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HomeMy WebLinkAboutOrd. 1533-2017 „x SANS, City of South San Francisco t P.O. Box 711 (City Hall, o A 400 Grand Avenue) South San Francisco, CA o CAL oRl`�P Ordinance: ORD 1533-2017 File Number: 17-191 Enactment Number: ORD 1533-2017 AN INTERIM ORDINANCE OF THE CITY OF SOUTH SAN FRANCISCO ADOPTED AS AN URGENCY MEASURE MAKING FINDINGS AND EXTENDING FOR A PERIOD OF TEN (10) MONTHS AND FIFTEEN (15) DAYS A TEMPORARY MORATORIUM ON THE ISSUANCE OF USE PERMITS, BUILDING PERMITS, LICENSES, OR ANY OTHER APPLICABLE ENTITLEMENTS FOR ANY COMMERCIAL MARIJUANA ACTIVITY AND OUTDOOR CULTIVATION OF MARIJUANA ON THE GROUNDS OF A PRIVATE RESIDENCE WITHIN THE CITY OF SOUTH SAN FRANCISCO, TO THE FULL EXTENT AUTHORIZED T TNDER STATE T SAW. WHEREAS, on November 8, 2016,the voters of the State of California("State") enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act(the"AUMA"); and WHEREAS, subject to certain exceptions, the AUMA generally establishes a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of recreational marijuana, including marijuana products, for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana; and WHEREAS, the AUMA permits a city to enact and enforce "reasonable regulations" to regulate the possession, planting, cultivation, harvesting, drying, or processing of marijuana plants, including the complete prohibition of such activities outdoors; and WHEREAS, the AUMA creates a licensing system whereby the State will issue licenses to businesses authorizing them to cultivate, distribute, transport, store, manufacture, process, and sell recreational marijuana and marijuana products for adults 21 years of age and older, with such licenses to be issued by January 1, 2018; and WHEREAS, the AUMA mandates that State licensing authorities shall not approve an application for a State license if approval of the State license will violate the provisions of any local ordinance or regulation adopted in accordance with the requirements of the AUMA; and WHEREAS,the AUMA states that nothing in it shall be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under the AUMA; and WHEREAS, (1) the Federal Controlled Substances Act, 21 U.S.C. sections 801 et seq., classifies marijuana as a Schedule I Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and City of South San Francisco Page 1 Fite Number: 17-191 Enactment Number: ORD 1533-2017 that has not been accepted as safe for use under medical supervision; and (2) the Federal Controlled Substances Act makes it unlawful,under federal law,for any person to cultivate,manufacture,distribute or dispense, or possess with intent to manufacture, distribute or dispense marijuana; and WHEREAS, in a series of memoranda issued in October 2009,June 2011, and August 2013 (the "Ogden" and "Cole" memos), the United States Department of Justice provided guidance to federal prosecutors concerning marijuana enforcement under the Controlled Substances Act and generally advised that it is not likely an efficient use of federal resources to prosecute those persons or entities in compliance with a strong and effective state regulatory system for the cultivation and distribution of medical marijuana; and WHEREAS,the federal government has not sanctioned the cultivation, sale, or possession of recreational marijuana in any way; and WHEREAS, significant concerns have been raised regarding the land use impacts that possession, planting, cultivation, harvesting, drying, processing, distributing, transporting, storing, manufacturing, and sale of marijuana (hereinafter"marijuana activity") will have on public health, safety, and welfare in the City of South San Francisco ("City"), including the protection of environmental resources and neighborhood quality; and WHEREAS, as recognized by the Attorney General's August 2008 Guidelines for the Security and Non-Diversion of marijuana grown for medical use,the cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as loitering or crime; and WHEREAS, the City has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses, and preserving the peace and integrity of neighborhoods within the City; and WHEREAS, with respect to commercial medical marijuana activities, the Medical Cannabis Regulation and Safety Act("MCRSA") allows cities to enact local regulations pertaining to medical marijuana; and WHEREAS, Chapter 20.410"Prohibition on Medical Marijuana Cooperatives or Collectives" of the City of South San Francisco Municipal Code,among other things,presently prohibits such commercial medical marijuana activities, including, but not limited to, prohibitions on cultivation, distribution, storage, exchange,processing, and delivery; and WHEREAS, the City has devoted considerable staff time and financial resources towards adopting specific plans and implementing development that is consistent with the City's General Plan; and WHEREAS, some jurisdictions that have permitted the establishment of medical marijuana dispensaries have reported illegal activity, including robbery, burglary, homicide, and hand-to-hand transactions, at or near such medical marijuana dispensaries; and WHEREAS, the City Council finds that the issuance of use permits, building permits, licenses, or other entitlements for any commercial marijuana activity and outdoor personal cultivation,would City of South San Francisco Page 2 File Number: 17-191 Enactment Number: ORD 1533-2017 pose a current and immediate threat to the public health, safety, and welfare, since such uses could potentially create conflicts with surrounding land uses, could conflict with the City's long-term planning goals to be implemented through the City's General Plan, Specific Plans, and Zoning Ordinance; and WHEREAS, in light of recent legal developments, and in order to address community concerns regarding the establishment of commercial marijuana activity and outdoor personal cultivation,it is necessary for the City to study the impact such uses may have on the public health,safety and welfare,and potentially revise the City's existing regulations or adopt new regulations; and WHEREAS, to protect the City's investment in its planning efforts, ensure that the City's long-term planning goals and strategies can be achieved in an effective and timely manner,and to avoid a current and immediate threat to the public health, safety, and welfare; and on January 25, 2017, the City adopted a 45-day moratorium on the issuance of use permits, building permits and all other applicable entitlements for recreational marijuana activity and on outdoor personal cultivation within the City's boundaries; and WHEREAS,the City's 45-day moratorium is set to expire on March 11, 2017; and WHEREAS,with respect to recreational marijuana activities authorized by AUMA,the City Council finds that it is necessary to protect the health, safety and welfare, specifically the City and the public's interests in the City's aesthetic, economic, health, safety and community character, until further staff review has been completed and any necessary local regulations or code revisions have been revised, adopted and otherwise made effective; and WHEREAS, the citizens of the City will benefit from a comprehensive and thoughtful local regulatory scheme that addresses the potential impacts of indoor and outdoor marijuana cultivation for personal use, as authorized by AUMA, by City residents; and WHEREAS, there is an immediate need to prevent unregulated recreational marijuana grows in the City, which have the potential to affect the character and aesthetic of the community; and WHEREAS, the City Council finds that without sufficient local regulations in place, issuing use permits, building permits, or other entitlements for commercial marijuana activity and outdoor cultivation of marijuana on the grounds of a private residence within the City would pose a current and immediate threat to the public health, safety, or welfare, since such uses could potentially conflict with the City's long-term planning goals and the development of the City; and WHEREAS, the California Constitution, Article XI, section 7, provides cities with the authority to enact ordinances to protect the health, safety, welfare and morals of their citizens, and adoption of zoning regulations are a permissible exercise of this authority; and WHEREAS, an extension of the City's interim urgency ordinance is also necessary to prevent potential grandfathering of recreational outdoor marijuana cultivation upon the grounds of private residences while further staff review is underway; and WHEREAS, extending the local moratorium on commercial marijuana activity,to the full extent City of South San Francisco Page 3 File Number: 17-191 Enactment Number: ORD 1533-2017 allowed under the law, is necessary to allow the City the opportunity to study the various policy implications of authorizing recreational marijuana activity in the City and to develop a comprehensive approach to regulate marijuana-related activities authorized by AUMA; and WHEREAS, this extension of the interim urgency ordinance is necessary in that there remains a current and immediate threat to the public health, safety, and welfare from unregulated marijuana activity; and WHEREAS, Government Code section 65858 authorizes the City Council to adopt, as an urgency measure,an interim ordinance effective immediately upon a four-fifths vote of the City Council,to protect the public health, safety, and welfare, prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, Planning Commission or the Planning Department is considering or studying or intends to study within a reasonable time; and WHEREAS, on January 25, 2017, at a duly noticed regular meeting,the City Council adopted Ordinance No. 1530-2017, establishing a temporary moratorium on the issuance of use permits,building permits and all other applicable entitlements for commercial marijuana activity and on outdoor personal cultivation within the City's boundaries for a period of forty-five(45)days; and WHEREAS, pursuant to Government Code section 65858, subdivision (a), and following notice and public hearing pursuant to Government Code section 65090, the City Council, by a four-fifths vote, may extend the interim ordinance for an additional period of ten (10) months and fifteen (15) days, unless further extended pursuant to Government Code section 65858; and WHEREAS, on March 8, 2017, at a regular meeting, the City Council held a public hearing, following notice thereof in accordance with California Government Code section 65090, and heard and considered public comment, oral and written, on the proposed extension of the temporary moratorium; and WHEREAS,the City Council reiterates the findings supporting Ordinance No. 1530-2017 and finds that it remains necessary to consider, study and/or adopt regulations governing, or the prohibition of, the issuance of use permits, building permits and all other applicable entitlements for commercial marijuana activity and for outdoor personal cultivation within the City's boundaries; that the immediate commencement of the issuance of use permits, building permits and other entitlements for commercial marijuana activity and outdoor personal cultivation within the City would render potential regulations or prohibition ineffective and destroy the purpose of engaging in such analysis and process,thus constituting an immediate threat to the health, safety and welfare of the residents of the City; and that, therefore, the extension of the temporary moratorium on the issuance of use permits, building permits and all other applicable entitlements for commercial marijuana activity and on outdoor personal cultivation within the City's boundaries is necessary; and WHEREAS,this ordinance does not require review under the California Environmental Quality Act(Pub. Resources Code §§ 21000 et seq., "CEQA")based on the following: (1) Under CEQA Guidelines Section 15060(c)(2), the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment, and City of South San Francisco Page 4 File Number: 17-191 Enactment Number: ORD 1533-2017 under CEQA Guidelines Section 15060(c)(3), the activity is not a project as defined in Section 15378 of the CEQA Guidelines because it has no potential for resulting in physical change to the environment, directly or indirectly. (2) Even assuming the adoption of the ordinance was a project, it is categorically exempt from CEQA pursuant to Section 15308 of the CEQA Guidelines as a regulatory action taken by the City pursuant to its police power and in accordance with Government Code section 65858 to assure maintenance and protection of the environment pending the evaluation and adoption of contemplated local legislation, regulation, and policies. NOW THEREFORE, the City Council of the City of South San Francisco does hereby ORDAIN as follows, adopted as an extension to an interim ordinance, under the provisions of California Government Code section 65858: Section 1. Incorporation of Recitals. The above recitals are hereby declared to be true and correct and represent the findings of the City Council of the City of South San Francisco, made in the exercise of its independent judgment. Said Findings are hereby incorporated by reference and made a part of the interim urgency ordinance ("Ordinance"). Section 2.Definitions. For the purposes of this Ordinance,the following definitions shall apply: The term "marijuana" shall mean all items included in Health and Safety Code Sections 11018 and 11018.1. The term"indoor cultivation"shall mean cultivation inside a fully enclosed private residence as defined in Health and Safety Code Section 11362.2(b)(2). The term "outdoor cultivation" shall mean any cultivation that is not defined as indoor cultivation as defined in Health and Safety Code Section 11362.2(b)(2). Section 3.Moratorium Extended. In accordance with the authority granted to the City of South San Francisco under Article XI, section 7 of the California Constitution and California Government Code section 65858, from and after the date of this Ordinance, the existing temporary moratorium is hereby extended for an additional ten (10) months and fifteen (15) days as of March 8, 2017, and no use permit, building permit, license, or other applicable entitlement shall be approved for the following: Any commercial or industrial marijuana activity, which includes but is not limited to the following uses involving marijuana: manufacturing; processing; laboratory testing; labeling; storing; wholesale; distribution; and retail is prohibited in every zoning district within the City. This moratorium shall include any commercial or industrial marijuana uses authorized under either the AUMA or the MCRSA. Outdoor cultivation for personal use, including harvesting, drying, or processing of marijuana plants for City of South San Francisco Page 5 File Number: 17-191 Enactment Number: ORD 1533-2017 recreational use, is prohibited in every zoning district within the City. Indoor planting, cultivation, harvesting,drying,or processing of marijuana plants for recreational use is limited to residential districts, is limited to six (6) plants per residence, and must be entirely for the personal use of a resident of the residence who is twenty-one (21) years of age or older. The City reserves the right to enact regulations regarding the indoor cultivation of marijuana at a later date. This Ordinance does not affect the rights of individuals as established by State law to possess or use medical marijuana subject to a valid doctor's recommendation. Unless further extended, this moratorium will last for a period of ten(10)months and fifteen(15)days from the adoption of this Ordinance to allow the City an opportunity to further consider options and legal authority to enact land use controls regulating recreational marijuana activity in a manner consistent with the newly-enacted State law. Section 4.Authority; Urgency Statement. This Ordinance is an extension of an interim ordinance, adopted as an urgency measure pursuant to Government Code section 65858, and is for the immediate and long-term preservation of the public safety, health, and welfare. The City Council of the City of South San Francisco hereby finds that there is a current and immediate threat to the public health, safety and welfare that warrants the extension of the temporary moratorium on commercial marijuana activity and outdoor personal cultivation as described in this Ordinance. The following facts support this urgency measure: Establishing commercial marijuana activity in the City, before the City has an opportunity to update its regulations in accordance with the recent developments in the law,could lead to conflicts amongst various land uses, conflict with the City's long-term planning goals,and a potential increase in nuisance and criminal activity within the City,as well as create a deleterious effect on residents' quality of life. Accordingly, the City Council of the City of South San Francisco hereby finds that the approval of use permits,variances,building permits,licenses,or any other applicable entitlement for commercial marijuana activity and outdoor personal cultivation would result in that threat to public health, safety,or welfare.These findings are based upon all of the facts recited in this Ordinance, in the staff report to the City Council accompanying this Ordinance, all matters and information presented to this City Council at its meetings on January 11 and January 25,2017,and all additional matters and information presented to this City Council at its meeting on March 8, 2017. Section 5. Issuance of Land Use Entitlements in Violation of this Moratorium Declared Public Nuisance. The issuance of use permits, building permits, licenses, or other applicable entitlements for marijuana activity and outdoor personal cultivation in the City as defined in this Ordinance, during the duration of this moratorium or any extension thereof, is declared to be a public nuisance. Violations of this Ordinance may be enforced by any applicable laws or ordinances, including but not limited to injunctions or administrative or criminal penalties,under the South San Francisco Municipal Code. Section 6. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances, shall not be affected thereby, and shall continue in full force and effect. To City of South San Francisco Page 6 File Number: 17-191 Enactment Number: ORD 1533-2017 this end, provisions of this Ordinance and the original interim urgency ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. Section 7. Effective Date. This Ordinance and moratorium shall take effect immediately upon adoption, if adopted by at least four-fifths vote of the City Council,and shall be in full force and effect for ten(10)months and fifteen(15) days from the date of its adoption by the City Council, unless further extended by the City Council, as provided for in Government Code section 65858. At a meeting of the City Council on 3/8/2017, a motion was made by Richard Garbarino, seconded by Liza Normandy, that this Ordinance be adopted.The motion passed. Yes: 4 Vice Mayor Normandy, Councilmember Garbarino, Councilmember Matsumoto, and Mayor Gupta Absent: 1 Councilmember Addiego Attest by Aso—2 Gabrie 'o• • ez , 111/11A- Mayor PraGupta City of South San Francisco Page 7