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Home My WebLink About04 CA 06-007/ORD. NO. 1322 ITEM #4 FROM: SUBJECT: NOVEMBER 13, 2006 HONORABLE CHAIR AND MEMBERS OF THE PLANNING COMMISSION COMMUNITY DEVELOPMENT DIRECTOR AND CITY ATTORNEY DATE: TO: CODE AMENDMENT 06-007 - ORDINANCE NO. 1322 AN ORDINANCE REGARDING CONSISTENCY OF ANY USE, ENTITLEMENT, AUTHORIZATION, LICENSE, OR PERMIT WITH APPLICABLE STATE AND FEDERAL LAWS SUMMARY: The City Council previously adopted interim urgency ordinances prohibiting the establishment of medical marijuana dispensaries. The second interim urgency ordinance will expire in approximately two months. In lieu of extending this moratorium for one additional year, staff and the City Attorney are proposing the City adopt an ordinance that will expressly provide that any use proposed for any district in the City must be consistent with federal and state law. Stated another way, if a use is iliegal under federal or state law, that use would be prohibited under the City's zoning code. This prohibition wouli;! extend to medical marijuana dispensaries since such'uses are inconsistent with federal law. RECOMMENDATION: That the Planning Commission recommend that the City Council adopt the attached ordinance regarding the consistency of any use, entitlement, authorization, license or permit with applicable state and federal law. ENVIRONMENTAL: Proposed Code Amendment 06-007 - Ordinance No. 1322 is not a "project" pursuant to the provisions of the California Environmental Quality Act (CEQA) and is exempt from furtherenvironmentalanaiysis. BACKGROUND AND DISCUSSION: Cities have been caught in the middle of the conflict between state and federal laws, particularly in the context of medical marijuana. The Tustin City Council adopted an interim study ordinance prohibiting medical marijuana dispensaries, which will expire in February 2007. In lieu of extending the moratorium for an additional year, staff is recommending that the Council adopt an ordinance requiring any use, entitiement, Honorable Chair and Members of the Planning Commission November 13, 2006 Page 2 authorization, license, or permit allowed or issued under the City Code to be consistent with both state and federal law. Although seemingly self-evident in that the City would not issue a use permit to a printing shop that stated it was printing counterfeit U.S. dollars, the City Code does not specifically require consistency with state and federal laws, As to the medical marijuana issues, some cities maintain that such a blanket prohibition is sufficient authority to prohibit a medical marijuana dispensary from opening given the status of federal law (e,g. Walnut Creek, Pittsburg). Other cities believe it is prudent to also have a specific ordinance prohibiting medical marijuana dispensaries with a strong public record supporting the city's action, particularly as to negative secondary impacts, in the event of a legal challenge from medical marijuana advocates (e.g. Concord). Other cities have adopted ordinances regulating the use (e.g. San Francisco, Martinez). Compassionate Use Act (California Health & Safety Code section 11362.q} In 1996, California voters approved Proposition 215, which provides that the state statutes making possession and cultivation of marijuana a crime "shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or orai recommendation or approval of a physician." Proposition 215 did not legalize the sale of marijuana. The expressed intent of Proposition 215 was to ensure that seriously ill people could obtain and use marijuana for medicai purposes. In 2003, the California legislature enacted the Medical Marijuana Program ("MMP") to address some of the open issues raised by Proposition 215. In part, the MMP extended some of Proposition 215's protections from criminal liability; created a statewide registration program; and limited state law provisions declaring a building used for selling, storing, manufacturing, or distributing a controlled substance to be a nuisance. The term medical marijuana dispensary is not used in either Proposition 215 or the MMP. Subsequent court decisions reinforced the position that Proposition 215 does not allow for the distribution of marijuana. Nevertheless, one California appellate case indicated that the breadth of the MMP suggests that the legiSlature intended 10 allow the "formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided In conjunction with the provision of that marijuana." Based on this decision, medicai marijuana advocates increasingly argued that local ordinances prohibiting or regulating medical marijuana dispensaries were pre-empted by state law. On the other hand, opponents to medical marijuana maintain that the state law is preempted by federal law. The federal government, including the Department of Drug Enforcement, has consistently held that neither Proposition 215 nor the MMP creates a defense to violations of the federal Controlled Substances Act and that marijuana continues to be a prohibited Schedule 1 drug for which there is no currentiy accepted Honorable Chair and Members of the Planning Commission November 13, 2006 Page 3 medical use. Accordingly, it is a violation of federal law to possess, cultivate, sell or distribute marijuana regardless of its intended use or user. In particular, the United State Supreme Court has recently held that Congress has the authority under the Constitution to criminalize marijuana possession and use even when the marijuana never entered the interstate commerce stream. Thus. the possession and use of marijuana remains a violation of federal law regardless of California's Compassionate Use Act and Medical Marijuana Program. Interim Ordinance Prohibilina Medical Mariiuana Disoensaries In addition to the conflict between federal and state law, some cities and counties became concerned about some of the secondary impacts related to medical marijuana dispensaries and took steps to prohibit or regulate them. Some of the secondary impacts included increased criminal activity at medical marijuana dispensaries such as robbery. burglary, non-marijuana drug dealing, loitering, litter, tax fraud, driving under the influence of marijuana, smoking marijuana in public, prostitution (alien payment with marijuana), and "fe-sale" of the marijuana for non-medical uses With these legal uncertainties and concerns about secondary impacts, the Tustin City Council adopted an interim urgency ordinance prohibiting medical marijuana dispensaries in Tustin during an initial period on February 6, 2006. That ordinance was extended on March 20, 2006. The prohibition provided that the City would not "approve any use interpretation, pennit, certificate of use and occupancy, Zoning Code or General Plan amendment allowing the establishment or operation of a medical marijuana dispensary" in the City 01 Tustin. The current interim ordinance will expire in February, 2007; therefore, staff is proposing the language set forth in draft Ordinance No. 1322. ?3(";'jd h(-_:'.Jc Elizabeth Binsack Director of Community Development Attachment: Resolution No. 4045 (Draft Ordinance No. 1322) S;\Cdo\PCREPOAT12OO6\CA06-007,DOC ATTACHMENT A PLANNING COMMISSION RESOLUTION NO. 4045 RESOLUTION NO. 4045 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, 'RECOMMENDING THAT THE CITY COUNCIL APPROVE CODE AMENDMENT 06-007 ADDING SUBSECTION d TO SECTION 9270 AND SUBSECTION f TO SECTION 9298 OF THE TUSTIN CITY CODE, RELATING TO THE ESTABLISHMENT OF PROHIBITED USES IN ALL ZONING DISTRICTS. The Planning Commission of the City of Tustin does hereby resolve as foliows: I. The Pianning Commission finds and determines: A. That the addition of specific zoning provisions prohibiting illegal uses will make it easier for the City to address the permissibility of such uses in situations where there may be a conflict between iocal, state, or federal iaw. B. That the purpose and intent of this ordinance prohibiting illegal uses, including medical marijuana dispensaries, is to promote the health, safety, morais, and general welfare of the residents and businesses within the City. C. That the Ordinance is declaratory of existing law and intent of the current Tustin City Code. D. That this ordinance is not subject to the California Environmental Quality Act ("CECA") pursuant to Title 14, California Code of Reguiations, Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physicai change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potentiai lor resulling in physical change to the environment, directly orindire ctly. E. That on November 13, 2006, a public hearing was duly noticed, cailed, and held on Code Amendment 06-007 by the Planning Commission. II. The Planning Commission hereby recommends that the City Councii approve the ordinance adopting Code Amendment 06-005, attached hereto as Exhibit A. PASSED AND ADOPTED by the Pianning Commission of the City of Tustin at a reguiar meeting held on the 13th day of November, 2006. BRED FLOYD Chairperson ELIZABETH A. BINSACK Planning Commission Secretaf)' Resolution No. 4045 Page 2 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) 55 CITY OF TUSTIN ) I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning Commission Secretary of the Planning Commission of the City of Tustin, California; that Resolution No. 4045 was duly passed and adopted at the regular meeting of the Tustin Planning Commission, held on the 13th day of November, 2006. ELIZABETH A. BINSACK Planning Commission Secretary S:\CddlPCRESOS\4()4l;(CA06-007MMD).doc EXHIBIT A TO RESOLUTION NO. 4045 ORDINANCE NO. 1322 AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, ADDING SUBSECTION d TO SECTION 9270 AND SUBSECTION f TO SECTION 9298 OF THE TUSTIN CITY CODE, RELATING TO THE ESTABLISHMENT OF PROHIBITED USES IN ALL ZONING DISTRICTS. The City Council of the City of Tustin, California, finds and determines as follows: A. The City Council of the City of Tustin finds that the addition of specific zoning provisions prohibiting illegal uses will make it easier for the City to address the permissibility of such uses in situations where there may be a conflict between local, state, or federal law. B. The City Council's purpose and intent of this ordinance prohibiting Wegal uses, including medical marijuana dispensaries, is to promote the health, safety, morals and general welfare of the residents and businesses within the City. C. The City Council finds that this Ordinance is declaratory of existing law and intent of the current Tustin City Code. D. This Ordinance is categorically exempt from environmental review pursuant to CEQA Guidelines Section 15061(C)(2). The City Council of the City of Tustin ordains: Section 1. Subsection d is added to Section 9270 of the Tustin City Code to read: d 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 ailowed in such district. Section 2. Subsection f is added to Section 9298 of the Tustin City Code to read: f Consistency With All Laws Notwithstanding any provision of this Code to the contrary. any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessory or ancillary use, shall be consistent with applicable state and federal law. Any use or activity that is illegal under local, state, or federal law shaH be deemed a prohibited use in all districts within the City. 1 Section 3. The provisions of this Chapter are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion 01 this Ordinance, or the invalidity ollhe application thereof to any person or circumstance shall not affect the validity of the remainder of this Ordinance, or the validity of its application to other persons or circumstances. Section 4. This Ordinance shall become effective at 12:01 am on the thirty-first day aflerpassage. PASSED, APPROVED, AND ADOPTED this _ day of 2006. DOUG DAVERT, MAYOR ATTEST: PAMELA STOKER, CITY CLERK APPROVED AS TO FORM: DOUGLAS HOLLAND, CITY ATTORNEY 2 ORDINANCE CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) ORDINANCE NO. 1322 PAMELA STOKER, 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 was passed and adopted af a regular meefing of the City Council held on the _ day of ,2006, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, CITY CLERK Published: 3