STAFF REPORT. Agenda Item: _A Date of Meeting: March 28, 2017 Department: Planning. City of Bishop Planning Commission

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1 Agenda Item: _A Date of Meeting: March 28, 2017 Department: Planning STAFF REPORT To: From: Subject: City of Bishop Planning Commission Elaine Kabala, Associate Planner Proposed Ordinance Repealing Title 8, Chapter 36 Entitled Medical Marijuana Dispensaries And Adding Title 17, Chapter 79 Entitled Marijuana Cultivation and Marijuana-Related Businesses Prepared on: March 22, 2017 Attachments: A) Resolution of the Planning Commission of the City of Bishop, State of California, Recommending Adoption of an Ordinance Repealing Title 8, Chapter 36 Entitled Medical Marijuana Dispensaries And Adding Title 17, Chapter 79 Entitled Marijuana Cultivation and Marijuana-Related Businesses Background: On November 8, 2016, the electorate of the State of California passed Proposition 64 ( Prop 64 ), which enacted the Control, Regulate and Tax Adult Use of Marijuana Act ( AUMA ). AUMA allows adults 21 and over to use, possess, and cultivate limited amounts of marijuana, establishes a state licensing and regulation scheme for marijuana businesses serving the recreational market, imposes a 15% tax on the sale of marijuana which will be used in part to fund research on the effects of recreational marijuana use, and will change criminal penalties for specified marijuana crimes. AUMA allows local jurisdictions to place reasonable regulations on the personal cultivation of marijuana within their jurisdiction, and explicitly permits them to prohibit personal cultivation of marijuana outdoors. AUMA also establishes state licensing and regulation system for non-medical marijuana businesses to operate within the state, including cultivation, manufacturing, distribution, dispensary, and testing laboratory businesses. AUMA allows local jurisdictions to prohibit these types of business from operating within their jurisdictions, or to regulate their operation. Businesses applying for state licenses operate these types of businesses must comply with all local regulations. Prop 64 allows for the following activities to be regulated by local jurisdictions: 1. Commercially based activities including: a. Cultivation b. Processing/Manufacturing c. Sales/Distribution Page 1 of 3

2 d. Delivery/Transportation e. Testing Laboratories 2. Indoor/Greenhouse Cultivation 3. Outdoor Cultivation Prior to the enactment of Prop 64, the Bishop City Council and Planning Commission held several public meetings during 2015 and 2016 to garner public input on regulation of commercial cannabis facilities and cultivation, and private cultivation within the City of Bishop. On February 13, 2017, the Bishop City Council meeting took all this public input into consideration to provide guidance on crafting an ordinance regulating commercial and personal marijuana sales, distribution, and cultivation. The proposed ordinance repeals Title 8, Chapter 26 of the Bishop Municipal Code, which regulates Medical Marijuana Dispensaries (which are currently banned in all forms), and add Title 17, Chapter 70 to the Municipal Code, entitled Marijuana Cultivation and Marijuana-Related Businesses. In summary, the new code section: adds definitions specific to marijuana regulation; permits personal outdoor cultivation of marijuana consistent with state law so long as it is not visible from the public right of way, and remains secure from the public; prohibits the location and operation of all marijuanarelated businesses, both medical and non-medical; and allows for dispensaries operating lawfully in other jurisdictions to make deliveries within City limits. Marijuana delivery businesses would be required to obtain a City business license and comply with all applicable business transacting laws within the City. Additional restrictions include barring any marijuana from being cultivated within 600 feet of a public or private school (pre-school through high school). All indoor cultivation must comply with all City of Bishop and State of California building, health and safety codes. The Ordinance also includes an enforcement clause that declares any violation of this policy to be declared a public nuisance, which may be abated by the City Attorney, by prosecution of a civil action for injunctive relief. The enforcement clause also authorizes the Police Department to order the abatement of any violation of this policy. General Plan Consistency: Generally, the proposed ordinance has minimal impact on land use, and if anything, preserves existing land uses and development standards, and is therefore consistent with eh City of Bishop General Plan. The ordinance is intended to reduce public safety hazards associated with increased fire risk from indoor cultivation and threat of increased criminal activity associated with theft or violent confrontation, which supports the goals of the Bishop General Plan Safety Element. Environmental Review: The project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA guidelines, and the City's environmental procedures, and has been found to be exempt pursuant to Section (b) (3) (general rule) of the CEQA Guidelines, in that the City Council hereby finds that it can be seen with certainty that there is no possibility that the passage of this ordinance amending the Municipal Code will have a significant effect on the environment. Page 2 of 3

3 Recommendation: The Planning Commission should conduct a public hearing regarding the proposed Ordinance related to Marijuana Dispensaries and Cultivation, provide input to staff regarding the proposed ordinance, and adopt the Resolution Recommending Adoption of an Ordinance Repealing Title 8, Chapter 36 Entitled Medical Marijuana Dispensaries And Adding Title 17, Chapter 79 Entitled Marijuana Cultivation and Marijuana-Related Businesses. Page 3 of 3

4 Attachment A RESOLUTION NO A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF BISHOP, STATE OF CALIFORNIA, RECOMMENDING ADOPTION OF AN ORDINANCE REPEALING TITLE 8, CHAPTER 36 ENTITLED MEDICAL MARIJUANA DISPENSARIES AND ADDING TITLE 17, CHAPTER 79 ENTITLED MARIJUANA CULTIVATION AND MARIJUANA-RELATED BUSINESSES The Planning Commission of the City of Bishop finds and determines that: Section 1. A. The Ordinance repealing Title 8, Chapter 36 entitled Medical Marijuana Dispensaries and adding Title 17, Chapter 79 entitled Marijuana Cultivation And Marijuana- Related Businesses is exempt from review under the California Environmental Quality Act pursuant to California Code of Regulations Section (b)(3) Activity is not subject to CEQA because there is no possibility the Ordinance will have a significant effect on the environment; and B. The activities permitted under the Ordinance are consistent with and implement the goals and policies of the Bishop General Plan; Section 2. The Planning Commission hereby recommends City Council approval of the Ordinance repealing Title 8, Chapter 36 entitled Medical Marijuana Dispensaries and adding Title 17, Chapter 79 entitled Marijuana Cultivation And Marijuana-Related Businesses in the form attached hereto as Exhibit 1 and incorporated herein by this reference. PASSED, APPROVED AND ADOPTED by the Planning Commission of the City of Bishop at a public meeting held on the 28 th day of March, ATTEST:,CHAIRMAN By: Secretary

5 Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BISHOP, STATE OF CALIFORNIA, REPEALING TITLE 8, CHAPTER 36 ENTITLED MEDICAL MARIJUANA DISPENSARIES AND ADDING TITLE 17, CHAPTER 79 ENTITLED MARIJUANA CULTIVATION AND MARIJUANA-RELATED BUSINESSES WHEREAS, the City of Bishop, pursuant to its police power, may adopt regulations to protect the health, safety and welfare of the public, Cal. Const. art. XI, 7, Cal. Govt. Code 37100, and thereby is authorized to declare what use or condition constitutes a public nuisance; and WHEREAS, Section of the California Government Code authorizes the City through its legislative body to declare actions and activities that constitute a public nuisance; and WHEREAS, in 1970, Congress enacted the Controlled Substances Act (21 U.S.C. Section 801 et seq.) which, among other things, makes it illegal to import, manufacture, distribute, possess, or use marijuana for any purpose in the United States and further provides criminal penalties for marijuana possession, cultivation and distribution; and WHEREAS, the People of the State of California have enacted Proposition 215, the Compassionate Use Act of 1996 (codified at Health and Safety Code Section et seq.) (the CUA ), which exempts qualified patients and their primary caregivers from criminal prosecution under enumerated Health and Safety Code sections for use of marijuana for medical purposes; and WHEREAS, the California Legislature enacted Senate Bill 420 in 2003, the Medical Marijuana Program Act (codified at Health and Safety Code Section et seq.) (the MMPA ), as amended, which created a state-wide identification card scheme for qualified patients and primary caregivers; and WHEREAS, on October 11, 2015, the Governor signed into law Senate Bill 643, Assembly Bill 266, and Assembly Bill 243, collectively referred to as the Medical Marijuana Regulation and Safety Act ( MMRSA ), effective January 1, 2016, which establishes a state licensing system for medical marijuana cultivation, manufacturing, delivery, and dispensing, regulating these activities with licensing requirements and regulations that are only applicable if cities and counties also permit marijuana cultivation, manufacturing, dispensing, and delivery within their jurisdictions. Under the MMRSA, cities and counties may continue to ban medical marijuana cultivation, manufacturing, dispensing, and delivery, in which case the new law would not allow or permit these activities within the cities and counties; and WHEREAS, effective June 27, 2016, SB 837 changed the name of the Medical Marijuana Regulation and Safety Act to the Medical Cannabis Regulation and Safety Act ( MCRSA ). WHEREAS, the MCRSA expressly protects a City s local licensing practices, zoning authority, and other local actions taken under the City s constitutional municipal and police powers; and WHEREAS, the MCRSA contains statutory provisions that:

6 (1) Allow local governments to enact ordinances expressing their intent to allow or prohibit the cultivation of cannabis and their intent to administer or not administer a conditional permit program pursuant to California Health and Safety Code section for the cultivation of cannabis; (2) Expressly provide that the Act does not supersede or limit local authority for local law enforcement activity, enforcement of local ordinances or enforcement of local permit or licensing requirements regarding cannabis per California Business and Professions Code section 19315(a); (3) Expressly provide that the Act does not limit the civil or administrative authority or remedies of a local government provision of law regarding cannabis including, but not limited to, a local government s right to make and to enforce within its limits all regulations not in conflict with general laws per California Business and Professions Code section 19316(c); (4) Specifically requires, as a condition of state licensure, compliance with any and all local requirements for all cannabis-related operations; and WHEREAS, on November 8, 2016, the electorate of the State of California passed Proposition 64 ( Prop 64 ), which enacted the Control, Regulate and Tax Adult Use of Marijuana Act ( AUMA ). AUMA allows adults 21 and over to use, possess, and cultivate limited amounts of marijuana, establishes a state licensing and regulation scheme for marijuana businesses serving the recreational market, imposes a 15% tax on the sale of marijuana which will be used in part to fund research on the effects of recreational marijuana use, and will change criminal penalties for specified marijuana crimes. AUMA allows local jurisdictions to place reasonable regulations on the personal cultivation of marijuana within their jurisdiction, and explicitly permits them to prohibit personal cultivation of marijuana outdoors. AUMA also establishes state licensing and regulation system for non-medical marijuana businesses to operate within the state, including cultivation, manufacturing, distribution, dispensary, and testing laboratory businesses. AUMA allows local jurisdictions to prohibit these types of business from operating within their jurisdictions, or to regulate their operation. Businesses applying for state licenses operate these types of businesses must comply with all local regulations; and WHEREAS, notwithstanding the CUA, the MMPA, the MCRSA, and the AUMA, marijuana remains a schedule I substance pursuant to federal law, 21 U.S.C. 812, Schedule 1 (c)(10), and federal law does not provide for any medical use defense or exception (Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Oakland Cannabis Buyers Coop., 532 U.S. 483 (2001)); and WHEREAS, the California Supreme Court has established that neither the CUA nor the MMPA preempt local regulation in the case of City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013); and WHEREAS, the MCRSA expressly allows cities and counties to ban medical marijuana cultivation consistent with current state law including the case of City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013); WHEREAS, AUMA allows local jurisdictions to reasonably regulate the personal cultivation of marijuana and to prohibit all non-medical marijuana businesses from locating and operating within their jurisdictions; WHEREAS, the City Council of the City of Bishop City finds that it is in the interest of the health, safety and welfare of the City to regulate both indoor and outdoor marijuana cultivation within the City;

7 WHEREAS, the City Council finds that the cultivation of marijuana significantly impacts, or has the potential to significantly impact, the City s jurisdiction. These impacts include the following: A. The unregulated cultivation of marijuana can adversely affect the health, safety and wellbeing of the city and its residents. Comprehensive regulation of premises used for marijuana cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, smells and indoor electrical fire hazards that may result from unregulated marijuana cultivation, especially if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana can be cultivated in a concentrated place. B. Unlimited and unregulated indoor cultivation of substantial amounts of marijuana also frequently requires excessive use of electricity, which often creates an unreasonable risk of fire from the electrical grow lighting systems used in indoor cultivation. C. Children are particularly vulnerable to the effects of marijuana use, and the presence of marijuana plants has proven to be an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children including schools, parks or playgrounds, childcare centers, recreation centers or youth centers. Cultivation of marijuana which is observable from the public right of way at, or near these sensitive uses presents unique risks that the marijuana plants may be observed by juveniles, and therefore be especially vulnerable to theft or recreational consumption by juveniles. Further, the potential for criminal activities associated with marijuana cultivation in such locations poses heightened risks that juveniles will be involved or endangered. Therefore, cultivation of marijuana which can be publicly viewed in such locations or premises is especially hazardous to public safety and welfare, and to the protection of children and the person(s) cultivating the marijuana plants. WHEREAS, the establishment of recreational/non-medical marijuana businesses including manufacturers, cultivators, distributors, transporters, dispensaries, and testing laboratories is not an appropriate land use within the City of Bishop, so the City Council desires to exercise their authority given under the MCRSA and the AUMA to prohibit these businesses from operating within the City; and WHEREAS, the City does not intend by enacting this ordinance to either burden any defense to a criminal prosecution set forth in the CUA, the MMPA, the MCRSA, or the AUMA or any other state law, or to criminalize any activities otherwise permitted by the state legislature through the CUA, the MMPA, or the MCRSA, or any other state law. WHEREAS, the City of Bishop, California, pursuant to the provisions of the California Environmental Quality Act (hereinafter CEQA ) (California Public Resources Code Sections et seq.) and State CEQA guidelines (Sections et seq.) has determined that the Ordinance is exempt pursuant to Section 15061(b)(3) of Title 14 the California Code of Regulations because the ordinance is not allowing new activity, but instead regulates activities that are permitted by state law and prohibits types of businesses from operating in the future that are not currently operating within the City; and WHEREAS, the City Council finds that the provisions of this Ordinance are consistent with the City of Bishop s General Plan; and WHEREAS, on, the Planning Commission of the City of Bishop held a duly-noticed public hearing and considered the staff report, recommendations by staff and the City Attorney, and public testimony regarding the proposed Ordinance repealing Chapter 8.36 of the Municipal Code entitled Medical Marijuana Dispensaries and adding Chapter entitled

8 Marijuana Cultivation and Marijuana-Related Businesses, and voted to forward the proposed ordinance to the City Council with a recommendation in favor of its adoption; WHEREAS, on, City Council of the City of Bishop held a duly-noticed public hearing and considered the staff report, recommendations by staff and the City Attorney, and public testimony regarding the Ordinance repealing Chapter 8.36 of the Municipal Code entitled Medical Marijuana Dispensaries and adding Chapter entitled Marijuana Cultivation and Marijuana- Related Businesses. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BISHOP DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Title 8, Chapter 36 of the Bishop Municipal Code is hereby repealed in its entirety. SECTION 2. Title 17, Chapter 70 is hereby added to the Bishop Municipal Code to read as follows: "Chapter MARIJUANA CULTIVATION AND MARIJUANA-RELATED BUSINESSES Section PURPOSE AND INTENT A. The purpose and intent of this chapter are to require that marijuana be cultivated so as not to be visible to the general public, to provide for the health, safety and welfare of the public, to prevent negative impacts to property values, to prevent odor created by marijuana plants from impacting adjacent properties, to prevent crime associated with marijuana, and to ensure that marijuana grown for medical or recreational purposes remains secure and does not find its way to minors or illicit markets. Nothing in this chapter is intended to authorize the cultivation, possession, or use of marijuana for in violation of state or federal law. B. It is also the purpose of this chapter to prohibit the location and operation of all marijuanarelated businesses, both medical and non-medical, within the City of Bishop. Although marijuana dispensaries lawfully operating in other jurisdictions are permitted to make deliveries within the City of Bishop, provided those dispensaries adhere to the regulations contained in this Chapter. C. It is not the intent of this chapter to create conflict or inconsistency between this chapter and (A) the Constitutions of the United States or the state of California; (B) the federal Controlled Substances Act; or (C) California law. Section DEFINITIONS For purposes of this chapter, the following definitions shall apply, unless the context clearly indicates otherwise: Abatement means the removal of marijuana plants and improvements that support marijuana cultivation that are maintained in violation of this chapter. Cultivation or marijuana cultivation means the planting, growing, harvesting, drying, or processing of marijuana plants, or any part thereof. Indoors means within a fully enclosed and secure structure.

9 Marijuana shall have the same meaning as is set forth in Health and Safety Code section 11018, and as amended. Marijuana Products shall have the same meaning as is set forth in Health and Safety Code section , and as amended. Outdoors means any location within the city of Bishop that is not within a fully enclosed and secure structure. Parcel means property assigned a separate parcel number by the Inyo County assessor. Premises means a single, legal parcel of property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall constitute a single premises for purposes of this chapter. Private residence shall have the same meaning as is set forth in Health and Safety Code section , and as amended CULTIVATION OF MARIJUANA FOR PERSONAL USE. As permitted by state law, persons 21 years or older may cultivate marijuana within the City of Bishop, provided they comply with all state law requirements and the regulations contained in this Section. A. Outdoor Cultivation of Marijuana. 1. No marijuana cultivated outdoors, whether for medical or non-medical (recreational) use, within the city shall be visible from a public right-of-way. 2. No marijuana shall be cultivated outdoors on a property that is within six hundred (600) feet of a public or private preschool or K-12 school, licensed day care center, or public park managed by the City of Bishop. The distance between parcels shall be the horizontal distance measured in a straight line from any property line of the sensitive use to the closest property line of the lot on which the cannabis is or is to be cultivated, without regard to any intervening structures. B. Indoor Cultivation of Marijuana. Marijuana cultivated indoors, within the City of Bishop, shall be in conformance with the following standards: 1. From a public right-of-way, there shall be no exterior evidence of marijuana cultivation. 2. Cultivation of marijuana indoors shall be conducted in compliance will all applicable City of Bishop and State of California building, health and safety codes MARIJUANA-RELATED BUSINESSES PROHIBITED. No marijuana-related business is permitted to locate or operate within the City of Bishop, except marijuana deliveries may be made in accordance with Section below. Marijuana-related business includes medical marijuana businesses described in the Medical Cannabis Regulation and Safety Act as cultivators, manufacturers, distributors, testing facilities, delivery businesses, or dispensaries, and non-medical marijuana businesses described in the Control, Regulate and Tax Adult

10 Use of Marijuana Act as cultivators, manufacturers, testing businesses, retailers, distributors, and microbusinesses DELIVERY OF MARIJUANA TO LOCATIONS WITHIN THE CITY PERMITTED. Lawfully licensed marijuana dispensaries (either medical or non-medical) from jurisdictions outside the City of Bishop may make deliveries of marijuana or marijuana products to location within the City of Bishop provided they comply with the following requirements: A. The marijuana dispensary must obtain a City of Bishop business license and comply with all applicable City of Bishop regulations applicable to businesses transacting business within the City; and B. Payment for marijuana or marijuana products delivered by the marijuana dispensaries may not be tendered or accepted at the time the delivery is made. This regulation is intended to protect the delivery personnel and the customer from potential thefts before, during, and after the delivery is made ENFORCEMENT. A. Any violation of this chapter is hereby declared to be a public nuisance. B. A violation of this chapter may be abated by the city attorney, or other counsel retained by the City, by the prosecution of a civil action for injunctive relief and/or by the abatement procedure set forth in City or state law. C. The Chief of Police, or his or her designee (hereafter the enforcement official ), is hereby authorized to order the abatement of any violation of this chapter by following the abatement procedure as defined in Chapter D. The remedies provided herein are cumulative, alternative and nonexclusive. The use of one does not prevent the use of any others, and none of these remedies prevents the city from using any other remedy at law or in equity which may be available to enforce this chapter or to abate a public nuisance. E. A violation of this chapter may be charged as a criminal violation, if allowed by state law. SECTION 3. ENVIRONMENTAL DETERMINATION. The project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA guidelines, and the City's environmental procedures, and has been found to be exempt pursuant to Section (b) (3) (general rule) of the CEQA Guidelines, in that the City Council hereby finds that it can be seen with certainty that there is no possibility that the passage of this ordinance amending the Municipal Code will have a significant effect on the environment. SECTION 4. INCONSISTENCIES. Any provision of the Bishop Municipal Code or appendices thereto inconsistent with the provisions of this ordinance, to the extent of such inconsistencies and or further, is hereby repealed or modified to the extent necessary to affect the provisions of this ordinance. SECTION 5. SEVERABILITY. If any provision or clause of this ordinance or the application thereof to any person or circumstances is held to be unconstitutional or otherwise

11 invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions or clauses or applications of this ordinance which can be implemented without the invalid provision, clause or application; and to this end, the provisions of this ordinance are declared to be severable. SECTION 6. EFFECTIVE DATE. Effective Date. This ordinance shall be in full force and effect commencing thirty (30) days after its final adoption and a summary hereof shall be published once within fifteen (15) days in the, a newspaper of general circulation printed and published in the County of Inyo and circulated in the City of Bishop and hereby designated for that purpose by the City Council. SECTION 7. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published in the manner and form provided by law in the Inyo Register, a newspaper of general circulation printed and published in the City of Bishop, State of California, which said newspaper is hereby designated for that purpose. PASSED, APPROVED AND ADOPTED this day of, JOE PECSI, MAYOR APPROVED AS TO FORM: Ryan R. Jones, City Attorney ATTEST: Jim Tatum, City Clerk By: Robin Picken, Assistant City Clerk