HomeMy WebLinkAboutID#16-007 Amendment LEC Title 17 Medical Marijuana Dispensaries
CITY OF LAKE ELSINORE
REPORT TO THE CITY COUNCIL
TO: Honorable Mayor and City Council Members
FROM: Grant Yates, City Manager
DATE: January 12, 2016
PROJECT: An Amendment to the City of Lake Elsinore Municipal Code,
Title 17 Zoning, Chapter 17.156 Medical Marijuana Dispensaries
Recommendation
Approve and Introduce by title only and waive further reading of Ordinance No. 2016-
_____; An Ordinance of the City Council of the City of Lake Elsinore, California, Amending
the Lake Elsinore Municipal Code Chapter 17.156 Medical Marijuana Dispensaries.
Background
Proposition 215, the Compassionate Use Act (CUA) of 1996, provides certain legal
protections for qualified patients and primary caregivers that possess or cultivate
marijuana. In addition to Proposition 215, the Legislature enacted the Medical Marijuana
Program Act (MMPA) in 2003, which extends certain legal protections to those that
collectively or cooperatively cultivate marijuana for medical purposes. By exempting
qualified patients and caregivers from prosecution for using or from cultivating medical
marijuana, California law basically allows for its cultivation and use. However, the
California Supreme Court has held that neither the CUA nor the MMPA created a broad
right to access medical marijuana or preempted a local government’s ability to regulate
or ban medical marijuana distribution or cultivation.
In 2006, the City Council adopted Ordinance 1173 which amended the Lake Elsinore
Municipal Code to prohibit medical marijuana dispensaries in all zoning districts. The
Council did not address the issue of marijuana cultivation at that time.
Three pieces of legislation, which together are known as “The Medical Marijuana
Regulation and Safety Act,” became state law in October 2015:
• AB 243 establishes a regulatory and licensing structure for cultivation sites under
the Department of Food and Agriculture.
City Council Report: MCA 2015-04
January 12, 2016
Page 2 of 3
• AB 266 establishes a dual licensing structure requiring a state license and a local
license or permit. Department of Consumer Affairs heads overall regulatory
structure imposing health and safety and testing standards.
• SB 643 establishes criteria for licensing of medical marijuana businesses,
regulates physicians, and recognizes local authority to levy taxes and fees.
AB 243 contains a provision stating that cities that do not have an ordinance by March 1,
2016 regulating or prohibiting cultivation will lose the authority to regulate or ban
cultivation within their city limits and the state will become the sole licensing authority.
The City has been advised that this date is an error and the bill’s author has agreed to
extend the deadline via clean-up legislation. To be safe, however, cities have been
advised to enact legislation by the end of February to protect themselves.
Planning Commission Review
At the December 15, 2015, Planning Commission regular meeting asked general
questions and ultimately passed a resolution 4-0-1, with Commissioner Ray absent,
recommending that the City Council adopts the proposed amendment.
Discussion and Analysis
The cultivation of medical marijuana has the potential to significantly impact the City’s
jurisdiction. These impacts include damage to buildings in which cultivation occurs from
improper and dangerous electrical alterations and use, increased occurrences of home-
invasion robberies and similar crimes, and nuisance impacts to neighboring properties
from the plants’ strong and noxious odors. Furthermore, marijuana remains an illegal
substance under the Federal Controlled Substances Act and is classified as a “Schedule
I Drug” (a drug or other substance that has a high potential for abuse, that has no
currently-accepted medical use in the United States, and that has not been accepted as
safe for use under medical supervision). Furthermore, the Federal Controlled Substances
Act makes it unlawful for any person to cultivate marijuana.
The proposed code amendment provides adequate prohibitions on medical marijuana
dispensaries and outdoor cultivation in all zoning district. Furthermore, the proposed code
amendment prohibits cultivation in indoor areas that are visible from any street, sidewalk,
or other place freely accessible by the public. In addition the proposed amendment
prohibits the issuance or approval of any license, use permit, temporary permit, or permit
issued for the cultivation of marijuana within the City. Lastly any person engaging in the
cultivation of medical marijuana is required to be in compliance with Building, Fire Code
and Permitting requirements.
The collective prohibitions provide a practical and pragmatic approach in dealing with the
potential significant impacts to the City. Furthermore the explicit language requiring
City Council Report: MCA 2015-04
January 12, 2016
Page 3 of 3
compliance with Building, Fire Code and Permitting Requirements reduce the potential
for damage to buildings as a result of improper and dangerous electrical alterations.
Environmental Determination
MCA 2015-04 is not subject to the California Environmental Quality Act (CEQA)
Guidelines under the General Rule (Section 15061(b)(3)). The project involves updates
and revisions to existing regulations. The proposed code amendments are consistent with
California Law, specifically Government Code Section 65850.5 and Civil Code Section
714. It can be seen with certainty that the proposed Municipal Code text amendment will
have no significant negative effect on the environment.
Fiscal Impact
Costs have been incurred for staff time to research, draft and process the ordinance. No
increase in expenditures or revenues are anticipated as a part of this Municipal Code
Amendment.
Prepared by: Justin Kirk,
Senior Planner
Reviewed by: Grant Taylor,
Community Development Director
Attachments:
1. Ordinance
2. Ordinance No. 1173
ORDINANCE NO. __________
AN ORDINANCE OF THE CITY OF LAKE ELSINORE,
CALIFORNIA, AMENDING TITLE 5, CHAPTER 17.156, OF
THE LAKE ELSINORE MUNICIPAL CODE REGARDING
REGULATION OF MEDICAL MARIJUANA DISPENSARIES
AND CULTIVATION
WHEREAS, Chapter 17.156 (Medical Marijuana Dispensaries) of the Lake
Elsinore Municipal Code (“LEMC”) sets forth the prohibition of medical Marijuana
Dispensaries within the City; and
WHEREAS, pursuant to Title 14 of the California Code of Regulations, Section
15061(b) (3), the City of Lake Elsinore has determined that it can be seen with certainty
that there is no possibility that adoption of Municipal Code Amendment No. 2015-04 may
have a significant effect on the environment; and therefore the zoning code amendment
is exempt from CEQA; and
WHEREAS, on December 15, 2015, at a duly noticed public hearing the Planning
Commission has considered evidence presented by the Community Development
Department and other interested parties with respect to this item; and made its
recommendation in favor of Municipal Code Amendment No. 2015-04 by adopting
Planning Commission Resolution No. 2015-84 recommending to the City Council
approval of Municipal Code Amendment No. 2015-04; and
WHEREAS, on January 12, 2016, at a duly noticed public hearing, the City Council
has considered the recommendation of the Planning Commission as well as evidence
presented by the Community Development Department and other interested parties with
respect to this item.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE
DOES ORDAIN AS FOLLOWS:
SECTION 1. The City Council has reviewed and analyzed the proposed zone
changes pursuant to the California Planning and Zoning Laws (Cal. Gov. Code §65000
et seq.), the Lake Elsinore General Plan and the Lake Elsinore Municipal Code and finds
and determines that the proposed zone changes are consistent with the requirements of
California Planning and Zoning Law and with the goals and policies of the Lake Elsinore
General Plan and the Lake Elsinore Municipal Code.
SECTION 2. The City Council finds that this Ordinance is not subject to the
California Environmental Quality Act (“CEQA”) pursuant to 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)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
Therefore, no environmental assessment is required or necessary.
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SECTION 3. That in accordance with the State Planning and Zoning Law, the City
Council hereby makes the following findings for the approval of Municipal Code
Amendment No. 2015-04:
1. The proposed zoning code amendments will not be: a) detrimental to the health,
safety, comfort or general welfare of the persons residing or working within the
neighborhood of the proposed amendment or within the City, or b) injurious to the
property or improvements in the neighborhood or within the City.
The proposed zoning code amendments have been analyzed relative to their
potential to have detrimental effects and it has been determined that the proposed
amendments have no negative impact upon the public’s health, safety, comfort
and general welfare because the amendments will provide additional regulation of
medical marijuana within the City.
2. The proposed zoning code amendments are consistent with the Goals, Policies
and Implementation Programs of the General Plan and the development standards
established with the LEMC.
The proposed zoning code amendments do not create new zoning districts,
remove existing zoning districts or otherwise modify land use requirements. The
proposed zoning code amendments do not affect the density or intensity of uses
and will not interfere with the implementation of the goals, policies and
implementation programs of the General Plan.
SECTION 4. Chapter 17.156 of the Lake Elsinore Municipal Code Regulation of
Medical Marijuana Dispensaries is hereby amended to read as follows:
Chapter 17.156
MEDICAL MARIJUANA DISPENSARIES AND CULTIVATION
Sections:
17.156.010 Definitions.
17.156.020 Medical Marijuana Dispensaries Prohibited.
17.156.030 Medical Marijuana Cultivation
17.156.040 Enforcement
17.156.010 Definitions.
“Cultivation” means the planting, growing, harvesting, drying or processing of any
marijuana plants or any part thereof, for medical use consistent with the Compassionate
Use Act (California Health and Safety Code Section 11362.5) and the Medical Marijuana
Program Act (California Health and Safety Code Section 11362.7 et seq.).
“Medical Marijuana Dispensary” or “Dispensary” means any facility or location where
medical marijuana is made available to or distributed by or distributed to one (1) or more
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of the following: a primary caregiver, a qualified patient, or a patient with an identification
card. All three of these terms are identified in strict accordance with California Health and
Safety Code Section 11362.5 et seq. A medical marijuana dispensary shall not include
the following uses, as long as the location of such uses is otherwise regulated by this
code or applicable law: A clinic licensed pursuant to Chapter 1.05 of Division 2 of the
Health and Safety Code; A healthcare facility licensed pursuant to Title 2 of Divisions 2
of the Health and Safety Code; A facility licensed pursuant to Title 2 of Division 2 of the
Health and Safety Code; A residential care facility for persons with chronic life-threatening
illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; A
residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the
Health and Safety Code; A residential hospice, or a home health agency licensed
pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as such use
complies strictly with applicable law, including but not limited to, Health and Safety Code
Section 11362.5 et seq.
“Parcel” means any parcel of real property that may be separately sold in compliance with
the Subdivision Map Act (California Government Code Section 66410 et seq.).
“Occupied” means currently, presently, and lawfully utilized as the primary dwelling of one
or more persons.
“Outdoor” means any location within the city that is not within a fully enclosed, occupied
(as defined in this section) dwelling, dwelling unit or housing unit.
17.156.020 Medical Marijuana Dispensaries Prohibited.
Medical marijuana dispensaries are prohibited in all City zones, and no license, use
permit, temporary permit, or permit shall be issued therefor.
17.156.030 Medical Marijuana Cultivation.
A. No person owning, renting, leasing, occupying or having charge or possession of
any parcel shall cause or allow such parcel to be used for the outdoor cultivation of any
marijuana plant.
B. No person owning, renting, leasing, occupying, or having charge or possession of
any parcel shall cause or allow indoor cultivation of marijuana on such parcel to be visible
from any street, sidewalk, or other place freely accessible by the public.
C. No license, use permit, temporary permit, or permit shall be issued for the
cultivation of marijuana within the City.
D. Compliance with Building, Fire Code and Permitting Requirements. Any person(s)
cultivating medical marijuana with the use of grow lights, fans, ventilation devices or any
other electrical or mechanical equipment shall comply with all applicable building and fire
code requirements adopted by the City of Lake Elsinore, and shall obtain all permits
required for such installation.
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17.156.040 Enforcement.
Violations of this chapter shall be considered a public nuisance, and may be enforced
according to the procedures set forth in Chapter 8.18 and by the enforcement remedies
conferred upon the City by Civil Code Section 3494, Code of Civil Procedure Section 731,
Government Code Section 38773, or other lawful authority. Nothing in this provision is
intended to impair any viable legal defense to a person using or in possession of medical
marijuana pursuant to the Compassionate Use Act (California Health and Safety Code
Section 11362.5) or the Medical Marijuana Program Act (California Health and Safety
Code Section 11362.7 et seq.). Nothing in this chapter is intended to authorize the
cultivation, possession or use of marijuana for nonmedical purposes in violation of state
or federal law. [Ord. 13-1; Ord. 12-4. DC 2012 § 122-57].
SECTION 5. If any section, subsection, sentence, clause, phase, or portion of this
Ordinance is for any reason held 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 hereby declares that it would have adopted
this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase or
portion thereof, irrespective of the fact that any one or more sections, subsections,
subdivisions, sentences, clauses, phrases or portions might subsequently be declared
invalid or unconstitutional.
SECTION 6. This Ordinance shall take effect thirty (30) days after the date of its
final passage. The City Clerk shall certify as to adoption of this Ordinance and cause this
Ordinance to be published and posted in the manner required by law.
INTRODUCED at a regular meeting of the City Council of the City of Lake Elsinore,
California, on the day of , 2016, and ADOPTED at a regular
meeting of the City Council of the City of Lake Elsinore, California, on the ____ day of
________, 2016.
____________________________________
Mayor Brian Tisdale
City of Lake Elsinore City Council
ATTEST:
______________________________
Susan Domen, City Clerk
APPROVED AS TO FORM:
_____________________________
Barbara Zeid Leibold, City Attorney
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