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Ordinance 2017-061 ORDINANCE NO. 2017-06 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY AMENDING CHAPTER 30, SECTION 30.2.20, ENTITLED "DEFINITIONS ", CHAPTER 30, SECTION 30.45.30, ENTITLED "LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE— PROHIBITION OF MARIJUANA CULTIVATION, PROCESSING, DELIVERY AND DISPENSARY USES" AND CHAPTER 30, SECTION 30.45.40, ENTITLED "PROHIBITED ACTIVITIES" AND ADDING CHAPTER 30, SECTION 30.45.45, ENTITLED "INDOOR CULTIVATION FOR PERSONAL USE" OF THE GILROY CITY CODE WHEREAS, the Control, Regulate and Tax Adult Use of Marijuana Act ( "the AUMA ") was approved by California voters on November 8, 2016; and WHEREAS, the AUMA legalizes under state law certain possession, use, and cultivation of non - medical marijuana for those who are 21 years of age or older and authorizes a comprehensive state system to regulate commercial marijuana activity; and WHEREAS, under the AUMA, cities may adopt and enforce local ordinances, including zoning and land use requirements, to regulate marijuana businesses or to completely prohibit the establishment or operation of such businesses within the City's jurisdiction, and the state will not approve a state license for a business that violates local ordinances; and WHEREAS, effective January 1, 2016, 3 bills (AB 266, AB 243, and SB 643), collectively known as the Medical Cannabis Regulation and Safety Act ( "MCRSA "), govern cultivation, processing, transporting, testing, and distribution of medical marijuana to qualified patients; and WHEREAS, under the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., the use, possession, and cultivation of marijuana for both medical and recreational uses are currently unlawful and subject to federal prosecution; and WHEREAS, while marijuana cultivation and all commercial medical marijuana uses are prohibited under the City's current zoning regulations, the Gilroy City Code does not currently expressly regulate the sale, cultivation and delivery of non - medical marijuana within its jurisdiction; and MBRA 400-1292-11700 ORDINANCE NO. 2017 -06 MBRANSO SON104706083 2 WHEREAS, current City regulations prohibit cultivation for personal use of marijuana in the City of Gilroy; and WHEREAS, marijuana laws do not confer a land use right and the MCRSA requires the city to prohibit cultivation uses, either expressly or otherwise under the principles of permissive zoning, or the State will become the licensing authority. The MCRSA also requires delivery services to be expressly prohibited by local ordinance, if the City desires to prohibit delivery. Similarly, the AUMA gives cities explicit authority to adopt and enforce local ordinances, including zoning and land use requirements, to regulate marijuana businesses or to completely prohibit the establishment or operation of such businesses within the city's jurisdiction. No State license will be approved for a business that violates local ordinances; and WHEREAS, the City Council desires to update the marijuana regulations in the Gilroy City Code to maintain the City's existing prohibition on commercial marijuana activities, and expressly make clear, in light of passage of the AUMA, that all such uses (whether medical or recreational) continue to be prohibited in all zones throughout the City, and to preserve local control over such uses, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.2.20, "Definitions" is hereby amended to add the following definitions: "Commercial marijuana activity" has the same meaning as "commercial cannabis activity" as provided in California Business & Professions Code § 26001(k) as may be amended, and means and includes cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of marijuana or marijuana products. "Commercial marijuana activity" also includes the activities of any business or nonprofit licensees by the state or other government entity under chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code. "Marijuana delivery" has the same meaning as "Delivery" as provided in California Business & Professions Code § 26001(p) as may be amended, and includes the commercial transfer of marijuana or marijuana products to a customer. Marijuana delivery also includes the use by a retailer of any technology platform, whether owned or controlled by the retailer or independently licensed, that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana products. MBRMSO1170v1 ORDINANCE NO.2017 -06 MBRANSOM04706083 3 SECTION II Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.2.20, "Definitions" is hereby amended to modify the definition of "marijuana dispensary" or "marijuana dispensaries" to read as follows: "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 delivery is defined in Business and Professions Code Section 26001(p) 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), or otherwise engages in any commercial marijuana activity. SECTION III Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.45.30, "Legislative findings and statement of purpose— Prohibition of marijuana cultivation, processing, delivery and dispensary uses." is hereby amended to read as follows: 30.45.30 Legislative findings and statement of purpose — Prohibition of marijuana cultivation, processing, delivery and dispensary uses. (a) The city council finds that the prohibitions on marijuana cultivation (except as otherwise permitted herein), 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) Effective January 1, 2016, three bills (AB 266, AB 243, and SB 643), collectively known as the Medical Cannabis Regulation and Safety Act ( "MCRSA "), govern cultivation, processing, transporting, testing, and distribution of medical marijuana to qualified patients, and contain 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 for the cultivation of marijuana; MBRMSONN �i ORDINANCE NO. 2017 -06 MBRANSON104706083 4 (2) Expressly provide that the MCRSA 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; (3) Expressly provide that the MCRSA 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; (4) Require a local government that wishes to prevent marijuana delivery activity from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity. (c) On November 8, 2016, the California voters passed Proposition 64 (referred to as "The Adult Use of Marijuana Act" ( "AUMA ")). Effective November 9, 2016, the AUMA legalized use and possession of nonmedical marijuana by adults, and directs the creation of a state regulatory system for the sale, cultivation and processing of marijuana and marijuana products. Under the AUMA, cities may adopt and enforce local ordinances, including zoning and land use requirements, to regulate marijuana businesses or to completely prohibit the establishment or operation of such businesses within the City's jurisdiction. The state will not approve a state license for a business that violates local ordinances. (d) The city council finds that this chapter: (1) expresses its intent to prohibit the cultivation (except as otherwise permitted herein), delivery, and distribution of marijuana in the city and to not administer a permit program 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. SECTION IV Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.45.40, "Prohibited Activities." is hereby amended to read as follows: 30.45.40 Prohibited activities. (a) Except as otherwise permitted herein, marijuana cultivation, marijuana processing, marijuana delivery, and marijuana dispensaries are prohibited activities in the city, except 40"12 NID470 ORDINANCE NO.2017 -06 MBRANSON104706083 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 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. (b) Commercial marijuana activities of all types are expressly prohibited in all zones and all specific plan areas in the City of Gilroy. No person shall establish, operate, conduct or allow a commercial marijuana activity anywhere within the City. This subsection is meant to prohibit all activities for which a state license is required pursuant to the AUMA or the MCRSA, and the City will not issue any permit, license, or other entitlement for any activity for which a state license is required under the AUMA or the MCRSA. SECTION V Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.45.45, "Indoor Cultivation for Personal Use." is hereby added as follows: 30.45.45 Indoor Cultivation for Personal Use. Indoor cultivation of six (6) or fewer live marijuana plants is permitted within a single private residence or inside an accessory structure located on the grounds of a private residence, only to the extent that it is in compliance with the limits and requirements established under California Health and Safety Code Sections 11362.1, 11362.2, 11362.3, 11362.4 and 11362.45 and any other applicable state laws. Cultivation outdoors upon the grounds of a private residence is prohibited in accordance with California Health and Safety Code Section 11362.2(b)(3). SECTION VI If any section, subsection, subdivision, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional or otherwise void or invalid by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional or otherwise void or invalid. MBRA S »7o�� ORDINANCE NO. 2017 -06 MBRANSON104706083 6 SECTION VII This ordinance, pursuant to Gilroy City Charter, Article VI, Section 602, is hereby declared by the City Council to be necessary as an emergency measure and shall take effect immediately and be in full force and effect after its adoption and approval because the City Council has found that the Federal Controlled Substances Act makes unlawful and subject to federal prosecution the use, possession, and cultivation of marijuana; that several California cities and counties have experienced offensive and serious adverse impacts associated with commercial marijuana activities; that commercial marijuana activities increase risks of criminal activity, degrade the natural environment, and pose fire hazards; that the AUMA and the MCRSA do not create limitations on local land use authority to regulate commercial marijuana activities; that an ordinance prohibiting all commercial marijuana activities is necessary and appropriate to maintain and protect the public health, safety and welfare of the citizens of Gilroy; and that in order to ensure the City of Gilroy maintain local decision making authority to prohibit and not license any commercial marijuana activities in the City that such an ordinance prohibiting all commercial marijuana activities be effective prior to January 1, 2018. PASSED AND ADOPTED this 20th day of November, 2017 by the following roll call vote: AYES: COUNCILMEMBERS: BRACCO, HARNEY, KLOECKER, LEROE- MUNOZ, TOVAR, TUCKER and VELASCO NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE Velasco, Mayor MBRM n-1170i1 ORDINANCE NO.2017 -06 MBRANSON104706083 I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Emergency Ordinance No. 2017 -06 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 20m day of November, 2017, 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 20'' day of November, 2017. Shawna Freels, MMC City Clerk of the City of Gilroy (Seal)