HomeMy WebLinkAboutORD 1466 (2016) ORDINANCE NO. 1466
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, AMENDING TUSTIN CITY
CODE SECTIONS 9270C AND 9297 TO EXPRESSLY
PROHIBIT MARIJUANA CULTIVATION, PROCESSING,
DELIVERY, AND DISTRIBUTION IN ALL ZONING
DISTRICTS
The City Council of the City of Tustin does hereby ordain as follows:
Section 1. The City Council 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.
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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
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.
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. 4"' 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 cultivation, processing, transportation, testing,
and distribution of medical cannabis to qualified patients. The MMRSA
creates a State licensing program for issuance of permits that allow
cultivation, processing, delivery/transportation, and distribution of medical
marijuana. The MMRSA also contains new statutory provisions that:
1. Expressly provide that the MMRSA does not supersede or limit local
authority for local law enforcement activity, enforcement of local
Ordinance No. 1466
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ordinances, or enforcement of local permit or licensing requirements
regarding marijuana (Business & Professions Code §19315(a));
2. 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));
3. Require a local government that wishes to prevent marijuana delivery
activity, as defined in Business & Professions Code section19300.5(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
4. 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.
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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,
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
are not listed as "permitted uses" 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.
Ordinance No. 1466
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' 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.
V. That on December 8, 2015, a public hearing was duly noticed, called, and
held on CA 2015-005 by the Planning Commission.
W. That on December 8, 2015, the Planning Commission adopted Resolution
No. 4308, and recommended that the City Council adopt Ordinance No.
1466, approving CA 2015-005 to prohibit marijuana cultivation,
processing, delivery, and distribution in all zoning districts.
X. That on January 5, 2016, a public hearing was duly noticed, called, and
held on Code Amendment 2015-005 by the City Council.
Y. 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.
Z. 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.
Ordinance No. 1466
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Section 2. The following definition for "medical marijuana dispensary" is hereby
added to Section 3141 of Part 4 of Chapter 1 of Article 3 of the Tustin City
Code and Section 9297 of Part 9 of Chapter 2 of Article 9 of the Tustin
City Code to read as follows:
"Medical marijuana dispensary" means any person, association, business,
facility, use, establishment, location, delivery service, cooperative,
collective, or provider, whether fixed or mobile, that possesses, cultivates,
processes, distributes, makes available or otherwise facilitates the
distribution of marijuana (in any form or incorporated into any other
product) to any person including, but not limited to, a qualified patient, a
person with an identification card, or a primary caregiver as those terms
are defined in California Health and Safety Code Sections 11362.5 and
11362.7 et seq., as may be amended from time to time."
Section 3. Section 9270c of Part 7 of Chapter 2 of Article 9 of the Tustin City Code is
hereby amended to read as follows (new text underlined):
Prohibited Uses
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.
Medical marijuana dispensaries as defined in this Code are expressly
prohibited in all zoning districts.
Section 4. Part 5 of Chapter 1 of Article 3 of the Tustin City Code is hereby added to
read as follows:
PART 5 PROHIBITED USES AND BUSINESSES
3151 PROHIBITED USES
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.
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.
Ordinance No. 1466
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3152 MEDICAL MARIJUANA DISPENSARIES
Medical marijuana dispensaries as defined in this Code are expressly
prohibited within the City.
Section 5. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held out to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not
affect the validity of the remaining portions of this ordinance. The City
Council of the City of Tustin hereby declares that it would have adopted
this ordinance and each section, subsection, clause, phrase or portion
thereof irrespective of the fact that any one or more sections, subsections,
sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
PASSED AND ADOPTED at a regular meeting of the City Council for the City of
Tustin on the 19th day of January, 2016.
Ai
JOH.IfNIELSEN,
Ma •r
ATTEST:
ERICA N. RABE,
City Clerk
•PROV ' A TO FORM:
DAVID E. KENDIG,I
City Attorney
Ordinance No. 1466
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STATE OF CALIFORNIA ) 111COUNTY OF ORANGE ) SS
CITY OF TUSTIN
CERTIFICATION FOR ORDINANCE NO. 1466
I, Erica N. Rabe, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1466
was duly and regularly introduced at the regular meeting of the City Council held on the
5th day of January, 2016, and was given its second reading, passed, and adopted at a
regular meeting of the City Council held on the 19th day of January, 2016, by the
following vote:
COUNCILMEMBER AYES: Nielsen, Bernstein, Gomez, Murray ( 4 )
COUNCILMEMBER NOES: None ( 0 )
COUNCILMEMBER ABSTAINED: None ( 0 )
COUNCILMEMBER ABSENT: Puckett ( 1 )
AA° ,
ERICA N. RABE,
City Clerk
Ordinance No. 1466
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