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HomeMy WebLinkAbout2. PLN-15-00229 - Zone Text AmendmentSTAFF REPORT PLANNING DIVISION DATE: DECEMBER 2, 2015 TO: PLANNING COMMISSION SUBMITTED BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT REVIEWED BY: WILLIAM E. DAVIS, CITY PLANNER PREPARED BY: DAVID BLUMENTHAL, SENIOR PLANNER SUBJECT: PLN-15-00229 (ZONE TEXT AMENDMENT) – A REQUEST TO AMEND SECTIONS 9146 AND 9428 OF ARTICLE IX OF THE MUNICIPAL CODE REGARDING MEDICAL MARIJUANA LOCATION: CITYWIDE ZONING: ALL REPORT SUMMARY Currently, the City prohibits the operation of medical marijuana dispensaries. On October 9, 2015, the Governor signed a package of bills updating the State regulations regarding medical marijuana. Within this State legislation is a requirement that the City must adopt a local ordinance to expressly prohibit delivery and cultivation of medical marijuana prior to March 1, 2016. Failure to do so will result in the City losing our zoning authority regarding this matter. This amendment to the Zoning Code will allow the City to continue the prohibition of medical marijuana dispensaries and prevent the establishment of delivery services and cultivation sites. Based on the analysis contained in this report, staff is recommending the Planning Commission adopt the following titled resolution: A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY RECOMMENDING THAT THE CITY COUNCIL APPROVE THE ZONE TEXT AMENDMENT (PLN-15-00229), THEREBY AMENDING SECTIONS 9146 AND 9428 OF ARTICLE IX OF THE MUNICIPAL CODE REGARDING MEDICAL MARIJUANA BACKGROUND The legal use of medical marijuana was established in the State of California in 1996, with voter approval of the Compassionate Use Act of 1996 (Proposition 215). Since approval of Proposition 215, the California Legislature has enacted several other pieces of legislation that expand and clarify the medical marijuana program in California. However, it should be noted that under the Federal Controlled Substances Act (21 USC Chapter 13), marijuana is classified as a Schedule I drug. This classification of drugs are substances that have a high potential for Agenda Page 1 Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 2 abuse, have no current accepted medical use in treatment in the United States, and there is an absence of any accepted safety for use of the substance under medical supervised treatment (21 USC § 812). Accordingly, the growth, cultivation, use, or possession of marijuana is a violation of Federal law. On August 9, 2011, the City Council adopted Ordinance No. 11-1288, thereby amending the Zoning Code to establish a prohibition on the establishment and operation of medical marijuana dispensaries. The City enacted the ban of dispensaries due to the conflict between State and Federal law, as well as, the potential for adverse secondary impacts caused by the operation of the dispensaries. More specifically, evidence has shown that the adverse secondary impacts that directly and indirectly result from the operations of the dispensaries include, but are not necessarily limited to homicide, robbery, burglary, organized criminal activity, weapon violations, and money laundering. This increase in crime presents a hazard to the public health, safety, and welfare, particularly in view of the fact that members of the public may be victims of said crimes. Furthermore, responding to and investigating these types of crime would further strain already overburdened Police resources. On October 9, 2015, the Governor signed three bills (AB 243, AB 266, and SB 643), which change the methods medical marijuana is regulated in the State of California. While these new laws preserve the City’s authority in zoning of the medical marijuana businesses, the City is required to adopt an ordinance explicitly stating its desire to ban said businesses. Failure to do so will result in the City losing its zoning authority and these uses defaulting to the State regulations. On November 18, 2015, the Planning Commission adopted a minute action authorizing staff to amend the Zoning Code to address these new requirements. On November 19, 2015, notice of the pending public hearing was published in the Downey Patriot as a 1/8 th page ad. DISCUSSION As previously noted, the State has enacted three new laws addressing the regulation of medical marijuana. A discussion of each is as follows: AB 243 (Chapter 688, Statutes of 2015) - Establishes a regulatory and licensing structure for cultivation sites under the Department of Food and Agriculture. This law contains a provision stating those cities that do not have an ordinance regulating or prohibiting cultivation by March 1, 2016, will lose the authority to regulate or ban cultivation within their city limits. The State will then become the sole licensing authority. AB 266 (Chapter 689, Statutes of 2015) - Establishes a dual licensing system that requires a state license and a local license. The Department of Consumer Affairs heads overall regulatory structure imposing health and safety and testing standards. This law requires that all jurisdictions that wish to ban deliveries and/or mobile dispensaries must explicitly state so. SB 643 (Chapter 719, Statutes of 2015) - Establishes criteria for licensing of medical marijuana businesses, regulates physicians, and recognizes local authority to levy taxes and fees. Agenda Page 2 Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 3 Staff is of the opinion that maintaining the City’s ban on medical marijuana businesses is a prudent measure. Based on the information before the City, there is still a credible potential that allowing these businesses can result in adverse secondary impacts to the community. Staff acknowledges that ease of access to medical marijuana may have a benefit to those that require its use; however, staff believes the potential for adverse secondary impacts outweighs any potential benefit. Upon reviewing the new State laws, staff noted that the City needs to take action on explicitly prohibiting delivery and cultivation of medical marijuana. The City’s ordinance must be in affect prior to March 1, 2016. Failure to meet this deadline will result in these uses being regulated under the State’s authority. Accordingly, staff is proposing to amend Section 9428 of the Downey Municipal Code to prohibit delivery and cultivation of medical marijuana. Additionally, this amendment will prohibit the manufacturing and testing of medical marijuana within the City. In addition to the new regulations, staff is proposing to amend Section 9146 of the Municipal Code to add several definitions to the Code regarding medical marijuana. As proposed, the Code will read as follows (blue underline is new text and red strikethrough is deleted text) SECTION 9146. “M” DEFINITIONS. Medical Marijuana: Marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code Section 11362.7. “Medical Marijuana” shall also include any edible or other products that contain marijuana, including, but not limited to, concentrates or extractions. Medical Marijuana Cultivation: Any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of medical marijuana. Medical Marijuana Delivery: The commercial transfer of medical marijuana or medical marijuana products from a dispensary to a primary caregiver or qualified patient as defined in Section 11362.7 of the Health and Safety Code. This shall also include the use by a dispensary, or other party, any technological platform that enables patients or primary caregivers to arrange for or facilitate the commercial transfer by medical marijuana or medical marijuana products. Medical Marijuana Dispensary or Dispensary: Any facility or location where medical marijuana is made available to and/or distributed by or to three (3) or more of the following: a qualified patient, a person with an identification card, or a primary caregiver. Each of these terms is defined herein and shall be interpreted in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq., as such sections may be amended from time to time. Medical Marijuana Manufacturing: Any location or site that produces, prepares, propagates, or compounds medical marijuana, including, but not limited to, edibles or other products, directly or indirectly, by extraction methods, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. Agenda Page 3 Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 4 Medical Marijuana Testing Laboratory: Any facility, entity or site that offers or performs test of medical marijuana or medical marijuana products. Mobile Medical Marijuana Dispensary or Mobile Dispensary: Any clinic, cooperative, club, business or group, which transports, delivers, or arranges the transportation or delivery of medical marijuana. SECTION 9428. MEDICAL MARIJUANA DISPENSARIES SECTION 9428.02. INTENT AND PURPOSE. It is the intent of these regulations to prohibit medical marijuana dispensaries, deliveries, manufacturing, cultivation, and the like in order to protect public health, safety, and welfare; and to avoid adverse secondary impacts that are derived by the operation of said facilities. dispensaries. SECTION 9428.04. MEDICAL MARIJUANA DISPENSARY PROHIBITED. It is unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana dispensary in the City of Downey. SECTION 9428.06. MOBILE MEDICAL MARIJUANA DISPENSARY PROHIBITED. It is unlawful for any person or entity to own, manage, conduct, or operate or to assist in the operation of any mobile marijuana dispensary or mobile dispensary within the City of Downey. SECTION 9428.08. MEDICAL MARIJUANA DELIVERY PROHIBITED. (a) No person shall deliver medical marijuana to any location within the City from a mobile medical marijuana dispensary or mobile dispensary, regardless of where the mobile medical marijuana dispensary is located or headquartered or engaged in any operation for this purpose. (b) No person shall deliver any marijuana-infused product such as tinctures, baked goods or other consumable products to any location within the City from a mobile medical marijuana dispensary or mobile dispensary, regardless of where the mobile medical marijuana dispensary is located, headquartered or engaged in any operation for this purpose. SECTION 9428.10. MEDICAL MARIJUANA CULTIVATION PROHIBITED. It is unlawful for any person or entity to cultivate medical marijuana or to own, manage, conduct, operate, or participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana operations in the City of Downey. Agenda Page 4 Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 5 SECTION 9428.12. MEDICAL MARIJUANA MANUFACTURING AND TESTING PROHIBITED. It is unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana manufacturing or testing facility; or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana manufacturing or testing facility in the City of Downey. ENVIRONMENTAL ANALYSIS Staff has reviewed the proposed Zone Text Amendment for compliance with the California Environmental Quality Act (CEQA). Upon completion of this review, it has been determined that this request is categorically exempt from CEQA, pursuant to Guideline Section No. 15305 (Class 5 - Minor Alteration in Land Use Limitations). Class 5 exemptions consist of alternations to land use limitations in areas that have a slope of less than 20% and do not result in changes to the land use or densities. The proposed Zone Text Amendment will continue to prohibit medical marijuana businesses citywide, but do not change the existing land uses. Additionally, the amendment will not alter densities in any of the zones. Finally, the City is relatively flat with average slopes in the 1%-2% range. It is staff’s opinion that the proposed alteration to a land use limitation (the zone text amendment) is minor in nature since it does not add new permitted uses to the zoning. Accordingly, staff believes that this Zone Text Amendment qualifies for the Class 5 exemption under CEQA. FINDINGS Pursuant to Municipal Code Section 9832.06, there are two (2) findings that must be adopted prior to the City approving the Zone Text Amendment. A discussion of the findings follows: A. The requested amendment is necessary and desirable for the development of the community and is in the interests or furtherance of the public health, safety, and general welfare. In 2009, the California Police Chiefs Association released a whitepaper on medical marijuana dispensaries, which among other things provides an in depth analysis of adverse secondary impacts that directly and indirectly result from the operations of the dispensaries. These impacts include, but are not necessarily limited to, homicide, robbery, burglary, organized criminal activity, weapon violations, and money laundering. This increase in crime presents a hazard to the public health, safety, and welfare, particularly in view of the fact that members of the public may be victims of said crimes. Furthermore, responding to and investigating these types of crime would further strain already overburden Police resources. There is no evidence before the City that indicates the potential for adverse effects has been reduced since 2009. Considering the adverse secondary impacts, the proposed code amendment will serve to protect the public health, safety, and welfare since it will prohibit the operation of medical marijuana businesses. B. The proposed amendment is in general conformance with the General Plan. On January 25, 2005, the City of Downey adopted Vision 2025, a Comprehensive update to the General Plan. This update included adopting several polices to guide development in the City. The proposed code amendment will prohibit the operation of Agenda Page 5 Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 6 medical marijuana businesses within the City. This amendment is consistent with General Plan Policy 1.3.1, which states, “Minimize or eliminate conflicts where incompatible land uses are in proximity to each other.” As noted in the previous finding, there is evidence that shows that allowing the operation of medical marijuana dispensaries results in adverse secondary impacts to surrounding properties. By prohibiting the operation of the dispensaries, the City will eliminate a potential conflict between the dispensaries and existing land uses, thereby being in compliance with the aforementioned General Plan Policy. CORRESPONDENCE As of the date that this report was printed, staff has not received any correspondence regarding this application. CONCLUSION Based on the analysis contained within this report, staff is concluding that the proposed Zone Text Amendment (PLN-15-00299) will serve to continue to protect the health, safety, and welfare of the community by advoiding adverse secondary impacts created from the operation of medical marijuana businesses. Furthermore, staff is concluding that both findings required to approve the amendment can be made in a positive manner. As such, staff is recommending that the Planning Commission recommend to the City Council that they approve the Zone Text Amendment (PLN-15-00229), thereby amending the Zoning Code with regards to medical marijuana. EXHIBITS A. Draft Resolution Agenda Page 6 RESOLUTION NO. _______ A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY RECOMMENDING THAT THE CITY COUNCIL APPROVE THE ZONE TEXT AMENDMENT (PLN-15-00229), THEREBY AMENDING SECTIONS 9146 AND 9428 OF ARTICLE IX OF THE MUNICIPAL CODE REGARDING MEDICAL MARIJUANA. THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission of the City of Downey does hereby find, determine and declare that: A. The legal use of medical marijuana was established in the State of California in 1996 with voter approval of the Compassionate Use Act of 1996 (Proposition 215). Since approval of Proposition 215, the California Legislature has enacted several other pieces of legislation that expand and clarify the medical marijuana program in California; and, B. California Police Chiefs Association issued a whitepaper (hereinafter referred to as “CPCA whitepaper”) on marijuana dispensaries. The CPCA whitepaper provides extensive research detailing negative secondary impacts that result from the operation of marijuana dispensaries, including, but not limited to: 1. An increase in crime against the dispensary and the community at large, including takeover robberies of dispensaries, home-invasion robberies, armed robberies of patrons, burglaries of dispensaries and homes, and homicides committed during the commission of the aforementioned crimes: 2. Links to organized criminal activity, money laundering, and firearm violations; such as, in 2007, the City of San Diego and Federal authorities raided several dispensaries, during which several weapons were recovered; or in the San Francisco/Oakland area, where federal authorities seized over 9,000 marijuana plants and several weapons during a raid, in which it was determined that the illegal multi-million dollar operation was being run by an organized gang; and C. On August 9, 2011, the City Council adopted Ordinance No. 11-1288, thereby amending the Zoning Code to establish a prohibition on the establishment and operation of medical marijuana dispensaries; and, D. On October 9, 2015, the Governor signed three bills (AB 243, AB 266, and SB 643), which change the methods medical marijuana is regulated in the State of California. While these new laws preserve the City’s authority in zoning of the medical marijuana businesses, the City is required to adopt an ordinance explicitly stating its desire to ban said businesses; and, E. The City of Downey desires to prohibit the cultivation, sale, and delivery of medical marijuana; and, F. On November 18, 2015 , the Planning Commission adopted a minute action authorizing staff to amend the Zoning Code to addresses the necessary changes Agenda Page 7 Resolution No. ____________ Downey Planning Commission Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 2 needed to maintain its zoning authority; and, G. On November 19, 2015, notice of the pending zone text amendment was published in the Downey Patriot as a 1/8 th page ad; and, H. The Planning Commission held a duly noticed public hearing on December 2, 2015, and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearings, adopted this resolution. SECTION 2. The Planning Commission further finds, determines and declares the requested Zone Text Amendment has been review for compliance with the California Environmental Quality Act (CEQA). Upon completion of this review, it has been determined that this request is categorically exempt from CEQA, pursuant to Guideline Section No. 15305 (Class 5 - Minor Alteration in Land Use Limitations) based on the fact that it will not alter densities or add new permitted uses within the City. SECTION 3. Having considered all of the oral and written evidence presented to it at said public hearing, the Planning Commission further finds, determines and declares that: 1. That the requested amendment is necessary and desirable for the development of the community and is in the interests or furtherance of the public health, safety, and general welfare. In 2009, the California Police Chiefs Association released a whitepaper on medical marijuana dispensaries, which among other things provides an in depth analysis of adverse secondary impacts that directly and indirectly result from the operations of the dispensaries. These impacts include, but are not necessarily limited to, homicide, robbery, burglary, organized criminal activity, weapon violations, and money laundering. This increase in crime presents a hazard to the public health, safety, and welfare, particularly in view of the fact that members of the public may be victims of said crimes. Furthermore, responding to and investigating these types of crime would further strain already overburden Police resources. There is no evidence before the City that indicates the potential for adverse effects has been reduced since 2009. Considering the adverse secondary impacts, the proposed code amendment will serve to protect the public health, safety, and welfare since it will prohibit the operation of medical marijuana businesses. 2. The proposed amendment is in general conformance with the General Plan. On January 25, 2005, the City of Downey adopted Vision 2025, a Comprehensive update to the General Plan. This update included adopting several polices to guide development in the City. The proposed code amendment will prohibit the operation of medical marijuana businesses within the City. This amendment is consistent with General Plan Policy 1.3.1, which states, “Minimize or eliminate conflicts where incompatible land uses are in proximity to each other.” As noted in the previous finding, there is evidence that shows that allowing the operation of medical marijuana dispensaries results in adverse secondary impacts to surrounding properties. By prohibiting the operation of the dispensaries, the City will eliminate a potential conflict between the dispensaries and existing land uses, thereby being in compliance with the aforementioned General Plan Policy. Agenda Page 8 Resolution No. ____________ Downey Planning Commission Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 3 SECTION 4. Based upon the findings set forth in Sections 1 through 3 of this Resolution, the Planning Commission of the City of Downey hereby recommends that the City Council amend the following definition in Section 9146 of Article IX of the Downey Municipal Code to read as follows: Medical Marijuana: Marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code Section 11362.7. “Medical Marijuana” shall also include any edible or other products that contain marijuana, including, but not limited to, concentrates or extractions. SECTION 5. Based upon the findings set forth in Sections 1 through 3 of this Resolution, the Planning Commission of the City of Downey hereby recommends that the City Council add the following definitions to Section 9146 of Article IX of the Downey Municipal Code Medical Marijuana Cultivation: Any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of medical marijuana. Medical Marijuana Delivery: The commercial transfer of medical marijuana or medical marijuana products from a dispensary to a primary caregiver or qualified patient as defined in Section 11362.7 of the Health and Safety Code. This shall also include the use by a dispensary, or other party, any technological platform that enables patients or primary caregivers to arrange for or facilitate the commercial transfer by medical marijuana or medical marijuana products. Medical Marijuana Manufacturing: Any location or site that produces, prepares, propagates, or compounds medical marijuana, including, but not limited to, edibles or other products, directly or indirectly, by extraction methods, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. Medical Marijuana Testing Laboratory: Any facility, entity or site that offers or performs test of medical marijuana or medical marijuana products. Mobile Medical Marijuana Dispensary or Mobile Dispensary: Any clinic, cooperative, club, business or group, which transports, delivers, or arranges the transportation or delivery of medical marijuana. SECTION 6. Based upon the findings set forth in Sections 1 through 3 of this Resolution, the Planning Commission of the City of Downey hereby recommends that the City Council amend Section 9428 of Article IX of the Downey Municipal Code to read as follows: SECTION 9428. MEDICAL MARIJUANA DISPENSARIES SECTION 9428.02. INTENT AND PURPOSE. It is the intent of these regulations to prohibit medical marijuana dispensaries, deliveries, manufacturing, cultivation, and the like in order to protect public health, safety, and welfare; and to avoid adverse secondary impacts that are derived by the operation of Agenda Page 9 Resolution No. ____________ Downey Planning Commission Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 4 said facilities. SECTION 9428.04. MEDICAL MARIJUANA DISPENSARY PROHIBITED. It is unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana dispensary in the City of Downey. SECTION 9428.06. MOBILE MEDICAL MARIJUANA DISPENSARY PROHIBITED. It is unlawful for any person or entity to own, manage, conduct, or operate or to assist in the operation of any mobile marijuana dispensary or mobile dispensary within the City of Downey. SECTION 9428.08. MEDICAL MARIJUANA DELIVERY PROHIBITED. (a) No person shall deliver medical marijuana to any location within the City from a mobile medical marijuana dispensary or mobile dispensary, regardless of where the mobile medical marijuana dispensary is located or headquartered or engaged in any operation for this purpose. (b) No person shall deliver any marijuana-infused product such as tinctures, baked goods or other consumable products to any location within the City from a mobile medical marijuana dispensary or mobile dispensary, regardless of where the mobile medical marijuana dispensary is located, headquartered or engaged in any operation for this purpose. SECTION 9428.10. MEDICAL MARIJUANA CULTIVATION PROHIBITED. It is unlawful for any person or entity to cultivate medical marijuana or to own, manage, conduct, operate, or participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana operations in the City of Downey. SECTION 9428.12. MEDICAL MARIJUANA MANUFACTURING AND TESTING PROHIBITED. It is unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana manufacturing or testing facility; or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana manufacturing or testing facility in the City of Downey. Agenda Page 10 Resolution No. ____________ Downey Planning Commission Medical Marijuana - PLN-15-00229 December 2, 2015 - Page 5 SECTION 7. The Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this 2nd day of December, 2015. Hector Lujan, Chairman City Planning Commission I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning Commission of the City of Downey at a regular meeting thereof, held on the 2nd day of December, 2015, by the following vote, to wit: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSENT: COMMISSIONERS: ABSTAIN: COMMISSIONERS: Mary Cavanagh, Secretary City Planning Commission Agenda Page 11