Scott Friend, AICP Community Development Director Rick Crabtree, City Manager/Attorney

Transcription

1 Date: December 28, 2015 To: City Council From: Scott Friend, AICP Community Development Director Rick Crabtree, City Manager/Attorney SUBJECT: ORDINANCE NO: 1041; AN ORDINANCE OF THE CITY OF RED BLUFF IMPOSING AN EXPRESS BAN ON MARIJUANA CULTIVATION, MARIJUANA PROCESSING, MARIJUANA DELIVERY, AND MARIJUANA DISPENSARIES IN THE CITY. STAFF RECOMMENDATION: Staff recommends adoption of Ordinance No which amends the Red Bluff City Code, Title 25, Zoning, to prohibit marijuana cultivation, processing, delivery and dispensaries in the City. Staff also recommends that the City Council find that the proposed action is exempt from CEQA review under Public Resources Code Section 15061(b)(3), commonly described as the general rule exemption. 1. Conduct the public hearing. 2. Introduce Ordinance No and waive reading of the entire ordinance. 3. Give other direction to staff as the Council deems appropriate. SUMMARY The legislative package collectively known as the California Medical Marijuana Regulation and Safety Act (MMRSA) was recently enacted to establish a legislative framework to address the cultivation, processing, delivery, distribution and use of medical marijuana in the state of California. With the passage of the MMRSA, California Cities and Counties were given until March 1, 2016 to enact local legislation (Ordinances) regulating or prohibiting the cultivation, processing, delivery, distribution and use of medical marijuana in their communities. Cities and counties electing to adopt and enact local regulations by the March 1, 2016 deadline will be allowed to regulate Medical Marijuana at the local level while cities and counties not having adopted and effective Ordinances by March 1, 2016 will be prohibited from adopting local regulations and will be subject to the permitting structure of the State of California for this purpose. Page 1 of 3 The City of Red Bluff is an equal opportunity provider

2 City of Red Bluff Staff Report Medical Marijuana Regulation and Safety Act of 2015 Ordinance No. 41 Page 2 PLANNING COMMISSION RECOMMENDATION At its meeting conducted on December 22, 2015, the Planning Commission voted 3-1 to adopt Planning Commission Resolution , recommending adoption of the proposed Ordinance. BACKGROUND / DISCUSSION In October 2015, Governor Jerry Brown signed into law Assembly Bills No. 266, No. 243 and Senate Bill No Together these bills are referred to as the California Medical Marijuana Regulation and Safety Act (MMRSA). The Legislative Intent of the MMRSA package of bills is to establish a legal framework for the regulation of cultivation, manufacture, distribution, transportation, delivery, sales and testing of medical marijuana in the State of California. A brief summary of each of the three legislative bills: AB 266, enacts licensing and regulatory requirements for medical marijuana and would establish within the Department of Consumer Affairs the Bureau of Medical Marijuana Regulation. AB 243 requires the state licensing authority to charge each licensee under the Act a licensure and renewal fee, as applicable, and would further require the deposit of those collected fees into an account specific to that licensing authority in the Medical Marijuana Regulation and Safety Act Fund. SB 643 sets forth standards for a physician and surgeon prescribing medical cannabis and requires the Medical Board of California to identify and discipline physicians and surgeons that have repeatedly recommended excessive cannabis to patients for medical purposes or repeatedly recommended cannabis to patients for medical purposes without a good faith examination. One of the primary intentions of the MMRSA is the implementation of dual licensing scheme. Under this approach, a medical marijuana business in any city or county having an adopted local Ordinance on the subject may only operate if it has permission from the State and permission from the local city or county. However, in order to retain local control over medical marijuana related activities, the local agency (city or county) must adopt and have in-place a working Ordinance prohibiting or otherwise regulating the cultivation, dispensing and delivery of medical marijuana. All locally adopted Ordinances must be effective no later than March 1, 2016 to qualify. As such, any agency wishing to adopt such an Ordinance must have introduced and approved the Ordinance and have had the second reading of the Ordinance on or before January 29, 2016 to provide for the mandatory thirty (30) day delay period required of all Ordinances to become effective. Page 2 of 3 The City of Red Bluff is an equal opportunity provider

3 City of Red Bluff Staff Report Medical Marijuana Regulation and Safety Act of 2015 Ordinance No. 41 Page 3 Currently, the City of Red Bluff does not have an Ordinance prohibiting or otherwise regulating the cultivation, processing, delivery, and dispensing of marijuana. (However, medical marijuana dispensaries are not identified as a permitted use in any zoning district within the City.) Further discussion of the Medical Marijuana Regulation and Safety Act and how it affects the City has been provided by the League of California Cities and included as Attachment A to this report. Included as Attachment B is the proposed Ordinance imposing an express ban on marijuana cultivation, processing, delivery, and dispensaries in the City. CEQA Staff believes that the proposed Ordinance ( Project ) meets the requirements to qualify for an exemption from further environmental review from the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 15061(b)(3), commonly described as the general rule exemption. See Attachment C. Respectfully submitted; Scott Friend, AICP Community Development Director Richard Crabtree City Manager / City Attorney Attachments: A. Information from the League of California Cities information B. Proposed Ordinance C. CEQA Determination Notice of Exemption D. Planning Commission Resolution No Page 3 of 3 The City of Red Bluff is an equal opportunity provider

4 Attachment A League of California Cities Marijuana Information

5 City of Red Bluff Staff Report Medical Marijuana Regulation and Safety Act of 2015 Ordinance No. 41 Page 5

6 ORDINANCE NO AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RED BLUFF, CALIFORNIA, IMPOSING AN EXPRESS BAN ON MARIJUANA CULTIVATION, MARIJUANA PROCESSING, MARIJUANA DELIVERY, AND MARIJUANA DISPENSARIES IN THE CITY The City Council of the City of Red Bluff does ordain as follows: SECTION 1. The City Council finds and declares as follows: (A) In 1996, the voters of the State of California approved Proposition 215 (codified as Health & Safety Code Section et seq. and entitled "The Compassionate Use Act of 1996" referred to herein as the "CUA"); (B) The intent of the CUA was to enable seriously ill Californians to legally possess, use, and cultivate marijuana for medical use under state law once a physician has deemed the use beneficial to a patient s health; (C) 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 California Penal Code; (D) Neither the CUA nor the MMP require or impose an affirmative duty or mandate upon a local government to allow, authorize, or sanction the establishment of facilities that cultivate or process medical marijuana within its jurisdiction; (E) In May 2013, the California Supreme Court issued its decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., et al. (56 Cal.4 th 729), holding that cities have the police power authority to completely and permanently ban medical marijuana land uses; (F) Also in 2013, the California Third District Court of Appeal held that cities have the authority to prohibit marijuana cultivation citywide in the case known as Maral v. City of Live Oak (221 Cal.App.4 th 975); (G) 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; (H) On October 9, 2015, Governor Jerry Brown signed the "Medical Marijuana Regulation and Safety Act" (" Act"), which is comprised of the state legislative bills known as AB 243, AB 266, and SB 643, into law;

7 (I) The Act becomes effective January 1, 2016 and contains provisions that govern the cultivating, processing, transporting, testing, and distributing of medical cannabis to qualified patients. The Act also contains new statutory provisions that: Allow local governments to enact ordinances expressing their intent to prohibit the cultivation of marijuana and their intent not to administer a conditional permit program pursuant to Health & Safety Code Section for the cultivation of marijuana (Health & Safety Code (c)(4)); 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 marijuana (Business & Professions Code 19315(a)); Expressly provide that the Act does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government s right to make and enforce within its limits all police regulations not in conflict with general laws (Business & Professions Code 19316(c)); and Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section (m) of the Act, from operating within the local government s boundaries to enact an ordinance affirmatively banning such delivery activity (Business & Professions Code 19340(a)); (J) Several California cities have reported negative impacts of marijuana cultivation, processing and distribution activities, including offensive odors, illegal sales and distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire hazards, and problems associated with mold, fungus, and pests; (K) Marijuana plants, as they begin to flower and for a period of two months or more, produce a strong odor, offensive to many people, and detectable far beyond property boundaries if grown outdoors; (L) In the case of multiple qualified patients who are in control of the same legal parcel, or parcels, of property, or in the case of collective or cooperative cultivation, or in the case of a caregiver growing for numerous patients, a very large number of plants could be cultivated on the same legal parcel, or parcels, within the City of Red Bluff ("City"); (M) The strong smell of marijuana creates an attractive nuisance, alerting persons to the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery; (N) The indoor cultivation of marijuana has potential adverse effects to the structural integrity of the building, and the use of high wattage grow lights and excessive use of

8 electricity increases the risk of fire which presents a clear and present danger to the building and its occupants; (O) The Attorney General's August 2008 Guidelines for the Security and Non- Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that nearby homes or businesses may be negatively impacted by nuisance activity such as loitering or crime; (P) Based on the experiences of other cities, these negative effects on the public health, safety, and welfare are likely to occur, and continue to occur, in the City due to the establishment and operation of marijuana cultivation, processing and distribution activities; (Q) The California Constitution, Article XI, section 7, provides cities with broad authority to determine, for purposes of health, safety, and welfare, the appropriate uses of land within a city s boundaries; (R) Prior to the effective date of this ordinance, the cultivation, processing and distribution of medical marijuana is prohibited in the City to the extent such activities are prohibited by the Federal Controlled Substances Act or other law; (S) Based on the findings above, the potential establishment of the cultivation, processing and distribution of medical marijuana in the City without an express ban on such activities poses a current and immediate threat to the public health, safety, and welfare in the City due to the negative impacts of such activities as described above; (T) The issuance or approval of business licenses, subdivisions, use permits, variances, building permits, or any other applicable entitlement for marijuana cultivation, processing, delivery, and/or distribution will result in the aforementioned threat to public health, safety, and welfare; (U) It is in the interest of the City, its residents, and its lawfully permitted businesses that City adopts this ordinance to expressly prohibit the establishment and operation of marijuana cultivation, processing, delivery, and dispensary activities as well as the issuance of any use permit, variance, building permit, or any other entitlement, license, or permit for any such activity, except where the City is preempted by federal or state law from enacting a prohibition on any such activity or a prohibition on the issuance of any use permit, variance, building permit, or any other entitlement, license, or permit for any such activity. Section 2. In order to protect the health, safety and welfare of the citizens of Red Bluff, Chapter 25: Zoning, Article XXII: PROHIBITED USES, Section of the Code of the City of Red Bluff is added to read as follows:

9 LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE. (A) The City Council finds that the prohibitions on marijuana cultivation, marijuana processing, marijuana delivery, and marijuana dispensaries are necessary for the preservation and protection of the public health, safety, and welfare for the City and its community. The City Council s prohibition of such activities is within the authority conferred upon the City Council by applicable state law. (B) On October 9, 2015, the governor signed the "Medical Marijuana Regulation and Safety Act" ("Act") into law. The Act becomes effective January 1, 2016 and contains new statutory provisions that: (1) Allow local governments to enact ordinances expressing their intent to prohibit the cultivation of marijuana and their intent not to administer a conditional permit program pursuant to Health & Safety Code section for the cultivation of marijuana (Health & Safety Code (c)(4)); (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 marijuana (Business & Professions Code 19315(a)); (3) Expressly provide that the Act does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government s right to make and enforce within its limits all police regulations not in conflict with general laws (Business & Professions Code 19316(c)); and (4) Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section (m) of the Act, from operating within the local government s boundaries to enact an ordinance affirmatively banning such delivery activity (Business & Professions Code 19340(a)). (C) The City Council finds that this Article: (1) expresses its intent to prohibit the cultivation of marijuana in the City and 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. For purposes of this Article, the following definitions shall apply:

10 (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. 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 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. (D) "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). (E) "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).

11 Prohibited Activities. Marijuana cultivation, marijuana processing, marijuana delivery, and marijuana dispensaries shall be prohibited activities 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 Article is hereby declared to be a public nuisance Severability. If any section, subsection, sentence or clause of this Article is, for any reason, held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Article. Section 3. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses or phrases be declared, invalid or unconstitutional. Section 4. The City Council finds the approval of this ordinance is not 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 physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment. Section 5. Within 15 days from the passage thereof, this ordinance shall be published at least once in the Red Bluff Daily News, a newspaper of general circulation, published and circulated in the City of Red Bluff. This Ordinance shall take effect thirty (30) days after the date of its adoption.

12 This ordinance was introduced at a regular meeting of the City Council of the City of Red Bluff, held on January 5, 2016 and adopted at a regular meeting of the City Council of Red Bluff, held on the January 19, 2016 by the following vote: AYES: NOES: Councilmembers: Councilmembers: ABSENT OR NOT VOTING: Councilmembers: Clay Parker, MAYOR ATTEST: Jo Anna Lopez, City Clerk APPROVED AS TO FORM: Richard Crabtree, City Attorney

13 NOTICE OF EXEMPTION CEQA: California Environmental Quality Act To: Office of Planning and Research From: City of Red Bluff 1400 Tenth Street, Room Washington St. Sacramento, CA Red Bluff, CA County of Tehama P.O. Box 250, Red Bluff, CA County Clerk Project Title: ZCA ; To Establish an Ordinance Regulating Marijuana Cultivation, Marijuana Processing, Marijuana Delivery, And Marijuana Dispensaries in the City Project Location - Specific: Citywide - City: Red Bluff - County: Tehama Description of Nature, Purpose, and Beneficiaries of Project: To Establish an Ordinance Regulating Marijuana Cultivation, Marijuana Processing, Marijuana Delivery, And Marijuana Dispensaries in the City Name of Public Agency Approving Project: City of Red Bluff Name of Person or Agency Carrying Out Project: City of Red Bluff Exempt Status: (check one) Ministerial (Sec (b) (1); 15268); Declared Emergency (Sec (b) (3); (a) ); Emergency Project (Sec (b) (4); (b) (c) ); Categorical Exemption. Type and Section Number: Statutory Exemption. Code Number: Section 15061(b)(3) General Rule Reasons why project is exempt: Project is exempt from the California Environmental Quality Act under 15061(b)(3) of the CEQA Guidelines because the proposed action to amend the City s Zoning Code would not result nor permit new development at a density or intensity in excess of what is permitted at the current time and under current regulations and would not allow for new development methods, techniques or applications that would physically impact the environment. The project would amend the text of the City s Zoning Code to address omissions in the Red Bluff City Code. Therefore, it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Lead Agency Contact Person: Scott Friend; Community Development Director Area Code/Telephone/Extension: (530) , Extension If filed by applicant: 1. Attach certified document of exemption finding. 2. Has a Notice of Exemption been filed by the public agency approving the project? Yes No Community Development Director Signature: Date Title Signed by Lead Agency Date Received for Filing At OPR: The City of Red Bluff is an equal opportunity provider