Loading...
HomeMy WebLinkAboutOrdinance 275AORDINANCE NO. 275 A AN INTERIM URGENCY ORDINANCE EXTENDING THE TEMPORARY MORATORIUM RESTRICTING MEDICAL MARIJUANA DISPENSARIES FROM BEING LOCATED IN THE CITY OF SARATOGA, TO TAKE EFFECT IMMEDIATELY THE CITY COUNCIL OF THE CITY OF SARATOGA FINDS AND DECLARES AS FOLLOWS: WHEREAS, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is generally unlawful under California law; and WHEREAS, in 1996 the voters of the State of California approved Proposition 215 which was codified as Health and Safety Code Section 11362.5 et seq., and entitled "The Compassionate Use Act of 1996" ( "the Act "); and WHEREAS, the intent of the Act was to enable seriously ill persons to obtain, use and cultivate marijuana for medical use under limited, specified circumstances; and WHEREAS, on January 1, 2004, Senate Bill 420, the Medical Marijuana Program Act ( "MMPA "), codified at Health and Safety Code Section 11362.7 et seq., became effective to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with the MMPA and the Act; and WHEREAS, the MMPA establishes a limited defense to criminal prosecution for qualified patients, persons with valid identification cards and primary caregivers as those terms are defined in the statute who collectively or cooperatively cultivate medical marijuana; and WHEREAS, as a result of the Act and the MMPA, individuals have established medical marijuana dispensaries in various cities in California; and WHEREAS, the federal Controlled Substances Act, codified as 21 USC section 801 et seq. ( "CSA "), makes it unlawful under federal law to manufacture, distribute, or possess any controlled substances, including marijuana, except in accordance with the CSA; and WHEREAS, the United States Supreme Court found in United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001) there to be no legally cognizable medical necessity exception under the Federal Controlled Substances Act to the prohibition of possession, use, manufacture, or distribution of marijuana under federal law; and 1 WHEREAS, in October 2009, the U.S. Department of Justice issued a memorandum to federal prosecutors in California and in other states that provide for medical use of marijuana stating that federal resources should not be focused on prosecution of individuals whose actions are in clear and unambiguous compliance with existing state laws; and WHEREAS, there is considerable uncertainty regarding the legal status of medical marijuana dispensaries under existing state law; and WHEREAS, the decision in a case currently pending before the Court of Appeal for the Fourth District, Qualified Patients Ass'n v. City of Anaheim, Case No. G040077, as well as decisions in other cases currently pending in the California courts, may resolve or clarify some of the legal issues regarding regulation of medical marijuana dispensaries; and WHEREAS, while the experiences in the regulation and policing of medical marijuana dispensaries have varied from city to city, several California cities have reported an increase in crime, such as burglary, robbery, odor, loitering around the dispensaries, an increase in vehicular traffic and noise in the vicinity of dispensaries, and the sale of illegal drugs, including the illegal resale of marijuana from dispensaries, in the areas immediately surrounding such medical marijuana dispensaries; and WHEREAS, there are no medical marijuana dispensaries currently operating in the City, but City staff has received inquiries from several persons regarding whether such a use is permitted by the City; WHEREAS, a current and immediate threat to the public health, safety and welfare exists because the City has not adopted rules and regulations specifically applicable to the establishment and operation of MMDs and the lack of such controls may lead to the establishment of MMDs and the inability for the City to regulate these establishments in a manner that will protect the general public, homes and businesses adjacent and near such businesses, and the patients or clients of such establishments; and WHEREAS, based on the lack of any consistent experience of cities statewide and in the absence of any regulatory program in the City regarding the review of the establishment and operation of medical dispensaries, the City should consider options for regulating MMDs; and WHEREAS, on November 18, 2009, the City Council adopted by a unanimous vote an interim ordinance imposing as an urgency measure a moratorium on granting approvals and entitlements for use for medical marijuana dispensaries; and WHEREAS, pursuant to Government Code section 65858, the interim ordinance will expire on January 2, 2010, unless extended by the Council for an additional period of up to 10 months and 15 days; and 2 WHEREAS, City staff requires additional time to evaluate the relevant issues and develop guidance for legally appropriate regulation, and WHEREAS, the establishment of, or the issuance or approval of any permit, certificate of occupancy, or other entitlement for the legal establishment of a medical marijuana dispensary in the City of Saratoga would result in a current and immediate threat to public health, safety and welfare in that the Saratoga City Code does not currently regulate the location and operation of medical marijuana dispensaries and does not have a regulatory program in effect that will appropriately regulate the location, establishment, and operation of medical dispensaries in the City, and WHEREAS, this ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) (Title 14, of the California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated City Code review; and WHEREAS, there is no feasible alternative to satisfactorily study the potential impact identified above as well or better than the adoption of this interim urgency moratorium ordinance, in accordance with Government Code section 65858, extending the ordinance adopted November 18, 2009 until November 17, 2010, or such additional period as may subsequently be authorized by the City Council in accordance with applicable laws. NOW, THEREFORE BE IT ORDAINED by the City Council of the City of Saratoga as follows: SECTION 1. Section 6 of the interim urgency ordinance adopted by the Saratoga City Council on November 18, 2009 is hereby amended to state the following: SECTION 6. This interim urgency ordinance shall continue in effect until November 17, 2010 and shall thereafter be of no further force and effect unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an additional period of time pursuant to California Government Code Section 65858. SECTION 2. This interim urgency ordinance shall take effect immediately upon its adoption by a four -fifths (4/5) vote of the City Council. SECTION 3. This ordinance or a comprehensive summary thereof shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. 3 AYES: Councilmembers Chuck Page, Howard Miller, Vice Mayor Jill Hunter, Mayor Kathleen M. King ATTEST: The foregoing ordinance was introduced and read at the regular meeting of the City Council of the City of Saratoga held on the 16 day of December, 2009, and was adopted by at least a four -fifths (4/5) vote of the City Council as follows: NAYS: None ABSTAIN: None ABSENT: Councilmember Susie Nagpal A ANN i LIVAN CLERK OF THE CITY OF SARATOGA Saratoga, California APPROVED AS TO FORM: RICHARD TAYLOR, CITY ATTORNEY SIGNED: R eal, KATHLEEN M. KING MAYOR OF THE CITY OF SARATOGA Saratoga, California 4 Legal Notice ORDINANCE NO.275 A AN INTERIM URGENCY ORDINANCE EXTENDING THE TEMPORARY MORA TORIUM RESTRICTING MEDICAL MARIJUANA DISPENSARIES FROM BE ING LOCATED IN THE CITY OF SARATOGA, TO TAKE EFFECT IMMEDi ATELY THE CITY COUNCIL OF THE CITY OF SARATOGA FINDS AND DECLARES AS FOLLOWS: WHEREAS, the posses sion, cultivation, pos session for sale, trans portation, distribution, furnishing, and giving away of marijuana is generally unlawful un der California law; and WHEREAS, in 1996 the voters of the State of California approved Proposition 215 which was codified as Health and Safety Code Section 11362.5 et seq., and enti tied "The Compassion ate Use Act of 1996" ( "the Act "); and WHEREAS, the intent of the Act was to enable seriously ill persons to gbtaln, use and cultivate marijuana for medical use under limited, speci Pied circumstances; and WHEREAS, on January 1, 2004, Senate Bill 420, the Medical Marijuana Pro gram Act ( "MMPA "), co di ied at Health and Safety Code Section 11362.7 et seq. became effective to clarify the scope of the Act and to allow cities and coun ties to adopt and en force rules and regula Legal Notice tions consistent with the MMPA and the Act; and WHEREAS, the MMPA es tablishes a limited de fense to criminal prose cution for qualified pa tients, persons with val id identification cards and primary caregivers as those terms are de fined in the statute who collectively or coopera tively cultivate medical marijuana; and WHEREAS, as a result of the Act and the MMPA, individuals have estab lished medical marijua na dispensaries in vari ous cities in California; and WHEREAS, the federal Controlled Substances Act, codified as 21 USC section 801 et seq. ( "CSA "), makes it un lawful under federal law to manufacture, distrib ute, or possess any con trolled substances, m cluding marijuana, ex cept in accordance with the CSA; and WHEREAS, the United States Supreme Court found in United States v. Oakland Cannabis Buy ers' Cooperative, 532 U.S. 483 (2001) there to be no legally cognizable medical necessity ex ception under the Feder al Controlled Substan ces Act to the prohibi- tion of possession, use, manufacture, or distri bution of marijuana un der federal law; and WHEREAS, In October 2009, the U.S. Depart ment of Justice issued a Legal Notice 58 SARATOGA NEWS DECEMBER 29, 2009 memorandum to federal prosecutors in Califon nia and in other states that provide for medical use of marijuana stating that federal resources should not be focused on prosecution of indi- viduals whose actions are in clear and unam bipuous compliance with existing state laws; and WHEREAS, there is con siderable uncertainty regarding the legal sta tus of medical marijua na dispensaries under existing state law; and WHEREAS, the decision in a case currently pending before the Court of Appeal for the Fourth District, Qualified Patients Ass'n v. City of Anaheim, Case No. G040077, as well as deci sions in other cases cuF rently pending in the California courts, may resolve or clarify some of the legal issues re garding regulation of medical marijuana dispensaries; and WHEREAS, while the ex periences in the regula tion and policing of medical marijuana dispensaries have van led from city to city, several California cities have reported an in crease in crime, such as burglary, robbery, odor, loitering around the dispensaries, an in crease in vehicular traf fic and noise in the vi cinity of dispensaries, and the sale of illegal drugs, including the ille Legal Notice gal iesale of marijuana from dispensaries, in the areas immediately surrounding such medi cal marijuana dispensaries; and WHEREAS, there are no medical marijuana dispensaries currently operating in the City, but City staff has re ceived inquiries from several persons regard ing whether such a use is permitted by the City; WHEREAS, a current and immediate threat to the public health, safety and welfare exists because the City has not adopted rules and regulations specifically applicable to the establishment and operation of MMDs and the lack of such controls may lead to the establishment of MMDs and the inability for the City to regulate these establishments in a manner that will protect the general public, homes and businesses adjacent and near such businesses, and the pa tients or clients of such establishments; and WHEREAS, based on the lack of any consistent experience of cities statewide and in the ab sence of any regulatory program in the City re garding the review of the establishment and operation of medical dispensaries, the City should consider options for regulating MMDs; and WHEREAS, on November 18, 2009, the City Council Legal Notice adopted by a unani mous vote an interim of dinance imposing as an urgency measure a moF atorium on granting approvals and entitlements for use for medical marijuana dispensaries; and WHEREAS, pursuant to Government Code see tion 65858, the interim ordinance will expire on January 2, 2010, unless extended by the Council for an additional period of up to 10 months and 15 days; and WHEREAS, City staff re quires additional time to evaluate the relevant is sues and develop guid ance for legally appro priate regulation, and WHEREAS, the establish ment of, or the issuance or approval of any per mit, certificate of panty, or other entitle ment for the legal estab lishment of a medical marijuana dispensary in the City of Saratoga would result in a current and immediate threat to public health, safety and welfare in that the Sara toga City Code does not currently regulate the location and operation of medical marijuana dispensaries and does not have a regulatory program in effect that will appropriately regu late the location, estab lishment, and operation of medical dispensaries in the City, and WHEREAS, this ordi nance is not subject to the California Environ Legal Notice mental Quality Act ( "CEQA ") pursuant to CEQA Guidelines See tions 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect environmt change d the 15060(c)(3) (the activity is not a project as de fined in Section 15378) (Title 14, of the Califon nia Code of Regulations) because it has no poten tial for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environ ment pending the corn pletion of the content plated City Code review; WHEREAS, there is no feasible alternative to satisfactorily study the potential impact identi fled above as well or better than the adoption of this interim urgency moratorium ordinance, in accordance with Gov ernment Code section 65858, extending the of dinance adopted No vember 18, 2009 until November 17, 2010, or such additional period as may subsequently be authorized by the City Council in accordance with applicable laws. NOW, THEREFORE BE IT ORDAINED by the City Council of the City of Saratoga as follows: SECTION 1. Section 6 of the interim urgency or dinance adopted by the Saratoga City Council on November 18, 2009 is Legal Notice hereby amended to state the following: SECTION 6. This interim urgency ordinance shall continue in effect until November 17, 2010 and shall thereafter be of no further force and effect unless, after notice pursuant to California Government Code See tion 65090 and a public hearing, the City Council extends this interim ur gency ordinance for an Legal Notice additional period of time pursuant to California Government Code See tion 65858. SECTION 2. This interim urgency ordinance shall take effect immediately upon its adoption by a four -fifths (4/5) vote of the City Council. SECTION 3. This ordi nance or a comprehen sive summary thereof shall be published in a newspaper of general Legal Notice circulation of the City of Saratoga within fifteen days after its adoption. The foregoing ordinance was introduced and read at the regular meeting of the City Council of the City of Saratoga held on the 16th day of December, 2009, and was by at least a four- fths (4/5) vote of the City Council as ws: AYES:Councfinembers Cluck Page, Howard Miller, Vice Mayor Jill Hunter, Mayor Kathleen M. King NAYS:None ABSTAIN:None ABSENT:Counci Imembe r Susie Nagpal SIGNED: KATHLEEN M. KING MAYOR OF THE CITY OF SARATOGA Saratoga, California ATTEST: ANN SULLIVAN CLERK OF THE CITY OF SARATOGA Saratoga, California APPROVED AS TO FORM: RICHARD TAYLOR, CITY ATTORNEY (pub SN 12/29) ORDINANCE NO. 275 AN INTERIM URGENCY ORDINANCE CREATING A TEMPORY MORATORIUM RESTRICTING MEDICAL MARIJUANA DISPENSARIES FROM BEING LOCATED IN THE CITY OF SARATOGA, TO TAKE EFFECT IMMEDIATELY BEFORE THE CITY COUNCIL OF THE CITY OF SARATOGA THE CITY COUNCIL OF THE CITY OF SARATOGA FINDS AND DECLARES AS FOLLOWS: WHEREAS, in 1996 the voters of the State of California approved Proposition 215 which was codified as Health and Safety Code Section 11362.5, et seq., and entitled "The Compassionate Use Act of 1996" ( "the Act "); and WHEREAS, the intent of the Act was to enable seriously ill persons to obtain, use and cultivate marijuana for medical use under limited, specified circumstances; and WHEREAS, on January 1, 2004, Senate Bill 420, the Medical Marijuana Program Act ( "MMPA "), became effective to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with the MMPA and the Act; and WHEREAS, as a result of the Act and the MMPA, individuals have established medical marijuana dispensaries in various cities in California, and WHEREAS, on June 6, 2005, the United States Supreme Court found in Gonzales v. Raich, 125 S. Ct. 2195 (2005) there to be no legally recognizable medical necessity exception under the Federal Controlled Substances Act to the prohibition of possession, use, manufacture, or distribution of marijuana under federal law, and WHEREAS, in February 2009 the U.S. Attorney General stated that federal law enforcement official would ease enforcement at medical marijuana dispensaries, and in October 2009, the U.S. Department of Justice issued a memorandum stating that federal resources should not be focused on prosecution of individuals whose actions are in clear and unambiguous compliance with existing state laws providing for medical use of marijuana, and WHEREAS, while the experiences in the regulation and policing of medical marijuana dispensaries have varied from city to city, several California cities have reported an increase in crime, such as burglary, robbery, odor, loitering around the dispensaries, an increase in vehicular traffic and noise in the vicinity of dispensaries, and the sale of illegal drugs, including the illegal resale of marijuana from dispensaries, in the areas immediately surrounding such medical marijuana dispensaries, and 1 WHEREAS, The City of Saratoga has not adopted rules and regulations specifically applicable to the establishment and operation of medical marijuana dispensaries and the lack of such controls may lead to an establishment of dispensaries and the inability for the City to regulate these establishments in a manner that will protect the general public, homes and businesses adjacent and near such businesses, and the patients or clients of such establishments, and WHEREAS, based on the lack of any consistent experience of cities statewide and in the absence of any regulatory program in the City regarding the review of the establishment and operation of medical dispensaries, the City should consider whether negative effects on the public health, safety, and welfare may occur in the City of Saratoga as a result of the operation of medical marijuana dispensaries and the lack of appropriate regulations governing the establishment and operation of such facilities, and WHEREAS, City staff requires time to evaluate the relevant issues and develop guidance for legally appropriate regulation, and WHEREAS, the establishment of, or the issuance or approval of any permit, certificate of occupancy, or other entitlement for the legal establishment of a medical marijuana dispensary in the City of Saratoga will result in a current and immediate threat to public health, safety and welfare in that the Saratoga Municipal Code does not currently regulate the location and operation of medical marijuana dispensaries and does not have a regulatory program in effect that will appropriately regulate the location, establishment, and operation of medical dispensaries in the City, and WHEREAS, there is no feasible alternative to satisfactorily study the potential impact identified above as well or better than the adoption of this interim urgency moratorium ordinance. NOW, THEREFORE BE IT ORDAINED by the City Council of the City of Saratoga as follows: SECTION 1. For purposes of this ordinance, "medical marijuana dispensary" means any for profit or not - for - profit facility or location, whether permanent or temporary, where the owner(s) or operator(s) intends to or does possess and distribute marijuana for any purpose. SECTION 2. For the period of this ordinance, or any extension thereof, a medical marijuana dispensary shall be considered a prohibited use in any zoning district of the City, even if located within an otherwise permitted use. No permits or authorizations for a medical marijuana dispensary shall issue while this ordinance is in effect. SECTION 3. The City Manager or his designees shall: (1) review and consider options for the regulation of medical marijuana dispensaries in the City, including, but not limited to, the development of appropriate rules and regulations governing 2 the location and operation of such establishments in the City; (2) meet with medical patients, advocates, law enforcement representatives, and other interested parties; and (3) provide to the City Council a written report describing the measures which the City has taken to address the conditions which led to the adoption of this ordinance. SECTION 4. The City Council finds that this ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) (Title 14, of the California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated Municipal Code review. SECTION 5. This interim urgency ordinance is adopted pursuant to Section 65858 of the California Government Code. SECTION 6. This interim urgency ordinance shall take effect immediately upon its adoption by a four -fifths (4/5) vote of the City Council. This interim urgency ordinance shall continue in effect for forty -five (45) days from the date of its adoption and shall thereafter be of no further force and effect unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an additional period of time pursuant to California Government Code Section 65858. SECTION 7. If any section, subsection, subdivision, paragraph, sentence, clause, phrase or word in this Ordinance or any part hereof is for any reason, held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction such decision shall not affect the validity of effectiveness of the remaining portions of the Ordinance or any part hereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases or words be declared unconstitutional. SECTION 8. This ordinance or a comprehensive summary thereof shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. [Continued next page.] 3 The foregoing ordinance was introduced and read at the regular meeting of the City Council of the City of Saratoga held on the 18 day of November, 2009, and was adopted by at least a four -fifths (4/5) vote of the City Council as follows: AYES: Councilmember Howard Miller, Jill Hunter, Susie Nagpal, Vice Mayor Kathleen King, Mayor Chuck Page NAYS: None ABSENT: None ABSTAIN: None ATTEST: ANN SULLIVAN CLERK OF THE CITY OF SARATOGA Saratoga, California APPROVED AS TO FORM: '''- "'" - -a.e RICHARD TAYLOR, CITY ATTORNEY SIGNED: 4 C PAGE. MAYOR OF THE CITY S Saratoga, California