HomeMy WebLinkAboutD-2 Recreational Marijuana Urgency Ordinance ExtensionSCHEDULED ITEM
D-2
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: TROY BUTZLAFF, ICMA-CM, CITY MANAGER
FROM: MARCO MARTINEZ, CITY ATTORNEY
JORDAN FERGUSON, DEPUTY CITY ATTORNEY
DATE: NOVEMBER 21, 2016
SUBJECT: EXTEND INTERIM URGENCY ORDINANCE NO. 2016-O11 OF THE CITY COUNCIL OF
THE CITY OF AZUSA, CALIFORNIA, ENACTED PURSUANT TO CALIFORNIA
GOVERNMENT CODE SECTION 65858, MAKING FINDINGS AND EXTENDING A
TEMPORARY MORATORIUM ON MARIJUANA USES PENDING THE ENACTMENT OF
AN UPDATE TO THE CITY’S MUNICIPAL CODE
SUMMARY:
On October 17, 2016, the City Council passed an urgency ordinance prohibiting marijuana dispensaries,
manufacturers, cultivation, delivery, and all other commercial marijuana activities. Pursuant to California
Government Code Section 65858(d), the City must provide a written report describing the measures taken to
alleviate the condition which led to the adoption of the ordinance in order to extend the urgency ordinance. The
proposed action adopts an interim urgency ordinance extending 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.
RECOMMENDATION:
Staff recommends that the City Council take the following action:
1) Adopt an interim urgency ordinance of the City Council of the City of Azusa, California, enacted
pursuant to California Government Code Section 65858 extending 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.
DISCUSSION:
The City Council has provided direction for an ordinance to be drafted regulating the personal, medical, and
commercial uses of marijuana. However, an ordinance cannot be fully enacted prior to the initial urgency
ordinance lapsing, based on the current schedule of the Planning Commission and the City Council. As a result,
APPROVED
COUNCIL MEETING
11/21/2016
Approve an Interim Urgency Ordinance
November 21, 2016
Page 2
Staff recommends an extension of the urgency ordinance banning all marijuana uses until the full ordinance can
take effect.
The cultivation, transportation, and distribution of marijuana can create problems relating to public health and
safety, crime, water and air quality, and energy consumption. Marijuana uses can create nuisance activity such
as loitering and criminal activity in business and residential districts. Specifically, mobile delivery can create
issues relating to responsibility and resources to monitor and enforce state law, questions of patient
qualification, and risks relating to the high use of large sums of cash for mobile transactions. Cultivation can
create air quality, energy, and water quality damage and impair building maintenance and safety. For example,
the increased moisture necessary to grow indoors can create excessive mold growth and structural damage.
Additionally, the equipment utilized to grow indoors can pose a risk of fire and electrical hazards due to
dangerous electrical alterations and use. Further, inadequate ventilation combined with the use of pesticides
and fertilizers in an enclosed space can lead to chemical contamination within structures.
City staff, in conjunction with the Police Department and the City Attorney’s Office, are continuing to study the
potential effects of various marijuana uses in the City. Each particular marijuana use is being evaluated to
determine the potential risks and benefits to the City of allowing, regulating, or banning the use. It is anticipated
that the Azusa Planning Commission will consider proposed amendments to the Azusa Municipal Code in the
near future. Those proposed amendments will then be presented to the City Council for enactment.
While the amendments are being prepared and adopted, City staff believes it is critical that the moratorium be
extended in accordance with Government Code Section 65858. The ordinance is currently set to expire in the
near future. Although the City Council may extend the ordinance for up to an additional 22 months and 15 days,
Staff recommends extending the ordinance for 10 months and 15 days, anticipating a full ordinance will be
effective prior to the lapsing of that period.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended actions.
Prepared by: Reviewed and Approved:
Jordan Ferguson Marco Martinez
Deputy City Attorney City Attorney
Reviewed and Approved Reviewed and Approved:
Louie F. Lacasella Troy L. Butzlaff, ICMA-CM
Management Analyst City Manager
ATTACHMENTS:
1) Urgency Ordinance No. 2016-O11
ORDINANCE NO. 2016-011
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF AZUSA, CALIFORNIA, ENACTED PURSUANT TO
CALIFORNIA GOVERNMENT CODE SECTION 65858 EXTENDING
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
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, on October 17, 2016, the City Council adopted Urgency Ordinance No.
2016-09 pursuant to Government Code Section 65858 establishing a forty-five day moratorium
on marijuana dispensaries, manufacturers, cultivation, and delivery in the City pending the
completion of studies and the preparation of an update to the City's municipal and zoning codes;
and
WHEREAS, City staff, the Police Department, and the City Attorney's office are
continuing to conduct research into the possible and likely impacts of further regulating or
banning marijuana uses in the City; and
WHEREAS, City staff is continuing to gather factual data regarding the adverse impacts
experienced by other cities that permit marijuana dispensaries, manufacturers, cultivation, and
delivery; and
WHEREAS, as a result, the City Council desires to extend the moratorium for a period
of ten (10) months and fifteen (15) days) to allow staff and the City Council the opportunity to
continue to research and select the best course of action for the City's citizens and the
community at large; and;
WHEREAS, the City Council has determined that the circumstances and conditions that
led to the adoption of Urgency Ordinance No. 2016-09, which are set forth in the recitals of
Urgency Ordinance No. 2016-09, have not been alleviated as of the date of this Ordinance and
continue to create the concerns described in Urgency Ordinance No. 2016-09; and
WHEREAS, the City has subsequently complied with the notice and public hearing
required by Government Code Section 65858(a) of the California Government Code for
extension of Urgency Ordinance No. 2016-09; 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 ten (10) months and fifteen
(15) 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 ten(10)months and fifteen(15) 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
21St day of November, 2016, by the following vote:
44
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Joseph Romero Rocha
Mayor
ATTEST:
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF AZUSA )
I HEREBY CERTIFY that the foregoing Urgency Ordinance No. 2016-011, was
adopted at a regular meeting of the Azusa City Council on the 21St day of November, 2016, by
the following vote of the Council:
AYES: COUNCIL MEMBERS: GONZALES, MACIAS, ALVAREZ, ROCHA
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: CARRILLO
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i Clerk
Approved as to Form:
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CityAttorney