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HomeMy WebLinkAboutORD 1131ORDINANCE NO. 1131 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, EXTENDING FOR AN ADDITIONAL TWELVE MONTHS THE MORATORIUM RELATING TO THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES THE CITY COUNCIL OF THE CITY OF PALM DESERT, DOES ORDAIN AS FOLLOWS: SECTION 1. Purpose The purpose of this interim urgency ordinance is to further extend a moratorium for an additional twelve (12) months. Ordinance No. 1106 imposed a temporary forty-five (45) day moratorium on the establishment and operation of medical marijuana dispensaries in the City. Ordinance No. 1106 was subsequently extended by the City Council for an additional ten (10) months and fifteen (15) days by Ordinance No. 1109. The extension provided by Ordinance No. 1109 is set to expire on December 23, 2006. SECTION 2. Authority The City Council hereby enacts this interim urgency ordinance by not less than a four - fifths (4/5) vote and extends Ordinance No. 1106 for an additional twelve months under the authority granted to it by Article XI, Section 7 of the California Constitution and section 65858(a) of the California Government Code. SECTION 3. Findings A. Pursuant to Government Code section 65858, on December 24, 2005, the City Council adopted, by not less than a four -fifths vote, Interim Urgency Ordinance No. 1106 establishing a temporary moratorium on the approval or issuance of any use permit, variance, building permit, business license or other applicable entitlement for the establishment or operation of a medical marijuana dispensary for a period of forty-five (45) days. B. In preparation for extending Ordinance No. 1106, and pursuant to Government Code section 65858(d), the City issued a written report describing the measures taken to alleviate the condition which led to the adoption of Ordinance No. 1106. C. Pursuant to Government Code section 65858(a), on February 3, 2006, the City Council adopted, by not less than a four -fifths vote, Interim Urgency Ordinance No. 1109 extending the temporary moratorium on the approval or issuance of any use permit, variance, building permit, business license or other applicable entitlement for the establishment or operation of a medical marijuana dispensary for an additional ten (10) months and fifteen (15) days. The extension provided by Ordinance No. 1109 is set to expire on or about December 23, 2006. ORDINANCE NO. 1131 D. In preparation for further extending Ordinance No. 1106, and pursuant to Government Code section 65858(d), on November 30, 2006, the City Council issued a written report describing the measures taken to alleviate the conditions which led to the adoption of Ordinance No. 1106 ("Report"). E. Based on the Report, the City Council has determined that the circumstances and conditions that led to the adoption of Ordinance No. 1106, which are set forth in the recitals of Ordinance No. 1106, have not been alleviated as of the date of this Ordinance and continue to create the concerns described in Ordinance No. 1106. F. The City Council now seeks to extend the temporary prohibition on the establishment and operation of medical marijuana dispensaries, as currently authorized under Ordinance No. 1106, in order to allow City staff to conclude its research and make final recommendations to the City Council regarding the form of any permanent regulations to be imposed on medial marijuana dispensaries, if any. G. The City Council has determined there is a need to extend the moratorium for an additional twelve months as authorized under section 65858(a) of the California Government Code. H. The notice and public hearing required by section 65858(a) of the California Government Code for the extension of the moratorium have been provided in accordance with applicable law. SECTION 4. Restatement of Findings The City Council hereby incorporates by reference and restates the findings contained in Ordinance No. 1106, as follows: 1. In 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5, et seq., and entitled the Compassionate Use Act of 1996 ("the Act"). 2. The intent of Proposition 215 was to enable persons who are in need of medical marijuana for medical purposes to obtain and use it under limited, specified circumstances. 3. On January 1, 2004, SB 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act. 4. The Palm Desert Municipal Code, including the Palm Desert Zoning Code, does not address or regulate in any manner the existence or location of medical marijuana dispensaries. 5. After receiving inquiries from persons interested in establishing medical marijuana dispensaries, numerous other cities in the State of California have adopted ordinances prohibiting or heavily regulating such dispensaries. 2 ORDINANCE NO. 1131 6. Because a significant number of cities have prohibited or heavily regulated medical marijuana dispensaries, there is a substantially increased likelihood that such establishments will seek to locate in the City of Palm Desert. 7. A medical marijuana dispensary has already located in the City of Palm Desert and another is seeking to locate in the City as well. 8. Other California cities that have permitted the establishment of medical marijuana dispensaries, have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding such dispensaries. 9. The United States Supreme Court addressed marijuana use in California in United States v. Oakland Cannabis Buyers' Cooperative, (2001) 532 U.S. 483. The U.S. Supreme Court held that the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exception exists to these prohibitions. Further, according to the U.S. Supreme Court's decision in Gonzales v. Raich, (2005) 545 U.S. 1, federal law presently prohibits the use of medical marijuana. However, since the U.S. Supreme Court was not presented with and did not address the issue of whether federal law preempts state law with respect to medical marijuana dispensaries, it did not resolve the conflict between federal law and California laws regarding the legality of medical marijuana dispensaries. 10. To address the apparent conflict in laws, as well as the community and statewide concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City of Palm Desert to study the potential impacts such facilities may have on the public health, safety, and welfare. SECTION 5. Extension of Deadline Pursuant to Government Code 65858, the City Council hereby extends the moratorium for an additional twelve months. The expiration date for the moratorium is thus further extended from December 23, 2006, to December 14, 2007. SECTION 6. Effective Date This urgency ordinance shall take effect immediately upon its adoption by at least a fourth -fifths (4/5) vote of the City Council. This urgency ordinance shall continue in effect for twelve months upon its adoption and shall thereafter be of no further force and effect. SECTION 7. Compliance with California Environmental Quality Act The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated municipal code review. 3 ORDINANCE NO. 1131 SECTION 8. Severability If any section, subsection, sentence, clause phrase or word of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction or preempted by state legislation, such decision or legislation shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Palm Desert hereby declares that it would have passed this ordinance and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to any such decision or preemptive legislation. SECTION 9. Effective Date This ordinance shall become effective immediately upon adoption if adopted by at least a four -fifths vote of the City Council and shall be in effect for twelve months from the date of adoption. SECTION 10. Publication The City Clerk shall certify to the adoption of this ordinance and cause it, or a summary of it, to be published once in a newspaper of general circulation printed and published within the City of Palm Desert. PASSED, APPROVED and ADOPTED this 14th day of December, 2006, by the City Council of the City of Palm Desert, California by the following vote, to wit: AYES: BENSON, FERGUSON, FINERTY, and KELLY NOES: NONE ABSENT: NONE ABSTAIN: NONE RICqARD S. KE LY, MAYOR ATTEST: Ra helle D. KI n, i Clerk City of Palm Desert, California APPR D A FORM: Da d J. ElWin, Palm Desert City Attorney 4