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HomeMy WebLinkAboutOrdinance 349 - Commercial marijuana activity• ORDINANCE NO. 349 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SARATOGA ADDING CITY CODE ARTICLE 6-30 REGARDING COMMERCIAL MARIJUANA ACTIVITY AND MARIJUANA CULTIVATION The City Council of the City of Saratoga finds that 1 In 1996, the California voters approved Proposition 215, entitled "The Compassionate Use Act of 1996" (Health & Safety Code § 11362 5 et seq ), which creates limited exceptions from cnminal liability for seriously ill persons who are in need of medical marijuana as well as for their primary caregivers 2 In 2015, the California Legislature approved the Medical Marijuana Regulation and Safety Act ("MRSA," Business & Professions Code § 19300 et seq. and related code provisions) to permit and regulate commercial medical marijuana activities starting January 1, 2018 3 In 2016, California voters approved Proposition 64, entitled the Control, Regulate and Tax Adult Use of Manjuana Act ("the AUMA," Health & Safety Code § 113621 1 et seq , Business & Professions Code § 26000 et seq and related code provisions), which legalized nonmedical marijuana possession, cultivation, and use for persons 21 years of age or older, and set up a state licensing scheme for nonmedical marijuana businesses to begin January 1, 2018 4. Under the AUMA and MRSA, the state may not issue a license for commercial marijuana activity in a city or county that has prohibited the type of activity proposed The AUMA also authorizes local governments to ban the outdoor cultivation of marijuana for personal use and to impose reasonable regulations on the indoor cultivation of up to six marijuana plants per private residence 5 Commercial marijuana activities pose threats to public health, safety, and welfare, including. a. The risk of criminal activity. As reported in Western City ("Why Banks Don't Serve Manjuana Businesses"), most banks will not provide services to marijuana - related businesses because of regulatory burdens and nsks associated with marijuana's listing under the federal Controlled Substances Act As a result, marijuana businesses largely operate on a cash -only basis This charactenstic makes manjuana businesses unusually attractive for robbery, burglary, and other theft offenses In addition, the Santa Clara County Shernff's Office believes the risks of crimes associated with marijuana will continue under the AUMA given that marijuana will still be valuable and will remain illegal for individuals under 21 years of age 2017 Marijuana Ordinance Page 1 • • b. Increased marijuana use and resultant risks. Permitting the establishment of commercial marijuana businesses within the City may increase marijuana consumption and availability within the City, and may increase youth exposure to and use of nonmedical marijuana As documented in the accompanying staff report, manjuana use can be harmful to the adolescent brain. Increased marijuana use may also lead to an increase in severe or fatal car accidents, as experienced in Colorado and Washington following adoption of recreational marijuana initiatives c. Illegality under federal law. The sale and distribution of both medical and nonmedical marijuana remains illegal under the federal Controlled Substances Act As a result, federal enforcement remains at the discretion of the executive branch While prior administrations have not focused on such enforcement, recent statements on behalf of the current admmistration indicate that the federal government may take a more aggressive approach in jurisdictions that permit nonmedical marijuana use and sale in contravention of federal law 6. Marijuana cultivation poses additional threats to public health, safety, and welfare, including. a Odors. Marijuana plants often produce, especially as they mature to harvest, a distinctive, strong odor that, for plants cultivated outdoors, can be detectable and offensive beyond the borders of the property on which it grows Cities, counties, and air quality districts in which manjuana is grown outdoors have received large numbers of complaints of odors related to the cultivation of marijuana b The risk of criminal activity. The strong smell and visibility of marijuana cultivated outdoors (such as from neighbonng buildings in residential areas) creates an "attractive nuisance" that entices others to the cultivation, and increases the risks of crimes such as burglary, trespass, robbery, and armed robbery, potentially resulting in serious injury or death The Santa Clara County Sherriff s Office believes the risks of crimes will continue under the AUMA given that marijuana is still valuable and remains illegal for individuals under 21 years of age c The risk of safety threats. The cultivation of marijuana in violation of building and safety codes can result in serious safety risks. d The risk of fires. Much of Saratoga is in a State -designated High or Very High Fire Hazard Seventy Zone. Recent wildfires in northern California have been caused by outdoor marijuana cultivation e The risk of environmental degradation The Santa Clara District Attorney has stated that outdoor grow sites have been discovered throughout Santa Clara County, particularly in remote areas such as the eastern foothills of Saratoga These outdoor grow sites frequently divert water without regulatory permits or permission and/or pollute adjacent waterways Between 2011-2013, the County 2017 Marijuana Ordinance Page 2 • charged 54 outdoor marihuana gardens, including at least 24 gardens on pnvate land Many of these operations were charged with environmental cnmes. • 7. The City Council of the City of Saratoga held a duly noticed public hearing on May 17, 2017, and after considering all testimony and written materials provided in connection with that hearing introduced this ordinance and waived the reading thereof The City Council of the City of Saratoga does ordain as follows. Section 1. Adoption The Saratoga City Code is hereby amended as set forth in Attachment A. Section 2. Severance Clause. The City Council declares that each section, sub -section, paragraph, sub -paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub- section, paragraph, sub -paragraph, sentence, clause and phrase of this ordinance. If any section, sub -section, paragraph, sub -paragraph, sentence, clause or phrase of this ordinance is held invalid, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of the portion held invalid, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated Section 3. California Environmental Quality Act The proposed amendments and additions to the City Code are exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guideline sections 15060(c)(2), 15060(c)(3), and 15061(b)(3) CEQA applies only to projects which have the potential of causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA Section 4. Publication. A summary of this ordinance shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption [Continued on Next Page] 2017 Marihuana Ordinance Page 3 Following a duly notice public hearing the foregoing ordinance was introduced at the regular meeting of the City Council of the City of Saratoga held on May 17, 2017 and was adopted by the following vote on June 7, 2017 COUNCIL MEMBERS. AYES. Mayor Emily Lo, Vice Mayor Mary -Lynne Bernald, Council Members E Manny Cappello, Howard A Miller NOES. ABSENT. Council Member Rishi Kumar ABSTAIN 61-4W.SIbTithimp Cl Bothelio, CITY CLERK APPROVED AS TO FORM. Richard Taylor, CITY ATTORNEY SIGNED Emily Lo MAYOR, CITY OF SARATOGA, CALIFORNIA DATE 0/-2 7 0 17 DATE. 2017 Marijuana Ordinance Page 4 • Attachment A — Article 6-30 Regarding Commercial Marijuana Activ itv and Marijuana Cultivation The sections of the Saratoga Municipal Code set forth below are adopted as follows Article 6-30 — Marijuana 6-30 010 — Purpose of Article This Article is intended to prohibit the establishment of commercial marijuana businesses and all outdoor cultivation of marijuana within the City, and to further regulate the personal indoor cultivation of marijuana authorized by state law, in order to protect the health and safety of the City's residents This Article is intended to conform to state law, including the Compassionate Use Act, the Medical Marijuana Program Act, the Medical Marijuana Regulation and Safety Act, and the Control, Regulate and Tax Adult Use of Marijuana Act Consequently, this ordinance shall be interpreted to conform to such laws to the maximum extent feasible In interpreting the terms of this ordinance, it is appropriate to look to the use and interpretation of those terms in applicable state law for guidance. 6-30.020 — Definitions • The following definitions apply throughout this Article e (a) "Commercial manjuana activity" means the sale or exchange for valuable compensation of manjuana and marijuana products and the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, and labeling of marijuana and marijuana products intended for sale or exchange for valuable compensation (b) "Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or tnmming of marijuana (d) "Fully enclosed and secure structure" shall mean a fully -enclosed space within a building that complies with Chapter 16 of the Saratoga Municipal Code, or if not subject to that Chapter, that has a complete roof and a foundation, slab or equivalent base to which the floor is secured and that is secure against unauthonzed entry and accessible only through one or more lockable doors Walls, doors, windows, and roofs must be constructed of solid and firm matenal such as wood, metal, or, in the case of windows, glass. Plastic sheeting or similar products do not satisfy this requirement (e) "Marijuana" means all parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin It does not include (i) industnal hemp or (ii) the weight of any other ingredient combined 2017 Marijuana Ordinance — Attachment A Page 5 • with marijuana to prepare topical or oral administrations, food, drink, or other product. As defined, marijuana includes cannabis and both medical and nonmedical marijuana • (f) "Marijuana products" means marijuana that has undergone a process whereby the plant matenal has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing marijuana or concentrated cannabis and other ingredients (g) "Outdoor" shall mean any location within the City of Saratoga that is not within a fully enclosed and secure structure (h) "Private residence" is defined as a house, an apartment unit, a mobile home, or other similar dwelling. 6-30.030 — Commercial Marijuana Activity — Prohibited The establishment or operation of any commercial manjuana activity in the City of Saratoga is prohibited 6-30 050 — Cultivation of Marijuana for Personal Use (a) Outdoor cultivation. The outdoor cultivation of marijuana is prohibited regardless of whether such cultivation is for personal use or commercial purposes (b) Indoor cultivation The indoor cultivation of marijuana is prohibited except to the extent that state law permits the indoor cultivation of up to six marijuana plants for personal use No more than six living marijuana plants may be planted, cultivated, harvested, dned, or processed within a single private residence at any one time (including within an accessory structure to a private residence that is fully enclosed and secure) Persons engaging in indoor cultivation must comply with all state and local laws regarding fire safety, water use, electncal winng, buildings, and indoor cultivation and personal use of marijuana including but not limited to Article 16-15 (Building Code), Article 16-18 (Residential Building Code), Article 16-20 (Fire Code), Article 16-25 (Plumbing Code), Article 16-35 (Electrical Code), Article 16-40 (Housing Code), Article 16-45 (Abatement of Dangerous Buildings Code), Article 16-51 (Energy Code), and Article 16-60 (Early Warning Fire Alarm System) of the Saratoga Municipal Code and restrictions imposed by the laws referenced in section 6-30 010 6-30 060 — Enforcement (a) Violations of this Article are hereby declared to be public nuisances and determined to be an immediate hazard to the public health, safety or welfare for purposes of Article 3- 20 (Emergency Nuisance Abatement Procedure) of the Saratoga Municipal Code (b) In addition to other remedies provided by the Saratoga Municipal Code or by other ID law, any violation of this Article may be remedied by a civil action brought by the City 2017 Marihuana Ordinance — Attachment A Page 6 • • Attorney, including, but not limited to, admimstrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, unfair business practice proceedings under Business & Professions Code section 17200 et seq , and suits for injunctive relief The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity (c) Notwithstanding any other provision of the Saratoga Municipal Code, including Article 3-05 (Criminal Enforcement) and Article 15-95-030 (regarding misdemeanors and infractions), a qualified patient, person with a valid identification card, or pnmary caregiver, as those terms are defined in the Compassionate Use Act and the Medical Marijuana Program Act, California Health and Safety Code sections 1111362 5 and 11362.7 et seq., shall not be subject to criminal liability under California Health and Safety Code section 11570 or any criminal abatement actions or complaints for activities decriminalized pursuant to the Compassionate Use Act and the Medical Ma ijuana Program Act Any qualified patient, person with a valid identification card, or primary caregiver engaged in commercial marijuana activities or marijuana cultivation in violation of this Section shall be subject to all other compliance actions set forth in this Section, code enforcement actions set forth in Chapter 3 of the Saratoga Municipal Code, and legal proceedings authorized in Section 15-95 020 of the Saratoga Municipal Code Nothing in this Section shall prevent the cnminal enforcement of other violations of this Ordinance, the Saratoga Municipal Code, or state law 891226.6 2017 Maryuana Ordinance —Attachment A Page 7