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HomeMy WebLinkAboutItem No. 2 - Reso 1969STAFF REPORT Office of the City Attorney DATE: August 23, 2016 TO: Honorable Chair and Planning Commission FROM: Stephen P. Deitsch, City Attorney P. 1� SUBJECT: RESOLUTION NO. 1969 - A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE AMENDING SECTIONS 9220.45.1.3 AND 9213 OF THE ARCADIA MUNICIPAL CODE TO REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA Recommendation: Adopt Resolution No. 1969 and Forward a Recommendation to the City Council SIIMMARY The Arcadia Municipal Code currently bans medical marijuana dispensaries, delivery services, and cultivation under Sections 9220.45.1.3 and 9213. On June 28, 2016, the Secretary of State Certified Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act ( "AUMA ") for the November 8, 2016 ballot. If AUMA passes, some of its provisions will take effect on November 9, 2016. AUMA would immediately legalize possession, transport, purchase, use, and transfer of recreational marijuana for individuals 21 years of age or older. Under AUMA, adults could possess up to 28.5 grams of marijuana, up to eight (8) grams of marijuana in the form of concentrated cannabis, which may be present in marijuana products such as edibles, and up to six (6) living marijuana plants, and any marijuana produced by those plants. It would also legalize the cultivation of marijuana, marijuana delivery services, and recreational marijuana retail services. However, AUMA allows for local control of marijuana uses. It will allow local governments to: • Ban all marijuana- related businesses outright, including marijuana dispensaries, delivery services, and any recreational marijuana retail services. • Ban outdoor cultivation of marijuana, unless the California Attorney General determines marijuana is no longer illegal under federal law (if marijuana is federally legalized, outdoor cultivation could be regulated, but not prohibited). Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 2 of 11 • Reasonably regulate indoor cultivation in private residences, but not ban it outright. AUMA would allow individuals to grow up to six (6) marijuana plants in their homes, and to possess all of the marijuana those plants provide. It is recommended that the Planning Commission adopt the attached Resolution No. 1969 to recommend that the City Council adopt an ordinance regulating personal, medical, and commercial use of marijuana so that the Arcadia Municipal Code properly regulates these issues prior to the potential passage of AUMA. BACKGROUND The Arcadia Municipal Code currently bans medical marijuana dispensaries, delivery services, and cultivation. If AUMA passes, it would allow for the development of many new marijuana - related businesses, including recreational dispensaries, recreational retail services, and recreational delivery. However, AUMA also gives local governments the authority to regulate these uses. While AUMA indicates a local government cannot prevent transportation of marijuana or marijuana products on public roads, AUMA authorizes cities to "reasonably regulate" indoor cultivation of marijuana in private residences, ban outdoor cultivation of marijuana entirely, unless it is federally legalized, and prohibit any marijuana - related businesses entirely. If AUMA becomes law, recreational use of marijuana will be legalized, as will recreational possession of marijuana and some level of indoor cultivation. 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 activities such as loitering, and criminal activity in business and residential districts. Specifically, mobile delivery can create issues relating to responsibilities and resources for monitoring and enforcing State laws, 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 marijuana indoors can create excessive mold growth and structural damage. Additionally, the equipment utilized to grow marijuana 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. The following actions are recommended: (a) Planning Commission adoption of the attached Resolution recommending that the City Council adopt an ordinance banning or regulating these uses; and (b) that the ordinance regulate or ban to the extent allowable personal marijuana use and cultivation, medical marijuana uses, and commercial marijuana uses. PROPOSAL Medical marijuana and/or cannabis is currently addressed by two Sections of the Arcadia Municipal Code. Section 9220.45.1.3 provides certain definitions, and Section Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 3 of 11 9213 states that there is no omission or ambiguity to the prohibition of medical marijuana uses and/or cannabis dispensaries, cultivation, manufacturers, and delivery. Section 9220.45.1.3, currently reads 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 Vocation 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 9220.45.1.3, is proposed to be amended in its entirety to read as follows: 9220.45.1.3 - MARIJUANA USES. For purposes of this Code, the following definitions shall apply A. "Commercial marijuana activity" includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, delivery or sale of marijuana and marijuana products. Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 4 of 11 B. "Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. C. "Delivery" means the commercial transfer of marijuana or marijuana products to a customer. 'Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer, or independently licensed under California law, that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana products. D. "Distribution" means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes. E. "Licensee" means the holder of any state issued license related to marijuana activities, including but not limited to licenses issued under Division 10 of the Business & Professions Code. F. "Manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product. G. "Marijuana" means all parts of the plant Cannabis sativa L., 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. It does not include: 1. Industrial hemp, as defined in Section 11098.5 of the California Health & Safety Code; or 2. The weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. H. "Marijuana accessories" means any equipment, products or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana or marijuana products into the human body. I. "Marijuana products" means marijuana that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing marijuana or concentrated cannabis and other ingredients. J. "Person" includes any individual, firm, co- partnership joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular. Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 5 of 11 K. "Private residence" means a house, an apartment unit, a mobile home, or other similar dwelling. L. "Sale" includes any transaction whereby, for any consideration, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuana products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of marijuana or marijuana products by a licensee to the licensee from whom such marijuana or marijuana product was purchased. M. Any term defined in this Section also means the very term as defined in the California Business & Professions Code or the California Health & Safety Code, unless otherwise specified. Section 9213 is proposed to be amended as follows: 9213. - OMISSION OR AMBIGUITY; 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 City Council and, if approved by the Council, thereafter such interpretation shall govern. B. PERSONAL USE OF MARIJUANA. 1. For purposes of this subsection, personal recreational use, possession, purchase, transport, or dissemination of marijuana shall be considered unlawful in all areas of the City to the extent it is unlawful under California law. • • • N-ei. 4- • : p. NO • MO 011 11- ' . • , • B. PERSONAL USE OF MARIJUANA. 1. For purposes of this subsection, personal recreational use, possession, purchase, transport, or dissemination of marijuana shall be considered unlawful in all areas of the City to the extent it is unlawful under California law. Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 6 of 11 2. OUTDOOR CULTIVATION. A person may not plant, cultivate, harvest, dry, or process marijuana plants outdoors in any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. 3. INDOOR CULTIVATION. a. A person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, or inside any other enclosed structure within any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. b. To the extent a complete prohibition on indoor cultivation is not permitted under California law, a person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, unless the person is issued an indoor cultivation permit by the Planning Division. A person may not plant, cultivate, harvest, dry, or process marijuana plants inside any enclosed structure within any zoning district of the City which is not either a private residence or an accessory structure to a private residence located upon the grounds of a private residence. c. The Planning Division will issue application and processing guidelines for the indoor cultivation permit. No indoor cultivation permit shall be issued prior to the release of these guidelines, and no permit shall be granted which has not complied fully with the application and processing requirements. C. MEDICAL USE OF MARIJUANA. 1. Cultivation of medical marijuana pursuant to Section 11362.77 of the California Health & Safety Code is subject to the cultivation requirements laid out in subsection (B) of this Section. 2. The establishment or operation of any medical marijuana collective, cooperative, dispensary, delivery service, operator, establishment, or provider shall be considered a prohibited use 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 of any collective, cooperative, dispensary, delivery service, operator, establishment, or provider in any zoning district, Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 7 of 11 and no person shall otherwise establish such businesses or operations in any zoning district. D. COMMERCIAL USE OF MARIJUANA. 1. The establishment or operation of any business of commercial marijuana activity is prohibited. 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 any such business or operation. Such prohibited businesses or operations may include, but are not limited to: a. The transportation, delivery, storage, distribution, or sale of marijuana, marijuana products, or marijuana accessories; b. The cultivation of marijuana; c. The manufacturing or testing or marijuana, marijuana products, or marijuana accessories; or d. Any other business licensed by the state or other government entity under Division 10 of the California Business & Professions Code, as it may be amended from time to time. E. VIOLATIONS. No person, whether as principal, agent, employee or otherwise, shall violate, cause the violation of, or otherwise fail to comply with any of the requirements of this section. Every act prohibited or declared unlawful, and every failure to perform an act made mandatory by this section, shall be a misdemeanor or an infraction, at the discretion of the City Attorney or the District Attorney. In addition to the penalties provided in this section, any condition caused or permitted to exist in violation of any of the provisions of this section is declared a public nuisance and may be abated as provided in Section 1200 of this Municipal Code and /or understate law. A Draft of the proposed City Council Ordinance is included as Exhibit "A° of the attached Resolution No. 1969. DISCUSSION The proposed ordinance includes provisions that will ban or regulate, to the extent allowable, the following: (1) personal marijuana use and cultivation, (2) medical marijuana uses, and (3) commercial marijuana uses. Each of these provisions of the ordinance is described in detail below. 1. Regulation of Personal Marijuana Uses As indicated above, passage of AUMA would legalize the recreational use of marijuana. However, the recommended ordinance includes a provision banning personal Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 8 of 11 recreational use of marijuana to the extent such use is illegal under California law. If AUMA fails, the proposed ordinance would continue to ban all personal recreational use of marijuana in the City. The City is also allowed to ban outdoor cultivation of marijuana entirely. Alternatively, some cities are allowing outdoor cultivation with regulations such as the following: • Outdoor, residential cultivation as long as plants are enclosed; • Property owner must approve of cultivation on the property; and Limiting the number of plants If AUMA passes, the City cannot ban indoor cultivation of marijuana in private residences outright, but it may "reasonably regulate" such cultivation. The recommended ordinance bans all indoor cultivation entirely to the extent allowed by California law, and bans indoor cultivation in all structures that are not private residences entirely. It also allows for indoor cultivation in private residences only after the individual has obtained an Indoor Cultivation Permit, which will allow the City to place building code, fire code, and public safety restrictions on cultivation occurring in private residences. The application requirements, permitting process, recommended fee, and guidelines for this process are still under development. Alternatively, the City could decline to regulate indoor cultivation entirely, or propose other regulations, such as the following: • Indoor cultivation for personal use only • Indoor cultivation for commercial use with a business license • Indoor cultivation with an alternative set of public welfare regulations imposed, but no permit required 2. Regulation of Medical Mariivana Uses The Medical Marijuana Regulation and Safety Act ( "MMRSA ") is left largely intact by AUMA, and so the potential for medical marijuana uses, including qualified patient or primary caregiver cultivation, still exists. The recommended ordinance would impose the same regulations on medical marijuana cultivation as on recreational cultivation, and would ban all collectives, cooperatives, dispensaries, delivery services, operators, establishments, and providers. Alternatively, the City could impose the following: • Create looser regulations for those who have a verified medical need to cultivate marijuana indoors or outdoors; • Allow dispensaries, but limit the number allowed in the jurisdiction; • Allow dispensaries, but impose separation requirements from parks, schools, churches, and other dispensaries; Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 9 of 11 + Limit dispensaries to a specified zoning designation; and/or + Allow dispensaries with a Conditional Use Permit to impose security requirements, including limiting the hours of operation, prohibiting loitering, etc. 3. Regulation of Commercial Marijuana Uses If AUMA becomes law, it will likely lead to the creation of a variety of new commercial marijuana ventures, including recreational retail services. The recommended ordinance bans all commercial marijuana activity, including commercial delivery, commercial cultivation, commercial manufacturing, commercial testing, and any commercial dispensaries or recreational retailers. Alternatively, the City could allow some or all of these uses, along with whatever regulations the City sees fit. Such additional options include the following- 0 Allowing commercial cultivation with a local tax imposed on growth; + Allowing some retailers with a Conditional Use Permit, and /or zoning limitations on location or number; or Allowing delivery to originate or terminate in the City. FINDINGS Prior to taking an action to recommend approval of the Text Amendment, the Planning Commission must make the appropriate findings. Each of the required findings is listed below, along with the facts to support each finding. 1. The proposed Text Amendment conforms with the goals, objectives and policies of the General Plan. FACTS TO SUPPORT THE FINDING: The Text Amendment conforms to the goals, objectives and policies of the General Plan, which provides for orderly, functional patterns of land uses that are sensitive to the natural environment, and meet the long -term social and economic needs of the community. The City of Arcadia is exercising its police power granted under California Government Code Section 65800 et. seq., in regulating personal, medical, and commercial marijuana activities in the City. 2. The proposed Text Amendment is necessary to implement the General Plan and to provide for public safety, convenience and /or general welfare. FACTS TO SUPPORT THE FINDING: The proposed Text Amendment is necessary to implement the General Plan and to provide for public safety, convenience and /or general welfare. This Text Amendment is proposed and enacted to protect and preserve the public health, safety, welfare and convenience, and to enhance the quality of life of the citizens of the City of Arcadia. Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 10 of 11 California cities that have permitted cultivation, marijuana dispensaries and delivery services have experienced negative affects to the public health, safety and welfare of its citizens. Cities that have permitted marijuana dispensaries and delivery services have also experienced an overabundance and overconcentration of such uses, burglaries, takeover robberies, robberies of customers, an increase in crime in the vicinity of the dispensaries, illegal re- selling of marijuana obtained from dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana, dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards, street dealers attempting to sell marijuana to dispensary customers, dispensary customers using marijuana and then driving under the influence of marijuana, the selling of illegal drugs other than marijuana in the dispensaries, and the selling of marijuana and marijuana products to minors. 3. The proposed Text Amendment conforms with the intent of the Zoning /Development Code and is consistent with all other related provisions thereof. FACTS TO SUPPORT THE FINDING: The proposed Text Amendment conforms with the intent of the Zoning /Development Code, specifically, that zones are created and land uses established to protect the physical, social, and economic stability of residential, commercial, recreational, and other land uses within the City of Arcadia to assure orderly and beneficial development; to protect existing residents and property owners from the adverse effects of incompatible uses; to reduce hazards to the public resulting from inappropriate land uses; and to establish Arcadia as a safe community with a high quality of life for its residents. The proposed Text Amendment is consistent with provisions contained in the Zoning/Development Code; specifically, the land use regulation is being enacted to protect residential properties and dwellings from incompatible uses, light, glare, odors, visual blight, and other objectionable conditions; and to protect adjacent properties from incompatible uses, light, glare, odors, visual blight, and other objectionable conditions resulting from uses having a higher intensity. 4. The proposed Text Amendment is reasonable and beneficial at this time. FACTS TO SUPPORT THE FINDING: The Text Amendment is reasonable and beneficial at this time. The City desires to regulate marijuana land uses within the City limits. Although the City has adopted regulations, it is recommended that the language in the Zoning/Development Code be updated to clearly meet the City's desire to retain local control over these land uses in the event AUMA passes in November. ENVIRONMENTAL ASSESSMENT The Text Amendment and recommended ordinance are not a project within the meaning of Section 15378 of the State of California Environmental Quality Act ( °CEQA ") Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The Planning Commission further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that the Text Amendment Resolution No. 1969 - TA 16 -04 Regulate Use of Marijuana August 23, 2016 Page 11 of 11 and recommended ordinance are nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. A Preliminary Exemption Assessment is included as Exhibit "B" of the attached Resolution No. 1969. PUBLIC NOTICE A Public Hearing Notice of this Text Amendment was published in the Arcadia Weekly on August 11, 2016. As of August 16, 2016, no comments have been received in response to the notice. RECOMMENDATION It is recommended that the Planning Commission adopt Resolution No. 1969, a Resolution of the Planning Commission of the City of Arcadia, California, recommending that the City Council adopt an ordinance amending Sections 9220.45.1.3 and 9213 of the Arcadia Municipal Code to regulate the personal, medical, and commercial use of marijuana. If any Planning Commissioner, or other interested party has any questions or comments regarding this matter prior to the August 23, 2016 meeting, please contact Jim Kasama, Community Development Administrator at (626) 574 -5442, or jkasama @ArcadiaCA.gov. Attachments Planning Commission Resolution No. 1969, with the following Exhibits: Exhibit °A" - Draft City Council Ordinance Exhibit "B" - Preliminary Exemption Assessment RESOLUTION NO. 1969 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE AMENDING SECTIONS 9220.45.1.3 AND 9213 OF THE ARCADIA MUNICIPAL CODE TO REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA WHEREAS, the City of Arcadia, California (the "City ") is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, California Government Code Section 65800 et seq. authorizes the adoption and administration of zoning laws, ordinances, rules and regulations by cities as a means of implementing the General Plan; and WHEREAS, the City passed Ordinance No. 2332 on January 19, 2016; and WHEREAS, the City desires to continue to ban all marijuana dispensaries, cultivation, and delivery service land uses within the City Limits to the extent allowed by California law. The Draft Ordinance attached as Exhibit "A" would update the Municipal Code to effectuate that aim; and WHEREAS, on June 28, 2016, the Secretary of State certified Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act ( "AUMA "), for the November 8, 2016 ballot; and WHEREAS, the AUMA would become law if a majority of the electorate votes "Yes" on the proposition; and WHEREAS, the AUMA would regulate, among other items, the use of marijuana for personal and commercial purposes, including the recreational use of marijuana by adults over 21 years of age; and WHEREAS, to regulate personal use of marijuana the AUMA would add Section 11362.1 to the Health and Safety Code, which makes it "lawful under state and local law" for persons 21 years of age or older to "possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever" up to 28.5 grams of marijuana in the form of concentrated cannabis or not more than eight grams of marijuana in the form of concentrated cannabis contained in marijuana products; and WHEREAS, the AUMA would make it lawful for those individuals to "possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants "; and WHEREAS, the AUMA would make it lawful for those individuals to smoke or ingest marijuana or marijuana products; and WHEREAS, should the AUMA pass, many of its provisions would take effect on November 9, 2016; and WHEREAS, to regulate the commercial use of marijuana, the AUMA would add Division 10 (Marijuana) to the Business & Professions Code, which grants state agencies "the exclusive authority to create, issue, renew, discipline, suspend, or revoke" licenses for businesses including the transportation, storage, distribution, sale, cultivation, manufacturing, and testing of marijuana; and WHEREAS, the AUMA provides that the above state agencies shall promulgate rules and regulations and shall begin issuing licenses under Division 10 by January 1, 2018; and Pa WHEREAS, the AUMA states that a local jurisdiction shall not prevent transportation of marijuana or marijuana products on public roads by a licensee transporting marijuana or marijuana products in compliance with Division 10; and WHEREAS, the AUMA would authorize cities to "reasonably regulate" without completely prohibiting cultivation of marijuana inside a private residence or inside an "accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure "; and WHEREAS, the AUMA would authorize cities to completely prohibit outdoor cultivation on the grounds of a private residence, up to and until a "determination by the California Attorney General that nonmedical use of marijuana is lawful in the State of California under federal law "; and WHEREAS, the AUMA would authorize cities to completely prohibit the establishment or operation of any marijuana business licensed under Division 10 within its jurisdiction, including marijuana dispensaries, marijuana retailers, and marijuana delivery services; and WHEREAS, absent appropriate local regulation authorized by the AUMA, state regulations will control; and WHEREAS, the "Medical Marijuana Regulation and Safety Act" ( "MMRSA "), which took effect January 1, 2016, regulates the use of marijuana for medical purposes; WT:J WHEREAS, the MMRSA contains a provision which provides that the State shall become the sole authority for regulation under certain parts of the Act unless local governments pass their own regulations; and 3 WHEREAS, in May 2013, the California Supreme Court held in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013) that cities have the authority to regulate or ban outright medical marijuana land uses; and WHEREAS, the California 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, under the Federal Controlled Substances Act, the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need; 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, 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 subject Text Amendment and Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2), 15060(c)(3) and 15061(b)(3). The activity is not subject to CEQA because it will not C! result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, the Planning Commission of the City of Arcadia hereby resolves as follows: Section 1: The Planning Commission hereby specifically finds that all of the facts set forth in the Recitals of this Resolution, are true and correct and are hereby incorporated and adopted as findings of the Planning Commission as if fully set forth herein. Section 2: Based on the entire record before the Planning Commission, all written and oral evidence presented to the Planning Commission, and the findings made in the staff report and this Resolution, the Planning Commission hereby recommends that the City Council adopt an ordinance entitled: "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 REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA," a draft of which is attached hereto as Exhibit "A" and incorporated by reference herein. 5 Section 3: The Planning Commission finds that adoption of the proposed ordinance is consistent with the City of Arcadia's General Plan because it ensures that the quality of life within the City is supported by development that avoids negative impacts on residents and businesses and is compatible with, and enhances, the City's natural and built environment and helps develop the City's community in a safe, defensible, unified, and orderly manner to facilitate a reduction in crime, resulting in a safer community. Overall, the text amendment to the City of Arcadia Municipal Code made by the proposed ordinance remains consistent with the objectives and policies of each element of the General Plan and does not obstruct their attainment. Section 4: The proposed Text Amendment is reasonable and beneficial at this time. The City desires to continue to ban marijuana dispensaries, cultivation and delivery service land uses within the city limits to the extent allowed by California law. Although the City has adopted regulations, it is recommended that the language in the Municipal Code be updated to clearly meet the City's desire to maintain local control over these land uses, especially in the event California law is altered by passage of the AUMA on November 8, 2016. Section 5: The proposed Text Amendment and recommended ordinance are not a project within the meaning of Section 15378 of the State of California Environmental Quality Act ( "CEQA ") Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The Planning Commission further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that the Text Amendment and recommended ordinance are nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA I. applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. A Preliminary Exemption Assessment is attached hereto as Exhibit "B" and incorporated by reference herein. Section 6: The Secretary of the Planning Commission shall certify to the adoption of this Resolution. PASSED, APPROVED AND ADOPTED by the Planning Commission of the City of Arcadia this day of , 2016. ATTEST: Secretary APPROVED AS TO FORM: Stephen P. Deitsch City Attorney N Chairman, Planning Commission ARCADIA PLANNING COMMISSION RESOLUTION NO. 1969 EXHIBIT "A" A DRAFT 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 REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA [ATTACHED BEHIND THIS PAGE] WOE RIT Fill nw ORDINANCE NO. xxxx 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 REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA WHEREAS, the City of Arcadia, California (the "City ") is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, California Government Code section 65800 et seq. authorizes the adoption and administration of zoning laws, ordinances, rules and regulations by cities as a means of implementing the General Plan; and WHEREAS, the City passed Ordinance No. 2332 on January 19, 2016; and WHEREAS, the City desires to continue to ban all marijuana dispensaries, cultivation, and delivery service land uses within the City Limits to the extent allowed by California law. Ordinance No. xxxx updates the Arcadia Municipal Code to effectuate that aim; and WHEREAS, on June 28, 2016, the Secretary of State certified Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act ( "AUMA "), for the November 8, 2016 ballot; and WHEREAS, the AUMA would become law if a majority of the electorate votes "Yes" on the proposition; and WHEREAS, the AUMA would regulate, among other items, the use of marijuana for personal and commercial purposes, including the recreational use of marijuana by adults over 21 years of age; and WHEREAS, to regulate personal use of marijuana the AUMA would add Section 11362.1 to the Health and Safety Code, which makes it "lawful under state and local law" for persons 21 years of age or older to "possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever" up to 28.5 grams of marijuana in the form of concentrated cannabis or not more than eight grams of marijuana in the form of concentrated cannabis contained in marijuana products; and WHEREAS, the AUMA would make it lawful for those individuals to "possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants "; and WHEREAS, the AUMA would make it lawful for those individuals to smoke or ingest marijuana or marijuana products; and WHEREAS, should the AUMA pass, many of its provisions would take effect on November 9, 2016; and WHEREAS, to regulate commercial use of marijuana, the AUMA would add Division 10 (Marijuana) to the Business & Professions Code, which grants state agencies "the exclusive authority to create, issue, renew, discipline, suspend, or revoke" licenses for businesses including the transportation, storage, distribution, sale, cultivation, manufacturing, and testing of marijuana; and WHEREAS, the AUMA provides that the above state agencies shall promulgate rules and regulations and shall begin issuing licenses under Division 10 by January 1, 2018; and WHEREAS, the AUMA states that a local jurisdiction shall not prevent transportation of marijuana or marijuana products on public roads by a licensee transporting marijuana or marijuana products in compliance with Division 10; and Pa WHEREAS, the AUMA would authorize cities to "reasonably regulate" without completely prohibiting cultivation of marijuana inside a private residence or inside an "accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure "; and WHEREAS, the AUMA would authorize cities to completely prohibit outdoor cultivation on the grounds of a private residence, up to and until a "determination by the California Attorney General that nonmedical use of marijuana is lawful in the State of California under federal law "; and WHEREAS, the AUMA would authorize cities to completely prohibit the establishment or operation of any marijuana business licensed under Division 10 within its jurisdiction, including marijuana dispensaries, marijuana retailers, and marijuana delivery services; and WHEREAS, absent appropriate local regulation authorized by the AUMA, state regulations will control; and WHEREAS, the "Medical Marijuana Regulation and Safety Act" ( "MMRSA "), which took effect January 1, 2016, regulates use of marijuana for medical purposes; and WHEREAS, the MMRSA contains a provision which provides that the State shall become the sole authority for regulation under certain parts of the Act unless local governments pass their own regulations; and WHEREAS, in May 2013, the California Supreme Court held in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013) that cities have the authority to regulate or ban outright medical marijuana land uses; and WHEREAS, the California Attorney General's August 2008 Guidelines for the 3 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, under the Federal Controlled Substances Act, the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need; 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, 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 subject Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2), 15060(c)(3) and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the C! activity may have a significant effect on the environment, the activity is not subject to CEQA; and WHEREAS, this Ordinance would amend Sections 9213 and 9220.45.1.3 to clarify the substantive objectives of the Arcadia Municipal Code regarding the City's regulation of marijuana within its City limits and to preemptively address some proposed changes to California law in the event AUMA passes on November 8, 2016. 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 - MARIJUANA USES. For purposes of this Code, the following definitions shall apply: A. "Commercial marijuana activity" includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, delivery or sale of marijuana and marijuana products. B. "Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. C. "Delivery" means the commercial transfer of marijuana or marijuana products to a customer. "Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer, or independently licensed under California law, that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana products. D. "Distribution" means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes. 5 E. "Licensee" means the holder of any state issued license related to marijuana activities, including but not limited to licenses issued under Division 10 of the Business & Professions Code. F. "Manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product. G. "Marijuana" means all parts of the plant Cannabis sativa L., 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. It does not include: 1. Industrial hemp, as defined in Section 11018.5 of the California Health & Safety Code; or 2. The weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. H. "Marijuana accessories" means any equipment, products or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana or marijuana products into the human body. I. "Marijuana products" means marijuana that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing marijuana or concentrated cannabis and other ingredients. n J. "Person" includes any individual, firm, co- partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular. K. "Private residence" means a house, an apartment unit, a mobile home, or other similar dwelling. L. "Sale" includes any transaction whereby, for any consideration, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuana products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of marijuana or marijuana products by a licensee to the licensee from whom such marijuana or marijuana product was purchased. M. Any term defined in this Section also means the very term as defined in the California Business & Professions Code or the California Health & Safety Code, unless otherwise specified." 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: "9213. - OMISSION OR AMBIGUITY; 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 N 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. PERSONAL USE OF MARIJUANA. 1. For purposes of this subsection, personal recreational use, possession, purchase, transport, or dissemination of marijuana shall be considered unlawful in all areas of the City to the extent it is unlawful under California law. 2. OUTDOOR CULTIVATION. A person may not plant, cultivate, harvest, dry, or process marijuana plants outdoors in any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. 3. INDOOR CULTIVATION. a. A person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, or inside any other enclosed structure within any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. b. To the extent a complete prohibition on indoor cultivation is not permitted under California law, a person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, unless the person is issued an indoor cultivation permit by the Planning Division. A person may not plant, cultivate, harvest, dry, or process marijuana plants inside any enclosed structure within any E:3 zoning district of the City which is not either a private residence or an accessory structure to a private residence located upon the grounds of a private residence. c. The Planning Division will issue application and processing guidelines for the indoor cultivation permit. No indoor cultivation permit shall be issued prior to the release of these guidelines, and no permit shall be granted which has not complied fully with the application and processing requirements. C. MEDICAL USE OF MARIJUANA. 1. Cultivation of medical marijuana pursuant to Section 11362.77 of the California Health & Safety Code is subject to the cultivation requirements laid out in subsection (B) of this Section. 2. The establishment or operation of any medical marijuana collective, cooperative, dispensary, delivery service, operator, establishment, or provider shall be considered a prohibited use 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 of any collective, cooperative, dispensary, delivery service, operator, establishment, or provider in any zoning district, and no person shall otherwise establish such businesses or operations in any zoning district. D. COMMERCIAL USE OF MARIJUANA. 1. The establishment or operation of any business of commercial marijuana activity is prohibited. 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 any such business or operation. Such prohibited businesses or operations may include, but are not limited to: 9 a. The transportation, delivery, storage, distribution, or sale of marijuana, marijuana products, or marijuana accessories; b. The cultivation of marijuana; c. The manufacturing or testing or marijuana, marijuana products, or marijuana accessories; or d. Any other business licensed by the state or other government entity under Division 10 of the California Business & Professions Code, as it may be amended from time to time. E. VIOLATIONS. No person, whether as principal, agent, employee or otherwise, shall violate, cause the violation of, or otherwise fail to comply with any of the requirements of this section. Every act prohibited or declared unlawful, and every failure to perform an act made mandatory by this section, shall be a misdemeanor or an infraction, at the discretion of the City Attorney or the District Attorney. In addition to the penalties provided in this section, any condition caused or permitted to exist in violation of any of the provisions of this section is declared a public nuisance and may be abated as provided in Section 1200 of this Municipal Code and /or under state law." SECTION 3. CEQA. The City Council finds that this Ordinance is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act ( "CEQA ") Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The City Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no 10 possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. 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 of the City of Arcadia 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. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk's Office located at 240 West Huntington Drive, Arcadia, CA 91007. The custodian of these records is the City Clerk. SECTION 6. Restatement of Existing Law. Neither the adoption of this Ordinance nor the repeal of any other ordinance of this City shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this Ordinance, insofar as they are substantially the same as the ordinance provisions previously adopted by the City relating to the same subject matter or relating to the enumeration of 11 permitted uses under the City's zoning code, shall be construed as restatements and continuations, and not as new enactments. SECTION 7. Effective Date. This Ordinance shall become effective upon the thirty -first (31 st) day following its adoption by a majority vote of the City Council. SECTION 8. Certification and Publication. The City Clerk shall certify to the adoption of this Ordinance and shall cause a copy of the same to be published in the official newspaper of the City of Arcadia within fifteen (15) days after its adoption. This Ordinance shall take effect thirty -one (31) days after its adoption, and be in force according to law. PASSED, APPROVED, AND ADOPTED this LL ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 12 day of , 2016. Mayor of the City of Arcadia ARCADIA PLANNING COMMISSION RESOLUTION NO. 1969 EXHIBIT "B" PRELIMINARY EXEMPTION ASSESSMENT [ATTACHED BEHIND THIS PAGE] WREFffild n'. 24�11 PRELIMINARY EXEMPTION ASSESSMENT (Certificate of Determination When Attached to Notice of Exemption) 1. Name or description of project: Draft Ordinance to amend Sections 9220.45.1.3 and 9213 of the Arcadia Municipal Code to regulate the personal, medical, and commercial use of marijuana 2. Project Location — Identify street Citywide address and cross streets or attach a map showing project site (preferably a USGS 15' or 7 1/2' topographical map identified by quadrangle name): 3. Entity or person undertaking A. City of Arcadia — Development Services Department project: B. Other (Private) (1) Name (2) Address 4. Staff Determination: The Lead Agency's Staff, having undertaken and completed a preliminary review of this project in accordance with the Lead Agency's "Local Guidelines for Implementing the California Environmental Quality Act (CEQA)" has concluded that this project does not require further environmental assessment because: a. The proposed action does not constitute a project under CEQA. b. ❑ The project is a Ministerial Project. C. ❑ The project is an Emergency Project. d. ❑ The project constitutes a feasibility or planning study. e. ❑ The project is categorically exempt. Applicable Exemption Class: f. ❑ The project is statutorily exempt. Applicable Exemption: g. ❑ The project is otherwise Per Section 15061(b)(3) of the CEQA Guidelines, it exempt on the following basis: can be seen with certainty that this activity will not have a significant effect or physical change to the environment. h. ❑ The project involves another public agency which constitutes the Lead Agency. Name of Lead Agency: Date: August 8, 2016 Staff: Jim Kasama, Community Development Administrator FORM "A" — Preliminary Exemption Assessment