CC Ordinance No. 16-2160 Iterim Urgency Ordinance Extending a Ugency Ordinance Number 16-2153 and a Temporary Moratorium on Non-Medical Marijuana Dispensaries, Marijuana Cultivation and Cultivation Facilities..URGENCY ORDINANCE NO. 16-2160
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF CUPERTINO EXTENDING A URGENCY ORDINANCE
NUMBER 16-2153 AND A TEMPORARY MORATORIUM ON NON-MEDICAL
MARIJUANA DISPENSARIES, MARIJUANA CULTIVATION AND
I ' CULTIVATION FACILITIES, COMMERCIAL CANNABIS ACTIVITIES AND
MARIJUANA TRANSPORT AND DELIVERIES WITHIN THE CITY OF
CUPERTINO PENDING COMPLETION OF AN UPDATE TO THE CITY'S
ZONING CODE
WHEREAS, this Ordinance is exempt from the prov1s1ons of the California
Environmental Quality Act (Public Resources Code Section 21000, et seq.) (CEQA)
because 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)(l), 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.
WHEREAS, the City Council is the decision making body on this Ordinance, and before
taking action on it, using its independent judgment, finds such CEQA exemptions to
apply;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES
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
Subs tances Act, commencing at Health and Safety Code section 11350, which
Ordinance No. 16-2160
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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. 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.
E. The Municipal Code does not have express provisions regarding non-
medical marijuana dispensaries, non-medical marijuana cultivation facilities,
commercial cannabis activities, and non-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.4th 418, 431-433). Moreover, the Municipal Code requires
compliance with 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)
F. It is imperative that the City retain local land use control over marijuana
cultivation and associated uses. Several California cities and counties have experienced
serious adverse impacts associated with and resulting from medical marijuana
dispensaries and 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.
G. 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 on
January 16, 2016 , and is on file with the City Clerk, and is incorporated by reference.
Ordinance No. 16-2160
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H. 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
on January 16, 2016, and is on file with the City Clerk, and is incorporated by reference.
I. 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 on January
16, 2016, and is on file with the City Clerk, and is incorporated by reference.
J. The Police Foundation and the Colorado Association of Chiefs of Police
issued a 2015 report entitled "Colorado's Legalization of Marijuana and the Impact on
Public Safety: A Practical Guide for Law Enforcement," which outlined many of the
summarize the numerous challenges faced by law enforcement when enforcing the laws
surrounding legalization, to document solutions that have been proposed and put into
effect, and outline problems that still need to be addressed; a copy of this memorandum
is attached to the staff report presented to the City Council with this ordinance and is
on file with the City Clerk, and is incorporated by reference .
K. 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 on January 16, 2016, and is on file with the City
Clerk, and are incorporated by reference.
L. It is reasonable to conclude that non-medical marijuana dispensaries, non-
medical marijuana cultivation facilities, commercial cannabis activities, and non-
medical marijuana deliveries and transport would cause similar adverse impacts on the
public health, safety, and welfare in Cupertino.
M. Although the state law has established a regulatory system for medical
marijuana, the California Bureau of Medical Cannabis Regulation advises that it is in
the early stages of developing a licensing program and will not be accepting
applications for medical marijuana license until 2018.
N. In order to protect the public health, safety, and welfare, the City Council
desires to amend the Municipal Code to address, in express terms, non-medical
marijuana dispensaries, non-medical marijuana cultivation facilities, commercial
cannabis activities, and non-medical marijuana deliveries. In the event that Proposition
64 passes, 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,
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safety, and welfare impacts and preserve local control over non-medical marijuana
establishments. Non-medical marijuana currently is prohibited under both state and
federal law, unless Proposition 64 decriminalizes non-medical marijuana at the state
level.
0. Proposition 64 is on the California ballot for the November 8, 2016,
election which would decriminalize under state law recreational marijuana use,
cultivation, and distribution and further establish licensing program for non-medical
commercial cultivation, testing, and distribution of non-medical marijuana and the
manufacturing of non-medical marijuana products. However, such licenses will not be
issued at least until 2018.
P. Proposition 64 expressly preserves local jurisdictions' ability to adopt and
enforce local ordinances to regulate non-medical marijuana establishments including
local zoning and land use requirements, business license requirements, and the ability
to completely prohibit the establishment or operation of one or more types of non-
medical marijuana businesses.
Q. Proposition 64 further recognizes the City's ability to completely prohibit
outdoor planning, harvesting, cultivation or processing of non-medical marijuana for
personal use, and the City's ability to regulate indoor cultivation for personal use.
R. The City did not take a formal position on Proposition 64, but in order to
preserve local control, the City confirms that such non-medical marijuana is prohibited
within the City to the fullest extent permitted by law.
S. It is necessary to extend Urgency Ordinance Number 16-2153 because it
will expire before there is an opportunity for the City to evaluate state law, regulation,
and licensing for non-medical marijuana for purposes of evaluating the impacts and
policies for non-medical marijuana, consideration of obtaining voter approval for taxes,
and adopting a regular zoning code amendment, which includes public notice,
consideration by the Planning Commission, and first and second reading before the
City Council.. Any loss of local land use control over marijuana cultivation would
result in a current and immediate threat to the public health, safety, and welfare.
T. Government Code sections 36937 and 65858 authorize the extension of
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. Prior to this extension, the City provided notice of the public hearing
as required by law.
U. Failure to adopt this extension of the moratorium could impair the orderly
and effective implementation of contemplated amendments to the Municipal Code.
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V. 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.
W. The proposed Ordinance conforms with the latest adopted general plan
for the City in that a prohibition against medical and non-medical marijuana cultivation
facilities, medical and non-medical marijuana dispensaries, commercial cannabis
activities, and medical and non-medical marijuana delivery and transport 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.
X. 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, non-medical marijuana dispensaries, commercial cannabis
activities, and non-medical marijuana delivery and transport services will protect the
City from the adverse impacts and negative secondary effects connected with these
activities.
Y. The proposed Ordinance is consistent with Municipal Code Title 19,
which currently bans marijuana cultivation facilities, non-medical marijuana
dispensaries, commercial cannabis activities, and non-medical marijuana delivery
services under principles of permissive zoning.
SECTION 3. Extension of Moratorium. In order to protect the public health, safety and
welfare, the City finds that it is necessary to extend the Urgency Ordinance and all of
the prohibitions imposed by Ordinance No. 16-2153, including those on non-medical
marijuana facilities, non-medical marijuana cultivation, commercial cannabis activities,
non-medical marijuana deliveries and transport within the City of Cupertino, and
Ordinance No. 16-2153 is hereby extended.
SECTION 4. Effective Period. This Ordinance is an extension of Ordinance No. 16-2153,
an urgency measure adopted pursuant to the provisions of Government Code Section
65858. This Ordinance shall be in effect until the earlier of the following, and shall
thereupon be repealed and of no further force or effect, unless extended by subsequent
enactment of the City Council:
i) The completion of the study, evaluation, consideration, and legislative
action and effective date of the amendments to Cupertino Municipal
Code, Title 19, Zoning, to address non-medical marijuana uses,
cultivation, and activities on a permanent basis, or
ii) Ten months and fifteen days beyond November 15, 2016.
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Page 6
SECTION 5: Report of Interim Moratorium. Ten days prior to the expiration of
Urgency Ordinance No. 16-2153, the City provided a report describing the measures
taken to alleviate the urgency pursuant to Government Code section 65858(d). Further,
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. 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 7: Publication. The City Clerk is directed to cause this ordinance to be
published in the manner required by law.
THE FOREGOING EXTENSION OF THE URGENCY ORDINANCE was introduced
and adopted at a regular meeting of the City Council of the City of Cupertino held on
November 15, 2016, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Members of the City Council
Chang, Vaidhyanathan, Paul, Sinks
None
Wong
None
APPROVED:
Grace Schmidt, City Clerk
ST ATE 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 Ordinance No. 16-2160, which was
enacted on November 15, 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 17 th day of November, 2016.
GRACE SCHMIDT, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California