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HomeMy WebLinkAbout2010-10 ORDINANCE NO. 2010-10 EXTENDING FOR 12 MONTHS 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. 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. 5. Neither the Compassionate Use Act nor SB 420 defines what constitutes a medical marijuana dispensary. 6. The August 2010 appellate decision in Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, failed to rule on the question of whether local ordinances banning medical marijuana dispensaries are preempted by the Compassionate Use Act or SB 420, leaving this an unresolved question. 7. The Courts of Appeal in the cases of City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 and City of Corona v. Naulls (2008) 168 Cal.App.4th 418 found that temporary moratoria against medical marijuana dispensaries are not preempted by either the Compassionate Use Act or SB 420. 8. On November 2, 2010, the voters of the State of California will vote on Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010. Proposition 19, if passed, would amend state law to legalize the cultivation, possession, consumption and sale of up to one ounce of marijuana by anyone 21 years of age or older. Proposition 19 would also allow local governments to adopt ordinances permitting or regulating the commercial sale and consumption of marijuana. Proposition 19 would not amend or supersede the Compassionate Use Act or SB 420 as they relate to medical marijuana. 9. The California Healthy Kids Survey for the San Ramon Valley Unified School District for the 2008/09 school year shows that 43 % of 11 th graders in the District have used marijuana at least once, a figure which exceeds the statewide average. 10. In response to these facts, the Danville Town Council adopted a 45-day urgency moratorium on October 6, 2009 (Ordinance No. 2009-08). That Ordinance was extended for 10 months and 15 days on November 17, 2009 (Ordinance No. 2009- 09). 11. Prior to adoption of the initial moratorium in October 2009, the Town was contacted by a representative for a medical marijuana dispensary and by three separate owners of 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. During the initial 45-day moratorium, the Town was contacted by a collective offering medical marijuana to its members, expressing a desire to open a location in Danville after expiration of the moratorium. Since adoption of the first moratorium extension in November 2009, the Town has been contacted on at least five occasions by individuals inquiring about the possibility of opening a dispensary in Oanville. 12. Government Code Section 65858 allows cities to protect the public safety, health and welfare by adopting moratoria to allow time to study whether certain uses should be allowed, prohibited or regulated under the city's zoning ordinance. Such moratoria may be extended twice. 13. 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. 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 pending vote on Proposition 19, 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 Oanville Town Council finds that it is necessary to extend the moratorium banning medical marijuana dispensaries in PAGE 2 OF ORDINANCE NO. 2010-10 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. SECTION 2. IMPOSITION OF MORATORIUM. A. In order to ensure the protection of the public safety, health and welfare 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 and extended by Ordinance No. 2009-09 is hereby extended. B. This ordinance shall remain in effect until October 6, 2011. 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. 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. SECTION 5. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have this ordinance published once within 15 (fifteen) days after adoption. This ordinance shall become effective 30 days after adoption. PAGE 3 OF ORDINANCE NO. 2010-10 The foregoing Ordinance was introduced on October 5, 2010 and approved and adopted by the Danville Town Council at a regular meeting held on October 19, 2010, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Doyle, Stepper, Andersen, Arnerich, Storer None None None APPROVED AS TO FORM: ~13~ CITY ATTORNEY )-- .. 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. 2010-10 of said Town and that said ordinance was published according to law. I b /11/10 , r City Clerk of the Town of Danvill , Dated: PAGE 4 OF ORDINANCE NO. 2010-10