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STAFF REPORT PLANNING COMMISSION REGULAR MEETING OF DECEMBER 15, 2015
PREPARED BY:
Martin Lysons, Assistant City Attorney
[email protected]
AGENDA ITEM & FILE NUMBER:
Item No. 5; Rezone No. 15-009
PROJECT DESCRIPTION:
An ordinance of the City Council of the City of Brentwood adding Chapter 17.780 to Title 17 of the Brentwood Municipal Code to prohibit marijuana cultivation, dispensaries, and deliveries within the city of Brentwood.
PROJECT SIZE & LOCATION:
Citywide
GENERAL PLAN & ZONING:
Citywide
APPLICANT:
City of Brentwood
DATE OF NOTICE:
A notice of public hearing was published in the Brentwood Press on December 4, 2015.
PREVIOUS ACTIONS:
On September 26, 2006, the City Council unanimously voted to adopt Ordinance No. 838 to add Chapter 9.50 to the Brentwood Municipal Code prohibiting medical marijuana dispensaries pending the completion of studies related to the impacts associated with such dispensaries. On December 11, 2007, the City Council introduced and waived the first reading of Ordinance No. 855 to amend Chapter 9.50 of the Brentwood Municipal Code to Permanently Prohibit Medical Marijuana Dispensaries. On January 8, 2008, the City Council waived the second reading and adopted Ordinance No. 855 to amend Chapter 9.50 of the Brentwood Municipal Code to Permanently Prohibit Medical Marijuana Dispensaries.
BACKGROUND: On October 9, 2015, Governor Brown signed into law three related bills pertaining to the regulation of marijuana; AB 243, AB 266, and SB 643. These bills are collectively known as the Medical Marijuana Regulation and Safety Act (the “Act”). The Act creates a joint regulation and permitting scheme comprised of state law and local ordinances. One of the bills, AB 243, takes away local control over licensing for medical marijuana cultivation within a city unless that city has its own land use regulations or ordinances in place by March 1, 2016. Therefore, if the City of Brentwood does not adopt such an ordinance by January 29, 2016 (30 days prior to the
deadline), the State will become the sole licensing authority for medical marijuana cultivation applicants within Brentwood city limits. The attached ordinance meets the criteria outlined by the State for the required land use regulations. In order to maintain local control and to clarify the fact that the cultivation of marijuana, both indoors and outdoors, and the delivery of marijuana, and marijuana dispensaries are prohibited in the city of Brentwood, staff is proposing this zoning ordinance amendment, which will serve as a companion ordinance to a future ordinance under Title 9 regulating personal conduct regarding marijuana. As the Title 9 ordinance is not a zoning ordinance, it will go directly to the Council for their consideration in January, 2016. PROJECT DESCRIPTION AND ANALYSIS: Currently, medical marijuana dispensaries are defined in Section 9.50.020 of the Brentwood Municipal Code (“BMC”) as “any facility or location, whether fixed or mobile, where medical marijuana is provided, sold, made available, or otherwise distributed to one or more of the following: a primary caregiver, a qualified patient or a person with an identification card.” BMC Section 9.50.030 prohibits medical marijuana dispensaries and provides that “The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary.” The proposed ordinance expands this prohibition to apply to other uses of marijuana, including establishment and operation of medical marijuana dispensaries, marijuana cultivation, commercial cannabis activities, and delivery or transport of marijuana. The ordinance also includes some state-mandated exceptions pertaining to deliveries or transport of medical marijuana to a qualified patient or person with an identification card, as allowable under the California Health and Safety Code section 11362.7, if the person delivering the marijuana is the primary caregiver within the meaning of Health and Safety Code sections 11362.5 and 11362.7(d). As noted above, this ordinance adds Chapter 17.780 to Title 17 of the BMC. As such, this is a zoning ordinance, which regulates the use of land within all zoning districts in the city, as opposed to regulating personal behavior. The current prohibition in Title 9 does not regulate the use of land, so this ordinance will now allow the City code enforcement staff to take action against property owners who violate the ordinance or allow their tenants to violate the ordinance. The pending Title 9 ordinance will continue to regulate personal behavior, but it will be expanded to include the same prohibitions as this proposed zoning ordinance. GENERAL PLAN CONSISTENCY: The proposed ordinance amendment would be consistent with the existing General Plan, specifically the Safety Element, which includes the following goals: Goal SA 3: Protect the safety of life and property throughout the Brentwood community by providing high quality emergency services. Goal SA 4: Protect citizens from dangers related to the movement, storage, and manufacture of hazardous materials.
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LAND USE AND DEVELOPMENT COMMITTEE: The proposed ordinance was brought before the Land Use and Development Committee at a special meeting on December 7, 2015. The Committee did not recommend any changes to the text of the ordinance and recommended that it be brought forward to the Commission for its recommendation. ENVIRONMENTAL DETERMINATION: This Ordinance is exempt from the requirements of the California Environmental Quality Act (codified at California Public Resources Code §§ 21000, et seq., and as further governed by 14 California Code of Regulations §§ 15000, et seq., collectively, “CEQA”) because it is covered by the general rule, found in 14 CCR § 15061(b)(3), that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Here, the adoption of an Ordinance clarifying the City of Brentwood’s existing prohibition on marijuana dispensaries and the various new prohibitions listed above has no potential for causing a significant effect on the environment, and the Ordinance is thus not subject to CEQA. RECOMMENDATION: Adopt Resolution No. 15-060 recommending that the Council approve the proposed Ordinance. ATTACHMENTS: Resolution No. 15-060
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PLANNING COMMISSION RESOLUTION NO. 15-060 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF BRENTWOOD RECOMMENDING THAT THE CITY COUNCIL APPROVE AN ORDINANCE ADDING CHAPTER 17.780 TO TITLE 17 OF THE BRENTWOOD MUNICIPAL CODE TO PROHIBIT MARIJUANA CULTIVATION, DISPENSARIES AND DELIVERIES WITHIN THE CITY OF BRENTWOOD. WHEREAS, 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; and WHEREAS, 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; and WHEREAS, In 1996, the voters of the State of California approved Proposition 215 (the "Act;" Health and Safety (H&S) Code Section 11362.5 et seq.); and WHEREAS, 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; and WHEREAS, 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 medical marijuana, including the collective or cooperative cultivation of medical marijuana; and WHEREAS, 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. This legislation preserves local control over marijuana facilities and land uses, including the authority to completely prohibit marijuana dispensaries, cultivation and deliveries; and WHEREAS, the proposed Ordinance, attached hereto as Exhibit A, meets the criteria outlined by the State for the required land use regulations and allows the City of Brentwood to maintain local control over regulation and permitting for the cultivation of marijuana, delivery of marijuana, and marijuana dispensaries, and the City seeks to prohibit such activities; and WHEREAS, a Notice of Public Hearing was published in the Brentwood Press on December 4, 2015, in accordance with City policies and Government Code 65090; and WHEREAS, the Land Use and Development Committee has recommended approval of the proposed Ordinance; and
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WHEREAS, in relation to this Ordinance, the Planning Commission has considered the staff report, supporting documents, public testimony, and all appropriate information that has been submitted, and has studied the compatibility of this request within all zoning districts. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Brentwood: A.
Hereby finds that: 1. The proposed Ordinance has been processed in accordance with the applicable provisions of the California Government Code and the California Environmental Quality Act; and 2. The proposed Ordinance will not result in any adverse impacts to properties citywide; and 3. The proposed Ordinance will provide standards resulting in land uses that are consistent and compatible with surrounding uses; and 4. The proposed development will clearly result in a more desirable use of land, and a better physical environment than would be possible under current zoning; and 5. Adoption of the proposed Ordinance will be in the best interests of the City, and will be consistent with the General Plan, including all relevant Elements thereof, and with any applicable Specific Plan adopted by the City, as well as the Zoning Ordinance.
B.
Hereby recommends that the City Council approve Ordinance No. 15-009 as shown on Exhibit "A".
This action is final unless an appeal is filed pursuant to Chapter 17.880 of the Brentwood Municipal Code within ten (10) calendar days following Planning Commission action.
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ADOPTED by the Planning Commission of the City of Brentwood at its regular meeting of December 15, 2015, by the following vote: AYES: NOES: ABSENT: ABSTAIN:
APPROVED:
Lance Crannell Planning Commission Chairperson ATTEST:
Erik Nolthenius Planning Manager
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EXHIBIT A ORDINANCE NO. ___ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ADDING CHAPTER 17.780 TO TITLE 17 OF THE BRENTWOOD MUNICIPAL CODE TO PROHIBIT MARIJUANA CULTIVATION, DISPENSARIES AND DELIVERIES WITHIN THE CITY OF BRENTWOOD The City Council of the City of Brentwood does ordain as follows: Section 1. 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 et seq.). 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 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 1
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. This legislation preserves local control over marijuana facilities and land uses, including the authority to completely prohibit marijuana dispensaries, cultivation and deliveries. I. Several California cities and counties have experienced serious adverse impacts associated with and resulting from medical marijuana dispensaries, cultivation sites, and delivery services. 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. J. 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. K. 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. L. 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. M. 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. N. It is reasonable to conclude that medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries could cause similar adverse impacts on the public health, safety, and welfare in Brentwood. O. In order to protect the public health, safety, and welfare, the City Council desires to add Brentwood Municipal Code Chapter 17.780 to prohibit, in express terms, medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries.
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Section 2. Adding Chapter 17.780. Chapter 17.780 is hereby added to Title 17 of the Brentwood Municipal Code to read in its entirety as shown on the attached Exhibit A, which is incorporated herein by this reference. Section 3. Compliance with CEQA. The City Council hereby finds that the action to adopt this Ordinance to add Chapter 17.780 to Title 17 of the Brentwood Municipal Code is exempt from the provisions of the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) (CEQA) because the City Council hereby 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). Section 4. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance or its attachments is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, the holding shall not affect the validity or enforceability of the remaining provisions, and the City Council declares that it would have adopted each provision of this ordinance irrespective of the validity of any other provision. Section 5. Inclusion in the Brentwood Municipal Code. It is the intention of the Brentwood City Council that the text in Exhibit A of this Ordinance be made a part of the Brentwood Municipal Code and that the text may be renumbered or relettered and the word "Ordinance" may be changed to "Section," "Chapter," or such other appropriate word or phrase to accomplish this intention. Section 6. Publication and Effective Date. This Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the Ordinance in accordance with that law. Further, the City Clerk is directed to cause Chapter 17.780, as provided in Exhibit A, to be entered in the City of Brentwood Municipal Code. This Ordinance shall take effect and be in force 30 days following its adoption.
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EXHIBIT A Chapter 17.780 Medical Marijuana Facilities Sections: 17.780.010 17.780.020 17.780.030 17.780.040 17.780.050 17.780.060 17.780.070 17.780.080
Purpose Definitions Medical Marijuana Dispensaries Prohibited Marijuana Cultivation Prohibited Commercial Cannabis Activities Prohibited Marijuana Delivery and Transport Prohibited State and Federal Law Prohibitions Enforcement
17.780.010 Purpose The purpose and intent of this chapter is to prohibit marijuana cultivation facilities, medical marijuana dispensaries, medical marijuana deliveries, and commercial cannabis activities, as defined below, within the City limits. It is recognized that it is a federal violation under the Controlled Substances Act to possess or distribute marijuana even if for medical purposes. Additionally, there is evidence of an increased incidence of crime-related secondary impacts in locations associated with marijuana cultivation facilities and medical marijuana dispensaries and in connection with medical marijuana deliveries, which is contrary to policies that are intended to promote and maintain the public’s health, safety, and welfare. 17.780.020 Definitions The following definitions shall apply to the provisions of this chapter: “Commercial cannabis activity” shall have the meaning set forth in Business and Professions Code section 19300.5(k). “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. "Establish" or "operate" a marijuana cultivation facility, medical marijuana dispensary, or commercial cannabis activity means and includes any of the following: 1. The opening or commencement of the operation of a marijuana cultivation facility, medical marijuana dispensary, or commercial cannabis activity; 2. The conversion of an existing business, facility, use, establishment, or location to a marijuana cultivation facility, medical marijuana dispensary, or commercial cannabis activity; 3. The addition of a marijuana cultivation facility, medical marijuana dispensary, or commercial cannabis activity to any other existing business, facility, use, establishment or location. "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, 4
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, 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. "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 Health and Safety Code § 11362.7. “Marijuana cultivation facility” means any business, facility, use, establishment, property, or location where the cultivation of marijuana occurs. "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 by or to three or more people. A "medical marijuana dispensary" does not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law and as long as any use of marijuana complies strictly with applicable law including, but not limited to, Health and Safety Code § 11362.5 et seq.: 1.
A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety
Code; 2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; 3. 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; 4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; 5. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code. 17.780.030 Medical Marijuana Dispensaries Prohibited Medical marijuana dispensaries are prohibited in all zoning districts in the city and shall not be established or operated anywhere in the city. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary. No person may be the lessor of property where a medical marijuana dispensary is located. No person may participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any medical marijuana dispensary in the city.
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17.780.040 Marijuana Cultivation Facilities Prohibited A. Marijuana cultivation facilities are prohibited in all zoning districts in the city and shall not be established or operated anywhere in the city. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a marijuana cultivation facility. No person may be the lessor of property where a marijuana cultivation facility is located. B. No person may participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any marijuana cultivation facility in the city. 17.780.050 Commercial Cannabis Activities Prohibited Commercial cannabis activities are prohibited in all zoning districts in the city and shall not be established or operated anywhere in the city. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a commercial cannabis activity. No person may be the lessor of property where a commercial cannabis activity is located. No person may participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any commercial cannabis activity in the city. 17.780.60 Marijuana Delivery and Transport Prohibited A. Origination or acceptance of deliveries of marijuana for any purpose is prohibited in all zoning districts in the city. B. No person and/or entity may deliver or transport marijuana, including medical marijuana, from any fixed or mobile location, either inside or outside the city, to any person in the city. C. As an exception to subsections A and B above, a person may deliver or transport medical marijuana to a qualified patient or person with an identification card, as those terms are defined in Health and Safety Code section 11362.7, for whom he or she is the primary caregiver within the meaning of Health and Safety Code sections 11362.5 and 11362.7(d). 17.780.070 State and Federal Law Prohibitions and Restrictions A. The purpose of this chapter is to prohibit all commercial cannabis activities for which a State license is required. Accordingly, the city shall not issue any permit, license or other entitlement for any commercial cannabis activity for which a State license is required. B. Nothing contained in this section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law. 17.780.080 Enforcement The city may enforce this chapter in any manner permitted by law. The violation of this chapter shall be and is hereby declared to be a public nuisance and contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief. In addition, violators may be punished pursuant to Chapter 1.08 of this Code. These remedies are deemed to be cumulative and in addition to all other remedies under this Code and state and federal law.
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