1 Waive the Second Reading and Adopt Ordinance No. 626 of the City Council of the City of Livingston Amending Title 5, Chapters 2, 3, 5 and 7 of the Livingston Municipal Code Prohibiting Commercial Marijuana (Cannabis) Activities and Regulating the Cultivation of Medical Marijuana Including Establishing an Exemption for Cultivation by Qualified Patients and Primary Caregivers.

Meeting Date: January 19, 2016

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STAFF REPORT

AGENDA ITEM: Waive the Second Reading and Adopt Ordinance No. 626 of the City Council of the City of Livingston Amending Title 5, Chapters 2, 3, 5 and 7 of the Livingston Municipal Code Prohibiting Commercial Marijuana (Cannabis) Activities and Regulating the Cultivation of Medical Marijuana Including Establishing an Exemption for Cultivation by Qualified Patients and Primary Caregivers.

MEETING DATE: January 19, 2016

PREPARED BY: Jose M. Sanchez, City Attorney REVIEWED BY: Odi Ortiz, Interim Acting City Manager

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RECOMMENDATION:

Waive the second reading and adopt Ordinance No. 626, amending Title 5, Chapters 2, 3, 5, and 7 of the Livingston Municipal Code Prohibiting Commercial Marijuana (Cannabis) Activities and Regulating the Cultivation of Medical Marijuana Including Establishing an Exemption for Cultivation by Qualified Patients and Primary Caregivers. The Ordinance is necessary to retain local control to regulate marijuana cultivation under the Medical Marijuana Regulation and Safety Act.

BACKGROUND:

On January 5, 2016, the City Council held a noticed public hearing to consider introducing and waiving the first reading of an Ordinance banning commercial marijuana activities, regulating medical marijuana deliveries, and regulating the cultivation of medical marijuana. The draft Ordinance allowed the cultivation of medical marijuana by qualified patients and primary caregivers of up to six (6) plants in a detached structure or outdoors. The draft Ordinance also allowed the delivery of medical marijuana after obtaining a permit from the Chief of Police.

The City Council decided to amend the draft Ordinance prior to its introduction. The City Council made the following changes to the draft Ordinance:

  • • Banned deliveries. After testimony from law enforcement officials, the City Council decided to ban deliveries;

  • • Cultivation only allowed outdoors. The City Council removed the provision allowing for cultivation in a detached structure due to concerns raised by the Fire Marshall and Cal Fire;

and

  • • Only two (2) marijuana plants cultivated per parcel (detached single family home). After testimony from law enforcement officials and a discussion related to impacts, plant yields and average use for qualified patient, the City Council reduced the amount of marijuana plants that a qualified patient or primary caregiver can grow from the proposed six (6) plants to two (2) plants.

  • On a vote of 3-2, the majority of the City Council introduced and waived the first reading of the attached Ordinance.

Adoption of the attached Ordinance at this meeting will result in the Ordinance being in effect on February 18, 2016. This will meet the March 1, 2016 deadline imposed by the Medical Marijuana Regulation and Safety Act.

Background Regarding Medical Marijuana Laws

In 1996, voters in the State of California approved Proposition 215 (codified as California Health and Safety Code section 11362.5 and entitled "The Compassionate Use Act of 1996" or the "CUA"). The primary purpose of the CUA was to ensure that seriously ill Californians have the right to obtain and use marijuana 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 illness for which marijuana provides relief.

The CUA was limited in scope, however, and caused uncertainties in the law and impeded law enforcement’s ability to interpret and enforce the law. The uncertainties also hindered persons eligible to use marijuana for medical purposes from accessing marijuana, while many persons took advantage of the CUA to use marijuana for recreational and not medical purposes.

In 2004, the State of California also enacted Senate Bill ("SB") 420 (codified as California Health and Safety Code section 11362.7 et seq. and referred to as "The Medical Marijuana Program" or the "MMP"), to clarify the scope of Proposition 215 and to provide qualifying patients and primary caregivers, who collectively or cooperatively cultivate marijuana for medical purposes, with a limited defense to certain specified State criminal statutes.

Assembly Bill ("AB") 2650 (2010), and Assembly Bill 1300 (2011), amended the MMP to expressly recognize the authority of counties and cities to "[a]dopt local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective" and to civilly and criminally enforce such ordinances.

Since 2004, there have been two major judicial decisions that have interpreted the medical marijuana laws in California and have provided guidance on a cities’ ability to regulate land use for the cultivation of marijuana. In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the California Supreme Court held that "[n]othing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land. . .".

Additionally, in Mara! v. City of Live Oak (2013) 221 Cal.App.4th 975, 984, the Court of Appeal held that "there is no right-and certainly no constitutional right-to cultivate medical marijuana . . .". The Court in Mara! affirmed the ability of a local governmental entity to prohibit the cultivation of marijuana under its land use authority.

Changes in the Law Requiring Land Use Regulations or Ordinance

On October 9, 2015, three (3) bills (AB 243, AB 266, and SB 643), related to medical marijuana were signed into law by Governor Brown. The three (3) bills were joined and signed as a package (known as the "Medical Marijuana Regulation & Safety Act" or the "MMRSA"). The legislation created a comprehensive statewide regulatory license system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis.

All licenses must also be approved by local governments. AB 243, which relates to cultivation of marijuana, provides that "[i[f a local city, county, or city and county does not have land use regulations or ordinances prohibiting the cultivation of marijuana, either expressly or otherwise under the principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016. the division shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county."

Thus, if an ordinance regulating or prohibiting marijuana cultivation is adopted by March 1, 2016, cities still retain local control through their police power and land use authority. Consistent with current law, the new MMRSA will not impact the City’s ability to prohibit or regulate medical dispensaries or cultivation.

Recently, the author of AB 243, Assembly Member Wood, introduced AB 21 which amends the bill by removing the March 1, 2016 deadline. Unfortunately, AB 21 has not yet been passed and it does not appear that the amendment will be passed before the March 1,2016 deadline; therefore, that deadline is still in effect and requires cities to regulate or prohibit marijuana cultivation by March 1, 2016.

Currently, the City of Livingston prohibits medical marijuana dispensaries, however, the Livingston Municipal Code is silent regarding medical marijuana cultivation.

DISCUSSION:

As required by land use laws, the proposed Zoning Ordinance text amendments were discussed at a Planning Commission meeting on December 8, 2015. The Planning Commission reviewed the proposed Ordinance and recommended adoption of the Ordinance with changes.

As discussed above, the City Council decided to amend the proposed Ordinance prior to its introduction. The City Council made the following changes to the draft Ordinance:

  • • Banned deliveries. After testimony from law enforcement officials, the City Council decided to ban deliveries;

  • • Cultivation only allowed outdoors. The City Council removed the provision allowing for cultivation in a detached structure due to concerns raised by the Fire Marshall and Cal Fire; and

  • • Only two (2) marijuana plants cultivated per parcel (detached single family home). After testimony from law enforcement officials and a discussion related to impacts and plant yields, the City Council reduced the amount by marijuana plants that a qualified patient or primary caregiver can grow from the proposed six (6) plants to two (2) plants.

Staff recommends adoption of the attached Ordinance in order to comply with the March 1, 2016 deadline and to retain local control over the cultivation of medical marijuana.

CEOA/NEPA REQUIREMENTS:

This Ordinance is exempt from California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines section 15061(b)(3) of the State CEQA Guidelines. Specifically, this Ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment because it does not authorize the construction of any new large structures or other physical changes resulting in impacts to the environment.

This Ordinance would also limit the number of plants cultivated outdoors to a limited amount so there will be no potential for significant water impacts and pesticide application impacts. Further, cultivation would not be visible and would not result in significant odor issues.

ATTACHMENTS:

1. Ordinance No. 626 (Final Ordinance for Adoption)

2. Red-Lined Ordinance No.626 (Showing changes made during January 5, 2016 City Council Meeting)

1. Ordinance No. 626 (Final Ordinance for Adoption)

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2. Red-Lined Ordinance No.626 (Showing changes made during January 5, 2016 City Council Meeting)

 

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