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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)