HomeMy WebLinkAboutCC AG PKT 2007-12-10 # W
e
AGENDA REPORT
DATE: December 10,2007
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Quinn Barrow, City Attorney
Lee Whittenberg, Director of Development Services
SUBJECT: Public Hearing - Ordinance No. , An Interim
Ordinance of the City of Seal Beach Extending Interim
Ordina~ce No. 1556, Prohibiting the Estal;Jlishment of
Marijuana Dispensaries in Any Zoning District Within the
City and Declaring the Urgen.cy Thereof
SUMMARY OF REQUEST:
e
Conduct Public. Hearing. After consideration of all public testimony, issue Report and
adopt Ordinance No. . .
BACKGROUND:
On January, 22, 2007, the City Council adopted Ordinance No. 1556, "An Interim
Ordinance of the City of Seal Beach Prohibiting the Establishment of Marijuana
Dispensaries in Any Zoning District Within the City and Declaring the Urgency Thereof'
and commenced the study of the regulation of medical marijuana dispensaries. Ordinance
No. 1556 was extended after conducting a public hearing by City Council adoption of a
new interim ordinance, Ordinance No. 1557-U, pursuant to California Government Code
Section 65858 on February 12,2007.
The City Council must conduct public hearings before considering amendments to
current regul.ations related to medical marijuana dispensaries. In addition, studies of the
impact of medical marijuana dispeD.l!aries on the community and appropriate regulatory
rneasures have been initiated and further study is still necessary. It is therefore necessary
to extend the effective period of the interim regulations for an additional 12 months, to
ensure that medical marijuana dispensaries do not locate in the City during the evaluation
of the appropriate legislative action. Upon the completion of appropriate research, staff
will,prepare a public hearing packet for consideration by the City Council,
e
Agenda Item ~
Z,1My DocumentslZoning Code RevislonslMariJuana Dispensary Interim Ord Extension.CC Staff Repori 2.DOClLW/ll-t6-
07
Consideration of Extension of Interim Ordinance Prohibiting the Establishment
of Marijuana Dispensaries in Any Zoning District Within the City
City Council Staff Report
December 10, 2007
e
Pursuant to provisions of Government Code ~ 65858, a public hearing is to be held this
evening to consider an extension of the moratoriwn. Upon completion of the public
hearing, the City Council may extend the effective time period of Ordinance No. 1556 for
an additional maximum time period of 12 months. This action would require a four-fIfths
vote of the City Council for adoption.
In summary, the City Planning Staffhas initiated and is continuing to conduct studies and
the City Council has held a public hearing to further consider this matter. These are the
measures, inter alia, taken to alleviate the condition that led to the adoption of the interim
ordinance.
On November 20, 2007, a written report describing the measures taken to alleviate the
conditions that led to the adoption of Ordinance No. 155(i was prepared in compliance
with the provisions of California Government Code ~ 65858(d). A copy of that report is
provided as Attachment 2 for the information of the City Council and public during the
scheduled public hearing.
By extending the moratorium, the City will be able to preserve thl[: status quo while it
studies ways to protect public health and safety, and examines the legal issues more
closely. To fully understand the impact of the apparent conflict between federal and state
law, as well as the community and statewide concerns regarding the impacts associated
with the establishment of medical marijuana dispensaries, it is necessary for the City to
continue to study the potential impacts such facilities may have on the public health,
safety, and welfare.
e
FISCAL IMPACT:
None.
RECOMMENDATION:
Issue Report and Adopt Ordinance No. . An Interim Ordinance of the City of Seal
Beach Extending Interim Ordinance No. 1556, Prohibiting the Establishment of
Marijuana Dispensaries in Any Zoning District Within the City and Declaring the
Urgency Thereof
NOTED AND APPROVED:
:J~~
City Attomey
o~~
David Carmany
City Manager
e
2
Marijuana Dispensmy Interim Old Extension CC Staff Report 2
e
e
e
Consideration of Extension of Interim Ordinance Prohibiting the Establishment
of Marijuana Dispensaries in Any Zoning District Within the City
City Council Staff Report
December /0, 2007
. ttenberg
lrector of Development Services
.7
Attachments: (2)
Attachment 1:
Ordinance No. , An Interim Ordinance of the City of
Seal Beach Extending Interim Ordinance No. 1556,
Prohibiting the Establishment of Marijuana Dispensaries in
Any Zoning District Within the City and Declaring the
Urgency Thereof
Attachment 2:
Report re: Ongoing Study of the Impact of Medical
Marijuana Dispensaries and Related Legal Issues
3
Marijuana DISpensary Intenm Oed ExtenSIon CC StalfReport 2
e
Consideration of Extension of Interim Ordinance Prohibiting the Establishment
of Marijuana Dispensaries in Any Zoning District Within the City
City Council Stqff Report
December 10, 2007
ATTACHMENT 1
ORDINANCE NO. , AN INTERIM
ORDINANCE OF THE CITY OF SEAL
BEACH EXTENDING ~ERIM
ORDINANCE NO. 1556, PROIDBITING THE
ESTABLISHMENT OF MARIJUANA
DISPENSARIES IN ANY ZONING DISTRICT
WITHIN THE CITY AND DECLARING THE
URGENCY THEREOF
e
e
4
Marijuana Dispensary Intenm Old Extension CC Staff Report 2
e
ORDINANCE NUMBER 1565
AN INTERIM ORDINANCE OF THE CITY OF SEAL BEACH
EXTENDING INTERIM ORDINANCE NO. 1556, PROHIBITING
THE ESTABLISHMENT OF MARIJUANA DISPENSARIES IN
ANY ZONING DISTRICT WITHIN THE CITY AND DECLARING
THE URGENCY THEREOF
TIlE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES ORDAIN AS
FOLLOWS:
SECTION I. Moratorium Established. Ordinance No. 1556 is hereby extended
to and including December 9, 2008. The Findmgs set forth in Ordinance No. 1556 are set
forth in Seclton 6, below. The City of Seal Beach hereby establishes a moratonum
prohlbiltng the establishment of medical marijuana dispensanes in any zoning district
within the City.
SECTION 2. Moratorium Defined. Notwithstanding any other ordinance or
provision of the Code of the City of Seal Beach no application for a buildmg permit,
condiltonal use permit, business license or any other entitlement for a medical marijuana
dispensary shall be approved during the tenn of the moratorium estabhshed in Section I
above.
SECTION 3. Moratorium Term. This Ordinance shall expire, and the
moratorium estabhshed hereby shall tenninate, twelve (12) months after the date of
adoption, pursuant to California Government Code Section 65858.
e
SECTION 4. CEOA Findin2. The City Council hereby Iinds that it can be seen
with certamty that there is no possibility the adoption of this Ordinance, and
estabhshment of a moratorium hereby, may have a significant effect on the environment,
because the moratorium will maintain the current environmental condib.ons arising from
the current land use regulatory structure. It is therefore exempt from California
EnVironmental Quality Act review pursuant to Title 14, Section 15061(b)(3) of the
California Code of Regulations.
SECTION 5. Penalty. Violalton of any proviSIon of this Ordinance shall
constitute a misdemeanor and shall be punishable by a fine not to exceed one thousand
dollars ($1,000) or by impnsonment for a period not to exceed six (6) months, or by both
such fine and imprisonment Each and every day such a violation eXISts shall constitute a
separate and distinct violation of this Ordmance. In additIon to the foregoing, any
violation of this Ordinance shall constitute a public nuisance and shall be subject to
abatement as provided by all applicable provisions of law.
SECTION 6. Le2islative Findin2s. The City Council finds that:
(a) In 1996 the California voters approved Proposition 215, the
Compassionate Vse Act (the "CVA"), legahzmg the use of marijuana for medical
pwposes under certain conditions. In 2003, the California Legislature passed Senate Bill
420 ("SB 420"), which clarified the scope of the CVA and authorized cities and other
governing bodies to adopt and enforce rules and regulations consistent with SB 420 and
the CVA. CIting the authority of SB 420, numerous dispensaries have opened in
California to distribute marijuana to mdividuals with various illnesses.
e
(b) In some cities contaimng medical marijuana dispensaries, there has
been an increase in cnme, such as burglaries, robberies, and sales of illegal drugs in the
areas immediately surrounding such dispensaries. Furthermore, the Vmted States
Department of Justice's California Medical Manjuana Information report has advised that
large-scale drug traffickers have been posing as "care givers" to obtain and sell
marijuana. A medIcinal marijuana dispensary opened briefly in a city after proVIding
false infonnalton regarding the nature of the use to the city in a business license
application and to its landlord in an application to rent business space. If any of these
Ordinance Number 1565
e
cu'Cumstances were repeated in Seal Beach, It could increase the likelihood that parties
would traffic in Illegal drugs in the City, therehy endangering the public health, safety
and welfare.
(c) There is a conflict between state and federal law WIth regard to the
possessIOn and use of marijuana for medicinal purposes. This conflict is the subject of
pendmg litigation and legislative discussion. The County of San Diego, the State of
California and other public entilles are currently involved in litigallon regarding the scope
of local public agencies' authonty to regulate medicinal marijuana. To fully understaud
the impact of the apparent conflict between federal and state law, as well as the
community and statewide concerns regarding the impacts associated with the
establishment of medical marijuana dispensaries, and the fact that federallegtslation and
enforcement is currently 10 flux, it is necessary for the City to continue to study the
potential impacts such facilities may have on the public health, safety, and welfare.
(d) The City bas received inquiries regarding its requirements for
medical manjuana facilities. The establishment of medical marijuana facilities before
appropnate procedures and regulations are enacted has the potential to cause adverse
impacts to surrounding development and to nsk the public health, safety and welfare of
the CIty'S residents and the general public. It is therefore urgent that the City develop
regulations governing the locabon and operation of medical marijuana facilities to
prevent adverse Impact to the public health, safety and welfare that may result from
unregulated placement and operation of such uses in the City.
e
(e) The City Council finds that additional planning and research are
urgently necessary to develop appropriate standards to regulate medical marijuana
facilities. The City intends to undertake such a study within a reasonable time. During
the course of the study and planning process, the City Council finds that operators of
medical marijuana facihties and others are likely to submit apphcations for such uses and
the development of medical marijuana facilities before appropriate regulations and
safeguards are in place may be incompatible with the result of thiS planning process.
Given the lime required to undertake the study and planning this situation calls for, the
City Councll finds that it is necessary that this temporary moratorium be declared to
ensure that no medical marijuana facilities that may be in conflict with the contemplated
new development policies are pernutted in the interim. The City Council has the
authority to adopt an mterim ordinance pursuant to the City Charter and Government
Code Section 65858 10 order to protect the public health, safety, or welfare.
(I) Based on the foregoing, the City Council finds that the approval of
use pennits, variances, building pennits, business licenses or any other applicable
entitlement providing for the establishment andlor operation of marijuana dispensaries
prior to (I) resolving whether federal law will be routinely enforced against medical
marijuana dispensaries; (2) the City's completion of its study of the potential impact of
such facilities; aud (3) resolving any zoning conflicts based on the fact that no zoning
currently exists in the City for such dispensaries; would result in a current and immediate
threat to the public health, safety. and welfare. This Ordinance is an emergency
ordinance within the meaning nf the City Charter and an urgency nrdinance for the
immedtate preservatiou 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 effecbve immediately upon its adoption.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach
at a meeting thereof held on the lOth day of December , 2007.
e
A ITEST:
Mayor
City Clerk
Ordinance Number 1565
e
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, Cahfornia, do hereby certify that the
foregoing ordmance is an original copy of Urgency Ordinance Number 1565 on file in 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 Section 36967(b), at a
meeting held on the 10th day of December, 2007 by the following vote:
AYES: Councilmembers
NOES: Councilmembers
ABSENT: Councilmembers
ABSTAIN: Councilmcmbers
and do hereby further cemfy that Urgency Ordmance Number 1565 has been published
pursuant 10 the Seal Beach CIty Charter and Resolution Number 2836.
City Clerk
e
e
e
Consideration of Extension of Interim Ordinance Prohibiting the Establishment
of Marijuana Dispensaries in Any Zoning District Within the City
City Council Staff Report
December /0, 2007
ATTACHMENT 2
REPORT RE: ONGOING STUDY OF THE
IMPACT OF MEDICAL MARIIDANA
DISPENSARIES AND RELATED LEGAL
ISSUES
e
e
9
Marijuana DISpensary lnlenm Ord ExtenSIon CC StalTRcport 2
e
Consideration of Extension of Interim Ordinance Prohibiting the Establishment
of Marijuana Dispensaries in Any Zoning District Within the City
City Council Staff Report
December 10, 2007
REPORT RE:
ONGOING STUDY OF THE IMPACT OF MEDICAL
MARIJUANA DISPENSARIES AND RELATED LEGAL
ISSUES
Pursuant to Government Code Section 65858 (d), the City has prepared this written report
to describe-the measures taken to alleviate the condition, which led to the adoption of the
urgency moratorium ordinance.
CONSULTATION WITH OTHER CALIFORNIA CITIES:
e
Since the January 22, 2007 enactment of the moratorium, staff has consulted with, and
continues to consult with, other cities to determine their experience with medical
marijuana clinics and dispensaries. Staff has been reviewing and monitoring the actions
of the Cities of Hawaiian Gardens, Pasadena, Fairfield, Rocklin, Huntington Beach,
Anaheim, Dublin, Fremont, Auburn, Costa Mesa, San Rafael, El Cerrito, Torrance, West
Hollywood, Santa Cruz, San Jose, Oakland, Long Beach, Newport Beach, Mission Viejo,
Redlands, Palm Springs, Redondo Beach, Hermosa Beach, Simi Valley, San Luis
Obispo, Livermore, Mill Valley, Rohnert Park, Fairfield, South San Francisco, and San
Francisco with respect to these facilities. Staff may determine to consult with other cities
in California regarding this issue.
CONSIDERATION OF PROPOSITION 215 AND FEDERAL COURT
DECISIONS (GONZALES V. RAICH):
Staff is also reviewing the provisions of Proposition 215, the citizens' initiative that
enabled medical marijuana in California, the provisions of statutes that implemented it,
Health and Safety Code Section 11362.7 through 11362.83, and the effect of the recent
U.S. Supreme Court case in Gonzales v. Raich, 545 U.S. 1 (2005) in which the Court
ruled that the federal government's prohibition against marijuana applied to intrastate
manufac~e and possession for medical purposes under California law.
e
On March 14, 2007 the Ninth Circuit Court addressed the plaintiff's (Raich) remaining
claims regarding the entitlement to possess and use medical marijuana based on, amongst
other things, rights afforded under the United States Constitution. This decision held that
the application of the Federal Controlled Substances Act ("FCSA") to medical marijuana
growers and users did not violate substantive due process guarantees, as the use of
medical marijuana was not a fundamental right. The Ninth Circuit Court also held that
the plaintiff failed to demonstrate a likelihood of success on the claim that the FCSA, as
applied to prevent the use of marijuana under California's Compassionate Use Act,
violated the Tenth Amendment (Gonzales v. Raich, 2007 WL 754759, 12).
10
Marijuana DIspensary Intenm On! Exlcn,iOILCC StalIReport 2
Consideration of Extension of Interim Ordinance Prohibiting the Establishment
of Marijuana Dispensaries in Any Zoning District Within the City
City COlUlCil Staff Report
December 10, 2007
e
CONSULTATION WITH LEGAL COUNSEL:
Staff has also been working with the City Attorney's office to define and understand the
community health, safety and welfare issues associated with these uses and to develop
options for addressing those issues. According to the City Attorney, parties interested in
operating medical marijuana dispensaries have already sued California jurisdictions
(pasadena and Fresno, among others) that have banned such dispensaries. Staff believes
that the courts' interpretation of recent Supreme Court decisions will continue to evolve
over time, as will the disposition of current litigation regarding existing bans.
LEGISLATIVE TRACKING:
Legislative efforts related to the regualtion of medical marijuana are also continuing at a
national level. If federal law is modified to permit the use of marijuana for medical
purposes and it is determined that California law allows for the establishment of
commercial facilities designed to dispense marijuana, the need for proper regulation of
medical marijuana dispensaries is crucial so that these sites do not become magnets for
non-medical marijuana sales, drug dealings and other crimes. The City will continue to
track federal legislation on this issue.
CONSULTATION WITH POLICE DEPARTMENT:
e
Staff and the City Attorney have begun discussions with the Police Department regarding
issues associated with medical marijuana dispensaries. Staff has been working with the
City Attomey to identify issues to discuss with the Police Department.
UPCOMING RESEARCH:
Over the next several months, staff intends to continue reviewing other cities' ordinances
pertaining to this issue and the evolving impact of Federal court decisions and Federal
agency actions. We will continue to work with the Police Department to identify a
recommendation for Council. In addition, the courts may provide further guidance that
we can use in crafting an appropriate ordinance.
Staff is currently evaluating the following long term options:
[J Amend the Zoning Code to classify the use as a retail use and allow them in
commercial zones.
[J Adopt a regulatory ordinance that regulates the operations of a dispensary but not
adopt a zoning restriction.
[J Adopt a regulatory ordinance and zoning ordinance.
[J Amend the Zoning Code to prohibit medical marijuana dispensaries city-wide.
. . * *
e
11
Marijuana Dispensary Interim Ord ExtcnsiOILCC Staff Report 2