Loading...
Reso 6793 �.�� , CITY OF CUPERTINQ �..�%` 10300 Torre Avenue Cupertino, California 95014 RESOLUTIOIV 1V0. 6793 � RESOLUTIOlV OF THE PLANNING COMIVIISSIOIV OF THE CITY OF CUPERTIIVO ' �RECOlVIlVIElVDI1VG THAT THE CITY COUIVCIL ADQPT AlV ORDINAIVCE ' AlVIENDIlVG SECTION 19.08.030 A1VD ADDIlVG GHAPTER 19:98 OF TITLE 19 �. OF THE CLTPERTIlVO NIUlVICIPAL CODE REGARDIIVG 1VIEDICAL MARIJUANA DISPENSARIES, MARIJUANA CULTIVATION FACILITIES, COlVINlERCIAL � CANNABIS ACTIVITIES,:AIVD MEDICAL 1VIARIJUAIVA DELIVERIES� � SECTIOlV I: PROTECT DESCRIPTION ' . Application 1Vo: 1VICA-2015-01 Applicant: City of Ctzpertino Location: ' Citywide �� ' WHEREAS,.pursuant to Government Code sections 65854 and 65855, the Planning �v.� Commission- has the, authority to review and make recommendations, to the .City Council regarding amendments to the City's zoning ordinances; and, WHEREAS, the City provided all necessary legal notices for to hold a:public hearing at � which the amendment to the City's zoning ordinances would be.considered; and . WHEREAS, on November 24, 2015, the Planning Commission held a noticed pwblic hearing; at which;interested persons had an opportunity to testify in support of, or in opposition to, the proposed amendment to the City's zoning ordinance and at.which time the Planning Commission: considered the proposed amendment to the City's , zoning ordinance; and WHEREAS, the City has analyzed this proposed zoning amendrnent and determined ; , that it is not a project within the meaning of section 15378 'of the California Environmentai Quality Act ("CEQA") Guidelines because 'it has no potential for resulting in physical change in:the environment, either directly or ultimately; and VVHEREAS, in the event that this proposed amendment is found to be a project u.nder CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section r"� 15061(b)(3) because it can be seen with certainty to have no possibility of a significant �.u��' effect on the environment; and �.._.. ; - ; EXHIBIT A '� ORDINANCE N0. 15- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ' AMENDING SECTION 19.08.030 AND ADDING CHAPTER 19.98 OF TITLE 19 OF THE CUPERTINO MUNICIPAL CODE REGARDING MEDICAL MARIJUANA DISPENSARIES, MARIJUANA CULTIVATION FACILITIES, COMMERCIAL CANNABIS ACTIVITIES,AND MEDICAL MARIJUANA DELIVERIES 1 WHEREAS, in 1970, Congress enacted the Controlled Substances Act (CSA) which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States.; and WHEREAS, in 1972, California added Chapter 6 to the state Uniform Controlled Substances Act, commencing at Health and Safety Code section 11350, which established the state's prohibition, penalties, and punishments for the possession, cultivation, transportation, and distribution of marijuana; and WHEREAS, in 1996, the voters of the State of California approved Proposition � 215 (the "CUA;" California Health and Safety (H&S) Code Section 11362.5 et seq.); and WHEREAS, California courts have held that the CUA created a limited exception from criminal liability for seriously ill persons who are in need of inedical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances; and WHEREAS, On January 1, 2004, the state Legislature enacted "Medical Marijuana Program" (MMP), codified as California Health and Safety Code sections 11362.7 to 11362.83, to clarify the scope of the CUA, establish a voluntary program for identification cards issued by counties for qualified patients and primary caregivers, and provide criminal immunity to qualified patients and primary caregivers for certain activities involving medical marijuana, including the collective or cooperative cultivation of inedical marijuana; and WHEREAS, the California Supreme Court ruled unanimously in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Ca1.4th 729, that the CUA and the MMP do not preempt local ordinances that completely and permanently ban medical marijuana dispensaries, collectives, and cooperatives; and � _ �'`�� �,,J �T]E��R�1�S, in Maral v. City of Live Oak (2013) 221 Ca1.App.4th 975, the Third Distriet Court of Appeal held, based°`ori Inl"and -E`riipire, that there was no right to cultivate medical marijuana and fihat:a city could implement arid enforce.:a cornplete ban on this activity, 'including a ban on personal:cultivation;and - " �V�Y��IEA�, on,October 9, 2015, Governor,Brown signed Assembly.Bills 243 and 266 and Seriate Bill' 643, which taken together create. a broad'state' regulatory and � lieensing system governing t�ie cultivation, festirig, and distribution of inedical rnarijuana;:tlle manufaeturirig of marijuana products,� and physician �ecommendations for medical marijuana; and provide immunity to=marijuana businesses operating wi€h both a state license and a local permit; and YJV�][���A�; while the new legislation expressly preserves local control over medical marijuana facilities and Iand uses,,iricludings the authority to pro�iibit ali medical marijuana businesses and'cultivation completely, newly-added Health&Safety Code s.ection 11362.777(c)(4) provides that if a city does not have a land use regulation _ �� or ordinance regulating or prohibiting.�mar.ijuana cultivation, eit;Yier� expressly or " " ofherwise under �pririciples of permissive 'zonirig, or chooses not '-to..adniinister a ` � ` conditional permit prograrn' urider that section, then commencing 1Vlareh.l; 201:6; the ` � r state Department of Food and Agriculture will become the sole licensing�authority for :'� marijuana cultivation in that jurisdiction; and 'vVIH[��]EAS, under ' newly=added California Business and Professions: Gode section 19340(a), if a city warits' to preverit rnedieal marijuana deliveries within its jurisdiction, it must adopt an ordinance expressly prohibiting them; and W]I���IEAS, medical marijuana businesses, dispensaries,- cultivation activities; ,and deliveries are not Iisted in the Zoning Code as either permitted or conditionally- permitted larid uses arid are, therefore, prohibited under:the City's permissive'zoning provisions; as set'�forth `in Nlixnicipal Code sections '19.04.030 and 19.04:050 (City of Corona v. Naulls (2008) 166 Ca1.App.4�418,�431-433); and yV��lL��1��, t.�ie City Council has -determined fhat express 1Vlunicipal; Code provisiori regarding medical marijuana d'ispensaries,'marijuana cultivation facilities, commerc'ia1 cannabis aetivities, and medical marijuana deliveries will benefit the:public by providing clear guidelines regarding the scope of prohibited conduct and minimize the potential for confusion regarding the City's policies;-arid � C� . WHEREAS, many California communities have experienced adverse impacts � and negative secondary effects from medical marijuana establishments and cultivation sites, including hazardous construction, unsafe electrical wiring, noxious odors and fumes affecting neighboring properties and businesses, increased crime in and around such land uses, and the diversion of inedical 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, the staff report presented to the City Council identifies other negative impacts from unregulated marijuana which are incorporated herein; and WHEREAS, it is reasonable to conclude that medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries could cause similar adverse impacts on the public health, safety, and welfare in Cupertino; and WHEREAS, in order to protect the public health, safety, and welfare, the City Council desires to add Cupertino Municipal Code Chapter 19.98 to prohibit, in express terms, medical marijuana dispensaries, marijuana cultivation facilities, commercial � cannabis activities, and medical marijuana deliveries; and WHEREAS, the State regulation and licensing as contemplated in Assembly Bills 243 and 266 and Senate Bi11643 have not yet taken effect nor been implemented, and the City Council desires to preserve local control over these uses; and WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Ordinance; and WHEREAS, the proposed 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. � WHEREAS, the City Council has reviewed and considered the not a project and exemption determination under the California Environmental Quality Act prior to � taking any approval actions on this Ordinance and approves such determinations; and � > , ;, . ;, �/ ,.. l�T��/V, 'g'�3[E�IE����o '�'�l[]E C�'�'� C��.TIVC�L �F '�'�� CITY O� C�J�IE�'TgNO �OE� ][�]E���Y O��A�1�T AS]FOL�OWSo S]EC'g'��N �:. Cupertino 1Vlunicipal Code seetiori 19.08.030C<of Chapter'19.08 of Title 19 is amended by adding the following definitions placed into alphabetical order: , "Commercial cannabis activity"'shall have the meaning`set'forth in California Business arid Professions Code section 19300.5(k):` "Gultivation" means any aetivity involving'the planting, growing, harvesting, drying, f curing, grading, or trimming of marijuana. 5����O1�T 2a:Cupertino 1Vlunicipal Code section 19:08.030I of Chapter 19:08 of Title 19 is amerided by adding the following`d.efiriitiori.placed irito alphabetical order: �.. "Identification Card" shall have the saine meaning as set forth in California�Health and r':_- - ��-: Safety Code Section 11362.7, and following, or as may be amended. y, ;,. _ t ��cC��'�Ol� 3. Cupertino Mu.nicipal Code section 19.08.030M of Chapter 19.08 of Title 19 !, �v � : . i is amended-by adding the following definitions placed into alphabetical order: ��:'.� � � . .. � . , . - J . � '; .. . � r� ' "Nlarijuana" means all parts of tYie planf Canriabis; whether growing'or not, tlie: seeds � thereof• the resin extracted from any part of the� plant; and ever.y ''compou.nd mariufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodsttiff, arid concentrated cannabis and the separated i, resin, whether crude or petrified, obtained from marijuana. It does not include the , mature stalks of 'fhe plant, fiber produced from'the stalks, oi1 or cake made from'the seeds of the plant, ,any other compound, manufacture, salt, derivative, mixture, or I preparation of the''rria€ure stalks (except resin exfracted`therefrom), fiber, oil; or cake; or: I , ; the sterilized seeds of the plant that are incapable of gerrnination, � "Medical marijuana" is marijuana used for medical purposes where that medical use`is deemed appropriate and has beeri recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of � acquired immune deficiency syndrome ("AIDS"); anorexia, arthritis, cancer, chronic pain, glaucoma, inigraine, spasticity, or any-other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of California Health � arid Safety Code § 11362.7. � : , ' _ "Marijuana cultivation facility" means any business, facility, use, establishment, property, or location where the cultivation of marijuana occurs. A "marijuana � cultivation facility" does not include a "qualified patient's" primary residence provided such cultivation of "medical marijuana" is for his or her personal medical use and he or she does not provide, donate, sell, or distribute marijuana to any other person. "Medical marijuana dispensary" means any business, facility, use, establishment, property, or location, whether fixed or mobile, where medical marijuana is sold, made available, delivered, transported, and/or distributed. A "medical marijuana dispensary" does not include the following uses: a. A "qualified patient" transporting "medical marijuana" exclusively for his or her personal medical use and he or she does not provide, donate, sell, or distribute marijuana to any other person; b. A "primary caregiver" delivering or transporting "medical marijuana" for the personal medical purposes of no more than five specified "qualified patients" for whom he or she is the primary caregiver within the meaning of Section 11362.7 of the California Health and Safety Code, but who does not receive remuneration for these activities except for compensation in full compliance with subdivision (c) of Section 11362.765 of the California Health and Safety Code. � c. A clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code; d. A health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code; e. 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; f. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of California Division 2 of the Health and Safety Code; or g. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code. SECTION 4. Cupertino Municipal Code section 19.08.030P of Chapter 19.08 of Title 19 is amended by adding the following definition placed into alphabetical order: "Primary caregiver" shall have the same meaning as set forth in California Health and Safety Code Sections 11362.5, 11362.7, and following, or as may be amended. SECTION 5. Cupertino Municipal Code section 19.08.030Q of Chapter 19.08 of Title 19 � is amended by adding the following definition placed into alphabetical order: �J "Qualified atient" shall have the same meaning as set forth in California Health and - p Safety Code Sections 11362:5; 11362.7, and following, or as may be anmended. �]EC'�'g�1V .�o Title 19 `of the Cupertino 1Vluriicipal Code: is hereby amended to.add Chapter 19.98 to be ntzinbered, erititled, and.to read as follows: � _ CHAPTER 19.98 Medical Marijuana 19:98:010 Purpose' 19:98.020 Prohibitions ` - - 19.98.030 ,Enforcemerit ; . ` ` 19'.98.010 Purpose. The purpose and intent of this section is to prohibit medical marijixaria- dispensaries; marijuana cultivation=faeilities, medical marijuana deliveries, and commercial cannabis activities, as defined in Chapter 19.08, Definitions;�within the city�lirriits. It'is recognized that it is a.Federal violation under the Controlled Substances � Act to possess or distriioute mar'ijuaria even if for medical purposes. Additiorially,`t�iere i�� is e�idence -of an increased`incidence�of crime-related secondary impacts in locations �n associated with marijuana cultivation facilities'arid ine`dical marijuana'dispensaries and �, � : ' �� � in'connection with medical marijuana deliveries, which is detrimental to the public'.s , health, safety, and welfare. The State of California's licensing and regulation as ' contemplated by <Assembly Bills 243 and-266 arid Senate Bill 643 have not yet.:-taken ;, effect nor been implemented, and the City Council desires to preserve 1oca1:control over these uses and activities. IVothing`;in this Chapter is intended to circumvent compliance with state law. 19.98.020 Pro�iibitions. - (a) The following are prohibited: (1) Nledieal marijuana disperisariesY'in� all zones in the city and shall riot be ' established or`operated anywhere iri tlie city. °(2) 1Vlarijuana' cultivation facilities in all zones in the city and shall not be . established or operated anywhere in the'city; '"(3) Coinmercial cannabis activities in a11'-zones in the city and shall` not be �' established or operated anywhere in the`city. � - � � � (b) No person shall own, establish, open, operate, conduct, or manage a medical � marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity in the city, or be the lessor of property where a medical marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity is located. No person shall participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any medical marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity in the city. (c) No Permits, grading permit, building permit, building plans, zone change, business license, certificate of occupancy or other applicable approval will be accepted, reviewed, approved or issued for the establishment or operation of a marijuana cultivation facility, medical marijuana dispensary, or commercial cannabis activity. (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. 19.98.030 Enforcement. The city may enforce this section in any manner permitted by law. The violation of this Chapter shall be and is hereby declared to be a public nuisance and shall, at the discretion of the city, create a cause of action for injunctive � relief. SECTION 7. FINDINGS. T'he following findings are made under Cupertino Municipal Code section 19.152.030(D): (1) The proposed Ordinance conforms with the latest adopted general plan for the City in that a prohibition against marijuana cultivation facilities, medical marijuana dispensaries, commercial cannabis activities, 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. (2) The proposed Ordinance will protect the public health, safety, and welfare and promote the orderly development of the City in that prohibiting marijuana cultivation facilities, medical marijuana dispensaries, commercial cannabis activities, and medical marijuana delivery services will protect the City from the adverse impacts and negative secondary effects connected with these activities. (3) The proposed Ordinance is consistent with Municipal Code Title 19, which currently bans marijuana cultivation facilities, medical marijuana dispensaries, � commercial cannabis activities,:`;and medical marijuana delivery services under � principles of permissive zoning. (4) The proposed Orclinance is nof a project within the meaning of section 15378 of the California Environmental Quality Act ("CEQA") Guidelines because if has no potential for resulting in physical change in the environment, either directly or : ultimately. In fhe event that this Ordinance is found to be a project under CEQA; it - � � is subject to the CEQA exemption contained in GEQA Guidelines section 15061(b)(3) ', because it can be seen with certainty to have no possibility of a significant effect on � the environment: - �IEC'�'IION �e �1E�7���gIL�'�'Y. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this' Ordinance is; for any :reason, held to be invalid or _, unconstitutional by the decisiorr of any court of competent jurisdiction, such decision shall not affecf the validity of the remaining portions of this Ordinance. The City ; ' ! Council hereby declares that it would have adopted this Ordinance, and each section, , subsection, subdivision, sentence; clause, phrase, or portion thereof, irrespective of the `�_:'. faet�<�that any one or more sections, subsections, subdivisions, sentences, clauses, ,,. : phrases, or portions thereof be declared invalid or tznconstitutional. `� �IEC'�'��1� 9. The Ci Clerk shall certif the'ado tion of this Ordinance and shall ive tY Y p :; g notice of its adoption as required by law. Pursuant to Government Code Section 36933, _: , ' , � a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. , � � � � � � �� IIVTRODUCED at a regular meeting of fhe City Council of the City of Cupertino the. day of ` and ElVACTED at a regular meeting of the City Council of fhe City of Cupertino the of 2015,by the following vote: PASSED: Vote: Members of the City.Council Ayes; 1Voes: Aiosenfc Abstain: ' � ATTEST: APPROVED: � Grace Schmidt, City Clerk Mayor, City of Cupertino � �