HomeMy WebLinkAbout13 CODE AMENDMENT (CA) 2024-0001 (ORDINANCE NO. 1540) CANNABIS BUSINESSES AND ACTIVITYDocuSign Envelope ID: F5B9B721-6016-49F9-9B8B-4ED6E5B475C9
1"tr O
�.AGENDA REPORT
MEETING DATE
TO:
FROM:
SUBJECT:
SUMMARY
FEBRUARY 20, 2024
Agenda Item
13
Reviewed:
Ds
�ZB
City Manager
Finance Director N/A
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
COMMUNITY DEVELOPMENT DEPARTMENT
CODE AMENDMENT (CA) 2024-0001 (ORDINANCE NO. 1540) —
CANNABIS BUSINESSES AND ACTIVITY
This project would amend Tustin City Code (TCC) Sections 3141, 3152, 9270, and 9297
related to the regulation of cannabis businesses and activity within the City. Proposed CA
2024-0001 would update the TCC to ensure that it is not inconsistent with the Medicinal
Cannabis Patients' Right of Access Act, that became effective on January 1, 2024.
On January 23, 2024, the Planning Commission held a public hearing for the proposed
project and adopted Resolution No. 4481, recommending that the City Council adopt
Ordinance No. 1540.
RECOMMENDATION
That the City Council introduce and have first reading by title only of Ordinance 1540 for
CA 2024-0001 to amend TCC Sections 3141, 3152, 9270, and 9297 related to the
regulation of cannabis businesses and activity within the City and set second reading at
the next City Council meeting.
FISCAL IMPACT
No impact.
APPROVAL AUTHORITY
TCC Section 9295f authorizes the Planning Commission to make a recommendation to the
City Council on proposed amendments to TCC Article 9, Chapter 2 (Zoning Code). Draft
Ordinance No. 1540 also contains proposed amendments to TCC Article 3, Chapter 1
(Business Regulations), Sections 3141 and 3152. Pursuant to TCC Section 3131, the
City's authority to regulate businesses is derived from its police powers under Article XI,
Section 7 of the State Constitution, the provisions of various State statutes including the
Porter Cologne Act, and the Federal Clean Water Act.
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City Council Report
February 20, 2024
CA 2024-0001 (Ord. 1540)
Page 2
BACKGROUND AND DISCUSSION
Proposed Code Amendment
Proposed CA 2024-0001 would update the TCC to ensure that it is not inconsistent with
the Medicinal Cannabis Patients' Right of Access Act, that became effective on January
1, 2024.
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") that permitted 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 required or imposed 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.
On December 4, 2006, the City Council adopted Ordinance No. 1322, that prohibited
marijuana land 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, do so expressly by ordinance.
On January 19, 2016, the City Council adopted Ordinance No. 1466, that expressly
prohibited marijuana cultivation, processing, delivery, and distribution in all zoning
districts within the City.
On November 8, 2016, California voters approved Proposition 64 known as the Adult Use
of Marijuana Act ("AUMA"). The AUMA created a regulatory scheme that called for
licensing, taxing, oversight, and enforcement of recreational marijuana businesses within
the State of California. Like the MMRSA before it, the AUMA expressly provided that local
government entities have the right to adopt and enforce ordinances regulating or
completely prohibiting cannabis businesses within their jurisdictions, subject to certain
exceptions.
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City Council Report
February 20, 2024
CA 2024-0001 (Ord. 1540)
Page 3
In addition to creating a regulatory framework for marijuana businesses, the AUMA
legalized certain activities by persons 21 years or older 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 AUMA
included:
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 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)).
While local governments were permitted to regulate and prohibit cannabis businesses
licensed under the AUMA, the AUMA specified that local government entities could not
prohibit the foregoing activities, with the exception that local government could prohibit
the processing, planting, cultivating, harvesting, and drying of marijuana outdoors upon
the grounds of a private residence.
In response to the AUMA, the City Council adopted Ordinance No. 1478 to ensure that
the TCC did not prohibit activity and/or land uses expressly permitted by the AUMA. In all
other respects, the TCC continued to prohibit all other cannabis activities and land uses
to the greatest extent permitted by California law.
On September 8, 2022, the Governor signed SIB 1186 into law. SIB 1186 is known as the
Medicinal Cannabis Patients' Right of Access Act (MCPRAA). It became effective on
January 1, 2024, and does the following:
• Prohibits local jurisdictions from adopting or enforcing any regulations that prevent
the retail sale by delivery of medicinal cannabis to patients or their caregivers.
• Prohibits local jurisdictions from adopting or enforcing any regulations that have
the effect of preventing the retail sale by delivery of medicinal cannabis to patients
or their caregivers in a timely or readily accessible manner, including any of the
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City Council Report
February 20, 2024
CA 2024-0001 (Ord. 1540)
Page 4
following, to the extent that such a regulation would prevent retail sale by delivery
of medicinal cannabis:
o Limitation of the number of businesses authorized to deliver medicinal
cannabis to locations within the local jurisdiction.
o Limitation of the operating hours of medicinal cannabis delivery businesses.
o Limitation of the frequency of sales by delivery of medicinal cannabis.
o Restriction of the types and quantities of medicinal cannabis that can be
sold by delivery.
o Prohibition of the establishment of physical premises from which retail sale
by delivery of medicinal cannabis within the local jurisdiction is conducted
by a licensed, non -storefront retailer.
However, the MCPRAA did not affect the authority of local jurisdictions to regulate or
prohibit cannabis activity and uses in other respects.
ANALYSIS
To the greatest extent possible under California law, the TCC has consistently prohibited
the use of any property, within the City's borders, for purposes of any form of cannabis
activity, regardless of whether that use was tied to medicinal or recreational marijuana.
Aside from the personal cannabis uses and activities (which the TCC permits as
mandated by the AUMA), the TCC currently contains prohibitions on use of property for
any type of cannabis business or activity. These prohibitions are found in both the
Business Regulations and Land Use provisions of the TCC.
Specifically, TCC Section 9270c states, in relevant part, "Marijuana dispensaries as
defined in this Code are expressly prohibited in all zoning districts." The TCC goes on to
broadly define a "Marijuana Dispensary" in Section 9297 as:
"`Marijuana Dispensary' [shall be defined 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 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 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.
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City Council Report
February 20, 2024
CA 2024-0001 (Ord. 1540)
Page 5
"Marijuana dispensary" shall not include an individual aged twenty-one (21)
years or older who:
(1) Possesses, processes, transports, purchases, obtains or gives away
to adults aged twenty-one (21) or older without compensation whatsoever,
recreational marijuana; or
(2) Possesses, plants, cultivates, harvests, dries, or purchases six (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."
Given the existing broad definition of "Marijuana Dispensary" within the TCC, coupled
with its comprehensive ban of all activity that fits within that definition, the TCC currently
prohibits activities that the State has made legal, and which State law has identified as
activities that cannot be completely prohibited by local government agencies.
The purpose of proposed CA 2024-0001 is to remove language within the TCC that
conflicts with State law, while at the same time maintaining as much of the City's existing
provisions related to cannabis activities as possible. Proposed CA 2024-0001 does this
by removing the definition of "Marijuana dispensary" and replacing it with a substantially
similar definition for "Cannabis Business", which carves out exceptions for those activities
that the State has expressly indicated cannot be prohibited.
With respect to the retail sale by delivery of medicinal cannabis, CA 2024-0001 would
authorize a cannabis business to deliver medicinal cannabis to a qualified patient or their
caregiver to a location within the City, provided that certain conditions are met.
Specifically, the cannabis business must be licensed by the State as required by the
California Business & Professions Code, and any deliveries must be made in compliance
with existing State law. Further, deliveries must be made to a building on a residential
property. Stated differently, deliveries cannot be made to empty lots, or to commercial or
industrial locations. Finally, CA 2024-0001 would prohibit delivery of medicinal cannabis
to publicly owned or operated land, public or private schools, day care facilities, youth
centers, and public or private parks.
All other cannabis uses and activities within the City remain illegal under CA 2024-0001,
including delivery of recreational cannabis within the City, and the establishment of
a physical cannabis business within the boundaries of the City.
The MCPRAA stipulates that a local government cannot prohibit the establishment
of physical premises of a licensed non -storefront retailer when it would prevent the
delivery of medicinal cannabis within the jurisdiction. This requirement may force
some remote jurisdictions to permit a physical retail location from which medicinal
cannabis deliveries can be made. Tustin, on the other hand, is not remote,
and medicinal cannabis deliveries can be conveniently and timely delivered to patients
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CA 2024-0001 (Ord. 1540)
Page 6
and caregivers within the City from licensed businesses located in Santa Ana and
Costa Mesa. Therefore, prohibiting a physical location within the City, from which
medicinal cannabis deliveries can be made, does not have the effect of preventing the
delivery of medicinal cannabis as set forth in SIB 1186.
ENVIRONMENTAL ANALYSIS
The proposed CA 2024-0001 is not subject to the California Environmental Quality Act
(CEQA) pursuant to California Code of Regulations, Title 14, Chapter 3, Sections 15060
(c) (2), as it can be seen with certainty that the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment, and 15060(c)(3),
since 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.
CONCLUSION
As proposed, the subject code amendments would ensure that the TCC is not
inconsistent with the MCPRAA that became effective on January 1, 2024. Therefore, staff
recommends that the City Council introduce and have first reading by title only of
Ordinance 1540 for CA 2024-0001 to amend TCC Sections 3141, 3152, 9270, and 9297
related to the regulation of cannabis businesses and activity within the City.
Attachments:
A. Planning Commission Resolution No. 4481
B. Planning Commission January 23, 2024 Meeting Minutes
C. Ordinance No. 1540
D,ocuSigned by:
Y V U&Att 00)df
343ADCC695E946B...
For: Jason M. McEwen
Assistant City Attorney
DocuSigned by:
ED45DA2623B54A5...
Justina L. Willkom
Community Development Director
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ATTACHMENT A
RESOLUTION NO. 4481
AN RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING
THAT THE CITY COUNCIL ADOPT ORDINANCE NO. 1540,
AMENDING TUSTIN CITY CODE SECTIONS 3141, 3152,
9270, AND 9297 TO UPDATE THE CITY'S BUSINESS AND
LAND USE REGULATIONS PERTAINING TO CANNABIS
BUSINESSES (CODE AMENDMENT 2024-0001)
The Planning Commission of the City of Tustin 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 (" NIIVIPA"), codified in Health and
Safety Code Section 11362.7 et seq. The IVIMPA 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.
G. 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 use' in any zoning district in the City of
Tustin ("City") and expressly prohibited the establishment of any medical
marijuana dispensary in the City for 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 10 months and 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.
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Resolution No. 4481
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 was 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 Cade §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 Cods § 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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Resolution No. 4481
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 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 §§ 11382.1(a)(3.) and 11352,2(a)(2), (a)(3), and (b)(6));
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 (AUMA), 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 on April 18, 2017, the City Council adopted Ordinance No. 1478. The
purpose of Ordinance No. 1478 was to amend the Tustin City Code ("TCC")
to ensure that it did not prohibit activity and/or uses expressly permitted
pursuant to the AUMA.
L. That on September 8, 2022, the Governor of the State of California signed
SB 1186 (the "Medicinal Cannabis Patients' Right of Access Act") which,
effective January 1, 2024, prohibits local jurisdictions from enforcing any
regulations which prohibit or have the effect of prohibiting delivery of
medicinal cannabis to medicinal cannabis patients or their primary
caregivers.
M. That pursuant to the provisions of. the TCC, delivery of cannabis, whether
medicinal or recreational, is 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 distdats within the City.
N. That the City Council desires to modify TCC sections 3141, 3152, 9270, and
9297 to comply with State law.
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Resolution No. 4481
Page 4
O, That Code Amendment (CA) 2024-0001 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 2024-0001 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 Medicinal Cannabis Patients' Right of Access Act.
P. That CA 2024-0001 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.
Q. That on January 23, 2024, a public hearing was duly noticed, called, and
held by the Planning Commission on CA 2024-0001
IL The Planning Commission hereby recommends that the City Council adopt
Ordinance No. 1540, amending TCC Sections 3142, 3152, 9270, and 9297 to update the F
City's Business and Land Use regulations pertaining to Cannabis Businesses.
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Resolution No, 4481
Page 5
PASSED AND ADOPTED, at a regular meeting of the planning Commission of the City
of Tustin on the 231d day of January, 2024.
STEVE KOZA ..
Chairperson
JU INA L. WVILL.KOM
PI �ning Commission Secretary
APPROVED AS TO FORM:
MICHAEL DA�JD
Assistant City Attorney
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Resolution No. 4481
Page 6
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY Of TUSTIN )
I, Justina L. Willkom, the undersigned, hereby certify that I am the Planning Commission
Secretary of the City of Tustin, California; that Resolution No. 4481 was duly passed
and adopted at a regular meeting of the Tustin Planning Commission, held on the 23rd,
day of January, 2024.
PLANNING COMMISSIONER AYES:
PLANNING COMMISSIONER NOES:
PLANNING COMMISSIONER ABSTAINED:
PLANNING COMMISSIONER ASSENT:
J U S . W I Sol
Plan ng Commission Secretary
Exhibit A: Draft Ordinance No. 1540
Douthit, Kozak, Mason, Mello (4)
Ei uchi. � 1
'4. D
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DRAFT ORDINANCE NO. 1640
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 CANNABIS BUSINESSES (CODE
AMENDMENT 2024-0001)
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 Coda
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 ("MMIDA"), 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
(1 b) days.
D. That on December 4, 2006, the City Council adapted 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.
1606052.1
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Ordinance No. 1540
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r--7
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 CIJA nor the MMPA
preempted a zoning ordinance declaring medical marijuana dispensaries a
prohibited use of land.
P. That on October 9, 2015, Governor Brown signed 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, into law.
G. That the MMRSA, effective as of January 1, 2016, contains provisions that
govern the cultivating, processing, transporting, testing, and distribution 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(ni)
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.
That on November 8, 2016, California voters approved Proposition 64 — the
Control, Regulation, and Tax Adult Use of Marijuana Act (the "Adult Use of
Marijuana Act") legalizing certain activities by adults aged 21 years or older
pertaining to recreational marijuana including.
1. Possessing, processing, transporting, purchasing, obtaining, or giving
away, to adults aged 21 years or older without compensation
1906052A
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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 (S) 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 (AUMA), 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 on April 18, 2017, the City Council adopted Ordinance No. 1478. The
purpose of Ordinance No. 1478 was to amend. the Tustin City Code ("TCC")
to ensure that it did not prohibit activity andlor uses expressly permitted
pursuant to the Adult Use of Marijuana Act.
L. That on September 8, 2022, the Governor of the State of California signed
SB 1186 (the "Medicinal Cannabis Patients' Right of Access Act") which,
effective January 1, 2024, prohibits local jurisdictions from enforcing any
regulations which prohibit or have the effect of prohibiting delivery of
medicinal cannabis to medicinal cannabis patients or their primary
caregivers.
M. That pursuant to the provisions of the TCC, delivery of cannabis, whether
medicinal or recreational, is 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.
N. The City Council desires to modify TCC Sections 3141, 3152, 9270, and
9297 to comply with State law.
O. That Code Amendment (CA) 2024-0001 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 2024-0001 is necessary
in order to ensure that the TCC is not inconsistent with State law.
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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'Medicinal Cannabis Patients' Right of Access Act.
P. That CA 2024-0001 is not subject to the California Environmental Quality
Act {CEQA) pursuant to California Cade 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.
Q. That on January 23, 2024, the Planning Commission adopted Resolution
No. 4481, and recommended that the City Council adopt Ordinance No.
1540, approving CA 2024-0001
R. That on -, a public hearing was duly noticed, called, and held by the
City Council on CA 2024-0001
SECTION 2. The definition for "Marijuana Dispensary" found at Section 3141 of Part 4
of Chapter 1 of Article 3 of the TCC is hereby deleted in its entirety.
SECTION 3, Section 3141 (Definitions) of Part 4 of Chapter 1 of Article 3 of the TCC is
hereby amended to add a definition for "Cannabis Business" to read as follows (new text
underlined):
Cannabis* Business, --Any _ person association business facility, use
establishment, location, delivery,., service, cooperative, collective, or provider,
whether fixed or mobile, that possesses, cultivates, --_processes, distributes,
snakes availably or otherwise faci[itaes fihe_dis#ribution of cannabis (ire any 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 a rime care fiver as those terms are defined in California
Wealth and Safety Cade Sections 113G2.5 and 11362.7 et sgq _,_ as may be
amended from time to time.
"Cannabis Business" shall not Include the following:.
(11 An individual aged twenty-one (21) years or older who:
a Possessprocesses, transports, purchases, obtains or Ives
awe to adults a ect tweet -one 21 ears ar older without
compensation whatsoever, recreational marijuana or
(b)- Possesses-, plants, cultivates harvests dries, _or purchases_ six
6 or fewer living marijuana plants or who possesses the
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mari'uana prQduced by those plants, provided that such activit
is conducted within the erson's " rivate residence" as that
hra a 's defined by California Health and Safety Code Section
11362.2 b 5 or upon the grounds of that Rrivate residence
provided th t such activities are conducted within a fu41
enclosed, locked space, and are not visible, by normal unaided
visionfrom a public place.
A business entity licensed pursuant to, and acting in oompliance with,
--..Professions
California,rr ni. Business � Professions Cade Section 26000 et seq. and
California Code of Regulations .sections 15400 et sea.. which engages in
the retail -sale by. delivery c)f medicinal cannabis to medicinal cannabis
patients to a location within theCity, rovided that the following conditions
are met:
-(.a)-----.The method of deffyeDLis.jn full compliance with the provisions of
California Business & Professions Cade Section 26090 et seg. and
California Code of Regulations Sections 15400 et seg. (as may be.
amended from time to time
fb) _ The delivery is made to a building on a residential property with an
existing physical address. For purposes of this section a "residential_
roperty" is mollowin an dwelling unit including
f
single-family, multi -family, and accessory dwelling units apartment,
condominium duplex, hotel motel mobile home rest home or
townhouse or townhome as those terms are defined by Section 9791
of_this _ Code,
c The delivery is not made to any of the following,regardless of
whether the location „is a "residential property" as described in
subsectionLb),of this section:
1. Any ad_.dress located on publicly owned land or any.. address
on land or in a building leased by any public agency,, as that
phrase is defined by, California -Government Code ,Section
65or
2. A through 12r caress .._ youth kindergarten or any grades
y providing ruction in _
, dads y enter, or yo center, whether such
institution or entity is public or private.
3. Any public . or private park; For purposes_ of this section. "public
or Private ark" shall meaft_gny park operated by the City or
an ark situated on pOyately owned property within the City
that is generally o en for public use and shall _include all
sidewalks or other public rights -of -way which are -located
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immediately adjacent to any aublic r private . ark A park
shall be deemed generally open for puNic use if it is open to
any p other than the owner of th.e.. privately_ caned
property upon which the park is situated including, but not
limited to, tenants guests, or customers.
(d) The delivery must originate from an entity licensed pursuant to, and ac ing
in compliance with California Business & Professions Code. Section 26000
et se , which is not located within the City of Tustin.
For Rurposes of this section the terms "medicinal cannabis" and "medicinal
cannabis patients" shall have the same meanings as -those terms are defined in.
California Business & Professions Code Section 26321( ..
SECTION 4. Section 3152 of Part 5 of Chapter 1 of Article 3 of the TCC is hereby
amended and restated in its entirety to read as follows (new text
underlined, deletions in a#ikefhr-eug -):
3152 MARIJUANA41118PENSARISS CANNABIS BUSINESSES
Marijuana dime"n-seder. Cannabis Businesses as defined in by Section 31.�41
of this Code are expressly prohibited within the City.
SECTION 5. Subsection (c) of Section 9270 (Regulations) of Part 7 of Chapter 2 of
Article 9 of the TCC is hereby amended to read as follows (new tent underlined, deletions
�uin �o):
c. 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 alloyed in such district.
Mari liana4a"i�:iesCannabis Businesses as defined in by Section 3141 of
this Code are expressly prohibited in all zoning districts.
SECTION 6. The definition for "Marijuana Dispensary" found at Section 9297 of Part 9
of Chapter 2 of Article 9 of the TCC is hereby deleted in its entirety.
SECTION 7. Section 9207 of Part 9 of Chapter 2 of Article 9 of the TCC is hereby
amended to add a definition for "Cannabis Business" to read as follows (new text
under[ined):
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"Cannabis Business" means any person, association, business, facilh,
use, establishment, location, delivery service, cooperative_ , collective, oLpravider,
whether fixed or mobile that possesses, cultivates rocesses distributes
makes available or otherwise facilitates the distribution of cannabis in any form
or incor o at d into aDI other roduct whether far recreational or medicinal use
to any person,including, but not limited to a qUalifled. patient, a person. with an
identification card, or primary, caregiver as those terms are defined in California
Health and Safe Code Sections 11362.5 and 11362.7 et seq., as n1gy be
amended from time to time.
"Cannabis Business" shall not include the following:
1 An individual aged twent -one 21 ears or older who:
a Possessesprocesses, transports, purchases, obtains or gives
away_ to adults aped twenty-one .(21)years or. older without
compensation whatsoever, recreational marijuana; or
b Possesses, plants, cultivates harvests,_ dries, or purchases six
6 or fewer living marijuana plants or who possesses the
marijuana produced by those plants, provided that such activity
is conducted within the erson's rivate residence" as that
phrase is defined by California Health and Safe Code Section
11302.2 b 5 or Won the grounds of that private residence
provided that such activities are conducted within a 'Full
enclosed locked space, and are not visible by normal unaided
vision from a public lace:
2 A business entlt lice sed pursuant to and acting in compliance with
Califomia Business & Professions Code Section 26000 et seg. and
California Code of Regulations Sections 15400 et sp . which
engages in the retail sale by delivery of medicinal cannabis to
medicinal cannabis patients to a location within the City, Provided
that the following conditions., are met:
La)__... The method of deliveryis in„full compliance with the provisions of
California Business & Professions Code Section 26090 et seg.
and GaliforniaQode of Regulations Sections 15400 et se* _{as
may be amended from time to time
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(b) The delivery is made to a building on.a residential_ property with
an existing h sical address, For purposes of this section a
"residential property" is limited to the following: any dwelling unit,
including single-family, multi -family, and ---accessory dwelling
units apartment, condominium, duplex, hotel_,._ motel. mobile
home rust home or townhouse or townhome as those terms are
defined by Section 9791 of this Code-,
{) The delivery is not made to. any of the Following, regardless of
whether the location is a "residential ro ert " as described in
subsection (b) of this section:
1. Any address located on publicly_ ownedland _or._any address
on land or in a building leased by any public agency, as that
phrase is, defined by California Government Code Section
6500; or
2. _Anv school vroviding instruction in kindergarten or any grades
1 thrcr h 12 day care cenfier or outh center, whether such
institution or entity is public ar rivate.
Any public or private park, For purposes afthis sectiort.,_"public
or private ark" shall mean any park c )erated b the City or
any park situated on privatenly awned property within the City
that is generally open for public use and_.. shall include_ all
sidewalks or other public rights -of -way which are located
immediately adjacent to any public or rivate ark. A ark
shall be deemed generally open for public useifit is open to
any person other than the owner of the privately owned
propertyupon which the park is situated, including, but not
limited to tenantsguests, or customers.
(d) The delivery must originate,_from an entity licensed pursuant to,.
and acting in compliance with California Business & Professions
Code Section 26000 et seg. which is not located within the City
of Tustin.
For purposes of this section the terms "medicinal cannabis" and "medicinal 'E
cannabispatients" shall have the same meanings as those terms are defined in
California Business & Professions Code Section 26321(b).
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SECTION 8. Effective Date. This Ordinance shall take effect on the 313t day after its
adoption. The City Clerk or his or her duly appointed deputy shall certify to adoption of
the Ordinance and cause this Ordinance to be published as required by law.
SECTION 9, CEQA Exemption, The City Council finds that this Ordinance 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.
SECTION 10. Severability. 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 day of , 2024.
AUSTIN LUMBARD, MAYOR
ATTEST:
ERJCA N. YASUDA, CITY CLERK
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STATE OF CALIFORNIA j
COUNTY OF ORANGE j ss.
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1540
Erica N, Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, dotes 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. 1540 was duly
passed, and adapted at a regular meeting of the Tustin City Council held on the ` day
Of j 2024, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
Erica N. Yasuda, City Clerk
Published:
..a
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ATTACHMENT B
MINUTES
COUNCIL CHAMBER & VIDEO CONFERENCE
TUSTIN PLANNING COMMISSION
MEETING
JANUARY 23, 2024
7.•00 p.m. CALL TO ORDER.
Given. INVOCATION: Pastor Jorge Molina, Mariners Church
Given. PLEDGE OF ALLEGIANCE: Chair Kozak
All present. ROLL CALL: Chair Kozak
Chair Pro Tern Higuchi
Commissioners Douthit. Mason, Mello.
Hurtado PUBLIC INPUT: Hurtado confirmed no public input was received.
CONSENT CALENDAR:
Approved 1. APPROVAL OF MEETING MINUTES— DECEMBER 12, 2023
the
December
12, 2023 PC
meeting
minutes.
RECOMMENDATION:
That the Planning Commission approve the Minutes of the December 12, 2023
Planning Commission meeting, as provided.
Hurtado Hurtado confirmed no public input was received.
Motion.- It was moved by Mason, seconded by Mello, to approve the Minutes of the December
12, 2023 Planning Commission meeting. MOTION PASSED: 5-0
PUBLIC HEARING:
2. CONDITIONAL USE PERMIT 2022-0017 & DESIGN REVIEW 2023-0011
Adopted
APPLICANT:
Reso. No.
Jessica Steiner
4482, as
Bickel Group Architecture
provided.
3600 Birch Street, #120
Newport Beach, CA 92660
PROPERTY OWNER:
Bonaparte Liu, Managing Member
Tenants in Common: Red Hill Village
JBW Partners, LLC; Bodhi Metta, LLC
4340 Von Karman Avenue., Suite 390
Newport Beach, CA 92660
Minutes — Planning Commission Meeting — January 23, 2024 — Page 1
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LOCATION: 14601 Red Hill Avenue
ENVIRONMENTAL STATUS:
This project Is Categorically Exempt (Class 32) pursuant to Section 15332 of
the California Environmental Quality Act.
REQUEST:
A request to demolish an existing restaurant with drive-thru facilities to
construct a new 3,600 square foot restaurant with drive-thru facilities on a
property located at 14601 Red Hill Avenue.
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4482 approving
Conditional Use Permit (CUP) 2022-0017 and Design Review (DR) 2023-
0011 to authorize the demolition of an existing take-out restaurant with drive-
thru facilities to construct a new 3,600 square -foot take-out restaurant with
drive-thru facilities at the property located at 14601 Red Hill Avenue.
Mello For the record, Commissioner Mello recused himself, due to the proximity of his
residence to the project.
Ms. Jessica Jessica Steiner, applicant, introduced herself to the Commission.
Steiner
Maldonado Presentation given.
Higuchi Higuchi had general questions on the following: noticing of the project; feedback from
the community; if any variances related to the Specific Plan guidelines; he questioned
the date differences (2022 for the CUP and 2023 for the Design Review); process
determining architectural style.
Maldonado Maldonado stated that the project was properly noticed and there was no feedback
from the community. There are no variances related to the Specific Plan guidelines.
Per the date differences, the project was initially submitted incomplete therefore the
full submitted came in 2023, hence the Design Review occurring in 2023. Per the
question regarding the architectural style, Maldonado stated it was a huge
collaboration between City staff and the applicant.
Kozak Kozak made favorable comments towards the applicant and City staff.
Mason Mason inquired on the drive-thru operating hours and whether or not McDonald's
drive-thru hours are the same as the former Burger King drive-thru operating hours,
due to the project proximity to surrounding the residential area.
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Maldonado Maldonado did not have Burger King's drive-thru operating hours on hand; therefore,
he could not respond to Mason's question.
Willkom In response to Mason's question, Willkom stated there are no regulations with the
Limitation on the drive-thru hours, but there is a limit to the outdoor dining hours of
operation. For the outdoor dining, if the business abuts or is adjacent to residential,
the operating hours are limited to 10:00 p.m. For the drive-thru, the hours of operation
would be dependent upon the operator.
Douthit Douthit asked if the parcel is owned by the shopping center or if it is individually
parceled. He also mentioned the bike racks and there being no bike lanes on Red Hill
Avenue.
Maldonado Per Maldonado, the parcel has tenants in common (a number of owners) with a
managing member. The parcel is under a separate lease agreement. The bike racks
came from the Specific Plan and is a requirement
7-21 p.m. Opened the Public Hearing.
Hurtado Hurtado confirmed no public input received.
7-21 p.m. Closed the Public Hearing.
Ms. Jessica In response to Douthit's comment on the bike racks, Ms. Steiner referred to the current
Steiner California Green Building Code and the requirement of bike racks.
Douthit Douthit asked the applicant about enforcement within the outdoor dining area with
regards to loitering. He encouraged the applicantto consider placing a perimeter fence
in order to avoid any possible loitering issues. In support of the project.
Troy Troy Stevenson, on behalf of McDonald's, responded as follows: kudos to the City —
Stevenson collaborative approach with staff; there will be a manager on duty at all times; the
manager will be required to ask guests to leave the outdoor dining area at closing time.
Hiquchi Higuchi's final comments generally included: in favor of the project; concern with non-
compliance with the TLSP, architectural design guidelines too broad.
Mason Mason made favorable comments regarding the project.
Kozak Kozak also made favorable comments regarding the project.
Motion: It was moved by Higuchi, seconded by Douthit, to adopt Resolution No. 4482, as
provided. MOTION PASSED: 4-0-1. Mello abstained from the vote.
7-28p.m. Public Hearing re -opened due to a late request from Ms. Tina Blenz, resident of Tustin.
Minutes — Planning Commission Meeting — January 23, 2024 — Page 3
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3. CODE AMENDMENT (CA) 2024-0001 (ORDINANCE NO. 1540) —CANNABIS
BUSINESSES AND ACTIVITY
Adopted Proposed CA 2024-0001 would update the TCC to ensure that it is not
Reso. No. inconsistent with the Medicinal Cannabis Patients' Right of Access Act, that
4481, as became effective on January 1, 2024.
amended.
ENVIRONMENTAL ANALYSIS:
The proposed CA 2024-0001 is not subject to the California Environmental
Quality Act (CEQA) pursuant to California Code of Regulations, Title 14,
Chapter 3, Sections 15060 (c) (2), as it can be seen with certainty that the
activity will not result in a direct or reasonably foreseeable indirect physical
change in the environment, and 15060(c)(3), since 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.
RECOMMENDATION:
Thatthe Planning Commission adopt Resolution No. 4481, recommending that
the Tustin City Council adopt Draft Ordinance No. 1540, amending Tustin City
Code (TCC) Sections 3141, 3152, 9270, and 9297 related to the regulation of
cannabis businesses and activity within the City.
Daudt Presentation given. Daudt informed the Commission of minor amendments made to
Resolution No. 4481, which were already provided at the dais.
Mason Mason asked Daudt why we are not recognizing the use of recreational and medicinal
within the ordinance.
Daudt In response to Mason's previous question, Daudt stated the State legislation only
refers to delivery of medicinal cannabis.
Mello Mello asked about enforcement of the item.
Daudt Per Daudt, the State of California is the enforcement (i.e. monitoring businesses,
adhering to rules).
Douthit Douthit asked if the State is aware of what Tustin allows/does not allow. He was not
in favor of cannabis in the City and he did not want anyone to misinterpret his vote.
Willkom In response to Douthit's question, Willkom stated that the State is aware of what
Tustin allows/does not allow. The State typically emails the City's liaison to ensure
the City of Tustin is following code.
Daudt Per Daudt, the State's regulations keep businesses compliant with State regulations.
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Higuchi Higuchi asked if the Tustin Police Department (TPD) has ever apprehended anyone
delivering marijuana in the City. He also referred SB 1186 and asked what the
consequence would be if the City kept current code "as is".
Willkom Willkom was unaware if TPD had ever apprehended anyone from delivering marijuana
in the City. That information would need to be obtained from TPD.
Daudt In response to Higuchi's question regarding SB 1186, he cited a section from SB 1186
to the Commission.
Mason Mason shared her view on cannabis delivery and she was in support of the item.
Mello Mello was in favor of the item and he made favorable comments towards staff's
efforts.
Kozak Kozak voiced his concern with the current cannabis abuse in California.
Hurtado Hurtado confirmed no public input received.
Motion: It was moved by Mason, seconded by Mello, to adopt Resolution No. 4481, as
amended. MOTION PASSED: 4-1: Ayes Douthit, Kozak, Mason, Mello. Noes-
Higuchi
REGULAR BUSINESS:
4. OLD TOWN TUSTIN HISTORIC VIRTUAL WALKING TOUR
Received & The Community Development Department is pleased to present a new
filed. interactive resource to the community, the Old Town Tustin Historic Virtual
Walking Tour. The walking tour was created to promote interest in historic
preservation in Tustin, and to generate new excitement around the City's rich
history.
RECOMMENDATION:
It is recommended that the Planning Commission receive and file the report.
DiLeva Presentation given.
Mr. Brian Mr. Brian Sjoberg, Tustin Preservation Conservancy, was in attendance and spoke on
Sjoberg his partnership with City staff regarding the walking tour.
Mason Mason commended DiLeva on her efforts with this project. She recommended the
integration of the walking tour app along with the Engage Tustin mobile app and the
potential partnership with the Chamber of Commerce.
Minutes — Planning Commission Meeting — January 23, 2024 — Page 5
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Higuchi Higuchi asked DiLeva if the virtual walking tour was developed in-house or by a third
party. He recommended DiLeva incorporate pictures of Huell Howser, in the virtual
walking tour, visiting Tustin.
DiLeva DiLeva stated the virtual walking tour was done, via the GIS story map and designed
by the City's Administrative Intern, Aaron Valle.
Kozak Kozak received and filed the report.
STAFF CONCERNS:
Willkom Willkom gave kudos to staff with the creation of the virtual walking tour. She also
reminded the Commission of the Planning Directors Association — O.C. Forum on
February 2, 2024.
None. COMMISSION CONCERNS.
B20p.m. ADJOURNMENT:
The next regular meeting of the Planning Commission is scheduled for Tuesday,
February 13, 2024
Minutes — Planning Commission Meeting — January 23, 2024 — Page 6
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ATTACHMENT C
ORDINANCE NO. 1540
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 CANNABIS BUSINESSES (CODE
AMENDMENT 2024-0001)
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.
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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 was 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 distribution 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.
That on November 8, 2016, California voters approved Proposition 64 — the
Control, Regulation, and Tax Adult Use of Marijuana Act (the "Adult Use of
Marijuana Act") legalizing certain activities by adults aged 21 years or older
pertaining to recreational marijuana including:
1. Possessing, processing, transporting, purchasing, obtaining, or giving
away, to adults aged 21 years or older without compensation
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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 (AUMA), 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 on April 18, 2017, the City Council adopted Ordinance No. 1478. The
purpose of Ordinance No. 1478 was to amend the Tustin City Code ("TCC")
to ensure that it did not prohibit activity and/or uses expressly permitted
pursuant to the Adult Use of Marijuana Act.
L. That on September 8, 2022, the Governor of the State of California signed
SIB 1186 (the "Medicinal Cannabis Patients' Right of Access Act") which,
effective January 1, 2024, prohibits local jurisdictions from enforcing any
regulations which prohibit or have the effect of prohibiting delivery of
medicinal cannabis to medicinal cannabis patients or their primary
caregivers.
M. That pursuant to the provisions of the TCC, delivery of cannabis, whether
medicinal or recreational, is 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.
N. The City Council desires to modify TCC Sections 3141, 3152, 9270, and
9297 to comply with State law.
O. That Code Amendment (CA) 2024-0001 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 2024-0001 is necessary
in order to ensure that the TCC is not inconsistent with State law.
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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 Medicinal Cannabis Patients' Right of Access Act.
P. That CA 2024-0001 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.
Q. That on January 23, 2024, the Planning Commission adopted Resolution
No. 4481, and recommended that the City Council adopt Ordinance No.
1540, approving CA 2024-0001
R. That on February 20, 2024, a public hearing was duly noticed, called, and
held by the City Council on CA 2024-0001
SECTION 2. The definition for "Marijuana Dispensary" found at Section 3141 of Part 4
of Chapter 1 of Article 3 of the TCC is hereby deleted in its entirety.
SECTION 3. Section 3141 (Definitions) of Part 4 of Chapter 1 of Article 3 of the TCC is
hereby amended to add a definition for "Cannabis Business" to read as follows (new text
underlined):
Cannabis Business. 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 cannabis (in any form
or incorporated into any other product), whether for recreational or medicinal use,
to any person, includinq, 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 Safetv Code Sections 11362.5 and 11362.7 et sea.. as may be
amended from time to time.
"Cannabis Business" shall not include the following:
(1) An individual aped twenty-one (21) years or older who:
(a) Possess, processes, transports, purchases, obtains or gives
away to adults aged twenty-one (21) years or older without
compensation whatsoever, recreational marijuana; or
(b) Possesses, plants, cultivates, harvests, dries, or purchases six
(6) or fewer living marijuana plants or who possesses the
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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.
(2) A business entity licensed pursuant to, and acting in compliance with,
California Business & Professions Code Section 26000 et seq. and
California Code of Regulations Sections 15400 et seq., which engages in
the retail sale by delivery of medicinal cannabis to medicinal cannabis
patients to a location within the City, provided that the following conditions
are met:
(a) The method of delivery is in full compliance with the provisions of
California Business & Professions Code Section 26090 et seq. and
California Code of Regulations Sections 15400 et seq. (as may be
amended from time to time);
b) The delivery is made to a buildina on a residential Droperty with an
existing physical address. For purposes of this section, a "residential
Property" is limited to the following: any dwelling unit, including
single-family, multi -family, and accessory dwelling units, apartment,
condominium, duplex, hotel, motel, mobile home, rest home, or
townhouse or townhome as those terms are defined by Section 9297
of this Code;
(c) The delivery is not made to any of the following, regardless of
whether the location is a "residential property" as described in
subsection (b) of this section:
1. Any address located on publicly owned land or any address
on land or in a building leased by any public agency, as that
phrase is defined by California Government Code Section
6500; or
2. Any school providing instruction in kindergarten or any grades
1 throuah 12. day care center. or vouth center. whether such
institution or entity is public or private.
3. Anv Dublic or private Dark. For Durposes of this section. "public
or private park" shall mean any park operated by the City or
any park situated on privately owned property within the City
that is generally open for public use and shall include all
sidewalks or other public rights -of -way which are located
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immediately adjacent to any public or private park. A park
shall be deemed generally open for public use if it is open to
any person(s) other than the owner of the privately owned
Property upon which the park is situated, including, but not
limited to, tenants, guests, or customers.
(d) The delivery must originate from an entity licensed pursuant to, and acting
in compliance with, California Business & Professions Code Section 26000
et seq. which is not located within the City of Tustin.
For purposes of this section the terms "medicinal cannabis" and "medicinal
cannabis patients" shall have the same meanings as those terms are defined in
California Business & Professions Code Section 26321(b).
SECTION 4. Section 3152 of Part 5 of Chapter 1 of Article 3 of the TCC is hereby
amended and restated in its entirety to read as follows (new text
underlined, deletions in strikethro unh):
3152 MARIJIUANA DISPENSARIES CANNABIS BUSINESSES
Marijuana dispencorioc Cannabis Businesses as defined +A by Section 3141
of this Code are expressly prohibited within the City.
SECTION 5. Subsection (c) of Section 9270 (Regulations) of Part 7 of Chapter 2 of
Article 9 of the TCC is hereby amended to read as follows (new text underlined, deletions
In strikethre irvh):
c. 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.
Marijuana dispensaries Cannabis Businesses as defined in by Section 3141 of
this Code are expressly prohibited in all zoning districts.
SECTION 6. The definition for "Marijuana Dispensary" found at Section 9297 of Part 9
of Chapter 2 of Article 9 of the TCC is hereby deleted in its entirety.
SECTION 7. Section 9297 of Part 9 of Chapter 2 of Article 9 of the TCC is hereby
amended to add a definition for "Cannabis Business" to read as follows (new text
underlined):
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"Cannabis Business" 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 cannabis (in any 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 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.
"Cannabis Business" shall not include the following:
(1) An individual aged twenty-one (21 wears or older who:
(a) Possesses, processes, transports, purchases, obtains or gives
away to adults aged twenty-one (21) years or older without
compensation whatsoever. recreational mariivana: or
(b) Possesses, plants, cultivates, harvests, dries, or purchases six
(6) or fewer living mariivana plants or who possesses the
mariivana 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.
(2) A business entity licensed pursuant to, and acting in compliance with,
California Business & Professions Code Section 26000 et seq. and
California Code of Regulations Sections 15400 et seq., which
engages in the retail sale by delivery of medicinal cannabis to
medicinal cannabis patients to a location within the City, provided
that the following conditions are met:
(a) The method of delivery is in full compliance with the provisions of
California Business & Professions Code Section 26090 et seq.
and California Code of Reaulations Sections 15400 et sea. (as
may be amended from time to time);
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(b) The delivery is made to a building on a residential property with
an existing physical address. For purposes of this section, a
"residential property" is limited to the following: any dwelling unit,
including single-family, multi -family, and accessory dwelling
units, apartment, condominium, duplex, hotel, motel, mobile
home, rest home, or townhouse or townhome as those terms are
defined by this Section 9297:
(c) The delivery is not made to any of the following, regardless of
whether the location is a "residential property" as described in
subsection (b) of this section:
address located on Dubliclv owned land or anv address
on land or in a building leased by any public agency, as that
phrase is defined by California Government Code Section
6500; or
2. Any school providing instruction in kindergarten or any grades
1 through 12, day care center, or youth center, whether such
institution or entity is public or private.
3. Any public or private park. For purposes of this section, "public
or private park" shall mean any park operated by the City or
any park situated on privately owned property within the City
that is generally open for public use and shall include all
sidewalks or other public rights -of -way which are located
immediately adjacent to any public or private park. A park
shall be deemed generally open for public use if it is open to
any person(s) other than the owner of the privately owned
property upon which the park is situated, including, but not
limited to, tenants, quests, or customers.
(d) The delivery_ must originate from an entity licensed pursuant to,
and acting in compliance with, California Business & Professions
Code Section 26000 et seq. which is not located within the City
of Tustin.
For purposes of this section the terms "medicinal cannabis" and "medicinal
cannabis patients" shall have the same meanings as those terms are defined in
California Business & Professions Code Section 26321(b).
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SECTION 8. Effective Date. This Ordinance shall take effect on the 31 st day after its adoption.
The City Clerk or his or her duly appointed deputy shall certify to adoption of the Ordinance and
cause this Ordinance to be published as required by law.
SECTION 9. CEQA Exemption. The City Council finds that this Ordinance 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.
SECTION 10. Severability. 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
day of 12024.
AUSTIN LUMBARD,
Mayor
ERICA N. YASUDA,
City Clerk
APPROVED AS TO FORM:
L
DOCUSigned by:
E
FD22142C
DAVID E. KENDIG,
City Attorney
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1540
Erica N. Yasuda, 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. 1540 was duly
passed, and adopted at a regular meeting of the Tustin City Council held on the day
of , 2024, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
Erica N. Yasuda, City Clerk
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