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CC Ordinance No. 16-2139 Interim Urgency Ordinance Establishing a Moratorium on Medical MarijuanaURGENCY ORDINANCE NO. 16-2139 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ESTABLISHING A MORATORIUM ON MEDICAL MARIJUANA DISPENSARIES, MARIJUANA CULTIVATION FACILITIES, COMMERCIAL CANNABIS ACTIVITIES, AND MEDICAL MARIJUANA DELIVERIES WITHIN THE CITY OF CUPERTINO PENDING COMPLETION OF AN UPDATE TO THE CITY'S ZONING CODE. The City Council of the City of Cupertino does hereby ordain as follows: SECTION 1. Authority. This Ordinance is adopted pursuant to the provisions set forth in Government Code sections 36937(b) and 65858(a) (b) and pursuant to other applicable law. SECTION 2. Findings. In adopting this Ordinance, the City Council finds: A. In 1970, Congress enacted the Controlled Substances Act (CSA) which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States. B. In 1972, California added Chapter 6 to the state Uniform Controlled Substances Act, commencing at Health and Safety Code section 11350, which established the state's prohibition, penalties, and punishments for the possession, cultivation, transportation, and distribution of marijuana. C. In 1996, the voters of the State of California approved Proposition 215 (the "Act;" Health and Safety (H&S) Code Section 11362.5). D. California courts have held that the Act creates a limited exception from criminal liability under the state Uniform Controlled Substances Act for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances. E. On January 1, 2004, the "Medical Marijuana Program" (MMP), codified as H&S Code Sections 11362.7 to 11362.83, was enacted by the state Legislature to clarify the scope of the Act, establish a voluntary program for identification cards issued by counties for qualified patients and primary caregivers, and provide criminal immunity to qualified patients and primary caregivers for certain activities involving Ordinance No. 16-2139 Page2 medical marijuana, including the collective or cooperative cultivation of medical marijuana. F. The California Supreme Court ruled unanimously in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, that the Act and the MMP do not preempt local ordinances that completely and permanently ban medical marijuana dispensaries, collectives, and cooperatives. G. In Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, the Third District Court of Appeal held, based on Inland Empire, that there was no right to cultivate medical marijuana and that a city could implement and enforce a complete ban on this activity, including a ban on personal cultivation. H. On October 9, 2015, Assembly Bills 243 and 266 and Senate Bill 643 (collectively, the "Medical Marijuana Regulation and Safety Act" or "MMRSA") were enacted to create a state regulatory and licensing system governing the cultivation, testing, and distribution of medical marijuana, the manufacturing of medical marijuana products, and physician recommendations for medical marijuana. The new law also recognizes a range of medical marijuana businesses referred to as "commercial cannabis activities," including cultivation businesses, marijuana product manufacturers, marijuana distributors and transporters, marijuana testing laboratories, and dispensaries, and provides immunity to marijuana businesses operating with both a state license and a local permit. I. While the new legislation expressly preserves local control over medical marijuana facilities and land uses, including the authority to prohibit all medical marijuana businesses and cultivation completely, newly-added Health & Safety Code section 11362.777(c)(4) provides that if a city does not have a land use regulation or ordinance regulating or prohibiting marijuana cultivation, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program under that section, then commencing March 1, 2016, the state Department of Food and Agriculture will become the sole licensing authority for marijuana cultivation in that jurisdiction. J. The author of AB '243, which added Health & Safety Code section 11362.777(c)(4), has stated that this preemption provision was left inadvertently in the final version of AB 243 and introduced legislation to delete subdivision (c)(4). Ordinance No. 16-2139 Page 3 K. The clean-up legislation is pending, but it is not certain whether it will become effective prior to the March 1, 2016 deadline regarding marijuana cultivation, nor is it certain what the ramifications would be for a city that does not have a marijuana cultivation regulation or ordinance in place by that deadline. L. In addition, AB 266 provides that medical marijuana deliveries can only be made by a state-licensed dispensary in a city, county, or city and county that does not explicitly prohibit it by local ordinance (Business and Professions Code section 19340(a), part of AB 266.) Therefore, in order for a city or county to prohibit medical marijuana delivery services by a dispensary, it will need to enact an express ban. M. The Municipal Code does not have express provisions regarding medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and marijuana deliveries. These uses are not listed as a permitted or conditionally permitted land uses in the Zoning Code and are therefore prohibited in Cupertino under principles of permissive zoning (City of Corona v. Naulls (2008) 166 Cal.App.41h 418, 431-433). Moreover, the Municipal Code requires compliance with the the most restrictive law, which in this case is federal law, which prohibits all marijuana activity. (Cupertino Municipal Code §§1.04.010(5), 19.04.030.0 N. However, based on the ambiguous language of Health and Safety Code section 11362.777(c)(4), the City Council has determined that an express Municipal Code regulation regarding marijuana cultivation is necessary in order to ensure that the state does not become the sole licensing authority for marijuana cultivation within Cupertino after March 1, 2016, and to avoid unnecessary litigation with regard to the City's compliance with Health and Safety Code section 11362.777(c)(4). Cupertino intends to preserve its rights to and full ability to prohibit marijuana cultivation or impose regulations upon such a land use. The new state law does not define what "sole licensing authority" means in this context, so it is imperative that the City provide clarity. 0. In City of Corona v. Naulls, the issue of whether Corona's zoning code was permissive was disputed. Although the trial court and appellate court resolved the matter in favor of Corona, the city was required to present evidence on the ISsue. The City intends to avoid any uncertainty. P. It is imperative that the City retain local land use control over marijuana cultivation. Several California cities and counties have experienced serious adverse impacts associated with and resulting from medical marijuana dispensaries and Ordinance No. 16-2139 Page4 cultivation sites. According to these communities and according to news stories widely reported, medical marijuana activities have resulted in and/or caused an increase in crime, including burglaries, robberies, violence, and illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need in the areas immediately surrounding such medical marijuana activities. There have also been large numbers of complaints of odors related to the cultivation and storage of marijuana. Q. A California Police Chiefs Association compilation of police reports, news stories, and statistical research regarding crimes involving medical marijuana businesses and their secondary impacts on the community is contained in a 2009 white paper report which is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk R. The Santa Clara County District Attorney's Office issued a May 2014 memorandum entitled "Issues Surrounding Marijuana in Santa Clara County," which outlined many of the negative secondary effects resulting from marijuana cultivation; a copy of this memorandum is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk. S. The Santa Clara County Public Defender issued a May 2014 memorandum entitled "Substance-Related Suspensions in the East Side Union High School District," describing a correlation between substance abuse-related suspensions in local high schools and a proliferation of medical marijuana dispensaries in the area; a copy of this memorandum is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk T. News stories regarding adverse impacts of medical marijuana businesses, including dispensaries, cultivation sites, and delivery services, are attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk U. It is reasonable to conclude that medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries would cause similar adverse impacts on the public health, safety, and welfare in Cupertino. V. In order to protect the public health, safety, and welfare, the City Council desires to amend the Municipal Code to address, in express terms, medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, Ordinance No. 16-2139 Page 5 and medical marijuana deliveries. The City Council hereby determines that the Municipal Code is in need of further review and revision to protect the public against potential negative health, safety, and welfare impacts and to address the new marijuana business models recognized under MMRSA. W. The compacted time frame in Health and Safety Code section 11362.777(c)(4) for adopting a marijuana cultivation regulation or ordinance does not provide sufficient time to consider and adopt a regular zoning code amendment, which includes public notice, consideration by the Planning Commission, and first and second reading before the City Council. As a result of the impending March 1, 2016 deadline regarding marijuana cultivation, the potential public health, safety, and welfare consequences of not having a marijuana cultivation regulation or ordinance in place by March 1s1, and the potential for unnecessary and costly litigation involving the interpretation of Health and Safety Code section 11362.777( c)( 4) and its application to the City, an interim prohibition on marijuana cultivation and the issuance of any permits and/or entitlements relating to marijuana cultivation is necessary for a period of 45 days. The loss of local land use control over marijuana cultivation would result in a current and immediate threat to the public health, safety, and welfare. X. On November 24, 2015, the Cupertino Planning Commission voted unanimously to recommend that the City Council adopt an Ordinance amending Municipal Code section 19.08.030 and adding Municipal Code Chapter 19.98 regarding medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries. Y. The initial period of 45 days provided by this interim urgency ordinance will permit the City Council to carefully consider and act upon the Planning Commission's recommend course of action regarding medical marijuana businesses and activities. Z. Government Code sections 36937 and 65858 authorize the adoption of an interim urgency ordinance to protect the public health, safety, and welfare, and to prohibit land uses that may conflict with land use regulations that a city's legislative bodies are considering, studying, or intending to study within a reasonable time. AA. Failure to adopt this moratorium could impair the orderly and effective implementation of contemplated amendments to the Municipal Code. Ordinance No. 16-2139 Page 6 BB. The City Council further finds that this moratorium is a matter of local and City-wide importance and is not directed towards any particular person or entity that seeks to cultivate marijuana in Cupertino. CC. The proposed Ordinance conforms with the latest adopted general plan for the City in that a prohibition against marijuana cultivation facilities, medical marijuana dispensaries, commercial cannabis activities, and medical marijuana delivery services does not conflict with any allowable uses in the land use element and does not conflict with any policies or programs in any other element of the general plan. DD. The proposed Ordinance will protect the public health, safety, and welfare and promote the orderly development of the City in that prohibiting marijuana cultivation facilities, medical marijuana dispensaries, commercial cannabis activities, and medical marijuana delivery services will protect the City from the adverse impacts and negative secondary effects connected with these activities. EE. The proposed Ordinance is consistent with Municipal Code Title 19, which currently bans marijuana cultivation facilities, medical marijuana dispensaries, commercial cannabis activities, and medical marijuana delivery services under principles of permissive zoning. FF. The proposed Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act ("CEQA") Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. SECTION 3. Imposition of Temporary Moratorium. In accordance with the authority granted the City under Government Code sections 36937(b) and 65858 (a), (b), and pursuant to the findings stated herein, the City Council hereby finds that: (1) the foregoing findings are true and correct; and (2) there exists a current and immediate threat to the public health, safety, and welfare from unregulated marijuana businesses, especially marijuana cultivation facilities, operating in Cupertino; and (3) this Ordinance is necessary for the immediate preservation of the public peace, health, and safety as set forth herein; and (4) hereby declares and imposes a temporary moratorium for the immediate preservation of the public health, safety and welfare as set forth below: Ordinance No. 16-2139 Page7 A. Medical marijuana dispensaries are prohibited in all zones in the city and shall not be established or operated anywhere in the city. B. Marijuana cultivation facilities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. C. Commercial cannabis activities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. D. No person shall own, establish, open, operate, conduct, or manage a medical marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity in the city, or be the lessor of property where a medical marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity is located. No person shall participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any medical marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity in the city. E. No Permits, grading permit, building permit, building plans, zone change, business license, certificate of occupancy or other applicable approval will be accepted, reviewed, approved or issued for the establishment or operation of a marijuana cultivation facility, medical marijuana dispensary, or commercial cannabis activity. F. As used in this Ordinance, the following definitions apply: 1. "Commercial cannabis activity" shall have the meaning set forth in Business and Professions Code section 19300.S(k). 2. "Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. 3. "Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodstuff, and concentrated cannabis and the separated resin, whether crude or petrified, obtained from marijuana. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, Ordinance No. 16-2139 Page 8 mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. 4. "Marijuana cultivation facility" means any business, facility, use, establishment, property, or location where the cultivation of marijuana occurs. A marijuana cultivation facility does not include cultivation by a qualified patient at his or her primary residence provided that the qualified patient cultivates marijuana solely for his or her personal use and does not provide, donate, sell, or distribute such marijuana to any other person. Qualified patient shall have the same meaning as defined in California Health and Safety Code § 11362.5 and following. 5. "Medical marijuana" is marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of California Health and Safety Code§ 11362.7. 6. "Medical marijuana dispensary" means any business, facility, use, establishment, property, or location, whether fixed or mobile, where medical marijuana is sold, made available, delivered and/or distributed. A "medical marijuana dispensary" does not include the following uses: a. A "qualified patient" transporting "medical marijuana" exclusively for his or her personal medical use and he or she does not provide, donate, sell, or distribute marijuana to any other person; b. A "primary caregiver" delivering or transporting "medical marijuana" for the personal medical purposes of no more than five specified "qualified patients" for whom he or she is the primary caregiver within the meaning of Section 11362.7 of the California Health and Safety Code, but who does not receive remuneration for these activities except for compensation in full compliance with subdivision ( c) of Section 11362.765 of the California Health and Safety Code. c. A clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code; Ordinance No. 16-2139 Page 9 d. A health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code; e. A residential care facility for persons with chronic life- threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code; f. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of California Division 2 of the Health and Safety Code; or g. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code. 7. "Primary caregiver" shall have the same meaning as set forth in California Health and Safety Code Sections 11362.5, 11362.7, and following, or as may be amended. 8. "Qualified patient" shall have the same meaning as set forth in California Health and Safety Code Sections 11362.5, 11362.7, and following, or as may be amended. G. Any use or condition caused or permitted to exist in violation of any of the provisions of this Ordinance shall be and is hereby declared a public nuisance and may be abated by the City pursuant to the procedures set forth in Article 50 of this Code. SECTION 4. Effective Date and Duration. Pursuant to Government Code section 65858(a), (b), this Ordinance shall take effect immediately but shall be of no further force and effect 45 days from its date of adoption unless the City Council, after notice and public hearing as provided under Government Code section 65858(a), (b) and adoption of the findings required by Government Code section 65858( c), subsequently extends this Ordinance. SECTION 5. Report of Interim Moratorium. Pursuant to Government Code section 65858(d), 10 days prior to the expiration or any extension of this Interim Ordinance, the City Council will issue a written report describing the measures taken to alleviate the conditions which led to the adoption of this Interim Ordinance. SECTION 6. Compliance with CEQA. The City Council hereby finds that this Ordinance is exempt from the provisions of the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) (CEQA) because the City Council hereby Ordinance No. 16-2139 Page 10 finds that it can be seen with certainty that there is no possibility the adoption and implementation of this Ordinance may have a significant effect on the environment, and the Ordinance is exempt from CEQA pursuant to CEQA Guidelines Sections 15061(b)(1), 15061(b)(2), and 15061(b)(3). Moreover, the adoption of this Ordinance is further exempt from CEQA because the Ordinance does not change existing City law and practice. SECTION 7. Severability. The City Council hereby declares every section, paragraph, sentence, cause and phrase is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses or phrases. SECTION 8: Publication. The City Clerk is directed to cause this ordinance to be published in the manner required by law. THE FOREGOING URGENCY ORDINANCE was introduced and adopted at a regular meeting of the City Council of the City of Cupertino the 19th day of January, 2016 by the following vote: Vote Members of the City Council AYES: Chang, Vaidhyanathan, Paul, Sinks, Wong NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: ~.:>4Jf Grace Schmidt, City Clerk STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) CITY OF CUPERTINO ) I, GRACE SCHMIDT, City Clerk and ex-officio Clerk of the City Council of the City of Cupertino, California, do hereby certify the attached to be a true and correct copy of Urgency Ordinance No. 16-2139, which was enacted on January 19, 2016, and that it has been published or posted pursuant to law (G.C. 40806). IN WITNESS WHEREOF, I have hereunto set my hand and seal this 21st day of January 2016. GRACE SCHMIDT, City Clerk and Ex-officio Clerk of the City Council of the City of Cupertino, California