HomeMy WebLinkAboutOrdinance No. 2016-O9ORDINANCE NO. 2016-09
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF AZUSA, CALIFORNIA, ENACTED PURSUANT ,TO
CALIFORNIA GOVERNMENT CODE SECTION 65858 ESTABLISHING
A TEMPORARY MORATORIUM ON MARIJUANA USES PENDING THE
ENACTMENT OF AN UPDATE TO THE CITY'S MUNICIPAL CODE
WHEREAS, the City of Azusa, California (the "City") is a municipal corporation, duly
organized under the constitution and laws of the State of California; and
WHEREAS, California Government Code section 65800 et seq. authorizes the adoption
and administration of zoning laws, ordinances, rules and regulations by cities as a means of
implementing the General Plan; and
WHEREAS, the City passed Ordinance No. 2016-01 on January 19, 2016; and
WHEREAS, the City desires to continue to ban all marijuana dispensaries, cultivation,
and delivery service land uses within City Limits to the extent allowed by California law; and
WHEREAS, on June 28, 2016, the Secretary of State certified Proposition 64, the
Control, Regulate, and Tax Adult Use of Marijuana Act ("AUMA"), for the November 8, 2016
ballot; and
WHEREAS, the AUMA would become law if a majority of the electorate votes "Yes" on
the proposition; and
WHEREAS, the AUMA would regulate, among other items, the use of marijuana for
personal and commercial purposes, including the recreational use of marijuana by adults over 21
years of age; and
WHEREAS, to regulate personal use of marijuana the AUMA would add Section11362.1
to the Health and Safety Code, which makes it "lawful under state and local law" for persons 21
years of age or older to "possess, process, transport, purchase, obtain, or give away to persons 21
years of age or older without any compensation whatsoever" up to 28.5 grams of marijuana in the
form of concentrated cannabis or not more than eight grams of marijuana in the form of
concentrated cannabis contained in marijuana products; and
WHEREAS, the AUMA would make it lawful for those individuals to "possess, plant,
cultivate, harvest, dry, or process not more than six living marijuana plants and possess the
marijuana produced by the plants; and
WHEREAS, the AUMA would make it lawful for those individuals to smoke or ingest
marijuana or marijuana products; and
WHEREAS, should the AUMA pass, many of its provisions would take effect on
November 9, 2016; and
WHEREAS, to regulate commercial use of marijuana, the AUMA would add Division 10
(Marijuana) to the Business & Professions Code, which grants state agencies "the exclusive
authority to create, issue, renew, discipline, suspend, or revoke" licenses for businesses including
the transportation, storage, distribution, sale, cultivation, manufacturing, and testing of marijuana;
and
WHEREAS, the AUMA provides that the above state agencies shall promulgate rules and
regulations and shall begin issuing licenses under Division 10 by January 1, 2018; and
WHEREAS, the AUMA states that a local jurisdiction shall not prevent transportation of
marijuana or marijuana products on public roads by a licensee transporting marijuana or
marijuana products in compliance with Division 10; and
WHEREAS, the AUMA would authorize cities to "reasonably regulate" without
completely prohibiting cultivation of marijuana inside a private residence or inside an "accessory
structure to a private residence located upon the grounds of a private residence that is fully
enclosed and secure'; and
WHEREAS, the AUMA would authorize cities to completely prohibit outdoor cultivation
on the grounds of a private residence, up to and until a "determination by the California Attorney
General that nonmedical use of marijuana is lawful in the State of California under federal law";
and
WHEREAS, the AUMA would authorize cities to completely prohibit the establishment
or operation of any marijuana business licensed under Division 10 within its jurisdiction,
including marijuana dispensaries, marijuana retailers, and marijuana delivery services; and
WHEREAS, absent appropriate local regulation authorized by the AUMA, state
regulations will control; and
WHEREAS, the "Medical Marijuana Regulation and Safety Act" ("MMRSA"), which
took effect January 1, 2016, regulates use of marijuana for medical purposes; and
WHEREAS, the MMRSA contains a provision which provides that the State shall
become the sole authority for regulation under certain parts of the Act unless local governments
pass their own regulations; and
WHEREAS, in May 2013, the California Supreme Court held in City of Riverside v.
Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013) that cities have
the authority to regulate or ban outright medical marijuana land uses; and
WHEREAS, the California Attorney General's August 2008 Guidelines for the Security
and Non -Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other
concentration of marijuana in any location or premises without adequate security increases the
risk that nearby homes or businesses may be negatively impacted by nuisance activity such as
loitering or crime; and
WHEREAS, under the Federal Controlled Substances Act, the use, possession, and
cultivation of marijuana are unlawful and subject to federal prosecution without regard to a
claimed medical need; and
WHEREAS, the indoor cultivation of marijuana has potential adverse effects to
the health and safety of the occupants; including structural damage to the building due to
increased moisture and excessive mold growth which can occur and can pose a risk of fire and
electrocution; additionally, the use of pesticides and fertilizers can lead to chemical contamination
within the structure; and
WHEREAS, based on the experiences of other cities, these negative effects on the public
health, safety, and welfare are likely to occur, and continue to occur, in the City due to the
establishment and operation of marijuana cultivation, processing, and distribution uses; and
WHEREAS, based on the findings above the potential establishment of marijuana
cultivation and other uses in the City without regulation poses a current and immediate threat to
the public health, safety, and welfare in the City due to the negative land use and other impacts of
such uses as described above; and
WHEREAS, the issuance or approval of business licenses, subdivisions, use permits,
variances, building permits, or any other applicable entitlement for marijuana dispensaries,
cultivation, manufacturers and delivery will result in the aforementioned threat to public health,
safety, or welfare; and
WHEREAS, it is in the interest of the City, its residents, and its lawfully permitted
businesses that City staff undertake a study to consider zoning, zoning ordinance amendments,
and/or other measures to regulate the establishment and operation of marijuana dispensaries,
cultivation, manufacturers, and delivery of marijuana uses in the City; and
WHEREAS, California Government Code Section 65858 expressly authorizes the City
Council to adopt by four-fifths (4/5) vote, without following the procedures otherwise required
for the adoption of a zoning ordinance, an urgency ordinance which is necessary for the
immediate protection of the public health, safety, and welfare; and
WHEREAS, it is the present intention of the City Council to keep this Urgency
Ordinance in effect only until the adoption of an ordinance establishing regulations regarding
commercial and industrial cultivation, processing, and distribution of marijuana in the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES
ORDAIN AS FOLLOWS:
SECTION 1. The City Council of the City of Azusa hereby finds and determines that all
of the above Recitals are true and correct and incorporates such Recitals into this Ordinance as if
sully set forth herein.
SECTION 2. Findings.
The City Council hereby finds, determines, and declares that this Urgency Ordinance
adopted pursuant to California Government Code Section 65858 is necessary because:
A. Certain provisions of the AUMA become effective November 9, 2016, and contain
provisions which allow for local governments to reasonably regulate or ban certain activities
thereunder.
B. To allow time for the City to consider, study, and enact regulations or a ban for
various marijuana cultivation, processing, and distribution uses, it is necessary to temporarily
suspend the establishment of any uses or the approval of any and all use permits, variances,
building permits, or any other entitlement or permit authorizing the establishment of marijuana
cultivation uses, marijuana processing uses, and marijuana dispensaries as defined herein, as such
uses may be in conflict with the development standards and implementation regulations that the
City will ultimately impose after the City has considered and studied this issue, which shall be
accomplished within a reasonable time.
C. A moratorium will provide the City with time to study marijuana cultivation uses,
marijuana processing uses, and marijuana dispensaries and potential impacts such land uses may
have on the public health, safety, and welfare.
D. Without the imposition of a temporary moratorium on the establishment of
marijuana cultivation, the City anticipates that one (1) or more marijuana cultivation uses may
locate in the City before a non -urgency ordinance would become effective, and that such uses
may pose serious risks to the public health, safety, and welfare.
E. There is a current and immediate threat to the public health, safety, and welfare of
the City and its community, thereby necessitating the immediate enactment of this moratorium as
an urgency ordinance in order to ensure that permits for such facilities and uses are established
only under adequate regulations. Imposition of a moratorium will allow the City sufficient time to
conclude the preparation and enactment of a comprehensive ordinance for the regulation of these
uses.
SECTION 3. Urgent Need. Based on the foregoing recitals and findings, all of which are
deemed true and correct, this interim ordinance is urgently needed for the immediate preservation
of the public health, safety, and welfare. This interim ordinance shall take effect immediately
upon adoption and shall be of no further force and effect forty-five (45) days following the date of
its adoption unless extended in accordance with the provisions set forth in Government Code
Section 65858.
SECTION 4. Definitions.
For purposes of this ordinance, the following definitions shall apply:
A. "Commercial marijuana activity" includes the cultivation, possession,
manufacture, distribution, processing, storing, laboratory testing, labeling, transportation,
distribution, delivery or sale of marijuana and marijuana products.
B. "Cultivation" means any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of marijuana.
C. "Delivery" means the commercial transfer of marijuana or marijuana products to a
customer. 'Delivery" also includes the use by a retailer of any technology platform owned and
controlled by the retailer, or independently licensed under California law, that enables customers
to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana
products.
D. "Distribution" means the procurement, sale, and transport of marijuana and
marijuana products between entities for commercial use purposes.
E. "Licensee" means the holder of any state issued license related to marijuana
activities, including but not limited to licenses issued under Division 10 of the Business &
Professions Code.
F. "Manufacture" means to compound, blend, extract, infuse, or otherwise make or
prepare a marijuana product.
G. "Marijuana" means all parts of the plant Cannabis sativa L., 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 does not
include:
i. Industrial hemp, as defined in Section 11018.5 of the California Health & Safety
Code; or
ii. The weight of any other ingredient combined with marijuana to prepare topical or
oral administrations, food, drink, or other product.
H. "Marijuana accessories" means any equipment, products or materials of any kind
which are used, intended for use, or designed for use in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing,
testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing marijuana,
or for ingesting, inhaling, or otherwise introducing marijuana or marijuana products into the
human body.
I. "Marijuana products" means marijuana that has undergone a process whereby the
plant material has been transformed into a concentrate, including, but not limited to, concentrated
cannabis, or an edible or topical product containing marijuana or concentrated cannabis and other
ingredients.
J. "Person" includes any individual, firm, co -partnership, joint venture, association,
corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any
other group or combination acting as a unit, and the plural as well as the singular.
K. "Private residence" means a house, an apartment unit, a mobile home, or other
similar dwelling. ,
L. "Sale" includes any transaction whereby, for any consideration, title to marijuana
is transferred from one person to another, and includes the delivery of marijuana or marijuana
products pursuant to an order placed for the purchase of the same and soliciting or receiving an
order for the same, but does not include the return of marijuana or marijuana products by a
licensee to the licensee from whom such marijuana or marijuana product was purchased.
M. Any term defined in this Section also means the very term as defined in the
California Business & Professions Code or the California Health & Safety Code, unless otherwise
specified.
SECTION 5. Prohibited Use.
For the period of this ordinance or any extension thereof marijuana dispensaries,
cultivation, manufacturers, and delivery of marijuana, as defined herein, shall be considered
prohibited uses in all zoning districts of the City. During the effective period of this ordinance, no
such use shall be established or continued if previously established, and no use permit, variance,
building permit, or any other entitlement or permit, whether administrative or discretionary, shall
be approved or issued for the establishment or operation of a dispensary, marijuana cultivation
use, marijuana manufacturing use, or delivery or marijuana as defined herein in any zoning
district, and no person shall otherwise establish such businesses or operations in any zoning
district.
An application for a permit may be processed during the moratorium, and any extension of
the moratorium. However, the application shall be processed at the applicant's sole cost and
expense and with the understanding that no permit shall be issued until the moratorium, including
an extension of the moratorium, has expired and that the permit may not be issued if it is
inconsistent with any amendments to city laws, ordinances, or regulations that are amended by
reason of review that occurs during the moratorium.
SECTION 6. Penalty for Violation.
No person, whether as principal, agent, employee or otherwise, shall violate, cause the
violation of, or otherwise fail to comply with any of the requirements of this section. Every act
prohibited or declared unlawful, and every failure to perform an act made mandatory by this
section, shall be a misdemeanor or an infraction, at the discretion of the City Attorney or the
District Attorney. In addition to the penalties provided in this section; any condition caused or
permitted to exist in violation of any of the provisions of this section is declared a public nuisance
and may be abated as provided in Sections 1-10 and 1-11 of this Municipal Code and/or under
state law.
SECTION 7. Authority.
This interim urgency ordinance is enacted pursuant to the authority conferred upon the City
Council of the City of Azusa by Government Code Section 65858, and therefore shall be in full force
and effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This interim
urgency ordinance shall continue in effect for forty-five (45) days from the date of its adoption and
shall thereafter be of no further force and effect unless, after notice pursuant to Government Code
Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an
additional period of time pursuant to Government Code 65858. Government Code 65858 further
provides that such an urgency measure may be extended following compliance with that section for
up to an additional twenty-two (22) months and fifteen (15) days beyond the original forty-five (45)
day period.
SECTION 8. Council Direction.
During the period of this ordinance, and any extension thereof, the City Council hereby
directs City staff to: (1) review and consider options for the regulation or prohibition of marijuana
cultivation, marijuana manufacturing, and marijuana distribution uses in the City, including but
not limited to the development of appropriate rules and regulations governing the location and
operation of such uses; and (2) to issue a written report describing the measures which the City
has taken to address the conditions which led to the adoption of this ordinance with the City
Council ten (10) days prior to the expiration of this interim urgency ordinance, or any extension
thereof, and such report shall be made available to the public.
SECTION 9. CEQA. This Ordinance is not a project within the meaning of Section 15378
of the State of California Environmental Quality Act ("CEQA") Guidelines, because it has no
potential for resulting in physical change in the environment, directly or indirectly. The City Council
further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this
Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is covered by
the general rule that CEQA applies only to projects which have the potential for causing a significant
effect on the environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not subject to
CEQA. The City Council, therefore, directs that a Notice of Exemption be filed with the County
Clerk of the County of San Bernardino in accordance with CEQA Guidelines.
SECTION 10. Severability. If any section, subsection, subdivision, sentence, clause, phrase,
or portion of this Ordinance for any reason is 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 thereof be declared invalid or unconstitutional.
SECTION 11. Custodian of Records. The documents and materials that constitute the record
of proceedings on which this Ordinance is based are located at the City Clerk's office located at 213
E Foothill Boulevard, Azusa CA 91702. The custodian of these records is the City Clerk.
SECTION 12. Restatement of Existing Law. Neither the adoption of this ordinance nor
the repeal of any,other ordinance of this City shall in any manner affect the prosecution for
violations of ordinances, which violations were committed prior to the effective date hereof, nor
be construed as a waiver of any license or penalty or the penal provisions applicable to any
violation thereof. The provisions of this ordinance, insofar as they are substantially the same as
ordinance provisions previously adopted by the City relating to the same subject matter or relating
to the enumeration of permitted uses under the City's zoning code, shall be construed as
restatements and continuations, and not as new enactments.
SECTION 13. The City Clerk shall certify as to the adoption of this Urgency Ordinance
and shall cause it to be published within fifteen (15) days of the adoption and shall post a certified
copy of this Urgency Ordinance, including the vote for and against the same, in the Office of the
City Clerk, in accordance with California Government Code Section 36933.
PASSED,APPROVED and ADOPTED at a regular meeting of the City Council on the
17`h day of October, 2016, by the following vote:
"
seph R. Rocha, Mayor
ATTEST:
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF AZUSA )
CERTIFICATION
I HEREBY CERTIFY that the foregoing Ordinance No. was passed and adopted by the City
Council of the City of Azusa at a regular meeting on the 17`h day of October, 2016, by the
following vote:
AYES: COUNCILMEMBERS: CARRILLO, GONZALES, ALVAREZ, ROCHA
NOES: COUNCILMEMBERS: NONE
y�1�r�K�li�cIu�_ tl.yiu•I:I
City Clerk
APPROVED AS TO FORM:
P, '
Marco. Martinez
Best Bet & Krieger P