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Ord 2183 - Extending interim Ordinance Medical MarijuanaORDINANCE 2183 AN INTERIM ORDINANCE OF THE TOWN OF LOS GATOS EXTENDING THE INTERIM ORDINANCE IMPOSING A MORATORIUM ON THE APPROVAL, COMMENCEMENT, ESTABLISHMENT, OR OPERATION OF MEDICAL MARIJUANA DISPENSARIES WHEREAS, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is generally unlawful under California law. [Health and Safety Code sections 11357-11360] WHEREAS, in November of 1996 the voters of the State of California approved Proposition 215 (codified as Health and Safety Code section 11362.5 et seq. and entitled the "Compassionate Use Act of 1996"), which allows a person to use marijuana for medical purposes with a doctor's recommendation, without violating state criminal law regarding the use, possession, or cultivation of marijuana. WHEREAS, in 2003, the State Legislature adopted Senate Bill 420 (codified as Health and Safety Code section 11362.7 et seq. and entitled the "Medical Marijuana Program Act"), which clarified the scope of the Compassionate Use Act and allowed cities and other governing bodies to adopt and enforce rules and regulations related to medical marijuana. WHEREAS, federal law (codified as 21 USC section 801 et seq. and entitled the "Controlled Substances Act") makes it unlawful to manufacture, distribute, or possess any controlled substances, including marijuana. This creates a significant law enforcement dilemma, in that federal law conflicts with California law. WHEREAS, the Town Community Development Department staff recently received several inquiries from prospective medical marijuana dispensary operators, and at least one of these individuals attempted to obtain a business license from the Town Finance Department to operate a medical marijuana dispensary whether or not the Town permits such use. WHEREAS, the Los Gatos Town Code does not specifically address the regulation or location of medical marijuana dispensaries or list medical marijuana dispensaries as a permitted or conditionally permitted use in any zoning district. WHEREAS, California law established a limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather to cultivate medical marijuana, as well as for persons that qualify as a "patient," or a "primary caregiver," as those terms are defined within the. statutory scheme. [Health and Safety Code sections 11362.765 and 11362.775] No provision of California law authorizes or protects the establishment of a medical marijuana dispensary or other storefront distribution operation. Page 1 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 I1-2-09 Medical Marijuana Extension Ordinance.doc WHEREAS, some individuals have utilized the above-referenced provisions of California law as a basis for operating dispensaries that sell or otherwise provide medical marijuana. Presently, no such establishments operate in the Town; however, without restrictions in place, a medical marijuana dispensary might attempt to open and operate without restrictions. WHEREAS, in California cities that have permitted the establislunent of medical marijuana dispensaries, issues and concerns have arisen related to the establishment of medical marijuana dispensaries in close proximity to residential properties, schools, and daycare facilities. Furthermore, those cities have reported adverse impacts on public health, safety, and welfare, including an increase in crimes such as loitering, illegal drug activity, burglaries, robberies and other criminal activity within and around dispensaries, as well as increased pedestrian and vehicular traffic, noise and parking violations. The operation of medical marijuana dispensaries have also caused increased demands for police response, as well as additional maintenance of public streets and sidewalks. WHEREAS, there are a number of unresolved questions under state law regarding the regulation of medical marijuana dispensaries. WHEREAS, if medical marijuana dispensaries are allowed to be established in the Town of Los Gatos without appropriate regulation, such uses might: (1) conflict with the requirements of the General Plan, the Town's zoning ordinance, forthcoming Town regulations and California and/or federal law; (2) be inconsistent with surrounding uses; and (3) present a current and immediate threat to the public health, safety, or welfare. WHEREAS, the Town Council desires on an urgency basis to temporarily prohibit medical marijuana dispensaries in the Town in order to allow the Town the time necessary to study issues surrounding such establishments. During the moratorium period, staff will examine various ways to address these establishments and provide the Town Council with options and recommendations on whether to adopt a regulatory ordinance permitting the operation of such establishments, or, in the alternative, adopt a ban on dispensaries. WHEREAS, on October 5, 2009, the Town Council adopted by a unanimous vote an interim ordinance imposing as an urgency measure a moratorium on the approval, commencement, establislnnent or operation of medical marijuana dispensaries. WHEREAS, pursuarit to Government Code section 65858, the interim ordinance shall expire on November 19, 2009, unless extended by the Council for an additional period of up to 10 months and 15 days. WHEREAS, more time is needed for Town staff to study the issues surrounding medical marijuana dispensaries and to consult with the Town Attorney. WHEREAS, if the Town of Los Gatos does not extend the interim ordinance for an additional period of up to 10 months and 15 days, then the potential exists for the approval, commencement, establishment or operation of medical marijuana dispensaries within the Town, Page 2 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 11-2-09 Medical Marijuana Extension Ordinance.doc with the accompanying adverse impacts identified herein, without adequate regulations in place. Therefore, there is a current and immediate threat to the public health, safety, or welfare, and the approval of a use permit, variance, building permit, business license, or any other permit or entitlement for use of property within the Town as a medical marijuana dispensary would result in that threat to the public health, safety, or welfare. WHEREAS, in order to protect the public health, safety, or welfare, it is necessary for the Town Council to extend the interim ordinance on an urgency basis to temporarily prohibit any uses and/or activities as hereinafter provided, which maybe in conflict with the possible regulations to be studied. WHEREAS, the extension of the interim ordinance is adopted in accordance with the requirements of Government Code Section 65858. THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS: SECTION I PURPOSE AND FINDINGS A. The above recitals are incorporated herein and are each relied upon independently by the Town Council for its adoption of this urgency interim ordinance. B. The Town of Los Gatos General Plan does not presently contain a goal or policy or textual discussion of the issue of a prospective use of medical marijuana dispensaries. C. The Los Gatos Town Code does not address or regulate the existence or location of medical marijuana dispensaries, operator licensing, or cultivation of marijuana plants. D. The Town Community Development Department staff recently received several inquiries fiom prospective medical marijuana dispensary operators as to whether a medical marijuana dispensary is currently permitted or conditionally permitted in any of the Town's zoning districts. At least one of these individuals attempted to obtain a business license from the Town Finance Department to open a medical marijuana dispensary in the Town of Los Gatos, whether or not the Town permits such use. E. In cities that have permitted medical marijuana dispensaries, issues and concerns have arisen related to-the establishment of medical marijuana dispensaries in close proximity to residential properties, schools, and daycare facilities. Cities have reported increases in loitering, illegal drug activity, burglaries, robberies, and other criminal activity within and around the dispensaries, as well as increased pedestrian and vehicular traffic, noise and parl~ing violations. Medical marijuana dispensaries have also caused increased demands for police response, and required additional maintenance of public streets and sidewalks. Page 3 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 11-2-09 Medical Marijuana Extension Ordinance.doc F. The manufacture, distribution or possession of marijuana for any purpose remains illegal under federal law. Furthermore, the cultivation or distribution of medical marijuana for profit is illegal under California law. G. There are several unresolved questions of law regarding the regulation of medical marijuana dispensaries, including how to interpret the California Attorney General's August 2008 "Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use" [marijuana dispensaries generally considered to be unprotected, illegal drug-trafficking enterprises unless they fall within the narrow legal definition of a "cooperative" under California law] and the California Supreme Court case People v. Mentch (2008) 45 Ca1,4th 274 [who may qualify as a "primary caregiver" for the purpose of cultivating or dispensing medical marijuana to qualified patients]. A pending court of appeal case (Qualified Patients Assn. v. Town of Anaheim, 4th Dist., Div. 3, Case No. G040077) may shed light on these questions in the coming months. In addition, a recent California Com-t of Appeal decision in a case entitled City of Claremont v. Krause, Ca1.App.4t~' , 2009 Cal. App. LEXIS 1563, August 27, 2009, holds that the Compassionate Use Act does not supersede local zoning authority, so that an unpermitted medical marijuana dispensary can constitute a nuisance per se. H. To protect residents and businesses from potential harmful community impacts resulting from medical marijuana dispensaries, the Town staff requires sufficient time to study the legality, potential adverse community impacts, and mechanisms for regulating medical marijuana dispensaries, in order to provide the Town Council with options and recommendations on whether to adopt a regulatory ordinance permitting the operation of such establishments, or whether to adopt a ban on dispensaries. I. If medical marijuana dispensaries are allowed to proceed without appropriate Town staff review, such dispensaries could conflict with the requirements of the General Plan, the zoning ordinance, and forthcoming Town regulations and California and/or federal law, and result in irreversible incompatibility of land uses and adverse impacts on residents, businesses, and neighborhoods. Therefore, there is a current and immediate threat to the public health, safety, or welfare, and the approval of a use permit, variance, building permit, business license, or any other permit or entitlement for use of property within the Town as a medical marijuana dispensary would result in that threat to the public health, safety, or welfare. On October 5, 2009, the Town Council adopted by a unanimous vote an interim ordinance imposing as an urgency measure a moratorium on the approval, commencement, establishment or operation of medical marijuana dispensaries. K. Pursuant to Government Code section 65858, the interim ordinance shall expire on November 19, 2009, unless extended by the Town Council for an additional period up to 10 months 15 days. Page 4 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 11-2-09 Medical Marijuana Extension Ordinance.doc L. More time is needed for Town staff to study the issues surrounding medical marijuana dispensaries and to consult with the Town Attorney. M. If the Town of Los Gatos does not extend the interim ordinance, then the potential exists for the approval, commencement, establislunent or operation of medical marijuana dispensaries within the Town, with the accompanying adverse impacts identified herein, without adequate regulations in place. There is a current an immmediate threat to the public health, safety, or welfare, and the approval of a use permit, variance, building permit, business license, or any other permit or entitlement for use of property within the Town as a medical marijuana dispensary would result in that threat to the public health, safety, or welfare. N. The extension of the interim ordinance establishing a moratorium on medical marijuana dispensaries pursuant to Government Code section 65858 is necessary to avoid the previously identified current and immediate threat to the public health, safety, or welfare. SECTION II EXTENSION OF INTERIM MORATORIUM A. For an additional period of 10 months and 15 days, to and including October 4, 2010, unless this period is subsequently extended by the Town Council for up to an additional one year in accordance with Government Code section 65858, no zoning ordinance interpretation or amendment, amendment to the General Plan, use permit, variance, building permit, business license, or any other permit or entitlement for use shall be approved or issued for the approval, commencement, establishment or operation of, and no person or entity shall own, manage, conduct, or operate any "medical marijuana dispensary," as that phrase is hereinafter defined, or participate as an employee, contractor, agent, volunteer, or in any other manner or capacity, in any medical marijuana dispensary, upon any property in any zoning district within the Town of Los Gatos during the period this urgency interim ordinance is in effect. B. .For the purposes of this urgency interim ordinance, the phrase "medical marijuana dispensary" includes any site, facility, location, use, cooperative, center, or business that distributes, dispenses, stores, sells, exchanges, processes, delivers, gives away, or cultivates marijuana for medical purposes to qualified patients, healthcare providers, patients' primary caregivers or physicians, pursuant to Proposition 215, Senate Bi11420, or any California regulations adopted in furtherance thereof. As used herein, the term "marijuana" shall mean camlabis and all parts of that plant. Page 5 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 11-2-09 Medical Marijuana Extension Ordinance.doc SECTION III PENALTIES Pursuant to section 1.10.040 of the Los Gatos Town Code, violation of any provision of this interim ordinance shall constitute an infraction and knowing and willful violations shall constitute misdemeanors, all punishable by a fine and, in the case of misdemeanors, a fine and/or imprisonment. Each and every day such a violation exists shall constitute a separate and distinct violation of this urgency interim ordinance. In addition to the foregoing, any violation of this interim ordinance shall constitute a public nuisance and shall be subject to abatement as provided by all applicable provisions of law. SECTION IV EFFECTIVE DATE AND DURATION Based on the findings set forth in Section 1 hereof, the recent inquiry and threat by a prospective operator to obtain a business license to open a medical marijuana dispensary in the Town of Los Gatos whether or not the Town permits such use, and the adverse impacts of dispensaries, a current and immediate threat to the public health, safety, or welfare exists. This interim ordinance is necessary to alleviate and address that threat until permanent zoning regulations can be established. Therefore, this ordinance is adopted as an urgency interim ordinance pursuant to Government Code section 65858 and shall take effect immediately upon approval by a four- fifths vote of the Town Council. This urgency interim ordinance shall be in fiill force and effect for a period of 10 months and 15 days to October 4, 2010, unless this period is extended by the Town Council in accordance with Government Code section 65858. Ten (10) days prior to the expiration of this interim ordinance or any extension thereof, the Town Council shall issue a written report describing the measures that have been taken to study the relevant issues and to establish policies and regulations for medical marijuana dispensaries within the Town. SECTION V ENVIRONMENTAL ANALYSIS With respect to compliance with the California Environmental Quality Act ("CEQA"), the Town Council finds as follows: Page 6 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 11-2-09 Medical Marijuana Extension Ordinance.doc A. This interim ordinance is not a "project" within the meaning of section 15378 of the State CEQA Guidelines, because it has no potential for resulting in physical change in the environment, directly or ultimately. This interim ordinance does not, in itself, allow the operation of medical marijuana dispensaries; therefore there is no potential for resulting in physical change in the environment, directly or ultimately. B. This interim ordinance is categorically exempt from CEQA under Section 15308 of the State CEQA Guidelines. This interim ordinance is a regulatory action taken by the Town in accordance with Government Code section 65858, to assure maintenance and protection of the environment pending the completion of contemplated zoning ordinance revisions. C. This interim ordinance is covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment. For the reasons set forth in subparagraphs (A) and (B) of this paragraph, it can be seen with certainty that there is no possibility that this ordinance will have a- significant effect on the environment and, therefore, this interim ordinance is not subject to CEQA. SECTION VI SEVERABILITY If any section, subsection, phrase, or clause of this interim ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this urgency interim ordinance. The Town Council hereby declares that it would have passed this urgency interim ordinance and each section, subsection, phrase or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or clauses be declared unconstitutional. SECTION VII PUBLICATION This interim ordinance shall be published in accordance with the provisions of Government Code section 36933. Page 7 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 11-2-09 Medical Marijuana Extension Ordinance.doc SECTION VIII This interim ordinance was introduced and adopted at a regular meeting of the Town Council of the Town of Los Gatos by the following vote as an urgency ordinance of the Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on November 2, 2009. This urgency ordinance takes effect immediately. COUNCIL MEMBERS: AYES: Diane McNutt, Joe Pirzynski, Steve Rice, Barbara Spector, and Mayor Mike Wasserman NAYS: None ABSENT: None ABSTAIN: None SIGNED; MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTES /~ CLE ISTRATOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA Page 8 of 8 N:\MASTER\CLERK\ORDINANCES\ORDINANCES\2183 11-2-09 Medical Marijuana Extension Ordinance.doc