HomeMy WebLinkAboutOrdinance 281ORDINANCE NO. 281
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, there is considerable uncertainty regarding the legal status of medical
marijuana dispensaries and local government authority to regulate them under existing
state law; and
WHEREAS, in August 2010, the Court of Appeal for the Fourth District issued an
opinion in Qualified Patients Ass'n v. City of Anaheim, Case No. G040077, holding that
the federal Controlled Substances Act, codified at 21 USC section 801 et seq., does not
preempt state law decriminalizing marijuana for medical purposes, but declining to reach
the question of whether the City of Anaheim's ban on medical marijuana dispensaries is
preempted by state law; and
WHEREAS, litigation currently pending in the California and federal 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, on December 16, 2009, the City Council adopted by a unanimous
vote an extension of that interim ordinance for a period of ten months and fifteen days;
and
WHEREAS, pursuant to Government Code section 65858, the interim ordinance
will expire on November 17, 2010, unless extended by the Council for an additional
period of one year; and
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 15061(b)3 (there is no
possibility that the activity in question may have a significant effect on the environment)
and 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 December 16, 2009 until November 17, 2011, 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, 2011 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.
The foregoing ordinance was introduced and read at the regular meeting of the City
Council of the City of Saratoga held on the 6 day of October 2010, and was
adopted by at least a four -fifths (4/5) vote of the City Council as follows:
AYES: Councilmembers Manny Cappello, Chuck Page, Howard Miller,
Vice Mayor Jill Hunter, Mayor Kathleen King
NAYS: None
ABSENT: None
ABSTAIN: None
Saratoga, California
ATTEST:
ANN SULLIVAN
CLERK OF THE CITY OF SARATOGA
Saratoga, California
APPROVED AS TO FORM:
RICHARD TAYLOR, CITY ATTORNEY
SIGNED:
THLEEN M. KING
MAYOR OF THE CIT OF SARATOGA
DATE: // - 22-26/e
Legal Notice
NOTICE OF ORDINANCE
NO. 281
AN INTERIM URGENCY
ORDINANCE EXTENDING
THE TEMPORARY MORA-
TORIUM RESTRICTING
MEDICAL MARUUANA
DISPENSARIES FROM BE-
ING LOCATED IN THE
CITY OF SARATOGA, TO
TAKE EFFECT IMMEDI-
ATELY
ON OCTOBER 6, 2010,
THE CITY COUNCIL OF
THE CITY OF SARATOGA
ADOPTED THE ABOVE
ORDINANCE EXTENDING
THE TEMPORARY MORA-
TORIUM RESTRICTING
MEDICAL MARIJUANA
DISPENSARIES FROM BE-
ING LOCATED IN THE
cITY
Comprehensive Summa-
ry: This ordinance ex-
tends for a one year pe-
riod the interim urgency
ordinance restricting
medical marijuana
dispensaries from being
located in the City of
Saratoga. The ordi-
nance provides that
medical marijuana
dispensaries shall be
considered a prohibited
use in any zoning dis-
trict of the City, and that
no permits or authoriza-
tions for a medical mari-
juana dispensary shall
issue while the ordi-
nance is in effect. The
ordinance further- re-
quires the City Manager
or his designees to con-
sider options for the
regulation of medical
marijuana dispensaries
in the City, to meet with
interested parties, and
to provide a written re-
port to the City Council
regarding the measures
taken to alleviate condi-
tions that led to adop-
tion of the ordinance.
The ordinance defines
the term "medical mari-
juana dispensary" and
includes findings ex-
plaining the need for a
purposes of the ordi-
nance.
The ordinance was orig-
inally adopted on No-
vember 18, 2009, and
previously extended for
a period of ten months
and fifteen days on De-
cember 16, 2009. The or-
dinance will expire on
November 17, 2011. The
full text of the ordinance
is available for review at
www.saratoga.ca.us
and in the office of the
City Clerk at 13777
Fruitvale Avenue, Sara-
toga, California during
regular business hours.
Councilmembers voting
for the ordinance :,
Chuck Page, Howard
Miller, Manny Capello,
Mayor Kathleen King,
Vice Mayor Jill Hunter
Councilmembers voting
against the ordinance:
None
/s/ Ann Sullivan
Ann Sullivan, City Clerk
Dated: October 6, 2010
(Feb SN 10/11/10)