Cotati City
CA

Ordinance
880

AN INTERIM ORDINANCE ADOPTED AS AN URGENCY MEASURE OF THE CITY OF COTATI PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 65858 FOR A PERIOD OF FORTY-FIVE (45) DAYS FOR A TEMPORARY MORATORIUM ON THE COMMERCIAL MARIJUANA CULTIVATION, MANUFACTURE, LABORATORY TESTING, RETAIL, DISTRIBUTION, AND ESTABLISHMENT OF MICROBUSINESSES

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Department:City ManagerSponsors:
Category:Community Safety (Vision for Cotati)Functions:Legislation

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WHEREAS, in 1996 the voters of California approved Proposition 215, codified as California Health and Safety Code Section 11362.5 and entitled “The Compassionate Use Act of 1996”; and 

 

WHEREAS, the intent of Proposition 215 was to enable persons who are in need of medical marijuana for specified medical purposes to obtain medical marijuana, and use it under limited, specified circumstances without fear of criminal prosecution under State law; and

 

WHEREAS, in 2003, the State Legislature enacted SB 420, codified as California Health and Safety Code Section 11362.7 et seq. and entitled the “Medical Marijuana Program Act” (“MMPA”) to clarify the scope of The Compassionate Use Act of 1996; and

 

WHEREAS, effective January 1, 2016, the Medical Marijuana Regulation and Safety Act (“MMRSA”) became effective under which an extensive state regulatory scheme was established providing for the monitoring, inspecting and licensing of commercial medical marijuana businesses.  The MMRSA created a dual-licensing system under which medical marijuana businesses have to obtain both state and local licenses in order to conduct such businesses.  However, the MMRSA explicitly acknowledged that cities and counties retain the right to not only regulate such activities, but to ban them entirely.  The MMRSA also acknowledged that permissive zoning schemes can implicitly prohibit such activities, including the indoor and outdoor cultivation of medical marijuana when those zoning regulations do not expressly list such activities as permitted or conditionally permitted uses; and

 

WHEREAS, on January 26, 2016, the City Council adopted Resolution No. 2016-4, which confirmed that the City of Cotati Land Use Code prohibited and prohibits the cultivation of marijuana in all zoning districts; and

 

WHEREAS, on November 8, 2016, the voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalizes the recreational, nonmedical use of marijuana in California for individuals 21 years of age and older; and

 

WHEREAS, Proposition 64 authorizes the personal cultivation of up to six marijuana plants within a private residence or upon the “grounds” of that private residence for nonmedical purposes; and

 

WHEREAS, in June 2017 Governor Brown signed Senate Bill 94, merging California’s medical marijuana and adult recreational marijuana laws into a single regulatory system, known as the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”), which took effect immediately; and

 

WHEREAS, AB 133 was introduced in the State legislature as one of several bills which attempt to clear up ambiguities and provide clarity for establishment of the state licensing process. The legislation was approved by the Governor on September 16, 2017 and became effective immediately. Among other things, the bill removes the condition of MAUCRSA that licensed premises be separate and distinct. In addition, it removes the condition that patrons of adult use retailers be 21 years of age or older. The result of these two changes mean that a retailer may serve both adult use and medical customers from the same physical location, so long as the sales are tracked separately, patrons are at least 18 years of age and under 21 customers hold the necessary doctor recommendation and government-issued identification card; and

 

WHEREAS, pursuant to MAUCRSA, state licenses for both medical and adult use cannabis businesses will be available in January 2018; and

 

WHEREAS, under MAUCRSA cities retain full land use authority as to cannabis businesses, and may allow, prohibit and/or regulate them according to local needs, and the state is prohibited from issuing a cannabis license that would violate any local ordinance; and

 

WHEREAS, Article XI, Section 7 of the California Constitution provides that a city may make and enforce within its limits all local police, sanitary and other ordinances and regulations not in conflict with general laws; and

 

WHEREAS, California Government Code Section 65858 authorizes a city to adopt as an urgency measure an interim ordinance to protect the public safety, health, and welfare; and

 

WHEREAS, with the passage of Proposition 64 and MAUCRSA, it became more likely than not that the number of individuals who desired to engage in Commercial Cannabis Operations would be significant.  It was further more likely than not that substantial numbers of persons interested in engaging in such activities would commence doing so immediately, unless and until local regulations and/or prohibitions (on such activities ) were enacted which controlled such activities; and

 

WHEREAS, unlicensed Commercial Cannabis Operations in other cities have resulted in calls for service to their police departments, including calls for robberies and thefts, and an increase in criminal activity, and it is reasonable to assume that unless the City imposes reasonable controls, similar, if not greater, numbers of such incidents pertaining to unlicensed Commercial Cannabis Operations would occur in the City of Cotati. Similar incidents involving complaints resulting in criminal investigations and the discovery of unlicensed Commercial Cannabis Operations have occurred in the City of Cotati.  With the passage of Proposition 64 and MAUCRSA, absent the restrictions imposed by this Ordinance, there is a current and immediate threat to the public health, safety and welfare of substantial numbers of persons engaging in Commercial Cannabis Operations and creating the complaints and enforcement problems already experienced in other communities and in the City of Cotati, and exposing citizens to robberies, potential violence, vandalism of property and theft throughout the City; and

 

WHEREAS, based upon the experience of the State of Colorado and other states in which nonmedical marijuana has been legalized, the passage of Proposition 64 and MAUCRSA is  likely to have significant impacts on law enforcement, the medical resources of the State and the regulatory function of local agencies, including the City of Cotati; and

 

WHEREAS, the short period between the Legislature’s passage of MAUCRSA, and the implementation of a complex, state-wide licensing system for the commercial production, delivery, marketing, testing and selling of marijuana impedes and prevents the City from adequately studying its impacts and the most appropriate manner in which to comprehensively address the issues implicated by the Proposition and its implementation.  The City needs time to further study Proposition 64 and MAUCRSA and whether and to what extent the City’s General Plan, development code and other regulations need to be or should be modified to accommodate and/or address the impacts of Proposition 64 and MAUCRSA on the City and its citizens.  If the City Council permits Commercial Cannabis Operations while it studies the means and methods to address such activities, those persons engaged in such activities could garner rights to continue such activities as grandfathered uses, unaffected by later-enacted legislation by the City Council.  Such an outcome presents an immediate and current threat to the ability of the City Council to properly plan and regulate such activities and would undermine the purpose of any such plan and regulation as to those persons who would be able to commence the Commercial Cannabis Operations before such plans and/or regulations were put into place; and

 

WHEREAS, in order to determine the most appropriate and publicly beneficial manner in which to address the issues associated with Commercial Cannabis Operations,  which are implicated by Proposition 64 and MAUCRSA, and the effect of such activities should the City determine to permit such uses within the City’s corporate boundaries, and in order to protect residents and businesses from the potential harmful effects of  Commercial Cannabis Operations, the City needs time to study whether to permanently permit and regulate, or prohibit, such uses, including, without limitation, to study potential regulations to ensure that minors cannot get access to marijuana plants, and, if the Council determines to permit such uses, to examine the regulations relating thereto and to permit the public adequate time to review and comment upon the issue in accordance with state law in tandem with the City’s consideration of any such regulations or prohibition; and

 

WHEREAS, it would be destructive of and would render ineffective any proposed policies, restrictions, ordinances and regulations if, during the period they are being studied and considered by the City, parties could seek to avoid their operation and effect and to establish such uses, which said operations and activities would defeat, in whole or in part, the objectives of such policies, restrictions, ordinances and regulations; and

 

WHEREAS, absent the adoption of an interim urgency ordinance, it is likely that the establishment and operation of Commercial Cannabis Operations within the City, without appropriate controls in place to regulate these activities and their impacts on the community, would result in harmful effects to the businesses, property owners and residents of the City; and

 

WHEREAS, because of the facts set forth above, there exists a current and immediate threat that persons will commence Commercial Cannabis Operations, that such commencement poses a current and immediate threat to the health, safety and welfare of the citizens of the City, and having such uses commence operations and operate in the City before the City has an opportunity to consider, study and/or adopt regulations (or prohibitions) governing the said Commercial Cannabis Operations would render such regulations ineffective and destroy the purpose of engaging in such an analysis and process in the first place, thus constituting a current and immediate threat to the health, safety and welfare of the citizens of the City; and

 

WHEREAS, the City has previously adopted moratoria regarding cannabis cultivation in the City; and

 

WHEREAS, Cotati Municipal Code Chapter 8.24 currently allows for the operation of one medical marijuana dispensary, and an operator has all required approvals and licenses to stock immature plants, to receive and distribute cannabis and cannabis products, as well as package and sell cannabis and cannabis products; and

 

WHEREAS, the City is presently developing a comprehensive land use ordinance that will govern personal and commercial, adult use and medicinal cannabis uses in the City, which ordinance will be reviewed and considered by the City’s Planning Commission and the City Council, with opportunities for public testimony at each hearing; and

 

WHEREAS, on November 28, 2017, the City extended interim urgency ordinances banning outdoor cultivation, and restricting indoor cultivation of non-medical marijuana; and

 

WHEREAS, this urgency ordinance would be repealed concurrent with the effective date of the comprehensive cannabis land use ordinance; and

 

WHEREAS, pursuant to Section 15001 of the California Environmental Quality Act (“CEQA”) Guidelines, this ordinance is exempt from CEQA based on the following findings:

 

(1)   This ordinance is not a project within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential for resulting in physical change in the environment, directly or ultimately. 

 

(2)   This ordinance is categorically exempt from CEQA under Section 15308 of the CEQA Guidelines as a regulatory action taken by the City pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the consideration, evaluation and possible adoption of contemplated local legislation, regulation and policies, and is categorically exempt pursuant to CEQA Guidelines Section 15306 regarding collection of information as part of a study leading to an action not yet approved, adopted or funded.

 

(3)   This ordinance is not subject to CEQA under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment.  For the reasons set forth in subparagraphs (1) and (2), above, and pursuant to CEQA Guidelines Section 15061, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment.

 

NOW THEREFORE, the City Council of the City of Cotati does ordain as follows:

 

Section 1.              Recitals Made Findings. 

 

The above recitals are hereby declared to be true and correct and represent the findings of the City Council of the City of Cotati, made in the exercise of its independent judgment.  Said findings are incorporated by this reference.

 

Section 2.              Moratorium Imposed.

 

A.              Scope.

 

In accordance with the authority granted the City of Cotati under Article XI, Section 7 of the California Constitution and California Government Code Section 65858, from and after the effective date of this ordinance, no permit, variance, building permit, approval or any other applicable license or entitlement for use, including, but not limited to any land use entitlement, or the issuance of a business license, shall be approved or issued for any Commercial Cannabis Operations.  Commercial Cannabis Operations  are hereby expressly prohibited in all areas and in all zoning districts of the City during the period of time which this ordinance  is in effect. 

This moratorium does not affect Commercial Cannabis Operations that have already received a permit from the City and are in compliance with existing municipal code requirements. The City’s existing dispensary is licensed for medical cannabis only. However, due to the anticipated confusion among adults desiring to purchase adult use cannabis beginning January 2, 2018, this ordinance allows the existing licensee to continue operating as previously permitted by the City and, because AB 133 removed the requirement for separate and distinct premises for adult and medical retailers, to allow retail sales of adult use cannabis for a period of up to 120 days, provided the applicable state regulations are followed, including age restrictions and separate tracking of medical and adult use sales. Existing licensee shall have 120 days from the effective date of the comprehensive cannabis land use ordinance to apply, obtain and begin operations consistent with new state and local licensing requirements, including both “A” Adult Use and “M” medicinal retail licenses.

 

B.              Definitions.

 

1.      “Commercial Cannabis Operations” means the cultivation of marijuana for sale or distribution, including in a cottage and/or specialty nursery, as well as the manufacture of marijuana, laboratory testing of marijuana, retail sale of marijuana, packaging, distribution of marijuana and establishment of microbusinesses for the sale of marijuana.

 

2.      “Cannabis” or “Marijuana” means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the 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. “Cannabis” also means the separated resin, whether crude or purified, obtained from cannabis. “Cannabis” does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this division, “cannabis” does not mean “industrial hemp” as defined by Section 11018.5 of the Health and Safety Code.

 

3.      “Cannabis product” means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients.

 

4.      “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.

 

5.      “Distribution” means the procurement, sale, and transport of Cannabis and Cannabis products.

 

6.      “Nursery” means a cultivation operation where the licensee produces only clones, immature plants, seeds, and other agricultural products used specifically for the propagation and cultivation of cannabis.

 

7.      “Manufacture” means to compound, blend, extract, infuse, or otherwise make or prepare a Cannabis product.

 

8.      “Retail sale” includes any transaction whereby, for any consideration, title to Cannabis or Cannabis products is transferred from one person to another, and includes the delivery of Cannabis or Cannabis products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of cannabis or cannabis products by a licensee to the licensee from whom the cannabis or cannabis product was purchased.

 

9.      “Specialty cottage” means a cultivation operation using a combination of natural and supplemental artificial lighting at a maximum threshold to be determined by the licensing authority, of 2,500 square feet or less of total canopy size for mixed-light cultivation, up to 25 mature plants for outdoor cultivation, or 500 square feet or less of total canopy size for indoor cultivation, on one premises.

 

10.  “Testing laboratory” means a laboratory, facility, or entity in the state that offers or performs tests of cannabis or cannabis products.

 

C.              Statutory Findings and Purpose.

 

This ordinance is declared to be an interim ordinance as defined under California Government Code Section 65858.  This ordinance prohibiting Commercial Cannabis Operations is deemed necessary to protect the public safety, health, and welfare based on the findings of the City Council of the City of Cotati as set forth in the recitals, incorporated by Section 1 of this ordinance.

 

Section 3.              Establishment, Maintenance or Operation of Commercial Cannabis Operations Declared Public Nuisance.  

 

It is unlawful and a public nuisance for any person owning, leasing, occupying, or having possession of any legal parcel or premises within any zoning district in the City to cause or allow such parcel or premises to be used for Commercial Cannabis Operations. Violations of this ordinance may be enforced by any applicable laws or ordinances, including but not limited to injunctions, or administrative penalties under the City of Cotati Code.

 

Section 4.              Severability.

 

If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect.  To this end, provisions of this ordinance are severable. The City Council of the City of Cotati hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.

Section 5.              Effective Date and Duration.

 

This ordinance shall become effective immediately upon its adoption by at least a four-fifths vote of the City Council, and shall be in effect for forty-five (45) days from its adoption.

 

Section 6.              Posting. 

 

The City Clerk shall cause this ordinance to be published and/or posted within 15 days after its adoption in accordance with California Government Code Section 36933.

 

Meeting History

Dec 12, 2017 7:00 PM Audio/Video Cotati City Council Regular Meeting
RESULT:ADOPTED [UNANIMOUS]
MOVER:Mark Landman, Vice Mayor
SECONDER:Wendy Skillman, Councilmember
AYES:Wendy Skillman, John C. Moore, John A. Dell'Osso, Susan Harvey, Mark Landman

Discussion