HomeMy WebLinkAbout05 CODE AMENDMENT 2017-001 (ORDINANCE NO. 1478)Agenda Item 5
AGENDA REPORT Reviewed:
City Manager
40 Finance Director nNJA
MEETING DATE: MARCH 21, 2017
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR
SUBJECT: CODE AMENDMENT 2017-001 (ORDINANCE NO. 1478) RELATED TO
MARIJUANA ACTIVITY
SUMMARY:
Code Amendment (CA) 2017-001 would amend the Tustin City Code (TCC) as required
by the passage of Proposition 64, the Adult Use of Marijuana Act (the "Act"). CA 2017-
001 would amend the TCC so that it does not prohibit activity and/or uses that are
expressly permitted pursuant to the Act. CA 2017-001 would expressly prohibit
marijuana dispensaries as a land use by banning such activity in all zoning .districts, and
would also prohibit marijuana dispensariesas a business activity.
On February 28, 2017, the Planning Commission adopted Resolution No. 4335
recommending that the Tustin City Council adopt Ordinance No. 1478, amending TCC
Sections 3141, 3152, 9270c and 9297 relating to the regulation of marijuana activity in
the City.
RECOMMENDATION:
That the Tustin City Council introduce and have first reading of Ordinance No. 1478,
approving CA 2017-001 by amending TCC Sections 3141, 3152, 9270c and 9297
relating to the regulation of marijuana activity in the City and set a second reading for the
next City Council meeting.
CORRELATION TO THE STRATEGIC PLAN:
The proposed project furthers Goal B of the City of Tustin Strategic Plan pertaining to
Public Safety and the Protection of Assets, in that CA 2017-001 would bring the Tustin
City Code into compliance with State law while at the same time maintaining as much of
the City's existing provisions related to marijuana activities as possible to promote
public safety and protect assets.
CA 2017-001 (Ordinance No. 1478)
March 21, 2017
Page 2
FISCAL IMPACT:
CA 2017001 is a City -initiated project in response to the requirements of State law and
Proposition 64. There is no direct fiscal impact to the General Fund; however, there
may be secondary impact related to enforcement of the proposed Ordinance
APPROVAL AUTHORITY:
TCC Section 9295g authorizes the City Council to adopt Zoning Code amendments
following a recommendation by the Planning Commission and a public hearing. A
recommendation from the Planning Commission and a public hearing are not required
for the proposed amendments to Article 3 of the TCC (General Business Regulations),
which are included in Ordinance No. 1478.
BACKGROUND AND DISCUSSION:
Proposed Code Amendment
Proposed CA 2017-001 would add clarification to the TCC to confirm that the City's
general prohibition on marijuana activity includes a prohibition on such activity whether
it is conducted for medical or recreational purposes, and will also ensure that the TCC is
not inconsistent with changes to state law made effective by approval of Proposition .64
— the Control, Regulate, and Tax Adult Use of Marijuana Act (the "Adult Use of
Marijuana Act") — by California voters on November 8, 2016.
Legislative Background
In 1996, the voters of the State of California approved Proposition 215, entitled "The
Compassionate Use Act of 1996" ("CUA") to enable seriously ill Californians, under the
care of a physician, to legally possess, use, and cultivate marijuana for medical use
under state law. In 2003, the California Legislature adopted SB 420, entitled the
Medical Marijuana Program Act ("MMPA") which permits qualified patients and their
primary care givers to associate collectively or cooperatively to cultivate marijuana for
medical purposes without being subject to criminal prosecution under the California
Penal Code. Neither the CUA nor the MMPA require or impose an affirmative duty on
local government agencies to allow, authorize, or sanction the establishment of facilities
that cultivate, possess, or distribute medical marijuana within their jurisdictions.
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.
In February of 2006, the City Council adopted Interim Urgency Ordinance No. 1309,
which prohibited the establishment of any medical marijuana dispensary in the City for
CA 2017-001 (Ordinance No. 1478)
March 21, 2017
Page 3
forty-five (45) days. The Ordinance was extended in March of 2006, and was later
superseded by the adoption of Ordinance No. 1322 on December 4, 2006. The
purpose and intent of Ordinance No. 1322 was to prohibit all illegal uses, including
medical marijuana dispensaries, in order to promote the health, safety, morals and
general welfare of the residents and businesses of the City.
On October 9, 2015, the "Medical Marijuana Regulation and Safety Act" ("MMRSA"),
which was comprised of the State Legislative Bills known as Assembly Bill (AB) 243, AB
266, and Senate Bill (SB) 643, were signed into law. The MMRSA became effective on
January -1, 2016 and contained provisions governing the cultivation, processing,
transportation, testing, and distribution of medical marijuana to qualified patients. The
MMRSA also confirmed the right of local government entities to enact ordinances
regulating or prohibiting marijuana cultivation, processing, delivery and distribution, but
required that any local government agency that wished to prohibit marijuana delivery
into, or cultivation of marijuana within its jurisdiction, to do so expressly by ordinance.
On January 19, 2016, the City Council adopted Ordinance No. 1466. The purpose of
Ordinance No. 1466 was to expressly prohibit marijuana cultivation, processing,
delivery, and distribution in all zoning districts within the City, and to ensure internal
consistency within the TCC by amending Title 3 of the TCC (Business Regulations) to
mirror the amendments made to Title 9 via Ordinance No. 1466.
On November 8, 2016, Califomia voters approved the Act. The Act creates a regulatory
scheme that calls for licensing, taxing, oversight, and enforcement of recreational
marijuana businesses within the State of California. Like the MMRSA before it, the Act
expressly states that local government entities have the right to adopt and enforce
ordinances regulating or completely prohibiting marijuana businesses within their
jurisdictions with limited exceptions explained herein.
In addition to creating. a regulatory framework for marijuana businesses, the Act
legalized certain activities by adults who have reached the age of 21 pertaining to the
use, possession, processing, transportation, purchasing, cultivation, and harvesting of
marijuana for recreational purposes. Some of the specific activities that were legalized
by the Act include:
1. Possessing, processing, transporting, purchasing, obtaining, or giving away, to
adults aged 21 or older without compensation whatsoever, recreational
marijuana in certain specified amounts (Health & Safety Code §§ 11362.1(a)(1)
and (a)(2));
2. Possessing, planting, cultivating, harvesting, drying, or processing 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
CA 2017-001 (Ordinance No. 1478)
March 21, 2017
Page 4
in a locked space, and are not visible by normal unaided vision from a public
place (Health & Safety Code §§ 11362.1(x)(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)).
While local government entities may continue to regulate and even prohibit marijuana
businesses licensed under the Act, which specified that local government entities
cannot prohibit the foregoing activities, except that local government entities can
prohibit the .processing, planting, cultivation, harvesting, drying of marijuana outdoors
upon the grounds of a private residence.
ANALYSIS;
The TCC has never permitted the use of any property within the City's borders for
purposes of any form of marijuana activity, regardless of whether that use was tied to
medicinal or recreational marijuana. Currently, the TCC contains prohibitions on use of
property within the City for any type of marijuana business or activity, in both its
Business Regulations and Land Use provisions. Specifically, TCC Section 9270c states
in relevant part, "Medical marijuana dispensaries are expressly prohibited in all zoning
districts." The TCC goes on to broadly define a "Medical marijuana dispensary" at
Section 9297 as:
"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 product) to any person, including but not limited
to, a qualified patient, a person with an identification card, or a primary
care giver 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."
TCC Section 3141 provides an identical definition for "medical marijuana dispensary'
within the City's business regulations, and TCC Section 3152 expressly states that
"[m]edical marijuana dispensaries as defined in [the] Code are expressly prohibited
within the City."
Given the existing broad definition of "medical marijuana dispensary" within the TCC,
coupled with its comprehensive ban of all activity that fits within that definition, the TCC
currently prohibits activities which the state has made legal, and which state law has
identified as activities that cannot be completely prohibited by local government
agencies.
CA 2017-001 (Ordinance No. 1478)
March 21, 2017
Page 5
The purpose of Proposed CA 2017-001 is to remove language within the TCC that is in
conflict with state law, while at the same time maintaining as much of the City's existing
provisions related to marijuana activities as possible. Proposed CA 2017001 does this
by replacing the existing definition of "Medical. marijuana dispensary" with a new
definition for "Marijuana dispensary", which carves out exceptions for those activities
which the state has expressly indicated cannot be prohibited. In addition, the proposed
amendment clarifies that the City's prohibition on marijuana activity includes prohibition
of medical and recreational marijuana activity.
Altemafives
Should the City Council wish to explore alternatives to the City's continued prohibition of
marijuana activities, it is nonetheless recommended that the City Council take action on
the proposed ordinance at this time due to the fact that provisions of the TGG, as they
currently exist, are in conflict with state law. Alternatives to a complete prohibition on
marijuana activity within the City can be discussed in the future. Proposed CA 2017-
001 would merely allow the City to remove provisions of its Code that conflict with
recently passed state law, and to maintain the status quo in relation to the City's existing
marijuana provisions.. Proposed CA 2017-001 does not limit the City's ability to adopt
more or less stringent regulations pertaining to marijuana activity in the future should it
choose to do so.
ENVIRONMENTAL ANALYSIS:
Proposed CA 2017-001 (Ordinance No. 1478) 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.
Jason NY. McEwen
Deputy,City Attorney
Attachments:
A. Ordinance No. 1478
B. Resolution No, 4335
Elizabeth A. Binsac
Community Development Director
ORDINANCE NO. 1478
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA, 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 City Council of the City of Tustin does hereby ordain as follows:
Section 1. The City Council 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,
safety, morals and general welfare of the residents and businesses within
the City.
1214024,1
Ordinance 1478
Page 2
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 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));
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 expressly prohibit marijuana
cultivation, processing, delivery, and distribution in all zoning districts
within the City.
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:
1. Possessing, processing, transporting, purchasing, obtaining, or giving
away, to adults aged 21 or older without compensation whatsoever, of
1214024.1
Ordinance 1478
Page 3
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 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)).
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.
1214024,1
Ordinance 1478
Page 4
N. That following a Public Hearing held on February 28, 2017, the Planning
Commission adopted Resolution No. 4335 recommending approval of CA
2017-001,
O. That pursuant to a legal notice, a Public Hearing regarding the proposed
adoption of this Ordinance was held by the City Council on March 21,
2017, and all interested persons were given an opportunity to be heard,
and that at that hearing, the City Council gave due and careful
consideration to the matter.
Section 1. The definition for "Medical marijuana" found at Section 3141 of Part 4 of
Chapter 1 of Article 3 of the TCC is hereby deleted in its entirety and
replaced with the following:
"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 and form or incorporated into any other product), whether for
recreational or medicinal use, to any person, including but not limited to, a
qualified patient, a person with an identification card, or primary caregiver
as those terms are defined in California Health and Safety Code Sections
11362.5 and 11362.7 et seq., a those sections may be amended from time
to time.
"Marijuana Dispensary" shall not include an individual aged 21 years or
older who:
1) Possesses, processes, transports, purchases, obtains, or gives
away to adults aged 21 or older without compensation whatsoever,
recreational marijuana; or
2) Possesses, plants, cultivates, harvests, dries, or processes 6 or
fewer living marijuana plants or who possesses the marijuana
produced by those plants, provided that such activity is conducted
within the person's 'private residence', as that phrase is defined by
California Health and Safety Code Section 11362.2(b)(5), or upon
the grounds of that private residence, provided that such activities
are conducted within a fully enclosed, locked space, and are not
visible by normal unaided vision from a public place.
Section 2. Section 3152 of Part 5 of Chapter 1 of Article 3 of the TCC is
hereby amended to read as follows (new text in bold/italics and
deleted text in 6trike thre inh).
1214024.1
Ordinance 1478
Page 5
""ed,,,�„c;al ,mMarijuana dispensaries as defined in this Code are
expressly prohibited within the City.
Section 3. Section 9270c of Part 7 of Chapter 2 of Article 9 of the TCC is hereby
amended to read as follows (new text in bold/italics and deleted text in
strokes thm io):
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 are expressly prohibited in all
zoning districts.
Section 4. The definition of "Medical Marijuana Dispensary" found at Section 9297 of
Part 9 of Chapter 2 of Article 9 of the Tustin City Code is hereby deleted in
its entirety and replaced with the following:
"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 and form or incorporated into any other product), whether for
recreational or medicinal use, to any person, including but not limited to, a
qualified patient, a person with an identification card, or primary caregiver
as those terms are defined in California Health and Safety Code sections
11362.5 and 11362.7 et seq., a those sections may be amended from time
to time.
"Marijuana Dispensary" shall not include an individual aged 21 years or
older who:
1) Possesses, processes, transports, purchases, obtains, or gives
away to adults aged 21 or older without compensation whatsoever,
recreational marijuana; or
2) Possesses, plants, cultivates, harvests, dries, or processes 6 or
fewer living marijuana plants or who possesses the marijuana
produced by those plants, provided that such activity is conducted
within the person's 'private residence', as that phrase is defined by
California Health and Safety Code section 11362.2(b)(5), or upon
1214024.1
Ordinance 1478
Page 6
the grounds of that private residence, provided that such activities
are conducted within a fully enclosed, locked space, and are not
visible by normal unaided vision from a public place.
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 this 21St day of March, 2017.
DR. ALLAN BERNSTEIN
MAYOR
ATTEST;
ERICA N. RABE
CITY CLERK
1214024,1
Ordinance 1478
Page 7
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1478
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. 1478
was duly and regularly introduced and read by title, only at the regular meeting of the
City Council held on the 21St day of March, 2017, and was given its second reading,
passed, and adopted at a regular meeting of the City Council held on the 4th day of
April, 2017, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
Erica N. Rabe, City Clerk
Published:
1214024.1
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:
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
govem 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 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));
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:
Resolution No. 4335
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 2017001 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.
Resolution No. 4335
Page 4
N. That on February 28, 2017, a public hearing was duly noticed, called, and
held on Code Amendment 2017-001 by the Planning Commission,
IL The Planning Commission hereby recommends that the City Council adopt
Ordinance No. 1478, amending TCC Sections 3141, 3152, 9270 and 9297 to
update the City's business and land use regulations 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 28th day of February, 2017.
AUSTIN BARD
Chairperson
l
ELIZABETH A. BINSACK
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 28th day of February, 2017
PLANNING COMMISSIONER AYES.- KOZAK, LARD, MASON, SMITH, TnoM.Psorr (5)
PLANNING COMMISSIONER NOES:
PLANNING COMMISSIONER ABSTAINED:
PLANNING COMMISSIONER ABSENT:
ELIZABETH A. BINSACK
Planning Commission Secretary
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