HomeMy WebLinkAboutMC-14521
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ORDINANCE NO. MC -1452
AN INTERIM URGENCY ORDINANCE OF THE MAYOR AND CITY
COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA,
ESTABLISHING A MORATORIUM ON CERTAIN COMMERCIAL
MARIJUANA LAND USES AND ACTIVITIES, OUTDOOR PERSONAL
CULTIVATION OF MARIJUANA, AND CANNABIS EVENTS
WHEREAS, in September of 2015, the Governor signed into law the Medical
Cannabis Regulations and Safety Act ("MCRSA") which established regulations of
medical cannabis cultivation, manufacturing and transportation, as well as created local
and State -level licensing systems in California; and
WHEREAS, MCRSA allows a city to regulate or prohibit, through land use
regulation or ordinances, the cultivating, delivering, distributing, selling or processing of
medical marijuana; and
WHEREAS, on November 8, 2016, the voters of the City of San Bernardino
("City") enacted the San Bernardino Regulate Marijuana Act of 2016 ("Measure O")
which established a zoning and regulatory scheme for the marijuana business activities
regulated under MCRSA; and
WHEREAS, the intent of the voters in passing Measure O was to establish a
zoning and regulatory scheme for marijuana businesses in a manner consistent with state
law as new laws are subsequently enacted including laws that allow recreational
marijuana business activities; and
WHEREAS, on November 8, 2016, the voters of the State of California ("State")
enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act
("AUMA"); and
WHEREAS, subject to certain exceptions, AUMA generally establishes a
comprehensive system to legalize, control, and regulate the cultivation, processing,
manufacture, distribution, testing, and sale of recreational marijuana, including marijuana
products, for use by adults 21 years and older, and to tax the commercial growth and
retail sale of recreational marijuana; and
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WHEREAS, AUMA also allows local governments to adopt and enforce local
ordinances regulating marijuana related land uses, as well as the possession, planting,
cultivation, harvesting, testing, drying, and processing of recreational marijuana,
including the complete prohibition of such activities; and
WHEREAS, on June 27, 2017, the Governor signed SB 94 into law the
Medicinal and Adult -Use Cannabis Regulation and Safety Act (`MAUCRSA"), which
incorporated the medical -marijuana licenses available under MCRSA into a dual
licensing system with the recreational -marijuana licenses available under AVMA; and
WHEREAS, under MAUCRSA, the City continues to be able to regulate
marijuana related land uses, as well as possession, planting, cultivation, harvesting,
testing, drying, and processing of marijuana, including the complete prohibition of such
activities; and
WHEREAS, MAUCRSA creates a licensing system whereby the State will issue
licenses to businesses authorizing them to cultivate, distribute, transport, store,
manufacture, process, and sell marijuana and marijuana products for medical and
recreational purposes, with such licenses to be issued by January 1, 2018; and
WHEREAS, MAUCRSA mandates that State licensing authorities shall not
approve an application for a State license if approval of the State license will violate the
provisions of any local ordinance or regulation; and
WHEREAS, Measure O's validity has been challenged in multiple lawsuits that
are set for hearing on December 28, 2017; and
WHEREAS, at the hearing on December 28, 2017, Measure O may be held
wholly or partially invalid; and
WHEREAS, the City of San Bernardino operates under a permissive zoning
regulatory scheme; and
WHEREAS, in the event Measure O is held wholly or partially invalid, those
commercial marijuana activities previously permitted by Measure O prior to court
determination of its invalidity would violate the provisions of local ordinance; and
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WHEREAS, notwithstanding the foregoing, the Mayor and City Council desire
to provide certainty and clarity in the event Measure O is held wholly or partially invalid
by explicitly enacting a moratorium; and
WHEREAS, significant concerns have been raised regarding the impacts that
possessing, planting, cultivating, harvesting, drying, processing, distributing,
transporting, storing, manufacturing, and selling of marijuana for medical and
recreational purposes (hereinafter "commercial marijuana activities") and at cannabis
events will have on the public health, safety, and welfare in the City, including the
protection of environmental resources and neighborhood quality; and
WHEREAS, commercial marijuana activities and cannabis events pose an
environmental health risk to the public and create public nuisances, including without
limitation: offensive and irritating odors, degradation of air quality, excessive noise,
criminal activity, improper and/or dangerous electrical alterations, and impairment of the
general quality of life of property owners and occupants adjoining marijuana cultivation
sites; and
WHEREAS, the adoption of a comprehensive marijuana ordinance that addresses
unregulated commercial marijuana activities, outdoor personal cultivation of marijuana,
and cannabis events will take time and careful consideration and will require input from
various community stakeholders and the general public; and
WHEREAS, the Mayor and City Council have begun the process of receiving
input from various community stakeholders and the general public by establishing the
Citizen's Advisory Committee on Marijuana which held public meetings on November
13, November 20, November 27, December 4, and December 11, 2017; and
WHEREAS, the staff at the City has begun to review the state regulatory
framework and best practices from other communities, coordinating with consultant HdL
Companies for professional guidance on establishing a local regulatory framework; and
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WHEREAS, the State is continuing to modify and refine the MAUCRSA
regulations and has adopted regulations under emergency rulemaking effective December
7, 2017; and
WHEREAS, the City has a compelling interest in protecting the public health,
safety, and welfare of its residents and businesses, and preserving the peace and integrity
of neighborhoods within the City; and
WHEREAS, the City has devoted considerable staff time and financial resources
towards adopting specific plans and implementing development that is consistent with the
City's General Plan; and
WHEREAS, the City findings that the issuance of land use permits, building
permits, licenses, or other entitlements for unregulated commercial marijuana activities,
outdoor personal cultivation of marijuana, and cannabis events would pose a current and
immediate threat to the public health, safety, and welfare, since such uses could
potentially create conflicts with
surrounding land uses, including sensitive land uses, and could conflict with the City's
long-term planning goals to be implemented through the City's General Plan, Specific
Plans, and Zoning Ordinance; and
WHEREAS, in order to address community concerns regarding unregulated
commercial marijuana activities, outdoor personal cultivation of marijuana, and cannabis
events it is necessary for the City to study the impact such uses will have on the public
health, safety and welfare, and potentially revise the City's existing regulations or adopt
new regulations; and
WHEREAS, to protect the City's investment in its planning efforts, ensure that
the City's long-term planning goals and strategies can be achieved in an effective and
timely manner, and to avoid a current and immediate threat to the public health, safety,
and welfare, the City proposes adopting a moratorium on the issuance of use permits,
building permits and all other applicable entitlements for unregulated commercial
marijuana activities, outdoor personal cultivation of marijuana and cannabis events; and
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WHEREAS, it is necessary to protect the health, safety and welfare, specifically
the City and the public's interests in the City's aesthetic, economic, health, safety and
community character, until additional staff review has been completed and any necessary
local regulations or
code revisions have been revised, adopted and otherwise made effective; and
WHEREAS, the citizens of the City will benefit from a comprehensive and
thoughtful local regulatory scheme that addresses the potential impacts of unregulated
commercial marijuana activities, outdoor personal cultivation of marijuana, and cannabis
events; and
WHEREAS, there is an immediate need to prevent unregulated commercial
marijuana activities in the City, outdoor personal cultivation of marijuana, and cannabis
events which have the potential to affect the character and aesthetic of the community;
and
WHEREAS, the California Constitution, Article XI, section 7, provides cities
with the authority to enact ordinances to protect the health, safety, and welfare of their
citizens, and adoption of zoning regulations are a permissible exercise of this authority;
and
WHEREAS, Government Code section 65858 authorizes the Mayor and City
Council to adopt as an urgency measure an interim ordinance, effective immediately
upon a four-fifths vote for the Mayor and City Council, to protect the public health,
safety, and welfare. The interim ordinance is effect for a period of forty-five (45) days,
unless extended pursuant to Government Code section 65858, subdivision (c); and
WHEREAS, this interim urgency ordinance is necessary, as stated above, in that
there is a current and immediate threat to the public health, safety, and welfare from
unregulated commercial marijuana activities, outdoor personal cultivation of marijuana,
and cannabis events; and
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WHEREAS, this interim urgency ordinance is necessary to prevent potential
grandfathering of unregulated commercial marijuana activities, outdoor personal
cultivation of marijuana, and cannabis events; and
WHEREAS, an interim moratorium on unregulated commercial marijuana
activities, outdoor personal cultivation of marijuana, and cannabis events is required to
allow the City the opportunity to consider the various policy implications, allow the
challenges to Measure O's validity to be heard, and then allow the City to develop a
comprehensive approach to regulate marijuana -related activities; and
WHEREAS, the existing rules, regulations and ordinances regarding commercial
marijuana activities and cultivation established under Measure O, remain in full force and
effect unless and until declared by a court to be wholly or partially invalid.
NOW, THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY
I OF SAN BERNARDINO DOES ORDAIN AS FOLLOWS:
SECTION 1. Incorporation of Recitals.
The above recitals are hereby declared to be true and correct and represent
the findings of the Mayor and City Council, made in the exercise of their
independent judgment and that based on the above recitals, there is an
immediate threat to the public health, safety and welfare. The adoption of
this ordinance is necessary for the immediate protection of the public
health, safety and welfare. Said findings are hereby incorporated by
reference and made a part of this ordinance.
SECTION 2. Definitions.
For the purposes of this ordinance, the following definitions shall apply:
(1) The term "unregulated commercial marijuana activities" means the
cultivation, possession, manufacture, processing, distribution, storing,
grading, marketing, packaging, labeling, delivery, laboratory testing,
transportation, use or sale of marijuana and marijuana products, whether
or not through a for-profit or non-profit enterprise, and whether or not
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conducted with a license issued in accordance with Division 10 of the
Business and Professions Code (Business and Professions Code section
26000, et seq.) that is not specifically authorized by a valid provision of
the San Bernardino Municipal Code, or otherwise except as stated below:
a. Qualified Patient Exception. This term shall not include the
actions of a qualified patient, as defined in Section 11362.7 of the Health
and Safety Code, who cultivates, possesses, stores, manufactures, or
transports marijuana exclusively for his or her personal medical use but
who does not provide, donate, sell, or distribute marijuana to any other
person.
b. Primary Caregiver Exception. This term does not include
the actions of a primary caregiver who cultivates, possesses, stores,
manufactures, transports, donates, or provides marijuana exclusively for
the personal medical purposes of no more than five specified qualified
patients for whom he or she is the primary caregiver within the meaning of
Section 11362.7 of the Health and Safety Code, but who does not receive
remuneration for these activities except for compensation in full
compliance with subdivision (c) of Section 11362.765 of the Health and
Safety Code.
C. Personal Indoor Cultivation Exception. This term does not
include those actions specifically authorized by Section 11362.2 of the
Health and Safety Code.
(2) The term "marijuana" shall mean all items included in Health and
Safety Code sections 11018 and 11018.1.
(3) The term "indoor cultivation" shall mean cultivation inside a fully
enclosed private residence as articulated in Health and Safety Code section
11362.2, subdivision (b)(2).
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(4) The term "outdoor cultivation" shall mean any cultivation that is
not defined as indoor cultivation as articulated in Health and Safety Code
section 11362.2, subdivision (b)(2).
(5) The term "cultivation" means any activity involving the planting,
growing, harvesting, drying, curing, grading or trimming of marijuana.
(6) The term "cannabis event" shall mean those activities requiring a
state temporary event license to a licensee authorizing onsite cannabis
sales, trade or exchange to, and consumption by, persons 21 years of age
or older, including those activities occurring at a state designated fair
under Sections 19418.1, 19418.2, or 19418.3 of the Business and
Professions Code.
SECTION 3. Purpose.
The purpose of this interim ordinance is to establish a moratorium on the
approval or issuance of any land use permit, building permit, business
license or any other applicable entitlement or approval for unregulated
commercial marijuana activities, outdoor personal cultivation of
marijuana, and/or cannabis events for the immediate preservation of the
public health, safety, and welfare.
SECTION 4. Authority and Findings.
Based on the findings set forth in the Recitals incorporated herein by
Section 1, unregulated commercial marijuana activities, outdoor personal
cultivation of marijuana, and cannabis events pose a current and
immediate threat to the public health, safety, and welfare on the citizens of
the City and as such the Mayor and City Council hereby enact this interim
ordinance by not less than a four-fifths vote, under the authority granted to
it by Article XI, Section 7 of the California Constitution and section 65858
of the California Government Code, which allows the City to adopt an
interim ordinance prohibiting land uses which may be in conflict with a
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contemplated general plan, specific plan, or zoning proposal that the City
Council, Planning Commission or the Community Development
Department is considering or studying or intends to study within a
reasonable time. The City Council hereby directs City Manager to
consider the recommendations made by the Citizen's Advisory Committee
on Marijuana and study impacts of unregulated commercial marijuana
activities, outdoor personal cultivation of marijuana, and
cannabis events and to return with a comprehensive ordinance that
addresses these issues.
SECTION 5. Moratorium Imposed.
In accordance with the authority granted to the City under Article XI,
Section 7 of the California Constitution and California Government Code
section 65858, from and after the date of this ordinance, a temporary
moratorium is hereby established and imposed and the following activities
are prohibited and no land use entitlements, building permits, business
licenses and any other applicable approval or decisions for commercial
marijuana activities, shall be granted for such activities:
(1) In the event that Measure O is held wholly or partially invalid, to
the extent Measure O is held invalid, any unregulated commercial
marijuana activity, which may include, but is not limited to cultivation,
manufacturing, processing, labeling, storing, distribution, delivery, sales
and retail, shall be prohibited in every zone in the City.
(2) Outdoor personal cultivation of marijuana including, but not
limited to, planting, cultivating, harvesting, drying, or processing, is
prohibited in every zone in the City. Indoor planting, cultivation,
harvesting, drying, or processing of marijuana plants for recreational use is
limited to within private residences, is limited to six (6) plants per private
residence, and must be entirely for the personal use of a resident of the
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residence who is twenty-one (21) years of age or older, as permitted in
Health and Safety Code sections 11362.1 and 11362.2. The City reserves
the right to enact regulations regarding the indoor cultivation of marijuana
at a later date.
(3) Cannabis events are prohibited in every zone of the City, including
those areas of the City that may operate as a state designated fair under
Sections 19418.1, 19418.2, or 19418.3 of the Business and Professions
W630
SECTION 6. Issuance of Land Use Entitlements in Violation of this Moratorium
Declared a Public Nuisance.
The issuance of any land use permits, building permits, licenses, or other
applicable entitlements for unregulated commercial marijuana activities,
outdoor personal cultivation of
marijuana, or cannabis events in the City as defined in this ordinance,
during the duration of this moratorium, or any extension thereof, is
declared to be a public nuisance. Violations of this ordinance may be
enforced by any applicable law or ordinances, including but not limited to
injunctions or administrative or criminal penalties, under the San
Bernardino Municipal Code.
SECTION 7. Authority; Urgency Statement.
This ordinance is an interim ordinance, adopted as an urgency measure
pursuant to Government Code section 65858 and is for the immediate and
long-term preservation of the public safety, health, and welfare. The
Mayor and City Council hereby find that there is a current and immediate
threat to the
public health,
safety and
welfare that warrants the
establishment
of a temporary
moratorium
on unregulated commercial
marijuana
activities, outdoor
personal cultivation
of recreational
marijuana,
and cannabis events
as described in this
ordinance. The
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following facts support this urgency measure: establishing and allowing
for unregulated commercial marijuana activities, outdoor personal
cultivation of marijuana, or cannabis events in the City, before the City
has an opportunity to study and review regulations, could lead to conflicts
amongst various land uses, conflicts with the City's long-term planning
goals, and a potential increase in nuisance and criminal activity within the
City, as well as create a deleterious effect on residents' quality of life.
Accordingly, the Mayor and City Council hereby find that the approval of
land use permits, building permits, business licenses, or any other
applicable approval or decision for unregulated commercial marijuana
activities, outdoor personal cultivation of marijuana, or cannabis events
would result in that threat to public health, safety, and welfare. These
findings are based upon all the facts recited in this ordinance, in the staff
report accompanying this ordinance, all matters and information presented
to this Mayor and City Council at its meeting on December 20, 2017.
SECTION 8. Effective Date and Duration.
This ordinance shall become effective immediately upon adoption if
adopted by at least four-fifths vote of the Mayor and City Council, and
shall remain in full force and effect for a period of forty-five (45) days
from the date of its adoption unless extended by the Mayor and City
Council in accordance with the provisions of California Government Code
section 65858.
SECTION 9. Severability.
If any provision of this ordinance or the application thereof to any person
or circumstance is held to be unconstitutional or otherwise invalid by a
court of competent jurisdiction, such invalidity shall not affect other
provisions or applications of this ordinance which can be implemented
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HI
without the invalid provision or application and to this end the provisions
of this ordinance are declared to be severable.
SECTION 10. California Environmental Quality Act.
The Mayor and City Council hereby find that this ordinance is not subject
to review under the California Environmental Quality Act (CEQA)
pursuant to CEQA Guidelines sections 15060, subdivision (c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15061, subdivision (b)(3) (there
is no possibility the activity in question may have a significant effect on
the environment). In addition to the foregoing general exemptions, the
City Council further finds that this ordinance is categorically exempt from
review under CEQA under the Class 8 Categorical Exemption (regulatory
activity to assure the protection of the environment), CEQA Guidelines
section 15308.
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AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, ESTABLISHING A
MORATORIUM ON COMMERCIAL MARIJUANA LAND USES AND
ACTIVITIES AND ON OUTDOOR PERSONAL CULTIVATION OF
RECREATIONAL MARIJUANA
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the
Mayor and City Council of the City of San Bernardino at a joint regular meeting thereof,
held on the 20th day of December 2017, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
MARQUEZ X
BARRIOS X
VALDIVIA X
SHORETT X(S)
NICKEL X
RICHARD X
MULVIHILL X(M)
Georgeann danna, CMV, City Clerk
The foregoing Ordinance is hereby approved this 20th day of December 2017.
J
✓ � -u.� '-alb
R. Carey Davis,r_ ayor
City of San Bernardino
Approved as to form:
Gary D. Saenz, City Attorney
G
By: 4`` `L