CC - Item 4C - Second Reading - Ordinance No. 959 Amending Municipal Code Title 17 Zoning Chapter 17.40 Medical Marijuana Dispensaries to Prohibit Medical Marijuana Cultivation Facilities and Medical marijuan Deliveries In all Zones of the CityROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER
DATE: JANUARY 12, 2016
SUBJECT: ORDINANCE NO. 959 — SECOND READING: MUNICIPAL CODE
AMENDMENT 15 -07 — ADOPTION OF AMENDED ROSEMEAD
MUNICIPAL CODE, TITLE 17 "ZONING ", CHAPTER 17.40 "MEDICAL
MARIJUANA DISPENSARIES" TO PROHIBIT MEDICAL MARIJUANA
CULTIVATION FACILITIES AND MEDICAL MARIJUANA DELIVERIES
IN ALL ZONES OF THE CITY
SUMMARY
On December 8, 2015, the City Council introduced Ordinance No. 959, amending
Chapter 17.40 of the Rosemead Municipal Code "Medical Marijuana Dispensaries" to
prohibit marijuana cultivation facilities and medical marijuana deliveries within the City of
Rosemead.
Staff Recommendation
It is recommended that the City Council ADOPT Ordinance No. 959 at its second
reading.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Submitted by:
Michelle G. Ramirez
Community Development Director
Attachment A: Ordinance No. 959
ITEM NO. 4.0
City Council Meeting
January 12, 2016
Pape 2 of 2
Reserved
ATTACHMENT A
Reserved
ORDINANCE NO. 959
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ROSEMEAD, CALIFORNIA, AMENDING TITLE 17
"ZONING" OF THE CITY'S MUNICIPAL CODE BY
AMENDING CHAPTER 17.40 TO PROHIBIT MARIJUANA
CULTIVATION FACILITIES AND MEDICAL MARIJUANA
DELIVERIES
WHEREAS, Rosemead Municipal Code Title 17 'Zoning ", Chapter 17.40
"Medical Marijuana Dispensaries" prohibits medical marijuana dispensaries in all zones
in the city; and
WHEREAS, the California Supreme Court ruled unanimously in City of Riverside
v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, that
the Compassionate Use Act (Proposition 215) ( "CUX) and the Medical Marijuana
Program Act of 2004 ( "MMPA "), do not preempt local ordinances that completely and
permanently ban medical marijuana facilities; and
WHEREAS, in Maral v. City of Live Oak (2012) 221 Cal.AppAth 975, the Third
District Court of Appeal held, based on Inland Empire, that there was no right to
cultivate medical marijuana and that a city could implement and enforce a complete ban
on this activity; and
WHEREAS, on September 11, 2015, the California Legislature passed Assembly
Bills 243 and 266 and Senate Bill 643, which taken together create a broad state
regulatory and licensing system governing the cultivation, testing, and distribution of
medical marijuana, as well as physician recommendations for medical marijuana; and
WHEREAS, Governor Brown signed each bill on October 9, 2015; and
WHEREAS, while the new legislation expressly preserves local control over
medical marijuana facilities and land uses, including the authority to prohibit medical
marijuana businesses completely, cities that wish to prohibit cultivation facilities and
mobile marijuana deliveries must enact express bans in order to avoid preemption by
the state; and
WHEREAS, the Municipal Code is currently silent with regard to establishments
that cultivate medical marijuana and does not address medical marijuana deliveries as
contemplated by AB 266; and
WHEREAS, the City has experienced numerous adverse impacts from medical
marijuana establishments that have operated illegally, including marijuana cultivation
sites; and
WHEREAS, such adverse impacts have included hazardous construction and
electrical wiring and noxious odors and fumes affecting neighboring properties and
businesses; and
a
WHEREAS, other communities have experienced similar, if not worse, adverse
impacts resulting from medical marijuana establishments operating both legally and
illegally within their jurisdictions, including burglaries, robberies, violence, and illegal
diversion of marijuana to minors; and
WHEREAS, there is significant evidence that medical marijuana delivery services
are also targets of violent crime and pose a danger to the public; and
WHEREAS, a California Police Chiefs Association compilation of police reports,
news stories, and statistical research regarding crimes involving medical marijuana
businesses and their secondary impacts on the community is contained in a 2009 white
paper report which is attached to the staff report presented the City Council with this
Ordinance and on file with the City Clerk; and
WHEREAS, news stories regarding adverse impacts of medical marijuana
business, including cultivation sites and delivery services, are attached to the staff
report presented the City Council with this Ordinance and on file with the City Clerk; and
WHEREAS, it is reasonable to conclude that similar adverse impacts on the
public health, safety, and welfare will likely occur in Rosemead should the City lose the
ability to regulate or prohibit marijuana cultivation facilities and medical marijuana
deliveries; and
WHEREAS, in order to protect the public health, safety, and welfare, the City
Council desires to amend Rosemead Municipal Code, Title 17 "Zoning ", Chapter 17.40
"Medical Marijuana Dispensaries" to prohibit marijuana cultivation facilities and medical
marijuana deliveries.
THE CITY COUNCIL OF THE CITY OF ROSEMEAD HEREBY ORDAINS AS
FOLLOWS:
SECTION 1: Rosemead Municipal Code Amendment 15 -07. Rosemead
Municipal Code, Title 17 'Zoning ", Chapter 17.40 "Medical Marijuana Dispensaries" is
amended to read as shown in Exhibit "A" to this Ordinance.
SECTION 2: Severability. If any section, subsection, phrase, or clause of this
Ordinance shall be deemed by a court of competent jurisdiction to be invalid for any
reason, the validity of the remaining sections, subsections; phrases, or clauses of this
Ordinance shall not be affected thereby.
SECTION 3: Findings. The City Council FURTHER FINDS AND DETERMINES
that Municipal Code Amendment 15 -07 is consistent with the Rosemead General Plan
as follows:
A. The proposed amendment is consistent with the General Plan and any applicable
specific plan;
z
The proposed municipal code amendment conforms with the latest adopted
general plan for the City in that a prohibition against marijuana cultivation
facilities and medical marijuana delivery services does not conflict with any
allowable uses in the land use element and does not conflict with any policies or
programs in any other element of the general plan.
B. The proposed amendment will not be detrimental to the public interest, health,
safety, convenience, or welfare of the City; and
The proposed municipal code amendment will protect the public health, safety,
and welfare in that prohibiting marijuana cultivation facilities and medical
marijuana delivery services will protect the City from the adverse impacts and
negative secondary effects connected with these activities.
C. The proposed amendment is internally consistent with other applicable provisions
of the Zoning Code.
The proposed municipal code amendment would prohibit both marijuana
cultivation facilities and the delivery of medical marijuana within the City. Medical
marijuana dispensary uses are currently not allowed by the current General Plan
and Zoning Code. Adopting Municipal Code Amendment 15 -07 maintains the
current consistency with all other provisions of the Zoning Code.
SECTION 4: Environmental Review. This Ordinance is not a project within the
meaning of section 15378 of the California Environmental Quality Act ( "CEQA ")
Guidelines because it has no potential for resulting in physical change in the
environment, either directly or ultimately. In the event that this Ordinance is found to be
a project under CEQA, it is subject to the CEQA exemption contained in CEQA
Guidelines section 15061(b)(3) because it can be seen with certainty to have no
possibility of a significant effect on the environment.
SECTION 5: Effective Date. The Mayor shall sign and the City Clerk attest to
the passage of this Ordinance. The Ordinance will go into effect thirty (30) days from its
date of adoption.
SECTION 6: Publication. The City Clerk is directed to cause this Ordinance to
be published in the manner required by law for summary publication.
PASSED, APPROVED, AND ADOPTED this 12th day of January, 2016, by the
following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
(Signatures on Next Page)
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Margaret Clark, Mayor
City of Rosemead, California
ATTEST:
Carol Cowley, Interim City Clerk
City of Rosemead, California:
APPROVED AS TO FORM
Rachel H. Richman, City Attorney
Burke, Williams & Sorensen, LLP
EXHIBIT "A"
Chapter 17.40 MEDICAL MARIJUANA FACILITIES
Sections:
17.40.010 Definitions.
17.40.020 Medical Marijuana Dispensaries Prohibited.
17.40.030 Civil Injunction.
17.40.010 Definitions.
A. "Cultivation" means any activity involving the planting, growing, harvesting, drying,
curing, grading, or trimming of marijuana.
B. "Establish" or "Operate" a medical marijuana dispensary or marijuana cultivation
facility (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 or marijuana cultivation facility;
2. The conversion of an existing business, facility, use establishment, or location to
a medical marijuana dispensary or marijuana cultivation facility;
3. The addition of a medical marijuana dispensary or marijuana cultivation facility to
any other existing business, facility, use, establishment, or location.
C. "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.
D. "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.
E. "Marijuana cultivation facility' means any business, facility, use, establishment or
location where the cultivation of marijuana occurs.
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F. "Medical Marijuana Dispensary" means any business, facility, use, establishment, or
location, whether fixed or mobile, where Medical Marijuana is made available to,
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, marijuana cultivation facilities, and
marijuana deliveries 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. Marijuana cultivation facilities are prohibited in all zones in the City and shall not be
established or operated anywhere in the City.
C. No person may own, establish, open, operate, conduct, or manage a Medical
Marijuana Dispensary or Marijuana Cultivation Facility in the City, or be the lessor of
property where a Medical Marijuana Dispensary or Marijuana Cultivation Facility is
located. No person may participate as an employee, contractor, agent, volunteer, or
in any manner or capacity in any Medical Marijuana Dispensary or Marijuana
Cultivation Facility in the City.
D. 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 or
Marijuana Cultivation Facility.
E. No person and /or entity may deliver or transport medical marijuana from any fixed or
mobile location, either inside or outside the City, to any person in the City, except
that a person may deliver or transport medical marijuana to a qualified patient or
person with an identification card, as those terms are defined in Health and Safety
Code section 11362.7, for whom he or she is the primary caregiver within the
meaning of Health and Safety Code sections 11362.5 and 11362.7(d).
F. Nothing contained in this Chapter shall be deemed to permit or authorize any use or
activity which is otherwise prohibited by any state or federal law.
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17.40.030 Civil Injunction.
The violation of this Chapter 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.
Reserved