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HomeMy WebLinkAboutPC RES 4307RESOLUTION NO. 4307 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL ADOPT ORDINANCE NO. 1466, AMENDING TUSTIN CITY CODE SECTIONS 9270C AND 9297 TO EXPRESSLY PROHIBIT MARIJUANA CULTIVATION, PROCESSING, DELIVERY, AND DISTRIBUTION IN ALL ZONING DISTRICTS. The Planning Commission does hereby resolve as follows: 1. The Planning Commission finds and determines as follows: A. That the federal Controlled Substance Act ("CSA"), codified at 21 U.S.C. Section 841 et seq., strictly prohibits the cultivation, distribution, possession, or use of marijuana under any circumstance, including for medical purposes. B. That in 1996, California voters approved Proposition 215, entitled The Compassionate Use Act ("CUA"), codified in Health and Safety Code Section 11362.5 et seq. The CUA, which was intended to enable seriously ill persons to obtain and use marijuana for medical purposes, exempted qualified patients and their primary caregivers from criminal prosecution under State law for the cultivation, distribution, possession, and use of marijuana under specified circumstances. C. That in 2003, the California Legislature enacted Senate Bill (SB) 420, known as the Medical Marijuana Program Act ("MMPA"), codified in Health and Safety Code Section 11362.7 et seq. The MMPA clarified the scope and application of the CUA, better defined the regulatory framework for the cultivation, distribution, possession and use of medical marijuana, and recognized the right of cities to regulate the operation, location, and establishment of medical marijuana dispensaries. D. That on February 6, 2006, the City Council adopted Ordinance No. 1309, an interim urgency ordinance, and found that medical marijuana dispensaries are not permitted uses in any zoning district in the City of Tustin ("City") and expressly prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days pending the commencement of appropriate studies and consideration of alternative land use approaches for addressing the health, safety, and welfare issues associated with the regulation of medical marijuana dispensaries in the City. On March 20, 2006, the City Council adopted Ordinance No. 1310, extending Ordinance No. 1309 for an additional ten (10) months and fifteen (15) days. E. That on December 4, 2006, the City Council adopted Ordinance No. 1322. The purpose and intent of Ordinance No. 1322 was to prohibit all illegal Resolution No. 4307 Page 2 uses, including medical marijuana dispensaries, to promote the health, safety, morals and general welfare of the residents and businesses within the City. F. That in 2008, the California Attorney General published Guidelines for the Security and Non -Diversion of Marijuana Grown for Medical Use, which, among other things, set forth suggested standards for the lawful operation of medical marijuana cooperatives and collectives, including medical marijuana dispensaries properly organized and operated as collectives or cooperatives. G. That neither the CUA, the MMPA, nor the Attorney General's Guidelines obligate cities to allow or permit medical marijuana dispensaries within their local jurisdictional limits. H. That since the enactment of the CUA, City Staff has researched, evaluated and monitored: (1) federal and state laws pertaining to medical marijuana; (2) litigation concerning the authority of cities to regulate and prohibit medical marijuana dispensaries; (3) medical marijuana dispensary ordinances enacted by other cities; and (4) reports and studies on the primary and secondary effects of marijuana dispensaries on local communities. I. That on May 6, 2013, the California Supreme Court in the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., 56 Cal. 4t" 729, confirmed the right of municipalities to ban medical marijuana dispensaries, holding that neither the CUA nor the MMPA preempted a zoning ordinance which declared medical marijuana dispensaries to be a prohibited use of land. J. That on October 9, 2015, Governor Brown signed the "Medical Marijuana Regulation and Safety Act" ("MMRSA"), which is comprised of the State legislative bills known as Assembly Bill (AB) 243, AB 266, and Senate Bill (SB) 643, into law. K. That the MMRSA becomes effective January 1, 2016 and contains provisions that govern the cultivating, processing, transportation, testing, and distribution of medical cannabis to qualified patients. The MMRSA creates a State licensing program for issuance of permits that allows cultivation, processing, delivery/transportation, and distribution of medical marijuana. The MMRSA also contains new statutory provisions that: i. Expressly provide that the MMRSA does not supersede or limit local authority for local law enforcement activity, enforcement of local ordinances, or enforcement of local permit or licensing requirements regarding marijuana (Business &Professions Code §19315(a)); Resolution No. 4307 Page 3 ii. Expressly provide that the MMRSA does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government's right to make and enforce within its limits all police regulations not in conflict with general laws (Business & Professions Code § 19316(c)); iii. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section 1 9300.5(m) of the MMRSA, from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity (Business &Professions Code § 19340(a)); and iv. Require a local government that wishes to prevent cultivation of marijuana, as defined in Business &Professions Code section 19300.5(1), within its borders to enact an ordinance affirmatively banning such cultivation activity. (Health & Safety Code §11362.77(c)(4)). L. That several California cities and counties have experienced significant adverse impacts and negative secondary effects on the public health, safety, and welfare associated with and resulting from the establishment and operation of medical marijuana dispensaries. According to these communities, news stories widely reported, and medical marijuana advocates, medical marijuana dispensaries have resulted in and/or caused an increase in crime, including burglaries, robberies, murders, property damage, illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need, as well as nuisance conditions for adjacent businesses, in the areas immediately surrounding such medical marijuana dispensaries. M. That significant adverse secondary effects arising from the operation of dispensaries throughout California were chronicled in a report prepared by the California Police Chiefs Association, dated April 22, 2009, as well as by a report prepared by the Orange County Chiefs of Police and Sheriffs Association, dated June 2, 2010. In these reports, various crimes including armed robberies, murders, and burglary, arising from, or connected with, the operation of these establishments have been recorded by law enforcement agencies in, among numerous other communities, the California communities of Santa Barbara, Mendocino, San Leandro, Hayward, Laytonville, Bellflower, Claremont, and Willits, as well as in various communities in Orange County. N. That the California Police Chiefs Association report further found: (a) that there have been reported poisonings from distribution of marijuana products due to contamination issues which are more likely because such products are not inspected by health agencies; (b) that adverse traffic, Resolution No. 4307 Page 4 noise, and drug dealing impacts occur commonly outside marijuana dispensaries; and (c) that gang involvement in the ownership and operation of these dispensaries have been reported in some communities. 0. That marijuana plants, as they begin to flower and for a period of two months or more, produce a strong odor, which is offensive to many people, and detectable far beyond property boundaries if grown outdoors. P. That in the case of multiple qualified patients who are in control of the same legal parcel, or parcels, of property, or in the case of collective or cooperative cultivation, or in the case of a caregiver growing for numerous patients, a very large number of plants could be cultivated on the same legal parcel, or parcels, within the City. Q. That 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. R. That the indoor cultivation of marijuana has potential adverse effects to the structural integrity of the building in which the cultivation activity takes place, including installation of unpermitted roof and floor vents, and issues created by water and mold damage. In addition, the use of high wattage grow lights and excessive use of electricity increases the risk of fire which presents a danger to the building and its occupants. S. That 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 activities. T. That medical marijuana cultivation, processing, delivery, and distribution not listed as a "permitted use" in any zoning district in the City. The Tustin City Code ("TCC") provides that: (1) any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district; and (2) Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessory or ancillary use, shall be consistent with applicable state and federal law. Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City. U. That Code Amendment (CA) 2015-005 clarifies the status of medical marijuana dispensaries as an expressly prohibited land use, and shall not be construed to limit or affect the application of Sections 9270c and 9298g of the TCC to medical marijuana dispensaries or any other land use or activity. Resolution No. 4307 Page 5 V. That on December 8, 2015, a public hearing was duly noticed, called, and held on Code Amendment 15-005 by the Planning Commission. W. That Code Amendment 2015-005 is consistent with the goals, objectives, and policies of the General Plan as a whole and is not inconsistent with any element thereof in that medical marijuana dispensaries are not a contemplated land use in the General Plan and prohibiting marijuana cultivation, processing, delivery, and distribution activities in all zoning districts of the City is necessary and appropriate to maintain and protect the public health, safety and general welfare of the City as a whole. This Ordinance clarifies that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. Medical marijuana dispensary uses are not allowed by the current General Plan and City Code. Adoption of this Ordinance maintains the current consistency with the General Plan and between the General Plan and the City Code. This Ordinance promotes public health, safety, and general welfare and serves the goals and purposes of the Tustin City Code by clarifying and confirming that medical marijuana cultivation, processing, delivery, and distribution activities are prohibited in all zoning districts in the City. The continued prohibition of such uses in all zoning districts will ensure that none of the negative secondary effects of medical marijuana dispensaries will adversely impact the general welfare of the City as a whole.. X. That Code Amendment 2015-05 is not subject to the California Environmental Quality Act (CEQA) pursuant to California Code of Regulations, Title 14, Chapter 3, 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) because it has no potential for resulting in physical change to the environment, directly or indirectly. II. The Planning Commission hereby recommends that the City Council adopt Ordinance No. 1466, amending TCC Sections 9270c and 9297 to expressly prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts, attached hereto. PASSED AND ADOPTED at a regular meeting of the Planning Commission of the City of Tustin held on the 8t" day of December, 2015. r vA JE; F �'f!-16UPSON r, CH irperson ELIZABETH A. BINSACK Planning Commission Secretary Resolution No. 4307 Page 6 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN 1, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4307 was passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 8t" day of December, 2015. PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: ELIZABETH A. BINSACK Planning Commission Secretary Altowaij i, Kozak, Lumbard, Smith, Thompson (5)