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HomeMy WebLinkAboutOrd. 1417-2009ORDINANCE NO. 1417-2009 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA AN URGENCY ORDINANCE OF THE CITY OF SOUTH SAN FRANCISCO MAKING FINDINGS AND ESTABLISHING A CITY-WIDE MORATORIUM ON THE ISSUANCE OF USE PERMITS AND BUILDING PERMITS FOR MEDICAL MARIJUANA DISPENSARIES PENDING ADOPTION OF THE ZONING ORDINANCE UPDATE WHEREAS, in 1996 the voters of the State of California approved Proposition 215 (codified as Health and Safety Code Section 11362.5 et. seq., and entitled "The Compassionate Use Act of 1996"), the purpose of which was to enable persons who are in need of medical marijuana for specified medical purposes to obtain and use it under limited, specified circumstances; and WHEREAS, the State legislature adopted SB 420 (known as the "Medical Marijuana Program Act"), effective as of January 1, 2004, to clarify the scope of the Compassionate Use Act of 1996 and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with SB 420; and WHEREAS, in 2006 the City of South San Francisco ("City") adopted Chapter 20.65 of the South San Francisco Municipal Code, regulating medical marijuana, including medical marijuana collectives; and WHEREAS, recent California court decisions, including the decision in City of Claremont v. Kruse (2009) 177 Ca1.App.4th 1153, may affect the scope of local governments authority to regulate medical marijuana dispensaries; and WHEREAS, the City has devoted considerable staff time and financial resources towards preparing the City-wide Zoning Ordinance Update that will implement and is consistent with the City's existing General Plan, and will provide new and revised land use regulations throughout the City; City staff expects to complete the draft Zoning Ordinance Update by December of 2009; 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 and building permits to medical marijuana dispensaries, as that term is defined in Section 2 of this ordinance, would 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 Zoning Ordinance Update, and could result in an increase in criminal activity, disproportionately taxing the City's police resources; and WHEREAS, in light of recent legal developments, and in order to address both community and statewide concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City to study the impact such facilities may have on the public health, safety and welfare, and potentially revise the City's existing regulations as part of the Zoning Ordinance Update; 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, the City proposes adopting a moratorium on the issuance of use permits and building permits for medical marijuana dispensaries within the City's boundaries; and WHEREAS, Government Code section 65858 allows the City to immediately protect and preserve the public peace, health, and welfare by 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 planning department is considering; and, WHEREAS, adoption of this ordinance does not require review under the California Environmental Quality Act (Pub. Resources, Code, §§ 21000, et seq., "CEQA") based on the following: (1) This ordinance is not a project within the meaning of Section 15378 of the State CEQA Guidelines, because adoption of a temporary moratorium has no potential for resulting in either a direct or indirect physical change in the environment. (2) This ordinance 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 interim ordinance, under the provisions of California Government Code section 65858: 1. Incorporation of Recitals. The City Council finds that all Recitals are true and correct and are incorporated herein by reference. 2. "Medical Marijuana Dispensary" Defined. For purposes of this ordinance, "medical marijuana dispensary" means (1) any facility, building, structure or location, whether fixed or mobile, where a primary caregiver makes available, sells, transmits, gives or otherwise provides medical marijuana to two or more of the following: a qualified patient or a person with an identification card, or a primary caregiver in strict accordance with California Health and Safety Code Section 11.362.5 et seq.; or (2) any facility, building, structure or location, whether fixed or mobile, where qualified patients and/or persons with identification cards and/or primary caregivers meet or congregate to cultivate or distribute marijuana for medical purposes. The terms "primary caregiver," "qualified patient," and "person with an identification card" shall be as defined in California Health and Safety Code Section 11362.7. "Medical Marijuana Dispensary" shall include medical marijuana collectives and cooperatives, as those terms are described in Health and Safety Code Section 11362.775 and the California Attorney General's Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, published in August, 2008. 3. Moratorium Imposed. In accordance with the authority granted 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, no use permit or building permit shall be approved or issued for any medical marijuana dispensary within the boundaries of the City. 4. Authority; Urgency Statement. This ordinance is 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 peace, health, and welfare. The following facts constitute an urgency ordinance: The City is currently, and has been for several months, in the process of developing a comprehensive Zoning Ordinance Update to implement the City's General Plan, and to adopt and revise land use regulations throughout the City. Though State law authorizes local governments to approve certain medical marijuana dispensaries, jurisdictions in which these dispensaries have been approved have reported illegal activity at or near these dispensaries including robbery, burglary, homicide, and at least one observed hand-to-hand transaction on the street outside of a dispensary. In the over three years since the City adopted its medical marijuana ordinance (South San Francisco Municipal Code, Ch. 20.65, "Medial Marijuana Regulations") California court decisions and the Attorney General have clarified the scope of local governments' ability to regulate medical marijuana dispensaries within their boundaries. In light of this new authority, and the increase in criminal activity related to establishment of medical marijuana dispensaries, the City is considering revisions to its medical marijuana ordinance as part of the City's pending Zoning Ordinance Update. Establishing a medical marijuana dispensary 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, conflicts with the City's long-term planning goals, and an increase in criminal activity within the City. Accordingly, approval or issuance of use permits or building permits for medical marijuana dispensaries, present a current and immediate threat to the public health, safety, and welfare. 5. Establishment of Medical Marijuana Dispensaries Declared Public Nuisance. The establishment of a medical marijuana dispensary, as defined in this ordinance, within the City limits of the City of South San Francisco, 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. 6. Compliance with California Environmental Quality Act (CEQA). This ordinance is not a "project" within the meaning of section 15378 of the State CEQA Guidelines, because it has no potential for resulting in a direct or reasonably foreseeable indirect physical change in the environment. It temporarily prevents certain physical changes in the environment pending completion of the City's Zoning Ordinance Update. Furthermore, this urgency ordinance is categorically exempt from CEQA under Guidelines section 15308 because it is a regulatory action taken by the City, in accordance with Government Code section 65858, to assure maintenance and protection of the environment pending completion of the City's Zoning Ordinance Update. 7. 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 this end, provisions of this 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. 8. Effective Date. This ordinance shall become effective immediately upon adoption, if adopted by at least four-fifths vote of the City Council, and shall be in effect for forty-five (45) days from the date of adoption, unless extended by the City Council as provided for in Government Code section 65858. ~ ~ Introduced at a regular meeting of the City Council. of the City of South San Francisco, held the 28th day of October, 2009. Adopted as an Ordinance of the City of South Francisco at a regular meeting of the City Council held the 28th day of October, 2009 by the following vote: AYES: NOES: ABSTAIN: ABSENT: Councilmembers Pedro Gonzalez, Richard A. Garbarino, and Kevin Mullin, Vice Mayor Mark Addiego and Mayor Karl Matsumoto N Nine None ATTEST: As Mayor of the City of South San Franci Ordinance this 28th day of October, 2009. Jerk do hereby approve the foregoing Mayor