CC Ordinance No. 16-2153 Interim Urgency Ordinance Establishing a Moratorium on Non-Medical Marijuana Dispensaries, Marijuana Cultivation Facilities, Commercial Cannabis Activities and Marijuana Transport and Deliveries within the City of CupertinoINTERIM URGENCY ORDINANCE NO. 16-2153
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF CUPERTINO ESTABLISHING A MORATORIUM ON
NON-MEDICAL MARIJUANA DISPENSARIES, MARIJUANA CULTIVATION
FACILITIES, COMMERCIAL CANNABIS ACTIVITIES AND MARIJUANA
TRANSPORT AND DELIVERIES WITHIN THE CITY OF CUPERTINO PENDING
COMPLETION OF AN UPDATE TO THE CITY'S ZONING CODE
WHEREAS, this Ordinance is exempt from the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000, et seq.) (CEQA)
because it can be seen with certainty that there is no possibility the adoption and
implementation of this Ordinance may have a significant effect on the environment, and
the Ordinance is exempt from CEQA pursuant to CEQA Guidelines Sections 15061(b)(l),
15061(b)(2), and 15061(b)(3). Moreover, the adoption of this Ordinance is further exempt
from CEQA because the Ordinance does not change existing City law and practice.
WHEREAS, the City Council is the decision making body on this Ordinance, and before
taking action on it, using its independent judgment, finds such CEQA exemptions to
apply;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1. Authority. This Ordinance is adopted pursuant to the provisions set forth
in Government Code sections 36937(b) and 65858(a) (b) and pursuant to other applicable
law.
SECTION 2. Findings. In adopting this Ordinance, the City Council finds:
A . 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.
B. 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.
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C. In 1996, the voters of the State of California approved Proposition
215 (the "Act;" Health and Safety (H&S) Code Section 11362 .5).
D. On October 9, 2015, Assembly Bills 243 and 266 and Senate Bill 643
(collectively, the "Medical Marijuana Regulation and Safety Act" or "MMRSA") were
enacted to create a state regulatory and licensing system governing the cultivation,
testing, and distribution of medical marijuana, the manufacturing of medical marijuana
products, and physician recommendations for medical marijuana. The new law also
recognizes a range of medical marijuana businesses referred to as "commercial cannabis
activities," including cultivation businesses, marijuana product manufacturers,
marijuana distributors and transporters, marijuana testing laboratories, and dispensaries,
and provides immunity to marijuana businesses operating with both a state license and
a local permit.
E. The Municipal Code does not have express provisions regarding
non-medical marijuana dispensaries, non-medical marijuana cultivation facilities,
commercial cannabis activities, and non-marijuana deliveries. These uses are not listed
as a permitted or conditionally permitted land uses in the Zoning Code and are therefore
prohibited in Cupertino under principles of permissive zoning (City of Corona v. Naulls
(2008) 166 Cal.App.4th 418, 431 -433). Moreover, the Municipal Code requires compliance
with the most restrictive law, which in this case is federal law, which prohibits all
marijuana activity. (Cupertino Municipal Code §§1.04 .010(5), 19 .04 .030)
F. It is imperative that the City retain local land use control over
marijuana cultivation. Several California cities and counties have experienced serious
adverse impacts associated with and resulting from medical marijuana dispensaries and
cultivation s ites. According to these communities and according to news stories widely
reported, medical marijuana activities have resulte d in and/or caused an increase in
crime, including burglaries, robberies, violence, and illegal sales of marijuana to, and use
of marijuana by, minors and other persons without medical need in the areas
immediate ly surrounding such medical marijuana activities. There have also been large
numbers of complaints of odors related to the cultivation and storage of marijuana.
G. A California Police Chiefs Association compilation of police reports,
news stories, and statistical research re garding 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 to the City Council on January
16, 2016 , and is on file with the City Clerk.
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H. The Santa Clara County District Attorney's Office issued a May 2014
memorandum entitled "Issues Surrounding Marijuana in Santa Clara County," which
outlined many of the negative secondary effects resulting from marijuana cultivation; a
copy of this memorandum is attached to the staff report presented to the City Council on
January 16, 2016, and is on file with the City Clerk.
I. The Santa Clara County Public Defender issued a May 2014
memorandum entitled "Substance-Related Suspensions in the East Side Union High
School District," describing a correlation between substance abuse-related suspensions
in local high schools and a proliferation of medical marijuana dispensaries in the area; a
copy of this memorandum is attached to the staff report presented to the City Council on
January 16, 2016, and is on file with the City Clerk
J. The Police Foundation and the Colorado Association of Chiefs of
Police issued a 2015 report entitled "Colorado's Legalization of Marijuana and the Impact
on Public Safety: A Practical Guide for Law Enforcement," which outlined many of the
summarize the numerous challenges faced by law enforcement when enforcing the laws
surrounding legalization, to document solutions that have been proposed and put into
effect, and outline problems that still need to be addressed; a copy of this memorandum
is attached to the staff report presented to the City Council with this ordinance and is on
file with the City Clerk.
K. News stories regarding adverse impacts of medical marijuana
businesses, including dispensaries, cultivation sites, and delivery services, are attached
to the staff report presented to the City Council on January 16, 2016, and is on file with
the City Clerk.
L. It is reasonable to conclude that non-medical marijuana
dispensaries, non-medical marijuana cultivation facilities, commercial cannabis activities,
and non-medical marijuana deliveries would cause similar adverse impacts on the public
health, safety, and welfare in Cupertino.
M. Although the state law has established a regulatory system for
medical marijuana, the California Bureau of Medical Cannabis Regulation advises that it
is in the early stages of developing a licensing program and will not be accepting
applications for medical marijuana license until 2018.
N. In order to protect the public health, safety, and welfare, the City
Council desires to amend the Municipal Code to address, in express terms, non-medical
marijuana dispensaries, non-medical marijuana cultivation facilities, commercial
cannabis activities, and non-medical marijuana deliveries. In the event that Proposition
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64 passes, the City Council hereby determines that the Municipal Code is in need of
further review and revision to protect the public against potential negative health, safety,
and welfare impacts and preserve local control over non-medical marijuana
establishments. Non-medical marijuana currently is prohibited under both state and
federal law.
0. Proposition 64 is on the California ballot for the November 8, 2016,
election which would decriminalize under state law recreational marijuana use,
cultivation, and distribution and further establish licensing program for non-medical
commercial cultivation, testing, and distribution of non-medical marijuana and the
manufacturing of non-medical marijuana products. However, such licenses will not be
issued at least until 2018.
P. Proposition 64 expressly preserves local jurisdictions' ability to adopt
and enforce local ordinances to regulate non-medical marijuana establishments including
local zoning and land use requirements, business license requirements, and the ability to
completely prohibit the establishment or operation of one or more types of non-medical
marijuana businesses.
Q. Proposition 64 further recognizes the City's ability to completely
prohibit outdoor planting, harvesting, cultivation or processing of non-medical )
marijuana for personal use, and the City's ability to regulate indoor cultivation for
personal use.
R. The City does not take a formal position on Proposition 64, but in order
to preserve local control, the City confirms that such non-medical marijuana is prohibited
within the City to the fullest extent permitted by law.
S. Non-medical marijuana use, cultivation, and distribution is prohibited
by both state and federal law. A regular ordinance is unnecessary if Proposition 64 does
not pass. Moreover, the compacted time frame between now and the November General
Election does not provide sufficient time to consider and adopt a regular zoning code
amendment, which includes public notice, consideration by the Planning Commission,
and first and second reading before the City Council, an interim prohibition on
recreational use of marijuana and the issuance of any permits and/or entitlements relating
to marijuana cultivation is necessary for a period of 45 days. The loss of local land use
control over marijuana cultivation would result in a current and immediate threat to the
public health, safety, and welfare.
T. Government Code sections 36937 and 65858 authorize the adoption
of an interim urgency ordinance to protect the public health, safety, and welfare, and to
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prohibit land uses that may conflict with land use regulations that a city's legislative
bodies are considering, studying, or intending to study within a reasonable time.
U . Failure to adopt this moratorium could impair the orderly and
effective implementation of contemplated amendments to the Municipal Code.
V. The City Council further finds that this moratorium is a matter of
local and City-wide importance and is not directed towards any particular person or
entity that seeks to cultivate marijuana in Cupertino.
W. The proposed Ordinance conforms with the latest adopted general
plan for the City in that a prohibition against medical and non-medical marijuana
cultivation facilities, medical and non-medical marijuana dispensaries, commercial
cannabis activities, and medical and non-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.
X. 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, non-medical marijuana dispensaries, commercial cannabis
activities, and non-medical marijuana delivery services will protect the City from the
adverse impacts and negative secondary effects connected with these activities.
Y. The proposed Ordinance is consistent with Municipal Code Title 19,
which currently bans marijuana cultivation facilities, non-medical marijuana
dispensaries, commercial cannabis activities, and non-medical marijuana delivery
services under principles of permissive zoning.
SECTION 3. Imposition of Temporary Moratorium. In accordance with the authority
granted the City under Government Code sections 36937(b) and 65858 (a), (b), and
pursuant to the findings stated herein, the City Council hereby finds that: (1) the
foregoing findings are true and correct; and (2) there exists a current and immediate
threat to the public health, safety, and welfare from unregulated marijuana businesses,
especially marijuana cultivation facilities, operating in Cupertino; and (3) this Ordinance
is necessary for the immediate preservation of the public peace, health, and safety as set
forth herein; and (4) hereby declares and imposes a temporary moratorium for the
immediate preservation of the public health, safety and welfare as set forth below:
A. Prohibitions. The restrictions on medical marijuana dispensaries, marijuana
cultivation facilities, and commercial cannabis activities in Section 19.98.020,
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and other references to "marijuana" or "medical marijuana" throughout this
Code shall apply equally to nonmedical marijuana, other than as provided in
subdivisions (B), (C), and (D) below.
B. Cultivation of nonmedical marijuana for personal use. If cultivation for non-
medical marijuana for personal use is decriminalized under state law, such
cultivation is prohibited in all zones in the City to the fullest extent permitted
by law. Outdoor cultivation of any amount of nonmedical marijuana for
personal use is prohibited in all zones, and indoor cultivation of nonmedical
marijuana for personal use is prohibited in all zones in the City unless
conducted in full compliance with state law.
C. Transportation of non-medical marijuana for personal use. If transportation of
non-medical marijuana for personal use without compensation is
decriminalized under state law, such transportation to a destination within the
City is prohibited unless conducted in full compliance with state law.
D. Delivery of non-medical marijuana for personal use. If delivery of non-medical
marijuana for personal use without compensation is decriminalized under
state law, such delivery to a destination within the City is prohibited unless
conducted in full compliance with state law.
E. In addition to all other enforcement or legal remedies available to the City, any
use or condition caused or permitted to exist in violation of any of the
provisions of this Ordinance shall be and is hereby declared a public nuisance
and may be abated by the City.
SECTION 4 . Effective Date and Duration. Pursuant to Government Code section
65858(a), (b), this Ordinance shall take effect immediately but shall be of no further force
and effect 45 days from its date of adoption unless the City Council, after notice and
public hearing as provided under Government Code section 65858(a), (b) and adoption
of the findings required by Government Code section 65858(c), subsequently extends this
Ordinance.
SECTION 5. Report of Interim Moratorium. Pursuant to Government Code section
65858(d), 10 days prior to the expiration or any extension of this Interim Ordinance, the
City Council will issue a written report describing the measures taken to alleviate the
conditions which led to the adoption of this Interim Ordinance.
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SECTION 6. Severability. The City Council hereby declares every section, paragraph,
sentence, cause and phrase is severable. If any section, paragraph, sentence, clause or
phrase of this ordinance is for any reason found to be invalid or unconstitutional, such
invalidity, or unconstitutionality shall not affect the validity or constitutionality of the
remaining sections, paragraphs, sentences, clauses or phrases.
SECTION 7: Publication. The City Clerk is directed to cause this ordinance to be
published in the manner required by law.
THE FOREGOING URGENCY ORDINANCE was introduced and adopted at a regular
meeting of the City Council of the City of Cupertino the 13t1, day of October, 2016 by the
following vote:
Vote Members of the City Council
A YES: Chang, Vaidhyanathan, Sinks, Wong
NOES: None
ABSENT : Paul
ABSTAIN: None
ATTEST: APPROVED :
€]a~/J1
Grace Schmidt, City Clerk ~~~ Savita Vaidhyan~
City of Cupertino
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, GRACE SCHMIDT, City Clerk and ex-officio Clerk of the City
Council of the City of Cupertino, California, do hereby ce1iify the attached
to be a true and correct copy of Ordinance No. 16-2153 which was enacted
on October 18, 2016, and that it has been published or posted pursuant to
law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 20 th day of October, 2016.
GRACE SCHMIDT, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupe1iino, California