Resolution No. 2015-31 | Zoning Amendment (Z 15-10) to Sections 13.65 and 16.10 of the Gilroy City Code to Prohibit Marijuana | Adopted 12/03/2015l; 4001til00 011104161ftiSFm
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF GILROY
RECOMMENDING CITY COUNCIL ADOPTION OF AMDENDMENTS TO SECTIONS
13.65 AND 16.10 OF THE GILROY CITY CODE (Z 15-10) TO PROHIBIT MARIJUANA
CULTIVATION, MARIJUANA PROCESSING, MARIJUANA DELIVERY, AND
MARIJUANA DISPENSARIES IN THE CITY, FILED BY THE CITY OF GILROY, 7351
ROSANNA STREET, GILROY, CA 95020.
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:
(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, 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, 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, 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
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 code amendments; and
WHEREAS, the subject ordinance amendment 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, BE IT RESOLVED that the Planning Commission of the
City of Gilroy hereby recommends to the City Council adoption of Z 15-10 deleting from
Chapter 13 of the Gilroy City Code (GCC), Article II "Medical Marijuana Dispensary as a
Prohibited Use" and section 13.65 in its entirety and adding the following sections to
Chapter 16 of the GCC to read as follows:
16.10 Medical Marijuana.
16.10.10 Legislative Findings and Statement of Purpose.
(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 of 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.
16.10.20 Definitions.
For the purposes of this chapter, the following definitions shall apply:
(a) "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 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).
(b) "Marijuana cultivation" means growing, planting, harvesting, drying, curing, grading,
trimming, or processing or marijuana.
(c) "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.
(d) "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).
(e) "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).
16.10.30 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 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.
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Any violation of this chapter is hereby declared to be a public nuisance.
16.10.50 Violations.
Any violation of this chapter shall, at the discretion of the City, be punishable as
provided in Chapter 1.7 or Chapter 6A of this Code, or any successor section thereto.
16.10.60 Severability.
If any section, subsection, sentence or clause of this chapter is, for any reason, held to
be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not
affect the validity of the remaining portions of this chapter.
PASSED AND ADOPTED this 3`d day of December 2015 by the following roll call vote:
AYES: COMMISSIONERS FISCHER, ASHFORD, KLOECKER, LAI, SANFORD,
RODRIGUEZ, GULLEN
NOES: NONE
ABSENT: NONE
Susan L. Martin, Secretary
APPROVED:
Richard Gullen, Chairperson