 1 of 6

6 Resolution December 7, 2015 trespassing, theft, violent robberies and robbery attempts, fire hazards, and problems associated with mold, fungus, and pests; and WHEREAS, the adverse effects of other marijuana uses also apply to the presence of cannabis testing laboratories, which also present the possibility of offensive odors, illegal sales, distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire hazards, and problems associated with mold, fungus, and pests; and WHEREAS, cannabis delivery and cannabis testing laboratories pose risks to the public health, safety, and welfare that must be mitigated by banning these uses within the City; and WHEREAS, based on the findings above, the potential establishment of cannabis dispensaries, cultivation, cannabis manufacturers and delivery of cannabis uses in the City without regulation poses a current and immediate threat to the public health, safety and welfare in the City due to the negative land use and other impacts of such uses as described above; and WHEREAS, the issuance or approval of business licenses, subdivisions, use permits, variances, building permits, or any other applicable entitlement for cannabis dispensaries, cultivation, cannabis manufacturers and delivery of cannabis will result in the aforementioned threat to public health, safety, or welfare. WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW THEREFORE BE IT RESOLVED THAT: Section 1. Incorporation of Recitals. The hereby finds that all of the foregoing recitals and the staff report presented herewith are true and correct and are hereby incorporated and adopted as findings of the as if fully set forth herein. Section 2. Amendment to Lafayette Municipal Code Section Lafayette Municipal Code Section is hereby amended to read in its entirety as follows: Medical cannabis uses. For purposes of this code, the following definitions shall apply. A. Cannabis means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. Cannabis also means the separated resin, whether crude or purified, obtained from marijuana. Cannabis also means marijuana as defined by Section of the Health and Safety Code as enacted by Chapter 1407 of the Statutes of B. Cannabis dispensary means a facility where cannabis, cannabis products, or devices for the use of cannabis or cannabis products are offered, either individually or in any combination, for retail sale, including an establishment that delivers cannabis and cannabis products as part of a retail sale. C. Cannabis manufacturer means a person that conducts the production, preparation, propagation, or compounding of manufactured cannabis, or cannabis products either directly or Page 2 of 6

7 Resolution December 7, 2015 indirectly or by extraction methods, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages medical cannabis or cannabis products or labels or relabels its container. D. Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis. E. Delivery means the commercial or noncommercial transfer of cannabis or cannabis products. F. Testing laboratory means a facility, entity, or site in the state that offers or performs tests of medical cannabis or medical cannabis products and that is both of the following: (1) Accredited by an accrediting body that is independent from all other persons involved in the medical cannabis industry in the state; and (2) Registered with the State Department of Public Health. Section 3. Amendment to Lafayette Municipal Code Section Lafayette Municipal Code Section is hereby amended to read in its entirety as follows: Prohibited uses and activities. The following uses and activities are prohibited in all land use classification (zoning) districts: (a) Any use or activity which is prohibited by local, regional, state, or federal law; (b) Construction or use of helicopter landing pads, heliports and all other helicopter facilities; (c) Establishment or operation of medical cannabis dispensaries, as defined in Section ; and (d) Cultivation or production of medical cannabis, as defined in Section (e) Cannabis manufacturers, and delivery of cannabis, as defined in Section (f) Cannabis testing laboratories, as defined in Section , or other facilities that store or maintain marijuana as part of their operations, whether commercially or non-commercially. Section 4. CEQA. The finds and determines with certainty that the amendments described in ZT01-15 are not subject to the requirements of the California Environmental Quality Act ( CEQA ), pursuant to CEQA Guidelines Section 15060(c)(2) as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment and Section 15060(c)(3) as the activity is not a project as defined in Section because it has no potential for resulting in physical change to the environment. Section 5. Public Records. The location and custodian of the documents and any other material which constitute the record of proceedings upon which the based its decision is as follows: City Clerk, City of Lafayette, 3675 Mt. Diablo Blvd. #210, Lafayette, California Page 3 of 6

8 Resolution December 7, 2015 Section 6. Certification. The Secretary shall certify to the adoption of this Resolution. PASSED, FORWARDED RECOMMENDATION, AND ADOPTED by the of the City of Lafayette at a regular meeting on December 7, 2015, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Niroop K. Srivatsa Planning and Building Director Tom Chastain Chair, Lafayette Page 4 of 6

9 Resolution December 7, 2015 EXHIBIT A AMENDMENTS TO CHAPTERS 6-4 & 6-5 OF THE CITY OF LAFAYETTE MUNICIPAL CODE [Strike-through and underlined version] Chapter 6-4 ACTIVITY CLASSIFICATIONS Medical marijuana dispensary cannabis uses. Medical marijuana dispensary means any facility or location where marijuana is made available for medical purposes in accordance with Health and Safety Code Section (Proposition 215). Medical cannabis uses. For purposes of this code, the following definitions shall apply. A. Cannabis means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. Cannabis also means the separated resin, whether crude or purified, obtained from marijuana. Cannabis also means marijuana as defined by Section of the Health and Safety Code as enacted by Chapter 1407 of the Statutes of B. Cannabis dispensary means a facility where cannabis, cannabis products, or devices for the use of cannabis or cannabis products are offered, either individually or in any combination, for retail sale, including an establishment that delivers cannabis and cannabis products as part of a retail sale. C. Cannabis manufacturer means a person that conducts the production, preparation, propagation, or compounding of manufactured cannabis, or cannabis products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages medical cannabis or cannabis products or labels or relabels its container. D. Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis. E. Delivery means the commercial or noncommercial transfer of cannabis or cannabis products. F. Testing laboratory means a facility, entity, or site in the state that offers or performs tests of medical cannabis or medical cannabis products and that is both of the following: (1) Accredited by an accrediting body that is independent from all other persons involved in the medical cannabis industry in the state; and (2) Registered with the State Department of Public Health. Page 5 of 6

10 Resolution December 7, 2015 Chapter 6-5 GENERAL PROVISIONS Article 1. Miscellaneous Prohibited uses and activities. The following uses and activities are prohibited in all land use classification (zoning) districts: (a) Any use or activity which is prohibited by local, regional, state, or federal law; (b) Construction or use of helicopter landing pads, heliports and all other helicopter facilities; (c) Establishment or operation of medical marijuana cannabis dispensaries, as defined in Section ; and (d) Cultivation or production of medical marijuana cannabis, as defined in Section (e) Cannabis manufacturers, and delivery of cannabis, as defined in Section (f) Cannabis testing laboratories, as defined in Section , or other facilities that store or maintain marijuana as part of their operations, whether commercially or non-commercially. Page 6 of 6

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