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Home My WebLink AboutORD 1309 (2006) ORDINANCE NO. 1309 AN INTERIM URGENCY ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, ESTABLISHING A TEMPORARY MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY OF TUSTIN FOR A PERIOD OF 45 DAYS PENDING A STUDY OF ZONING REGULATIONS THAT ARE NEEDED TO ALLEVIATE A CURRENT AND ACTUAL THREAT TO THE PUBLIC HEALTH, SAFETY, AND WELFARE The City Council of the City of Tustin, California, does hereby ordain as follows: SECTION 1. This interim urgency ordinance is adopted pursuant to Section 65858 of the California Government Code. SECTION 2. The City Council hereby finds, determines and declares that this interim urgency ordinance is necessary because: A. In 1996 the voters of the state of California approved Proposition 215 (codified as Health and Safety Code Section 11362.5 et. seq. and entitled "The Compassionate Use Act of 1996"). B. The intent of Proposition 215 was to enable seriously ill Californians to legally possess, use, and cultivate marijuana for medical use under state law. C. As a result of Proposition 215, individuals have established medical marijuana dispensaries in various cities. D. Other California cities, which have permitted the establishment of medical marijuana dispensaries, have experienced an increase in crime, such as burglary, robbery, loitering around the dispensaries, increased pedestrian and vehicular traffic and noise, and the sale of illegal drugs in the areas immediately surrounding such medical marijuana dispensaries. E. Based on the experience of other cities it is reasonable to conclude that similar negative effects on the public health, safety, and welfare will occur in Tustin due to the establishment and operation of medical marijuana dispensaries. F. On June 6, 2005, the United States Supreme Court decided Gonzales v. Raich, 125 S. Ct. 2195 (2005). The Court found there to be no legally recognizable medical necessity exception under Federal Law to the Ordinance No. 1309 Page 1 of 4 prohibition of possession, use, manufacture, or distribution of marijuana under Federal law. SECTION 3. For purposes of this ordinance, "medical marijuana dispensary" means any for profit or not-for-profit facility or location, whether permanent or temporary, where the owner(s) or operator(s) intends to or does possess and distribute marijuana for any commercial purpose. A "medical marijuana dispensary" includes a marijuana club as described in People v. Peron (1997) 59 Cal.App 4th 1383. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by the City's Code: a "collective" as defined in Health and Safety Code Section 11362.775; a clinic licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code; a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health & 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 & Safety Code; a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health & Safety Code, a residential hospice; or a home health agency licensed pursuant to Chapter 8 of the Health & Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health & Safety Code Section 11362.5. SECTION 4. A medical marijuana dispensary currently is not a permitted use in any zoning district in the City of Tustin. However, such establishments may seek to locate in certain commercial districts disguised as permitted uses, or may seek to legalize this use. SECTION 5. The establishment of, or the issuance or approval of any permit, certificate of use and occupancy, or other entitlement for the legal establishment of a medical marijuana dispensary in the City will result in a threat to public health, safety, and welfare in that the Tustin City Code does not currently regulate the location and operation of medical marijuana dispensaries, and the experience of other cities with such dispensaries shows that negative effects on the public health, safety, and welfare occur in the vicinity of such uses. In addition, the dispensing of marijuana for any reason, including medical reasons, is illegal under Federal Law. SECTION 6. For the period of this ordinance, or any extension thereof, a medical marijuana dispensary shall be considered a prohibited use in any zoning district of the City, even if located within an otherwise permitted use, and neither the City Council nor City staff shall approve any use interpretation, permit, certificate of use and occupancy, Zoning Code, or General Plan amendment allowing the establishment or operation of a medical marijuana dispensary. SECTION 7. The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) (Title 14, of the California Code of Regulations) because it Ordinance No. 1309 Page 2 of 4 has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated City Code review. SECTION 8. Ten (10) days prior to the expiration of this interim urgency ordinance, or an extension thereof, the City Council shall issue a written report describing the measures which the City has taken to address the conditions which led to the adoption of this ordinance. SECTION 9. This interim urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This interim urgency ordinance shall continue in effect for forty-five (45) days from the date of its adoption and shall thereafter be of no further force and effect unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an additional period of time pursuant to California Government Code Section 65858. SECTION 10. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance or any part thereof is for any reason, held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof, irrespective of the fact that anyone or more sections, subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional. PASSED, APPROVED, AND ADOPTED this th dar¡: VERT, ATTEST: ~~~ PAMELA STOKER City Clerk Ordinance No. 1309 Page30f4 STATE OF CALIFORNIA) COUNTY OF ORANGE) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk of the City of Tustin, California hereby certify that the foregoing is a full, true and correct copy of Ordinance No. 1309 introduced and adopted at a regular meeting of the City Council of the City of Tustin duly held on February 6, 2006, of which meeting all of the members of said City Council had due notice and at which a majority thereof were present; by the following vote: COUNCILMEMBERAYES: DAVERT, HAGEN, AMANTE, BONE, KAWASHIMA COUNCILMEMBER NOES: NONE COUNCILMEMBER ABSTAINED: NONF: COUNCILMEMBER ABSENT: NONE (5) (0) 10) (0) ~na2~ PA LA STOKER, City Clerk Ordinance No. 1309 Page 4 of 4