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HomeMy WebLinkAboutOrd. 1434-2010ORDINANCE NO. 1434-2010 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA AN INTERIM ORDINANCE OF THE CITY OF SOUTH SAN FRANCISCO MAKING FINDINGS AND EXTENDING FOR A SECOND TIME, A CITY-WIDE MORATORIUM ON THE ISSUANCE OF USE PERMITS AND BUILDING PERMITS FOR MEDICAL MARIJUANA DISPENSARIES. 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 tJse 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, 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, pursuant to Government Code section 65858, at its October 28, 2009 meeting, the City Council lawfully adopted a moratorium on the issuance of use permits and building permits on medical marijuana dispensaries (Ordinance No. 1417-2009), and on December 9, 2009, the City Council lawfully extended that moratorium for a period of 10 months and 15 days (Ordinance No. 1418-2009); and WHEREAS, recent California court decisions, including the decision in City of Clc~rerrzont v. Kruse (2009) 177 Ca1.App.4th 1153, and Quah f ed Patients Association v. City of flnaheim Cal.App.4`~' _ (2010 WL 3245836) may affect the scope of local governments authority to regulate medical marijuana dispensaries; and WHEREAS, California Proposition 19 has been approved for inclusion on the November 2, 2010 statewide ballot, which if passed, would decriminalize certain marijuana-related activities and allow for loca] regulation of such activities; and. WHEREAS, the City had anticipated adopting new medical marijuana regulations as part of its recently adopted City-wide Zoning Ordinance Update; that implements and is consistent with the City's existing General Plan, and provides new and revised land use regulations throughout the City; however, due to the pending court cases and inclusion of Proposition 19 on the November 2010 ballot, the City continues to study the implications of regulating marijuana dispensaries, and accordingly, in adopting the Zoning Ordinance Update, the City Council declined to adopt new marijuana regulations, and instead optc;d to leave the existing moratorium in place before determining what regulations, if any, maybe lawful and appropriate to include as part of the City's Zoning Ordinance; 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, could result in an increase in criminal activity, disproportionately taxing the City's police resources, and could conflict with recent court decision or the outcome of the November 2010 election; and WHEREAS, in light of recent legal developments, and in order to address both community and statewide concerns regarding the estalblishment 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, to study the legal implications of recent court decision and the outcome of the November 2010 election, and potentially revise the City's existing 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, the City proposes extending a moratorium on the issuance of use permits and building permits for medical marijuana dispensaries within the City's boundaries; and WHEREAS, on September 8, 2010, in accordance with Government Code section 65858(a), the City Council held a properly noticed public hearing to consider extending the moratorium for a period of one (1) year from and after the date that Ordinance 1418-2009 would have otherwise expired; 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 extension 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, an interim ordinance adopted as an urgency measure, under the provisions of California Government Code section 658;58: 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 11362.5 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 andl the California Attorney General's Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, published in August, 2008. 3. Moratorium Extended. 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, the moratorium imposed by Ordinance 1417-2009 and extended by Ordinance 1418-2009, which provides that no use permit or building permit shall be approved or issued for any medical marijuana dispensary within the boundaries of the City, shall hereby be extended for a period of one (1) year, from and after the date that Ordinance 1418- 2009 would have otherwise expired. 4. Authority; Urgency Statement. This ordinance, which extends the effective period of the moratorium imposed by Ordinance 1417-2009 and extended by Ordinance 1418- 2009, is an interim ordinance, adopted 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 interim ordinance: After more than two years of planning, the City recently adopted a comprehensive Zoning Ordinance Update to implement the City's General Plan, and to adopt and revise land use regulations throughout the City. The City anticipated revising its medical marijuana regulations as part of the Zoning Ordinance Update, however, at the time of adoption, the City opted to await the outcome of pending court cases, and potentially, a November 2010 ballot initiative that would decriminalize certain marijuana-related activities, so that the City could continue to study and develop lawful and appropriate marijuana regulations. 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, former Ch. 20.65, "Medial Marijuana Regulations") California court decisions and the Attorney General have, and continue to clarify the scope of local governments' ability to regulate medical marijuana dispensaries within their boundaries. In light ofd this new authority, and the potential decriminalization of certain marijuana-related activities, and the increase in criminal activity related to establishment of medical marijuana dispensaries, the City is considering revisions to its medical marijuana ordinance . Establishing a medical marijuana dispensary in the City, before the City has an opportunity to update its regulations in accordance with the recent and potential future developments in the law, could lead to conflicts amongst various land uses, conflicts with the City's long-term planning goals, and an increase vi 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 de~~fined 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 interim 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 extend the effective period of Ordinance 1418-2009 for a period of one (1) year from and after the date that Ordinance 1418-2009 would have otherwise expired. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the 8th day of September, 2010. Adopted as an Ordinance of the City of South Francisco at a regular meeting of the City Council held the 8th day of September, 2010 by the following vote: AYES: Councilmembers Pedro Gonzalez, Richard A. (sarbarino, and Karyl Matsumoto, Vice Mayor Kevin Mullin and Mayor Mark Ad.diego NOES: None ABSTAIN: None ABSENT: None AT'I~ST: ~. Cit ler As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this 8th day of September, 2010.