PC R 15-2241RESOLUTION NO. 15 -2241
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
ARROYO GRANDE RECOMMENDING THAT THE CITY COUNCIL
ADOPT AN ORDINANCE ADDING CHAPTER 16.62 TO TITLE 16 OF
THE ARROYO GRANDE MUNICIPAL CODE RELATING TO MEDICAL
MARIJUANA DISPENSARIES, COOPERATIVES AND COLLECTIVES,
CULTIVATION OF MEDICAL MARIJUANA, AND DELIVERIES OF
MEDICAL MARIJUANA OR MEDICAL CANNABIS PRODUCTS
WHEREAS, in 1996', the voters of the State of California approved Proposition 215,
"The Compassionate Use Act of 1996" relating to medical marijuana, and in 2003, the
Legislature enacted Senate Bill 420, also known as the Medical Marijuana Program
(MMP). Neither Proposition 215 nor the MMP confer on qualified patients who use
medical marijuana and their caregivers the unfettered right to cultivate or dispense
marijuana anywhere they choose. Nor do they require or impose an affirmative duty or
mandate upon local governments, such as the City of Arroyo Grande, to allow,
authorize or sanction marijuana cultivation or the operation and establishment of
facilities dispensing medical marijuana within its jurisdiction; and
WHEREAS, in the case City of Riverside v. Inland Empire Patients Health & Wellness
Center, Inc., 56 CalAth 729 (2013), the California Supreme Court ruled unanimously
that Proposition 215 and the MMP do not preempt local ordinances that completely and
permanently ban medical marijuana dispensaries. In reaching this conclusion, the
Supreme Court recognized that the local police power, which derives from California
Constitution, article XI, Section 7, "includes broad authority to determine, for purposes of
public health, safety, and welfare, the appropriate uses of land within a local
jurisdiction's borders...." 56 CalAth at 738; and
WHEREAS, The City Council of the City of Arroyo Grande has previously adopted
Chapter 9.26 of the Arroyo Grande Municipal Code prohibiting medical marijuana
dispensaries in the City, including mobile facilities; and
WHEREAS, concerns have recently been expressed by residents regarding medical
marijuana cultivation in the City by a group growing medical marijuana "collectively"
(reference Health and Safety Code Sections 11362.5 et. seq.) The concerns expressed
by residents include the potential public nuisances caused by medical marijuana
cultivation, as well as safety concerns in their neighborhoods; and
WHEREAS, on November 26, 2013 the Court of Appeal decided and published Maral v.
City of Live Oak, 221 Cal.AppAth 975 (2013), and on March 26, 2014 the State
Supreme Court denied review of that decision. Maral held that cities have authority to
prohibit cultivation of all medical marijuana city -wide. Like the Supreme Court's decision
in the City of Riverside case, the Maral court similarly found that the Proposition 215
and the MMP do not preempt a city's regulatory authority to prohibit all cultivation in the
city, if the city so chooses; and
RESOLUTION NO. 15 -2241
PAGE 2
WHEREAS, the Planning Commission of the City of Arroyo Grande hereby makes the
following findings regarding the cultivation of medical marijuana within the boundaries of
the City:
A. The cultivation of medical marijuana can adversely affect the health, safety
and well -being of the City and its residents. Medical marijuana cultivation
increases the risk of criminal activity, degradation of the natural environment,
excessive use of electricity which may overload standard electrical systems, and
damage to buildings in which cultivation occurs, including improper and
dangerous electrical alterations and use, increased risk of fire and fire - related
hazards, inadequate ventilation, increased occurrences of home - invasion
robberies and similar crimes. Medical marijuana cultivation also creates
increased nuisance impacts to neighboring properties because of the strong,
malodorous, and potentially noxious odors which come from the plants. Further,
the indoor and outdoor cultivation of medical marijuana in or near residential
zones increases the risk of such activity and intrudes upon residential uses.
B. Marijuana plants grown outdoors, as they begin to flower and for a period of
two (2) months or more during the growing season, produce an extremely strong
odor that is offensive to many people and detectable far beyond property
boundaries. This strong smell may create an attractive nuisance, alerting persons
to the location of the marijuana plants, thereby creating a risk of burglary,
robbery, armed robbery, assault, attempted murder, and murder.
C. Fertilizers and pesticides, both legal and illegal, used when marijuana is
grown outdoors may unreasonably increase the concentration of such chemicals
in storm water runoff thereby impacting local creeks, streams and rivers. Such
pollution may negatively affect water quality for downstream users, harm
ecosystems, and impact threatened or endangered species.
D. Water for marijuana grown outdoors may be illegally diverted from local
creeks, streams, and rivers, thereby unreasonably depriving downstream users
of beneficial water sources. Such diversions may also impact water supply, harm
ecosystems, and negatively affect threatened or endangered species.
WHEREAS, three bills have recently been enacted by the State of California Legislature
and were signed by the Governor on October 9, 2015, that comprise the Medical
Marijuana Regulation and Safety Act ( MMRSA): AB 243 (Chapter 688, Statutes of
2015); AB 266 (Chapter 689, Statutes of 2015); and SB 643 (Chapter 719, Statures of
2015); and
WHEREAS, the MMRSA expressly preserves the authority of cities with regard to their
zoning powers and local actions taken in accordance with the police power under the
State Constitution; and
WHEREAS, The MMRSA contains language that requires the city to prohibit cultivation
uses by March 1, 2016 either expressly or otherwise under the principles of permissive
RESOLUTION NO. 15 -2241
PAGE 3
zoning, or the State will become the sole licensing authority. The MMRSA also contains
language that requires delivery services to be expressly prohibited by local ordinance, if
the City wishes to do so. The MMRSA is silent as to whether the City must prohibit
other types of commercial medical marijuana activities.
WHEREAS, on November 24, 2015, while the City Council believes that cultivation and
all commercial medical marijuana uses are prohibited under the City's permissive
zoning regulations, it directed the development of an ordinance to expressly make clear
that all such uses are prohibited in all zones throughout the City.
WHEREAS, the Planning Commission has considered the proposed Ordinance
approving Development Code Amendment 15 -003 at a duly noticed public hearing on
December 1; and
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of
Arroyo Grande hereby recommends the City Council adopt an Ordinance approving
Development Code Amendment No. 15 -003, amending portions of Title 16 of the AGMC
regarding medical marijuana, a copy of which is attached hereto as Exhibit `A' and
incorporated herein by this reference;
On a motion by Commissioner Martin, seconded by Commissioner Fowler -Payne and by
the following roll call vote to wit:
AYES: Martin, Fowler- Payne, Mack
NOES: Keen, George
ABSENT: None
the foregoing Resolution was adopted this 1St day of December 2015.
ATTEST:
DEBBIE WEICHINGER I
SECRETARY TO THE COMMISSION
AS TO CONTENT:
/Zy
T R A McCLISH
DIRECTOR OF COMMUNITY DEVELOPMENT
LAf EO E, CHAIR
EXHIBIT "A"
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE
ADDING CHAPTER 16.62 TO TITLE 16 OF THE ARROYO GRANDE MUNICIPAL
CODE RELATING TO MEDICAL MARIJUANA DISPENSARIES, COOPERATIVES
AND COLLECTIVES, CULTIVATION OF MEDICAL MARIJUANA, AND DELIVERIES
OF MEDICAL MARIJUANA OR MEDICAL CANNABIS PRODUCTS
WHEREAS, in 1996, the voters of the State of California approved Proposition 215, "The
Compassionate Use Act of 1996" relating to medical marijuana, and in 2003, the Legislature enacted
Senate Bill 420, also known as the Medical Marijuana Program (MMP). Neither Proposition 215 nor
the MMP confer on qualified patients who use medical marijuana and their caregivers the unfettered
right to cultivate or dispense marijuana anywhere they choose. Nor do they require or impose an
affirmative duty or mandate upon local governments, such as the City of Arroyo Grande, to allow,
authorize or sanction marijuana cultivation or the operation and establishment of facilities dispensing
medical marijuana within its jurisdiction; and
WHEREAS, in the case City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56
CalAth 729 (2013), the California Supreme Court ruled unanimously that Proposition 215 and the
MMP do not preempt local ordinances that completely and permanently ban medical marijuana
dispensaries. In reaching this conclusion, the Supreme Court recognized that the local police power,
which derives from California Constitution, article XI, Section 7, "includes broad authority to
determine, for purposes of public health, safety, and welfare, the appropriate uses of land within a
local jurisdiction's borders...." 56 CalAth at 738; and
WHEREAS, The City Council of the City of Arroyo Grande has previously adopted Chapter 9.26 of
the Arroyo Grande Municipal Code prohibiting medical marijuana dispensaries in the City, including
mobile facilities; and
WHEREAS, concerns have recently been expressed by residents regarding medical marijuana
cultivation in the City by a group growing medical marijuana "collectively" (reference Health and
Safety Code Sections 11362.5 et. seq.) The concerns expressed by residents include the potential
public nuisances caused by medical marijuana cultivation, as well as safety concerns in their
neighborhoods; and
WHEREAS, on November 26, 2013 the Court of Appeal decided and published Maral v. City of Live
Oak, 221 Cal.AppAth 975 (2013), and on March 26, 2014 the State Supreme Court denied review of
that decision. Maral held that cities have authority to prohibit cultivation of all medical marijuana city-
wide. Like the Supreme Court's decision in the City of Riverside case, the Maral court similarly found
that the Proposition 215 and the MMP do not preempt a city's regulatory authority to prohibit all
cultivation in the city, if the city so chooses; and
ORDINANCE NO.
PAGE 2
WHEREAS, the City Council of the City of Arroyo Grande hereby makes the following findings
regarding the cultivation of medical marijuana within the boundaries of the City:
A. The cultivation of medical marijuana can adversely affect the health, safety and well -being
of the City and its residents. Medical marijuana cultivation increases the risk of criminal
activity, degradation of the natural environment, excessive use of electricity which may
overload standard electrical systems, and damage to buildings in which cultivation occurs,
including improper and dangerous electrical alterations and use, increased risk of fire and fire -
related hazards, inadequate ventilation, increased occurrences of home - invasion robberies
and similar crimes. Medical marijuana cultivation also creates increased nuisance impacts to
neighboring properties because of the strong, malodorous, and potentially noxious odors
which come from the plants. Further, the indoor and outdoor cultivation of medical marijuana in
or near residential zones increases the risk of such activity and intrudes upon residential uses.
B. Marijuana plants grown outdoors, as they begin to flower and for a period of two (2)
months or more during the growing season, produce an extremely strong odor that is offensive
to many people and detectable far beyond property boundaries. This strong smell may create
an attractive nuisance, alerting persons to the location of the marijuana plants, thereby
creating a risk of burglary, robbery, armed robbery, assault, attempted murder, and murder.
C. Fertilizers and pesticides, both legal and illegal, used when marijuana is grown outdoors
may unreasonably increase the concentration of such chemicals in storm water runoff thereby
impacting local creeks, streams and rivers. Such pollution may negatively affect water quality
for downstream users, harm ecosystems, and impact threatened or endangered species.
D. Water for marijuana grown outdoors may be illegally diverted from local creeks, streams,
and rivers, thereby unreasonably depriving downstream users of beneficial water sources.
Such diversions may also impact water supply, harm ecosystems, and negatively affect
threatened or endangered species.
WHEREAS, marijuana remains an illegal substance under the federal Controlled Substances Act (21
U.S.C. Section 801 et seq.) and it is classified as a Schedule I drug, which is defined as a drug or
other substance that has a high potential for abuse, that has no currently accepted medical use in
treatment in the United States, and that has not been accepted as safe for use under medical
supervision. The federal Controlled Substances Act makes it unlawful, under federal law, for any
person to cultivate, manufacture, distribute or dispense, transport, or possess with intent to
manufacture, distribute or dispense marijuana. The federal Controlled Substances Act does not
exempt the cultivation, manufacture, distribution, dispensation, transportation, or possession of
marijuana for medical purposes; and
ORDINANCE NO.
PAGE 3
WHEREAS, three bills have recently been enacted by the State of California Legislature and were
signed by the Governor on October 9, 2015, that comprise the Medical Marijuana Regulation and
Safety Act ( MMRSA): AB 243 (Chapter 688, Statutes of 2015); AB 266 (Chapter 689, Statutes of
2015); and SIB 643 (Chapter 719, Statures of 2015); and
WHEREAS, the MMRSA expressly preserves the authority of cities with regard to their zoning
powers and local actions taken in accordance with the police power under the State Constitution; and
WHEREAS, The MMRSA contains language that requires the city to prohibit cultivation uses by
March 1, 2016 either expressly or otherwise under the principles of permissive zoning, or the State
will become the sole licensing authority. The MMRSA also contains language that requires delivery
services to be expressly prohibited by local ordinance, if the City wishes to do so. The MMRSA is
silent as to whether the City must prohibit other types of commercial medical marijuana activities.
WHEREAS, while the City Council believes that cultivation and all commercial medical marijuana
uses are prohibited under the City's permissive zoning regulations, it desires to enact this ordinance
to expressly make clear that all such uses are prohibited in all zones throughout the City.
WHEREAS, the Planning Commission held a duly noticed public hearing on November 17, 2015 at
which time it considered all evidence presented, both written and oral and at the end of the hearing
voted to adopt a resolution recommending that the City Council adopt this Ordinance.
WHEREAS, the City Council held a duly noticed public hearing on this Ordinance on December
2015, at which time it considered all evidence presented, both written and oral.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE DOES ORDAIN
AS FOLLOWS:
SECTION 1. The above recitals and findings are true and correct and are incorporated herein by this
reference.
SECTION 2. Chapter 9.26 of the Arroyo Grande Municipal Code is hereby repealed.
SECTION 3. Chapter 16.62 is hereby added to Title 16 of the Arroyo Grande Municipal Code to read
as follows:
"16.62.010 Purpose and findings.
A. It is the purpose and intent of this chapter to prohibit medical marijuana dispensaries,
cooperatives and collectives, including mobile dispensaries, as well as prohibit delivery and
cultivation of medical marijuana pursuant to the City of Arroyo Grande's authority under Section 7 of
Article XI of the California Constitution, in order to promote the health, safety, and general welfare of
the residents and businesses within the City of Arroyo Grande and prevent adverse impacts which
such activities may have on nearby properties and residents, as recognized by the Courts (reference
ORDINANCE NO.
PAGE 4
Iity of Riverside v. Inland Empire Patients Health & Wellness Center., Inc., 56 CalAth 729 (2013) and
Maral v. City of Live Oak, 221 Cal.AppAth 975 (2013)) and as provided in the Medical Marijuana
Regulation and Safety Act (AB 243 (Chapter 688, Statutes of 2015); AB 266 (Chapter 689, Statutes
of 2015); and SB 643 (Chapter 719, Statures of 2015)).
B Pursuant to the City of Arroyo Grande's police powers authorized in Article XI, Section 7 of the
California Constitution, the City has the power to regulate permissible land uses within its boundaries
and to enact regulations for the preservation of public health, safety and welfare of its residents and
community. Further, pursuant to Government Code Sections 38771 through 38775, municipalities
also have the power through the City Council to declare actions and activities that constitute a public
nuisance.
C. The City Council finds that Proposition 215, "The Compassionate Use Act of 1996 ", Senate Bill
420 enacted in 2003, also known as the Medical Marijuana Program and the Medical Marijuana
Regulation and Safety Act (AB 243 (Chapter 688, Statutes of 2015); AB 266 (Chapter 689, Statutes
of 2015); and SB 643 (Chapter 719, Statures of 2015) do not preempt the City's exercise of its
traditional police powers in enacting land use regulations, such as this chapter, for preservation of
public health, safety and welfare, by prohibiting medical marijuana dispensaries,_cooperatives and
collectives, and deliveries of medical marijuana, and the cultivation of marijuana within the City.
16.62.020 Application.
The provisions of this chapter shall apply generally to all property within the boundaries of the City
wherein any of the conditions herein specified are found to exist. However, nothing in this chapter is
intended, nor shall it be construed, to burden any defense to criminal prosecution under the CUA or
MMP.
16.62.030 Administration.
The Chief of Police, or the Chief's designee and /or the Director of Community Development, or the
Director's designee, are charged with the responsibility of administering this chapter and exercising
the authority conferred thereby.
16.62.040 Definitions.
As used herein, the following definitions shall govern the construction of this chapter:
"Collective" or "cooperative" means any association, cooperative, affiliation, group, or collective of
persons organized or associated to cultivate, store and /or dispense marijuana for medical purposes
pursuant to the CUA or MMP and as provided in Health and Safety Code Section 11362.775.
"Cultivation" shall have the meaning as set forth in Business and Professions Code Section19300.5
(1) and also means the planting, growing, harvesting, drying, processing or storage of one (1) or more
ORDINANCE NO.
PAGE 5
marijuana plants or any part thereof in any location, indoor or outdoor, including a fully enclosed and
secure building.
"Delivery" shall have the meaning as set forth in Business and Professions Code Section 19300.5 (m).
"Dispensary" shall have the meaning as set forth in Business and Professions Code
Section 19300.5(n) and also means any facility, location, establishment or similar entity that cultivates,
distributes, delivers, supplies or processes marijuana for medical purposes relating to a qualified
patient or primary caregiver, pursuant to the CUA and MMP in accordance with Health and Safety
Code Section 11362.5 et seq. A dispensary shall include a dispensing collective or cooperative and
shall include a mobile dispensary and delivery services.
"Marijuana" means all parts of the plant genus Cannabis, whether growing or not; the seeds thereof;
the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative,
mixture or preparation of the plant, its seeds or resin, and includes "cannabis ", "medical cannabis ",
"cannabis product" and "medical cannabis product" as defined in Business and Professions Code
Sections 19300.5(f) and (ag).
"Primary Caregiver ". This shall have the meaning set forth in Health and Safety Code Section
11362.7(d).
"Qualified Patient ". This shall have the meaning set forth in Health and Safety Code Section
11362.7(f).
16.62.050 Cultivation prohibited.
No person or persons owning, leasing, occupying, or having charge or possession of any parcel in
the City of Arroyo, including primary caregivers and qualified patients, collectives, cooperatives or
dispensaries, shall allow such parcel to be used for the cultivation of marijuana. Cultivation of
marijuana within the City of Arroyo Grande for any purpose is prohibited, and is expressly declared to
be a public nuisance.
The prohibition contained in this section is intended to constitute an express prohibition on cultivation
as it relates to the provisions of Health and Safety Code Section 11362.777(b)(3), which provides that
a person or entity shall not submit an application for a state license to cultivate marijuana under the
Department of Food and Agriculture's Medical Cannabis Cultivation Program if the proposed
cultivation of marijuana will violate the provisions of a local ordinance or regulation, or if medical
marijuana is prohibited by the city.
16.62.060 Medical Marijuana Collectives, Cooperatives and Dispensaries Prohibited
A. Medical marijuana collectives, cooperatives and dispensaries, including mobile dispensaries,
are not permitted in or upon any premises in the City of Arroyo Grande.
ORDINANCE NO.
PAGE 6
B. A medical marijuana dispensary shall not include the following uses, so long as such uses
comply with this code, Health and Safety Code Section 11362.5 et seq., and other applicable law:
1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code.
2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and
Safety Code.
3. A residential care facility for persons with chronic life- threatening illness licensed
pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code.
4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of
the Health and Safety Code.
5. A hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the
Health and Safety Code.
16.62.070 Deliveries Prohibited
It shall be unlawful for any person to deliver medical marijuana or medical cannabis products or
Bngage in activities that constitute delivery of medical marijuana or medical cannabis products
anywhere within the boundaries of in the City of Arroyo Grande. This prohibition is intended to
constitute an express prohibition on deliveries, as provided for in Business and Professions Code
Section 19340.
16.62.080 Violations and penalties.
A. Any person that violates any provision of this chapter shall be guilty of a separate offense for
each and every day during any portion of which any such person commits, continues, licenses, or
causes a violation thereof, and shall be punished accordingly.
B. Violation of any provision in this chapter is a misdemeanor unless the city attorney authorizes
issuance of an infraction citation or files a complaint charging the offense as an infraction; or the
court, upon the prosecutorial recommendation of the city attorney, determines that the offense is an
infraction.
C. Violation of any provision of this chapter shall be and is hereby declared to be contrary to the
public interest and shall, at the discretion of the City, create a cause of action for injunctive relief."
SECTION 4. This ordinance is exempt from CEQA pursuant to CEQA Guidelines section 15061(b)(3)
which is the general rule that CEQA applies only to projects which have the potential for causing a
significant effect on the environment and CEQA does not apply where it can be seen with certainty
that there is no possibility that the activity may have a significant effect on the environment.
ORDINANCE NO.
PAGE 7
SECTION 5. A summary of this Ordinance shall be published in a newspaper published and
circulated in the City of Arroyo Grande at least five (5) days prior to the City Council meeting at which
the proposed Ordinance is to be adopted. A certified copy of the full text of the proposed Ordinance
shall be posted in the office of the City Clerk. Within fifteen (15) days after adoption of the Ordinance,
the summary with the names of those City Council members voting for and against the Ordinance
shall be published again, and the City Clerk shall post a certified copy of the full text of such adopted
Ordinance. This Ordinance shall take effect and be in full force and effect thirty (30) days after its
passage
SECTION 6. This Ordinance shall take effect and be in full force and effect thirty (30) days after its
passage
SECTION 7. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any
reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of this Ordinance. The City Council
hereby declares that it would have passed this Ordinance and each and every section, subsection,
sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any
portion of the ordinance would be subsequently declared invalid or unconstitutional.
On motion by Council Member , seconded by Council Member
roll call vote to wit:
AYES:
NOES:
ABSENT:
the foregoing Ordinance was adopted this day of , 2015.
, and by the following
ORDINANCE NO.
PAGE 8
JIM HILL, MAYOR
ATTEST:
KELLY WETMORE, CITY CLERK
4PPROVED AS TO CONTENT:
DIANNE THOMPSON, CITY MANAGER
APPROVED AS TO FORM:
HEATHER K. WHITHAM, CITY ATTORNEY