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HomeMy WebLinkAboutInitiate - ZOA to Establish Marijuana-Related Land UseREQUEST: CITY OF PALM DESERT COMMUNITY DEVELOPMENT DEPARTMENT STAFF REPORT DIRECT STAFF TO INITIATE A ZONING ORDINANCE AMENDMENT TO ESTABLISH MARIJUANA RELATED LAND USE STANDARDS IN ACCORDANCE WITH THE ADULT USE OF MARIJUANA ACT AND OTHER STATE ADOPTED MARIJUANA RELATED LAWS SUBMITTED BY: Eric Ceja, Principal Planner DATE: January 26, 2017 CONTENTS: Adult Use of Marijuana Act — Fact Sheet League of California Cities —Adult Use of Marijuana Act FAQs Recommendation By Minute Motion: That the City Council direct staff to initiate a Zoning Ordinance Amendment to establish marijuana land use standards in accordance with the Adult Use of Marijuana Act (AUMA) and other State adopted marijuana related laws. Background On November 8, 2016, California voters approved Proposition 64 — the Adult Use of Marijuana Act (AUMA). This proposition allows adults over the age of 21 to use marijuana for recreational purposes under certain conditions. The AUMA also permits residents to grow up to six plants on their property and allows local jurisdictions to retain local control and establish individual land use restrictions. In February 2016, the City Council directed staff to establish a "Cannabis Committee" to review criteria for medical marijuana delivery operators. The Committee is comprised of two Councilmembers, a Planning Commissioner, a cannabis delivery operator, a medical doctor, Code Compliance staff, the Sheriff's Department, and Planning Department staff. The Committee met several times during 2016 and ultimately decided not to recommend any land use regulation until voters weighed in on Proposition 64. Since passage of the AUMA the Committee has met once and is recommending that the Council direct staff and the Committee to review and establish new land use regulations related to the AUMA and medical marijuana. Although adult use of marijuana is permitted at this time, commercial operations must receive licensure from the State "Bureau of Marijuana Control" (currently the "Bureau of Medical Cannabis Regulation"). The Bureau has until January 1, 2018 to establish a regulatory and permitting process for commercial licensure; however, the Bureau may issue licenses before 2018. Staff anticipates working quickly to address specific land use and business regulations related to marijuana, but may need to bring additional amendments to the ordinance in this initial year. Below is an anticipate schedule to establish a new ordinance: Staff Report Prop 64 — City Cannabis Ordinance Page 2of2 January 26, 2017 January 2017: City Council directs staff to initiate ZOA January — March: Work with Cannabis Committee to draft land use standards March 2017: April 2017: May 2017: June 2017: Review ZOA with Planning Commission Review ZOA with City Council 2nd Reading of ZOA with City Council Ordinance effective Due to the changes created by the AUMA, staff is recommending that the City Council initiate a Zoning Ordinance Amendment. Fiscal Impact There is no fiscal impact associated with a City initiated Zoning Ordinance Amendment. The future fiscal impact of taxable retail sales or policing of cannabis is unknown at this time. Submitted By: v Eric Ceja, Principlanner DepartmentHead: Ryan StenaeirDirector of Community Development Approva Lauri Aylaian, City Manager November 22. 2016 LEAGL E CITIES Frequently Asked Questions (FAQs) Adult Use of Marijuana Act' Proposition 64 Ouestion#1: When does the AUMA take effect? Answer: The AUMA took effect November 9, 2016. the day after the election. But note. the AUMA requires a state license to engage in commercial nonmedical marijuana activity. Licensing authorities are required to begin issuing licenses by January 1, 2018 and the League anticipates that the issuance of licenses will not occur much in advance of January 1, 2018. Thus, the AUMA provisions legalizing commercial nonmedical marijuana activity will not become operational until the state begins issuing licenses (likely in late-2017). The AUMA provisions legalizing personal use and cultivation of nonmedical marijuana took effect November 9, 2016. Ouestion #2: Can private individuals cultivate nonmedical marijuana at home beginning November 9. 2016? Answer: Yes, within a private residence by a person 21 years and older for personal use. The AUMA provides that local governments can reasonably regulate, but cannot ban the personal indoor cultivation of up to six nonmedical marijuana plants per private residence. This includes cultivation in a greenhouse that is on the property of the residence but not physically part of the home, as long as it is fully enclosed, secure, and not visible from a public space. Because this activity is not subject to state licensing requirements, individuals may engage in personal indoor cultivation beginning November 9, 2016, unless a city enacts an ordinance imposing a reasonable regulatory scheme that would preclude them from doing so before complying with the city's regulatory requirements. Local governments may regulate or ban all personal outdoor cultivation. However, the AUMA includes language purporting to repeal any ordinance that bans personal outdoor I Please consult your City Attorney before taking action to implement the ALMA. The answers to these FAQs may he different in your city based upon your municipal code, regulations, and policies. The answers do not constitute legal advice from the League of California Cities®. 1 cultivation upon the California Attorney General's determination that nonmedical use of marijuana is lawful under federal law. Ouestion #3: Is there a limitation on the number of marijuana plants that can he cultivated within a single residence? Answer: Yes. Not more than six living plants may he planted. cultivated. harvested. dried. or processed within a single private residence. or upon the grounds of that private residence. at one time. A "residence" is defined as a house. an apartment unit. a mobile home. or other similar d« elling. No matter how many persons over 21 years of age are lip inc in a "residence." onl\ 6 living plants may be cultivated at one time. (Health & Safety § 11362.2(b)(3).) Ouestion #4: Can a landlord ban the cultivation smoking of marijuana on his or her property? Answer: Yes. An individual or private entity may prohibit or restrict personal possession. smoking. and cultivation of marijuana on the individual's or entity's privately owned property. A state or local government agency also may prohibit or restrict such activities on property owned, leased, or occupied by the state or local government. (Health & Safety §§ 11362.45(g) and (h).) •Ouestion # 5: Can a city ban personal indoor cultivation in all leased or multi -unit residences within the city? Answer: No. A city cannot prohibit personal indoor cultivation of marijuana in all leased or multi -unit residences within the city. However, because cities may reasonably' regulate personal indoor cultivation. a city might be able to condition permit approval for personal indoor cultivation in a leased residence on the applicant receiving permission from his or her landlord. •Ouestion # 6: Does a city's ban on commercial cultivation. personal outdoor cultivation. or retail sales of marijuana or marijuana products make it ineligible for state grant monies for law enforcement. fire protection. or other local programs addressing public health and safety associated with the implementation of Prop 64? Answer: Yes. If a city bans commercial cultivation, or personal outdoor cultivation, or retail sales of marijuana or marijuana products, it is ineligible to receive state grant monies funded through the new state excise taxes that take effect on January 1, 2018. (Revenue and Taxation Code § 34019(e)(3)(D).) Ouestion #7: What does the AUMA say about possession, transporting, purchasing or giving away of non -medical marijuana? Answer: A person 21 years of age or older may possess, process, transport, purchase or give away to persons 21 years of age or older not more than 28.5 grams of marijuana in the non -concentrated form and not more than 8 grams of marijuana in a concentrated 2 form including marijuana products. If the AUMA passes. these activities will be lawful under state law and cannot be prohibited under local law. Ouestion #8: Do cities that ban or regulate medical marijuana businesses need to update their ordinances to include nonmedical marijuana? Answer: Yes. The AUMA prohibits state licensing authorities from issuing a license to a commercial nonmedical marijuana business if operation of the business violates a local ordinance of the jurisdiction in which the business will operate. This means that a city wishing to adopt business or land use regulations prohibiting or regulating commercial nonmedical marijuana businesses must adopt an ordinance prior to the date the state begins issuing licenses. which the League anticipates will be in late 2017.- Question #9: Can cities be confident that a permissive zoning code, by itself. provides sufficient protection against nonmedical marijuana businesses setting up shop without local approval? Answer: No. It is unlikely that cities will succeed in arguing that nonmedical marijuana land uses are prohibited by permissive zoning codes under the AUMA, because the AUMA does not contain the same protective language as the MMRSA with respect to permissive zoning. Therefore. cities that wish to ban all or some nonmedical marijuana activities should adopt express prohibitions. even if they operate under a permissive zoning code. Ouestion #10: Are cities at risk of losing the opportunity to impose bans on personal outdoor cultivation if they don't act until after the November election? Answer: No. A city may adopt an ordinance banning or regulating personal outdoor cultivation at any time. Ouestion #11: Are cities at risk of losing the opportunity to impose bans on nonmedical marijuana businesses. if they don't act until after the November election? Answer: No. However, if a city does not adopt an ordinance expressly banning or regulating nonmedical marijuana businesses before the state begins issuing state licenses nonmedical businesses, a state -licensed nonmedical marijuana business will be able to operate within its jurisdiction without local permission or permitting. This is due to a provision in the AUMA that provides that state licenses cannot be issued where the activity would violate a local ordinance. If a jurisdiction has no ordinance regulating nonmedical marijuana businesses, then the local regulatory scheme is silent on that type of activity, and the state can unilaterally issue a license under terms fully compliant with the AUMA. Cities may adopt an ordinance expressly banning or regulating such operations after the state begins to issue licenses, but it will be difficult to terminate the state licensee's operations until the state license is up for renewal. Therefore, the best practice is to adopt an ordinance before the state begins issuing state licenses. Please see Question ii regarding the use of public roads for transportation and delivery. 3 Ouestion #12: Can cities ban deliveries under the AUMA? Answer: Yes. Cities can ban deliveries within their territorial limits. However, cities cannot prevent the use of public roads for the delivery of marijuana. For example, if a licensed delivery company located in City A must travel on public roads through City B to make an authorized delivery in City C, City B cannot prohibit the licensed delivery company from travelling on public roads in City B to get to City C. In addition, cities may not prevent the use of public roads within its jurisdiction to transport nonmedical marijuana. Ouestion #13: What is the best way for cities to notify the state licensing agencies of their local ordinances that regulate and/or prohibit commercial non -medical marijuana activities within their jurisdictions`? Answer: Unless the state licensing agencies indicate otherwise, cities should mail copies of their local ordinances that regulate or prohibit commercial nonmedical marijuana activities within their jurisdictions to the Department of Consumer Affairs, the Department of Food and Agriculture, and the Department of Public Health. Cities should regularly check each Department's wehsite to ensure that this practice complies with any regulations the Departments may pass regarding notice of local ordinances. In addition. Cities should ensure that any updates or amendments to local ordinances that regulate or prohibit commercial nonmedical marijuana activities are promptly submitted to each Department. 4 Adult Use of Marijuana Act — Fact Sheet The Adult Use of Marijuana Act (AUMA) was approved by California voters on November 8, 2016, and goes into effect November 9, 2016. The AUMA allows for adult recreational use of marijuana in the City of Palm Desert as described below. Personal Adult Use/Cultivation • Applies to any adult age 21 or over. • Any adult may generally: 1. Smoke or ingest marijuana or marijuana products in a private home or at a business licensed for on -site marijuana consumption. 2. Possess, process, transport, purchase or give away to other adults up to 28.5 grams (1 ounce) of marijuana in non -concentrated form up to eight (8) grams of marijuana in concentrated form. 3. Possess, plant, cultivate, harvest, dry, or process up to six (6) living marijuana plants for personal use within a private home, as long as the area is locked and not visible from a public place. :• Smoking marijuana is prohibited in the following circumstances: 1. In any public place. 2. Where tobacco is prohibited or as stipulated in the Palm Desert Municipal Code (PDMC) Chapter 8.36. 3. Within 1,000 feet of a school, day care center, or youth center when children are present. 4. While driving, or riding in the passenger seat of, any vehicle used for transportation. • No one may possess marijuana or marijuana products in the following circumstances: 1. On school grounds, in day care centers, or in youth centers while children are present. 2. In an open container while driving, operating, or riding in any vehicle used for transportation. 3. The City of Palm Desert may choose to ban all outdoor marijuana cultivation for recreational use and/or reasonably regulate indoor cultivation. Commercial Cultivation & Sale • No business may sell marijuana for recreational use until that business acquires a state license. State licenses will likely not be issued until January 2018. • The City of Palm Desert may enact a ban on, or regulations related to, nonmedical marijuana businesses.