HomeMy WebLinkAboutORD 1300ORDINANCE 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 ("CUA") 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;
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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 0-00
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
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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; 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.
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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,
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.
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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.
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B. "Cannabis dispensary" means a facility where medical 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
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
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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 -�-
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 MMM
The City Council finds that this ordinance is not subject to the California two
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. Ono
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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 10th day of December, 2015, by
the following vote, to wit:
AYES: HARNIK, JONATHAN, TANNER, and SPIEGEL
NOES: WEBER
ABSENT: NONE
ABSTAIN: NONE Gh
ROBERT A. SPIEGEL, MA
ATTEST:
SAM
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CITY OF P.7CArLIFORNIA
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APPROVED AS TO FORM:
CITY,XtTTORNEY
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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 loth day of December, 2015, by the
following vote:
AYES: HARNIK, JONATHAN, TANNER, and SPIEGEL
NOES: WEBER
ABSENT: NONE
ABSTAIN: NONE
EL D. KLA N, C LERK
CITY OF PALM DESERT, CALIFORNIA
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