HomeMy WebLinkAboutORD 1540 (2024)DocuSign Envelope ID: ED8283C5-7C40-4D49-BB87-704E4BB664E4
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.
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.
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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:
Possessing, processing, transporting, purchasing, obtaining, or giving away,
to adults aged 21 years 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
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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 (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. 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
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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, 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 followi
(1) An individual aped twenty-one (21) years or older who:
(a) Possess, processes, transports, purchases, obtains or -gives away to
adults aped 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 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.
(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 orooerty with an existin
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;
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(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:
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
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 adiacent 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).
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
strikethre gh):
3152 MARIjUANA DISPENSARIES CANNABIS BUSINESSES
Marijuana dispencarioc Cannabis Businesses as defined in 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 gI ):
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.
Ordinance No. 1540
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Marijuana dispeRsar,os- 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):
"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:
An individual aaed twentv-one (21) vears or older who:
(a) Possesses, processes, 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
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
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California Code of Regulations Sections 15400 et seq. (as may be
amended from time to time);
(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:
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
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, 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).
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SECTION 8. Effective Date. This Ordinance shall take effect on the 31s' 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 5th day of March, 2024.
DS
y:F;DuSi
gned by:
oc(A aSu.�,a
E A`N04YA'STJDA, ro
City Clerk
APPROVED AS TO FORM:
L
DocuSigned by:
E
FD22142C
DAVID E. KENDIG,
City Attorney
DocuSigned by:
A PR EWMBARD,
Mayor
Ordinance No. 1540
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1540
I, 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 and regularly
introduced and read by title only at the regular meeting of the City Council held on the 20th day
of February 2024, and was given its second reading, passed and adopted at a regular meeting
of the City Council held on the 5th day of March 2024, by the following vote:
COUNCILMEMBER AYES: Lumbard, Gallagher, Clark, Gomez, Schnell (5)
COUNCILMEMBER NOES: (0)
COUNCILMEMBER ABSTAINED: (0)
COUNCILMEMBER ABSENT: (0)
COUNCILMEMBER RECUSED: (0)
DS
DOCUSigned by:
(a q6LSVJA
F0
E PPWP1 AS%DA,
City Clerk
Ordinance No. 1540
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