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HomeMy WebLinkAboutD-1 Staff Report - Code Amendment No. 242 - Marijuana Uses FinalPUBLIC HEARING ITEM D-1 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: TROY L. BUTZLAFF, ICMA-CM, CITY MANAGER FROM: KURT CHISTIANSEN, FAICP, ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR DATE: JUNE 5, 2016 SUBJECT: FIRST READING OF ORDINANCE AMENDING SECTION 88.42.035 (MEDICAL MARIJUANA USES) OF CHAPTER 88 (DEVELOPMENT CODE) OF AZUSA CODE TO REGULATE THE PERSONAL, MEDICAL AND COMMERCIAL USE OF MARIJUANA SUMMARY: On November 8, 2016, California voters approved Proposition 64, also known as Adult Use of Marijuana Act (AUMA), which legalized recreational use of marijuana for adults over 21 years of age, beginning on November 9, 2016. As of that date, AUMA immediately legalized possession, transport, purchase, use, and transfer of recreational marijuana for individuals 21 years of age or older. Under AUMA, adults can possess up to 28.5 grams of marijuana, up to 8 grams of marijuana in the form of concentrated cannabis, which may be present in marijuana products such as edibles, and up to six living marijuana plants, and any marijuana produced by those plants. It also legalized the cultivation of marijuana, marijuana delivery services, and recreational marijuana retail services. However, AUMA allows for local control of marijuana uses. It allows local governments to: Ban all marijuana-related businesses outright, including marijuana dispensaries, delivery services, and any recreational marijuana retail services. Ban outdoor cultivation of marijuana, unless the California Attorney General determines marijuana is no longer illegal under federal law (If marijuana is federally legalized, outdoor cultivation could be regulated, but not prohibited). Reasonably regulate indoor cultivation in private residences, but not ban it outright. AUMA would allow individuals to grow up to six marijuana plants in their home, and to possess all of the marijuana those plants provide. Prior to the passage of AUMA by California voters, the City Council adopted a temporary moratorium on marijuana uses pending the enactment of an update to the City’s Municipal Code. City staff, in conjunction with the City Attorney’s Office, has drafted proposed regulations surrounding the personal, medical and commercial use of marijuana and the issuance of Residential Indoor Marijuana Cultivation (RIMC) permits. The proposed action introduces for first reading by APPROVED CITY COUNCIL 6/5/2017 Code Amendment Regulating Marijuana Uses June 5, 2017 Page 2 of 6 title only an Ordinance amending Section 88.42.035 (Medical Marijuana Uses) of Chapter 88 (Development Code) of the Azusa Municipal Code to regulate the personal, medical, and commercial use of marijuana and adopts two resolutions pertaining to the setting fees for RIMC permits and the use of Live Scan Technology in the issuance of these permits. RECOMMENDATION: Staff recommends that the City Council take the following actions: 1) Find the requested project exempt from the California Environmental Quality Act (CEQA); and 2) Open the Public Hearing, receive public testimony, close the Public Hearing, and introduce for first reading, by title only, Ordinance No. 2017-02, amending Section 88.42.035 (Medical Marijuana Uses) of Chapter 88 (Development Code) of the Azusa Municipal Code to regulate the personal, medical, and commercial use of marijuana; and 3) Adopt Resolution No. 2017-C35: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, ESTABLISHING FEES FOR RESIDENTIAL INDOOR MARIJUANA CULTIVATION (RIMC) PERMITS 4) Adopt Resolution No. 2017-C36: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, AUTHORIZING USE OF LIVE SCAN TECHNOLOGY TO ASSIST WITH RESIDENTIAL INDOOR MARIJUANA CULTIVATION (RIMC) PERMITS DISCUSSION: On October 17, 2016, the City Council passed an urgency ordinance prohibiting marijuana dispensaries, manufacturers, cultivation, delivery, and all other commercial marijuana activities in all zones of the City of Azusa. Last November, the voters approved Proposition 64, also known as the Adult Use of Marijuana Act (AUMA), which legalizes recreational marijuana use, cultivation and businesses. While AUMA does set some minimum standards for cities and counties regarding recr eational marijuana, it preserves significant local land use authority. This includes the ability to permit and regulate or ban marijuana businesses. On November 21, 2016, the City Council passed to extend an urgency ordinance prohibiting marijuana dispensaries, manufacturers, cultivation, delivery, and all other commercial marijuana activities in all zones of the City of Azusa. The ordinance was extended for a period of ten (10) months and fifteen (15) days, the temporary moratorium on marijuana uses pending the enactment of an update to the City’s Municipal Code. The moratorium expires on October 6, 2017. City staff, in conjunction with the City Attorney’s Office, has drafted proposed regulations surrounding the personal, medical and commercial use of marijuana and the issuance of Residential Indoor Marijuana Cultivation (RIMC) permits. Attached to this report is a proposed Ordinance that would Code Amendment Regulating Marijuana Uses June 5, 2017 Page 3 of 6 amend Section 88.42.035 of the Municipal Code (Development Code) to regulate the personal, medical and commercial use of marijuana and to provide procedures for City issued RIMC permits. On May 10, 2017, the City of Azusa Planning Commission conducted a duly noticed public hearing, upon hearing all testimonies from the public, the Commission recommended to City Council, approval of proposed Ordinance. ANALYSIS: As noted above, the City currently bans medical marijuana dispensaries, delivery services, and outdoor cultivation through its urgency ordinance. The City now wishes to codify those regulations and indoor cultivation regulations in its Municipal Code. These regulations are permissible because AUMA authorizes cities to “reasonably regulate” indoor cultivation of marijuana in private residences, ban outdoor cultivation of marijuana entirely unless it is federally legalized, and prohibit any marijuana- related business entirely. The City’s effort to “reasonably regulate” indoor marijuana cultivation is to codify procedures in the Municipal Code for Residential Indoor Marijuana Cultivation (RIMC) permits. The RIMC permit will require that any persons cultivating marijuana within residences be subject to certain regulatory standards, including a limitation to no more than six marijuana plants. For example, permit applications will not be approved unless the applicant is 21 or older, has no history of drug-related felonies, has no pending or past code enforcement actions in the City, and has paid all City taxes, fees, and other charges. The residence where the cultivation occurs must be the applicant’s primary dwelling (i.e., “grow houses” are prohibited) and must not be substandard; the cultivation area must be indoors and secured, must not be accessible to minors, must not be visible or detectible from the outside. Commercial transactions related to marijuana may not occur at the residence. Finally, violations of any permit requirements are grounds for permit revocation and enforcement actions. Live Scan Live Scan is a system for the electronic submission of applicant fingerprints and the subsequent automated background check and response. Live Scan technology replaces the process of recording an applicant’s fingerprints manually through a rolling process using ink and a fingerprint card by allowing fingerprints to be digitized and instantaneously transferred to central computers at the Department of Justice. Once fingerprints and data are received by the Department of Justice (DOJ), they are electronically processed by the DOJ, and an automatic response is generated if no criminal history matches are processed. Live Scan transmissions requiring analysis of a criminal record take slightly longer, but can be responded to by email as soon as a full analysis of the criminal history is conducted. The Live Scan process is a faster and more efficient means of conducting background checks, and provides the City with only the information it is requesting. For purposes of the RIMC Permit, the City will only learn whether an applicant has a conviction for selling, manufacturing, transporting, or cultivating a controlled substance within the last five years. Once the City has passed a resolution and completed the necessary applications to begin processing Live Scan data, the cost for any individual background check can be charged to the applicant as part of their Code Amendment Regulating Marijuana Uses June 5, 2017 Page 4 of 6 application process, meaning the cost to the City of processing any Live Scan application will be minimal. NOTICING: A legal notice of the public hearing on the pending Ordinance was published in the legal advertisement section of San Gabriel Valley Tribune newspaper on May 18, 2017. This notice was posted in three public places and posted on the City’s website at www.ci.azusa.ca.us. As of the date of this Staff Report, no public correspondence has been received ENVIRONMENTAL REVIEW: Staff has reviewed the project for conformance with the California Environmental Quality Act (CEQA) and determined that the activity is not subject to CEQA pursuant to Sections 15060(c)(2), 15060(c)(3) and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and 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 may have a significant effect on the environment, the activity is not subject to CEQA. ZONING CODE AMEDMENT FINDING OF FACTS: In order to approve the Zoning Code Amendment, the Planning Commission must make the following Finding of Facts as described per Azusa Municipal Code 88.51.060 – Zoning Amendments: A. That the proposed zoning code amendment is consistent with the goals, policies, and objectives of the General Plan, any applicable specific plan, development agreement, owner participation agreement or disposition and development agreement. The Municipal Code amendment conforms to the goals, objectives and policies of the General Plan, which provides for orderly, functional patterns of land uses, sensitive to the natural environment and meeting the long-term social and economic needs of the community. This City is exercising its police power granted under California Government Code Section 65800 et. seq. in regulating personal, medical, and commercial marijuana activities in the City. The proposed Municipal Code amendment is necessary to implement the General Plan and to provide for public safety, convenience and/or general welfare. This amendment is proposed and enacted to protect and preserve the public health, safety, welfare and convenience, and to enhance the quality of life of the citizens of the City. California cities that have permitted unregulated cultivation, marijuana dispensaries and delivery services have experienced negative affects to the public health, safety and welfare of its citizens. Cities that have permitted unregulated marijuana activities have experienced an overabundance and overconcentration of such uses, burglaries and takeover robberies, robberies of customers, an increase in crime in the vicinity of the dispensaries, illegal re-selling of marijuana obtained from dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana, Code Amendment Regulating Marijuana Uses June 5, 2017 Page 5 of 6 dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards, street dealers attempting to sell marijuana to dispensary customers, dispensary customers using marijuana and then driving under the influence of marijuana, the selling of illegal drugs other than marijuana in the dispensaries, and the selling of marijuana and marijuana products to minors. The proposed Municipal Code amendment conforms with the intent of Municipal Code, specifically that zones are created and land uses established to protect the physical, social and economic stability of residential, commercial, recreational and other land uses within the City to assure orderly and beneficial development; to protect existing resident and property owners from the adverse effects of incompatible uses; to reduce hazards to the public resulting from inappropriate land uses; and to establish Azusa as a safe community with a high quality of life for residents. The proposed Municipal Code amendment is consistent with provisions contained in the Municipal Code, specifically the land use regulation is being enacted to protect residential properties and dwellings from incompatible uses, light, glare, odors, visual blight and other objectionable conditions; and to protect adjacent properties from incompatible uses, light, glare, odors, visual blight, and other objectionable conditions resulting from uses having a higher intensity. The Municipal Code amendment is reasonable and beneficial at this time. The City desires to regulate marijuana land uses within the City limits. Although the City has adopted regulations, it is recommended that the language in the Municipal Code be updated to clearly meet the City’s desire to retain local control over these land uses in light of AUMA being passed by the voters. B. That the proposed zone change will not adversely affect surrounding properties. A zone change is not proposed as a component of this Code Amendment. Therefore, the proposed Development Code Amendment would not adversely affect surrounding properties because current land use and zoning designations will remain as they are. FISCAL IMPACT: Staff is recommending the City establish a related permitting fee to process the RIMC Permits. The total for each RIMC Permit fee shall be $426.00 and renewal fee for each permit shall be $213.00 plus associated fees for Live Scan. This amount, as required by law, represents the reasonable relationship between the fees to be collected and the cost incurred by the City for processing permit applications. The data compiled by City staff to calculate the estimated hours and costs for processing per applications is shown in Attachment 4. The proposed recommendation will increase the General Fund permit revenues by $2,127 ($425.3816 X 5) under a conservative forecast of five permits annually since this is brand new program, and each subsequent annual renewal will increase the General Fund revenues by an estimated amount of $1,064 ($212.6905 X 5) plus the actual cost of Live Scan. The City has the authority to impose fees, charges and rates under the police power granted by Article XI, Section 7 of the California Constitution. The City will follow the procedures outlined in the California Government Code to implement the permit fee. Code Amendment Regulating Marijuana Uses June 5, 2017 Page 6 of 6 Prepared by: Prepared by: Victor Ponto Manuel Muñoz Deputy City Attorney Associate Planner Reviewed and Approved: Fiscal Impact Reviewed by: Kurt Christiansen, FAICP Talika M. Johnson Economic and Community Development Director Director of Finance Reviewed and Approved: Reviewed and Approved: Louie F. Lacasella Troy L. Butzlaff, ICMA-CM Management Analyst City Manager Attachments: 1) Draft Ordinance No. 2017-02 for Section 88.42.035 – Marijuana Uses 2) Resolution No. 2017-C35 for Fee 3) Resolution No. 2017-C36 for Live Scan 4) Costs for Processing Applications ORDINANCE NO. 2017-02 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, AMENDING SECTION 88.42.035 OF THE MUNICIPAL CODE (DEVELOPMENT CODE) TO REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA 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 Urgency Ordinance No. 2016-O11, which prohibited marijuana dispensaries, manufacturers, cultivation, delivery and all other commercial marijuana activities in the City; 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. Ordinance No. 2017-02 updates the Municipal Code to effectuate that aim; and WHEREAS, on November 8, 2016, California voters moved to approve Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA”); and WHEREAS, AUMA regulates, 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 commercial use of marijuana, AUMA adds 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, 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, AUMA authorizes 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 AUMA, state regulations will control; and WHEREAS, the Medical Marijuana Regulation and Safety Act, which took effect January 1, 2016, regulates use of marijuana for medical purposes; and Ordinance No. 2017-02 June 5, 2017 Page 2 of 14 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, the City believes a Recreational Indoor Marijuana Cultivation (“RIMC”) permit is a reasonable requirement to ensure that all marijuana grown in the City is grown in code-compliant structures that reduce the risk of fire, mold, or other structural damage and contamination; and WHEREAS, the City has determined a RIMC permit is necessary to the public health, safety, and welfare in the City; and WHEREAS, the subject Municipal Code Amendment is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2), 15060(c)(3) and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and 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 may have a significant effect on the environment, the activity is not subject to CEQA; and WHEREAS, this Ordinance would amend section 88.42.035 of the Municipal Code to clarify the substantive objectives of the Municipal Code regarding the City’s regulation of marijuana within its City limits. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS: Ordinance No. 2017-02 June 5, 2017 Page 3 of 14 SECTION 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. Section 88.42.035 of the Azusa Municipal Code is hereby amended in its entirety to read as follows: 88.42.035. - Marijuana Uses. A. PURPOSE. The purpose of this section is to regulate personal, medical, and commercial marijuana uses. Nothing in this section shall preempt or make inapplicable any provision of state or federal law. B. DEFINITIONS. For purposes of this section, the following definitions shall apply: 1. “Commercial marijuana activity” includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, delivery or sale of marijuana and marijuana products. 2. “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. 3. “Cultivation area” includes the area where marijuana plants are cultivated, cultivation-related materials and supplies are stored, and any marijuana processed from the cultivation in excess of 28.5 grams. 4. “Day care” means a facility, center, or home req uiring a license that is issued by the State of California which provides for the care, health, safety, supervision, or guidance of a child’s social, emotional, and educational growth on a regular basis, in a place other than the child’s own home, or any facility meeting the definition of California Health and Safety Code Section 1596.76 5. “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. 6. “Directly engage” in cultivation means to handle the marijuana plants in the cultivation process. 7. “Distribution” means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes. 8. “Group Home” means any community care facility regulated and licensed by a Federal and/or State agency. Unlicensed community care facilities or those Ordinance No. 2017-02 June 5, 2017 Page 4 of 14 community care facilities the regulation of which is not otherwise preempted by State or Federal law shall not constitute group homes. 9. “Indirectly engage” in cultivation means to assist, even if not handling marijuana plants, in the cultivation process. 10. “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. 11. “Manufacture” means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product. 12. “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: (a) Industrial hemp, as defined in Section 11018.5 of the California Health & Safety Code; or (b) The weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. 13. “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. 14. “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. 15. “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. 16. “Personal Use” means to possess, use, or give away to persons 21 years of age or older without any compensation whatsoever. 17. “Residence” means a private residence such as a house, apartment unit, mobile home, or similar dwelling. Ordinance No. 2017-02 June 5, 2017 Page 5 of 14 18. "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. 19. “Youth Center” means any public or private facility that is primarily used to host recreational or social activities for minors, including, but not limited to, private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park facilities. 20. 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. C. PERSONAL USE. 1. For purposes of this subsection, personal recreational use, possession, purchase, transport, or dissemination of marijuana shall be considered unlawful in all areas of the City to the extent it is unlawful under California law. 2. Outdoor Cultivation. A person may not plant, cultivate, harvest, dry, or process marijuana plants outdoors in any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. 3. Indoor Cultivation. (a) A person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, or inside any other enclosed structure within any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. (b) To the extent a complete prohibition on indoor cultivation is not permitted under California law, a person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, unless the person is issued a residential indoor cultivation permit by the Economic and Community Department as detailed in section D (Residential Indoor Marijuana Cultivation (RIMC) Permit) below. A person Ordinance No. 2017-02 June 5, 2017 Page 6 of 14 may not plant, cultivate, harvest, dry, or process marijuana plants inside any enclosed structure within any zoning district of the City which is not either a private residence or an accessory structure to a private residence located upon the grounds of a private residence. D. RESIDENTIAL INDOOR MARIJUANA CULTIVATION (RIMC) PERMIT. 1. Applicability (a) The RIMC Permit is intended to serve as an instrument of the City’s reasonable regulation of residential indoor marijuana cultivation as provided by California Health and Safety Code, Section 11362.2(b)(1). A person may directly or indirectly engage in residential indoor marijuana cultivation only after obtaining and maintaining a valid RIMC Permit (b) A RIMC Permit authorizes: 1. Only one person, 2. To directly or indirectly engage in residential indoor marijuana cultivation for personal use, 3. At only one residence, and 4. Within only the authorized cultivation area at the residence. (c) A RIMC Permit does not authorize: 1. Construction or improvements of any structure, 2. A property-at-large for marijuana cultivation, 3. The permit holder or any others to engage in any activity licensed by the State of California under Division 10 of the Business and Professions Code, or 4. The following people to directly or in directly engage in residential indoor marijuana cultivation: A. The permit holder’s family members, B. Cohabitants, C. Guests, D. Future residents, or E. Any other person other than the permit holder. Ordinance No. 2017-02 June 5, 2017 Page 7 of 14 (d) A person may not hold more than one RIMC Permit at a time. Multiple permit holders may be authorized to engage in residential indoor marijuana cultivation at the same residence, but a residence must include no more than one cultivation area and no more than six marijuana plants in total. 2. Review and Appellate Authority. (a) Applications for a RIMC Permit will be processed and reviewed by the Economic and Community Development Director or his/her designee(s). The Economic and Community Development Director or his/her designee(s) or his designee(s) may approve or deny an application based on the findings provided in section D4 (Findings) below. (b) A decision by the Economic and Community Development Director or his/her designee(s) may be appealed to the City Hearing Officer by the following parties: 1. The applicant; or 2. Owners or residents of the property. (c) A decision of the City Hearing Officer may be appealed to the City Council by the following parties: 1. The applicant; or 2. Owners or residents of the property. 3. Application and Notice. (a) The Economic and Community Development Director or his/her designee(s) may adopt the forms and submittal materials required for a complete application. (b) The City Council may by resolution require an application fee. (c) The City will provide notification of the complete application to the following: 1. The applicant; and 2. Owners and residents of the property. 4. Findings. The Economic and Community Development Director or his/her designee(s) may approve an application for an RIMC Permit if the following findings are made: (a) Applicant. Ordinance No. 2017-02 June 5, 2017 Page 8 of 14 The applicant must: 1. Be 21 years of age or older, 2. Complete a Live Scan with the California Department of Justice, 3. Have no felony convictions for the illegal possession for sale, manufacture, transportation, or cultivation of a controlled substance within the last five years, 4. Have no pending code enforcement actions with the City, 5. Have no past due payments due to the City, and 6. Have no City liens on the property. (b) Residence. 1. The residence must be the primary dwelling of the applicant. 2. The residence must not include more than one cultivation area. 3. The residence must not be used for any of the following activities: A. Day care, B. Youth center, and C. Residential health care facility. (c) Cultivation Area. 1. Location and Use. A. The cultivation area must be located within the residence or within an auxiliary structure. The residence, auxiliary structure, and all plumbing, electrical, and other utilities must be properly permitted by the City or appropriate regulatory agency. B. The cultivation area must be used exclusively for residential indoor marijuana. The cultivation area may not be shared with any space used for sleeping, cooking, eating, bathing, or other residential activities. C. The cultivation area must not be used or prepared in a manner to cultivate more than six marijuana plants. D. The following chemicals may not be used or stored in the cultivation area: Ordinance No. 2017-02 June 5, 2017 Page 9 of 14 (i) Explosive gases, including, but not limited to: Butane, Propane, Xylene, Styrene, Gasoline, Kerosene, Oxygen (O2), or Hydrogen (H2). (ii) Dangerous poisons, toxins, or carcinogens, including, but not limited to: Methanol, Iso-propul Alcohol, Methylene Chloride, Acetone, Benzene, Toluene, or Tri-chloro- ethylene. 2. Inspection of Cultivation Site. A. The Economic and Community Development Director or his/her designee(s) may inspect the premises, with the applicants approval, prior to the issuance or renewal of a RIMC Permit to ensure compliance with all applicable state and local laws, codes and regulations, including without limitation, the California Building Code, Electrical and Fire Codes as adopted by the City of Azusa. B. The site inspection may include personnel from the following divisions: Planning, Building, Community Improvement and the Police Department. C. Should the applicant deny access to the property for the inspection of the cultivation site, the application process will terminate and a permit will not be issued. 3. Access and Security. A. The structure, or room in which the cultivation occurs, shall have locking doors and shall be secured to prevent access by minors and/or unauthorized persons. Any windows, skylight, ventilation, or other opening must be lockable. B. Access to the cultivation area must be restricted to the applicant or other permit holders authorized for the cultivation area. C. The cultivation area must not be visible from anywhere outside the residence. Any windows, skylight, ventilation, or other opening must be sufficiently covered or opaque as to obscure visibility of the cultivation area from any adjacent property. Such window coverings shall not restrict emergency egress from the structure. D. The cultivation area must not produce odors, sounds, or other emissions that are detectible from adjacent properties and may indicate marijuana cultivation. Ordinance No. 2017-02 June 5, 2017 Page 10 of 14 5. Expiration and Renewal. (a) A RIMC Permit expires, if not renewed, one year from the date of approval and in two (2) year increments thereafter. (b) A RIMC Permit may be renewed, if prior to the expiration, the permit holder: 1. Completes forms and submittal materials for renewal as required by the Economic and Community Development Director or his/her designee(s). 2. The permit holder passes an inspection approved by the Economic and Community Development Director or his/her designee(s), as provided in section 4.(c).2 (Inspection of Cultivation Site), above. 3. Pays a renewal fee as approved by resolution by City Council. (c) A RIMC Permit renewal may be streamlined if the following conditions are met: 1. No code violations on the property. 2. No suspension or revocation of the existing RIMC permit on the property. 3. All RIMC permit fees are paid. 6. Suspension and Termination. (a) The Economic and Community Development Director or his/her designee(s) may suspend or terminate a RIMC Permit at any time for failure to comply with applicable governing regulations. (b) If a RIMC Permit is suspended, the suspension will be effective and the permit holder’s marijuana crop may be impounded until the permit holder: 1. Demonstrates compliance with the applicable governing regulations, and 2. Pays a fine as set forth in section 6(d) (Suspension and Termination) below. (c) If a RIMC Permit is terminated, the permit holder’s marijuana crop may be impounded. The permit holder may not apply for another RIMC Permit until the permit holder pays a fine as set forth in section 6(d) (Suspension and Termination) below. The Economic and Community Development Director or his/her designee(s) may permanently terminate a RIMC should criminal activity occur or repeated violations. (d) The City Council may by ordinance adopt a fine schedule for violations that may escalate with successive violations. Ordinance No. 2017-02 June 5, 2017 Page 11 of 14 (e) A suspension or termination of a RIMC Permit may be appealed to the City Hearing Officer by the permit holder. 7. Subsequent Applications. (a) Application for a Different Residence. 1. If a permit holder applies for a RIMC Permit for a residence other than specified on the existing permit, the existing RIMC Permit will remain valid during the application process. 2. If the application is approved, the existing RIMC Permit is rescinded. 3. If the application is denied, the existing RIMC Permit is reinstated. 4. If the applicant appeals a denial of the application, the existing RIMC Permit remains valid until a final decision is reached. (b) Application for a Different Cultivation Area in the Same Residence. If a permit holder applies for an RIMC Permit for the residence on the existing permit, but for cultivation area other than specified on the existing permit, the existing permit will terminate upon approval of the application. 8. No Sale or Transfer A RIMC Permit may not be transferred, sold, conveyed, hypothecated or encumbered. E. MEDICAL USE. 1. Cultivation of medical marijuana pursuant to Section 11362.77 of the California Health & Safety Code is subject to the cultivation requirements laid out in subsection (c) of this Section. 2. The establishment or operation of any medical marijuana collective, cooperative, dispensary, delivery service, operator, establishment, or provider shall be considered a prohibited use in all zoning districts of the City. No use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for the establishment of any collective, cooperative, dispensary, delivery service, operator, establishment, or provider in any zoning district, and no person shall otherwise establish such businesses or operations in any zoning district. F. COMMERCIAL USE. 1. The establishment or operation of any business of commercial marijuana activit y is prohibited. No use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for Ordinance No. 2017-02 June 5, 2017 Page 12 of 14 the establishment or operation of any such business or operation. Such prohibited businesses or operations may include, but are not limited to: (a) The transportation, delivery, storage, distribution, or sale of marijuana, marijuana products, or marijuana accessories; (b) The cultivation of marijuana; (c) The manufacturing or testing or marijuana, marijuana products, or marijuana accessories; or (d) Any other business licensed by the state or other government entity under Division 10 of the California Business & Professions Code, as it may be amended from time to time. G. 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 section 14-413 (Abatement) and/or under state law. H. NO DUTY TO ENFORCE. Nothing in this section shall be construed as imposing on the Economic and Community Development Director or his/her designee(s) or the City any duty to issue an notice to abate unlawful marijuana cultivation, nor to abate any unlawful marijuana cultivation, nor to take any other action with regard to any unlawful marijuana cultivation, and neither the Economic and Community Development Director or his/her designee(s) nor the City shall be held liable for failure to issue an order to abate any unlawful marijuana cultivation, nor for failure to abate any unlawful marijuana cultivation, nor for failure to take any other action with regard to any unlawful marijuana cultivation.” SECTION 3. CEQA. The subject Municipal Code Amendment is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2), 15060(c)(3) and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and 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 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 Los Angeles in accordance with CEQA Guidelines. Ordinance No. 2017-02 June 5, 2017 Page 13 of 14 SECTION 4. 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, California 91702. The custodian of these records is the City Clerk. SECTION 5. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The people of the City of Azusa hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 6. Effective Date. This Ordinance shall become effective thirty (30) days following its adoption. SECTION 7. Publication. The City Clerk shall certify to the adoption of this Ordinance. Not later than fifteen (15) days following the passage of this Ordinance, the Ordinan ce, or a summary thereof, along with the names of the City Council members voting for and against the Ordinance, shall be published in a newspaper of general circulation in the City of Azusa, in accordance with California Government Code Section 36933. MOVED, PASSED AND ADOPTED _____th day of _______________ 2017 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: Joseph R. Rocha, Mayor ATTEST: Jeffrey Cornejo, City Clerk APPROVED AS TO FORM: ________________________________ Marco A. Martinez Best Best & Krieger LLP City Attorney Ordinance No. 2017-02 June 5, 2017 Page 14 of 14 CERTIFICATION I, Jeffrey Cornejo, City Clerk of the City of Azusa, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Ordinance is the actual Ordinance adopted by the City Council and was introduced at a regular meeting on the ____rd day of ____________, 2017, and was finally passed and adopted not less than five days thereafter on the ____th day of ______________, 2017, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: _________________________________________ Jeffrey Cornejo City Clerk RESOLUTION NO. 2017-C35 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA ESTABLISHING FEES FOR RESIDENTIAL INDOOR MARIJUANA CULTIVATION (RIMC) PERMITS 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, the City adopted Resolution No. 2016-C5 decreasing and increasing certain user fees for provision of services by the City; and WHEREAS, the passage of Proposition 64 requires that the City establishes a permit process for request for the Residential Indoor Marijuana Cultivation (“RIMC”) permit; and WHEREAS, the processing of the RIMC permits will require services to be provided by the City which are currently not covered by the City’s general fund; and WHEREAS, the City desires to recoup the costs of providing such services in order to process the RIMC permits; and WHEREAS, pursuant to Government Code Sections 66016 and 66018, the specific fees charged must be adopted by the City Council by Resolution, after providing notice and holding a public hearing; and WHEREAS, the City Council has duly noticed and conducted a public hearing on June 5, 2017, concerning the adoption of said fees; WHEREAS, the City Council has complied with Government Code section 66018 prior to imposing the application fees set forth in this Resolution. NOW, THEREFORE, BE IT RESOLVED, determined, and ordered by the City Council of the City of Azusa that: Section 1. Incorporation of Recitals. The City Council hereby finds and determines that the recitals of this Resolution are true and correct and hereby incorporated into this Resolution as though fully set forth herein. Section 2. Fee Adoption. The adopted user fee schedule adopted by Resolution No. 2016- C5 is hereby amended to incorporate the fee for processing the RIMC permit. The Council hereby establishes the fees for processing of RIMC Permitting as set forth in the attached Exhibit “A”, incorporated by reference. Section 3. Severability. If any provisions, clause, sentence or paragraph of this Resolution or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this Resolution, which can be given effect without the invalid provision or application and, to this end, the provisions of this Resolution are hereby declared to be severable. Resolution No. 2017-C35 June 5, 2017 Page 2 of 4 Section 4. CEQA. This Resolution does not commit the City to any action that may have significant effect on the environment. As a result, such action does not constitute a project subject to the requirements of the California Environmental Quality Act. The City Clerk of the City, is authorized and directed to file a Notice of Exemption with the appropriate office of the County of Los Angeles, California, within five (5) days following the date of adoption of this Resolution. Section 5. Effective Date. This Resolution takes effect upon the effective date of Ordinance No. 2017-02. MOVED, PASSED, APPROVED and ADOPTED this 5th day of June, 2017 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: ____________________________ Joseph R. Rocha, Mayor ATTEST: Jeffrey Cornejo, City Clerk APPROVED AS TO FORM: Marco Martinez Best Best & Krieger LLP City Attorney Resolution No. 2017-C35 June 5, 2017 Page 3 of 4 CERTIFICATION I, Jeffrey Cornejo, City Clerk of the City of Azusa, California, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting on the 5th day of June 2017, by the following vote to wit: AYES: NOES: ABSENT: ATTEST: Jeffrey Cornejo City Clerk Resolution No. 2017-C35 June 5, 2017 Page 4 of 4 EXHIBIT “A” Residential Indoor Marijuana Cultivation (RIMC) Permit Fee Staff Title Monthly Pay Monthly Benefits* Monthly Flex/Def Monthly Total Fully Burdened Hourly Rates Estimated Hours Total Fully Burdened Hourly Rates Director of Economic and Community Development 13,787.66 5,087.10 1,346.00 20,220.76 116.65820 1 116.65820 Community Improvement Manager 6,918.14 2,665.21 1,496.00 11,079.35 63.91935 1 63.91935 Building Inspector 6,657.28 2,070.81 1,391.00 10,119.09 58.37939 1 58.37939 Associate Planner 6,410.01 1,993.90 1,346.00 9,749.91 56.24947 1 56.24947 Planning Technician 3,958.72 1,231.40 1,245.00 6,435.12 37.12569 1 37.12569 Community Improvement Inspector 5,177.93 1,610.65 1,391.00 8,179.58 47.18987 1 47.18987 Development Services Assistant 5,002.06 1,555.94 1,391.00 7,949.00 45.85962 1 45.85962 Grand Total 425.3816 Residential Indoor Marijuana Cultivation (RIMC) Permit Renewal Fee Staff Title Monthly Pay Monthly Benefits* Monthly Flex/Def Monthly Total Fully Burdened Hourly Rates Estimated Hours Total Fully Burdened Hourly Rates Director of Economic and Community Development 13,787.66 5,087.10 1,346.00 20,220.76 116.65820 .5 58.3291 Community Improvement Manager 6,918.14 2,665.21 1,496.00 11,079.35 63.91935 .5 31.9596 Building Inspector 6,657.28 2,070.81 1,391.00 10,119.09 58.37939 .5 29.1896 Associate Planner 6,410.01 1,993.90 1,346.00 9,749.91 56.24947 .5 28.1247 Planning Technician 3,958.72 1,231.40 1,245.00 6,435.12 37.12569 .5 18.5628 Community Improvement Inspector 5,177.93 1,610.65 1,391.00 8,179.58 47.18987 .5 23.5949 Development Services Assistant 5,002.06 1,555.94 1,391.00 7,949.00 45.85962 .5 22.9298 Grand Total 212.6905 RESOLUTION NO. 2017-C36 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, AUTHORIZING USE OF LIVE SCAN TECHNOLOGY WITH RESIDENTIAL INDOOR MARIJUANA CULTIVATION (RIMC) PERMITS 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 Penal Code sections 11105(b)(11) and 13300(b)(11) authorize cities, counties, districts, and joint powers authorities to access state and local summary criminal history information for employment, licensing or certification purposes; and WHEREAS, Penal Code sections 11105(b)(11) authorizes cities, counties, districts and joint powers authorities to access federal level criminal history information by transmitting fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation; and WHEREAS, Penal Code sections 11105(b)(11) and 13300(b)(11) require that there be a requirement or exclusion from employment, licensing, or certification based on specific criminal conduct on the part of the subject of the record; and WHEREAS, Penal Code sections 11105(b)(11) and 13300(b)(11) require the city council, board of supervisors, governing body of a city, county, or district or joint powers authority to specifically authorize access to summary criminal history information for employment, licensing, or certification purposes; and WHEREAS, the information is required to implement Ordinance No. 2017-02, which expressly identifies specific criminal conduct and contains requirements or exclusions based upon that specified criminal conduct; and WHEREAS, the City would utilize this data to implement the Residential Indoor Marijuana Cultivation (“RIMC”) permitting scheme contemplated in Ordinance No. 2017-02 by determining whether applicants had been convicted of illegal possession for sale, manufacture, transportation, or cultivation of a controlled substance within the last five years; and WHEREAS, such convictions would render an applicant ineligible for a RIMC Permit due to the risk to the public health, safety, and welfare inherent in allowing an individual with those recent convictions to cultivate and potentially distribute marijuana or marijuana products. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Recitals. The City Council of the City of Azusa hereby finds and determines that the foregoing recitals are true and correct, are incorporated herein and by this reference made an operative part hereof. Resolution No. 2017-C36 June 5, 2017 Page 2 of 3 SECTION 2. Access to State and Federal Background Information for Residential Indoor Marijuana Cultivation Permit. The City, and all necessary employees, are hereby authorized to access state and federal level summary criminal history information for any applicant for a Residential Indoor Marijuana Cultivation Permit to determine whether they have been convicted of illegal possession for sale, manufacture, transportation, or cultivation of a controlled substance within the last five years. Access to criminal history information is limited to these purposes and no employee may disseminate the information to a private entity. SECTION 3. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof. SECTION 4. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption. MOVED, PASSED, APPROVED and ADOPTED this 5th day of June, 2017 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: _______________________ Joseph R. Rocha, Mayor ATTEST: _____________________________ Jeffery Cornejo, City Clerk APPROVED AS TO FORM: _____________________ Marco Martinez Best Best & Krieger LLP City Attorney Resolution No. 2017-C36 June 5, 2017 Page 3 of 3 CERTIFICATION I, Jeffrey Cornejo, City Clerk of the City of Azusa, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Resolution No. 2017-C36 duly adopted by the City Council of the City of Azusa at a regular meeting thereof, held on the 5th day of June, 2017, by the following vote of Council: AYES: NAYS: ABSENT: ABSTAIN: ____________________________________ Jeffrey Cornejo City Clerk Attachment #4 – Costs for Processing Applications Residential Indoor Marijuana Cultivation (RIMC) Permit Staff Title Monthly Pay Monthly Benefits* Monthly Flex/Def Monthly Total Fully Burdened Hourly Rates Estimated Hours Total Fully Burdened Hourly Rates Director of Economic and Community Development 13,787.66 5,087.10 1,346.00 20,220.76 116.65820 1 116.65820 Community Improvement Manager 6,918.14 2,665.21 1,496.00 11,079.35 63.91935 1 63.91935 Building Inspector 6,657.28 2,070.81 1,391.00 10,119.09 58.37939 1 58.37939 Associate Planner 6,410.01 1,993.90 1,346.00 9,749.91 56.24947 1 56.24947 Planning Technician 3,958.72 1,231.40 1,245.00 6,435.12 37.12569 1 37.12569 Community Improvement Inspector 5,177.93 1,610.65 1,391.00 8,179.58 47.18987 1 47.18987 Development Services Assistant 5,002.06 1,555.94 1,391.00 7,949.00 45.85962 1 45.85962 Grand Total 425.3816 Residential Indoor Marijuana Cultivation (RIMC) Permit Renewal Fee Staff Title Monthly Pay Monthly Benefits* Monthly Flex/Def Monthly Total Fully Burdened Hourly Rates Estimated Hours Total Fully Burdened Hourly Rates Director of Economic and Community Development 13,787.66 5,087.10 1,346.00 20,220.76 116.65820 .5 58.3291 Community Improvement Manager 6,918.14 2,665.21 1,496.00 11,079.35 63.91935 .5 31.9596 Building Inspector 6,657.28 2,070.81 1,391.00 10,119.09 58.37939 .5 29.1896 Associate Planner 6,410.01 1,993.90 1,346.00 9,749.91 56.24947 .5 28.1247 Planning Technician 3,958.72 1,231.40 1,245.00 6,435.12 37.12569 .5 18.5628 Community Improvement Inspector 5,177.93 1,610.65 1,391.00 8,179.58 47.18987 .5 23.5949 Development Services Assistant 5,002.06 1,555.94 1,391.00 7,949.00 45.85962 .5 22.9298 Grand Total 212.6905