ATTACHMENT Draft Ordinance No. 1466 ( Code Amendment 2015-005)
ORDINANCE NO. 1466 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING TUSTIN CITY CODE SECTIONS 9270C AND 9297 TO EXPRESSLY PROHIBIT MARIJUANA CULTIVATION, PROCESSING, DELIVERY, AND DISTRIBUTION IN ALL ZONING DISTRICTS. The City Council of the City of Tustin does hereby ordain as follows: Section 1. The City Council finds and determines as follows: A. That the federal Controlled Substance Act (" CSA"), codified at 21 U. S.C. Section 841 et seq., strictly prohibits the cultivation, distribution, possession, or use of marijuana under any circumstance, including for medical purposes. B. That in 1996, California voters approved Proposition 215, entitled The Compassionate Use Act (" CUA"), codified in Health and Safety Code Section 11362. 5 et seq. The CUA, which was intended to enable seriously ill persons to obtain and use marijuana for medical purposes, exempted qualified patients and their primary caregivers from criminal prosecution under state law for the cultivation, distribution, possession, and use of marijuana under specified circumstances. C. That in 2003, the California Legislature enacted Senate Bill ( SB) 420, known as the Medical Marijuana Program Act (" MMPA"), codified in Health and Safety Code Section 11362. 7 et seq. The MMPA clarified the scope and application of the CUA, better defined the regulatory framework for the cultivation, distribution, possession and use of medical marijuana, and recognized the right of cities to regulate the operation, location, and establishment of medical marijuana dispensaries. D. That on February 6, 2006, the City Council adopted Ordinance No. 1309, an interim urgency ordinance, and found that medical marijuana dispensaries are not permitted uses in any zoning district in the City of Tustin (" City") and expressly prohibited the establishment of any medical marijuana dispensary in the City for forty-five ( 45) days pending the commencement of appropriate studies and consideration of alternative land use approaches for addressing the health, safety, and welfare issues associated with the regulation of medical marijuana dispensaries in the City. On March 20, 2006, the City Council adopted Ordinance No. 1310, extending Ordinance No. 1309 for an additional ten ( 10) months and fifteen ( 15) days. E. That on December 4, 2006, the City Council adopted Ordinance No. 1322. The purpose and intent of Ordinance No. 1322 was to prohibit all illegal
Page 2 uses, including medical marijuana dispensaries, to promote the health, safety, morals and general welfare of the residents and businesses within the City. F. That in 2008, the California Attorney General published Guidelines for the Security and Non -Diversion of Marijuana Grown for Medical Use, which, among other things, set forth suggested standards for the lawful operation of medical marijuana cooperatives and collectives, including medical marijuana dispensaries properly organized and operated as collectives or cooperatives. G. That neither the CUA, the MMPA, nor the Attorney General's Guidelines obligate cities to allow or permit medical marijuana dispensaries within their local jurisdictional limits. H. That since the enactment of the CUA, City Staff has researched, evaluated and monitored: ( 1) federal and state laws pertaining to medical marijuana; ( 2) litigation concerning the authority of cities to regulate and prohibit medical marijuana dispensaries; ( 3) medical marijuana dispensary ordinances enacted by other cities; and ( 4) reports and studies on the primary and secondary effects of marijuana dispensaries on local communities. I. That on May 6, 2013, the California Supreme Court in the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., 56 Cal. 4`h 729, confirmed the right of municipalities to ban medical marijuana dispensaries, holding that neither the CUA nor the MMPA preempted a zoning ordinance which declared medical marijuana dispensaries to be a prohibited use of land. J. That on October 9, 2015, Governor Brown signed the " Medical Marijuana Regulation and Safety Act" (" MMRSA"), which is comprised of the State legislative bills known as Assembly Bill ( AB) 243, AB 266, and Senate Bill SB) 643, into law. K. That the MMRSA becomes effective January 1, 2016 and contains provisions that govern the cultivation, processing, transportation, testing, and distribution of medical cannabis to qualified patients. The MMRSA creates a State licensing program for issuance of permits that allow cultivation, processing, delivery/ transportation, and distribution of medical marijuana. The MMRSA also contains new statutory provisions that: 1. Expressly provide that the MMRSA 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));
Page 3 2. Expressly provide that the MMRSA 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)); 3. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section19300.5( m) of the MMRSA, from operating within the local government' s boundaries to enact an ordinance affirmatively banning such delivery activity ( Business & Professions Code 19340( a)); and 4. Require a local government that wishes to prevent cultivation of marijuana, as defined in Business & Professions Code section 19300. 5( 1), within its borders to enact an ordinance affirmatively banning such cultivation activity. ( Health & Safety Code 11362. 77(c)( 4)) L. That several California cities and counties have experienced significant adverse impacts and negative secondary effects on the public health, safety, and welfare associated with and resulting from the establishment and operation of medical marijuana dispensaries. According to these communities, news stories widely reported, and medical marijuana advocates, medical marijuana dispensaries have resulted in and/ or caused an increase in crime, including burglaries, robberies, murders, property damage, illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need, as well as nuisance conditions for adjacent businesses, in the areas immediately surrounding such medical marijuana dispensaries. M. That significant adverse secondary effects arising from the operation of dispensaries throughout California were chronicled in a report prepared by the California Police Chiefs' Association, dated April 22, 2009, as well as by a report prepared by the Orange County Chiefs of Police and Sheriff' s Association, dated June 2, 2010. In these reports, various crimes including armed robberies, murders, and burglary, arising from, or connected with, the operation of these establishments have been recorded by law enforcement agencies in, among numerous other communities, the California communities of Santa Barbara, Mendocino, San Leandro, Hayward, Laytonville, Bellflower, Claremont, and Willits, as well as in various communities in Orange County. N. That the California Police Chiefs' Association report further found: ( a) that there have been reported poisonings from distribution of marijuana products due to contamination issues which are more likely because such
Page 4 products are not inspected by health agencies; ( b) that adverse traffic, noise, and drug dealing impacts occur commonly outside marijuana dispensaries; and ( c) that gang involvement in the ownership and operation of these dispensaries have been reported in some communities. O. That marijuana plants, as they begin to flower and for a period of two months or more, produce a strong odor, which is offensive to many people, and detectable far beyond property boundaries if grown outdoors. P. That 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. 0. That 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. R. That the indoor cultivation of marijuana has potential adverse effects to the structural integrity of the building in which the cultivation activity takes place, including installation of unpermitted roof and floor vents, and issues created by water and mold damage. In addition, the use of high wattage grow lights and excessive use of electricity increases the risk of fire which presents a danger to the building and its occupants. S. That 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. T. That medical marijuana cultivation, processing, delivery, and distribution are not listed as " permitted uses" in any zoning district in the City. The Tustin City Code (" TCC') provides that: ( 1) any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district; and ( 2) Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessory or ancillary use, shall be consistent with applicable state and federal law. Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City. U. That Code Amendment ( CA) 2015-005 clarifies the status of medical marijuana dispensaries as an expressly prohibited land use, and shall not
Page 5 be construed to limit or affect the application of Sections 9270c and 9298g of the TCC to medical marijuana dispensaries or any other land use or activity. V. That on December 8, 2015, a public hearing was duly noticed, called, and held on CA 2015-005 by the Planning Commission. W. That on December 8, 2015, the Planning Commission adopted Resolution No. 4308, and recommended that the City Council adopt Ordinance No. 1466, approving CA 2015-005 to prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts. X. That on January 5, 2016, a public hearing was duly noticed, called, and held on Code Amendment 2015-005 by the City Council. Y. That Code Amendment 2015-005 is consistent with the goals, objectives, and policies of the General Plan as a whole and is not inconsistent with any element thereof in that medical marijuana dispensaries are not a contemplated land use in the General Plan and prohibiting marijuana cultivation, processing, delivery, and distribution activities in all zoning districts of the City is necessary and appropriate to maintain and protect the public health, safety and general welfare of the City as a whole. This Ordinance clarifies that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. Medical marijuana dispensary uses are not allowed by the current General Plan and City Code. Adoption of this Ordinance maintains the current consistency with the General Plan and between the General Plan and the City Code. This Ordinance promotes public health, safety, and general welfare and serves the goals and purposes of the Tustin City Code by clarifying and confirming that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. The continued prohibition of such uses in all zoning districts will ensure that none of the negative secondary effects of medical marijuana dispensaries will adversely impact the general welfare of the City as a whole. Z. That Code Amendment 2015-05 is not subject to the California Environmental Quality Act ( CEQA) pursuant to California Code of Regulations, Title 14, Chapter 3, 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) because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 2. The following definition for " medical marijuana dispensary" is hereby added to Section 3141 of Part 4 of Chapter 1 of Article 3 of the Tustin City
Page 6 Code and Section 9297 of Part 9 of Chapter 2 of Article 9 of the Tustin City Code to read as follows: Medical marijuana dispensary" means any person association, business, facility, use, establishment, location, delivery service, cooperative, collective, or provider, whether fixed or mobile, that possesses, cultivates, processes, distributes, makes available or otherwise facilitates the distribution of marijuana ( in any form or incorporated into any other product) to any person including, but not limited to, a qualified patient, a person with an identification card, or a primary caregiver as those terms are defined in California Health and Safety Code Sections 11362. 5 and 11362. 7 et seq., as may be amended from time to time." Section 3. Section 9270c of Part 7 of Chapter 2 of Article 9 of the Tustin City Code is hereby amended to read as follows ( new text underlined): Prohibited Uses Any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district. Medical marijuana dispensaries as defined in prohibited in all zoning districts. this Code are expressly Section 4. Part 5 of Chapter 1 of Article 3 of the Tustin City Code is hereby added to read as follows: PART 5 PROHIBITED USES AND BUSINESSES 3151 PROHIBITED USES Any use or activity that is illegal under local State or Federal law shall be deemed a prohibited use in all districts within the City. Any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a shall not be allowed in such district prohibited use and such use
Page 7 3152 MEDICAL MARIJUANA DISPENSARIES Medical marijuana dispensaries as defined in prohibited within the City. this Code are expressly Section 5. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held out to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 19th day of January, 2016. JOHN NIELSEN, MAYOR ATTEST: ERIC N. RABE, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) ss. CERTIFICATION FOR ORDINANCE NO. 1466 Erica N. Rabe, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1466 was duly and regularly introduced and read by title only at the regular meeting of the City Council held on the 5th day of January, 2016, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the 19th day of January, 2016, by the following vote:
Page 8 COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Erica N. Rabe, City Clerk Published: