HomeMy WebLinkAboutOrdinances - No. 1867ORDINANCE NO. 1867
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 1 1362.83 expressly allows cities
and counties to adopt and enforce ordinances that are consistent with S6 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
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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
11 362.7(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 desires to adopt this moratorium to provide time for the City to consider that
adoption of regulatory standards and conditions to be imposed on the outdoor and
indoor cultivation of medical marijuana; and
WHEREAS, the City desires that such moratorium take effect immediately upon
its adoption in accordance with Government Code section 36934.
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NOW, THEREFORE, BE IT ORDAINED BY THE LODl CITY COUNCIL AS
FOLLOWS:
Section 1. Imposition of Moratorium.
In accordance with Government Code section 65858, from and after the
date of this Ordinance, the outdoor cultivation of marijuana, for any purpose, within the
incorporated area of the City of Lodi is hereby prohibited for a period of forty-five (45)
days. Further, 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 a period of forty-five (45) days.
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” and
“Qualified Patient” shall have the same meaning as that set forth in Health and Safety
Code Sections 1 1362.7(f) and 1 1362.7(d), respectively.
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
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 2. Severabilitv. 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 3. No Mandatory Dutv 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.
A.
8.
D.
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.. . . .
Section 4.
repealed insofar as such conflict may exist.
Conflict. All ordinances and parts of ordinances in conflict herewith are
Section 5. 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 from and after its
passage and approval by at least four-fifths vote of the City Council and shall be in effect
for forty-five (45) days from the date of adoption unless extended by the City Council as
provided for in Government Code section 65858.
bpproved this 7th day of November, 2012
ANNE MOUNCE v Mayor
RAND1 JOHL, City Clerk
State of California
County of San Joaquin, ss.
I, Randi Johl, City Clerk of the City of Lodi, do hereby certify that Ordinance
No. 1867 was adopted as an urgency ordinance at a regular meeting of the City Council
of the City of Lodi held November 7, 2012, and was thereafter passed, adopted, and
ordered to print by the following vote:
AYES: COUNCIL MEMBERS - Hansen, Johnson, Katzakian, and
Mayor Mounce
NOES: COUNCIL MEMBERS -None
ABSENT: COUNCIL MEMBERS - Nakanishi
ABSTAIN: COUNCIL MEMBERS - None
I further certify that Ordinance No. 1867 was approved and signed by the Mayor
on the date of its passage and the same has been pub
E D. MAGDICH
Deputy City Attorney
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