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HomeMy WebLinkAbout2016-01ORDINANCE NO. 2016-01 AMENDING SECTION 32-94 OF THE DANVILLE MUNICIPAL CODE TO PROHIBIT THE CULTIVATION, PROCESSING AND DELIVERY OF MEDICAL MARIJUANA IN THE TOWN OF DANVILLE-ZTA 15-03 The Danville Town Council does ordain as follows: SECTION 1. FINDINGS. In enacting this ordinance, the Town Council makes the following findings: 1. In 1970, Congress enacted the Controlled Substances Act (the "CSA") which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States. 2. In 1996 the voters of the State of California approved Proposition 215, the "Compassionate Use Act of 1996" (the "CUA"), codified at Health and Safety Code Section 11362.5. The CUA creates a limited exception from criminal liability for individual who are in need of marijuana for medical purposes and who obtain and use medical marijuana under limited, specified circumstances. 3. In 2003 the State of California adopted SB 420, the Medical Marijuana Program Act (the "MMP"), codified at Health and Safety Code Section 11362.7 et seq. The MMP attempted to clarify certain aspects of the CUA. 4. Neither the CUA nor MMP require cities to allow the establishment and operation of facilities cultivating, distributing or processing medical marijuana. The CUA expressly provides that "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes." 5. Marijuana is still classified as a Schedule 1 drug under the CSA and as such it is illegal under federal law to distribute, dispense or possess marijuana, even for medical purposes. On July 8, 2011, the United States Drug Enforcement ruled that marijuana has no medically accepted use, is "widely abused" and continues to meet the criteria to remain classified as a Schedule 1 drug under the CSA. 6. 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). 7. On May 5, 2013, the California Supreme Court issued its opinion in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, in which the Court held that cities have the authority to ban medical marijuana uses within their boundaries and prohibit any use that constitutes a violation of state or federal law. 8. On November 26, 2013, the Third District Court of Appeal issued its opinion in Maral v. City of Live Oak (2013) 221 Cal.App.4t" 975, in which the Court held that cities have the authority to ban marijuana cultivation within their boundaries. This concluson was also reached by the Fifth District Court of Appeal in the case of Kirby v. County of Fresno (issued 12/1/15), although the court there held that personal cultivation as permitted by the CUA and MMA could not be subject to criminal prosecution. 9. On October 9, 2015, Governor Brown signed the "Medical Marijuana Regulation and Safety Act" (the "MMRSA"), including AB 243, AB 266 and SB 643. The MMRSA establishes a new regulatory system to address the cultivation, processing, transportation, testing and distribution of medical marijuana to qualified patients. The MMRSA also specifically requires local governments wishing to ban or regulate the cultivation and/or delivery of medical marijuana within their jurisdiction to do so within specified timelines or else cede regulation to the State. 10. In 2011, the Town Council adopted Ordinance No. 2011-02, banning medical marijuana dispensaries in all zoning districts within the Town. The Town has not expressly addressed the cultivation, processing or delivery of medical marijuana within the Town. 11. The Town Council takes legislative notice of numerous news reports and local experience indicating that the outdoor cultivation of marijuana can create a nuisance due to odors, that indoor cultivation can increase the risk of fire from the heavy use of grow lights, fans and that locations where cultivation or processing is occurring can increase the risk of crime. In addition, the delivery of medical marijuana can also lead to increase crime, due in part to the fact that the business is largely cash based. 12. An ordinance prohibiting the cultivation, processing and delivery of medical marijuana within the Town of Danville is necessary and appropriate to maintain and protect the public health, safety and welfare of the residents of Danville. SECTION 2. AMENDING SECTION 32-94 OF THE DANVILLE MUNICIPAL CODE. Section 32-94 of the Danville Municipal Code is hereby amended to read as follows: SECTION 32-94 MEDICAL MARIJUANA REGULATIONS 32-94.1 Definitions. For purposes of this section, the following definitions shall apply: PAGE 2 OF ORDINANCE NO. 2016-01 (a) "Cannabis" shall have the same meaning as set forth in California Business and Professions Code Section 19300.5(f) as of the effective date of this Section and as subsequently amended. (b) "Marijuana" shall have the same meaning as set forth in California Health and Safety Code Section 11018. (c) "Marijuana cultivation" shall mean the planting, growing, harvesting, drying or processing of marijuana or cannabis plants or any part thereof, and any and all associated business and/or operational activities. (d) "Marijuana delivery" shall mean the commercial delivery, transfer or transport, or arranging for the delivery, transfer or transport, or the use of any technology platform to arrange for or facilitate the commercial delivery, transfer or transport of marijuana, marijuana edibles, medical cannabis, medical cannabis products or any marijuana products to or from any location within the jurisdictional limits of the Town of Danville, and any and all associated business and/or operational activities. (e) "Marijuana processing" shall mean any method used to prepare marijuana, marijuana edibles and/or marijuana byproducts for commercial retail and/or wholesale sales, including but not limited to: cleaning, curing, preparation,. laboratory testing, manufacturing, packaging and extraction of active ingredients to create marijuana related products and concentrates. (f) "Medical marijuana" shall mean cannabis or marijuana as defined by the Compassionate Use Act and the Medical Marijuana Program Act, codified at California Health and Safety Code Sections 11362.5-11362.83. (g) "Medical marijuana dispensary" shall mean any facility or location, whether fixed or mobile where medical marijuana, cannabis or medical marijuana or cannabis edibles or products are provided, sold, made available or otherwise distributed to one or more of the following: a primary caregiver, a qualified patient, or a person with an identification card. All three of these terms are identified in strict accordance with California Health and Safety Code Section 11362.5 et seq. Medical marijuana dispensary shall not include the following uses, so long as such uses comply with this code, California Health and Safety Code Sections 11362.5-11362.83, as amended, and any other applicable laws: (1) A clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code, as amended; (2) A healthcare facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code, as amended; PAGE 3 OF ORDINANCE NO. 2016-01 (3) A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code, as amended; (4) A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code, as amended; (5) A residential hospice, or a home health agency, licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code, as amended. (h) "Person with an identification card" shall have the meaning given that term by California Health and Safety Code Section 11362.7(c), as it may be amended. (i) "Primary caregiver" shall have the meaning given that term by California Health and Safety Code Section 11362.7(d), as it may be amended. (j) "Qualified patient" shall have the meaning given that term by California Health and Safety Code Section 11362.7(f), as it may be amended. 32-94.2. Medical Marijuana Dispensary as a Prohibited Use. Medical marijuana dispensaries as defined in Section 32-94.1 are prohibited in all zones in the Town of Danville. No conditional or land use permit, variance, license or other entitlement shall be issued for the establishment or operation of a medical marijuana dispensary. 32-94.3. Cultivation of Marijuana as a Prohibited Use. Marijuana cultivation, as defined in Section 32-94.1, by any person or entity, including, but not limited to, clinics, collectives, cooperatives and dispensaries, is prohibited in all zones within the Town's jurisdictional limits. No conditional or land use permit, variance, license or other entitlement shall be issued for the establishment of such use or activity. 32-94.4. Delivery of Marijuana as a Prohibited Use. Marijuana delivery, as defined in Section 32-94.1, by any person or entity, including, but not limited to, clinics, collectives, cooperatives and dispensaries, is prohibited within the Town's jurisdictional limits. No conditional or land use permit, variance, license or other entitlement shall be issued for the establishment of such use or activity. 32-94.5. Processing of Marijuana as a Prohibited Use. Marijuana processing, as defined in Section 32-94.1, by any person or entity, including, but not limited to, clinics, collectives, cooperatives and dispensaries, is prohibited in all PAGE 4 OF ORDINANCE NO. 2016-01 zones within the Town's jurisdictional limits. No conditional or land use permit, variance, license or other entitlement shall be issued for the establishment of such use or activity. 32-94.6. Public Nuisances. Any use or condition caused, or permitted to exist, in violation of any provision of this Section shall be, and hereby is declared to be, a public nuisance and may be summarily abated by the Town pursuant to Code of Civil Procedure Section 731 or any other remedy available to the Town. 32-94.7. Civil Remedies. In addition to any other enforcement permitted by this Section, the City Attorney may bring a civil action for injunctive relief and civil penalties pursuant to Section 1-5.3 of this code against any person or entity that violates this Section. SECTION 3. CODIFICATION. Section 2 of this ordinance shall be codified in the Danville Municipal Code. SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT The Town Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act ("CEQA") because the prohibition of cultivation, processing and delivery of medical marijuana within the Town will not result in a direct or reasonably foreseeable indirect physical change in the environment (CEQA Guidelines Section 15060(c)(2)), it 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 ordinance will have a significant impact on the environment (CEQA Guidelines Section 15061(b)(3)). SECTION 5. 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 6. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have a summary of this ordinance published twice in a newspaper of general circulation, once within five (5) days before its adoption and once within 15 (fifteen) days after adoption. This ordinance shall become effective 30 days after adoption. PAGE 5 OF ORDINANCE NO. 2016-01 The foregoing Ordinance was introduced on January 12, 2016 and approved and adopted by the Danville Town Council at a special meeting held on January 26, 2016, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Stepper, Morgan, Arnerich, Doyle, Storer None None None APPROVED AS TO FORM: r' CITY ATTORNEY. �F a MAYOR ATTEST: CITY CLER 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. 2016-01 of said Town and that said ordinance was published according to law. Dated: City Clerk of e Town of Da ille PAGE 6 OF ORDINANCE NO. 2016-01