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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