HomeMy WebLinkAboutURGNCY Ord 1300 and Ord 1301 - PDMC 25.34.120CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: CONSIDERATION OF AN URGENCY ORDINANCE AND A ZONING
ORDINANCE AMENDMENT 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.
SUBMITTED: Tony Bagato, Acting Director of Community Development
APPLICANT: City of Palm Desert
CASE NO: Urgency Ordinance and ZOA 15-322
DATE: December 1, 2015
CONTENTS: Urgency Ordinance No.1300
Ordinance No. 1301
Legal Notices
BB&K Memo
Recommendation
Waive further reading, and:
1. Adopt Ordinance No. 1300 establishing an Interim Urgency Ordinance to
create a temporary moratorium on cannabis dispensaries, cannabis
manufacturers, cultivation, and delivery of cannabis in the City, and
2. Pass Ordinance No. 1301to seconding reading, approving ZOA 15-322
amending Palm Desert Municipal Code Section 25.34.120 to prohibit
cannabis dispensaries, cannabis manufacturers, cultivation, and delivery
of cannabis in the City.
Planning Commission Action
The proposed ZOA is scheduled for the December 1, 2015, Planning Commission meeting.
Staff will present the Planning Commission recommendation at the City Council meeting on
December 10, 2015.
Staff Report
Urgency Ordinance and ZOA 15-322 - Cannabis
Page 2 of 5
December 10, 2015
Executive Summa
Approval of staff's recommendation will approve an interim urgency ordinance to create a
temporary moratorium on cannabis dispensaries, cannabis manufacturers, cultivation, and
delivery of cannabis in the City, and will approve a Zoning Ordinance Amendment (ZOA)
that prohibit medical cannabis dispensaries, cultivation, and transportation/delivery.
Palm Desert Municipal Code Section 25.34.120 currently states: "Medical marijuana
dispensaries are prohibited in all City zones, and no permit shall be issued therefor." (Ord
No.1259). The current ordinance does not address marijuana/cannabis cultivation and
delivery, and staff is recommending an interim urgency ordinance establishing a temporary
moratorium on cannabis dispensaries, cannabis manufacturers, cultivation, and delivery of
cannabis in the City.
In addition, there have been recent changes in State law that will establish State regulations
after March 1, 2016. The City may pass an ordinance to regulate or prohibit medical
marijuana/cannabis before March 1, 2016, however, if the City does not adopt a new
ordinance, only the State regulations would apply to medical marijuana/cannabis use and
the City would not have the same control to regulate or prohibit them. Due to the complexity
of the legal and social issues surrounding medical cannabis, staff is recommending that the
City adopt a Zoning Ordinance Amendment that will institute a complete ban on medical
cannabis dispensaries, cultivation, and transportation/delivery.
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
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.
Staff Report
Urgency Ordinance and ZOA 15-322 - Cannabis
Page 3 of 5
December 10, 2015
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
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.
1 It is possible that this deadline provision will be repealed and allow cultivation regulation any time.
Staff Report
Urgency Ordinance and ZOA 15-322 - Cannabis
Page 4 of 5
December 10, 2015
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.
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:
Staff Report
Urgency Ordinance and ZOA 15-322 - Cannabis
Page 5 of 5
December 10, 2015
• 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), 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.
Fiscal Impact
No fiscal impact to the City associated with the Urgency Ordinance and the Zoning
Ordinance Amendment.
Submitted By:
Tony Bagato, Acting Iffirector of Community Development
M. Wohlmuth, City Manager
ORDINANCE NO. 1300
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF PALM DESERT, CALIFORNIA, ENACTED PURSUANT TO
CALIFORNIA GOVERNMENT CODE SECTION 65858 ESTABLISHING
A TEMPORARY MORATORIUM ON CANNABIS DISPENSARIES,
CANNABIS MANUFACTURERS, CULTIVATION, AND DELIVERY OF
CANNABIS IN THE CITY PENDING THE COMPLETION OF STUDIES
AND THE PREPARATION OF AN UPDATE TO THE CITY'S
MUNICIPAL AND ZONING CODES
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 ("CUK) 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
ORDINANCE NO.1300
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 & Saf. Code, §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
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 authorize, nor explicitly
prohibit, 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
RAI
ORDINANCE NO. 1300
dispensaries, cultivation, cannabis manufacturers and delivery of cannabis 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
cannabis dispensaries, cultivation, cannabis manufacturers and delivery of cannabis
uses in the City; and
WHEREAS, California Government Code Section 65858 expressly authorizes
the City Council to adopt by four -fifths (4/5) vote, without following the procedures
otherwise required for the adoption of a zoning ordinance, an urgency ordinance which
is necessary for the immediate protection of the public health, safety and welfare; and
WHEREAS, it is the present intention of the City Council to keep this Urgency
Ordinance in effect only until the adoption of an ordinance establishing regulations
regarding commercial and industrial cultivation, processing, and distribution of medical
marijuana in the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Incorporation of Recitals
The City Council hereby finds that all of the foregoing recitals and the staff report
presented herewith are true and correct and are hereby incorporated and adopted as
findings of the City Council as if fully 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. The Act becomes effective January 1, 2016 and contains provisions which
allow for local governments to regulate licenses and certain activities thereunder.
B. 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 in place.
C. To allow time for the City to consider, study, and enact regulations for medical
marijuana cultivation, processing, and distribution uses, it is necessary to temporarily
suspend the approval of any and all use permits, variances, building permits, or any
other entitlement or permit authorizing the establishment of marijuana cultivation uses,
3
ORDINANCE NO. 1300
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.
D. 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.
E. Without the imposition of a temporary moratorium on the establishment of
marijuana cultivation, processing, and dispensary uses as described herein, the City
anticipates that one (1) or more commercial cannabis cultivation centers may attempt to
locate in the City before a non -urgency ordinance would become effective.
F. 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 are established only under adequate regulations. Imposition of a moratorium
will allow the City sufficient time to conclude the preparation of a comprehensive
ordinance for the regulation of such activities.
SECTION 3. Urgent Need
Based on the foregoing recitals and findings, all of which are deemed true and
correct, this interim ordinance is urgently needed for the immediate preservation of the
public health, safety, and welfare. This interim ordinance shall take effect immediately
upon adoption and shall be of no further force and effect forty-five (45) days following
the date of its adoption unless extended in accordance with the provisions set forth in
Government Code Section 65858.
SECTION 4. Definitions
For purposes of this ordinance, the following definitions shall apply:
A. "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.
B. "Cannabis dispensary" means a facility where medical cannabis, cannabis
products, or devices for the use of cannabis or cannabis products are offered, either
9
ORDINANCE NO. 1300
individually or in any combination, for retail sale, including an establishment that delivers
medical cannabis and cannabis products as part of a retail sale.
C. "Cannabis manufacturer" means a person that conducts the production,
preparation, propagation, or compounding of manufactured medical 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
D. "Cultivation" means any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of medical cannabis.
E. "Delivery" means the commercial transfer of medical cannabis or cannabis
products.
SECTION 5. Prohibited Use
For the period of this ordinance or any extension thereof cannabis dispensaries,
cultivation, cannabis manufacturers, and delivery of cannabis, as defined herein, shall
be explicitly declared prohibited uses in all zoning districts of the City. During the
effective period of this ordinance, 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.
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
Urgency Ordinance. Every act prohibited or declared unlawful, and every failure to
perform an act made mandatory by this Urgency Ordinance, 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 Urgency Ordinance, any condition caused or permitted to
exist in violation of any of the provisions of this Urgency Ordinance is declared a public
nuisance and may be abated as provided in Chapter 8.20 of the Palm Desert 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 Palm Desert by Government Code 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
5
ORDINANCE NO. 1300
forty-five (45) days from the date of its adoption and shall thereafter be of no further
force and effect unless, after notice pursuant to Government Code Section 65090 and a
public hearing, the City Council extends the 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 cannabis cultivation, cannabis manufacturing, cannabis dispensary and
cannabis delivery 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
The City Council finds that this ordinance is not subject to the California
Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(3)
because this activity is not a project as defined by Section 15378 of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, 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 pursuant to
CEQA Guidelines Section 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.
SECTION 10. Severability
If any section, subsection, subdivision, sentence, clause, phrase, or portion of
this Urgency 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 Urgency Ordinance. The City Council hereby declares
that it would have adopted this Urgency 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.
0
ORDINANCE NO. 1300
SECTION 11. Publication
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 by the City Council of the City of Palm
Desert, California, at its regular meeting held on the day of
2015, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
APPROVED AS TO FORM:
ROBERT HARGREAVES
CITY ATTORNEY
Susan Marie Weber
MAYOR
rl
ORDINANCE NO. 1300
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF PALM DESERT )
I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, California, do hereby
certify that the foregoing Urgency Ordinance was adopted at a regular meeting of the
City Council of the City of Palm Desert held on the th day of 12015,
by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
ORDINANCE NO.1301
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA AMENDING PALM DESERT MUNICIPAL CODE
SECTION 25.34.120 TO PROHIBIT CANNABIS DISPENSARIES,
CANNABIS MANUFACTURERS, CULTIVATION, AND DELIVERY OF
CANNABIS IN THE CITY.
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 ("CUK) 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
marijuana..." (Health and Safety Code §11362.777(c)(4); and
ORDINANCE NO. 1301
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
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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NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm
Desert as follows:
SECTION 1. Incorporation of Recitals. The City Council hereby adopts the
foregoing recitals as its findings in support of the following regulations and further finds that
the following regulations are necessary and appropriate to protect the health, safety and
welfare of the residents and businesses of Palm Desert from the identified adverse impacts
of marijuana cultivation, processing, dispensing, delivery, and distribution within the City
limits.
SECTION 2. Amendment to the Palm Desert Municipal Code. Section 25.34.120
of the Palm Desert Municipal Code is hereby amended to read as follows:
"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.
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ORDINANCE NO. 1301
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.
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
1. Violations of this Section constitute an infraction or misdemeanor and may be
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."
SECTION 3. Compliance with the California Environmental Quality Act. The
City Council finds that this ordinance is not subject to the California Environmental Quality
Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(3) because this activity is
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ORDINANCE NO.1301
not a project as defined by Section 15378 of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, and pursuant to CEQA Guidelines Section 15061(b)(3)
because it can be seen with certainty that it will not have a significant effect or physical
change to the environment.
SECTION 4. 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 5. Publication. The City Clerk shall certify as to the adoption of this
Ordinance and shall cause it to be published within fifteen (15) days of the adoption and
shall post a certified copy of this 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 by the City Council of the
Desert, California, at its regular meeting held on the day of
2015, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT. CALIFORNIA
Susan Marie Weber
MAYOR
City of Palm
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CITY OF PALM DESERT
LEGAL NOTICE
INTERM URGENCY ORDINANCE
NOTICE OF INTENT TO ADOPT AN INTERIM URGENCY ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, ENACTED PURSUANT
TO CALIFORNIA GOVERNMENT CODE SECTION 65858 ESTABLISHING A
TEMPORARY MORATORIUM ON CANNABIS DISPENSARIES, CANNABIS
MANUFACTURERS, CULTIVATION, AND DELIVERY OF CANNABIS IN THE CITY
PENDING THE COMPLETION OF STUDIES AND THE PREPARATION OF AN
UPDATE TO THE CITY'S MUNICIPAL AND ZONING CODES
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 Interim Urgency Ordinance.
Public Hearing: The public hearing will be held before the City Council on December 10, at
4:00 pm.
Public Review: The Interim Urgency Ordinance 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 RACHELLE KLASSEN, CITY CLERK
NOVEMBER 29, 2015 PALM DESERT, CALIFORNIA
CITY OF PALM DESERT
LEGAL NOTICE
CASE NO. 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 City Council on December 10, at
4:00 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 RACHELLE KLASSEN, CITY CLERK
NOVEMBER 29, 2015 PALM DESERT, CALIFORNIA
BEST BEST & KRIEGER
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.AppAth 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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BEST BEST & KRIEGER
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
JELL TREMBLAY
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