HomeMy WebLinkAbout16-01 Prohibiting Marijuana CultivationORDINANCE 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
Ordinance No. 16-01 Page 1 of 8
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;
Ordinance No. 16-01 Page 2 of 8
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.
ultivation;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.
Ordinance No. 16-01 Page 3 of 8
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."
"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.
Ordinance No. 16-01 Page 4 of 8
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.
11
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.
Ordinance No. 16-01 Page 5 of 8
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 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.
PASSED AND ADOPTED this 19th day of January, 2016.
Stephen M. MensinJer, Mayor
APPROVED AS TO FORM:
�U v/ f' -
Thomas uarte, . ity Attorney
ATTEST:
til �i owfirA
Ordinance No. 16-01 Page 6 of 8
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, BRENDA GREEN, City Clerk and ex -officio Clerk of the City Council of the City
of Costa Mesa, hereby certify that the above foregoing Ordinance No. 16-01 as
introduced and considered section by section at a regular meeting of said City Council
held on the 5th day of January, 2016, and thereafter passed and adopted as a whole at
the regular meeting of said City Council held on the 191h day of January, 2016, by the
following roll call vote:
AYES: COUNCIL MEMBERS: FOLEY, GENIS, MONAHAN, RIGHEIMER,
MENSINGER
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
IN WITNESS WHEREOF, I have hereby set my hand and affixed the Seal of the
City of Costa Mesa this 20th day of January, 2016.
Brenda Green, Co Clerk
Ordinance No. 16-01 Page 7 of 8
ATTACHMENT A
TABLE 13-30
CITY OF COSTA MESA LAND USE MATRIX
Z O N E S
LAND USES
R
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A
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INSTITUTIONAL AND RECREATIONAL USES
23. Cemeteries
.
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24. Churches and other Places of religious
C2
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C2
C2
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02
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
G
P
P
P
P
C
C
C
C
C
C
C
G
G
26. Convalescent hospitals; Nursing homes
G
C
C
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C
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.
27. Country clubs; golf courses
C
C
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.
.
.
C
G
C
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23. Crematories- See also Mortuaries services
.
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20. Fairgrounds; Outdoor festival (permanent)
.
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30. Hospitals, general
.
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31. Libraries, privately -operated
C
C
C
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G
C
C-
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C
C
C
C
C
C
C
C
P
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31a. Medical marjuana dispensary
- Marijuana andlor medical marijuana
cultivation
Ordinance No. 16-01 Page 8 of 8