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HomeMy WebLinkAbout2009-09 ORDINANCE NO. 2009-09 AN INTERIM URGENCY ORDINANCE EXTENDING FOR 10 MONTHS AND 15 DAYS A MORATORIUM ON THE ESTABLISHMENT AND OPERATION WITHIN THE TOWN OF DANVILLE OF MEDICAL MARIJUANA DISPENSARIES AND ON THE DISTRIBUTION OF MEDICAL MARIJUANA AT EXISTING BUSINESSES IN THE TOWN OF DANVILLE The Danville Town Council does ordain as follows: SECTION 1. FINDINGS. 1. In 1996 the voters of the State of California approved Proposition 215, the "Compassionate Use Act of 1996" (codified at Health and Safety Code Section 11362.5) decriminalizing under state law the use of marijuana for specific medical purposes. 2. In 2003 the State of California adopted SB 420 (codified at Health and Safety Code Section 11362.7 et seq.) which attempted to clarify certain aspects of the Compassionate Use Act including, but not limited to, issuance of identification cards, amounts of marijuana that may be possessed for medical purposes and areas where medical marijuana may not be used. 3. Marijuana is still classified as a Schedule 1 drug under the federal Controlled Substances Act and as such it is illegal under federal law to distribute, dispense or possess marijuana, even for medical purposes. The United States Supreme Court has twice found that the Compassionate Use Act does not preempt or supersede federal drug laws. Gonzalez v. Raich(2005) 545 U.s. 1 (local use of medical marijuana not exempt from Commerce Clause regulation) and United States v. Oakland Cannabis Buyers Cooperative (2001) 532 U.s. 483 (no medical necessity defense against federal prosecution). The guidelines for prosecution of medical marijuana recently promulgated by the United States Department of Justice do not change the status of marijuana as a Schedule 1 drug under federal law. 4. There is currently litigation pending in the 4th District of the California Court of Appeal addressing the right of cities to ban medical marijuana dispensaries. Qualified Patients Assn. v. City of Anaheim, Case No. G040077. A ruling in that case has not been issued. 5. On April 22, 2009, the California Police Chiefs Association published a "White Paper on Medical Marijuana Dispensaries." That report documents adverse secondary effects of dispensaries and ancillary crimes occurring in communities with operating dispensaries. 6. Neither the Compassionate Use Act nor SB 420 defines what constitutes a medical marijuana dispensary. 7. While Town ordinances prohibit businesses violating state or federal laws, neither the Town of Danville 2010 General Plan nor the Town's zoning ordinance contain any policies, definitions or other regulations specifically addressing medical marijuana dispensaries or dispensing medical marijuana from other existing businesses. 8. During the month of September, the Town received an inquiry from a representative for a medical marijuana dispensary asking whether Town ordinances prohibit such dispensaries. The representative was told the use would not be permitted. Subsequently, the Town was contacted by the owners of three different commercial properties in the Town's downtown business district who had all been contacted by potential tenants wishing to lease space to open a medical marijuana dispensary in Danville. 9. Government Code Section 65858 allows cities to protect the public safety, health and welfare by adopting interim emergency moratoria to allow time to study whether certain uses should be allowed, prohibited or regulated under the city's zoning ordinance. The Court of Appeal in the case of City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 has held that neither the Compassionate Use Act nor SB 420 preempt the authority of cities to adopt an urgency moratorium under Section 65858 prohibiting medical marijuana dispensaries. 10. On October 6, 2009, the Town Council, acting pursuant to the authority of Government Code Section 65858, adopted Ordinance No. 2009-08, imposing a 45- day moratorium against the establishment or operation of medical marijuana dispensaries within the Town of Danville. 11. Subsequent to adoption of the moratorium, the Town was contacted by Greenleaf Natural Wellness Center, a collective offering medical marijuana to its members among other services. Greenleaf has expressed its desire to open a dispensary in Walnut Creek, even after that city's adoption of a moratorium similar to the Town's. 12. On November 3, 2009, the Town Council accepted a report describing the measures taken to alleviate the condition which led to the adoption of Ordinance No. 2009-08. 13. The California Healthy Kids Survey for the San Ramon Valley Unified School District for the 2008/09 school year shows that 43% of 11th graders in the District have used marijuana at least once, a figure which exceeds the statewide average. 14. Because of the lack of any local zoning standards specific to medical marijuana dispensaries, the fact that the courts of appeal have yet to definitively rule on the ability of cities to permanently ban dispensaries, the documented potential for adverse impacts associated with such dispensaries and the fact that one or more such dispensaries has been actively looking to lease space in Danville, the Danville Town Council finds that it is necessary to extend the urgency interim moratorium banning medical marijuana dispensaries in Danville to allow time to study and review any necessary zoning amendments and to prevent any such dispensaries from opening during the term of this moratorium. PAGE 2 OF ORDINANCE NO. 2009-09 SECTION 2. IMPOSITION OF MORATORIUM. A. In order to ensure the immediate protection of the public safety, health and welfare in accordance with Government Code Section 65858 and based on the findings set forth above in Section 1 of this Ordinance, the moratorium on the establishment or operation of a medical marijuana dispensary in the Town of Danville established by Ordinance No. 2009-08 is hereby extended. B. This extension of the moratorium shall become effective on November 20, 2009 (the date of expiration of the original moratorium) and shall remain in effect for 10 months and 45 days, unless extended by the Town Council as provided for in Government Code Section 65858. C. For purposes of this ordinance, "medical marijuana dispensary shall mean any site, facility, location, use or business that distributes, sells, exchanges, processes, delivers, gives away or cultivates marijuana for medical purposes to qualified individuals in accordance with the Compassionate Use Act and! or SB 420. D. This moratorium shall apply to the issuance of any general plan amendment, zoning amendment, conditional use permit, certificate of occupancy, building permit or any other entitlement issued by the Town of Danville for the establishment or operation of a medical marijuana dispensary. E. Ten days prior to the expiration of this moratorium or any extension, the Town Council shall issue a written report describing the steps that have been taken to study the relevant issues and establish polices and! or regulations for medical marijuana dispensaries within the Town of Danville. SECTION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT The Town Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (" CEQA") because the temporary moratorium on establishment of medical marijuana dispensaries will not result in a direct or reasonably foreseeable indirect physical change in the environment (CEQA Guidelines Section 15060(c)(2)), the temporary moratorium is not a project under CEQA (CEQA Guidelines 15060(c)(3)) and it can be seen with certainty that there is no possibility that the temporary moratorium may have a significant impact on the environment (CEQA Guidelines Section 15061(b)(3)). SECTION 4. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Danville Town Council hereby declares that they would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases was declared invalid. PAGE 3 OF ORDINANCE NO. 2009-09 SECTION 5. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have this ordinance published once in a newspaper of general circulation within 15 (fifteen). days after adoption. This ordinance is an urgency ordinance and shall take effect and be enforced immediately upon adoption if adopted by at least a four-fifths vote of the Town Council and shall remain in effect for 10 months and 15 days from the date of adoption unless extended by the Town Council as provided for by state law. The foregoing Ordinance was adopted by the Danville Town Council at a regular meeting held on November 17, 2009, by the following vote: AYES: Arnerich, Doyle, Andersen, Stepper, Storer NOES: None ABSTAIN: None ABSENT: None MAYOR APPROVED AS TO FORM: ~.e~ CITY A'ITORNEY 7 , CLERK'S CERTIFICATE I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is a true and accurate copy of Ordinance No. 2009-09 of said Town and that said ordinance was published according to law. Dated: City Clerk of the Town of Danville PAGE 4 OF ORDINANCE NO. 2009-09