HomeMy WebLinkAbout101-Medical Marijuana Dispensaries staff report.pdfPage 1 of 4
SARATOGA CITY COUNCIL
MEETING DATE: December 16, 2009 AGENDA ITEM:
DEPARTMENT: Community Development CITY MANAGER: Dave Anderson
PREPARED BY: John F. Livingstone, AICP DIRECTOR: John F. Livingstone, AICP
SUBJECT: Extension of Urgency Ordinance for Medical Marijuana Dispensaries
RECOMMENDED ACTION:
Receive and approve this staff report regarding measures taken thus far to alleviate the condition
that led to adoption of the November 18, 2009 urgency ordinance for medical marijuana
dispensaries (MMDs) and adopt an ordinance extending for ten months and 15 days the
temporary moratorium on the establishment of MMDs.
BACKGROUND:
As reported in the November 18, 2009 Staff Report, the City of Saratoga has received several
inquiries from prospective MMD operators. The City of Saratoga’s Code does not specifically
address the regulation or location of medical marijuana dispensaries or list MMDs as a permitted
use or conditionally permitted use in any zoning district.
At the public hearing on November 18, 2009, the City Council heard testimony from the
Community Development Director and Captain Calderone of the Santa Clara County Sheriff’s
Office regarding adverse impacts associated with MMDs experienced by some local jurisdictions,
including increases in loitering, burglaries and robberies, and attendant increases in service calls to
law enforcement. The City Council also heard testimony from interested citizens in favor and
opposed to the establishment of MMDs in the City.
After the public hearing, the Council approved an urgency ordinance adopting a 45-day
moratorium on the establishment of MMDs, in order to protect the public health, safety and
welfare and to provide the City time to determine whether to adopt an ordinance regulating the
location or operation of MMDs. The November 18, 2009 City Council Staff Report is attached
as Attachment 1, and the ordinance is attached as Attachment 2.
DISCUSSION:
The City may extend the interim moratorium on MMDs for ten months and 15 days, and
subsequently for an additional year, if the City follows the procedures of Government Code §
65858(a) and (c), which require:
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· Notice pursuant to Government Code § 65090.
· A public hearing to address the proposed extension.
· Approval of the extension by a four-fifths vote.
· Findings “that there is a current and immediate threat to the public health, safety, or
welfare, and that the approval of additional subdivision, use permits, variances, building
permits, or any other applicable entitlement for use which is required in order to comply
with the zoning ordinance would result in that threat to public health, safety, or welfare.”
In accordance with Government Code § 65090 notice of the public hearing to consider the
extension of the moratorium was published in the Saratoga News on December 1, 2009.
Since adoption of the urgency ordinance, staff has begun evaluating the City’s options for
regulating MMDs, as directed by the Council. Specifically, staff has commenced the following
measures to alleviate the conditions that led to the adoption of the interim ordinance:
· Consulting with the City Attorney regarding relevant state and federal case law on medical
marijuana dispensaries and legally appropriate rules and regulations addressing medical
marijuana dispensaries in the City;
· Reviewing secondary sources on medical marijuana dispensaries, including, but not limited
to, the California Attorney General’s August 2008 “Guidelines for the Security and Non-
Diversion of Marijuana Grown for Medical Use;” and
· Collecting and reviewing medical marijuana dispensary ordinances from other California
municipalities.
City staff anticipates adding the following measures during the remaining period of the
moratorium:
· Research laws and enactments in other states regarding medical marijuana;
· Research operation of existing medical marijuana dispensaries in other municipalities and
counties;
· Research options of adopting a regulatory ordinance permitting the operation of medical
marijuana dispensaries or prohibiting the use; and
· Prepare recommendations and related ordinances, staff reports and other documentation,
as necessary, for consideration by the City Council.
The City Attorney is still in the process of evaluating the relevant legal issues and developing
guidance for legally appropriate regulation. The federal Department of Justice recently issued a
memorandum encouraging U.S. attorneys in California not to spend resources enforcing the
federal Controlled Substances Act against individuals who are in compliance with state medical
marijuana laws; however, there is currently considerable uncertainty regarding the legal status of
dispensaries and the scope of federal and state preemption with respect to local regulation of
medical marijuana. A case currently pending before the Court of Appeal for the Fourth District,
Qualified Patients Ass’n v. City of Anaheim, Case No. G040077, may resolve at least some of the
legal issues. Qualified Patients involves a challenge by a medical marijuana dispensary to a ban
enacted by the City of Anaheim. A decision in that case is expected in December 2009. In
addition, the California Supreme Court recently heard oral argument in a case that invalidated
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portions of the Medical Marijuana Program Act (MMPA) dealing with amount limits on
possession of marijuana on the grounds that it unconstitutionally amends the Compassionate Use
Act, and several cases relevant to the issue of the scope of cities’ authority to regulate MMDs are
making their way through the state courts. Accordingly, some of the legal uncertainty regarding
local regulation of medical marijuana may be resolved during the extension of the City’s
moratorium.
In staff’s view, the current and immediate threat to the public health, safety and welfare described
in the November 18, 2009 staff report and by the Community Development Director and Captain
Calderone at the November 18, 2009 public hearing continue to exist. The City’s zoning code
does not contain regulations specifically addressed to MMDs, and without such regulations, any
approval of an MMD could conflict with the requirements of the General Plan, zoning ordinance,
forthcoming City regulations or state law, and result in irreversible land use incompatibility and
adverse impacts to City residents, patients and businesses.
The 45-day moratorium will expire on January 2, 2010, unless the City Council adopts the
proposed ordinance extending the moratorium (Attachment 3). Based upon the ongoing
uncertainty regarding the legal status of MMDs and their regulation by local governments, as well
as evidence of the continued threat to the public health, safety and welfare of unregulated
establishment of MMDs in the City, staff recommends that the City extend the temporary
moratorium as authorized by Government Code 65858.
Staff estimates that it will take 12 to 18 months to study issues related to MMDs; therefore, it is
likely that staff will return to the City Council with a request for another moratorium extension.
ENVIRONMENTAL ASSESSMENT:
The proposed moratorium ordinance is exempt from review under the California Environmental
Quality Act (CEQA), pursuant to Sections 15060(c)(2), 15060(c)(3), and 15601(b)(3), because
the proposal will not result in a direct or reasonably foreseeable indirect physical change in the
environment, and only directs that a planning study be undertaken.
FISCAL IMPACT:
Instituting a study of medical marijuana dispensaries will require a significant commitment of staff
time. While funding this staff time will not require an additional appropriation, it will require staff
to adjust its priorities in working on other issues. The City Attorney has estimated legal fees to
advise staff during the study at approximately $7,000.00. Failure to adopt a moratorium could
require the commitment of additional police resources to deal with any criminal issues associated
with MMDs. Subsequent adoption of a licensing requirement could increase staffing costs which
could be offset by license fees.
FOLLOW UP ACTION:
As directed.
ADVERTISING, NOTICING AND PUBLIC CONTACT:
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Notice of the public hearing was published in the Saratoga News on December 1, 2009 and notice
of this meeting was properly posted.
ATTACHMENTS:
1. November 18, 2009 Staff Report re: Adoption of Urgency Ordinance for Medical
Marijuana Dispensaries
2. Urgency Ordinance Adopted November 18, 2009
3. Proposed Urgency Ordinance Extension