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CC - Item 2A - Municipal Code Amendment 13-01 an Ordinance Reinforcing the City's Current Ban on Madeical Marijuana Dispensaries In All Zonging DistrictsROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: JANUARY 28, 2014 SUBJECT: MUNICIPAL CODE AMENDMENT 13 -01 AN ORDINANCE REINFORCING THE CITY'S CURRENT BAN ON MEDICAL MARIJUANA DISP ENSARIES IN ALL ZONING DISTRICTS SUMMARY The City's Zoning Code (Title 17 of the Rosemead Municipal Code) is a "permissive" use ordinance. In a "permissive" use ordinance only the land uses specifically listed in the zoning code are allowed within the specific zoning district. Land uses that are not listed are not allowed. Although the City's Zoning Code was drafted sufficiently to permanently ban medical marijuana dispensaries citywide, choosing to incorporate the proposed ordinance will reinforce the current prohibition on medical marijuana dispensaries consistent with California Supreme Court approved law. On January 6, 2014, the Planning Commission held a duly noticed and advertised public hearing relative to Municipal Code Amendment 13 -01. Upon hearing written and oral testimony, the Planning Commission adopted Resolution No. 13 -20, recommending that the City Council ADOPT Ordinance No. 935 (Attachment "A ") approving the municipal code amendment without any deletions, additions, or modifications. The Planning Commission staff report (Attachment "B ") and Resolution No. 13 -20 (Attachment "C ") have been included in this report. ENVIRONMENTAL DETERMINATION Municipal Code Amendment 13 -01 is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. ITEM NUMBER: 2A City Council Report January 28, 2014 Page 2 of 4 Staff Recommendation It is recommended that the City Council take the following actions: 1. Conduct the noticed public hearing and receive public comment, 2. Introduce for First Reading, by title only, Ordinance No. 935: "An Ordinance of the City Council of the City of Rosemead, California, Amending Title 17 "Zoning" of the City's Municipal Code by Adding Chapter 17.40 for the Purpose of Reinforcing and Confirming the City's Current Ban on Medical Marijuana Dispensaries in all Zoning Districts," and bring back Ordinance No. 935 to the meeting of February 11, 2014 for consideration of adoption. ANALYSIS After considerable monitoring of legal actions and public meetings between 2009 and 2011, the City Council adopted Ordinance No. 910, which amended the 1959 Zoning Code by adding Chapter 17.106 to prohibit specifically the siting of any medical marijuana dispensaries citywide on April 12, 2010. The City did not carry this Chapter forward in the Comprehensive Zoning Code Update, as the new code was drafted as a "permissive" use ordinance. Section 17.08.050.B. of Article 2, Chapter 17.08 (Establishments of Districts and General Requirements), states that: uses of land not listed as permitted in Sections 17.12.020, 17.16.020, 17.20.020, 17.24.020, and 17.28.020 shall not be permitted unless any such unlisted use is determined to be permitted by the Community Development Director in accordance with Section 17.04.040. A medical marijuana dispensary is not identified as a permitted use in any of the permitted land use tables for each applicable zoning district. Therefore, medical marijuana dispensaries are currently prohibited in all zoning districts. Nonetheless, Section 17.04.040 could allow a medical marijuana dispensary to attempt to claim that it is "similar" to a permitted or conditionally permitted use. This argument, however unsubstantiated, would require the Community Development Director to make a determination. This determination is appealable to the City Council. To remove this drawn out process, the City will be better served to specifically call out the City ban on such dispensaries. In August 2011, the State legislature adopted AB 1300, which amended California Health and Safety Code Section 11362.83 to read: Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: a) Adopting local ordinances that regulate the location, operation or establishment of a medical marijuana cooperative or collective. b) The civil and criminal enforcement of local described in subdivision (a). c) Enacting other laws consistent with the article. [sic] This local regulatory authority over medical marijuana dispensaries was affirmed by the California Supreme Court last year when the Court ruled that local governments may enact zoning ordinances totally banning medical marijuana. In City of Riverside v. Inland City Council Report January 28, 2014 Page 3 of 4 Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4" 729, the Court upheld an injunction granted to the City of Riverside against a medical marijuana dispensary. Given the litigious background of the medical marijuana dispensary community as well as the significant, negative secondary effects of medical marijuana dispensaries on the health, safety, and welfare of the communities in which they have been established, it is prudent that the City clearly prohibit dispensaries consistent with the City of Riverside opinion and the Health and Safety Code. The proposed amendment will reincorporate the 2011 provisions into the current code to reinforce and make the City's current ban on medical marijuana dispensaries abundantly clear and to avoid forcing the Community Development Director to make a potentially - appealable determination on similarity of uses contentions. MUNICIPAL CODE REQUIREMENTS Article 6, Chapter 17.152 of the Rosemead Municipal Code sets forth the procedures and requirements for zoning code amendments. Section 17.152.060.B sets forth the following findings that must be met: A. The proposed amendment is consistent with the General Plan and any applicable specific plan; The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment 13 -01 maintains the current consistency with the General Plan and between the General Plan and Zoning Code. B. The proposed amendment will not be detrimental to the public interest, health, safety, convenience, or welfare of the City; and Municipal Code Amendment 13 -01 will promote public health, safety, and general welfare and serve the goals and purposes of Title 17 by clarifying and confirming that medical marijuana dispensaries are prohibited in all zoning districts in the City. The continued prohibition will ensure that none of the negative side effects of medical marijuana dispensaries will negatively impact the general welfare of the City. The amendment does not authorize any changes to the environment and will have no impacts to properties in the City or their surrounding environment. C. The proposed amendment is internally consistent with other applicable provisions of the Zoning Code. The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning Code. City Council Report January 28, 2014 Paoe 4 of 4 Adopting Municipal Code Amendment 13 -01 maintains the current consistency with all other provisions of the Zoning Code. PUBLIC NOTICE PROCESS Pursuant to California Government Code Section 65091, this public hearing notice has been published in at least one (1) newspaper of general circulation within the local agency, as the number of owners of real property within 300 feet of the project site is greater 1,000. Lastly, this notice is also posted in five (5) public locations, specifying the availability of the application, plus the date, time and location of the public hearing. LEGAL REVIEW The attached Ordinance No. 935 has been reviewed and approved by the City Attorney. Prepared by: � _ %, Sheri Bermejo City Planner Submitted by: Michelle G. Ramirez Community Development Director ATTACHMENTS: Attachment A: Ordinance No. 935 Attachment B: Planning Commission Staff Report, January 6, 2014 Attachment C: Planning Commission Resolution No. 13 -20 ATTACHMENT A Reserved ORDINANCE NO. 935 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, AMENDING TITLE 17 "ZONING" OF THE CITY'S MUNICIPAL CODE BY ADDING CHAPTER 17.40 FOR THE PURPOSE OF REINFORCING AND CONFIRMING THE CITY'S CURRENT BAN ON MEDICAL MARIJUANA DISPENSARIES IN ALL ZONING DISTRICTS WHEREAS, in 1970, Congress enacted the Controlled Substance ACT ( "CSA ") which, among other things, make it illegal to import, manufacture, distribute, possess or use marijuana in the United States, and WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5and following, and entitled the Compassionate Use Act of 1996 (the "Act "), and WHEREAS, the intent of Proposition 215 was to enable seriously ill Californians to legally possess, use, and cultivate marijuana under limited, specified circumstances, and WHEREAS, on January 1, 2004, Senate Bill ( "SB ") 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act, and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act. WHEREAS, these new regulations and rules became known as the Medical Marijuana Program, which included a list of facilities that could qualify as "primary caregivers" and dispense marijuana to qualified patients. The only facilities the Legislature authorized to serve as "primary caregivers" are licensed clinics, health care facilities, residential care facilities, home health facilities and hospices which provide medical care to qualified patients (Cal. Health & Saf. Code § 11362.7 (d)(1)), and WHEREAS, on June 5, 2005, the United States Court issued its decision in Gonzales v. Raich ( 2005) 125 S. Ct. 2195, which held that Congress, under the Commerce Clause of the United States Constitution, has the authority and power to prohibit local cultivation and use of marijuana even if the cultivation or use complied with California law, and WHEREAS, in August 2011, the State legislature adopted AB 1300, which amended California Health and Safety Code Section 11362.83 to read "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: a) Adopting local ordinances that regulate the location, operation or establishment of a medical marijuana cooperative or collective. b) The civil and criminal enforcement of local described in subdivision (a). c) Enacting other laws consistent with the article," and WHEREAS, such local regulatory authority over medical marijuana dispensaries has been affirmed by the California Supreme Court (See City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4 th 729.), and WHEREAS, citizens and law enforcement officers have reported an increase of crimes, such as loitering, and an increase in traffic, odor, and noise in the vicinity of dispensaries, and the sale of illegal drugs, including the resale of marijuana from dispensaries, in the areas immediately surrounding such medical marijuana dispensaries, and WHEREAS, the City's Zoning Code (Title 17 of the Rosemead Municipal Code) is a "permissive" use ordinance; only the land uses specifically listed in the Zoning Code are allowed within the specific zoning district. Land uses that are not listed are not allowed; and WHEREAS, even though the "permissive use" nature of the City's Zoning Code does permanently ban medical marijuana dispensaries citywide, adoption of this Ordinance will reinforce the existing ban on medical marijuana dispensaries and avoid the potential for confusion on the part of the public, and WHEREAS, in enacting this Ordinance, it is the Council's intention that nothing contained herein be construed to allow persons to engage in conduct that endangers others or causes a public nuisance, nor to allow any activity related to the cultivation, distribution, or consumption of marijuana that is illegal, and WHEREAS, in light of these findings and facts, the City Council finds that it is contrary to the public health, safety, and welfare to permit the operation of medical marijuana dispensaries, as defined herein, within the City of Rosemead such that a permanent and obvious ban on that use is proper. THE CITY COUNCIL OF THE CITY OF ROSEMEAD HEREBY ORDAINS AS FOLLOWS: SECTION 1: Compliance with CEQA The Planning Commission HEREBY DETERMINES that the proposed amendment does not authorize any changes to the environment and will have no impacts to properties in the City or their surrounding environment, as medical marijuana dispensaries are currently not permitted in any zoning 4 district of the City. The resolution provides zoning regulations which specifically confirm and reinforce the City's current ban on medical marijuana dispensaries. This Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 2: Findings. The City Council HEREBY FINDS AND DETERMINES that facts do exist to justify approving Municipal Code Amendment 13 -01 in accordance with Chapter 17.152, Section 17.152.040 of the Rosemead Municipal Code as follows: A. The proposed amendment is consistent with the General Plan and any applicable specific plan; FINDING: The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment 13 -01 maintains the current consistency with the General Plan and between the General Plan and Zoning Code. B. The proposed amendment will not be detrimental to the public interest, health, safety, convenience, or welfare of the City; and FINDING: Municipal Code Amendment 13 -01 will promote public health, safety, and general welfare and sere the goals and purposes of Title 17 by clarifying and confirming that medical marijuana dispensaries are prohibited in all zoning districts in the City. The continued prohibition will ensure that none of the negative side effects of medical marijuana dispensaries will negatively impact the general welfare of the City. The amendment does not authorize any changes to the environment and will have no impacts to properties in the City or their surrounding environment. C. The proposed amendment is internally consistent with other applicable provisions of the Zoning Code. FINDING: The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment 13 -01 maintains the current consistency with all other provisions of the Zoning Code. SECTION 3: Amendment to Title 17 . An amendment adding Chapter 17.40 to Title 17 of the Rosemead Municipal Code entitled "Medical Marijuana Dispensaries," as shown in Exhibit "A" attached hereto is here by adopted. ki SECTION 4: Severability The City Council hereby declares that, should any provision, section, subsection, paragraph, sentence, clause, phrase, or word of this Ordinance or any part thereof, be rendered or declared invalid or unconstitutional by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, such decision or action shall not affect the validity of the remaining section or portions of the Ordinance or part thereof. The City Council hereby declares that it would have independently adopted the remaining provisions, sections, subsections, paragraphs, sentences, clauses, phrases, or words of this Ordinance irrespective of the fact that any one or more provisions, sections, subsections, paragraphs, sentences, clauses, phrases, or words may be declared invalid or unconstitutional. SECTION 5: Effective Date. This Ordinance shall take effect thirty (30) days after its adoption. SECTION 6: Publication. The City Clerk shall certify to the adoption of this Ordinance and shall publish a summary of this Ordinance and post a certified copy of the full Ordinance in the office of the City Clerk at least five days prior to the adoption and within 15 days after adoption of the Ordinance, the City Clerk shall publish a summary of the Ordinance with the names of the Council Members voting for and against the Ordinance. This Ordinance shall take effect thirty (30) days after the date of its adoption. PASSED, APPROVED, AND ADOPTED this day of 2014 Polly Low, Mayor City of Rosemead, California ATTEST: Gloria, Molleda, City Clerk City of Rosemead, California: APPROVED AS TO FORM Rachel H. Richman, City Attorney Burke, Williams & Sorensen, LLP 9 ORDINANCE935 Chapter 17.40 MEDICAL MARIJUANA DISPENSARIES Sections: 17.40.010 Definitions. 17.40.020 Medical Marijuana Dispensaries Prohibited. 17.40.030 Civil Injunction. 17.40.010 Definitions. A. "Establish" or "Operate" a medical marijuana dispensary (as defined in this Section) means and includes any of the following: 1. The opening or commencement of the operation of a medical marijuana dispensary; 2. The conversion of an existing business, facility, use establishment, or location to a medical marijuana dispensary; 3. The addition of a medical marijuana dispensary to any other existing business, facility, use, establishment, or location. B. "Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. It includes Marijuana infused in foodstuff. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. C. "Medical Marijuana" is Marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of Marijuana in the treatment of acquire immune deficiency syndrome ( "AIDS "), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which Marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code Section 11362.7. D. "Medical Marijuana Dispensary" means any business, facility, use, establishment, or location, whether fixed or mobile, where Medical Marijuana is made available to, 9 delivered to and /or distributed by or to, three or more of the following a "primary caregiver," "a qualified patient," or a person with an "identification card," as these terms are defined in California Health and Safety Code section 11362.5 and following. A "Medical Marijuana Dispensary" does not include the following uses, as long as the location of such uses are otherwise regulated by this code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life- threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code section 11362.5 and following. 17.40.020 Medical Marijuana Dispensaries Prohibited. A. Medical Marijuana Dispensaries are prohibited in all zones in the City and shall not be established or operated anywhere in the City. B. No person may own, establish, open, operate, conduct, or manage a Medical Marijuana Dispensary in the City, or be the lessor of property where a Medical Marijuana Dispensary is located. No person may participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any Medical Marijuana Dispensary in the City. C. No use permit, site development permit, tentative map, parcel map, variance, grading permit, building permit, building plans, zone change, business license, certificate of occupancy, or other applicable approval will be accepted, approved, or issued for the establishment or operation of a Medical Marijuana Dispensary. D. Nothing contained in this Section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law. 17.40.030 Civil Injunction. The violation of this Section shall be and is hereby declared to be a public nuisance and contrary to the public interest and shall, at the discretion of the City, create a cause of action for injunctive relief. ATTACHMENT B Reserved ROSEMEAD PLANNING COMMISSION STAFF REPORT TO: HONORABLE CHAIR AND MEMBERS OF THE ROSEMEAD PLANNING COMMISSION FROM: PLANNING DIVISION DATE: JANUARY 6, 2014 SUBJECT: MUNICIPAL CODE AMENDMENT 13 -01 AN ORDINANCE REINFORCING THE CITY'S CURRENT BAN ON MEDICAL MARIJUANA DISPENS IN ALL ZONING DISTRICTS Summary The City's Zoning Code (Title 17 of the Rosemead Municipal Code) is a "permissive" use ordinance. In a "permissive' use ordinance only the land uses specifically listed in the zoning code are allowed within the specific zoning district. Land uses that are not listed are not allowed. Although the City's Zoning Code was drafted sufficiently to permanently ban medical marijuana dispensaries citywide, choosing to incorporate the proposed ordinance will reinforce the current prohibition on medical marijuana dispensaries consistent with California Supreme Court approved law. Environmental Determination Municipal Code Amendment 13 -01 is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Staff Recommendation Based on the analysis and findings contained in this report, it is recommended that the Planning Commission ADOPT Resolution No. 13 -20 (Exhibit "A "), a resolution recommending that the City Council ADOPT Ordinance No. 935 (Exhibit "B "), amending Title 17 "Zoning" of the Rosemead Municipal Code adding Chapter 17.40 to reinforce and confirm that medical marijuana dispensaries are prohibited citywide. Background After considerable monitoring of legal actions and public meetings between 2009 and 2011, the City Council adopted Ordinance No. 910, which amended the 1959 Zoning Code by adding Chapter 17.106 to prohibit specifically the siting of any medical marijuana dispensaries citywide on April 12, 2010. The City did not carry this Chapter forward in the Comprehensive Zoning Code Update, as the new code was drafted as a "permissive" use ordinance. Section 17.08.050.B. of Article 2, Chapter 17.08 (Establishments of Districts and General Requirements), states that: uses of land not Planning Commission Meeting January 6, 2014 Page 2 of 14 listed as permitted in Sections 17.12.020, 17.16.020, 17.20.020, 17.24.020, and 17.28.020 shall not be permitted unless any such unlisted use is determined to be permitted by the Community Development Director in accordance with Section 17.04.040. A medical marijuana dispensary is not identified as a permitted use in any of the permitted land use tables for each applicable zoning district. Therefore, medical marijuana dispensaries are currently prohibited in all zoning districts, though Section 17.04.040 could allow a medical marijuana dispensary to claim that it is "similar" to a permitted or conditionally permitted use, which would then force the Community Development Director to make an appealable. In August 2011, the State legislature adopted AB 1300, which amended California Health and Safety Code Section 11362.83 to read: Nothing in this article shall prevent a city or other local goveming body from adopting and enforcing any of the following: a) Adopting local ordinances that regulate the location, operation or establishment of a medical marijuana cooperative or collective. b) The civil and criminal enforcement of local described in subdivision (a). c) Enacting other laws consistent with the article. [sic] This local regulatory authority over medical marijuana dispensaries was affirmed by the California Supreme Court when the Court ruled that local governments may enact zoning ordinances totally banning medical marijuana. In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729, the Court upheld an injunction granted to the City of Riverside against a medical marijuana dispensary. Given the litigious background of the medical marijuana dispensary community as well as the significant, negative secondary effects of medical marijuana dispensaries on the. health, safety, and welfare of the communities in which they have been established, it is prudent that the City clearly prohibit dispensaries consistent with the City of Riverside opinion and the Health and Safety Code. The proposed amendment will reincorporate the 2011 provisions into the current code to reinforce and make the City's current ban on medical marijuana dispensaries abundantly clear and to avoid forcing the Community Development Director to make a potentially - appealable determination on similarity of uses. Municipal Code Requirements Article 6, Chapter 17.152 of the Rosemead Municipal Code. sets forth the procedures and requirements for zoning code amendments. Section 17.152.060.8 sets forth the following findings that must be met: A. The proposed amendment is consistent with the General Plan and any applicable specific plan; The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment 13 -01 maintains the current consistency with Planning Commission Meeting January 6, 2014 Page 3 of 14 the General Plan and between the General Plan and Zoning Code. B. The proposed amendment will not be detrimental to the public interest, health, safety, convenience, or welfare of the City; and Municipal Code Amendment 13 -01 will promote public health, safety, and general welfare and serve the goals and purposes of Title 17 by clarifying and confirming that medical marijuana dispensaries are prohibited in all zoning districts in the City. The continued prohibition will ensure that none of the negative side effects of medical marijuana dispensaries will negatively impact the general welfare of the City. The amendment does not authorize any changes to the environment and will have no impacts to properties in the City or their surrounding environment. C. The proposed amendment is internally consistent with other applicable provisions of the Zoning Code. The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment 13 -01 maintains the current consistency with all other provisions of the Zoning Code. PUBLIC NOTICE PROCESS Pursuant to California Government Code Section 65091, this public hearing notice has been published in at least one (1) newspaper of general circulation within the local agency, as the number of owners of real property within 300 feet of the project site is greater 1,000. Lastly, this notice is also posted in five (5) public locations, specifying the availability of the application, plus the date, time and location of the public hearing. Prepared by: Sheri Bermejo City Planner Submitted by: Qw � Michelle Ramirez Community Development Director Reserved ATTACHMENT C Reserved PC RESOLUTION 13 -20 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROSEMEAD, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA RECOMMENDING THAT THE CITY COUNCIL APPROVE MUNICIPAL CODE UPDATE 13 -01 TO AMEND TITLE 17 "ZONING" OF THE CITY'S MUNICIPAL CODE BY ADDING CHAPTER 17.40 TO REINFORCE AND CONFIRM THE CITY'S CURRENT BAN ON MEDICAL MARIJUANA DISPENSARIES IN ALL ZONING DISTRICTS WHEREAS, in 1970, Congress enacted the Controlled Substance ACT ( "CSA ") which, among other things, make it illegal to import, manufacture, distribute, possess or use marijuana in the United States, and WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5 and following, and entitled the Compassionate Use Act of 1996 (the "Act'), and WHEREAS, the intent of Proposition 215 was to enable seriously ill Californians to legally possess, use, and cultivate marijuana under limited, specified circumstances, and WHEREAS, on January 1, 2004, Senate Bill ( "SB ") 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act, and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act, and WHEREAS, these new regulations and rules became known as the Medical Marijuana Program, which included a list of facilities that could qualify as "primary caregivers' and dispense marijuana to qualified patients. The only facilities the Legislature authorized to serve as "primary caregivers' are licensed clinics, health care facilities, residential care facilities, home health facilities and hospices which provide medical care to qualified patients (Cal. Health & Saf. Code § 11362.7 (d)(1)), and WHEREAS, on June 5, 2005, the United States Court issued its decision in Gonzales v. Raich ( 2005) 125 S. Ct. 2195, which held that Congress, under the Commerce Clause of the United States Constitution, has the authority and power to prohibit local cultivation and use of marijuana even if the cultivation or use complied with California law, and WHEREAS, in August 2011, the State legislature adopted AB 1300, which amended California Health and Safety Code Section 11362.83 to read "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: a) Adopting local ordinances that regulate the location, operation or establishment of a medical marijuana cooperative or collective. b) The civil and criminal enforcement of local described in subdivision (a). c) Enacting other laws consistent with the article," and WHEREAS, such local regulatory authority over medical marijuana dispensaries has been affirmed by the California Supreme Court (See City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729.), and WHEREAS, citizens and law enforcement officers have reported an increase of crimes, such as loitering, and an increase in traffic, odor, and noise in the vicinity of dispensaries, and the sale of illegal drugs, including the resale of marijuana from dispensaries, in the areas immediately surrounding such medical marijuana dispensaries, and WHEREAS, based upon the concerns regarding the adverse impacts on those communities where medical marijuana dispensaries have been established, it is the intent of the City to reinforce and confirm the City of Rosemead's current ban medical marijuana dispensaries in all zoning districts, and WHEREAS, the City's Zoning Code (Title 17 of the Rosemead Municipal Code) is a "permissive" use ordinance; only the land uses specifically listed in the Zoning Code are allowed within the specific zoning district. Land uses that are not listed are not allowed; and WHEREAS, even though the "permissive use" nature of the City's Zoning Code does permanently ban medical marijuana dispensaries citywide, adoption of the proposed Ordinance will reinforce the existing ban on medical marijuana dispensaries and avoid the potential for ambiguity or confusion, and WHEREAS, Chapter 17.152 of the Rosemead Municipal Code authorizes the Planning Commission to consider and recommend proposed municipal code amendments to the City Council subject; and WHEREAS, a on December 23, 2013, a Public Hearing Notice, specifying the public comment period and the time and place for a public hearing pursuant to California Government Code Section 65091(a)(4) was published in the Rosemead Reader and posted at the five (5) public locations in the City; and WHEREAS, on January 6, 2014, the Planning Commission held a duly noticed and advertised public hearing to receive oral and written testimony relative to Municipal Code Amendment 13 -01; and WHEREAS, the Rosemead Planning Commission has sufficiently considered all testimony presented to them in order to make the following determination. 2 NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Rosemead as follows: SECTION 1 . The Planning Commission HEREBY DETERMINES that the proposed amendment does not authorize any changes to the environment and will have no impacts to properties in the City or their surrounding environment, as medical marijuana dispensaries are currently not permitted in any zoning district of the City. The resolution provides zoning regulations which specifically confirm and reinforce the City's current ban on medical marijuana dispensaries. This Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 2. The Planning Commission HEREBY FINDS AND DETERMINES that facts do exist to justify recommending approval of Municipal Code Amendment 13- 01 in accordance with Chapter 17.152, Section 17.152.040 of the Rosemead Municipal Code as follows: A. The proposed amendment is consistent with the General Plan and any applicable specific plan; FINDING: The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment 13 -01 maintains the current consistency with the General Plan and between the General Plan and Zoning Code. B. The proposed amendment will not be detrimental to the public interest, health, safety, convenience, or welfare of the City; and FINDING: Municipal Code Amendment 13 -01 will promote public health, safety, and general welfare and serve the goals and purposes of Title 17 by clarifying and confirming that medical marijuana dispensaries are prohibited in all zoning districts in the City. The continued prohibition will ensure that none of the negative side effects of medical marijuana dispensaries will negatively impact the general welfare of the City. The amendment does not authorize any changes to the environment and will have no impacts to properties in the City or their surrounding environment. C. The proposed amendment is internally consistent with other applicable provisions of the Zoning Code. FINDING: The proposed Municipal Code Amendment clarifies that medical marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana dispensary uses are not allowed by the current General Plan and Zoning 3 Code. Adopting Municipal Code Amendment 13 -01 maintains the current consistency with all other provisions of the Zoning Code. SECTION 3. The Planning Commission does HEREBY RECOMMEND that Chapter 17.40 (Medical Marijuana Dispensaries) of the Rosemead Municipal Code be added to read as provided in Ordinance 935. SECTION 4. The Planning Commission HEREBY RECOMMENDS CITY COUNCIL APPROVAL of Ordinance 935 amending regulations for medical marijuana dispensaries within the City of Rosemead. SECTION 5. This resolution is the result of an action taken by the Planning Commission on January 6, 2014 by the following vote: YES: DINH, ENG, HERRERA, LOPEZ, AND TANG NO: NONE ABSTAIN: NONE - ABSENT: NONE SECTION 6. The Secretary shall certify to the adoption of this resolution and shall transmit copies of same to the applicant and the Rosemead City Clerk. PASSED, APPROVED and ADOPTED this 6 th day of January, 2014. Diana Herrera,Chair CI CERTIFICATION I hereby certify that the foregoing is a true copy of a resolution adopted by the Planning Commission of the City of Rosemead at its regular meeting, held on 6 th day of January, 2014, by the following vote: YES: DINH, ENG, HERRERA, LOPEZ, AND TANG NO: NONE ABSTAIN: NONE ABSENT: NONE Michelle M. Ramirez, Sec1etary APPROVED AS TO FORM: Gregory M. Murphy, Planning Commission Attorney Burke, Williams & Sorensen, LLP Reserved