HomeMy WebLinkAbout10 - OB-1 - Second Reading of Ordinance No. 16-01 - 1/19/2016CITY COUNCIL AGENDA REPORT
MEETING DATE: JANUARY 19, 2016
ITEM NUMBER: OB -1
SUBJECT: SECOND READING OF ORDINANCE NO. 16-01 FOR CODE AMENDMENT CO -15-06: AN
AMENDMENT TO TITLE 13 OF THE COSTA MESA MUNICIPAL CODE RELATED TO
CULTIVATION OF MARIJUANA AND/OR MEDICAL MARIJUANA
DATE: JANUARY 8, 2016
FROM: PLANNING DIVISION/DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: MINOO ASHABI, PRINCIPAL PLANNER
FOR FURTHER INFORMATION CONTACT: MINOO ASHABI, AIA (714) 754-5610
minoo.ashabi@costamesaca.gov
RECOMMENDATION
Give second reading to Ordinance 16-01 to adopt Code Amendment CO -15-06 amending
Costa Mesa Municipal Code Title 13, Chapter I definitions and enforcement, Chapter IV
City Wide Land Use, and adding new Article 20 to Chapter IX, Special Land Use
Regulations.
BACKGROUND
On January 5, 2016 the City Council gave first reading to Ordinance No. 16-01 by a 5-0
vote. This code amendment is in response to AB 243, AB 266 and SB 643 that were
signed into law by Governor Jerry Brown on October 9, 2015 related to regulation of
medical marijuana. It was determined that a new ordinance would need to be adopted and
in effect by March 1, 2016 in order to allow the City to prohibit or otherwise regulate this
use. Should the City fail to have an ordinance in effect by March 1, 2016, regulation of
marijuana cultivation within the City will be permitted and regulated by the state. Under the
current state law, the City will be unable to thereafter regulate or prohibit marijuana
cultivation.
MINOO ASHABI, AIA
Principal Planner
Attachment: Ordinance No. 16-01
GARY ARMSTRONG, AICP
Economic and Development Services
Director
ATTACHMENT
ORDINANCE NO. 16-01
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
COSTA MESA, CALIFORNIA ADOPTING CODE AMENDMENT
CO -15-06, AMENDING TITLE 13, CHAPTER I (DEFINITIONS
AND ENFORCEMENT) AND CHAPTER IV (CITYWIDE LAND
USE MATRIX), AND ADDING ARTICLE 20 TO CHAPTER IX
ADOPTING NEW REGULATIONS RELATED TO PROHIBITING
MARIJUANA CULTIVATION
THE CITY COUNCIL OF THE CITY OF COSTA MESA FINDS AND DECLARES AS
FOLLOWS:
WHEREAS, the City Council of City of Costa Mesa, pursuant to its police
power, may adopt regulations to protect the health, safety and welfare of the public,
Cal. Const. art. XI, § 7, Cal. Govt. Code § 37100, and thereby is authorized to declare
what use or condition constitutes a public nuisance; and
WHEREAS, Section 38771 of the California Government Code authorizes the
City through its legislative body to declare actions and activities that constitute a public
nuisance; and
WHEREAS, in 1970, Congress enacted the Controlled Substances Act (21
U.S.C. Section 801 et seq.) which, among other things, makes it illegal to import,
manufacture, distribute, possess, or use marijuana for any purpose in the United
States and further provides criminal penalties for marijuana possession, cultivation
and distribution; and
WHEREAS, the People of the State of California have enacted Proposition 215,
the Compassionate Use Act of 1996 (codified at Health and Safety Code Section
11362.5 et seq.) (the "CUA"), which exempts qualified patients and their primary
caregivers from criminal prosecution under enumerated Health and Safety Code
sections for use of marijuana for medical purposes; and
WHEREAS, the California Legislature enacted Senate Bill 420 in 2003, the
Medical Marijuana Program Act (codified at Health and Safety Code Section 11362.7
et seq.) (the "MMPA"), as amended, which created a state-wide identification card
scheme for qualified patients and primary caregivers; and
WHEREAS, on October 11, 2015, the Governor signed into law Senate Bill 643,
Assembly Bill 266, and Assembly Bill 243, collectively referred to as the Medical
Marijuana Regulation and Safety Act ("MMRSA"), effective January 1, 2016, which
establishes a state licensing system for medical marijuana cultivation, manufacturing,
delivery, and dispensing, regulating these activities with licensing requirements and
regulations that are only applicable if cities and counties also permit marijuana
cultivation, manufacturing, dispensing, and delivery within their jurisdictions. Under
the MMRSA, cities and counties may continue to ban medical marijuana cultivation,
manufacturing, dispensing, and delivery, in which case the new law would not allow or
permit these activities within the cities and counties; and
WHEREAS, notwithstanding the CUA, the MMPA, and the MMRSA, marijuana
remains a schedule I substance pursuant to Cal. Health & Saf. Code § 11054 (d)(13);
and
WHEREAS, marijuana also remains a schedule I substance pursuant to federal
law, 21 U.S.C. § 812, Schedule 1 (c)(10), and federal law does not provide for any
medical use defense or exception (Gonzales v. Raich, 545 U.S. 1 (2005); United
States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001)); and
WHEREAS, the California Supreme Court has established that neither the CUA
nor the MMPA preempt local regulation in the case of City of Riverside v. Inland
Empire Patients Health and Wellness Center Inc., 56 Cal. 4th 729 (2013); and
WHEREAS, the MMRSA expressly allows cities and counties to ban marijuana
cultivation consistent with current state law including the City of Riverside v. Inland
Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013); and
WHEREAS, the MMRSA provides that if a city, county, or city and county does
not have land use regulations or ordinances regulating or prohibiting the cultivation of
marijuana, either expressly or otherwise under the principles of permissive zoning, or
chooses not to administer a conditional permit program pursuit to the MMRSA, then
commencing March 1, 2016, the state will be the sole licensing authority for medical
marijuana cultivation applicants (Health & Safety Code section 11372.777(c)(4)); and
WHEREAS, the City intends by the adoption of this ordinance to prohibit
marijuana cultivation within the City for the express and specific purpose of preserving
the City's authority to ban and/or adopt future regulations pertaining to marijuana
cultivation as is required by California Health and Safety Code section
11372.777(c)(4), effective January 1, 2016, added by the MMRSA; and
WHEREAS, per Title 13, Zoning Code of the City of Costa Mesa, marijuana
cultivation is not a permitted use in any of the zoning districts in the City; and
WHEREAS, the City Council of the City of Costa Mesa finds that it is in the
interest of the health, safety and welfare of the City to make explicit that marijuana
cultivation is prohibited anywhere in the City and is a public nuisance per se; and
WHEREAS, the City Council finds that the cultivation of marijuana significantly
impacts, or has the potential to significantly impact, the City's jurisdiction. These
impacts include the following:
A. In Orange County, public safety agencies, city residents, and other public
entities have reported adverse impacts from marijuana cultivation, including
disagreeable odors and release of pollen that can aggravate the respiratory
system; increased risk of burglary and other property crimes; and acts of
violence in connection with the commission of such crimes or the occupants'
attempts to prevent such crimes;
B. The creation of persistent strong odors as marijuana plants mature and flower
is offensive to many people and creates an attractive nuisance, alerting
persons to the location of valuable marijuana plants and creating an increased
risk of crime;
C. The unregulated cultivation of marijuana can adversely affect the health, safety
and well-being of the city and its residents. Comprehensive regulation of
premises used for marijuana cultivation is proper and necessary to avoid the
risks of criminal activity, degradation of the natural environment, smells and
indoor electrical fire hazards that may result from marijuana cultivation;
D. The indoor cultivation of substantial amounts of marijuana also frequently
requires excessive use of electricity, which often creates an unreasonable risk
of fire from the electrical grow lighting systems used in indoor cultivation;
E. The cultivation of marijuana in other cities has resulted in calls for service to
the police department, including calls for robberies thefts, and physical
assaults from marijuana that is grown outdoors; and
F. Marijuana growth poses significant safety risks for surrounding neighbors,
including but not limits to, risks of violent confrontation in connection with
attempts to steal marijuana, risk of fire from improperly wired electrical lights
within structures growing marijuana, risk of guard dogs and security
measures associated with structures and properties growing marijuana; and
Whereas the City Council finds that sanctioning the cultivation of marijuana
would be inconsistent with federal law; and
WHEREAS, this Ordinance has been reviewed for compliance with the California
Environmental Quality Act (CEQA), the CEQA guidelines, and the City's environmental
procedures, and has been found to be exempt pursuant to Section 15061 (b)(3) (General
Rule) of the CEQA Guidelines, in that the City Council hereby finds that it can be seen
with certainty that there is no possibility that the passage of this Ordinance will have a
significant effect on the environment; and
WHEREAS, the City Council finds that the provisions of this Ordinance are
consistent with the City of Costa Mesa's General Plan; and
WHEREAS, the City Council finds that this Ordinance will not adversely affect
property values and will not be detrimental to the City; and
WHEREAS, the City Council has considered evidence presented by the
Planning Commission and City Staff at a duly noticed public hearing held on
December 14, 2015; and
WHEREAS, all legal prerequisites prior to the adoption of this ordinance have
occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES
ORDAIN AS FOLLOWS:
Section 1: Title 13, Chapter I, Article 2, Definitions, Section 13-6 of the Costa Mesa
Municipal Code is hereby amended to include the following new definitions within an
alphabetized series of definitions:
"Marijuana. Has the same definition as that set forth in California Health & Safety Code
Section 11018."
a -1
"Medical marijuana. Marijuana used for medical purposes in accordance with California
Health and Safety Code section 11362.5."
"Marijuana cultivation and/or Medical Marijuana Cultivation. The planting, growing,
harvesting drying or processing of marijuana plants or any part thereof for any purpose,
including medical marijuana, and shall include both indoor and outdoor cultivation."
Section 2: Title 13, Chapter I, Article 4, Enforcement, Section 13-16(d), of Costa Mesa
Municipal Code is hereby amended to read as follows:
Sec. 13-16. Enforcement
" (d) No criminal prosecution, citation or penalty. Notwithstanding the provisions of
subsections (a) and (b) of this section, no person shall be criminally prosecuted or cited,
or suffer any criminal penalty, for any violation of the provisions of section 13-30, Table
13-30, rows 31a and/or 31b relating to the prohibition of medical marijuana dispensaries
or medical marijuana cultivation within the city, or for a violation of the provisions of
Chapter IX, Article 20 related to the prohibition against medical marijuana cultivation. "
Section 3: Title 13, Chapter IX, Article 20 of Costa Mesa Municipal Code is hereby
added as follows:
"Article 20. Marijuana and/or Medical Marijuana Cultivation
Sec. 13-200.84 PURPOSE
The purpose of this article is to prohibit marijuana cultivation, in order to promote
the health, safety, morals and general welfare of the residents and the businesses
within the City by maintaining local control over the ability to authorize and regulate
marijuana -related businesses, including cultivation.
Sec. 13-200.85 APPLICABILITY
1. Nothing in this article is intended, nor shall it be construed, to burden any defense
to criminal prosecution under the Compassionate Use Act of 1996.
2. All the provisions of this article shall apply to all property, public and private,
within the City.
3. All the provisions of this article shall apply indoors and outdoors.
Sec. 13-200.86 DEFINITIONS
The following definition applies to this article:
"Person" shall mean any person, firm, corporation, association, club, society, or other
organization. The term person shall include any owner, manager, proprietor, employee,
volunteer and/or salesperson.
Sec. 13-200.87 CULTIVATION OF MARIJUANA PROHIBITED
Marijuana and/or medical marijuana cultivation by any person, including primary
caregivers, qualified patients and dispensaries, is prohibited in all zone districts within
the City of Costa Mesa.
Sec. 13-200.88 DECLARATION OF PUBLIC NUISANCE
Any use, structure, or property that is altered, enlarged, erected, established, maintained,
moved, or operated contrary to the provisions of this article, is hereby declared to be
unlawful and a public nuisance and may be abated by the city through civil and/or
administrative proceedings by means of a restraining order, preliminary or permanent
injunction, or in any other manner provided by law for the abatement of such nuisances.
Sec. 13-200.89 VIOLATIONS
Violations of this article shall be punishable pursuant to the provisions of section 13-16. "
Section 4: Title 13, Table 13-30 of Chapter IV (Citywide Land Use Matrix) of Costa
Mesa Municipal Code is hereby amended to add row 31 b as follows:
"31 b. Marijuana and/or medical marijuana cultivation." [prohibited in all zones]
[See Attachment A]
Section 5: Inconsistencies. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of this Ordinance, to the extent of
such inconsistencies and no further, is hereby repealed or modified to that extent
necessary to affect the provisions of this Ordinance.
Section 6: Severability. If any chapter, article, section, subsection, subdivision,
sentence, clause, phrase, word, or portion of this Ordinance, or the application thereof to
any person, is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portion of this Ordinance or its application to other persons. The City Council hereby
declares that it would have adopted this Ordinance and each chapter, article, section,
subsection, subdivision, sentence, clause, phrase, word, or portion thereof, irrespective
of the fact that any one or more subsections, subdivisions, sentences, clauses, phrases,
or portions of the application thereof to any person, be declared invalid or
unconstitutional. No portion of this Ordinance shall supersede any local, state, or federal
law, regulation, or codes dealing with life safety factors.
Section 7: This Ordinance shall take effect and be in full force thirty (30) days from
and after the passage thereof, and prior to the expiration of fifteen (15) days from its
passage shall be published once in the ORANGE COAST DAILY PILOT, a newspaper of
general circulation, printed and published in the City of Costa Mesa or, in the alternative,
the City Clerk may cause to be published a summary of this Ordinance and a certified
copy of the text of this Ordinance shall be posted in the office of the City Clerk five (5)
days prior to the date of adoption of this Ordinance, and within fifteen (15) days after
adoption, the City Clerk shall cause to be published the aforementioned summary and
(—
shall post in the office of the City Clerk a certified copy of this Ordinance together with
the names and member of the City Council voting for and against the same.
Adopted this day of 2016
Stephen Mensinger, Mayor
I—
ATTEST:
Brenda Green
City Clerk of the City of Costa Mesa
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF COSTA MESA )
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, California, do hereby
certify that the foregoing Ordinance was introduced at the regular meeting of the City
Council held on the day of , 2016, and thereafter at the regular meeting of
said City Council duly held on the day of , 2016, was duly passed and
adopted by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Brenda Green
City Clerk of the City of Costa Mesa
—3—
ATTACHMENT A
TABLE 13-30
CITY OF COSTA MESA LAND USE MATRIX
Z O N E S
LAND USES
R
R
R
R
A
C
C
C
C
T
M
M
P
P
P
P
P
P
I
I
P
1
3
L
G
M
H
P
1
2
1
Ct
P
D
D
D
D
D
D
&
8
D
D
StR
R
R
R
Ct
P
Rt
St
L
M
H
N
Dt
Dt
Dt
C
Mt
INSTITUTIONAL AND RECREATIONAL USES
23. Cemeteries
•
•
•
•
.
•
.
.
.
•
.
.
.
.
•
•
.
.
C
•
.
24. Churches and other places of religious
C2
C2
C2
C2
C2
C2
P2
P2
C2
C2
P2
P2
C2
C2
C2
C2
C2
C2
P2
C2
assembly (Subject to the requirements of
ARTICLE 4.5 DEVELOPMENT STANDARDS
FOR CHURCHES AND OTHER PLACES OF
RELIGIOUS ASSEMBLY)
25. Civic and community clubs
C
C
C
C
C
C
P
P
P
P
C
C
C
C
C
C
C
C
C
26. Convalescent hospitals; Nursing homes
C
C
C
C
C
C
C
p
27. Country clubs; golf courses
C
C
C
C
C
C
C
C
P
C
20. Crematones - See also Mortuaries services•
.
•
•
.
.
•
C
•
.
C
C
•
•
.
.
.
.
C
.
.
20. Fairgrounds, Outdoor festival (permanent)C
.
•
.
.
.
•
.
.
.
.
•
.
.
.
•
.
.
•
.
.
30. Hospitals, generafp
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
31. Libraries, privately -operated
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
P
C
31_ Medical marijuana dispensary
M. Marijuana and/or medical marijuana
cultivation