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288 - ORDINANCE NO. 288 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAND TERRACE, CALIFORNIA, TO AMEND THE GRAND TERRACE MUNICIPAL CODE BY ADDING CHAPTER 5.90 TO TITLE 5 PROHIBITING ISSUANCE OF A BUSINESS LICENSE FOR MEDICAL MARIJUANA DISPENSARIES AND RECHAPTERING AND AMENDMENT OF CHAPTER 9.28 OF TITLE 9 TO NEWLY CREATED CHAPTER 18.91 OF TITLE 18 TO PRESERVE LOCAL AUTHORITY IN REGARDS TO REGULATION AND PROHIBITION OF MARIJUANA DISPENSARIES AND CULTIVATION WHEREAS, the City of Grand Terrace, pursuant to its police power, may adopt regulations to protect the health, safety and welfare of the public, Cal. Const. art. XI, § 7, Cal. Govt. Code § 37100, and thereby is authorized to declare what use or condition constitutes a public nuisance; and WHEREAS, Section 38771 of the California Government Code 38771 authorizes the City through its legislative body to declare actions and activities that constitute a public nuisance; and WHEREAS, in 1970, Congress enacted the Controlled Substances Act (21 U.S.C. Section 801 et seq.) which, among other things, makes it illegal to import, manufacture, distribute, possess, or use marijuana for any purpose in the United States and further provides criminal penalties for marijuana possession, cultivation and distribution; and WHEREAS, the People of the State of California have enacted Proposition 215, the Compassionate Use Act of 1996 (codified at Health and Safety Code Section 11362.5 et seq.) (the "CUA"), which exempts qualified patients and their primary caregivers from criminal prosecution under enumerated Health and Safety Code sections for use of marijuana for medical purposes; and WHEREAS, the California Legislature enacted Senate Bill 420 in 2003, the Medical Marijuana Program Act (codified at Health and Safety Code Section 11362.7 et seq.) (the "MMPA"), as amended, which created a state-wide identification card scheme for qualified patients and primary caregivers; and WHEREAS, on October 11, 2015, the Governor signed into law Senate Bill 643, Assembly Bill 266, and Assembly Bill 243, collectively referred to as the Medical Marijuana Regulation and Safety Act ("MMRSA"), effective January 1, 2016, which establishes a state licensing system for medical marijuana cultivation, manufacturing, delivery, and dispensing, regulating these activities with licensing requirements and regulations that are only applicable if cities and counties also permit marijuana cultivation, manufacturing, dispensing, and delivery within their jurisdictions. Under the MMRSA, cities and counties may continue to ban medical marijuana cultivation, manufacturing, dispensing, and delivery, in which case " the new law would not allow or permit these activities within the cities and counties; and ORDINANCE NO. 288 PAGE 1 OF 7 JANUARY 26, 2016 WHEREAS, notwithstanding the CUA, the MMPA, and the MMRSA, marijuana remains a schedule I substance pursuant to Cal. Health& Saf. Code § 11054 (d)(13); and WHEREAS, marijuana also remains a schedule I substance pursuant to federal law, 21 U.S.C. § 812, Schedule 1 (c)(10), and federal law does not provide for any medical use defense or exception (Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001)); and WHEREAS, the California Supreme Court has established that neither the CUA nor the MMPA preempt local regulation in the case of City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013); and WHEREAS, the MMRSA expressly allows cities and counties to ban marijuana cultivation consistent with current state law including the City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013); WHEREAS, the MMRSA provides that if a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under the principles of permissive zoning, or chooses not to administer a conditional permit program pursuit to the MMRSA, then commencing March 1, 2016, the state will be the sole licensing authority for medical marijuana cultivation applicants (Health & Safety Code section 11372.777(c)(4)); WHEREAS, the City intends by the adoption of this ordinance to relocate the existing sections prohibiting marijuana dispensaries from Title 9 of the municipal code governing Public Peace, Morals, and Welfare to Title 18 containing the City's land use regulations for the express and specific purpose of clarifying that prohibition as a land use ordinance and p p p IP Y g that such ban includes cultivation in order to preserve the City's authority to ban and/or adopt future regulations pertaining to marijuana cultivation as is required by California Health and Safety Code section 11372.777(c)(4), effective January 1, 2016, added by the MMRSA; and WHEREAS, the City of Grand Terrace's permissive Zoning Code does not list marijuana cultivation as a permitted use in any zone in the City; and WHEREAS, the City Council of the City of Grand Terrace finds that the proposed ordinance will not be detrimental to the interest of the health, safety, morals, comfort or general welfare of those residing or working in the City to make explicit that marijuana cultivation is prohibited anywhere in fie City and is a public nuisance per se; and WHEREAS, the City Council finds that the cultivation of marijuana significantly impacts, or has the potential to significantly impact, the City's jurisdiction. These impacts include the following: A. Public safety agencies, city residents, and other public entities have reported advers impacts from marijuana cultivation, including disagreeable odors and release 4 pollen that can aggravate the respiratory system; increased risk of burglary and other property crimes; and acts of violence in connection with the commission of such crimes or the occupants' attempts to prevent such crimes. ORDINANCE NO. 288 PAGE 2 OF 7 JANUARY 26, 201 �- B. The creation of persistent strong odors as marijuana plants mature and flower is offensive to many people and creates an attractive nuisance, alerting persons to the location of valuable marijuana plants and creating an increased risk of crime. C. The unregulated cultivation of marijuana can adversely affect the health, safety and well-being of the city and its residents. Comprehensive regulation of premises used for marijuana cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, smells and indoor electrical fire hazards that may result from unregulated marijuana cultivation, especially if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana can be cultivated in a concentrated place. D. The indoor cultivation of substantial amounts of marijuana also frequently requires excessive use of electricity, which often creates an unreasonable risk of fire from the electrical grow lighting systems used in indoor cultivation. E. Children are particularly vulnerable to the effects of marijuana use, and the presence of marijuana plants has proven to be an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children including hospitals, schools, church parks or playgrounds, childcare centers, recreation centers or youth centers. Cultivation of any amount of marijuana at, or near these sensitive uses presents unique risks that the marijuana plants may be observed by juveniles, and therefore be especially vulnerable to theft or recreational consumption by juveniles. Further, the potential for criminal activities associated with marijuana cultivation in such locations r- poses heightened risks that juveniles will be involved or endangered. Therefore, cultivation of any amount of marijuana in such locations or premises is especially hazardous to public safety and welfare, and to the protection of children and the person(s) cultivating the marijuana plants. F. The cultivation of marijuana in other cities has resulted in calls for service to the police department, including calls for robberies thefts, and physical assaults from marijuana that is grown outdoors; G. Marijuana growth poses significant safety risks for surrounding neighbors, including but not limits to, risks of violent confrontation in connection with attempts to steal marijuana, risk of fire from improperly wired electrical lights within structures growing marijuana, risk of guard dogs and security measures associated with structures and properties growing marijuana; and H. The smell associated with marijuana cultivation is severe enough that it interferes with the use and enjoyment of property. WHEREAS, the City does not intend by enacting this ordinance to either burden any defense to a criminal prosecution set forth in the CUA, the MMPA, or the MMRSA, or any other state law, or to criminalize any activities otherwise permitted by the state legislature through the CUA, the MMPA, or the MMRSA, or any other state law. WHEREAS, the City Council finds that sanctioning the cultivation of marijuana would be inconsistent with federal law; and ORDINANCE NO. 288 PAGE 3 OF 7 JANUARY 26, 2016 WHEREAS, the City of Grand Terrace California, pursuant to the provisions of the California Environmental Quality Act (hereinafter "CEQA") (California Public Resources Code Sections 21000 et seq.) and State CEQA guidelines (Sections 15000 et seq.) has determined that the Ordinance is exempt pursuant to Section 15061(b)(3) of Title 14 the California Code of Regulations; and WHEREAS, the City Council finds that the provisions of this Ordinance are consistent with the City of Grand Terrace's General Plan; and WHEREAS, the City Council finds that this Ordinance will not be injurious to property, property improvements, nor will it adversely affect property values nor will it be detrimental to the City; and WHEREAS, on December 17, 2015, following proper notice and public hearing, the City's Planning Commission adopted a Resolution recommending to the City Council the adoption of an Ordinance amending Title 18 of the Grand Terrace Municipal Code, relating to marijuana dispensaries and cultivation; and WHEREAS, the City Council has considered evidence presented by the Planning Commission and City Staff at a duly noticed public hearing held on January 12, 2016 at City Council Chambers located a 22795 Barton Road Grand Terrace, CA; and WHEREAS, all legal prerequisites prior to the adoption of this ordinance have occurred. NOW THEREFORE, THE CITY COUNCI L OF THE CITY GRAND TERRACE DOES ORDAIN AS FOLLOWS: SECTION 1: The City Council finds that all the facts, findings, and conclusions set forth above in this Ordinance are true and correct. SECTION 2: Chapter 9.28 of the Grand Terrace Municipal Code is hereby amended to read as follows: "Chapter 9.28 —RESERVED" SECTION 3: Chapter 5.90 is hereby added to the Grand Terrace Municipal Code to read as follows: "Chapter 5.90 Marijuana Dispensaries 5.90.010—Marijuana Dispensaries. The City shall refuse to issue any license under this Title 5 when it is determined from the application for such license that the business or occupation for which the license is requested - } involves in anyway whatsoever commercial cannabis activities prohibited within the City, ORDINANCE NO. 288 PAGE 4 OF 7 JANUARY 26, 2016 \ Y pursuant to Chapter 18.91 of the Grand Terrace Municipal Code." SECTION 4: Chapter 18.91 is hereby added to the Grand Terrace Municipal Code to read as follows: "Chapter 18.91 Marijuana Regulations 18.91.010 - Purpose. The City Council of the City of Grand Terrace hereby finds and determines that it is the purpose and intent of this article to prohibit marijuana dispensaries and marijuana cultivation, in order to promote the health, safety, morals and general welfare of the residents and the businesses within the City by maintaining local control over the ability to regulate marijuana related businesses. 18.91.020 —Applicability. A. Nothing in this chapter is intended, nor shall it be construed, to burden any defense to criminal prosecution under the Compassionate Use Act, Medical Marijuana Program Act, Medical Marijuana Regulation and Safety Act, or any other state law. B. All the provisions of this chapter shall apply to all property, public and private, within the City. y C. All the provisions of this chapter shall apply indoors and outdoors. 18.91.030—Definitions. The following definitions apply to this chapter: A. "Cultivate" shall mean the planting, growing, harvesting drying or processing of marijuana plants or any part thereof for any purpose, including medical marijuana, and shall include both indoor and outdoor cultivation. B. "Marijuana" shall have the same definition as that set forth in California Health& Safety Code Section 11018. C. "Medical marijuana" shall mean marijuana used for medical purposes in accordance with California Health and Safety Code section 11362.5. D. "Medical marijuana dispensary" or "dispensary" shall mean any location, structure, facility, vehicle utilized in full or in part, as a place at or in which medical marijuana is made available, sold traded, exchanged or bartered for in any way with or without consideration, made available, located, stored, placed, cultivated and/or distributed. A "medical marijuana dispensary" shall not include the following uses, so long as the locations of such uses are otherwise regulated by this Code or applicable.law: 1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; ORDINANCE NO. 288 PAGE 5 OF 7 JANUARY 26, 2016 Y 2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health- and Safety Code; 3. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; 4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; 5. A residential hospice, or a'home health agency, licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et seq. E. "Person" shall mean any person, firm, corporation, association, club, society, or other organization. The term person shall include any owner, manager, proprietor, employee, volunteer and/or salesperson. 18.91.040—Marijuana dispensaries prohibited. The operation of medical marijuana dispensaries by any person, including primary caregivers, qualified patients and dispensaries, is prohibited in all zone districts within the City of Grand Terrace. 18.91.050—Marijuana cultivation prohibited' Marijuana cultivation by any person, including primary caregivers, qualified patients and dispensaries, is prohibited in all zone districts within the City of Grand Terrace. 18.91.060 -Declaration of public nuisance. Any use, structure, or property that is altered, enlarged, erected, established, maintained, moved, or operated contrary to the provisions of this article, is hereby declared to be unlawful and a public nuisance and may be abated by the city through civil and/or administrative 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. 18.91.060—Violations. This chapter is not the exclusive means for the abatement of marijuana dispensaries within the City of Grand Terrace:The remedies set forth pursuant to this section shall be in addition to any other existing remedies for violations of the Zoning Code, including but not limited to, any action at law or equity." SECTION 5: Any provision of the Grand Terrace 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 that extent necessary to effect the provisions of this Ordinance. ORDINANCE NO. 288 PAGE 6 OF 7 JANUARY 26, 2016 SECTION 6: Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. The City Council of the City of Grand Terrace declares that it would have adopted all the provisions of this ordinance that remain valid if any provisions of this ordinance are declared invalid. SECTION 7: The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published and posted pursuant to the provisions of law in that regard and this Ordinance shall take effect 30 days after its final passage. PASSED, APPROVED AND ADOPTED this 261h day of January, 2016. ATTEST: at c es are McNaboe City Clerk r I, Patricia Jacquez-Nares, City Clerk of the City of Grand Terrace, do hereby certify that the foregoing Ordinance was introduced and adopted at a regular meeting of the City Council of the City of Grand Terrace held on the 261h day of January, 2016. AYES: Council Members Hussey, Wilson, Mitchell, Mayor Pro Tem Robles, Mayor McNaboe NOES: None ABSENT: None ABSTAIN: None at Jacq V ar City Clerk Approved as to for Richard L. Adams, II 1 City Attorney ORDINANCE NO. 288 PAGE 7 OF 7 JANUARY 26, 2016