Zoning Text Amendment 2015-01. The Planning Commission will consider Zoning Text Amendment 2015-01, determine General Plan consistency and make a recommendation to the City Council regarding amending Title 5, Chapters 2, 3, 5, and 7 of the Livingston Municipal Code to prohibit commercial marijuana (cannabis) activities and allow exemptions for delivery of medical marijuana and cultivation by qualified patients and primary caregivers.

Meeting Date: DECEMBER 08, 2015

Note from TheGardeningSnail: parts of this document may have been created by running a PDF Image File through software that converts Image to Text. My apologies for any Textual Gremlins that may have snuck in during the process. I may also have broken up longer paragraphs for easier reading.

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Legal Background

On October 9, 2015, Governor Brown signed into law Assembly Bill 243, Assembly Bill 266, and Senate Bill 643 relating to medical marijuana. The three (3) bills are collectively named the Medical Marijuana Regulation and Safety Act ("MMRSA"). Through the MMRSA, the legislature created a comprehensive statewide regulatory license system for the cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis.

Assembly Bill 243, which relates primarily to cultivation of marijuana, prohibits cultivation without first obtaining both a local license/permit/other entitlement for use and a State license.

A person may not apply for a State license without first receiving a local license/permit/other entitlement for use. The law sets forth a State licensing program for the cultivation of medical marijuana; however, it makes clear that the State will not issue a State license to any individual if the cultivation of marijuana is prohibited by local ordinance of the city or county that they are trying to cultivate in. This makes it very important for a local jurisdiction to make sure local laws are updated.

Unfortunately, the State legislature did not allow local jurisdictions too much time to prepare updated local ordinances.

Assembly Bill 243 requires local agencies to have in place an ordinance or land use regulation by March 1, 2016 or else the local entity will lose local control over the cultivation of medical marijuana and the State will be the sole licensing authority for such activity.

Specifically, the new law states that "if 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."

In order to not lose local control over the cultivation of medical marijuana, it is critical for the City to adopt an ordinance regulating or prohibiting marijuana cultivation, and have it be in effect by March 1, 2016.

Assembly Bill 266 also establishes a dual licensing structure requiring State license and a local license or permit in order for a dispensary to conduct deliveries of marijuana in a city or county. With regard to marijuana deliveries, AB 266 states that "deliveries . . . can only be made . . . in a city, county, or city and county that does not explicitly prohibit it by local ordinance."

This language is slightly different from other parts of the three (3) bills as the City must explicitly ban deliveries by ordinance, or a dispensary in another city can likely deliver to residents wherever it is not prohibited. The delivering dispensary has to confirm with the State that everywhere they plan to deliver has not explicitly prohibited deliveries.

Even if the local jurisdiction bans deliveries, it cannot prevent carriage of medical marijuana on public roads by a licensee. (Bus. & Prof. Code, § 19340.)

Proposed Ordinance

Commercial Activity

The proposed Zoning Ordinance Text amendments would comply with MMRSA and allow the City to retain local control by expressly prohibiting all commercial marijuana activity, including commercial cultivation, in all zones of the City.

Cultivation by Qualified Patients and Primary Caregivers

Although the proposed amendments prohibit all commercial marijuana cultivation, the proposed amendments recognize that cultivation of medical marijuana for qualified patients and primary caregivers is necessary. As such, the Zoning Ordinance Text amendments would provide an exception for qualified patients and primary caregivers to allow cultivation of a small amount of medical marijuana as a permitted use in residential districts and the downtown commercial district.

The amendments would provide specific requirements that would need to be met by the qualified patient or primary giver if they wanted to cultivate medical marijuana. Qualified patients and primary caregivers will be able to cultivate up to six (6) mature plants or twelve (12) immature plants of marijuana within a twenty-five (25) square feet area without a City permit.

Delivery of Medical Marijuana

The City would also retain local control by regulating the delivery of medical marijuana into the City.

The proposed Zoning Ordinance Text amendments would provide an exemption from the prohibition of commercial marijuana activities for deliveries of medical marijuana. This exemption would require compliance with regulations and would require a dispensary to obtain a City business license and a permit from the Chief of Police before operating and conducting deliveries into the City of Livingston.

The Planning Commission and City Council will have to consider whether it is necessary to allow deliveries if the ordinance is providing exceptions for qualified patients and primary caregivers to cultivate up to six (6) mature plants or twelve (12) immature plants of marijuana within a twenty-five (25) square feet area.

Specific Amendments

The proposed Zoning Ordinance Text amendments to Sections 5-2-3 and 5-7-2 would include updates to the definition of dispensary and the addition of new terms to the Zoning Code based upon the changes to state law as a result of MMRSA.

In order to retain local control, the proposed Zoning Ordinance Text amendments to Sections

5-3-15(A)(4) and 5-3-15(C)-Table 3 would prohibit commercial marijuana activity in all zones in the City. This prohibition on commercial marijuana activity would include dispensaries, collectives, cooperatives, transportation, distribution, cultivation, manufacturing, testing and processing.

The proposed Zoning Ordinance Text amendment also would amend Section 5-3- 15(C)-Table 3 to allow qualified patient and primary caregiver cultivation in residential zones in the City pursuant to the proposed Zoning Ordinance Text amendment Section 5-5-14(C).

The proposed Zoning Ordinance Text amendment would add Section 5-5-14. That section would prohibit commercial marijuana activity and commercial cultivation (5-5-14(A) and 5-5- 14(B).) Section 5-5-14(C) would allow a qualified patient or primary caregiver to cultivate an amount not to exceed six (6) mature or twelve (12) immature plants in an area not to exceed twenty-five (25) square feet in an outside detached structure.

That section would also require the qualified patient or primary caregiver to comply with the following regulations:

• Cultivation must occur outside of the primary residence, either outdoors or in a detached structure not exceeding twenty-five (25) square feet.

• Cultivation can only occur on lots that contain detached, single-family homes in R-E (Estate Residential), R-1 (Low Density Residential), R-2(Medium Density Residential), R-3(High Density Residential), and DTC (Downtown Commercial) zoning districts. Lots containing multi-family dwellings such as duplexes and apartment buildings shall not be allowed to cultivate medical marijuana.

• Qualified patient/primary caregiver must reside full-time on lot where cultivation occurs.

• Marijuana growth cannot be visible from right of way.

• Cultivation shall maintain a ten (10) foot setback from any property line.

• If the qualified patient or primary caregiver is a tenant on the lot, he or she will need to get written permission from owner(s) of property.

• No cultivation can occur within one-thousand (1,000) feet of any school, child care center or public park.

The proposed Zoning Ordinance Text amendment would also add 5-5-14(D) which would exempt deliveries as commercial activity under Section 5-5-14(A) and allow deliveries of medical marijuana into the City of Livingston if the dispensary obtains a City business license for deliveries and a Delivery Permit from the Chief of Police, or his designee. The delivery of medical marijuana would also be in conformance with the following regulations:

• Delivery must be to qualified patient or primary caregiver.

• Only eight (8) ounces can be delivered for any single delivery.

• Deliveries can only be between 8 a.m. to 8 p.m.

• Delivery must be by an employee of dispensary.

• Dispensary must obtain necessary State license.

• All employees delivering marijuana must carry copy of all licenses.

Finally, the proposed Zoning Ordinance Text amendment would also add Section 5-5-14(E) which would provide a provision relating to the prosecution of violations of Section 5-5-14 and the maximum fines and jail time that could be imposed for each misdemeanor violation.

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Amendments to Existing Municipal Code Sections:

Proposed deletions are identified in strikeout text and new text is identified with an underline Italics.

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ATTACHMENTS:

1. Planning Commission Resolution 2015-_

2. Proposed Ordinance

3. League of Cities Informational Brochure on Medical Marijuana Regulation and Safety Act

4. League of Cities FAQ Sheet

 

Planning Commission Resolution 2015-_

RESOLUTION 2015-

RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF LIVINGSTON DETERMINING GENERAL PLAN CONSISTENCY AND RECOMMENDING TO THE CITY COUNCIL APPROVAL OF ZONING ORDINANCE TEXT AMENDMENT 2015-01 AMENDING LIVINGSTON MUNICIPAL CODE TITLE 5, CHAPTERS 2, 3, 5, AND 7 TO PROHIBIT COMMERCIAL MARIJUANA (CANNABIS) ACTIVITIES AND ALLOW EXEMPTIONS FOR DELIVERY OF MEDICAL MARIJUANA AND CULTIVATION BY QUALIFIED PATIENTS AND PRIMARY CAREGIVERS

WHEREAS, in October of 2015, the State of California enacted AB 243, AB 266, and SB 643 (commonly and collectively referred to as the Medical Marijuana Regulation and Safety Act or the "MMRSA"). The MMRSA establishes regulation of medical cannabis cultivation, manufacturing, and transportation, as well as create local and state-level licensing systems in California. The MMRSA allows a city to prohibit, through land use regulations or ordinances, the cultivating, delivering, distributing or processing medical marijuana; and

WHEREAS, the MMRSA contains language that requires a city to have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under the principles of permissive zoning, enacted by March 1, 2016. If said regulations or ordinances are not enacted by March 1, 2016, the State will become the sole licensing authority. The MMRSA also contains language that requires delivery services to be expressly prohibited by local ordinance, if a city wishes to prohibit deliveries; and

WHEREAS, Proposed Zoning Text Amendment 2015-01 seeks to retain local control by prohibiting commercial marijuana or medical marijuana activity, including dispensaries and commercial cultivation in all zoning districts in the City of Livingston. The proposed Zoning Text Amendment 2015-01 also allows an exemption for delivery of medical marijuana from the prohibition on commercial marijuana or medical marijuana activity; and

WHEREAS, Proposed Zoning Text Amendment 2015-01 provides regulations for qualified patient or primary caregiver cultivation and allows said small growth cultivation as a permitted use in R-E (Estate Residential), R-l(Low Density Residential), R-2(Medium Density Residential), R-3(High Density Residential) and DTC(Downtown Commercial) zoning districts in the City; and

WHEREAS, the public hearing for the Proposed Zoning Text Amendment has been properly noticed by placing a newspaper ad and posting at public places, the City of Livingston City Hall Bulletin Board, the City website and in a local newspaper of general circulation ten days prior to the meeting; and

WHEREAS, the Proposal is exempt from the provisions of the California Environmental Quality Act ("CEQA") section 1506l(b)(3) which is the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment and CEQA does not apply where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment.

NOW, THEREFORE, BE IT RESOLVED as follows:

1. The Planning Commission recommends to the City Council approval of Zoning Ordinance Text Amendment 2015-01, amending Livingston Municipal Code Title 5, Chapters 2, 3, 5, and 7 to prohibit commercial marijuana (cannabis) activities and allow exemptions for delivery of medical marijuana and cultivation by qualified patients and primary caregivers as changes to the Zoning Ordinance as shown in Exhibit "A" (draft City Council Ordinance); and

2. The Planning Commission finds that the Zoning Code Amendments are consistent with the General Plan.

The foregoing resolution was introduced and moved for adoption on December 8, 2015, by Commissioner , and being duly seconded by Commissioner , was passed by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:

  

Chair, RANJEET JHUTTI Secretary of the Planning Commission, RANDY HATCH

2559576.3

Proposed Ordinance

CITY OF LIVINGSTON ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON AMENDING TITLE 5, CHAPTERS 2, 3, 5 AND 7 OF THE LIVINGSTON MUNICIPAL CODE TO PROHIBIT COMMERCIAL MARIJUANA (CANNABIS) ACTIVITIES AND ALLOW EXEMPTIONS FOR DELIVERY OF MEDICAL MARIJUANA AND CULTIVATION BY QUALIFIED PATIENTS AND PRIMARY CAREGIVERS

WHEREAS, 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 "CUA"); and

WHEREAS, 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; and

WHEREAS, in 2004, the State of California also enacted Senate Bill 420 (codified as California Health and Safety Code section 11362.7 et seq. and referred to as "The Medical Marijuana Program" or "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 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; and

WHEREAS, despite voter approval of the CUA, various problems and uncertainties in the Act impeded law enforcement’s ability to interpret and enforce the law, and the uncertainties also hindered persons eligible to use marijuana for medical purposes from accessing marijuana, while many persons took advantage of the Act to use marijuana for recreational and not medical purposes; and

WHEREAS, the CUA is limited in scope, in that it only provides a defense from state criminal prosecution for possession and cultivation of marijuana to qualified patients and their primary care givers; and

WHEREAS, neither the CUA nor the MMP require or impose an affirmative duty or mandate upon local governments to allow, authorize or sanction the establishment and the operation of facilities cultivating, distributing, or processing medical marijuana; and

WHEREAS, 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 (20l3) 56 Cal.4th 729, 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; and

WHEREAS, in October of 2015, the State of California enacted Assembly Bill (AB) 243, AB 266, and Senate Bill (SB) 643 (commonly and collectively referred to as the Medical Marijuana Regulation and Safety Act or the "MMRSA"). The MMRSA establishes regulation of medical cannabis cultivation, manufacturing, and transportation, as well as create local and state-level licensing systems in California. The MMRSA allows a city to prohibit, through land use regulations or ordinances, the cultivating, delivering, distributing or processing medical marijuana; and

WHEREAS, the City Council finds that commercial medical marijuana (cannabis) activities, as well as cultivation for personal medical use as allowed by the CUA and MMP, can adversely affect the health, safety and well-being of City residents. Citywide prohibition is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells and indoor electrical fire hazards that may result from such activities. Further, as recognized by the Attorney General’s August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, marijuana cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as loitering or crime; and

WHEREAS, under the Federal Controlled Substances Act, 21 U.S.C. §§ 801 et seq., the use, possession and cultivation of marijuana, medical or otherwise, is unlawful and subject to federal prosecution, however the Department of Justice issued a Memorandum entitled, "Guidance for Marijuana Enforcement" on August 29, 2013. The Memorandum established eight (8) guidelines for states regarding the federal priorities in determining whether federal enforcement should commence against those engaged in specific activities related to marijuana cultivation and distribution. This ordinance places the highest priority on meeting these guidelines, particularly those related to public safety and health, restrictions on availability to minors and prevention of illegal trafficking and profiteering; and

WHEREAS, the limited immunity from specified state marijuana laws provided by the CUA and MMP does not confer a land use right or the right to create or maintain a public nuisance; and

WHEREAS, the MMRSA contains language that requires a city to have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under the principles of permissive zoning, enacted by March 1, 2016. If said regulations or ordinances are not enacted by March 1, 2016, the State will become the sole licensing authority. The MMRSA also contains language that requires delivery services to be expressly prohibited by local ordinance, if a city wishes to prohibit deliveries; and

WHEREAS, the Planning Commission held a duly noticed public hearing on December 8, 2015, at which time it considered all evidence presented, both written and oral, and at the end of the hearing, voted to adopt a resolution recommending that the City Council adopt this Ordinance; and

WHEREAS, the City Council held a duly noticed public hearing on this Ordinance on January 5, 2016, at which time it considered all evidence presented, both written and oral.

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League of Cities Informational Brochure on Medical Marijuana Regulation and Safety Act

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League of Cities FAQ Sheet

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