CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT

Transcription

1 Mission Statement We Care for Our Residents by Working Together to Build a Better Community for Today and a Tomorrow. CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT ITEM NO. 12 Meeting Date: February 9, 2016 Department: Development Services Submitted By: Jeffrey S. Beiswenger, Planning Manager Agenda Title: Adoption of an Ordinance to prohibit marijuana activities in the City, with an exception to allow for a limited amount of indoor personal cultivation of medical marijuana by amending Chapters (General Provisions), (Definitions) and (Land Use Regulations) of the zoning ordinance and adoption of a new Chapter 8.30 (Marijuana Cultivation, Processing, Delivery, and Dispensaries) of the Municipal Code and finding the action exempt under the California Environmental Quality Act. RECOMMENDED ACTION: Conduct a second reading and adopt Ordinance No. 896 to amend several Titles of the City of Rohnert Park, Municipal code, as follows: A new Chapter 8.30 (Marijuana Cultivation, Processing, Delivery, and Dispensaries) will be added to expressly prohibit marijuana cultivation facilities, marijuana processing, marijuana delivery, and marijuana dispensaries in all zones in the City. A narrow exception allows indoor personal cultivation by a qualified patient under specified circumstances. The following definitions will be included in Chapter 8.30: marijuana, marijuana cultivation, marijuana cultivation facility, marijuana processing, delivery, marijuana dispensary, medical marijuana collective (and cooperative), and tobacco store. Title 17 (zoning) will include statement prohibiting marijuana-related uses, as defined in Chapter Tobacco stores and related private smoker s lounges will be added to the list of conditionally permitted uses within the Regional Commercial (C-R) district. A prohibition on Head Shops is already included in the Municipal Code and the CUP will help to more effectively enforce this prohibition. BACKGROUND: The purpose of Ordinance No. 896 is to respond to Assembly Bills 243 and 266 and Senate Bill 643, recently passed by the State Legislature, which taken 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, and provide immunity to marijuana businesses operating with both a state license and a local permit. The City Council has determined that express Municipal Code regulations regarding medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries will benefit the public by providing clear guidelines regarding the scope of prohibited conduct and minimize the potential for confusion regarding the City s policies. 1

2 ITEM NO. 12 The Planning Commission held a public hearing on January 14, 2016 to consider the full text of the implementing land use ordinances and recommended approval to the City Council. The City Council held a public hearing on January 26, 2016 and after hearing public testimony and due deliberation introduced the ordinance for approval with an amendment to only permit the indoor cultivation of marijuana, subject to the limits established in the introduced ordinance (no more than three plants and a maximum of 50 square feet of cultivation area per property). The purpose of the action tonight is to conduct a second reading to adopt the ordinance as attached. ENVIRONMENTAL DETERMINATION: The approval of this ordinance is not a project subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines 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 a physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is exempt under CEQA Regulation Section 15061(b)(3) because it can be seen with certainty to have no potential for causing a significant effect on the environment. STRATEGIC PLAN ALIGNMENT: This action is consistent with Strategic Plan Goal D Continue to Develop a Vibrant Community by implementing mandated programs. OPTIONS CONSIDERED: 1. Adopt the attached ordinance. Staff recommends this option because it is consistent with our current zoning practice of prohibiting most marijuana activities. Our permissive zoning scheme does not ordinarily expressly state prohibited activities, but we must do so in this instance as a result of new legislation. 2. The alternative to these code amendments are to take no action. This is not recommended because the code amendments are needed to strengthen the existing prohibitions on marijuana businesses and activities and to response to recent State legislation. FISCAL IMPACT/FUNDING SOURCE: Adopting the attached ordinance has minimal fiscal impact. Department Head Approval Date: 1/29/16 City Manager Approval Date: 2/3/16 Finance Director Approval Date: NA City Attorney Approval Date: 1/29/16 Attachments (list in packet assembly order): Ordinance No.896 2

3 ORDINANCE NO. 896 AN ORDINANCE OF THE CITY OF ROHNERT PARK, CALIFORNIA, AMENDING CHAPTERS (GENERAL PROVISIONS), (DEFINITIONS), AND (LAND USE REGULATIONS) OF THE ZONING ORDINANCE, AND ADOPTION OF A NEW CHAPTER 8.30 (MARIJUANA CULTIVATION, PROCESSING, DELIVERY, AND DISPENSARIES) OF THE MUNICIPAL CODE WHEREAS, the applicant, City of Rohnert Park, filed Planning Application No. PLMC proposing to amend the Rohnert Park Municipal Code ( RPMC ) by amending Chapters (General Provisions), (Definitions), and (Land Use Regulations) of the City of Rohnert Park Zoning Ordinance, and amending the Municipal Code by addition of a new Chapter 8.30 (Marijuana Cultivation, Processing, Delivery, and Dispensaries) to Title 8; and WHEREAS, the proposed amendments to the Zoning Ordinance Chapters would provide a definition of the term Tobacco Store consistent with Chapter 8.32 of the RPMC and reinstate Tobacco Stores to the Use list in Chapter of the Zoning Ordinance, and would clarify in Chapter that marijuana-related uses are not permitted uses in any zone; and WHEREAS, the proposed new Chapter 8.30 of Title 8, the Health and Safety Code, would provide definitions and regulation of marijuana-related uses; and WHEREAS, in 1970, Congress enacted the Controlled Substances Act (CSA) which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States.; and WHEREAS, in 1972, California added Chapter 6 to the state Uniform Controlled Substances Act, commencing at Health and Safety Code section 11350, which established the state s prohibition, penalties, and punishments for the possession, cultivation, transportation, and distribution of marijuana; and WHEREAS, in 1996, the voters of the State of California approved Proposition 215 (the "Compassionate Use Act;" Health and Safety (H&S) Code Section et seq.); and WHEREAS, California courts have held that the CUA created a limited exception from criminal liability for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances; and WHEREAS, on January 1, 2004, the state Legislature enacted the "Medical Marijuana Program" (MMP), codified as Health and Safety Code sections to , to clarify the scope of the CUA, establish a voluntary program for identification cards issued by counties for qualified patients and primary caregivers, and provide criminal immunity to qualified patients

4 and primary caregivers for certain activities involving medical marijuana, including the collective or cooperative cultivation of medical marijuana; 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 CUA and the MMP do not preempt local ordinances that completely and permanently ban medical marijuana dispensaries, collectives, and cooperatives; 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, including a ban on personal cultivation; and WHEREAS, on September 11, 2015, the California Legislature passed Assembly Bills 243 and 266 and Senate Bill 643, which taken together create a broad state regulatory and licensing system governing the cultivation, testing, and distribution of marijuana, the manufacturing of marijuana products, and physician recommendations for medical marijuana, and provide immunity to marijuana businesses operating with both a state license and a local permit; and WHEREAS, Governor Brown signed each bill on October 9, 2015; and WHEREAS, while the new legislation expressly preserves local control over marijuana facilities and land uses, including the authority to prohibit all marijuana businesses and cultivation completely, newly-added Health & Safety Code section (c)(4) provides that if a city does not have a land use regulation or ordinance regulating or prohibiting marijuana cultivation, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program under that section, then commencing March 1, 2016, the state Department of Food and Agriculture will become the sole licensing authority for marijuana cultivation in that jurisdiction; and WHEREAS, under newly-added Business and Professions Code section 19340(a), if a city wants to prevent marijuana deliveries within its jurisdiction, it must adopt an ordinance expressly prohibiting them; and WHEREAS, marijuana businesses, dispensaries, cultivation activities, and deliveries are not listed in the Zoning Code as either permitted or conditionally-permitted land uses and are, therefore, prohibited under the City s permissive zoning provisions, as set forth in Municipal Code sections and (City of Corona v. Naulls (2008) 166 Cal.App.4th 418, ); and WHEREAS, the City Council has determined that express Municipal Code regulations regarding marijuana dispensaries, marijuana cultivation facilities, commercial cannabis

5 activities, and marijuana deliveries will benefit the public by providing clear guidelines regarding the scope of prohibited conduct and minimize the potential for confusion regarding the City s policies, and WHEREAS, many California communities have experienced adverse impacts and negative secondary effects from marijuana establishments and cultivation sites, including hazardous construction, unsafe electrical wiring, noxious odors and fumes affecting neighboring properties and businesses, increased crime in and around such land uses, and the diversion of marijuana to minors; and WHEREAS, a California Police Chiefs Association compilation of police reports, news stories, and statistical research regarding crimes involving 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, the Santa Clara County District Attorney s Office issued a May 2014 memorandum entitled Issues Surrounding Marijuana in Santa Clara County, which outlined many of the negative secondary effects resulting from marijuana cultivation; a copy of this memorandum is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk; and WHEREAS, the Santa Clara County Public Defender issued a May 2014 memorandum entitled Substance-Related Suspensions in the East Side Union High School District, describing a correlation between substance abuse-related suspensions in local high schools and a proliferation of medical marijuana dispensaries in the area; a copy of this memorandum 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 dispensaries, 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 marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and marijuana deliveries could cause similar adverse impacts on the public health, safety, and welfare in Rohnert Park; and WHEREAS, in order to protect the public health, safety, and welfare, the adoption of Municipal Code Chapter 8.30 regulation of marijuana-related activities including marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and marijuana deliveries, and amendment of Section (General Provisions) of the Zoning Ordinance will make express the prohibition of marijuana-related activities in all districts; and

6 WHEREAS, the proposed regulations have been determined not to be a project for the purposes of the California Environmental Quality Act (CEQA); and WHEREAS, the Ordinance attached hereto as Exhibit A amends Chapters 17.02, 17.04, and and adopts a new Chapter 8.30; and WHEREAS, on January 14, 2015, the Planning Commission held a public hearing at which time interested persons had an opportunity to testify either in support or opposition to the proposal and the Planning Commission recommended adoption of the municipal code amendments to the City Council; and WHEREAS, on January 26, the City Council conducted a duly notice public hearing to review and consider the information contained in Planning Application No. PLMC for the amendments to Chapters 17.02, 17.04, of the Zoning Ordinance and adoption of a new Chapter 8.30 of Title 8 (Health and Safety). NOW, THEREFORE, the City Council of the City of Rohnert Park does hearby ordain as follows: Section 1. Section 2. The above recitations are true and correct and material to this Ordinance. In making its findings, the City Council relied upon and hereby incorporates by reference all staff reports, presentations, and other documentation presented to the Council in the meeting. Findings for Enactment of Amendments to Chapters 17.02, 17.04, and The City Council hereby makes the following findings concerning amendments to Chapter 17.02, 17.04, and of the Zoning Ordinance: 1. That the proposed amendments to the Zoning Ordinance are consistent with the General Plan Criteria Satisfied. The proposed amendments to the Zoning Ordinance make no changes affecting the General Plan in that they simply clarify and make express the prohibition against marijuana-related activities, and clarify and make an express provision for Tobacco Stores within the context of the Ordinance. Prohibition of marijuana-related activities does not conflict with any allowable uses in the land use element and does not conflict with any policies or programs in any other element of the General Plan 2. That the proposed amendment to the Zoning Ordinance will be beneficial to the public health, safety or welfare.

7 Criteria Satisfied. The proposed amendments will benefit the public by making express the prohibition against marijuana-related activities, activities with potential adverse effects on the public health, safety, and welfare. The proposed amendment will not have any detrimental impacts and will have some positive impacts to the public health, safety or welfare. 3. That with the proposed zoning and/or amendment adequate and available sites remain (refer to the quantified housing objectives in the city's housing element of the general plan) to mitigate the loss of residential density on the subject property to accommodate the city's "fair share" regional housing needs used by the State Department of Housing and Development in determining compliance with Housing Element Law pursuant to Government Code Section 65863(b). Criteria satisfied. The proposed amendments will not affect the availability of housing or residential density, but rather makes express the City s existing prohibition against marijuana-related land uses. Section 3. Environmental Clearance. The City Council finds the approval of this ordinance is not a project subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines 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 a physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is exempt under CEQA Regulation Section 15061(b)(3) because it can be seen with certainty to have no potential for causing a significant effect on the environment. Section 4. Approval of Municipal Code Amendments. The City Council hereby approves the amendments to the Zoning Ordinance which are attached as Exhibit A and are incorporated by reference as if set forth in full. Section 5. Severability. The City Council hereby declares that every section, paragraph, sentence, clause, and phrase of this ordinance is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses, or phrases.

8 Section 6. Effective Date. This ordinance shall be in full force and effective 30 days after its adoption, and shall be published and posted as required by law. Section 7. Publication. The City Clerk is directed to cause this ordinance to be published in the manner required by law. This ordinance was introduced on January 26, 2016 and adopted by the Council of the City of Rohnert Park on February 9, 2016, by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: CITY OF ROHNERT PARK Gina Belforte, Mayor ATTEST: JoAnne M. Buergler, City Clerk APPROVED AS TO FORM: Michelle Marchetta Kenyon, City Attorney I, JOANNE BUERGLER, CITY CLERK of the City of Rohnert Park, California, do hereby certify that the foregoing Ordinance was duly adopted and passed at a regular meeting of the City Council on the 26th day of January, 2016 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: JoAnne M. Buergler, City Clerk

9 Exhibit A Amendments to the City of Rohnert Park, Municipal Code Add the following chapter to Title 8 of the Municipal Code, as follows: Chapter 8.30 Marijuana Cultivation, Processing, Delivery, and Dispensaries Purpose A. The commercial cultivation, processing, delivery, or dispensing of marijuana can affect the health, safety, and well-being of City residents by increasing the risks of criminal activity, degradation of the natural environment, malodorous smell, and electrical fire hazards that may result from such activities. B. Marijuana cultivation, processing, delivery, or dispensing in any location increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as loitering or crime. C. The above factors have the potential to create significant hazards and nuisances to the public such that a City-wide prohibition of such activities is proper and necessary D. The City Council finds that this chapter: (1) expressly prohibits the cultivation of marijuana in the City and expresses the City s intent to not administer a conditional permit program pursuant to Health & Safety Code section for the cultivation of marijuana in the City; (2) exercises its local authority to enact and enforce local regulations and ordinances, including those regarding the permitting, licensing, or other entitlement of the activities prohibited by this chapter; (3) exercises its police power to enact and enforce regulations for the public benefit, safety, and welfare of the City and its community; and (4) expressly prohibits the delivery of marijuana in the City Definitions A. Marijuana" means any or all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin or separated 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, including marijuana infused in foodstuff or any other ingestible or consumable product containing marijuana, or any extract or infusion preparation. The term "marijuana" shall also include "medical marijuana" as such phrase is used in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the state of California or subject to the provisions of California Health and Safety Code Section (Compassionate Use Act of 1996) or California Health and Safety Code Sections to (Medical Marijuana Program Act). B. "Marijuana Cultivation" means growing, planting, harvesting, drying, curing, grading, trimming, or processing of marijuana. C. Marijuana cultivation facility means any business, facility, use, establishment, property, or location where the cultivation of marijuana occurs. A marijuana cultivation

10 facility shall not include a property where a qualified patient resides and cultivates marijuana pursuant to Health and Safety Code section if the qualified patient maintains no more than three (3) marijuana plants and does not sell, distribute, donate, or provide marijuana to any other person or entity, and the property on which the qualified patient resides and is cultivating marijuana/cannabis has no more than 50 square feet, located indoors, devoted to the cultivation of marijuana /cannabis by any qualified patient or combination of qualified patients (the area used to cultivate marijuana/cannabis shall be measured by the aggregate area of vegetative growth of live marijuana plants on the premises). Notwithstanding this exception, a qualified patient cultivating marijuana may not create or cause a nuisance condition and the city may abate, in any manner permitted by law, a nuisance condition created or caused by, associated with, or arising from marijuana cultivation by a qualified patient. D. "Marijuana Processing" means any method used to prepare marijuana or its byproducts for commercial retail and/or wholesale, including but not limited to: drying, cleaning, curing, packaging, and extraction of active ingredients to create marijuana related products and concentrates. E. Delivery or deliveries means the commercial transfer of marijuana or marijuana products from a dispensary to a primary caregiver or qualified patient as defined in Section of the California Health and Safety Code, or a testing laboratory either owned and controlled by a dispensary or independently licensed that enables qualified patients or primary caregivers to arrange for or facilitate the commercial transfer by a licensed dispensary of marijuana or marijuana products. F. "Marijuana Dispensary" or "Marijuana Dispensaries" means any business, office, store, facility, location, retail storefront or wholesale component of any establishment, cooperative or collective that delivers (as defined in Business & Professions Code section (m) or any successor statute thereto) whether mobile or otherwise, dispenses, distributes, exchanges, transmits, transports, sells or provides marijuana to any person for any reason, including members of any medical marijuana cooperative or collective consistent with the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the state of California, or for the purposes set forth in California Health and Safety Code Section (Compassionate Use Act of 1996) or California Health and Safety Code Sections to (Medical Marijuana Program Act). G. "Medical marijuana collective" or "cooperative or collective" means any group that is collectively or cooperatively cultivating and distributing marijuana for medical purposes that is organized in the manner set forth in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the state of California or subject to the provisions of California Health and Safety Code Section (Compassionate Use Act of 1996) or California Health and Safety Code Sections to (Medical Marijuana Program Act) Prohibited Activities

11 Marijuana cultivation facilities, marijuana processing, marijuana delivery, and marijuana dispensaries shall be prohibited activities in all zones in the City, except where the City is preempted by federal or state law from enacting a prohibition on any such activity. No use permit, variance, building permit, or any other entitlement, license, or permit, whether administrative or discretionary, shall be approved or issued for the activities of marijuana cultivation, marijuana processing, marijuana delivery, or the establishment or operation of a marijuana dispensary in the City, and no person shall otherwise establish or conduct such activities in the City, except where the City is preempted by federal or state law from enacting a prohibition on any such activity for which the use permit, variance, building permit, or any other entitlement, license, or permit is sought Public Nuisance. Any violation of this chapter is hereby declared to be a public nuisance 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 public nuisance and shall, at the discretion of the City, create a cause of action for injunctive relief. Add the following to Title 17 (Zoning) of the Municipal Code as follows: 1. Add the following section: Marijuana-related Uses Prohibited Marijuana cultivation facilities, marijuana processing, marijuana delivery, and marijuana dispensaries as defined in Chapter 8.30 are expressly prohibited in all districts. 2. Add a new definition added to Definitions Tobacco Store shall be as defined in Chapter Amend Land Use Regulations, Section (Permitted Uses). Commercial Land Use table to add the following entry: Land Use Category C-O C-N C-R Tobacco store (retail or wholesale) and private smoker s lounge when attached to a tobacco store (Regulated by Municipal Code Chapters 8.32 and 8.33) C