CITY COUNCIL: Ordinance Amending Zoning Ordinance/Local Coastal Implementatin Plan Banning Medical Marijuana Dispensaries

Meeting Date: 2 March 2010
Prepared by: Sean Conroy, Plng & Bldg Services Manager

City Council
Agenda Item Summary

Name: Consideration of an Ordinance amending the Zoning Ordinance/Local Coastal Implementation Plan banning medical marijuana dispensaries in the City of Carmel-by-the-Sea. (First reading)

Description: The proposed Ordinance would ban medical marijuana dispensaries within the City of Carmel-by-the-Sea.

Overall Cost:
City Funds: N/A
Grant Funds: N/A

Staff Recommendation: Adopt the Ordinance (First reading).

Important Considerations: Federal law recognizes marijuana as a controlled substance and does not permit its use, even for medical purposes. Allowing medical marijuana dispensaries in the City would violate Federal law.

The City’s General Plan encourages uses that are compatible with the village character, and preserve its economic integrity. Medical marijuana dispensaries could have potential negative effects on the character and economic integrity of the City, and would be inconsistent with the General Plan.

Decision Record: The Planning Commission recommended adoption of the attached ordinance on 10 February 2010.

Reviewed by:

__________________________ _____________________
Rich Guillen, City Administrator Date

CITY OF CARMEL-BY-THE-SEA
DEPARTMENT OF COMMUNITY PLANNING AND BUILDING
STAFF REPORT
TO: MAYOR MCCLOUD AND CITY COUNCIL MEMBERS
FROM: SEAN CONROY, PLNG & BLDG SERVICES MANAGER
THROUGH: RICH GUILLEN, CITY ADMINISTRATOR
DATE: 2 MARCH 2010
SUBJECT: CONSIDERATION OF AN ORDINANCE AMENDING THE ZONING ORDINANCE/LOCAL COASTAL IMPLEMENTATION PLAN BANNING MEDICAL MARIJUANA DISPENSARIES IN THE CITY OF CARMEL-BY-THE-SEA (FIRST READING)

INTRODUCTION & BACKGROUND
California voters approved the “Compassionate Use Act” in 1996. The Act allows the cultivation, possession and use of marijuana for legitimate medial purposes by “patients” and “primary caregivers”’ and is codified in section 11362.5 of the California Health and Safety Code. Senate Bill (SB) 420 was enacted in 2004, which provides guidance to local governments in their implementation of the Compassionate Use Act. Neither the Compassionate Use Act nor SB 420 requires local governments to allow medical marijuana dispensaries. Several California communities have adopted ordinances banning dispensaries in their jurisdictions.

The City recently received an inquiry regarding the permitting and establishment of medical marijuana dispensaries. The City’s zoning ordinance allows medical offices and clinics, but is silent on medical marijuana dispensaries.

This proposal amends Chapters 17.14.040 and 17.68.040 of the Carmel Zoning
Ordinance/Local Coastal Implementation Plan to ban medical marijuana dispensaries within City boundaries (see attached).

PROCESS
The proposed revisions to the Zoning Ordinance constitute an amendment to the City’s Local Coastal Program. The project requires review by the Planning Commission, City Council, and finally the California Coastal Commission. The Planning Commission recommended adoption of the Ordinance on 10 February 2010.

EVALUATION
Federal Law vs. State Law: In 2005, the U.S. Supreme Court determined that the Federal law governing controlled substances, including marijuana, preempted California’s Compassionate Use Act (see U.S. Supreme Court: Gonzales v. Raich). Since no Federal law exists allowing marijuana for medical purposes, allowing a medical marijuana dispensary in the City would violate Federal law. California Government Code Section 37100 prohibits local governments from establishing ordinances that violate Federal law. Allowing dispensaries in the City would open up the possibility of Federal Drug Enforcement Agency (DEA) raids, prosecution, and other negative consequences.

General Plan: The Land Use Element of the General Plan provides goals, objectives and policies designed to maintain the character of the City and to provide direction to decision-making bodies. While medical marijuana dispensaries are not specifically addressed, the following objectives provide guidance on commercial uses in the City:

01-3: “Preserve the economic integrity of the community and maintain an
economic philosophy toward commercial activity ensuring compatibility with the goals and objectives of the General Plan.

O1-4: “Maintain a mix of commercial uses that are compatible with the character of Carmel as a residential village.”

O1-5: “Protect and enhance the balanced mix of uses in the central business area, particularly along Ocean Avenue, to ensure a high-quality, pedestrianoriented commercial environment providing a wide variety of goods and services to local residents.”

The unique shops, architectural diversity, and natural setting contribute to the City’s downtown character. The potential for medical marijuana dispensaries raises the following concerns that could affect the downtown and would be inconsistent with the General Plan:

1. Impacts on adjacent businesses: A medical marijuana dispensary likely would be incompatible with most commercial uses, particularly retail, in the downtown. The opening of a dispensary may cause adjacent businesses to close or relocate, which would affect the economic integrity of the downtown. The potential for raids from the DEA also exists, which would have significant negative effects on local business.

2. Public Safety: With a small local population, it is probable that most dispensary patrons would come from outside the City limits. Concerns regarding loitering, panhandling, robbery and assault are associated with dispensaries in other parts of the state, which could result in increased demands on the Police Department and pose significant public safety problems.

RECOMMENDATION
Adopt the attached Ordinance (First reading).

CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
ORDINANCE 2010-
AN ORDINANCE OF THE CITY OF CARMEL-BY-THE-SEA
AMENDING THE ZONING ORDINANCE/LOCAL COASTAL IMPLEMENTATION PLAN TO BAN MEDICAL MARIJUANA DISPENSARIES IN THE CITY OF CARMEL-BY-THE-SEA (First Reading)

WHEREAS, the Compassionate Use Act was approved by California voters in 1996, legalizing the use of marijuana for specific medical purposes; and

WHEREAS, the Compassionate Use Act is codified in Health and Safety Code Section 11362.5; and

WHEREAS, the State of California adopted SB 420, which provides guidance to local jurisdictions on the implementation of the Compassionate Use Act; and

WHEREAS, neither the Compassionate Use Act nor SB 420 requires jurisdictions to allow medical marijuana dispensaries in their communities; and

WHEREAS, the United States Supreme Court determined in 2005 (Gonzales v. Raich) that the constitutional authority of Congress to regulate the interstate market in drugs extends to doctor-recommended marijuana; and

WHEREAS, based on the Supreme Court’s decision, those who dispense or use
marijuana, even for medical purposes, are at risk of action by Federal agencies; and

WHEREAS, the City will not authorize a commercial use that conflicts with Federal law; and

WHEREAS, the City has adopted a General Plan and Municipal Code that strive to protect the village character through clear policies and regulations; and

WHEREAS, the General Plan encourages commercial uses that maintain the economic integrity and character of the City; and

WHEREAS, medical marijuana dispensaries could result in detrimental effects on City residents, business owners and visitors and are inconsistent with the General Plan; and

WHEREAS, this Ordinance is an amendment to sections 17.14.040 and 17.68.040 of the City’s Zoning Ordinance/Local Coastal Implementation Plan and requires certification by the California Coastal Commission; and

WHEREAS, this Ordinance will be carried out in a manner consistent with the California Coastal Act.
5
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, does hereby adopt:

Amendments to Municipal Code Sections 17.14.040 and 17.68.040 as outlined in Exhibit “A”, banning medical marijuana dispensaries in the City of Carmel-by-the-Sea.

Severability. If any part of this Ordinance, even as small as a word or phrase, is found to be unenforceable such finding shall not affect the enforceability of any other part.

Effective Date. This Ordinance shall become effective 30 days after final adoption by the City Council or the California Coastal Commission, whichever occurs last.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this ___ day of ________ 2010 by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:

SIGNED,

________________________
SUE McCLOUD, MAYOR

ATTEST:

_________________________________
Heidi Burch, City Clerk

Exhibit “A”
Proposed changes are shown in underline

CMC 17.14.040 Additional Use Regulations.
A. All Uses.
1. No new structure or modification to an existing structure shall be permitted nor shall any business license be issued that would allow the creation of publicly accessible retail space occupying fewer than 200 square feet or more than 5,000 square feet unless approved through a use permit and pursuant to the adoption of findings per CMC17.64.200, Retail Space of Less Than 200 Square Feet or Greater Than 5,000 Square Feet.

2. No timeshare projects, programs or occupancies shall be established or permitted in any zone.

3. Except in restaurants, not more than five persons in any one individually licensed business shall be engaged in the production, repair or manufacturing of goods.

4. No use shall be permitted and no process, equipment or materials shall be employed which is found by the Planning Director or by the Planning Commission to be objectionable to persons residing or working in the vicinity by reason of odor, fumes, noise, vibration, illumination, glare,
unsightliness, dust, cinders, dirt, refuse, water-carried wastes or heavy truck traffic, or involve any hazard of fire or explosion.

5. Medical Marijuana Dispensaries are prohibited and no person shall operate or permit to be operated a medical marijuana dispensary in or upon any premises in all zones within the City.

CMC 17.68.040 (definitions) Public, Semipublic, and Service Use Classifications.

Medical Marijuana Dispensary. Any facility, clinic, cooperative, club or location, whether fixed or mobile where medical marijuana is made available to, distributed by, or distributed to a qualified patient and/or a primary caregiver as defined in California Health and Safety Code section 11362.5.