HomeMy WebLinkAboutOrdinance 343 - URGENCY MarijuanaORDINANCE NO. 343
URGENCY INTERIM ORDINANCE IMPOSING A TEMPORARY MORATORIUM ON
THE OUTDOOR CULTIVATION OF MARIJUANA IN THE CITY OF SARATOGA
FOR A PERIOD OF 45 DAYS PENDING A STUDY OF ZONING REGULATIONS
THAT ARE NEEDED TO ALLEVIATE A CURRENT AND ACTUAL THREAT TO
THE PUBLIC HEALTH, SAFETY AND WELFARE
The City Council of the City of Saratoga finds that:
1. In 1970, Congress enacted the Controlled Substances Act (CSA) which, among other
things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the
United States. The use, possession, and cultivation of marijuana remains illegal under the
federal CSA. Bearman v. California Medical Bd. (2009) 176 Cal.App.4th 1588.
2. California voters will consider the Control, Regulate and Tax Adult Use of Marijuana Act
("AUMA", also known as Proposition 64) on the November 8, 2016 ballot. If passed, the
AUMA will legalize under state law the possession, cultivation, and consumption of
marijuana for persons 21 years of age or older. It will also establish state laws to regulate
marijuana cultivation, distribution, sale and use.
3. If passed, the AUMA will immediately allow personal cultivation of up to six marijuana
plants inside a private residence and outside on the grounds of a private residence. The
AUMA expressly anticipates the enactment of local legislation prohibiting personal
outdoor cultivation by stating that "a city, county, or city and county may completely
prohibit persons from [possessing, planting, cultivating, harvesting, drying, or processing
living marijuana plants] outdoors upon the grounds of a private residence." (H&S Code §
11362.2(b)(3), as proposed by the AUMA).
4. If passed, the AUMA will also allow the commercial cultivation of marijuana plants by
individuals who receive a state license and comply with other state regulations, provided
the activity is not prohibited by local ordinance. There may be a period of time after the
AUMA passes when individuals are unaware that personal cultivation is limited to
residential properties and that commercial cultivation requires a state license. Publicity
associated with legalization can be expected to lead individuals to believe that the
outdoor cultivation of marijuana is immediately allowed on non-residential properties as
well. The AUMA expressly anticipates the enactment of local legislation prohibiting
commercial and other outdoor cultivation by stating that "[n]othing in this division shall
be interpreted to supersede or limit the authority of a local jurisdiction to ... completely
prohibit the establishment or operation of one or more types of businesses licensed under
this division within the local jurisdiction" and that "[a] local jurisdiction may establish
additional standards, requirements, and regulations" regarding health, safety, and
environmental protection. (H&S Code §§ 26200, 26201, as proposed by the AUMA).
5. The Compassionate Use Act and the Medical Marijuana Program Act create limited
exceptions from criminal liability for seriously ill persons and for their primary
caregivers, collectives, and cooperatives who cultivate medical marijuana. In 2015, the
legislature passed the Medical Marijuana Regulation and Safety Act to regulate the
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medical marijuana industry. Pursuant to the Act, the California Department of Food and
Agriculture is preparing a Medical Cannabis Cultivation Program, the purpose of which
is to establish a regulatory licensing program for medical cannabis cultivation. That
licensing and regulatory program has not yet been established, however, and is not
anticipated to go into effect until the end of 2017. Under the state's medical marijuana
laws, cities may prohibit the cultivation of medical marijuana. Maral v. City of Live Oak
(2013) 221 Cal.App.4th 975; Bus. & Prof Code §§ 19315, 19316.
6. Government Code section 65858(a) provides that, without following the procedures
otherwise required prior to adoption of a zoning ordinance, the legislative body of a city
may adopt as an urgency measure an interim ordinance prohibiting any uses that may be
in conflict with a contemplated zoning proposal that the city intends to study to protect
the public safety, health, or welfare.
7. A temporary ban on outdoor marijuana cultivation is necessary to protect the public from
current and immediate threats to public safety, health and welfare facilitated by the
AUMA until a comprehensive study is conducted and permanent regulations are adopted.
The City intends to proceed with a study and public meetings to consider an ordinance
that most effectively regulates and/or licenses marijuana cultivation in manner
appropriate for the City of Saratoga. Establishment of or entitlements for outdoor
cultivation prior to completion of this process could be in conflict with such an
ordinance, and would result in current and immediate threats to public health, safety and
welfare for the reasons set forth in this Ordinance.
8. This Ordinance must be adopted and become effective immediately to prevent the
following threats to public health, safety and welfare associated with outdoor marijuana
cultivation:
a. Odors. Marijuana plants cultivated outdoors often produce, especially as they
mature to harvest, a distinctive, strong odor that can be detectable and offensive
beyond the borders of the property on which it grows. Cities, counties, and air
quality districts in which marijuana is grown outdoors have received large
numbers of complaints of odors related to the cultivation of marijuana.
b. The risk of criminal activity and safety threats. The strong smell and visibility
of marijuana cultivated outdoors (such as from neighboring 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 if the
AUMA passes given that marijuana will still be valuable and will remain illegal
for individuals under 21 years of age. The cultivation of marijuana can also result
in various code violations, including improper and dangerous electric alterations
and use. These secondary effects pose serious safety risks, and require the
commitment of scare police, code enforcement, and other public resources.
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c. The risk of fires. Much of Saratoga is in a State -designated High or Very High
Fire Hazard Severity Zone. Recent wildfires in northern California have been
caused by outdoor marijuana cultivation.
d. 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
charged 54 outdoor marijuana gardens, including at least 24 gardens on private
land. Many of these operations were charged with environmental crimes.
9. A prohibition on outdoor marijuana cultivation is more difficult to enforce once such uses
have begun within a community. Those uses must be immediately prohibited to prevent
them from establishing and causing the negative secondary effects in the City described
above.
10. Notice of the public hearing for this Ordinance was published pursuant to Government
Code section 65090 and the City Council held a public hearing on November 2, 2106 at
which all interested parties had an opportunity to be heard.
Therefore, the City Council of the City of Saratoga hereby ordains as follows:
Section 1. Prohibition
The outdoor cultivation of marijuana is prohibited in all zoning districts within the City of
Saratoga.
For purposes of this Ordinance:
(a) "marijuana" shall have the same meaning as set forth in Health and Safety Code section
10018, as proposed to be added by the AUMA (as defined in the findings above), and shall be
interpreted broadly to include the definitions of "cannabis" and "medical cannabis" set forth in
Business and Professions Code section 19300.5 subdivisions (f) and (af);
(b) "cultivation" shall have the same meaning as "cultivation" set forth in Business and
Professions Code section 19300.5(k);
(c) "outdoor" shall mean any location within the City of Saratoga that is not within a fully
enclosed and secure structure; and
(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 unauthorized entry and accessible only through one or more lockable doors.
Walls, doors, windows, and roofs must be constructed of solid and firm material such as wood,
metal, or, in the case of windows, glass. Plastic sheeting or similar products do not satisfy this
requirement.
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Section 2. Enforcement
(a) Violations of this Ordinance 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 law, any
violation of this Ordinance may be remedied by a civil action brought by the City Attorney,
including, but not limited to, administrative 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 primary 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 outdoor cultivation of medical cannabis as that term is defined in
Business and Professions Code section 19300.5(af). Any qualified patient, person with a valid
identification card, or primary caregiver engaged in outdoor cultivation of medical cannabis 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 criminal enforcement of other violations of this Ordinance, the Saratoga
Municipal Code, or state law.
Section 3. Written Report
The City Manager, Community Development Department, and City Attorney's office shall (1)
review and consider options for the regulation of marijuana cultivation in the City and (2)
pursuant to Government Code section 65858, file a written report describing the measures that
the City has taken to address the conditions which led to the adoption of this Ordinance with the
City Council within 10 days prior to the expiration of this interim urgency ordinance, or any
extension thereof.
Section 4. 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
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remaining portions of this ordinance should remain in effect after the invalid portion has been
eliminated.
Section 5. Effective Date
This Ordinance is an interim urgency ordinance that shall take effect immediately upon its
adoption by a four-fifths (4/5) vote of the City Council. This 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 the City Council extends it for an additional period of time pursuant to
California Government Code section 65858.
Section 6. California Environmental Quality Act
The City Council finds that this Ordinance is not subject to the California Environmental Quality
Act ("CEQA") pursuant to CEQA Guidelines (Title 14 of the California Code of Regulations)
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) because it has no potential for resulting in physical change in the environment,
directly or indirectly; it prevents changes in the environment. Further, this action is exempt from
CEQA under CEQA Guidelines section 15061(b)(3) (the amendments are exempt because it can
be seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment).
Section 7. 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 Next Page)
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Following a duly noticed public hearing the foregoing urgency ordinance was adopted by the
following vote on November 2, 2016:
COUNCIL MEMBERS:
AYES: Mayor E. Manny Cappello, Vice Mayor Emily Lo, Council Member Mary -
Lynne Bernald, Howard A. Miller, Rishi Kumar
NOES: None
ABSENT: None
ABSTAIN: None
t 7ES�
Cr a1 Bothelio, CITY CLERK
APPROVED AS TO FORM:
Richard Taylor, CITY ATTORNEY
828901.4
GNED:
E. Manny " . . pe110
MAYOR, CITY OF SARATOGA, CALIFORNIA
DATE: I 1 / /� Q I
DATE:
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