HomeMy WebLinkAboutStaff Report 7421City of Palo Alto (ID # 7421)
City Council Staff Report
Report Type: Action Items Meeting Date: 10/24/2016
City of Palo Alto Page 1
Summary Title: Personal Cultivation of Marijuana
Title: Adoption of an Ordinance of the Council of the City of Palo Alto Adding
Chapter 9.17 (Personal Cultivation of Marijuana) to Title 9 (Public Peace,
Morals and Safety) of the Palo Alto Municipal Code to Prohibit Outdoor
Cultivation of Marijuana and Informational Update on Proposition 64 and
Finding the Amendment Exempt from Review Under the California
Environmental Quality Act (CEQA) Pursuant to State CEQA Guidelines Section
15061(b)(3)
From: City Manager
Lead Department: City Attorney
Recommendation
Staff recommends the Council consider whether to adopt the attached ordinance (Attachment
A) adding Chapter 9.17 (Personal Cultivation of Marijuana) to Title 9 (Public Peace, Morals and
Safety) of the Palo Alto Municipal Code to prohibit outdoor marijuana cultivation in Palo Alto,
and finding the amendment exempt from review under the California Environmental Quality
Act. This action is consistent with prior Council policy.
Executive Summary
The proposed ordinance is consistent with the City’s existing land use policy adopted on June 9,
1997, as an uncodified urgency Ordinance No. 4422, prohibiting the establishment and
operation of medical marijuana dispensaries under the City’s zoning ordinance (See Attachment
B to Agenda Item 11). The proposed ordinance would expressly prohibit outdoor marijuana
cultivation in Palo Alto effective December 8, 2016. The proposed ordinance is offered as an
alternative to the proposed emergency ordinance that is also on the Council’s agenda as Item
11, and is substantively identical to it. In contrast to the proposed emergency ordinance (which
requires a supermajority of 8 Council votes to pass and would be effective immediately), the
regular ordinance attached hereto requires a simple majority to pass and becomes effective 30
days after a second reading.
Except for the procedural differences between an emergency and traditional ordinance, the
balance of this staff report is identical to the staff report for Agenda Item 11.
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City of Palo Alto Page 2
Proposition 64 (See Attachment C to Agenda Item 11), titled the Control, Regulate, and Tax
Adult Use of Marijuana (“AUMA”), is before California voters for approval on November 8,
2016. If approved, the AUMA will authorize nonmedical use of marijuana by individuals age 21
and older, and create a state licensing and regulatory system for commercial cultivation,
testing, manufacture and distribution of nonmedical marijuana and marijuana products.
Under the AUMA, cities will retain the ability to regulate, and in most cases ban, activities
legalized by the AUMA. Commercial activities will not be authorized until state licenses are
issued. State licenses will likely not be issued until January 2018, giving cities ample time to
study potential effects and enact any appropriate local regulations.
Personal cultivation of marijuana, however, would become immediately lawful upon passage of
the AUMA. While cities will retain the ability to regulate cultivation any time after adoption of
the AUMA, cities that are concerned about the potential effects of personal cultivation may
wish to ban certain activities, particularly outdoor cultivation, as soon as possible if the AUMA is
approved by voters, pending further study and potential amendment of regulations at a later
date.
Background
On November 8, 2016 the AUMA will come before voters, and, if passed, will legalize the use,
sale, and consumption of nonmedical marijuana by persons 21 years of age and older.
Upon its passage, the AUMA will make it legal for adults to: (1) smoke or ingest marijuana or
marijuana products; (2) possess, process, transport, purchase, obtain, or give away to persons
21 years of age or older, without any compensation, 28.5 grams of marijuana, or 8 grams of
concentrated marijuana, including as contained in marijuana products; and (3) possess, plant,
cultivate, harvest, dry or process up to six living marijuana plants for personal use.
Where previous legislation related to medical marijuana created a dual state and local licensing
scheme, the AUMA gives the state sole responsibility for regulating nonmedical marijuana
businesses. The state will have until January 1, 2018 to begin issuing licenses and permits to
those businesses recognized by the AUMA. Even so, a state license cannot be issued to an
applicant whose operations would violate the provisions of any local ordinance or regulation. It
will be the state’s onus to ensure an applicant is compliant with local law.
Local governments retain the authority regulate personal cultivation of nonmedical marijuana.
The AUMA provides that local governments can reasonably regulate, but cannot ban personal
indoor cultivation of up to six living marijuana plants within the person’s private residence. In
contrast, local governments are allowed to regulate or ban personal outdoor cultivation
operations. Such a ban cannot inhibit residents from growing the maximum number of plants in
a locked and enclosed greenhouse, however. In the absence of a local regulation or ban, the
AUMA does not limit the number of plants that may be grown outside.
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While the AUMA does not require cities to enact a regulatory scheme or ban by a certain date,
it is assumed that should the legislation pass and a city does not have a ban or regulatory
scheme governing personal cultivation by November 9, 2016, a person will be able to cultivate
marijuana for personal use without limitation, except those listed in the AUMA.
A detailed explanation of the AUMA and local regulatory authority has been prepared by the
California League of Cities, and is attached to this staff report. (See Attachment D to Agenda
Item 11)
Discussion
On June 9, 1997, the Council adopted uncodified urgency Ordinance No. 4422, prohibiting the
establishment and operation of medical marijuana dispensaries under the City’s zoning
ordinance (Attachment B to Item 11).
This urgency ordinance was drafted to address medical marijuana dispensaries, and does not
include an express prohibition against marijuana cultivation or nonmedical marijuana activities,
generally. While under principles of permissive zoning marijuana cultivation is presumptively
prohibited in Palo Alto because it is not listed as a permitted activity in the City’s zoning code,
the AUMA does not contain the same protective language as prior medical marijuana legislation
with respect to permissive zoning. Moreover, the statute’s language seems to anticipate that
cities will adopt ordinances prohibiting the activities they wish to keep out. To avoid confusion
and preserve local control, staff recommends adding an express prohibition of all outdoor
marijuana cultivation.
Timeline
Personal Outdoor Cultivation
If passed by voters, the AUMA will allow personal cultivation of marijuana as early as November
9, 2016. If the Council desires to limit the outdoor cultivation of marijuana, it has the
opportunity to consider whether to adopt the emergency ordinance, which would take effect
immediately or whether to limit cultivation through the traditional legislative process.
Should the Council adopt this proposed ordinance prohibiting personal outdoor cultivation
through the traditional legislative process, the following timeline would apply:
October 24, 2016 – first reading
November 7, 2016 – second reading
December 8, 2016 – ordinance takes effect
Commercial Marijuana Businesses
Further, under the AUMA, commercial marijuana businesses can only commence operations
after receiving a state license that confirms the proposed business is in compliance with the
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relevant local laws. It is likely that the State will not begin issuing marijuana commercial
business licenses until January 1, 2018.
Accordingly, staff recommends that any zoning code amendments or regulatory laws related to
commercial marijuana businesses be developed and adopted at a later date, but prior to
January 1, 2018.
Resource Impact
The staff does not anticipate a resource impact associated with this Ordinance. Any future
efforts to develop an alternate approach to regulating commercial marijuana businesses or
personal cultivation would require staff time and could result in zoning or licensing provisions
requiring additional staff resources.
Environmental Review
This proposed ordinance is not a project within the meaning of section 15378 of the California
Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in
physical change in the environment, either directly or ultimately. In the event that this
proposed ordinance is found to be a project under CEQA, it is subject to the CEQA exemption
contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have
no possibility of a significant effect on the environment in that this proposed ordinance simply
codifies an existing prohibition.
Attachments:
Attachment A: Ordinance Adding Chapter 9.17 Personal Cultivation (DOCX)
NOT YET APPROVED
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Ordinance No. ____
Ordinance of the Council of the City of Palo Alto Adding Chapter 9.17 (Personal
Cultivation of Marijuana) to Title 9 of the Palo Alto Municipal Code (Public
Peace, Morals and Safety) to Prohibit Outdoor Cultivation of Marijuana
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Recitals. The Council of the City of Palo Alto finds and declares as
follows:
A. Following passage of Proposition 215, entitled the “Compassionate Use Act of 1996,”
California courts have held that there is a limited exception from criminal liability for seriously ill persons
who are in need of medical marijuana for specified medical purposes and who obtain and use medical
marijuana under limited, specified circumstances.
B. On June 9, 1997, the Palo Alto City Council adopted uncodified urgency Ordinance No.
4422 declaring the establishment and operation of medical marijuana dispensaries to be prohibited use
under the City’s zoning ordinance.
C. On November 8, 2016, the Control, Regulate, and Tax Adult Use of Marijuana Act
(“AUMA”) will come before California voters as Proposition 64. If passed, the AUMA will legalize the use,
sale, and consumption of nonmedical marijuana by persons 21 years of age and older.
D. In addition, the AUMA will create a state regulatory and licensing system governing
commercialization of nonmedical marijuana, but will preserve local governments’ authority to regulate
personal cultivation. Specifically, local governments may prohibit personal outdoor cultivation and
reasonably regulate personal indoor cultivation of nonmedical marijuana.
E. Neither medical nor nonmedical marijuana cultivation are listed in the City’s zoning
code as permitted or conditionally-permitted land uses and are, therefore, prohibited under the
principles of permissive zoning provisions. (City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 431-433).
Nevertheless, the AUMA does not expressly recognize the application of permissive zoning principles
like previous medical marijuana legislation.
F. In order to protect the public health, safety, and welfare, the City Council desires to add
Palo Alto Municipal Code Chapter 9.17 to prohibit, in express terms, all outdoor cultivation of medical
and nonmedical marijuana.
G. This Ordinance is not a project within the meaning of section 15378 of the California
Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical
change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a
project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section
15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the
environment in that this Ordinance simply clarified existing local regulations.
SECTION 2. Chapter 9.17 is hereby added to Title 9 of the Palo Alto Municipal Code to read as
follows:
NOT YET APPROVED
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9.17.010 Definitions.
(1) “Marijuana” means all parts of the plant Cannabis sativa L., Cannabis indica, or Cannabis
ruderalis whether growing or not; the seeds thereof; the resin extracted from any part of the
plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,
its seeds or resin.
(2) “Marijuana cultivation” shall have the same meaning as “cultivation” set forth in California
Business and Professions Code Section 19300.5(k) as that section may be amended from time to
time.
9.17.020 Prohibition.
Outdoor marijuana cultivation is prohibited in the City of Palo Alto.
9.17.030 Enforcement.
The City may enforce this section in any manner permitted by law. The violation of this Chapter shall be
and is hereby declared to be a public nuisance and shall, at the discretion of the City, create a cause of
action for injunctive relief.
SECTION 3. Severability. If any provision, clause, sentence or paragraph of this ordinance, or
the application to any person or circumstances, shall be held invalid, such invalidity shall not affect the
other provisions of this ordinance which can be given effect without the invalid provision or application
and, to this end, the provisions of this ordinance are hereby declared to be severable.
SECTION 4. CEQA The City Council finds and determines that this Ordinance is not a project
within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) because it has
no potential for resulting in physical change in the environment, either directly or ultimately. In the
event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption
contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no
possibility of a significant effect on the environment in that this Ordinance simply clarifies existing local
regulations.
SECTION 5. Effective Date. This ordinance shall be effective upon the thirty-first day after its
passage and adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST: APPROVED:
______________________________ ____________________________
City Clerk Mayor
NOT YET APPROVED
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APPROVED AS TO FORM: ____________________________
City Manager
______________________________
Principal City Attorney