HomeMy WebLinkAboutORD 1478 (2017) ORDINANCE NO. 1478
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA, AMENDING TUSTIN CITY CODE SECTIONS 3141, 3152, 9270
AND 9297 TO UPDATE THE CITY'S BUSINESS AND LAND USE
REGULATIONS PERTAINING TO MARIJUANA ACTIVITY.
The City Council of the City of Tustin does hereby ordain as follows:
Section 1. The City Council finds and determines as follows:
A. That in 1996, California voters approved Proposition 215, entitled The
Compassionate Use Act ("CUA"), codified in Health and Safety Code
Section 11362.5 et seq. The CUA, which was intended to enable seriously
ill persons to obtain and use marijuana for medical purposes, exempted
qualified patients and their primary caregivers from criminal prosecution
under state law for the cultivation, distribution, possession, and use of
marijuana under specified circumstances.
B. That in 2003, the California Legislature enacted Senate Bill (SB) 420,
known as the Medical Marijuana Program Act ("MMPA"), codified in
Health and Safety Code Section 11362.7 of 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 5, 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 =a
medical marijuana dispensaries, holding that neither the CUA nor the
MMPA preempted a zoning ordinance declaring medical marijuana
dispensaries a prohibited use of land.
F. That on October 9, 2015, Governor Brown signed the "Medical Marijuana
Regulation and Safety Act" ("MMRSA"), which is comprised of the State
legislative bills known as Assembly Bill (AB) 243, AB 255, and Senate Bill
(SB) 543, into law.
G. That the MMRSA, effective as of January 1, 2015, contains provisions that
govern the cultivating, processing, transporting, testing, and distributing of
medical cannabis to qualified patients. The MMRSA also contains new
statutory provisions that:
1. Expressly provide that the MMRSA does not supersede or limit local
authority for local law enforcement activity, enforcement of local
ordinances, or enforcement of local permit or licensing requirements
regarding marijuana (Business & Professions Code §19315(a));
2. Expressly provide that the MMRSA does not limit the authority or
remedies of a local government under any provision of law regarding
marijuana, including but not limited to a local government's right to i
make and enforce within its limits all police regulations not in conflict
with general laws (Business & Professions Code § 19315(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, 2015, the City Council adopted Ordinance No. 1455.
The purpose of Ordinance 1455 was to expressly prohibit marijuana
cultivation, processing, delivery, and distribution in all zoning districts
within the City.
1. That on November 8, 2015, California voters approved Proposition 54 —
the Control, Regulate, and Tax Adult Use of Marijuana Act (the "Adult Use
of Marijuana Act") legalizing certain activities by adults aged 21 or older
pertaining to recreational marijuana including:
1. Possessing, processing, transporting, purchasing, obtaining, or giving
away, to adults aged 21 or older without compensation whatsoever, of
Ordinance No. 1478
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recreational marijuana in certain specified amounts (Health & Safety
Code §§ 11362.1(a)(1) and (a)(2));
2. Possessing, planting, cultivating, harvesting, drying, or processing of
not more than 6 living marijuana plants and possessing the marijuana
produced by those plants, provided that such activity is conducted
within a person's private residence (i.e. house, apartment unit, mobile
home or other similar dwelling), or upon the grounds of that private
residence (e.g. in an outdoor garden area), are in a locked space, and
are not visible by normal unaided vision from a public place (Health &
Safety Code §§ 11362.1(a)(3) and 11362.2(a)(2), (a)(3), and (b)(5));
and
3. Smoking or ingesting of marijuana and marijuana products (Health &
Safety Code § 11362.1(a)(4)).
J. That, pursuant to the Adult Use of Marijuana Act, local entities may not
completely prohibit any of the foregoing activities, except that local entities
may prohibit possessing, planting, cultivating, harvesting, drying, and
processing of marijuana outdoors upon the grounds of a private residence
((Health & Safety Code § 11362.2(b)(3)).
K. That pursuant to the provisions of the Tustin City Code ("TCC"), planting,
cultivating, processing, harvesting, or drying of marijuana (whether
medical or recreational) are not listed as a "permitted use" in any zoning
district in the City; and that such uses and activities are expressly
prohibited in all zoning districts within the City.
L. That Code Amendment (CA) 2017-001 is consistent with the goals,
objectives, and policies of the General Plan as a whole and is not
inconsistent with any element thereof. Further, CA 2017-001 is necessary
in order to ensure that the TCC is not inconsistent with state law.
Specifically, this Ordinance is necessary in order to amend the TCC so
that it does not prohibit activity and/or uses that are expressly permitted
pursuant to the Adult Use of Marijuana Act.
M. That CA 2017-001 is not subject to the California Environmental Quality
Act (CEQA) pursuant to California Code of Regulations, Title 14, Chapter
3, Sections 15060 (c) (2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (the activity is not a project as defined in Section 15378)
because it has no potential for resulting in physical change to the
environment, directly or indirectly.
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N. That following a Public Hearing held on February 28, 2017, the Planning
Commission adopted Resolution No. 4335 recommending approval of CA
2017-001. we
O. That pursuant to a legal notice, a Public Hearing regarding the proposed
adoption of this Ordinance was held by the City Council on March 21,
2017, and all interested persons were given an opportunity to be heard,
and that at that hearing, the City Council gave due and careful
consideration to the matter.
Section 1. The definition for "Medical marijuana" found at Section 3141 of Part 4 of
Chapter 1 of Article 3 of the TCC is hereby deleted in its entirety and
replaced with the following:
"Marijuana Dispensary" means any person, association, business, facility,
use, establishment, location, delivery service, cooperative, collective, or
provider, whether fixed or mobile, that possesses, cultivates, processes,
distributes, makes available, or otherwise facilitates the distribution of
marijuana (in and form or incorporated into any other product), whether for
recreational or medicinal use, to any person, including but not limited to, a
qualified patient, a person with an identification card, or primary caregiver
as those terms are defined in California Health and Safety Code Sections
11362.5 and 11362.7 et seq., a those sections may be amended from time
to time.
r
"Marijuana Dispensary" shall not include an individual aged 21 years or
older who-
1)
ho:1) Possesses, processes, transports, purchases, obtains, or gives
away to adults aged 21 or older without compensation whatsoever,
recreational marijuana; or
2) Possesses, plants, cultivates, harvests, dries, or processes 6 or
fewer living marijuana plants or who possesses the marijuana
produced by those plants, provided that such activity is conducted
within the person's 'private residence', as that phrase is defined by
California Health and Safety Code Section 11362.2(b)(5), or upon
the grounds of that private residence, provided that such activities
are conducted within a fully enclosed, locked space, and are not
visible by normal unaided vision from a public place.
Section 2. Section 3152 of Part 5 of Chapter 1 of Article 3 of the TCC is
hereby amended to read as follows (new text in boldlitalics and
deleted text in Strike through):
Marijuana dispensaries as defined in this Code are expressly
prohibited within the City.
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Section 3. Section 9276c of Part 7 of Chapter 2 of Article 9 of the TCC is hereby
amended to read as follows (new text in boldlitalics and deleted text in
trilsn through):
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.
""o. —Marijuana dispensaries are expressly prohibited in all
zoning districts.
Section 4. The definition of "Medical Marijuana Dispensary" found at Section 9297 of
Part 9 of Chapter 2 of Article 9 of the Tustin City Code is hereby deleted in
its entirety and replaced with the following:
"Marijuana Dispensary" means any person, association, business, facility,
use, establishment, location, delivery service, cooperative, collective, or
provider, whether fixed or mobile, that possesses, cultivates, processes,
distributes, makes available, or otherwise facilitates the distribution of
marijuana (in and form or incorporated into any other product), whether for
recreational or medicinal use, to any person, including but not limited to, a
qualified patient, a person with an identification card, or primary caregiver
as those terms are defined in California Health and Safety Code sections
11362.5 and 11362.7 et seq., a those sections may be amended from time
to time.
"Marijuana Dispensary" shall not include an individual aged 21 years or
older who:
1) Possesses, processes, transports, purchases, obtains, or gives
away to adults aged 21 or older without compensation whatsoever,
recreational marijuana; or
2) Possesses, plants, cultivates, harvests, dries, or processes 6 or
fewer living marijuana plants or who possesses the marijuana
produced by those plants, provided that such activity is conducted
within the person's 'private residence', as that phrase is defined by
California Health and Safety Code section 11362.2(b)(5), or upon
the grounds of that private residence, provided that such activities
Ordinance No. 1478
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are conducted within a fully enclosed, locked space, and are not
visible by normal unaided vision from a public place.
mod
Section 5. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held out to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not
affect the validity of the remaining portions of this ordinance. The City
Council of the City of Tustin hereby declares that it would have adopted
this ordinance and each section, subsection, clause, phrase or portion
thereof irrespective of the fact that any one or more sections, subsections,
sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this 411 day of April, 2417.
DR. ALLAN BERNSTEIN,
Mayor
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ATTEST:
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1
ERICA N. RABE,
City Clerk
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Ordinance No. 1478
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APPROVED AS TO FORM:
DAWD E. KENDIG,
City Attorney
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF TUSTIN }
CERTIFICATION FOR ORDINANCE NO. 1478
Erica N. Rabe, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1478
was duly and regularly introduced and read by title only at the regular meeting of the
City Council held on the 4th day of April, 2017, and was given its second reading,
passed, and adopted at a regular meeting of the City Council held on the 18th day of
April, 2017, by the following vote:
COUNCILMEMBER AYES: I3ecns-Lein,Iviurr`,y,rmmez,pur-ket t C ,ark ( -5)
COUNCILMEMBER NOES: (�.}
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT: ( o)
ERICA N. ABE,
City Clerk
Ordinance No. 1478
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