HomeMy WebLinkAboutPC RES 4335 RESOLUTION NO. 4335
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING
THAT THE CITY COUNCIL ADOPT ORDINANCE NO.
1478, AMENDING TUSTIN CITY CODE SECTIONS 3141,
3152, 9270 AND 9297 TO UPDATE THE CITY'S BUSINESS
AND LAND USE REGULATIONS PERTAINING TO
MARIJUANA ACTIVITY.
The Planning Commission hereby does resolve as follows:
I. The Planning Commission finds and determines as follows:
A. 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.
B. 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.
C. 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.
D. 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,
Resolution No. 4335
Page 2
safety, morals and general welfare of the residents and businesses within
the City.
E. 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.,
2013 WL 1859214 (Cal.), affirmed the right of municipalities to ban
medical marijuana dispensaries, holding that neither the CUA nor the
MMPA preempted a zoning ordinance declaring medical marijuana
dispensaries a prohibited use of land.
F. 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.
G. That the MMRSA, effective as of January 1, 2016, contains provisions that
govern the cultivating, processing, transporting, testing, and distributing of
medical cannabis to qualified patients. The MMRSA also contains new
statutory provisions that:
1. Expressly provide that the MMRSA does not supersede or limit focal
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));
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)); and
3. Require a local government that wishes to prevent marijuana delivery
activity, as defined in Business & Professions Code Section
19300.5(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)).
H. That on January 19, 2016, the City Council adopted Ordinance No. 1466.
The purpose of Ordinance 1466 was to prohibit marijuana cultivation,
processing, delivery, and distribution in all zoning districts within the City.
I. That on November 8, 2016, California voters approved Proposition 64 —
the Control, Regulate, and Tax Adult Use of Marijuana Act (the "Adult Use
of Marijuana Act") legalizing certain activities by adults aged 21 or older
pertaining to recreational marijuana including:
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Page 3
1. Possessing, processing, transporting, purchasing, obtaining, or giving
away, to adults aged 21 or older without compensation whatsoever, of
recreational marijuana in certain specified amounts (Health & Safety
Code §§ 11362.1(a)(1) and (a)(2));
2. Possessing, planting, cultivating, harvesting, drying, or processing of
not more than six (6) living marijuana plants and possessing the
marijuana produced by those plants, provided that such activity is
conducted within a person's private residence (i.e. house, apartment
unit, mobile home or other similar dwelling), or upon the grounds of
that private residence (e.g. in an outdoor garden area), are in a locked
space, and are not visible by normal unaided vision from a public
place (Health & Safety Code §§ 11362.1(a)(3) and 11362.2(a)(2),
(a)(3), and (b)(5)); and,
3. Smoking or ingesting of marijuana and marijuana products (Health &
Safety Code § 11362.1(a)(4)).
J. That, pursuant to the Adult Use of Marijuana Act, local entities may not
completely prohibit any of the foregoing activities, except that local entities
may prohibit possessing, planting, cultivating, harvesting, drying, and
processing of marijuana outdoors upon the grounds of a private residence
((Health & Safety Code § 11362.2(b)(3)).
K. That pursuant to the provisions of the Tustin City Code ("TCC"), planting,
cultivating, processing, harvesting, or drying of marijuana (whether
medical or recreational) are not listed as a "permitted use" in any zoning
district in the City; and that such uses and activities are expressly
prohibited in all zoning districts within the City.
L. That Code Amendment (CA) 2017-001 is consistent with the goals,
objectives, and policies of the General Plan as a whole and is not
inconsistent with any element thereof. Further, CA 2017-001 is necessary
in order to ensure that the TCC is not inconsistent with state law.
Specifically, this Ordinance is necessary in order to amend the TCC so
that it does not prohibit activity and/or uses that are expressly permitted
pursuant to the Adult Use of Marijuana Act,
M. That CA 2017-001 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.
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N, That on February 28, 2017,, a public hearing was duly noticed, called, and
held on Code Amendment 2017-001 by the Planning Commission.
11 The Planning Commission hereby recommends that the City Council adopt
Ordinance No. 1478, amending TCC Sections 3141, 3152, 91270 and 92�97 to
update the City's business and land, use reg�ulations, pertaining to marijuana
activity, which is attached hereto.
PASSED AND ADOPTED, at a regular meeting of the Planning Commission of the City
of Tustin on this 28 1h day of February, 2017,
AUSTI LU!MbARD
Chairperson
w.
ELIZABETH A. BINSAC,K
Planning Commission Secretary
STATE OF CALIFORNIA )
COUNTY OF ORANGE ss.
CITY OF TUSTIN
I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning
Commission Secretary of the City of Tustin, California; that Resolution No, 4335 was
passed and adopted at a regular meeting of the Tustin Planning Commission, held on
the 281h day of February, 2017
PLAWNG COMMISSIONER AYES- KOZAK, LUMBARD, MASON, SMYM, THOMPSON (5)
PLANNING COMMISSIONER NOES:
PLAWNG COMMISSIONER ABSTAINED:,
PLANNING COMMISSIONER ABSENT:
ELIZABETH A, BINSACK
Planning Commission Secretary