HomeMy WebLinkAboutItem 6 - TA 15-05DATE: December 8, 2015
TO: Honorable Chairman and Planning Commission
FROM: Jim Kasama, Community Development Administrator
SUBJECT: RESOLUTION NO. 1955 TO RECOMMEND THAT THE CITY COUNCIL
ADOPT AN ORDINANCE TO AMEND SECTIONS 9220.45.1.3 AND 9213
OF THE ARCADIA MUNICIPAL CODE TO PROHIBIT CANNABIS
DISPENSERIES, CANNABIS MANUFACTURERS, CULTIVATION, AND
DELIVERY OF CANNABIS IN THE CITY
Recommendation: Recommend Approval to the City Council and
Adopt Resolution No. 1955
SUMMARY
The City of Arcadia’s Municipal Code currently bans medical marijuana dispensaries
throughout the City, and bans all dispensaries that are unlawful under State or federal
law. The Code defines dispensaries broadly, and does not address other medical
marijuana uses, such as cultivation and delivery services. As a result of new legislation,
the City should consider amending its regulatory scheme to address these uses, and to
more closely track the language of State law on these issues. It is recommended that
the Planning Commission adopt the attached Resolution No. 1955 to recommend that
the City Council adopt the attached draft Ordinance to prohibit cannabis dispensaries,
cannabis manufacturers, cultivation, and delivery of cannabis in the City of Arcadia.
BACKGROUND
The California legislature recently adopted legislation identified as the Medical
Marijuana Regulation and Safety Act (MMRSA - AB 243, AB 266, and SB 643) to
comprehensively regulate medical marijuana/cannabis. The MMRSA recognizes and
preserves local control to regulate or ban medical cannabis cultivation, transportation,
and distribution. The MMRSA confirms and clarifies that, in addition to being able to
exert land use control over retail dispensaries, municipalities also have the power to
regulate or ban the cultivation and distribution of medical marijuana.
Although the MMRSA allows municipalities to regulate or ban cannabis cultivation,
manufacturing, transportation, and distribution of medical cannabis within their
jurisdictions, it requires local enabling legislation to accomplish some aspects of this. If
a city chooses to regulate these activities comprehensively, it must adopt an overlay of
local regulatory standards that are at least as strict as the State’s default regulations.
Resolution No. 1955
Marijuana/Cannabis Prohibitions
December 8, 2015 – Page 2 of 5
Specifically, the MMRSA provides that if a city has not banned or regulated cannabis
cultivation by March 1, 2016, then cultivation in that city will be subject only to State law.
PROPOSAL
Medical marijuana is currently addressed by two Sections of the Arcadia Municipal
Code. Section 9220.45.1.3 defines medical marijuana dispensary, and Section 9213
clarifies that there is no omission or ambiguity of the zoning regulations that would
permit medical marijuana dispensaries in any zone. Section 9220.45.1.3 is proposed to
be amended as follows:
9220.45.1.3 - MEDICAL MARIJUANA DISPENSARY USES
Any facility or location where medical marijuana is made available and/or
distributed by or to one or more of the following: a primary caregiver, a
qualified patient or a person with an identification card in strict accordance
with California Health and Safety Code Section 11362.5 et seq. A "medical
marijuana dispensary" shall not include the following uses, as long as the
locations of such uses are otherwise regulated by this Code or applicable law:
a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety
Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the
Health and Safety Code, 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, a residential care facility for the elderly licensed
pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a
residential hospice or a home health agency licensed pursuant to Chapter 8
of Division 2 of the Health and Safety Code, as long as such use complies
strictly with applicable law including, but not limited to, Health and Safety
Code Section 11362.5 et seq.
For purposes of this Code, the following definitions shall apply:
A. “Cannabis” means all parts of the plant Cannabis sativa Linnaeus,
Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds
thereof; the 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. “Cannabis” also means the
separated resin, whether crude or purified, obtained from marijuana.
“Cannabis” also means marijuana as defined by Section 11018 of the Health
and Safety Code as enacted by Chapter 1407 of the Statutes of 1972.
B. “Cannabis dispensary” means a facility where cannabis, cannabis
products, or devices for the use of cannabis or cannabis products are offered,
either individually or in any combination, for retail sale, including an
establishment that delivers cannabis and cannabis products as part of a retail
sale.
Resolution No. 1955
Marijuana/Cannabis Prohibitions
December 8, 2015 – Page 3 of 5
C. “Cannabis manufacturer” means a person that conducts the production,
preparation, propagation, or compounding of manufactured cannabis, or
cannabis products either directly or indirectly or by extraction methods, or
independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis at a fixed location that packages or
repackages medical cannabis or cannabis products or labels or relabels its
container
D. “Cultivation” means any activity involving the planting, growing,
harvesting, drying, curing, grading, or trimming of cannabis.
E. “Delivery” means the commercial transfer of cannabis or cannabis
products, and includes origination or termination within the City as well as a
delivery business.
Section 9213 is proposed to be amended as follows:
9213. - OMISSION OR AMBIGUITY; MEDICAL MARIJUANA USES
PROHIBITED
A. If any "use" is for any reason omitted from the lists of those specified as
permissible in each of the various zones herein designated, or if ambiguity
arises concerning the appropriate classification of a particular use within the
meaning and intent of this Chapter, or if ambiguity exists with reference to
matters of height, yard requirements or area requirements as set forth herein
and as they may pertain to unforeseen circumstances, it shall be the duty of
the Planning Commission to ascertain all pertinent facts concerning said use
and by resolution of record set forth its findings and the reasons therefor.
Such findings and resolutions shall be referred to the Council and, if approved
by the Council, thereafter such interpretation shall govern.
Notwithstanding the above, Medical Marijuana Dispensaries that are unlawful
under Federal or state law shall not be treated as permitted or conditionally
permitted uses in any zone of the City of Arcadia, and shall not be determined
to be an "omitted" or "ambiguous" use pursuant to this Section.
B. Cannabis dispensaries, cultivation, cannabis manufacturers, and delivery
of cannabis, as defined in Section 9220.45.1.3, shall be considered prohibited
uses in all zoning districts of the City. No use permit, variance, building
permit, or any other entitlement or permit, whether administrative or
discretionary, shall be approved or issued for the establishment or operation
of dispensaries, cannabis cultivation, cannabis manufacturers, and delivery of
cannabis as defined herein in any zoning district, and no person shall
otherwise establish such businesses or operations in any zoning district.
Resolution No. 1955
Marijuana/Cannabis Prohibitions
December 8, 2015 – Page 4 of 5
DISCUSSION
The cultivation, transportation, and distribution of marijuana can create problems
relating to public health and safety, crime, water and air quality, and energy
consumption. Marijuana uses can create nuisance activity such as loitering and
criminal activity in business and residential districts. Specifically mobile delivery can
create issues relating to responsibility and resources to monitor and enforce State law,
questions of patient qualification, and risks relating to the high use of large sums of cash
for mobile transactions. Cultivation can create air quality, energy, and water quality
damage and impair building maintenance and safety. For example, the increased
moisture necessary to grow indoors can create excessive mold growth and structural
damage. Additionally, the equipment utilized to grow indoors can pose a risk of fire and
electrical hazards due to dangerous electrical alterations and use. Further, inadequate
ventilation combined with the use of pesticides and fertilizers in an enclosed space can
lead to chemical contamination within structures.
Regulation of Medical Cannabis Cultivation
At least one California city (Live Oak) has successfully defended its total ban on the
cultivation of marijuana for any purpose within that city. The City of Live Oak’s
regulations have been upheld by the courts, and provides that “[m]arijuana cultivation by
any person, including primary caregivers and qualified patients, collectives,
cooperatives, or dispensaries” are prohibited in all zones within the City. The MMRSA
allows this approach.
Alternatively, some cities are allowing cultivation with regulations such as:
● Outdoor, residential cultivation so long as plants are enclosed, screened, and five
(5) feet from the property line;
● Indoor cultivation only with a permit;
● Property owner must approve of cultivation on the property; and
● Limiting the number of plants.
Should the City choose to leave cultivation unregulated, under the currently enacted
version of the MMRSA, on March 1, 2016, only State law would control cultivation
activities in the City of Arcadia. The proposed amendments and Ordinance would ban
cultivation entirely in the City.
Regulation of Cannabis Delivery
Mobile delivery of products consistently creates issues for cities because of the inherent
transitory nature of the activity. A quick search of ‘weedmaps.com’ identifies several
cannabis dispensaries that currently operate in the City of Arcadia. These mobile
delivery services are often attempts to avoid the effects of local dispensary bans. State
law will regulate the delivery of medical marijuana unless delivery is explicitly prohibited
Resolution No. 1955
Marijuana/Cannabis Prohibitions
December 8, 2015 – Page 5 of 5
by local ordinance. In light of the foregoing, the City has the option to ban or regulate
mobile delivery. Regulations could include:
● Hours of operation;
● Amount of money or marijuana that can be carried at one time; and
● Time spent at one location.
The proposed amendments and Ordinance would prohibit the delivery of marijuana
anywhere in the City.
ENVIRONMENTAL ASSESSMENT
The text amendments and the ordinance are not subject to the California Environmental
Quality Act (CEQA) pursuant to CEQA Guidelines Section 15060(c)(3) because this
activity is not a project as defined by Section 15378 of the CEQA Guidelines, and
pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty
that it will not have a significant effect or physical change to the environment.
PUBLIC NOTICE
A Public Hearing Notice of this item was published in the Arcadia Weekly on November
26, 2015. As of December 4, 2015, no comments have been received on the proposal.
RECOMMENDATION
It is recommended that the Planning Commission adopt the attached Resolution No.
1955 to approve the text amendments and recommend that the City Council adopt the
attached draft Ordinance to prohibit cannabis dispensaries, cannabis manufacturers,
cultivation, and delivery of cannabis in the City of Arcadia. This is especially important
in light of the March 1, 2016, deadline to have cultivation regulations or a ban in place.
PLANNING COMMISSION ACTION
The Planning Commission should approve a motion to find that the text amendments
and Ordinance are not subject to the California Environmental Quality Act (CEQA), and
to adopt Resolution No. 1955 as drafted or as amended by the Commission to transmit
the Commission’s recommendation in regards to the draft Ordinance.
If any Planning Commissioner, or other interested party has any questions or comments
regarding this matter prior to the December 8, 2015, Planning Commission meeting,
please contact Jim Kasama at (626) 574-5442, or jkasama@ArcadiaCA.gov.
Attachments
Resolution No. 1955
Draft Ordinance
RESOLUTION NO. 1955
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
ARCADIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF
TEXT AMENDMENTS TO AMEND SECTIONS 9220.45.1.3 AND 9213
OF THE ARCADIA MUNICIPAL CODE TO PROHIBIT CANNABIS
DISPENSERIES, CANNABIS MANUFACTURERS, CULTIVATION, AND
DELIVERY OF CANNABIS IN THE CITY
WHEREAS, in November 2015, the Development Services Department
initiated text amendments, case file Text Amendment No. TA 15-05, and drafted an
Ordinance in response to State legislation regarding medical marijuana, the “Medical
Marijuana Regulation and Safety Act;” and
WHEREAS, several California cities have reported negative impacts of
marijuana cultivation, processing, and distribution uses, 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; and
WHEREAS, 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 uses; and
WHEREAS, the Arcadia Municipal Code does not fully address the
cultivation, processing, delivery and distribution of medical cannabis; and
WHEREAS, based on the findings above, the potential establishment of
cannabis dispensaries, cultivation, cannabis manufacturers and delivery of cannabis
uses in the City without regulation poses a current immediate threat to the public health,
safety and welfare in the City due to the negative land use and other impacts of such
uses as described above; and
2 1955
WHEREAS, the text amendments and Ordinance are not subject to the
California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section
15060(c)(3) because this activity is not a project as defined by Section 15378 of the
CEQA Guidelines, and pursuant to CEQA Guidelines Section 15061(b)(3) because it
can be seen with certainty that it will not have a significant effect or physical change to
the environment; and
WHEREAS, on December 8, 2015, a duly-noticed public hearing was held before
the Planning Commission on said text amendments and draft Ordinance, at which time
all interested persons were given full opportunity to be heard and to present evidence;
and
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
ARCADIA HEREBY RESOLVES AS FOLLOWS:
SECTION 1. That the factual data submitted by the Community Development
Division in the report dated December 8, 2015, are true and correct.
SECTION 2. That this Commission finds, based upon the entire record, that the
approval of the text amendments and draft Ordinance will protect the public health,
safety and welfare from the negative land use and other impacts of the cultivation,
processing, delivery and distribution of medical cannabis.
SECTION 3. That the text amendments and Ordinance are not subject to the
California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section
15060(c)(3) because this activity is not a project as defined by Section 15378 of the
CEQA Guidelines, and pursuant to CEQA Guidelines Section 15061(b)(3) because it
can be seen with certainty that it will not have a significant effect or physical change to
the environment.
3 1955
SECTION 4. That for the foregoing reasons the Planning Commission
approves of the text amendments and recommends to the City Council adoption of the
draft Ordinance.
SECTION 5. The Secretary shall certify to the adoption of this Resolution.
Passed, approved and adopted this _____ day of _____________, 2015.
Chairman, Planning Commission
ATTEST:
______________________
Secretary
APPROVED AS TO FORM:
______________________
Stephen P. Deitsch
City Attorney
- D R A F T -
- D R A F T -
ORDINANCE NO. - DRAFT -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ARCADIA, CALIFORNIA AMENDING SECTIONS
9220.45.1.3 AND 9213 OF THE ARCADIA MUNICIPAL
CODE TO PROHIBIT CANNABIS DISPENSARIES,
CANNABIS MANUFACTURERS, CULTIVATION, AND
DELIVERY OF CANNABIS IN THE CITY
WHEREAS, in 1996, the voters of the State of California approved Proposition
215 (codified as Health & Safety Code Section 11362.5 et seq. and entitled "The
Compassionate Use Act of 1996"); and
WHEREAS, the intent of Proposition 215 was to enable seriously ill Californians
to legally possess, use, and cultivate marijuana for medical use under state law; and
WHEREAS, in 2003, the California Legislature adopted SB 420, the Medical
Marijuana Program (“MMP”), codified as Health and Safety Code Section 11362.7 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 Penal Code; and
WHEREAS, neither the Compassionate Use Act (“CUA”) nor the MMP requires
or imposes an affirmative duty or mandate upon local governments to allow, authorize,
or sanction the establishment of facilities that cultivate or process medical marijuana
within its jurisdiction; and
WHEREAS, in May 2013, the California Supreme Court issued its decision in
City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56
Cal. 4th 729, holding that cities have the authority to regulate or ban outright medical
marijuana land uses; and
WHEREAS, 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; and
WHEREAS, on October 9, 2015, Governor Jerry Brown signed the “Medical
Marijuana Regulation and Safety Act” (“Act”) into law; and
WHEREAS, the Act becomes effective January 1, 2016 and contains provisions
which allow for local governments to regulate licenses and certain activities thereunder;
and
WHEREAS, the Act contains a provision which sets forth that the State shall
become the sole authority for regulation under certain parts of the Act, unless local
- D R A F T -
- D R A F T -
governments have “land use regulations or ordinances regulating or prohibiting the
cultivation of marijuana…” (Health and Safety Code §11362.777(c)(4); and
WHEREAS, several California cities have reported negative impacts of marijuana
cultivation, processing, and distribution uses, 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; and
WHEREAS, marijuana plants, as they begin to flower and for a period of two
months or more, produce a strong odor, which is detectable far beyond property
boundaries if grown outdoors; and
WHEREAS, 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; and
WHEREAS, the indoor cultivation of marijuana has potential adverse effects to
the health and safety of the occupants, including structural damage to the building due
to increased moisture and excessive mold growth which can occur, and can pose a risk
of fire and electrocution; additionally, the use of pesticides and fertilizers can lead to
chemical contamination within the structure; and
WHEREAS, 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; and
WHEREAS, 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 uses; and
WHEREAS, the Arcadia Municipal Code (“Code”) does not fully address the
cultivation, processing, delivery and distribution of medical cannabis; and
WHEREAS, based on the findings above, the potential establishment of
cannabis dispensaries, cultivation, cannabis manufacturers and delivery of cannabis
uses in the City without regulation poses a current and immediate threat to the public
health, safety and welfare in the City due to the negative land use and other impacts of
such uses as described above; and
WHEREAS, the issuance or approval of business licenses, subdivisions, use
permits, variances, building permits, or any other applicable entitlement for cannabis
dispensaries, cultivation, cannabis manufacturers and delivery of cannabis will result in
the aforementioned threat to public health, safety, or welfare.
- D R A F T -
- D R A F T -
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. Section 9220.45.1.3 of Part 2 of Chapter 2 of Article IX of the
Arcadia Municipal Code is hereby amended in its entirety to read as follows:
9220.45.1.3 - MEDICAL MARIJUANA USES.
For purposes of this Code, the following definitions shall apply:
A. “Cannabis” means all parts of the plant Cannabis sativa Linnaeus,
Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds
thereof; the 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. “Cannabis” also means the
separated resin, whether crude or purified, obtained from marijuana.
“Cannabis” also means marijuana as defined by Section 11018 of the
Health and Safety Code as enacted by Chapter 1407 of the Statutes of
1972.
B. “Cannabis dispensary” means a facility where cannabis, cannabis
products, or devices for the use of cannabis or cannabis products are
offered, either individually or in any combination, for retail sale, including
an establishment that delivers cannabis and cannabis products as part of
a retail sale.
C. “Cannabis manufacturer” means a person that conducts the
production, preparation, propagation, or compounding of manufactured
cannabis, or cannabis products either directly or indirectly or by extraction
methods, or independently by means of chemical synthesis or by a
combination of extraction and chemical synthesis at a fixed location that
packages or repackages medical cannabis or cannabis products or labels
or relabels its container
D. “Cultivation” means any activity involving the planting, growing,
harvesting, drying, curing, grading, or trimming of cannabis.
E. “Delivery” means the commercial transfer of cannabis or cannabis
products, and includes origination or termination within the City as well as
a delivery business.
SECTION 2. Section 9213 of Part 1 of Chapter 2 of Article IX of the Arcadia
Municipal Code is hereby amended in its entirety to read as follows:
- D R A F T -
- D R A F T -
9213. - OMISSION OR AMBIGUITY; MEDICAL MARIJUANA USES
PROHIBITED
A. If any "use" is for any reason omitted from the lists of those specified
as permissible in each of the various zones herein designated, or if
ambiguity arises concerning the appropriate classification of a particular
use within the meaning and intent of this Chapter, or if ambiguity exists
with reference to matters of height, yard requirements or area
requirements as set forth herein and as they may pertain to unforeseen
circumstances, it shall be the duty of the Planning Commission to
ascertain all pertinent facts concerning said use and by resolution of
record set forth its findings and the reasons therefor. Such findings and
resolutions shall be referred to the Council and, if approved by the
Council, thereafter such interpretation shall govern.
B. Cannabis dispensaries, cultivation, cannabis manufacturers, and
delivery of cannabis, as defined in Section 9220.45.1.3, shall be
considered prohibited uses in all zoning districts of the City. No use
permit, variance, building permit, or any other entitlement or permit,
whether administrative or discretionary, shall be approved or issued for
the establishment or operation of dispensaries, cannabis cultivation,
cannabis manufacturers, and delivery of cannabis as defined herein in any
zoning district, and no person shall otherwise establish such businesses
or operations in any zoning district.
SECTION 3. CEQA. The City Council finds that this Ordinance is not subject to
the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines
Sections 15060(c)(3) because this activity is not a project as defined by Section 15378
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, and
pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty
that it will not have a significant effect or physical change to the environment.
SECTION 4. Severability. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance or any part thereof is for any reason held
to be unconstitutional, such decision shall not affect the validity of the remaining portion
of this Ordinance or any part thereof. The City Council hereby declares that it would
have passed each section, subsection, subdivision, paragraph, sentence, clause or
phrase thereof, irrespective of the fact that any one or more section, subsection,
subdivision, paragraph, sentence, clause or phrases be declared unconstitutional.
SECTION 5. Effective Date. This Ordinance shall become effective upon the
thirty-first (31st) day following its adoption by a majority vote of the City Council.
SECTION 6. Publication. The Mayor shall sign this Ordinance and the City
Clerk shall attest thereto and shall within fifteen (15) days of its adoption cause it, or a
summary of it, to be published in the _______________________, a newspaper
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published and circulated in the City of _______________, and thereupon and thereafter
this ordinance shall take effect and be in force according to law.
PASSED, APPROVED, AND ADOPTED this ____ day of _______________,
2015.
___________________________________
Gary Kovacic, Mayor
ATTEST:
_______________________________
Gene Glasco, City Clerk
APPROVED AS TO FORM:
_______________________________
Stephen P. Deitsch, City Attorney