Ordinance 2016-01ORDINANCE NO. 2016 -01
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY
REPEALING GILROY CITY CODE SECTION 13.65 IN ITS ENTIRETY;
AMENDING GILROY CITY CODE SECTION 30.2.20 TO ADD NEW
DEFINITIONS PERTAINING TO THE PROHIBITION OF MARIJUANA
CULTIVATION, PROCESSING, DELIVERY AND DISPENSARY USES;
AND ADDING NEW SECTIONS TO ARTICLE XLV OF CHAPTER 30
PERTAINING TO THE PROHIBITION OF MARIJUANA CULTIVATION,
PROCESSING, DELIVERY AND DISPENSARY USES IN THE CITY OF
GILROY
WHEREAS, in 1996, the voters of the State of California approved Proposition 215
(codified as Health & Safety Code Section 11362.5 et seq. and entitled "The Compassionate Use
Act of 1996" referred to herein as the "CUA "); and
WHEREAS, the intent of the CUA was to enable seriously ill Californians to legally
possess, use, and cultivate marijuana for medical use under state law once a physician has
deemed the use beneficial to a patient's health; and
WHEREAS, in 2003, the California Legislature adopted SB 420, the Medical Marijuana
Program ( "MMP "), codified as Health & Safety Code Section 11362.7 et seq., which permits
qualified patients and their primary caregivers to associate collectively or cooperatively to
cultivate marijuana for medical purposes without being subject to criminal prosecution under the
California Penal Code; and
WHEREAS, neither the CUA nor the MMP require or impose an affirmative duty or
mandate upon a local government to allow, authorize, or sanction the establishment of facilities
that cultivate or process medical marijuana within its jurisdiction; and
WHEREAS, in May 2013, the California Supreme Court issued its decision in City of
Riverside v. Inland Empire Patients Health and Wellness Center, Inc., et al., holding that cities
have the authority to ban medical marijuana land uses; and
WHEREAS, under the Federal Controlled Substances Act, codified in 21 U.S.C. Section
801 et seq., the use, possession, and cultivation of marijuana are unlawful and subject to federal
prosecution without regard to a claimed medical need; and
WHEREAS, on October 9, 2015, Governor Jerry Brown signed the "Medical Marijuana
Regulation and Safety Act" ( "Act "), which is comprised of the state legislative bills known as
AB 243, AB 266, and SB 643, into law; and
WHEREAS, the Act becomes effective January 1, 2016 and contains provisions that
govern the cultivating, processing, transporting, testing, and distributing of medical cannabis to
qualified patients. The Act also contains new statutory provisions that:
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(1) Allow local governments to enact ordinances expressing their intent to prohibit the
cultivation of marijuana and their intent not to administer a conditional permit program pursuant
to Health & Safety Code section 11362.777 for the cultivation of marijuana (Health & Safety
Code § 11362.777(c)(4));
(2) Expressly provide that the Act does not supersede or limit local authority for local
law enforcement activity, enforcement of local ordinances, or enforcement of local permit or
licensing requirements regarding marijuana (Business & Professions Code § 19315(a));
(3) Expressly provide that the Act does not limit the authority or remedies of a local
government under any provision of law regarding marijuana, including but not limited to a local
government's right to make and enforce within its limits all police regulations not in conflict
with general laws (Business & Professions Code § 19316(c));
(4) Require a local government that wishes to prevent marijuana deliver activity, as
defined in Business & Professions Code section 19300.5(m) of the Act, from operating within
the local government's boundaries to enact an ordinance affirmatively banning such delivery
activity (Business & Professions Code § 19340(a)).
WHEREAS, several California cities have reported negative impacts of marijuana
cultivation, processing and distribution activities, including offensive odors, illegal sales and
distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire hazards,
and problems associated with mold, fungus, and pests; and
WHEREAS, in the case of multiple qualified patients who are in control of the same legal
parcel, or parcels, of property, or in the case of collective or cooperative cultivation, or in the
case of a caregiver growing for numerous patients, a very large number of plants could be
cultivated on the same legal parcel, or parcels, within the City of Gilroy ( "City "); and
WHEREAS, marijuana plants, as they begin to flower and for a period of two months or
more, produce a strong odor, offensive to many people, and detectable far beyond property
boundaries if grown outdoors; and
WHEREAS, the strong smell of marijuana creates an attractive nuisance, alerting persons
to the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery;
and
WHEREAS, the indoor cultivation of marijuana has potential adverse effects to the
structural integrity of the building, and the use of high wattage grow lights and excessive use of
electricity increases the risk of fire which presents a clear and present danger to the building and
its occupants; and
WHEREAS, the Attorney General's August 2008 Guidelines for the Security and Non -
Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other
concentration of marijuana in any location or premises without adequate security increases the
risk that nearby homes or businesses may be negatively impacted by nuisance activity such as
loitering or crime; and
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WHEREAS, based on the experiences of other cities, these negative effects on the public
health, safety, and welfare are likely to occur, and continue to occur, in the City due to the
establishment and operation of marijuana cultivation, processing and distribution activities; and
WHEREAS, prior to the effective date of this ordinance, the Gilroy City Code does not
expressly address the cultivation, processing delivery and distribution of medical marijuana, but
did prohibit medical marijuana dispensaries under Section 13.65; and
WHEREAS, the Planning Commission of the City of Gilroy held a public hearing on
December 7, 2015 to consider the request and review written materials and oral comments
related to the proposed Ordinance; and
WHEREAS, the City Council Planning of the City of Gilroy held a public hearing on
January 4, 2016 to consider the request and review written materials and oral comments related
to the proposed Ordinance; and
WHEREAS, the subject Ordinance is covered under Section 15061(b)(3) of the
California Environmental Quality Act (CEQA) Guidelines as an activity that can be seen with
certainty to have no possibility for causing a significant effect on the environment; and
NOW, THEREFORE, the City Council of the City of Gilroy hereby adopts Z 15 -10
repealing Gilroy City Code Chapter 13, Article VII, Section 13.65 entitled "Medical Marijuana
Dispensary as a Prohibited Use" in its entirety and adding the following sections to Chapter 30,
Articles II and XLV of the Gilroy City Code to read as follows:
SECTION I
The Gilroy City Code, Chapter 13, Article VII, Section 13.65 entitled "Medical Marijuana
Dispensary as a Prohibited Use" is hereby repealed in its entirety to be replaced by adding new
definitions in Gilroy City Code Chapter 30.2.20 and new Sections 30.45.30 through 30.45.60 to
the Gilroy City Code Chapter 30.45.
SECTION II
The Gilroy City Code, Chapter 30, Article II, Section 30.2.20 entitled "Definitions" is hereby
amended to add new definitions pertaining to marijuana cultivation, processing, delivery and
dispensaries to read as follows:
"Marijuana" means any or all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or
Cannabis ruderalis, whether growing or not; the seeds thereof; the resin or separated resin,
whether crude or purified, extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin, including
marijuana infused in foodstuff or any other ingestible or consumable product containing
marijuana. The term "marijuana" shall also include "medical marijuana" as such phrase is used
in the August 2008 Guidelines for the Security and Non - Diversion of Marijuana Grown for
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Medical Use, as may be amended from time to time, that was issued by the office of the Attorney
General for the state of California or subject to the provisions of the California Health and Safety
Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code
Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).
"Marijuana cultivation" means growing, planting, harvesting, drying, curing, grading, trimming,
or processing of marijuana, regardless of whether there is an intent to produce, distribute, or sell
the resulting product commercially.
"Marijuana processing" means any method used to prepare marijuana or its byproducts for
commercial retail and /or wholesale, including but not limited to: drying, cleaning, curing,
packaging, and extraction of active ingredients to create marijuana related products and
concentrates.
"Marijuana dispensary" or "Marijuana dispensaries" means any business, office, store, facility,
location, retail or wholesale component of any establishment, cooperative or collective that
delivers (as defined in Business & Professions Code section 19300.5(m) or any successor statute
thereto) whether mobile or otherwise, dispenses, distributes, exchanges, transmits, transports,
sells or provides marijuana to any person for any reason, including members of any medical
marijuana cooperative or collective consistent with the August 2008 Guidelines for the Security
and Non - Diversion of Marijuana Grown for Medical use, as may be amended from time to time,
that was issued by the office of the Attorney General for the State of California or subject to the
provisions of the California Health and Safety Code Section 11362.5 (Compassionate Use Act of
1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana
Program Act).
"Medical marijuana collective" or "cooperative or collective" means any group that is
collectively or cooperatively cultivating and distributing marijuana for medical purposes that is
organized in the manner set forth in the August 2008 Guidelines for the Security and Non -
Diversion of Marijuana Grown for Medical use, as may be amended from time to time, that was
issued by the office of the Attorney General for the state of California or subject to the
provisions of the California Health and Safety Code Section 11362.5 (Compassionate Use Act of
1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana
Program Act).
SECTION III
The Gilroy City Code, Chapter 30, Article XLV, entitled "General Regulations" is hereby
amended to add new Sections 30.45.30, 30.45.40, 30.45.50 and 30.45.60 pertaining to the
"Prohibition of Marijuana Cultivation, Processing, Delivery and Dispensary Uses" to read as
follows:
30.45.30 Legislative Findings and Statement of Purpose —
Prohibition of Marijuana Cultivation, Processing, Delivery and Dispensary Uses
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(a) The City Council finds that the prohibitions on marijuana cultivation, marijuana processing,
marijuana delivery, and marijuana dispensaries are necessary for the preservation and protection
of the public health, safety, and welfare for the City and its community. The City Council's
prohibition of such activities is within the authority conferred upon the City Council in its
Charter and state law.
(b) On October 9, 2015, the governor signed the "Medical Marijuana Regulation and Safety
Act" ( "Act ") into law. The Act becomes effective January 1, 2016 and contains new statutory
provisions that:
(1) Allow local governments to enact ordinances expressing their intent to prohibit the
cultivation of marijuana and their intent not to administer a conditional permit program pursuant
to Health & Safety Code section 11362.777 for the cultivation of marijuana (Health & Safety
Code § 11362.777(c)(4));
(2) Expressly provide that the Act does not supersede or limit local authority for local law
enforcement activity, enforcement of local ordinance, or enforcement of local permit or licensing
requirements regarding marijuana (Business & Professions Code § 19315(a));
(3) Expressly provide that the Act does not limit the authority or remedies of a local government
under any provision of law regarding marijuana, including but not limited to a local
government's right to make and enforce within its limits all police regulations not in conflict
with general laws (Business & Professions Code § 19316(c));
(4) Require a local government that wishes to prevent marijuana deliver activity, as defined in
Business & Professions Code section 19300.5(m) of the Act, from operating within the local
government's boundaries to enact an ordinance affirmatively banning such delivery activity
(Business & Professions Code § 19340(a)).
(c) The City Council finds that this chapter: (1) expresses its intent to prohibit the cultivation of
marijuana in the City and to not administer a conditional permit program pursuant to Health &
Safety Code section 11362.777 for the cultivation of marijuana in the City; (2) exercises its local
authority to enact and enforce local regulations and ordinances, including those regarding the
permitting, licensing, or other entitlement of the activities prohibited by this chapter; (3)
exercises its police power to enact and enforce regulations for the public benefit, safety, and
welfare of the City and its community; and (4) expressly prohibits the delivery of marijuana in
the City.
30.45.40 Prohibited Activities.
Marijuana cultivation, marijuana processing, marijuana delivery, and marijuana dispensaries
shall be prohibited activities in the City, except where the City is preempted by federal or state
law from enacting a prohibition on any such activity. No use permit, variance, building permit,
or any other entitlement, license, or permit, whether administrative or discretionary, shall be
approved or issued for the activities of marijuana cultivation, marijuana processing, marijuana
delivery, or the establishment or operation of a marijuana dispensary in the City, and no person
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shall otherwise establish or conduct such activities in the City, except where the City is
preempted by federal or state law from enacting a prohibition on any such activity for which the
use permit, variance, building permit, or any other entitlement, license, or permit is sought.
30.45.50 Public Nuisance.
Any violation of this chapter is hereby declared to be a public nuisance.
30.45.60 Violations.
Any violation of this chapter may be enforced through civil or administrative remedies or any
other remedy as provided for by the law.
SECTION IV
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason
held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Gilroy hereby declares that it would
have passed and adopted this Ordinance, and each section, subsection, sentence, clause or phrase
hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or
phrases may be declared invalid or unconstitutional.
SECTION V
This Ordinance shall be in full force and effect thirty (30) days after its passage and
adoption.
PASSED AND ADOPTED this 25th day of January 2016, by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
ATTEST:
Freels,
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AULMAN, BRACCO,
MUNOZ, TUCKER,
WOODWARD
NONE
NONE
HARNEY, LEROE-
VELASCO, and
ORDINANCE NO. 2016 -01
I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the
attached Ordinance No. 2016 -01 is an original ordinance, or true and correct copy of a City
ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council
held on the 25th day of January, 2016, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gilroy this 26h day of January, 2016.
City Clerk of the City of Gilroy
(Seal)