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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: 4815- 2878 -80120 ORDINANCE NO. 2016 -01 JH104706089 (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 4815- 2878 -80120 ORDINANCE NO. 2016 -01 JH104706089 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 4815- 2878 -80120 ORDINANCE NO. 2016 -01 X04706089 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 4815- 2878 -80120 ORDINANCE NO. 2016 -01 JH104706089 (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 4815- 2878 -80120 ORDINANCE NO. 2016 -01 JH104706089 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, 4815 - 2878 -80120 JH104706089 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)