HomeMy WebLinkAbout10-13 Urgency Ordinance Amending Zoning Code Regarding Medical Marijuana DispensariesORDINANCE NO. 10-13
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF COSTA MESA, CALIFORNIA AMENDING
ZONING CODE SECTIONS 13-6 (DEFINITIONS) AND 13-
16 (ENFORCEMENT) OF TITLE 13 (PLANNING, ZONING
AND DEVELOPMENT) OF THE COSTA MESA
MUNICIPAL CODE REGARDING MEDICAL MARIJUANA
DISPENSARIES.
WHEREAS, the City of Costa Mesa Zoning Code currently defines medical
marijuana dispensaries and this definition is in need of minor revisions to insure
applicability of the City's zoning prohibition to all store -front and multi-user distribution of
marijuana within the City of Costa Mesa; and
WHEREAS, the Fourth District Court of Appeal has indicated in dictum in its
published opinion in Qualified Patients' Association v. City of Anaheim, Case No.
G040077, filed on August 18, 2010, that criminal prosecution of possession, cultivation,
transportation, distribution, sales, etc. of medical marijuana contrary to the
Compassionate Use Act (Cal. Health & Saf. Code § 11356.2) or the Medical Marijuana
Program Act (Cal. Health & Saf. Code §§ 11362.7-11362.83) may be preempted by
State law; and
WHEREAS, the City of Costa Mesa has never criminally prosecuted medical
marijuana dispensaries for any violation of the City's Zoning Code; does not intend to do
so in the future; and desires to clarify the City's Zoning Code to make these facts
explicit; and
WHEREAS, the City would also like to make explicit its desire to prohibit all
businesses and uses, generally, that are in violation of any local, state or federal law or
regulation, in order to permit and allow only those businesses and uses which are in
compliance with all laws and regulations in furtherance of the health, safety and welfare
of the citizens, residents and visitors to the City of Costa Mesa; and
WHEREAS, the City Council of the City of Costa Mesa hereby finds that
businesses or uses in violation of the City's municipal code constitute a public nuisance,
injurious to the public health, safety and welfare; and
WHEREAS, the City has not enforced its Zoning Code prohibition against
medical marijuana dispensaries against individuals or very small groups of individuals
for the possession, cultivation, transportation, distribution, sales, etc. of medical
marijuana, even though such activities presently remain a violation of federal law; and
WHEREAS, the City intends to circumscribe its Zoning Code prohibitions to apply
them to groups of three or more individuals possessing, cultivating, transporting,
distributing, selling, etc. medical marijuana, which prohibition includes facilities engaging
in the retail sale, dispensing or distribution of medical marijuana, when such facilities do
not have an active role in the cultivation of their marijuana product or when the
cultivation of their marijuana product occurs off-site; and
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WHEREAS, the limitations as to the applicability of the City's prohibition on
medical marijuana dispensaries are necessary due to the urban and highly suburban
nature of the City of Costa Mesa, and in order to fully preserve the health, safety,
welfare and general well-being of the residents, businesses and visitors to the City of
Costa Mesa, and
WHEREAS, this ordinance is an urgency ordinance necessary for the immediate
preservation of the public peace, health and safety, which is justified, in part, by the
Court of Appeal's decision in the Qualified Patients' case, which may in the future
detrimentally impact the City's ability to regulate medical marijuana businesses under its
existing ordinance and thereby prohibiting the City from furthering its substantial
governmental interest in systematically regulating businesses for zoning purposes.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY
ORDAIN AS FOLLOWS:
Section 1. The definition of the term "Medical Marijuana Dispensary" in
Section 13-6 (Definitions) of Title 13 (PLANNING, ZONING AND DEVELOPMENT) of
the Costa Mesa Municipal Code is hereby repealed and replaced in its entirety with the
following:
"Medical marijuana dispensary. A facility or location where medical marijuana is
cultivated or by any other means made available to and/or distributed by or to
three (3) or more of the following: a primary caregiver, a qualified patient, or a
person with an identification card in strict accordance with State Health and
Safety Code Sections 11362.5 et seq. and 11362.7 et seq., which shall include,
but not be limited to any facility or location engaging in the retail sale,
dispensation, or distribution of marijuana for medical purposes that does not
have an active role in the cultivation of the marijuana product that it sells,
dispenses, or distributes, or when its cultivation of the marijuana product is off-
site from the facility or location for retail sale, dispensation, or distribution."
Section 2. Section 13-16 (Enforcement) of Title 13 (PLANNING, ZONING
AND DEVELOPMENT) of the Costa Mesa Municipal Code is hereby repealed and
replaced in its entirety with the following:
"Sec. 13-16. Enforcement.
(a) Criminal prosecution. Any person, whether as principal, agent, or
employee, violating the terms of this Zoning Code may be prosecuted as
provided in section 1-33 of this Municipal Code.
(b) Criminal citation. For the purposes of this Zoning Code, a violation of the
terms of this Zoning Code may be cited as either an infraction or misdemeanor
pursuant to State Government Code Sections 36900 and 36901 and as provided
in section 1-33 of this Municipal Code.
(c) Civil action. As an alternative to prosecution or citation, or as an
additional action, the city attorney may, at the request of the development
services director, institute an action in any court of competent jurisdiction to
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restrain, enjoin, or abate the condition(s) or activity(ies) found to be in violation of
the provisions of this Zoning Code.
(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, row 31a relating to the prohibition of
medical marijuana dispensaries within the City.
(e) Nuisance. Any use, structure, or property that is altered, enlarged,
erected, established, maintained, moved, or operated contrary to the provisions
of this Title or any condition of approval, is hereby declared to be unlawful and a
public nuisance and may be abated by the City through civil 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."
Section 3. Environmental Determination. The project 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) of the CEQA Guidelines.
Section 4. 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 the extent
necessary to affect the provisions of this Ordinance.
Section 5. Severability. If any chapter, article, section, subsection,
subdivision, sentence, clause, phrase, 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 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 6. This Ordinance shall take effect and be in full force immediately
from and after its passage. The City Clerk shall certify to the passage and adoption of
this Ordinance and shall cause the same to be published prior to the expiration of fifteen
(15) days from its passage 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.
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PASSED, APPROVED AND ADOPTED this 19t� day of October, 2010.
Mayor
ATTEST:
C'Clerk oft e
City of Costa Mesa
APPROVED AS TO FORM:
City A orney
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ATTACHMENT A
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INSTITUTIONAL AND RECREATIONAL USES
"31a. Medical Marijuana dispensary
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, Julie Folcik, City Clerk and ex -officio clerk of the City Council of the City of Costa
Mesa, hereby certify that the above and foregoing Ordinance No. 10-13 was duly
introduced and adopted as a whole at a regular meeting of said City Council held on the
19th day of October, 2010, by the following roll call vote:
AYES: COUNCILMEMBER: MANSOOR, LEECE, BEVER, FOLEY, MONAHAN
NOES: COUNCILMEMBER: NONE
ABSENT: COUNCIL MEMBER: NONE
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City
of Costa Mesa this 20th day of October, 2010.
JUYE_ FOLCIK, CITY CLERK
(SEAL)
I hereby certify that the above and foregoing is the original of Ordinance No. 10-13 was
duly passed and adopted by the Costa Mesa City Council at the regular meeting held
October 19, 2010, and that the Ordinance was published in its entirety in the Newport
Beach -Costa Mesa Daily Pilot on October 27, 2010.
JU FOLCIK, CITY CLERK
(SEAL)