HomeMy WebLinkAboutAgenda Report - November 6, 2013 G-02 PHAGENDA ITEM C01 &*Z
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AGENDA TITLE: Public Hearing to Consider Adopting Uncodified Urgency Ordinance to Extend Interim
Ordinance No. 1868, which established a Moratorium on 1) The Outdoor Cultivation of
Medical Marijuana Within the City of Lodi and 2) The Indoor Cultivation of Medical
Marijuana that Creates a Public Nuisance
MEETING DATE:
PREPARED BY:
November 6, 2013
City Attorney's Office
RECOMMENDED ACTION: Adopt uncodified Urgency Ordinance to extend Interim Ordinance No.
1868, which established a moratorium on 1) the outdoor cultivation of
medical marijuana within the City of Lodi and 2) the indoor cultivation of
medical marijuana that creates a public nuisance, for an additional one-year period, to and including November
5, 2014.
BACKGROUND INFORMATION: On December 19, 2012, the Council adopted Interim Ordinance 1868
extending an initial 45 -day the moratorium on 1) the outdoor cultivation
of medical marijuana within the City of Lodi and 2) the indoor cultivation
of medical marijuana that creates a public nuisance for a period of 10 months and 15 days.
The existing moratorium is set to expire on November 6, 2013, unless further action is taken by the Council.
Staff recommends that the current zoning restrictions on the cultivation of medical marijuana within the City
continue, if that is the desire of the Council. The extension will permit staff from the City Attorney's Office and
the Police Department to continue to study and analyze the complicated and evolving legal and practical
issues involved in regulating the cultivation of marijuana for medical use, including a review the City's General
Plan and the zoning ordinances, and to make recommendations for the Council's consideration at a future
Council meeting.
Government Code Section 65858 provides that the Council, may, after notice to the public pursuant to
Government Code Section 65090 and a public hearing, extend Interim Ordinance No. 1868 for a period of
one-year. The extension requires a minimum four-fifths (4/5) vote to be adopted.
As proposed, the recommended extension of Interim Ordinance No. 1868 would extend the current
moratorium on 1) the outdoor cultivation of medical marijuana within the City of Lodi and 2) the indoor
cultivation of medical marijuana that creates a public nuisance to November 5, 2014. Without the proposed
extension, Interim Ordinance 1868 will be of no further force and effect after November 6, 2013.
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FUNDING: None.
e D.MyAttorney
dich
Deputy C
cc: Mark Helms, Police Chief
Attachments: Proposed Urgency Ordinance to Extend Interim Ordinance No. 1868
APPROVED:
Bartlam,
ORDINANCE NO. 1885
AN UNCODIFIED INTERIM URGENCY ORDINANCE OF
THE CITY COUNCIL OF THE CITY OF LODI IMPOSING A
MORATORIUM ON 1) THE OUTDOOR CULTIVATION OF
MEDICAL MARIJUANA WITHIN THE CITY OF LODI AND 2) THE
INDOOR CULTIVATION OF MEDICAL MARIJUANA THAT
CREATES A PUBLIC NUISANCE
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WHEREAS, in 1996, the voters of the State of California approved Proposition
215, which was codified as Health and Safety Code Section 11362.5, et seq. and
entitled the Compassionate Use Act of 1996 ("the Act"); and
WHEREAS, the intent of Proposition 215 was to enable persons who are in need
of marijuana for medical purposes to obtain and use it under limited, specified
circumstances; and
WHEREAS, on January 1, 2004, Senate Bill 420 (Medical Marijuana Program
Act) became effective to clarify the scope of the Act and to allow cities and counties to
adopt and enforce rules and regulations consistent with SB 420 and the Act; and
WHEREAS, Health and Safety Code Section 11362.83 expressly allows cities
and counties to adopt and enforce ordinances that are consistent with SB 420; and
WHEREAS, under the federal Controlled Substances Act (21 U.S.C. §841),
marijuana is classified as a Schedule 1 drug, meaning it has no accepted medical use;
and
WHEREAS, Government Code Section 65858 authorizes cities to adopt
moratoriums on land use entitlements in order to study any uses that may be in conflict
with a contemplated general plan, specific plan, or zoning proposal; and
WHEREAS, Government Code Sections 65850(a) and 65850(c)(4), provide the
authority of the City of Lodi to regulate by ordinance the uses of land and the intensity of
land use; and
WHEREAS, the City of Lodi Police Department and residents of the City of Lodi
have reported adverse impacts from the outdoor cultivation of medical marijuana within
the City of Lodi, including offensive odors detectable beyond the property boundaries,
increased risk of trespassing, violent crime, burglary, and theft; and
WHEREAS, the strong odor of marijuana plants, which increases in intensity as
the plants mature, is highly offensive to many individuals and creates an attractive
nuisance, alerting people to the presence and location of marijuana plants, creating an
increased risk of burglary, robbery, or armed robbery because of the monetary value of
the plants; and
WHEREAS, the presence of marijuana plants is an attractive nuisance to minors,
creating a potential hazard in areas frequented by minors, such as schools, parks,
recreation centers, and similar facilities; and
WHEREAS, the cultivation of medical marijuana raise issues of first impression
for the City, which currently does not address or regulate in any manner the cultivation of
medical marijuana in its Municipal Code; and
WHEREAS, there is not sufficient time for the City of Lodi to adopt a regular,
non -urgency ordinance regulating the outdoor and indoor cultivation of medical
marijuana; and
WHEREAS, it is the intention of the City Council of the City of Lodi that nothing in
this Ordinance be deemed to conflict with the federal Controlled Substances Act (21
U.S.C. §841), by permitting or otherwise allowing any activity which is prohibited under
the Act; and
WHEREAS, the City Council of the City of Lodi is aware that the cultivation and
possession of marijuana for medical purposes by Qualified Patients and Primary
Caregivers as defined under California law (Health & Saf. Code, §§11362.7(f) and
11362.7(d), respectively), it is the intention of the Council that nothing in this Ordinance
be construed, in any way, to expand the rights of anyone to cultivate, possess or use
marijuana under state law, engage in any public nuisance, violate the federal Controlled
Substance Act, or engage in any activity regarding the cultivation, distribution, use or
consumption of marijuana that is otherwise prohibited by law; and
WHEREAS, it is the purpose and intent of this Ordinance to ensure that
marijuana grown for medical purposes remains secure and does not find its way to
persons other than Qualified Patients or Primary Caregivers, or illicit markets; and
WHEREAS, it is the purpose and intent of this Ordinance to assist law
enforcement personnel to perform their duties effectively and in accordance with
California law; and
WHEREAS, this Ordinance is not subject to the California Environmental Quality
Act (CEQA) pursuant to Government Code section 15060(c)(2) (the activity will not result
in a direct or reasonably foreseeable indirect physical change in the environment) and
Section 15060(c)(3) (the activity is not a project as defined in Section 15378) of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly; it
prevents changes in the environment pending the completion of the contemplated
General Plan adoption and zoning ordinance review; and
WHEREAS, for the protection of the public's health, safety, and general welfare,
the City Council on November 7, 2012, adopted Ordinance No. 1867, an Uncodified
Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and
imposing a forty-five (45) day moratorium on 1) the outdoor cultivation of medical
marijuana within the City of Lodi and 2) the indoor cultivation of medical marijuana that
creates a public nuisance; and
WHEREAS, for the continued protection of the public's health, safety, and
general welfare, the City Council on May 7, 2012, adopted Ordinance No. 1868 entitled
an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making
findings and imposing an additional moratorium of ten (10) months and fifteen (15) days
on 1) the outdoor cultivation of medical marijuana within the City of Lodi and 2) the
indoor cultivation of medical marijuana that creates a public nuisance; and
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WHEREAS, the City desires to extend Ordinance No. 1868 for an additional one
year period, as permitted by Government Code Section 65858, to maintain the current
status quo and to provide time for the City to continue to meet with members of the
public and to study and analyze the complicated and evolving legal and practical issues
involved in regulating the cultivation of marijuana for medical use, including a review of
the City's General Plan and zoning ordinances, and to make recommendations for
consideration by the City Council.
NOW, THEREFORE, BE IT ORDAINED BY THE LODI CITY COUNCIL AS
FOLLOWS:
Section 1. The City Council finds that in accordance with the terms and provisions of
Section 65858 of the Government Code, the following notice given in the time and
manner required by law, it held a public hearing on the extension of Ordinance No. 1868
on November 6, 2013. After hearing all applicable evidence, the City Council finds that
the conditions and findings cited in Ordinance No. 1868 continue to exist and that further
study by City staff, including meeting with members of the public, is necessary in order
to study and analyze the complicated and evolving legal and practical issues involved in
regulating the cultivation of marijuana for medical use, including a review of the City's
General Plan and zoning ordinances, and to adopt regulatory standards and conditions
to be imposed on the outdoor and indoor cultivation of medical marijuana.
Section 2. Imposition of Moratorium.
A. In accordance with Government Code Section 65858, from and after the
date of the expiration of Ordinance No. 1868, the outdoor cultivation of marijuana, for
any purpose, within the incorporated area of the City of Lodi is hereby prohibited for an
additional one-year period. Further, in accordance with Government Code Section
65858, from and after the date of the expiration of Ordinance No. 1868, any indoor
cultivation of medical marijuana by a Qualified Patient or Primary Caregiver within the
incorporated area of the City of Lodi that creates a public nuisance resulting from the
visibility of marijuana from the public right-of-way or the odor of marijuana beyond the
property line of the property where the indoor cultivation is taking place is prohibited for
an additional one-year period.
B. Any property found to be in violation of this Ordinance shall be declared
to be a public nuisance and may be summarily abated by the City of Lodi pursuant to
Civil Code Section 731. Nothing in this Ordinance shall be deemed to prevent the city
attorney from bringing a civil action for injunctive relief and civil penalties pursuant to
Lodi Municipal Code Chapter 1.10. In any civil action brought under Chapter 1.10, a
court of competent jurisdiction may award reasonable attorneys fees and costs to the
prevailing party.
C. For purposes of this Ordinance, the terms "Primary Caregiver," "Qualified
Patient" shall have the same meaning as that set forth in Health and Safety Code
Sections 11362.7(f) and 11362.7(d), respectively.
D. This Ordinance is an interim urgency ordinance adopted pursuant to the
authority granted to the City of Lodi by Government Code Section 65858 and is for the
immediate preservation of the public health, safety, and welfare. The City Council of the
City of Lodi hereby finds and declares that there is a need to enact an urgency interim
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ordinance establishing a moratorium banning the outdoor cultivation of medical
marijuana within the City of Lodi and the indoor cultivation of medical marijuana by a
Qualified Patient or Primary Caregiver within the City of Lodi that creates a public
nuisance resulting from the visibility of marijuana from the public right-of-way or the odor
of marijuana beyond the property line of the property where indoor cultivation is taking
place, based upon the findings set forth hereinabove and incorporated herein.
Section 3. Severability. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to
be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such
decision shall not affect the validity or effectiveness of the remaining portions of this
Ordinance or any part thereof. The City Council of the City of Lodi hereby declares that
it would have passed each section, subsection, subdivision, paragraph, sentence, clause
or phrase thereof irrespective of the fact that any one or more sections, subsections,
subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or
invalid or ineffective.
Section 4. No Mandatory Duty of Care. This Ordinance is not intended to and shall
not be construed or given effect in a manner which imposes upon the City, or any officer
or employee thereof, a mandatory duty of care towards persons or property within the
City or outside of the City so as to provide a basis of civil liability for damages, except as
otherwise imposed by law.
Section 5. Conflict. All ordinances and parts of ordinances in conflict herewith are
repealed insofar as such conflict may exist.
Section 6. Effective Date. This urgency Ordinance shall be published one time in the
"Lodi News Sentinel," a daily newspaper of general circulation printed and published in
the City of Lodi, and shall be in force and take effect immediately upon passage and
approval by at least four-fifths vote of the City Council and the expiration of Ordinance
No. 1868 (November 6, 2013), and shall be in effect for a period of one year to and
including November 5, 2014, unless repealed or extended by the City Council as
provided for in Government Code section 65858.
ATTE
RAN IN VQHL--0N
City Clerk
Approved this 6t" day of November, 2013
` ic" Us
MWO
ALAN NAKANISHI
Mayor
4
State of California
County of San Joaquin, ss.
I, Randi Johl-Olson, City Clerk of the City of Lodi, do hereby certify that
Ordinance No.1885 was adopted as an urgency ordinance at a regular meeting of the
City Council of the City of Lodi held November 6, 2013, and was thereafter passed,.
adopted, and ordered to print by the following vote:
AYES: COUNCIL MEMBERS — Hansen, Johnson, Katzakian, and
Mayor Nakanishi
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Mounce
ABSTAIN: COUNCIL MEMBERS — None
I further certify that Ordinance No. 1885 was approved and signed by the Mayor
on the date of its passage and the same has been published pursuant to law.
ZN=-0LScON, City Clerk
to Form:
`-JANICE [Y. MAGDICH
Deputy City Attorney
Please immediately confirm receipt
of this fax by calling 333-6702
CITY OF LODI
P. O. BOX 3006
LODI, CALIFORNIA 95241-1910
ADVERTISING INSTRUCTIONS
SUBJECT: PUBLIC HEARING TO CONSIDER ADOPTING AN UNCODIFIED INTERIM
ORDINANCE EXTENDING INTERIM ORDINANCE NO. 1868,
ESTABLISHING A MORATORIUM ON 1) THE OUTDOOR CULTIVATION
OF MEDICAL MARIJUANA WITHIN THE CITY OF LODI, AND 2) THE
INDOOR CULTIVATION OF MEDICAL MARIJUANA THAT CREATES A
PUBLIC NUISANCE
PUBLISH DATE: SATURDAY, OCTOBER 26, 2013
TEAR SHEETS WANTED: One (1) please
SEND AFFIDAVIT AND BILL TO: RANDI JOHL-OLSON, CITY CLERK
LNS ACCT. #0510052 City of Lodi
P.O. Box 3006
Lodi, CA 95241-1910
DATED: THURSDAY, OCTOBER 24, 2013
ORDERED BY: RANDI JOHL-OLSON
CITY CLERK
NIFER ROBISON, CMC
SISTAN CITY CLERK
MARIA DITMORE
ADMINISTRATIVE CLERK
Verify Appearance of this Legal in the Newspaper — Copy to File
formAadvins.doc
DECLARATION OF POSTING
PUBLIC HEARING TO CONSIDER ADOPTING AN UNCODIFIED INTERIM
ORDINANCE EXTENDING INTERIM ORDINANCE NO. 1868, ESTABLISHING A
MORATORIUM ON 1) THE OUTDOOR CULTIVATION OF MEDICAL MARIJUANA
WITHIN THE CITY OF LODI, AND 2) THE INDOOR CULTIVATION OF MEDICAL
MARIJUANA THAT CREATES A PUBLIC NUISANCE
On Thursday, October 24, 2013, in the City of Lodi, San Joaquin County, California, a
Notice of Public Hearing to consider adopting an uncodified interim ordinance extending
interim Ordinance No. 1868, establishing a moratorium on 1) the outdoor cultivation of
medical marijuana within the City of Lodi, and 2) the indoor cultivation of medical
marijuana that creates a public nuisance (attached and marked as Exhibit A) was
posted at the following locations:
Lodi City Clerk's Office
Lodi City Hall Lobby
Lodi Carnegie Forum
I declare under penalty of perjury that the foregoing is true and correct.
Executed on October 24, 2013, at Lodi, California.
J04NIFER ROBISON, CMC
ASSISTANT CITY CLERK
N:\Administration\CLERK\Forms\DECPOSTCA.DOC
[01 V 047"I7
RANDI JOHL-OLSON
CITY CLERK
MARIA DITMORE.
ADMINISTRATIVE CLERK
CITY OF LODI
Carnegie Forum
305 West Pine Street, Lodi
NOTICE OF PUBLIC HEARING
Date: November 6, 2013
Time: 7:00 p.m.
For information regarding this notice please contact:
Randi Johl-Olson
City Clerk
Telephone: (209) 333-6702
NOTICE OF PUBLIC HEARING
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NOTICE IS HEREBY GIVEN that on Wednesday, November 6, 2013, at the hour of
7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will
conduct a public hearing at the Carnegie Forum, 305 West Pine Street, Lodi, to consider
the following item:
a) Adopting an uncodified interim ordinance extending interim
Ordinance No. 1868, establishing a moratorium on 1) the outdoor
cultivation of medical marijuana within the City of Lodi, and 2) the
indoor cultivation of medical marijuana that creates a public
nuisance.
Information regarding this item may be obtained in the City Attorney's Office, 221 West
Pine Street, Lodi, (209) 333-6701. All interested persons are invited to present their
views and comments on this matter. Written statements may be filed with the City Clerk,
City Hall, 221 West Pine Street, 2nd Floor, Lodi, 95240, at any time prior to the hearing
scheduled herein, and oral statements may be made at said hearing.
If you challenge the subject matter in court, you may be limited to raising only those
issues you or someone else raised at the public hearing described in this notice or in
written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to
the close of the public hearing.
y Or r of the Lodi City Council:
Joh - Ison
City Clerk
Dated: October 24, 2013
MAZMI� oil
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D. Stephen Schwabauer
City Attorney
CLERK\PUBHEAR\NOTICES\NOT MedicalMarijuana.DOC 10/23/13