HomeMy WebLinkAboutCC Ord 1650 2016-01-11 (Urgency)URGENCY ORDINANCE NO. 1650
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SEAL BEACH ADDING CHAPTER 11.4.100 TO PART IV OF
TITLE 11 OFTHE SEAL BEACH MUNICIPAL CODE TO PROHIBIT
THE CULTIVATION OF MARIJUANA IN ALL ZONES IN THE CITY
A. Recitals.
1 1. The City has initiated amendments to the Seal Beach Municipal Code to
prohibit cultivation of medical marijuana in all zones in the City ( "Code Amendments ").
Since 2008, the City has prohibited medical marijuana dispensaries, and wants to
expressly prohibit cultivation of medical marijuana activity anywhere in the City.
2. In 1996, the voters of the State of California approved Proposition 215
(codified as California Health and Safety Code § 11362.5, and entitled "The
Compassionate Use Act of 1996" ( "CUA" )).
3. In 2004, the Legislature enacted Senate Bill 420 (codified as California
Health and Safety Code § 11362.7, et seq., and referred to herein as the "Medical
Marijuana Program" or "MMP ") to clarify the scope of Proposition 215 and to provide
qualified patients and primary caregivers who collectively or cooperatively cultivate
marijuana for medical purposes with a limited defense to certain specified State criminal
statutes. Assembly Bill 2650 (2010) and Assembly Bill 1300 (2011) amended the
Medical Marijuana Program to expressly recognize the authority of cities and counties to
"[a]dopt local ordinances that regulate the location, operation, or establishment of a
medical marijuana cooperative or collective" and to civilly and criminally enforce such
ordinances.
4. In City of Riverside v. Inland Empire Patients Health and Wellness Center,
1 Inc. (2013) 56 CalAth 729, the California Supreme Court held that "[n]othing in the CUA
or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by
its own ordinances, to regulate the use of its land..."
5. In Browne v. County of Tehama (2013) 213 Cal.AppAth 704, the
California Court of Appeal found that the CUA does not confer a right to cultivate
marijuana and that an ordinance limiting the number of medical marijuana plants that
may be grown outside, precluding marijuana cultivation within 1000 feet of schools,
parks and churches, and requiring that an opaque fence of at least six feet to be
installed around all marijuana grows was not preempted by state law. Further, in Maral
v. City of Live Oak (2013) 221 Cal.AppAth 975, the Court of Appeal held that the CUA
and the MMP do not preempt a city's police power to completely prohibit the cultivation
of all marijuana within that city because "there is no right — and certainly no
constitutional right — to cultivate medical marijuana..."
6. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq.,
classifies marijuana as a Schedule 1 Drug, which is defined as a drug or other
substance that has a high potential for abuse, that has no currently accepted medical
use in treatment in the United States, and that has not been accepted as safe for use
under medical supervision. The Federal Controlled Substances Act makes it unlawful
under federal law for any person to cultivate, manufacture, distribute or dispense, or
possess with intent to manufacture, distribute or dispense, marijuana.
' 7. On October 9, 2015, Governor Brown signed into law the Medical
Marijuana Regulation and Safety Act ( "MMRSA "), which is comprised of three related
bills: Assembly Bill No. 243, Assembly Bill No. 266, and Senate Bill 643. The MMRSA
establishes a State licensing scheme for commercial medical marijuana uses while
protecting local control by requiring that all such businesses must have a local license
or permit to operate in addition to a State license. The MMRSA expressly allows local
governments to enact ordinances prohibiting the cultivation of medical marijuana. The
MMRSA requires that a City prohibit cultivation uses by March 1, 2016 either expressly
or otherwise under the principles of permissive zoning, or the State will become the sole
licensing authority for the cultivation of medical marijuana.
Ordinance Number 1650
8. As recognized by the Attorney General's August 2008 Guidelines for the
Security and Non - Diversion of Marijuana Grown for Medical Use, marijuana cultivation
or other concentration of marijuana in any location or premises without adequate
security, increases the risk that surrounding homes or businesses may be negatively
impacted by nuisance activity such as loitering or crime. The limited immunity from
specified state marijuana laws provided by the CUA, MMP and the MMRSA does not
confer a land use right or the right to create or maintain a public nuisance.
9. Seal Beach Municipal Code Section 5.70.025(c) prohibits marijuana
dispensaries in the City. A marijuana dispensary is defined as "any facility or location
where medical marijuana is made available to and /or distributed by or to 3 or more of
the following: a qualified patient, a person with an identification card, or a primary
caregiver." See 5.70.025(8)(3). Under the City's code, the cultivation of marijuana is
not expressly prohibited.
10. The prohibition on the cultivation of medical marijuana will preserve and
protect the public health, safety and welfare. The justification for banning marijuana
cultivation pursuant to the City's police power includes, without limitation: 1) the
increased risk to public safety, based on the value of marijuana plants and the
accompanying threat of break -ins, robbery and theft, and attendant violence and injury;
2) the strong "skunk like" malodorous fumes emitted from mature plants that can
interfere with the use and enjoyment of neighboring properties by their occupants; and
3) the risk of electrical fire hazards caused by medical marijuana cultivation.
11. Criminal activity is often associated with medical marijuana cultivation. As
marijuana plants begin to flower, and for a period of two months or more, the plants
produce a strong, unique odor, offensive to many people, and detectable far beyond
property boundaries if grown outdoors. Aside from being offensive, this odor can have
the effect of encouraging theft by alerting persons to the location of the valuable plants,
and creating a risk of burglary, robbery or armed robbery of the plants and creating the
potential for violent acts related to such criminal activity.
12. Furthermore, indoor cultivation of marijuana, often unattended, has
potential to cause harm to persons and property in that the use of high wattage grow
lights and excessive use of electricity increases the risk of fire which presents a distinct
risk of harm to the building and its occupants. Buildings where marijuana is cultivated
are often illegally wired and have overloaded electrical systems that result in fires. In
2015 alone, there were a number of reported incidents of indoor marijuana cultivation
sites causing fires. On February 9, 2015, there was a fire in a residence in Sacramento
that was caused by the indoor cultivation of marijuana. On February 19, 2015, there
was an electrical fire in Arcadia caused by an indoor marijuana cultivation operation.
On April 24, 2015, there was an explosion in a Silver Lake home that leveled the house
and destroyed several cars that was caused by an indoor marijuana cultivation
operation. In May 2015, a fire erupted in a commercial building in Sun Valley that was
caused by indoor marijuana grow house. In that same month, there was a fire in an Elk
Grove home caused by an overheated illegal electrical power connection used to power
an indoor marijuana grow house. In June 2015, there was a fire in a Sacramento
residence caused, by an indoor marijuana grow house. In July 2015, there was a fire in
a Baldwin Park home caused by grow house. In September 2015, there was a fire in
the garage of a Sun Valley residences that was caused by an indoor marijuana grow
house. On October 23, 2015, there was a fire in a Rialto home that was caused by an
indoor marijuana grow, started by an electrical panel that burst.
13. Based on the foregoing, the City Council finds that in order to more fully
protect the public health, safety and welfare, prohibiting all cultivation of medical
marijuana is proper and necessary to avoid the risks of criminal activity, degradation of
the natural environment, noxious smells and indoor electrical fire hazards that may
result from such activities.
14. All legal prerequisites to the adoption of this Ordinance have occurred.
B. Ordinance.
E
Ordinance Number 1650
NOW, THEREFORE, the Seal Beach City Council ordains as follows:
Section 1. The City Council finds that the facts set forth in the Recitals, Part A,
of this Ordinance are true and correct.
Section 2. Urgency Declaration. Based upon the findings above, the City
Council finds that this Ordinance is necessary for the immediate preservation of the
public health, safety and welfare. The City Council finds and determines that the
immediate preservation of the public health, safety and welfare requires that this
Ordinance be enacted as an urgency ordinance pursuant to Government Code Section
36937(b) and take effect immediately upon adoption. Pursuant to State law, the City
must adopt a land use regulation expressly prohibiting the cultivation of medical
marijuana that is in effect by March 1, 2016, or the State will become the sole licensing
authority for the cultivation of medical marijuana. Unless this Ordinance becomes
effective immediately, the City will lose the ability to prohibit the cultivation of medical
marijuana in the City. Further, the Ordinance must be adopted and must become
effective immediately in order to protect City residents from imminent harm due to the
risk of fires associated with the cultivation of medical marijuana. Therefore, this
Ordinance is necessary for the immediate preservation of the public peace, health,
safety and welfare and its urgency is hereby declared.
Section 3. Chapter 11.4.100 (Medical Marijuana) is added to Part IV
(Regulations Applying in Some or All Districts) of Title 11 (Zoning) of the Seal Beach
Municipal Code to read as follows:
11.4.100.005
11.4.100.010
11.4.100.015
"Chapter 11.4.100
Medical marijuana
Definitions.
Prohibition.
Civil Penalties.
Definitions.
For purposes of this section, the following words and phrases shall mean:
A. "Cultivation ": shall have the same meaning as set forth in California
Business and Professions Code Section 19300.5(1), as the same may be amended from
time to time, and shall include any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of marijuana.
B. "Medical Marijuana ": shall have the same meaning as "cannabis" as set
forth in the Business and Professions Code section 19300.5(f), as the same may be
amended from time to time, and shall include all parts of the plant cannabis sativa
linnaeus, cannabis indica, or cannabis ruderalis, whether growing or not; the seeds
thereof; the resin, whether crude or purified, extracted from any part of the plant; and
every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its
seeds, or resin. "Marijuana" also means the separated resin, whether crude or purified,
obtained from marijuana. "Marijuana" also means marijuana as defined by Section
11018 of the Health and Safety Code. "Marijuana" also means "medical marijuana" as
defined by Seal Beach Municipal Code section 5.70.025(B)(2). For the purpose of this
Ordinance, "marijuana" does not mean "industrial hemp" as defined by Section 81000 of
the Food and Agricultural Code or Section 11018.5 of the Health and Safety Code.
11.4.100.010 Prohibition.
The cultivation of marijuana for commercial or non - commercial purposes is
expressly prohibited in all zones and all specific plan areas in the City.
11.4.100.015 Civil Penalties.
3
Ordinance Number 1650
In addition to any other enforcement permitted by Municipal Code Chapter 1. 15,
the City Attorney may bring a civil action for injunctive relief and civil penalties against
any person or entity that violates this Section. In any civil action brought pursuant to
this Section, a court of competent jurisdiction may award reasonable attorneys fees and
costs to the prevailing party. No provision of Chapter 1.15 shall authorize a criminal
prosecution or arrest prohibited by Health and Safety Code section 11362.71 et seq."
Section 4. CEQA. There is no environmental impact related to this item.
Pursuant to the California Environmental Quality Act ( "CEQA "), the City Council has
determined that the proposed prohibition on the cultivation of medical marijuana is
exempt from the requirements of CEQA and the City's CEQA Guidelines pursuant to
CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that there
is no possibility that the proposed prohibition on marijuana cultivation within the City's
jurisdiction will have a significant effect on the environment. The Ordinance imposes
greater limitations on uses and activities allowed in the City, and will thereby serve to
eliminate potential significant adverse environmental impacts. The Ordinance will not
have an impact on the physical environment as they will not result in any changes to the
environment.
Section 5. Severabilitv. If any sentence, clause, or phrase of this Ordinance is
for any reason held to be unconstitutional or otherwise invalid, such decision shall not
affect the validity of the remaining provisions of this Ordinance. The City Council
hereby declares that it would have passed this Ordinance and each sentence, clause or
phrase thereof irrespective of the fact that any one or more sentence, clauses or
phrases be declared unconstitutional or otherwise invalid.
Section 6. Savings Clause. Neither the adoption of this Ordinance nor the
repeal or amendment by this Ordinance of any ordinance or part or portion of any
ordinance previously in effect in the City or within the territory comprising the City, shall
in any manner affect the prosecution for the violation of any ordinance, which violation
was committed prior to the effective date of this Ordinance, nor be construed as a
waiver of any license, fee or penalty or the penal provisions applicable to any violation
of such ordinances.
Section 7. Effective Date. This Ordinance is adopted as an urgency ordinance
for the immediate preservation of the public peace, health and safety within the meaning
of Government Code section 36937(b), and therefore shall be passed immediately upon
its introduction and shall become effective immediately upon its adoption by a minimum
4/5 vote of the City Council.
Section 8. Certification. The City Clerk shall certify as to the adoption of this
Ordinance.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal
Beach at a meeting thereof held on the 11th day of January 2016.
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ATTEST:
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STATE OF CALIFORNIA }
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CITY OF SEAL BEACH }
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I, Robin Roberts, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing ordinance is an original copy of Urgency Ordinance Number 1650 on file in
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Ordinance Number 1650
the office of the City Clerk, passed, approved and adopted by the City Council of the
City of Seal Beach, pursuant to the City Charter and Government Code § 36967(b), at a
meeting held on the 11th day of January , 2016 by the following vote:
AYES: Council Member(s): Deaton, Sloan, Varipapa, Miller, Massa - Lavitt
NOES: Council Member(s)
ABSTAIN: Council Member(s)
and do hereby further certify that Ordinance Number 1650 has been published
pursuant to the Seal Beach City Charter and Resolution Number 2836.
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