HomeMy WebLinkAboutZOA 15-322 MEDICAL MARIJUANA 2015 r
MINUTES
PALM DESERT PLANNING COMMISSION DECEMBER 1, 2015
VI. CONSENT CALENDAR
A. MINUTES of the Planning Commission meeting of October 20, 2015.
Rec: By Minute Motion, approve as presented.
Upon a motion by Commissioner Pradetto, second by Vice Chair Greenwood, and a
5-0 vote of the Planning Commission (AYES: Campbell, Del-una, Greenwood, Pradetto,
and Stendell; NOES: None; ABSENT: None; ABSTAIN: None), the Consent Calendar was
approved as presented.
VII. CONSENT ITEMS HELD OVER
None
VIII. NEW BUSINESS
None
IX. PUBLIC HEARINGS
A. REQUEST FOR CONSIDERATION of a recommendation to the City Council for
approval of a Zoning Ordinance Amendment (ZOA) that will amend Palm Desert
Municipal Code (PDMC) Section 25.34.120 to prohibit cannabis dispensaries,
cannabis manufactures, cultivation, and delivery of cannabis in the City of Palm
Desert. Case No. ZOA 15-322 (City of Palm Desert, California, Applicant).
Mr. Bagato presented the staff report and displayed photos. He recommended
approval (staff report is available at www.cityofpalmdesert.org), and offered to
answer any questions.
Commissioner Sonia Campbell asked if a person has a card for medicinal purposes,
can they have a certain amount of live or dry plants in their possession.
Mr. Bagato responded that if a person has a medicinal card and per state law, a
person could grow up to two plants.
Commissioner Campbell clarified that the maximum amount of plants a person could
have is two.
Mr. Bagato said he was not sure.
Mr. Douglas Phillips, City Attorney, interjected that he did not know, but thought it
was six plants.
Commissioner Joseph Pradetto said the staff report mentioned complaints about
cultivation in commercial areas. He asked how often are the complaints and how
does the site look.
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PALM DESERT PLANNING COMMISSION DECEMBER 1, 2015
Mr. Bagato replied that in one of the photos he displayed was taken at a commercial
site. He said the site was detected due to the smell coming from the building and an
increase of traffic. He stated that the police are concerned with potential crime and
theft. He mentioned the City of Indio recently completed research and an analysis
pertaining to cannabis. Based on their analysis, Indio opted to prohibit any
commercial use of cannabis in their city.
Commissioner Pradetto inquired if there is any indication about how pervasive is
residential manufacturing. Do code enforcement and police feel like they know
where some of them are? Is there a lot that they cannot account for?
Mr. Bagato responded that there have been a few, and they usually find out pretty
quick. He said staff has received calls about commercial cultivation; staff lets them
know it is prohibited per the City ordinance.
Commissioner Pradetto said if the Planning Commission and the City Council
approve this ban, a change would not be felt if someone is trying to conduct
business in the City of Palm Desert.
Mr. Bagato replied that is correct. It is currently prohibited, and it has been prohibited
since 2005.
Vice Chair John Greenwood stated that since the 2005 ban a great deal has
changed. It would be interesting to see what happens in the State of California yyitMa—�
the next year. He said it was mentioned there are plans to have a study done relatiCe
to cannabis dispensaries, manufactures, cultivation, and delivery. He asked what
those plans are.
Mr. Bagato responded that at this time, pass the prohibition and wait to see what
happens with state legislation. Unless there is direction from the City Council to
study it further or the Planning Commission could recommend to the City Council
that a study be done. However, the City is going to wait and see how the state
election pans out in 2016. If it passes, the City would have to re-evaluate city
ordinances and how they are regulated.
Vice Chair Greenwood commented that the delivery of medical marijuana is
mentioned in the staff report. He asked staff what they foresee for policing or
controlling delivery of medical marijuana within the City of Palm Desert.
Mr. Bagato said he does not see any changes at this time. He stated that it is
basically a complaint driven enforcement. He noted there is no way to proactively
seek who is getting mobile deliveries.
Chair Stendell commented that after the election in 2016, should recreational
marijuana pass, will the City still maintain the right to prohibit marijuana in Palm
Desert or would the City need to look at a whole new set of guidelines passed down
from the state.
Mr. Bagato replied it is unclear at this time.
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PALM DESERT PLANNING COMMISSION DECEMBER 1, 2015
Commissioner Pradetto mentioned that The Desert Sun reported there are 18
proposed initiatives regarding marijuana. He said it is really up in the air as to what
could happen. He asked if the City fails to act by the deadline and the state default
goes into effect, does the City lose its right to local control, enforcement, and
regulation in the future.
Mr. Bagato explained that the City would have the same control. However, the
current ordinance would be questionable to some of the loopholes. If the state has
the authority, a business would only need a state license. With the City's ordinance,
a business would need the City's approval first to be licensed, if the City allowed it,
then the business would also need a state license. He stated if someone wanted to
question Palm Desert's ordinance, they could go straight to the state and potentially
get licensed without Palm Desert's approval.
Chair Stendell declared the public hearing open and invited any public testimony IN FAVOR
or OPPOSITION.
With no testimony offered, Chair Stendell declared the public hearing closed.
Vice Chair Greenwood considered this item as a multifaceted issue on both sides of
the table. He noted there are other states that have legalized marijuana, and have
been dealing with some of the negative and positive effects from it. Based on the
March deadline, he felt it was critical that the City maintains control of our destiny
and decisions. With that said, he thought this was something that should be studied.
He stated that he would be a proponent for the formation of a subcommittee
comprised of City officials and community members to study this further. So as they
look ahead, the City would be able to maintain what Palm Desert currently has in
place or make well informed decisions.
Commissioner Nancy DeLuna commented she is concerned with the March
deadline. She said it seems the intent of the City and the City's current ordinance is
clear, and she does not think it precludes Palm Desert from continuing to study or
forming a subcommittee. However, at this time, the City has been well advised to
proceed and maintain control. With that said, she moved that the City institute a
complete ban on medical cannabis dispensaries, cultivation, transportation and
delivery.
i
Vice Chair Greenwood interjected that he agreed with Commissioner DeLuna. He
also agreed with staffs recommendation; however, he would like to see the
formation of a subcommittee to study medical cannabis and make a
recommendation to the City Council.
Commissioner Pradetto seconded the motion and agreed with both DeLuna and
Greenwood's comments. He pointed out; there is no way to intelligently regulate
anything three to four months before the deadline. He stated that passing this ban
would give the City enough time to maintain local control and study it. He also stated
that it may not be worth studying until they know what happens at the state level.
Therefore, he supports Commissioner DeLuna's motion.
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PALM DESERT PLANNING COMMISSION DECEMBER 1, 2015
Commissioner Campbell asked Commissioner Pradetto if Commissioner DeLuna
needs to change her motion to include a study.
Commissioner Pradetto responded that Commissioner DeLuna did not mention
anything about a study in her motion. He felt the motion does not need to mention
the study.
Commissioner Campbell concurred with the other Planning Commissioners.
Chair Stendell asked the Planning Commission if everyone agreed to the motion.
The Planning Commission agreed.
Commissioner DeLuna moved for the approval of a recommendation to the City
Council to institute a complete ban on medical cannabis dispensaries, cultivation,
transportation and delivery. Motion was seconded by Commissioner Pradetto and carried by
a 5-0 vote (AYES: Campbell, DeLuna, Greenwood, Pradetto, and Stendell; NOES: None;
ABSENT: None; ABSTAIN: None).
Commissioner DeLuna moved to .waive further reading and adopt Planning
Commission Resolution No. 2657, recommending approval of ZOA 15-322 amending Palm
Desert Municipal Code 25.34.120 "Medical Marijuana Dispensaries." Motion was seconded
by Commissioner Pradetto and carried by a 5-0 vote (AYES: Campbell, DeLuna,
Greenwood, Pradetto, and Stendell; NOES: None; ABSENT: None; ABSTAIN: None).
B. REQUEST FOR CONSIDERATION of a Conditional Use Permit for the sale of
Tesla branded automobiles and dedication of six (6) parking stalls for vehicle
display and charging stations within The Gardens on El Paseo parking structure
located at 73-515 El Paseo. Case No. CUP 15-317 (The Gardens on El Paseo,
LLC, Bloomfield Hills, Michigan, Applicant).
Mr. Eric Ceja, Associate Planner, gave a Power Point presentation, reviewing the
staff report in detail (staff report is available at www.citvofoalmdesert.org). He
recommended approval and offered to answer any questions. He mentioned
representatives from The Gardens on El Paseo and Tesla are also present to
answer any questions.
Commissioner DeLuna asked if Tesla agreed to dedicate two of the six parking stalls
with the charging stations for public use.
Mr. Ceja replied yes.
Commissioner DeLuna clarified that in addition to having cars on display there would
be a public benefit gain by having charging stations.
Mr. Ceja replied yes. For that reason, it helped staff support this request. He said in
exchange for Tesla to have six spaces dedicated to them, two of the spaces would
have to be made available to other Tesla owners and for the public to use.
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CITY 0 [ 1111M OESERt
73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346-o61I
FAX: 760 341-4564
info@paim-desert.org
PLANNING COMMISSION MEETING
NOTICE OF ACTION
December 2, 2015
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Subject: Recommendation to the City Council for Consideration to Approve a
Zoning Ordinance Amendment (ZOA) to Palm Desert Municipal Code
Section 25.34.120 "Medical Marijuana Dispensaries"
The Planning Commission of the City of Palm Desert considered your request and took
the following action at its regular meeting of December 1, 2015:
The Planning Commission granted approval of Case No. ZOA 15-322 by
adoption of Planning Commission Resolution No. 2657, recommending to
the City Council approval of amending Section 25.34.120 "Medical
Marijuana Dispensaries."Motion carried by a 5-0 vote.
Any appeal of the above action may be made in writing to the City Clerk, City of Palm
Desert, within fifteen (15) days of the date of the decision.
G7
Tony Bagato, Acting Secretary
Palm Desert Planning Commission
cc: File✓
Building & Safety Department
Public Works Department
Fire Marshal
E3�.aeM�nwrr
PLANNING COMMISSION RESOLUTION NO. 2657
AN RESOLUTIION OF THE PLANNING COMMISSION OF THE CITY OF
PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL
APPROVAL OF A ZONING ORDINANCE AMENDMENT (ZOA) THAT WILL
AMEND PALM DESERT MUNICIPAL CODE SECTION 25.34.120 TO
PROHIBIT CANNABIS DISPENSARIES, CANNABIS MANUFACTURES,
CULTIVATION, AND DELIVERY OF CANNABIS IN THE CITY OF PALM
DESERT
CASE NO. ZOA 15-322
WHEREAS, in 1996, the voters of the State of California approved Proposition 215
(codified as Health & Safety Code Section 11362.5 et seq. and entitled "The
Compassionate Use Act of 1996"); and
WHEREAS, the intent of Proposition 215 was to enable seriously ill Californians to
legally possess, use, and cultivate marijuana for medical use under state law; and
WHEREAS, in 2003, the California Legislature adopted SB 420, the Medical
Marijuana Program ("MMP"), codified as Health and Safety Code Section 11362.7 et seq.,
which permits qualified patients and their primary caregivers to associate collectively or
cooperatively to cultivate marijuana for medical purposes without being subject to criminal
prosecution under the Penal Code; and
WHEREAS, neither the Compassionate Use Act ("CUX) nor the MMP require nor
impose an affirmative duty or mandate upon local governments to allow, authorize, or
sanction the establishment of facilities that cultivate or process medical marijuana within its
jurisdiction; and
WHEREAS, in May 2013, the California Supreme Court issued its decision in City of
Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th
729, holding that cities have the authority to regulate or ban outright medical marijuana land
uses; and
WHEREAS, under the Federal Controlled Substances Act, codified in 21 U.S.C.
Section 801 et seq., the use, possession, and cultivation of marijuana are unlawful and
subject to federal prosecution without regard to a claimed medical need; and
WHEREAS, on October 9, 2015, Governor Jerry Brown signed the "Medical
Marijuana Regulation and Safety Act' ("Act') into law; and
WHEREAS, the Act becomes effective January 1, 2016, and contains provisions
which allow for local governments to regulate licenses and certain activities thereunder; and
WHEREAS, the Act contains a provision which sets forth that the State shall become
the sole authority for regulation under certain parts of the Act, unless local governments
have "land use regulations or ordinances regulating or prohibiting the cultivation of
PLANNING COMMISSION RESOLUTION NO. 2657
marijuana..." (Health and Safety Cade §11362.777(c)(4); and
WHEREAS, several California cities have reported negative impacts of marijuana
cultivation, processing, and distribution uses, including offensive odors, illegal sales, and
distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire
hazards, and problems associated with mold, fungus, and pests; and
WHEREAS, marijuana plants, as they begin to flower and for a period of two months
or more, produce a strong odor, and detectable far beyond property boundaries if grown
outdoors; and
WHEREAS, the strong smell of marijuana creates an attractive nuisance, alerting
persons to the location of the valuable plants, and creating a risk of burglary, robbery, or
armed robbery; 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, the 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 Y
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's Municipal Code ("Code") does not address the cultivation,
processing, delivery and distribution of medical cannabis; and
WHEREAS, based on the findings above, the potential establishment of cannabis
dispensaries, cultivation, cannabis manufacturers and delivery of cannabis 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 cannabis
dispensaries, cultivation, cannabis manufacturers and delivery of cannabis will result in the
aforementioned threat to public health, safety, or welfare.
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PLANNING COMMIS& A RESOLUTION NO. 2657
NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF
THE CITY OF PALM DESERT, CALIFORNIA, AS FOLLOWS:
L 1. That the above recitations are true and correct and constitute the findings of the
Planning Commission in this case.
2. That the Planning Commission does hereby recommend approval of ZOA 15-
322, as described in Exhibit A attached.
PASSED, APPROVED AND ADOPTED by the Planning Commission of the City of
Palm Desert, California, at its regular meeting held on the 15` day of December, 2015, by the
following vote, to wit:
AYES: CAMPBELL, DE LUNA, GREENWOOD, PRADETTO and STENDELL
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
EN ST NDELL, CHAIRPERSON
ATTEST:
TO NY BAGATO, ACTING SECRETARY
CITY OF PALM DESERT, CALIFORNIA
L
3
PLANNING COMMISSION RESOLUTION NO. 2657
EXHIBIT A
PDMC SECTION: 25.34.120 - MEDICAL CANNABIS USES
A. Purpose and Intent
1. It is the purpose and intent of this Section, pursuant to the City's constitutional and
charter authority to promote and protect the health, safety, and general welfare of
the residents and businesses within the City by regulating the cultivation, distribution,
delivery and processing of medical cannabis.
2. Nothing in this chapter shall be construed to (1) permit persons to engage in conduct
that endangers others or causes a public nuisance, (2) permit the use or cultivation
of cannabis for non-medical purposes, or (3) permit any activity relating to the
dispensing, cultivation, processing, delivery or distribution of cannabis that is illegal
under state or federal law.
B. Definitions
For purposes of this Section, the following definitions shall apply:
1. "Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica,
or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether
crude or purified, extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
"Cannabis" also means the separated resin, whether crude or purified, obtained from
marijuana. "Cannabis" also means marijuana as defined by Section 11018 of the
Health and Safety Code as enacted by Chapter 1407 of the Statutes of 1972.
2. "Cannabis dispensary means a facility where cannabis, cannabis products, or
devices for the use of cannabis or cannabis products are offered, either individually
or in any combination, for retail sale, including an establishment that delivers
cannabis and cannabis products as part of a retail sale.
3. "Cannabis manufacturer" means a person that conducts the production, preparation,
propagation, or compounding of manufactured cannabis, or cannabis products either
directly or indirectly or by extraction methods, or independently by means of
chemical synthesis or by a combination of extraction and chemical synthesis at a
fixed location that packages or repackages medical cannabis or cannabis products
or labels or relabels its container.
4. "Cultivation" means any activity involving the planting, growing, harvesting, drying,
curing, grading, or trimming of cannabis.
5. "Delivery' means the commercial transfer of cannabis or cannabis products. r
4
PLANNING COMMIS&-- RESOLUTION NO. 2657
C. Prohibited Activities
1. Cannabis dispensaries, cultivation, cannabis manufacturers, delivery of cannabis,
and other medical cannabis uses, as defined herein, shall be considered prohibited
uses 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 or operation of a dispensaries, cannabis
cultivation, cannabis manufacturers, and delivery of cannabis as defined herein in
any zoning district, and no person shall otherwise establish such businesses or
operations in any zoning district.
2. Nothing in this Section shall be construed to permit the sale, processing, or
distribution of medical cannabis for commercial use or profit as is otherwise
prohibited under state or federal law.
D. Prohibited Activities Declared a Public Nuisance
Any use or condition caused or permitted to exist in violation of this Section shall be and
is hereby declared a public nuisance that may be abated by the City and/or subject to all
available legal remedies, including but not limited to civil injunctions.
E. Penalties for Violations
r 1. Violations of this Section constitute an infraction or misdemeanor and may be
!L enforced by any applicable law. Notwithstanding any other provision of this Code, a
violation of this Section is subject to civil and criminal penalties.
2. Each person is guilty of a separate offense each day a violation is allowed to
continue and every violation of this chapter shall constitute a separate offense and
shall be subject to all remedies."
6.,
5
The Desert Sun
750 N Gene Autry Trail Certificate of Publication '
Palm Springs, CA 92262 k E C E I V E U City of Palm Desert
760-7784578/Fax 760-7784731 CITY CLERK'S OFFICE Community Development
PALM DESERT, CA
State Of California as: NOV 2 4 2015
County of Riverside 2915 NOV 24 AM 10: 44
Advertiser: CITY OF PALM DESERT
73510 FRED WARING DR
PALM DESERT , CA 92260
Order# 0000878559
1 am over the age of 18 years old, a citizen of
the United States and not a party to,or have
interest in this matter. I hereby certify that the
attached advertisement appeared in said
newspaper(set in type not smaller than non
panel) in each and entire issue of said
newspaper and not in any supplement thereof
on the following dates,to wit:
Newspaper: The Desert Sun
11/21/2015
No 1664: CITY OF PALM DESERT LEGAL NOTICE CASE NO.ZOA 15.322
NOTICE OF INTENT TO ADOPT A ZONING ORDINANCE AMENDMENT UPDATING
SECTION 25.34.120 TO PROHIBIT CANNABIS DISPENSARIES, CANNABIS MANU-
I acknowledge that I am a principal clerk of the FACTURES,CULTIVATION AND DELIVERY OF CANNABIS IN THE CITY.
CEQA Review.The Ordinance Is net suC'ect to environmental review under the
printer of The Desert Sun, printed and California Environm
ental Quality AR ( EQA) pursuant to Sections 150601J(2)
(the activities will not result in a direct or reasonably foreseeable Indirect physi-
published weekly In the City Of Palm Springs, cal change in the environment),15060(J(3) (the activities are not"projects" as
defined m Section 15378)of the CEQA Guidelines, California Code o Regula-
County of Riverside, State of California.The Lions,Title 14,Chapter 3{¢because they have no tential for resultingy in physi-
cal changge to the environment directly or in irectly and-15061(b)l3) seht
Desert Sun was adjudicated a Newspaper of CEQA Guidelines,California Code of Regulations,Title 14,Chapter$
general circulation on March 24, 1988 b the can be seen with certainty that it will not have a significant effM or physical
9 y change to the environment.
Superior Court of the
C Of Project Location/Description :City-wide
p ry Riverside, Recommendation:Staff is recommending approval of the Zoning Ordinance
State of California Case No. 191236. Amendment
Public Hearing: The public hearing will be held before the Planning Comrois-
slon on December 1,at 6:00 pm.
Public Review: The Zoning Ordinance Amendment is available for public re-
view daily at City Hall.Please submit written comments to the Planning Depart-
ment If any group challenges the action in court,issues raised may be limited
to only those issues raised at the public hearing described In this notice or in
written correspondence at, or prior to the Planning Commission hearing. All
I declare under penalty of perjury that the comments ony Eagato,Acting Duestions irlector of Cod be mmun ry Development
City of Palm Desert
foregoing is true and correct. Executed On 73-510 Fred Waringg Drive,Palm Desert,CA 92260
(760)346-o611 e#.480 tbagato0cityofpalmdesert.org
this 21rst day of NOVEMBER, 2015 in Palm Tony Bagato,Secretary PubllsMd:11/21/2016
Palm Desert Planning Commission _.
Springs, C rnia. - -' -
Declarant
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
PLANNING COMMISSION STAFF REPORT
REQUEST: CONSIDERATION OF A RECOMMENDATION TO CITY COUNCIL
FOR APPROVAL OF A ZONING ORDINANCE AMENDMENT (ZOA)
THAT WILL AMEND PALM DESERT MUNICIPAL CODE SECTION
25.34.120 TO PROHIBIT CANNABIS DISPENSARIES, CANNABIS
MANUFACTURES, CULTIVATION, AND DELIVERY OF CANNABIS
IN THE CITY OF PALM DESERT
SUBMITTED: Tony Bagato, Acting Director of Community Development
APPLICANT: City of Palm Desert
CASE NO: ZOA 15-322
DATE: December 1, 2015
CONTENTS: 1. Draft Planning Commission Resolution No. 2657
2. Legal Notice
3. BB&K Memo
Recommendation
Waive further reading and adopt Planning Commission Resolution No. 2657
recommending approval of ZOA 15-322 amending Palm Desert Municipal
Code Section 25.34.120.
Executive Summary
Approval of staff's recommendation will support a Citywide ban on medical cannabis
dispensaries, cultivation, and transportation/delivery. Due to changes in state law, the City
must adopt an ordinance to regulate or prohibit medical marijuana/cannabis before March 1,
2016. If the City does not adopt any regulations or establish a prohibition before March 1,
2016, only the State regulations apply to medical marijuana/cannabis use within the City.
Background
In December 2005, the City Council adopted Ordinance No. 1106, Chapter 25.34.120 of the
Palm Desert Municipal Code relative to Medical Marijuana Dispensaries as an urgency
ordinance prohibiting dispensaries within the City limits. The current ordinance does not
specifically prohibit other medical cannabis uses, such as planting, growing, harvesting,
drying, storing, processing, or delivery. The City has received several citizen complaints
regarding medical marijuana cultivation, processing and delivering in residential and
Staff Report
ZOA 15-322 - Cannabis
Page 2 of 4
December 1, 2015
commercial districts. The reporting parties indicate that this activity creates health and
safety concerns, noxious odors, and an increase in unwanted vehicular traffic within
neighborhoods.
The California legislature recently adopted legislation identified as the Medical Marijuana
Regulation and Safety Act (AB 243, AB 266, and SIB 643)(MMRSA) to comprehensively
regulate medical marijuana (medical cannabis). The MMRSA recognizes and preserves
local control to regulate or ban medical cannabis cultivation, transportation, and distribution.
The MMRSA confirms and clarifies that, in addition to the complete land use control over
retail dispensaries recognized in the City of Riverside v. Inland Empire Patients Health and
Wellness Center, Inc. (2013) 56 Cal. 4th 729, municipalities have the power to regulate or
ban the cultivation and distribution of medical marijuana. Maral v. City of Live Oak (2013)
221 Cal.AppAth 975.
Although the MMRSA allows municipalities to regulate or ban cannabis cultivation,
manufacturing, transportation, and distribution of medical cannabis within their jurisdictions,
it requires some local enabling legislation to accomplish some aspects of the regulations a
jurisdiction wants to adopt. If a city or county chooses to regulate these activities
comprehensively, it must adopt an overlay of local regulatory standards that are at least as
strict as the state's default regulations. Specifically, the MMRSA provides that if a city or
county has not banned or regulated cannabis cultivation by March 1, 2016, then cultivation
in that jurisdiction will be subject only to state law on this issue.'
Discussion
Although a "prohibited unless permitted" zoning ordinance has been interpreted by the
courts to prohibit marijuana dispensaries, to some, the Riverside decision leaves open the
following issues:
• Whether a city's "similar use determination" is potentially available to determine that
marijuana dispensaries and cultivation are similar to other permitted uses and thus
should also be permitted (i.e., listed marijuana uses as expressly prohibited and not
subject to the similar use determination would remove all doubt); and
• Whether transportation and non-retail distribution are regulated under existing
municipal zoning codes.
The MMRSA gives the City explicit authority to close these issues.
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
' It is possible that this deadline provision will be repealed and allow cultivation regulation any time.
Staff Report
ZOA 15-322 - Cannabis
Page 3 of 4
December 1, 2015
air quality, energy, and water quality damage and impair building maintenance and safety.
For example, the increased moisture necessary to grow marijuana indoors can create
excessive mold growth and structural damage. Additionally, the equipment utilized to grow
marijuana 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.
Staff is recommending that the City adopt an ordinance banning or regulating these uses.
This is especially important in light of the looming March 1, 2016, deadline to adopt
cultivation regulations or a ban.
Staff is recommending that the City develop regulations or adopt a ban for: 1) medical
marijuana distribution facilities; 2) marijuana cultivation; and 3) marijuana transportation.
Regulations of Medical Cannabis Dispensaries
As indicated above, the City of Riverside successfully defended its total ban of medical
cannabis distribution facilities. The City of Riverside zoning ordinance categorizes medical
marijuana dispensaries as prohibited uses throughout the city and provides that they may
be abated as public nuisances.
While the City of Riverside has exercised a total ban on medical marijuana dispensaries,
other cities have decided to permit and regulate dispensaries within their jurisdiction.
Regulations can include, for example:
• Limiting the number of dispensaries.
• Separation requirements from parks, schools, churches, and other dispensaries.
• Limiting the use to a specific zoning designation.
• Security requirements for the operation of the dispensary.
• Hours of operation.
• Loitering prohibition.
Regulation of Medical Cannabis Cultivation
The City of Live Oak has successfully defended a total ban on the cultivation of marijuana
for any purpose within that city. It's legally upheld regulation provides that "marijuana
cultivation by any person, including primary caregivers and qualified patients, collectives,
cooperatives, or dispensaries" is prohibited in all zones. The MMRSA allows this approach.
Alternatively, some cities are allowing cultivation with regulations such as:
• Outdoor, residential cultivation so long as plants are enclosed, screened, and five (5)
feet from the property line.
• Indoor cultivation only with a permit.
• Property owner must approve of cultivation on the property.
• Limiting number of plants.
Staff Report
ZOA 15-322 - Cannabis
Page 4 of 4
December 1, 2015
Should the City choose to leave cultivation unregulated, under the currently enacted version
of the MMRSA, on March 1, 2016, only state law would control cultivation activities in Palm
Desert.
Regulation of Cannabis Delivery
Mobile delivery of products consistently creates issues for cities because of the inherent
transitory nature of the activity. A quick search of weedmaps.com identifies several
cannabis dispensaries that currently operate in Palm Desert. These mobile delivery services
are often attempts to avoid the effects of local dispensary bans. State law will regulate the
delivery of medical marijuana unless delivery is explicitly prohibited by local ordinance. In
light of the foregoing, the City has the option to ban or regulate mobile delivery. Regulations
could include the following:
• Hours of operation.
• Amount of money or marijuana that can be carried at one time.
• Time spent at one location.
Conclusion
The City has multiple options for the ban or regulation of medical cannabis. Due to the
complexity of the legal and social issues surrounding medical cannabis, staff is
recommending that the City institute a complete ban on medical cannabis dispensaries,
cultivation, and transportation/delivery.
Environmental
The Ordinance is not subject to environmental review under the California Environmental
Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activities will not result in a direct
or reasonably foreseeable indirect physical change in the environment),15060(c)(3) (the
activities are not "projects" as defined in Section 15378) of the CEQA Guidelines, California
Code of Regulations, Title 14, Chapter 3, because they have no potential for resulting in
physical change to the environment, directly or indirectly and 15061(b)(3) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it can be seen with
certainty that it will not have a significant effect or physical change to the environment.
Submitted By:
Tony Bagato, Acting Director of Community Development
PLANNING COMMISSION RESOLUTION NO. 2657
AN RESOLUTIION OF THE PLANNING COMMISSION OF THE CITY OF
PALM DESERT, CALIFORNIA RECOMMENDING TO CITY COUNCIL
APPROVAL OF A ZONING ORDINANCE AMENDMENT (ZOA) THAT WILL
AMEND PALM DESERT MUNICIPAL CODE SECTION 25.34.120 TO
PROHIBIT CANNABIS DISPENSARIES, CANNABIS MANUFACTURES,
CULTIVATION, AND DELIVERY OF CANNABIS IN THE CITY
CASE NO. ZOA 15-322
WHEREAS, in 1996, the voters of the State of California proved Proposition 215
(codified as Health & Safety Code Section 11362.5tetseq. and entitled "The
Compassionate Use Act of 1996"); and
WHEREAS, the intent of Proposition 215 w:a' to enable seriously. ill Californians to
legally possess, use, and cultivate marijuana for medical use under statelaw;yand
WHEREAS, in 2003, the California gislature.ad pted SB 420,,,,,the Medical
Marijuana Program ("MMP"), codified as Health`dhd Safety Code Section 11362.7 et seq.,
:;...
which permits qualified patients and their primary caregivers to associate collectively or
o ::_
cooperatively to cultivate marijuana for-medical purp -ses,without being subject to criminal
prosecution under the Penal Code; and =
WHEREAS, neither the Compassionate Use Act(`CUA. nor the MMP require nor
impose an affirmative duty oP mandate`Kupon 16cal governments to allow, authorize, or
sanction the establishment of facilities�
rF
that cultivate or process medical marijuana within its
jurisdiction; and '�
y �4 Al
WHEREAS i May 201.3'fthe California Supreme Court issued its decision in City of
Riverside v. Inland Empire Writs"Health°and`VWellness Center, Inc. (2013) 56 Cal. 4th
729, holding`` 'hat°.cities have the authority to'regulate or ban outright medical marijuana land
uses and
";,",;,z
1NHEREAS, un er'the Federal Controlled Substances Act, codified in 21 U.S.C.
Section :801 et seq., the%use, po session, and cultivation of marijuana are unlawful and
subject to feil:eral prosecutionpithout regard to a claimed medical need; and
E
WHEREA °. on Oct'bber 9, 2015, Governor Jerry Brown signed the "Medical
. , .
Marijuana Regulationgand•Safety Act" ("Act") into law; and
WHEREAS, the Act becomes effective January 1, 2016, and contains provisions
which allow for local governments to regulate licenses and certain activities thereunder; and
WHEREAS, the Act contains a provision which sets forth that the State shall become
the sole authority for regulation under certain parts of the Act, unless local governments
have "land use regulations or ordinances regulating or prohibiting the cultivation of
marijuana..." (Health and Safety Code §11362.777(c)(4), and
PLANNING COMMISSION RESOLUTION NO. 2657
WHEREAS, several California cities have reported negative impacts of marijuana
cultivation, processing, and distribution uses, including offensive odors, illegal sales, and
distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire
hazards, and problems associated with mold, fungus, and pests; and
WHEREAS, marijuana plants, as they begin to flower and for a period of two months
or more, produce a strong odor, and detectable far beyond property boundaries if grown
outdoors; and
WHEREAS, the strong smell of marijuana creates an attractive nuisance, alerting
persons to the location of the valuable plants, and creating a risk of burglary, robbery, or
armed robbery; and '
4. �=
WHEREAS, the indoor cultivation of marijuana,has pot enfia�IKadverse 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 le ad to chemical
contamination within the structure; and
WHEREAS, the Attorney General's August�2008.Guidelines for the Security and
Non-Diversion of Marijuana Grown f6f.Medical Use recognizes that the cultivation or other
concentration of marijuana in any location, premisesXwithout adequate security increases
the risk that nearby homes or businesses maybe negatively impacted by nuisance activity
such as loitering or crime andAN
ri>>
WHEREAS, basocl.�,on�the,experien sl of other cities, these negative effects on the
public health, safety.jeand 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
b � £
{ F 6•
WHEREAS- the City's Mun icipal Code ("Code") does not address the cultivation,
proce �g, delroery;and distnbution of medical cannabis; and
AN
WHEREAS, basedon tlie. findings above, the potential establishment of cannabis
:,..�. .
dispensaries, cultivation, eannabis'manufacturers and delivery of cannabis uses in the City
without regulation poses a-meurrent and immediate threat to the public health, safety and
welfare in they City due t' "the negative land use and other impacts of such uses as
described above;;and
WHEREAS;\tle issuance or approval of business licenses, subdivisions, use
permits, variances, building permits, or any other applicable entitlement for cannabis
dispensaries, cultivation, cannabis manufacturers and delivery of cannabis will result in the
aforementioned threat to public health, safety, or welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF
THE CITY OF PALM DESERT, CALIFORNIA, AS FOLLOWS:
1. That the above recitations are true and correct and constitute the findings of the
Planning Commission in this case.
2
PLANNING COMMISSION RESOLUTION NO. 2657
2. That the Planning Commission does hereby recommend approval of ZOA 15-
322, as described in Exhibit A attached.
PASSED, APPROVED AND ADOPTED by the Planning Commission of the City of
Palm Desert, California, at its regular meeting held on the 1s` day of December, 2015, by the
following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
KEWSTENDELL, CHAIRPERSON
ATTEST:
TONY BAGATO ACTING SECRET
CITY OF PALM DESERT CALIFORN.IAa)
3
PLANNING COMMISSION RESOLUTION NO. 2657
EXHIBIT A
PDMC SECTION: 25.34.120 - MEDICAL CANNABIS USES
A. Purpose and Intent
1. It is the purpose and intent of this Section, pursuant to the City's constitutional and
charter authority to promote and protect the health, safety., and general welfare of
the residents and businesses within the City by regulating,the;cultivation, distribution,
delivery and processing of medical cannabis.
2. Nothing in this chapter shall be construed to (1) permit persons to engage in conduct
that endangers others or causes a public nuisance,''(2) permit4he use or cultivation
of cannabis for non-medical purposes, ov(3)hermit any activity relating to the
dispensing, cultivation, processing, delivery or distribution of cannabis that is illegal
under state or federal law.
B. Definitions
For purposes of this Section, the,following definitions shall apply:
1. "Cannabis" means all parts of the,plant Cannabis sativa Linnaeus, Cannabis indica,
or Cannabis ruderalis, whether growing o not;-the seeds thereof; the resin, whether
crude or purified .�emracted from anyopart of the plant; and every compound,
manufacture, salt, derivative mixture�orpreparation.of the plant, its seeds, or resin.
"Cannabis" also means the_separated.resm, whether crude or purified, obtained from
marijuana.<`Cannabis" also'-means marijuana as defined by Section 11018 of the
Health and Safety Code as enacted by Chapter 1407 of the Statutes of 1972.
2. "Car6dbrsadispensary means a facility where cannabis, cannabis products, or
devices for.the use of cannabis or cannabis products are offered, either individually
or,in any combination; for retail sale, including an establishment that delivers
cannabis and cannabis products as part of a retail sale.
3. "Cannabis manufac't er" means a person that conducts the production, preparation,
propagation, or compounding of manufactured cannabis, or cannabis products either
directly'�or-.indirecfly/or by extraction methods, or independently by means of
chemical synthesis�or by a combination of extraction and chemical synthesis at a
fixed location,that packages or repackages medical cannabis or cannabis products
or labels or relabels its container.
4. "Cultivation" means any activity involving the planting, growing, harvesting, drying,
curing, grading, or trimming of cannabis.
5. "Delivery" means the commercial transfer of cannabis or cannabis products.
4
PLANNING COMMISSION RESOLUTION NO. 2657
C. Prohibited Activities
1. Cannabis dispensaries, cultivation, cannabis manufacturers, delivery of cannabis,
and other medical cannabis uses, as defined herein, shall be considered prohibited
uses 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 or operation of a dispensaries, cannabis
cultivation, cannabis manufacturers, and delivery of cannabis as defined herein in
any zoning district, and no person shall otherwise establish such businesses or
operations in any zoning district.
r
2. Nothing in this Section shall be construed to permitthe sale, processing, or
distribution of medical cannabis for commercial use or�,profit as is otherwise
prohibited under state or federal law.
D. Prohibited Activities Declared a Public Nuisance
Any use or condition caused or permitted tot in violation of this Section}shall be and
is hereby declared a public nuisance that maa beabated_by the City and/or subject to all
available legal remedies, including but not limit dtocivil'injunctions.
E. Penalties for Violations
1. Violations of this Section constitute an infraction ormisdemeanor and may be
enforced by any applicable law. Notwithsta ding-any other provision of this Code, a
violation of this Section''is�ubject to civil=and cnminakpenalties.
2. Each person Js guilty of a s arate nse each day a violation is allowed to
continue and every violation`of this chapter shall constitute a separate offense and
shall be subject to all remedies
5
CITY OF PALM DESERT
LEGAL NOTICE
CASE NO. ZOA 15-322
NOTICE OF INTENT TO ADOPT A ZONING ORDINANCE AMENDMENT UPDATING
SECTION 25.34.120 TO PROHIBIT CANNABIS DISPENSARIES, CANNABIS
MANUFACTURES, CULTIVATION AND DELIVERY OF CANNABIS IN THE CITY.
CEQA Review: The Ordinance is not subject to environmental review under the
California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the
activities will not result in a direct or reasonably foreseeable indirect physical change in
the environment),1 5060(c)(3) (the activities are not "projects" as defined in Section
15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because they have no potential for resulting in physical change to the environment,
directly or indirectly and 15061(b)(3) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it can be seen with certainty that it will not
have a significant effect or physical change to the environment.
Project Location/ Description: City-wide
Recommendation: Staff is recommending approval of the Zoning Ordinance Amendment.
Public Hearing: The public hearing will be held before the Planning Commission on December
1, at 6:00 pm.
Public Review: The Zoning Ordinance Amendment is available for public review daily at City
Hall. Please submit written comments to the Planning Department. If any group challenges the
action in court, issues raised may be limited to only those issues raised at the public hearing
described in this notice or in written correspondence at, or prior to the Planning Commission
hearing. All comments and any questions should be directed to:
Tony Bagato, Acting Director of Community Development
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
(760) 346-0611 ext.480
tbagato@cityofpalmdesert.org
PUBLISH: Desert Sun Tony Bagato, Acting Secretary
November21, 2015 Palm Desert Planning Commission
I
BEST BEST &KMEGER
ATTORNEYS AT LAW
Memorandum
To: City Council
From: City Attorney
Date: November 12, 2015
Re: Potential Changes to the Palm Desert Municipal Code in Light of New Medical
Marijuana Legislation
QUESTION PRESENTED
Does the City of Palm Desert need to update its municipal code provisions
regarding medical marijuana regulation in light of new state legislation?
BRIEF ANSWFR
Yes, the City will be required to take immediate action if it wishes to institute a
complete ban against or regulate medical marijuana cultivation and/or mobile medical
marijuana dispensaries.
ANALYSIS
The California legislature recently adopted The Medical Marijuana Regulation and Safety
Act (Act), to comprehensively regulate medical marijuana. Under the Act, the City can either
ban or regulate medical marijuana cultivation, manufacturing, dispensaries, and distribution.
A. Brick-And-Mortar Medical Mariivana Dispensaries
The Palm Desert Municipal Code ("PDMC" or "Code") currently bans brick-and-
mortar medical marijuana dispensaries in all City zones. (PDMC § 25.34.120.) The City has the
authority to ban medical marijuana dispensaries outright or use traditional land use and police
powers to regulate them. (City of Riverside v. Inland Empire Patients Health and Welhiess
Center, hic. (2013) 56 Cal. 4th 729.) So far, the City has chosen to institute an outright ban on
dispensaries and this ban has successfully prevented any dispensaries from operating in Palm
Desert.
The Act will not require any amendment to the Code with regard to medical
marijuana dispensaries. Such dispensaries will continue to be prohibited in Palm Desert unless
the Code is amended to say otherwise. However, the City will be required to take immediate
action if it wishes to institute a complete ban against or regulate medical marijuana cultivation
and/or mobile medical marijuana dispensaries.
I lei iX
BEST BEST & KRIEGER 3
ATTORNEYS AT LAW
B. Cultivation
Under the Act, if the City wishes to ban or regulate medical marijuana
cultivation, it must adopt an ordinance addressing those goals prior to March 1, 2016.
Otherwise, the City will lose its authority to ban or regulate cultivation within its city limits. The
State would then become the sole licensing authority. The Act's author has agreed to remove this
strict deadline via clean-up legislation, but to be safe; the City should enact an ordinance by the
end of February 2016 to protect its interests.
Under case law, and as confirmed by the Act, the City may institute a complete
ban on medical marijuana cultivation (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975)
or regulate it, for example, by banning all outdoor cultivation, banning all indoor cultivation,
requiring a permit, or limiting the number of plants that can be cultivated on any given parcel.
Some cities that have regulated cultivation have experienced problems. For
example, the indoor cultivation of marijuana can have potential adverse effects to not only the
health and safety of the occupants but to the structures as well. 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 electrocution due to dangerous
electrical alterations and use. Further, the inadequate ventilation combined with the use of
pesticides and fertilizers in an enclosed space can lead to chemical contamination within the
structure.
If the City does intend to regulate cultivation, applicants would first have to
obtain a local permit or license and then would be allowed to apply for a state license. If this is
the City's intent, Best Best & Krieger LLP can assist with putting together the appropriate
framework.
C. Deliveries and Mobile Dispensaries
Under the Act, if the City wishes to ban or regulate deliveries or mobile
dispensaries, it must adopt an ordinance that explicitly prohibits or regulates these
activities. The Act specifically states that deliveries can only be made by a dispensary and in a
city, county, or city and county that does not explicitly prohibit it by local ordinance (Bus. &
Prof. Code, § 19340(a).) There is no similar March 1, 2016 deadline with respect to mobile
delivery, however, it is recommended that the City take related action on mobile delivery when it
acts on the cultivation issue.
Many cities have struggled with mobile delivery of medical marijuana. Mobile
delivery services frequently operate in an attempt to undermine local dispensary bans by
bringing marijuana directly to consumers. Mobile delivery has increased risks because it is
difficult to ensure the delivery business is fully complying with California law, or that these
businesses are providing appropriate medical services to patients in need. The City could ban
mobile dispensaries outright. Or, the City could choose to regulate their operation. For example,
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I lei Ck
BEST BEST & KMEGER
ATTORNEYS AT LAW
the City can control hours of operation, the amount of money or marijuana that can be carried at
one time, and even the amount of time spent at one location by these services. These regulations
could serve to mitigate some of the risks these mobile dispensaries pose.
CONCLUSION
If the City wishes to regulate or ban the cultivation of medical marijuana, it needs
to act before March 1, 2016. If the City would also like to regulate or ban mobile dispensaries, it
should do so in connection with its action on cultivation. Staff's recommendation to the City
Council is to retain the City's ban on brick-and-mortar dispensaries and to adopt outright bans on
both cultivation and mobile delivery. Attached to this memorandum are a draft ordinance and
staff report that would retain the ban on dispensaries and to also prohibit cultivation and mobile
delivery as discussed therein.
ROBERT HARGREAVES
JILL TREMBLAY
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