HomeMy WebLinkAbout2017-01ORDINANCE NO. 2017-01
AMENDING SECTION 32-94 OF THE DANVILLE MUNICIPAL CODE TO
REGULATE THE SALE, CULTIVATION, PROCESSING AND DELIVERY OF
MARIJUANA IN THE TOWN OF DANVILLE-ZTA 16-0111
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. 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.
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. 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).
5. 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.4t" 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.
6. Both the Third District Court of Appeal, in Maral v. City of Live Oak (2013) 221
Cal.App.41h 975, and the Fifth District Court of Appeal, in Kirby v. County of Fresno
(2015) 242 Cal.App.4th 940, have held that cities have the authority to ban medical
marijuana cultivation within their boundaries.
7. In 2015, the state adopted the "Medical Marijuana Regulation and Safety Act" (the
"MMRSA"), establishing a new regulatory system to address the cultivation,
processing, transportation, testing and distribution of medical marijuana to
qualified patients. The MMRSA allowed local governments wishing to ban or
regulate the cultivation and/ or delivery of medical marijuana within their
jurisdiction to do so within specified timelines.
8. In 2011, the Danville Town Council adopted Ordinance No. 2011-02, banning
medical marijuana dispensaries in all zoning districts within the Town. In 2016,
acting in response to MMRSA, the Town Council adopted Ordinance No. 2016-01,
adding the cultivation, delivery and processing of medical marijuana to the
existing ban on medical marijuana dispensaries.
9. On November 8, 2016, the voters of the State of California passed Proposition 64,
the Adult Use of Marijuana Act (the "AUMA"). The AUMA legalizes the non-
medical use of marijuana and permits the personal cultivation of specified
amounts of marijuana indoors. The AUMA still permits local jurisdictions to ban
the outdoor cultivation of marijuana and to regulate or ban the sale, delivery and
processing of all marijuana.
10. 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, and that locations where sales, cultivation or processing of
marijuana is occurring can increase the risk of crime. In addition, the delivery of
marijuana can also lead to increased crime, due in part to the fact that the business
is largely cash based. The Town Council also finds that allowing the sale of
marijuana within the Town is likely to increase the possibilities for local youth to
acquire marijuana for their use.
11. An ordinance prohibiting the outdoor cultivation and the sale, processing and
delivery of all 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
REGULATION OF MARIJUANA ACTIVITIES
32-94.1 Definitions.
For purposes of this section, the following definitions shall apply:
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(a) "Accessory structure" shall mean a structure on the same parcel of land as a
private residence and which is fully enclosed by solid walls and roof and is secured by
locking door(s).
(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 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, 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 products" shall have the same meaning as set forth in California
Health and Safety Code Section 11018.1.
(f) "Marijuana processing" shall mean any method used to prepare marijuana, or any
marijuana products 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.
(g) "Outdoor" shall mean any location within the Town of Danville that is not within
a fully enclosed and secured private residence or accessory structure.
(h) "Private residence" shall mean a house, apartment unit, mobile home or other
similar dwelling unit permitted by this Code.
(i) "Marijuana dispensary" shall mean any facility or location, whether fixed or
mobile where marijuana, or any marijuana products are provided, sold, made available
or otherwise distributed to any person.
32-94.2. Marijuana Dispensary as a Prohibited Use.
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.
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32-94.3. Outdoor Cultivation of Marijuana as a Prohibited Use.
Outdoor marijuana cultivation, as defined in Section 32-94.1, by any person or entity, 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 Indoor Cultivation of Marijuana for Personal Use -Standards.
A person may cultivate and possess no more than six (6) marijuana plants inside a private
residence and/or inside an accessory structure on the same parcel as the private
residence, so long as the following standards are met:
a. The primary use of the property shall be as a residence. Marijuana cultivation is
prohibited as a home occupation.
b. All areas used for cultivation of marijuana shall comply with Chapter 32 of this
Code.
c. Indoor grow lights shall not exceed 1,000 watts per light and shall comply with the
California Building, Electrical and Fire Codes as adopted by the Town in Chapter
10 of this Code.
d. The use of gas products (CO2, butane, propane, natural gas, etc.) or generators for
cultivation of marijuana is prohibited.
e. All fully enclosed and secure structures sued for the cultivation of marijuana shall
have a ventilation and filtration system installed that shall prevent marijuana plant
odors from existing the interior of the structure.
f. Any accessory structure used for the cultivation of marijuana shall be located in
the rear yard of the property and shall comply with otherwise applicable setbacks
for accessory structures. The yard in which the accessory structure is located shall
be enclosed by a solid fence. This provision shall not apply to cultivation occurring
in a garage.
g. Adequate mechanical locking or electronic security systems shall be installed on
the primary residence or accessory structure where the cultivation is occurring.
h. Marijuana cultivation shall be limited to six marijuana plants per private
residence, regardless of whether the marijuana is cultivated inside the residence
or an accessory structure. The limit of six plants per private residence shall apply
regardless of how many individuals reside at the property.
i. The private residence shall remain at all times a residence, with legal and
functioning cooking, sleeping and sanitation facilities with proper ingress and
egress.
j. Cultivation of marijuana shall only take place on impervious surfaces.
k. The marijuana cultivation shall not be visible by normal, unaided vision from any
public place.
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1. Any area within the primary residence or accessory structure in which marijuana
cultivation is occurring shall not be accessible to persons under 21 years of age.
m. Written consent of the property owner to cultivate marijuana shall be obtained and
kept on the premises.
n. A portable fire extinguisher that complies with all applicable regulations and
standards shall be kept in the area being used for marijuana cultivation.
32-94.5. 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.
32-94.6. 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
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.
32-94.7. 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 sales, cultivation,
processing and delivery of marijuana within the Town will not result in a direct or
reasonably foreseeable indirect physical change in the environment (CEQA Guidelines
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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 6 OF ORDINANCE NO. 2017-01
The foregoing Ordinance was introduced on December 20, 2016 and approved and
adopted by the Danville Town Council at a special meeting held on January 10, 2017" by
the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Arnerich, Blackwell, Morgan, Stepper, Storer
None
None
None
* OVED M:
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CITY ATTORNEY
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. 2017-01 of said Town and that said ordinance
was published according to law.
Dated: llloll---ty- r V
1VWII Vl UC11IVWe
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