HomeMy WebLinkAboutR-10683 - Med Marijuana Reso REAFFIRMING THAT THE CITY’S PERMISSIVE ZONING CODE PROHIBITS MARIJUANA BUSINESSES, OPERATIONS AND USES, INCLUDING CULTIVATION OF MEDICAL MARIJUANA IN THE CITY, AND MAKING A FRESOLUTION NO. 10683 (2015 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, REAFFIRMING THAT THE CITY'S
PERMISSIVE ZONING CODE PROHIBITS MARIJUANA BUSINESSES,
OPERATIONS AND USES, INCLUDING CULTIVATION OF MEDICAL
MARIJUANA IN THE CITY, AND MAKING A FINDING THAT THE
RESOLUTION IS EXEMPT FROM ENVIRONMENTAL REVIEW
PURSUANT TO CEQA GUIDELINES SECTION 15061(B)(3)
WHEREAS, the City Council acknowledges that the Compassionate Use Act (CUA),
passed in 1996 by the voters of the State of California, provides a defense to criminal
prosecution for the cultivation, possession and use of marijuana for medical purposes and the
Medical Marijuana Program Act (MMPA) establishes a voluntary participation, State - authorized
medical marijuana identification card and registry database for verification of qualified patients
and their primary caregivers; and
WHEREAS, the City Council expressly affirms that this Resolution is not intended, and
shall not be construed, to interfere with any right, defense or immunity afforded to qualified
patients or their caregivers under those acts; and
WHEREAS, in October 2015, Governor Edmund G. Brown signed into law Assembly
Bill 266, Assembly Bill 243 and Senate Bill 643, collectively known as the Medical Marijuana
Regulation and Safety Act ( MMRSA), which together create an extensive statewide regulatory
and licensing system for the cultivation, manufacture, testing, dispensing, distribution and
transport of medical marijuana, effective January 1, 2016; and
WHEREAS, the MMRSA includes certain exemptions from state licensing requirements
for medical marijuana cultivation by individual qualified patients, and primary caregivers with
no more than five patients; and
WHEREAS, the City's current and intended ongoing regulatory practice regarding
cultivation by such qualified patients and caregivers is to direct enforcement resources only
toward those uses and activities that result in nuisance or adverse health and safety impacts to
other City residents or neighborhoods; and
WHEREAS, AB 266 contains most of the core provisions of the regulatory structure,
and authorizes the Department of Consumer Affairs, through a newly created Bureau of Medical
Marijuana Regulation, to license and control all medical marijuana businesses in the state. AB
266 includes local control provisions, such as a dual licensing structure requiring a state license
and a local license or permit, and provides criminal immunity for licensees; and
WHEREAS, SB 643 establishes criteria for licensing of medical marijuana businesses,
regulates physicians and recognizes local authority to levy taxes and fees; and
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Resolution No. 10683 (2015 Series) Page 2
WHEREAS, AB 243 establishes a regulatory and licensing structure for indoor and
outdoor cultivation of medical marijuana under the jurisdiction of the Department of Food and
Agriculture, and requires dual licensing by the state and the city for the cultivation of medical
marijuana within a city; and
WHEREAS, neither the CUA, the MMPA, nor the MMRSA preempt or otherwise
preclude the City's exercise of its local land use and zoning authority; and
WHEREAS, newly adopted Health and Safety Code Section 11362.77(c)(4), added by
AB 243, states that if a city does not have land use regulations or ordinances regulating or
prohibiting the cultivation of marijuana, either expressly or otherwise under principles of
permissive zoning, or chooses not to administer a conditional permit program pursuant to that
section, then as of March 1, 2016, the Department of Food and Agriculture will be the sole
licensing authority for medical marijuana cultivation applicants in that city; and
WHEREAS, San Luis Obispo Municipal Code Section Chapter 17.22, Use Regulations,
sets forth the uses allowed by zones in the City and, in Section 17.22.010 C, provides that the
regulations are intended to permit similar types of uses within each zone; that the Community
Development Director shall determine whether uses that are not listed are deemed allowed or
allowed subject to use permit approval in a certain zone; and that the interpretation procedure
shall not be used as a substitute for the amendment procedure as a means of adding new types of
uses to a zone; and
WHEREAS, marijuana uses, including the cultivation of medical marijuana, remain
illegal under federal law; and
WHEREAS the City has consistently asserted its permissive zoning regulations as a
basis to decline City permitting, licensing and entitlement applications for medical marijuana
businesses and operations; and
WHEREAS, on September 18, 2012, the City Council voted unanimously to approve its
response to the San Luis Obispo County Grand Jury report entitled "Out of Sight, Out of Mind -
Medical Marijuana in San Luis Obispo County "( "the 2012 Response "), wherein the City Council
formally affirmed the City's permissive zoning regulations, noted that neither brick and mortar
medical marijuana collectives, nor collective delivery services were listed allowed uses in the
Municipal Code and stated that, since such uses are not specifically allowed, "medical marijuana
uses including medical marijuana collective delivery services are prohibited;" and
WHEREAS, marijuana businesses, operations or land uses, including but not limited to,
medical marijuana cultivation, manufacture, storage, distribution, sale, dispensing, transport and
delivery, are not expressly or conditionally allowed uses under the City's permissive zoning
regulations and, therefore, such uses are prohibited within the City under its permissive zoning
regulations; and
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Resolution No. 10683 (2015 Series)
Page 3
WHEREAS, the City's zoning regulations do not establish the local consent required as
a condition of the issuance of any state license for the cultivation of medical marijuana under the
Medical Marijuana Regulation and Safety Act, and related statutory or regulatory licensing
provisions as adopted in October 2015 or as they may subsequently be amended.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo that for the reasons set forth above and herein:
1. The City Council reaffirms and declares that the City's zoning regulations, as set
forth in Title 17 of the San Luis Obispo Municipal Code, are adopted and operate
under principles of permissive zoning.
2. The City Council expressly declares that, under the City's permissive zoning code,
any use that is not listed as an allowed or conditionally allowed use under the zoning
regulations is prohibited. Marijuana uses, including but not limited to the cultivation
of medical marijuana, are not listed as allowed or conditionally allowed within the
City, are declared not to be similar to any listed allowed use and, therefore, have
never been and are not currently allowed in the City.
3. The City Council further declares and directs that nothing in the City's permissive
zoning regulations or in this Resolution shall be interpreted to authorize or allow the
issuance of any City license, entitlement or permit for, or to otherwise make legal or
allow, any use or activity that is prohibited by local, state or federal law or to allow
any use or activity that would otherwise constitute a nuisance under the laws of the
City.
4. The City Council directs the State of California that no state license for the cultivation
of marijuana, including medical marijuana, within the City of San Luis Obispo should
be issued because such uses are not allowed under the City's zoning regulations.
5. The reaffirmation and confirmation of existing law does not make any change in the
current or historic policy or practice of the City, and the whole of such action is not
an activity which may cause direct or reasonably foreseeable indirect physical change
in the environment under Public Resources Code Section 21065 or California
Environmental Quality Act ( "CEQA ") Guidelines Section 15378(a) and, therefore, is
exempt from, and not a project subject to, environmental review.
6. Even if the adoption of this resolution reaffirming and confirming existing law are
determined to constitute approval of a project under CEQA, and even if the project is
not subject to any statutory or categorical exemptions, as a matter of common sense,
it can be seen with certainty that there is no possibility that the activity in question,
the adoption of this resolution reaffirming and confirming existing law, may have a
significant effect on the environment under CEQA guidelines section 15061(b)(3).
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Resolution No. 10683 (2015 Series)
Page 4
Upon motion of Council Member Ashbaugh, seconded by Council Member Christianson,
and on the following roll call vote:
AYES: Council Members Ashbaugh, Christianson, and Rivoire,
Vice Mayor Carpenter and Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 15th day of December, 2015.
Mayor an arx
ATTEST:
Jon
City Clerk
APPROVED AS TO FORM:
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, this day of
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