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HomeMy WebLinkAboutMC-14521 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19' 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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