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HomeMy WebLinkAbout2009-12-22 Item 12 CITY OF ,, L (--,1101 ' A E L SIIYOR , DREAM EXTREME, REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT A. BRADY CITY MANAGER DATE: DECEMBER 22, 2009 SUBJECT: AN INTERIM URGENCY ORDINANCE OF THE CITY OF LAKE ELSINORE ESTABLISHING A 45 -DAY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF ALL MARIJUANA MANUFACTURING ACTIVITIES PURSUANT TO GOVERNMENT CODE SECTION 65858 Background The Community Development Department has recently received a business license application and several phone inquiries from entities interested in establishing marijuana manufacturing operations within the City. Currently, the Lake Elsinore Municipal Code (Chapter 17.156) prohibits the establishment of medical marijuana dispensaries but permits the possession, use and cultivation of medical marijuana consistent with state law. Inquiries submitted to the Community Development Department have not been for dispensaries but instead have been for a wide array of activities, including: growing, drying, farming, packaging, processing, warehousing, manufacturing, and wholesale distributing of medical marijuana ( "Marijuana Manufacturing Activities "). The Lake Elsinore Municipal Code and General Plan do not address Marijuana Manufacturing Activities, how they are to be regulated, or where they can be located. The proposed moratorium would prevent such Marijuana Manufacturing Activities from legally establishing in the City of Lake Elsinore while the City studies how it will go about regulating Marijuana Manufacturing Activities. Discussion State of the Law In 1996, California voters approved Proposition 215, codified as Health & Safety Code section 11362.5 et seq., and entitled the Compassionate Use Act of 1996 (the "Act "). CC December 22, 2009 Item No. 12 Page 1 of 9 Urgency Ordinance re Medical Marijuana December 22, 2009 Page 2 of 3 The intent of Proposition 215 was to enable persons who are in need of marijuana for medical reasons to obtain and use it under limited, specified circumstances. The Legislature subsequently passed a law entitled SB 420, codified as Health & Safety Code section 11362.7 et seq., which took effect in 2004. It authorizes cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act. California cities and counties have not taken a uniform position regarding medical marijuana dispensaries. Some jurisdictions have allowed dispensaries to operate under various degrees of restrictions. Other cities and counties have either prohibited the operation of dispensaries or have heavily regulated them. The regulations and operating conditions imposed by local jurisdictions have varied widely; there is no consistent standard. Cities that have permitted the establishment of medical marijuana dispensaries have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding dispensaries. In addition to the lack of a consensus among California cities and counties concerning dispensaries, there appears to be a conflict between state and federal laws relating to the legality of medical marijuana dispensaries. Although California law (through the Act and SB 420) allows for the establishment of medical marijuana dispensaries under very limited circumstances, the United States Supreme Court held in United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 US 483, that the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exceptions exist to those prohibitions. More recently, the Supreme Court concluded in Gonzales v. Raich (2005) 125 S.Ct. 2195 that local cultivation and /or use of marijuana is prohibited under federal law. Consequently, there appears to be a conflict between state laws and federal laws on this subject. Several cities and counties have recently filed lawsuits against, and requested legal opinions from, the California Attorney General based upon the apparent conflict. Staff is unaware of any jurisdiction that has permitted Marijuana Manufacturing Activities, other than a dispensary, to open and operate. And consistent therewith, to our knowledge, no court has been asked to decide whether Marijuana Manufacturing Activities, other than dispensaries, are legal. The California Court of Appeal is expected to issue its opinion on a case involving the City of Anaheim's outright ban on medical marijuana dispensaries this month. Staff is tracking this case and will review it upon release. The Lake Elsinore Municipal Code The City's Municipal Code, including the Zoning Code, currently does not recognize or regulate Marijuana Manufacturing Activities. The establishment of rules and regulations for this type of use has been highly controversial statewide, but no serious efforts to establish such Marijuana Manufacturing Activities in Lake Elsinore have been made CC December 22, 2009 Item No. 12 Page 2 of 9 Urgency Ordinance re Medical Marijuana December 22, 2009 Page 3 of 3 until recently. Due to the recent influx of inquiries regarding Marijuana Manufacturing Activities, the need to study appropriate regulations is necessary. Section 65858 of the California Government Code allows adoption of an urgency ordinance if needed for the immediate protection of the public peace, health, or safety. The urgency ordinance must be adopted by 4/5 vote of the City Council and will take effect immediately upon adoption. The urgency ordinance shall be effective for no more than 45 days. The City Council may further extend the urgency ordinance for 10 months and 15 days after a noticed public hearing, and may subsequently extend the ordinance for one additional year. Ten days prior to the expiration of the ordinance, the City Council shall issue a written report describing the measures taken to alleviate the conditions which led to the adoption of the ordinance. Fiscal Impact None. Recommendation 1. Waive further reading and adopt by a four -fifths vote the attached Ordinance by title only AN INTERIM URGENCY ORDINANCE OF THE CITY OF LAKE ELSINORE ESTABLISHING A 45 -DAY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF ALL MARIJUANA MANUFACTURING ACTIVITIES PURSUANT TO GOVERNMENT CODE SECTION 65858 2. Direct staff to begin studying the regulation of Marijuana Manufacturing Activities and present the City Council with additional information at a future date. Prepared by: Barbara Leibold City Attorney Approved by: Robert A. Brad City Manager u� Attachment: Ordinance CC December 22, 2009 Item No. 12 Page 3 of 9 Page 1 of 6 ORDINANCE NO. AN INTERIM URGENCY ORDINANCE OF THE CITY OF LAKE ELSINORE ESTABLISHING A 45 -DAY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF ALL MARIJUANA MANUFACTURING ACTIVITIES PURSUANT TO GOVERNMENT CODE SECTION 65858 WHEREAS, the voters of the State of California approved Proposition 215, entitled the Compassionate Use Act of 1996 (the "Act "), the intent of which was to enable persons in need of medical marijuana for medicinal purposes to obtain and use it under limited specified circumstances; and WHEREAS, on January 1, 2004, SB 420 went into effect and was enacted to clarify the scope of the Act, and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act; and WHEREAS, there is legal uncertainty between federal laws and California laws regarding medical marijuana. Several cities and counties have recently filed lawsuits relating to the validity of the Act in Tight of the Supreme Court decision, Gonzales v. Raich, (2005) 125 S.Ct. 2195 (holding that the federal Controlled Substances Act validly prohibits local cultivation and use of marijuana under all circumstances); and WHEREAS, General Plan Land Use Objective 1.1 encourages the development and maintenance of a broad range of housing types, the achievement of which may be impeded given that the City does not have standards relative to establishment and operation of Marijuana Manufacturing Activities (defined in Section 3 below) and their potential effect in residential and mixed -use neighborhoods; and WHEREAS, General Plan Land Use Objective 1.2 encourages the development of commercial land uses and the revitalization of existing commercial uses that strengthen the city's economic base, the achievement of which may be impeded given the City does not have standards relative to the establishment and operation of Marijuana Manufacturing Activities that may have the potential to detract from promoting commercial efforts; and WHEREAS, General Plan Land Use Objective 1.3 encourages industrial land uses to diversify Lake Elsinore's economic base, the achievement of which may be impeded given the City does not have standards relative to the establishment and operation of Marijuana Manufacturing Activities that may not be compatible with the diversification of Lake Elsinore's economic base; and WHEREAS, the City of Lake Elsinore Zoning Ordinance is an implementation measure of the General Plan which provides zoning criteria for specific uses intended to carry out the policies and programs of the General Plan; and CC December 22, 2009 Item No. 12 Page 4 of 9 Ordinance No. Page 2 of 6 WHEREAS, the Lake Elsinore Zoning Ordinance does not provide specific development regulations or definitions relative to the establishment and operation of Marijuana Manufacturing Activities; and WHEREAS, the City has made a conscientious effort to plan for specific uses within all zone districts and to anticipate conflicts between competing land uses in order to protect the public's health, safety and welfare; and WHEREAS, the City has received several inquiries and one business license application to establish and operate Marijuana Manufacturing Activities within the City's corporate boundaries; and WHEREAS, the establishment and operation of Marijuana Manufacturing Activities without appropriate rules and regulations could result in the creation of negative secondary effects such as an increase in crime in the areas immediately surrounding such activities; and WHEREAS, for the benefit of applicants and residents of the City alike, it is critical that appropriate regulations to implement the General Plan Land Use Element objectives and policies are established within the City's Zoning Ordinance; and WHEREAS, in order to allow time for the City to consider and study possible enactment of the implementing regulations, it is necessary to suspend the approval and issuance of any and all licenses, permits or other entitlements for the establishment and /or operation of Marijuana Manufacturing Activities; and WHEREAS, Government Code section 65858 allows the City Council to adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated zoning proposal that the City Council, the Planning Commission, or the Community Development Department intends to study within a reasonable time; and WHEREAS, the adoption of this interim ordinance is exempt from the California Environmental Quality Act ( "CEQA ") pursuant to section 15061(b)(3), 15262 and 15306 of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that such adoption may have a significant effect on the environment; and because such adoption involves only feasibility and planning studies for possible future adoption of an ordinance that has not yet been prepared or adopted. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE HEREBY ORDAINS AS FOLLOWS: SECTION 1. The foregoing recitals are true and correct and are hereby incorporated into the body of this Ordinance as substantive findings of the City Council. SECTION 2. The City Council finds and determines as follows: CC December 22, 2009 Item No. 12 Page 5 of 9 Ordinance No. Page 3 of 6 (a) The adoption of this Ordinance is exempt from the application of the California Environmental Quality Act, Public Resources Code Section 21000 et seq., pursuant to Sections 15061(b), 15262 and 15306 of the State CEQA Guidelines, 14 California Code of Regulations Section 15000, et seq.; and (c) The City must protect the character of residential neighborhoods and promote and encourage commercial and industrial economic diversity under its General Plan Land Use Element; and (d) The City cannot ensure that the City's objectives and policies will be implemented properly without specific development standards in place; and (e) There exists a current and immediate threat to the public health, safety and welfare, because proposals received for Marijuana Manufacturing Activities may be in conflict with the contemplated general plan implementing regulations and development standard proposals that the City is considering or intends to study within a reasonable time; and (f) There is no feasible alternative to enactment of this interim moratorium that will satisfactorily mitigate or avoid the previously identified impacts to the public health, safety and welfare with a less burdensome or restrictive effect; and (g) In order to ensure the effective implementation of the City's land use objectives and policies, a temporary moratorium on the approval and issuance of any and all licenses, permits or other entitlements for the establishment and /or operation of Marijuana Manufacturing Activities is necessary. SECTION 3. Imposition of Moratorium. (a) From and after the date of this Ordinance, no use permit, occupational permit, variance, building permit, or any other entitlement for use, including but not limited to the issuance of a business license, shall be approved or issued for the establishment or operation of Marijuana Manufacturing Activities for a period of 45 days. (b) For purposes of this Ordinance, "Marijuana Manufacturing Activities" means any business, operation, cooperative, or collective, engaged in the growing, packaging, drying, manufacturing, preparing, processing, warehousing, distribution, sale, and /or related processes of medical marijuana. SECTION 4. Study. The City Council hereby directs the Community Development Department to consider and study possible means of regulating Marijuana Manufacturing Activities, including zoning -based regulations and other regulations. CC December 22, 2009 Item No. 12 Page 6 of 9 Ordinance No. Page 4 of 6 SECTION 5. Requisite Vote. The City Council hereby enacts this interim urgency Ordinance by not less than a four -fifths vote, and in light of the findings set forth in this Ordinance, under the authority granted to it by Article XI, Section 7 of the California Constitution and Section 65858(a) of the California Government Code, which allows the City to adopt an interim urgency ordinance in order to protect the public safety, health, and welfare, prohibiting any uses that may be in conflict with a zoning proposal that the City Council, Planning Commission or the Community Development Department is considering or studying or intends to study within a reasonable time. SECTION 6. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The City Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof. SECTION 7. Effective Date and Term. This Ordinance shall take effect immediately upon its execution by the Mayor and certification by the City Clerk, and shall be in effect for a period of forty -five (45) days (February 5, 2010), unless repealed, amended or extended by further action of the City Council as provided in Government Code section 65858. SECTION 8. Expiration. Ten days prior to the expiration of this interim ordinance (February 5, 2010) or any extension thereof, the City Council shall issue a written report describing the measures taken to alleviate the threat to public health, safety and welfare that led to the adoption of the ordinance. SECTION 9. Publication. Within 15 days after adoption of this ordinance, the City Clerk shall cause this ordinance to be published one time in a newspaper of general circulation within the City. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Lake Elsinore, California, on this 22nd day of December 2009. MELISSA MELENDEZ, MAYOR CITY OF LAKE ELSINORE ATTEST: DEBORA THOMSEN CITY CLERK CC December 22, 2009 Item No. 12 Page 7 of 9 Ordinance No. Page 5 of 6 APPROVED AS TO FORM: BARBARA LEIBOLD CITY ATTORNEY CC December 22, 2009 Item No. 12 Page 8 of 9 Ordinance No. Page 6 of 6 STATE OF CALIFORNIA COUNTY OF RIVERSIDE SS CITY OF LAKE ELSINORE I, DEBORA THOMSEN, City Clerk of the City of Lake Elsinore, California, hereby certify that the foregoing urgency Ordinance No. was passed at a regular meeting of the City Council of the City of Lake Elsinore held on the 22nd day of December 2009, by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: DEBORA THOMSEN CITY CLERK CC December 22, 2009 Item No. 12 Page 9 of 9