STAFF REPORT

TO: Planning Commission

FROM: Vin Smith, Director of Planning and Building

SUBJECT: Medical Marijuana Cultivation Regulations

DATE: January 26, 2016

1 Planning Commission Actions:

2 1. Approve Resolution (EXHIBIT I) supporting Zoning Ordinance Amendments to 3 establish a ban on medical marijuana; or,

4 2. Approve Resolution (EXHIBIT I) supporting modified Zoning Ordinance 5 Amendments incorporating the City Council suggested changes; or,

6 3. Approve Resolution (EXHIBIT I) supporting modified Zoning Ordinance 7 Amendments incorporating the City Council suggested changes and suggested 8 Planning Commission changes.

9 Background:

10 The recently enacted Medical Marijuana Regulation and Safety Act ("MMRSA") 11 requires a city to take affirmative action if it wants to prohibit or regulate the cultivation 12 ofmedical marijuana within its jurisdiction. Pursuant tp the MMRSA, the City must 13 adopt a land use regulation prohibiting or regulating the cultivation of medical marijuana 14 that is in effect before March 1, 2016, or else it will be precluded from doing so in the 15 future. As such, Staffhas scheduled a January 19,2016 discussion item with the City 16 Council, to get direction on the proposed Draft Ordinance language. Staff will be 17 sending a follow-up memo to the Planning Commission after the January 19th Council 18 meeting.

19 Legislative Background: 20 In 1996, the voters of the State of California approved Proposition 215 entitled "The 21 Compassionate Use Act of 1996" ("CUA") to enable seriously ill Californians, under the 22 care of a physician, to legally possess, use, and cultivate marijuana for medical use under 23 state law. In 2003, the California Legislature adopted SB 420 entitled the Medical 24 Marijuana Program ("MMP") which permits qualified patients and their primary 25 caregivers to associate collectively or cooperatively to cultivate marijuana for medical

1

January 26, 2016 Planning Commission Hearing Medical Marijuana Cultivation Regulations

26 purposes without being subject to criminal prosecution under the California Penal Code. 27 Neither the CUA nor the MMP require or impose an affirmative duty or mandate upon a 28 local government to allow, authorize, or sanction the establishment of facilities that 29 cultivate medical marijuana within its jurisdiction. Under the Federal Controlled 30 Substances Act, the use, possession, and cultivation of marijuana are unlawful and 31 subject to federal prosecution without regard to a claimed medical need. 32 33 Governor Brown recently signed into law the MMRSA which is comprised of three 34 related bills: AB 243, AB 266, and SB 643. The MMRSA establishes State licensing 35 requirements for the cultivation, distribution, and transportation of medical marijuana, 36 safety and testing standards for medical marijuana and medical marijuana products, and 37 regulates the physicians who recommend or prescribe medical marijuana to patients. The 38 MMRSA contains statutory provisions that allow local governments to maintain local 39 control over medical marijuana and does not require a city to allow medical marijuana 40 activity within its borders. 41 42 The MMRSA provides that the State Department of Food and Agriculture will be the sole 43 licensing authority for medical marijuana cultivation applications effective March 1, 44 2016, if a city does not have a land use ordinance in place regulating or prohibiting the 45 cultivation of marijuana, either expressly or otherwise under the principles of permissive 46 zoning, or if a city chooses not to administer a conditional use permit program. 47 48 Mill Valley Municipal Code Sections 20.40.040 and 20.60.400 currently prohibit medical 49 marijuana dispensaries in all areas of the City. A medical marijuana dispensary is 50 defined, in relevant part, as "any location, structure, vehicle, store, co-op, residence, or 51 similar facility used, in foil or in part, as a place at or in which marijuana is sold, traded, 52 exchanged, or barteredfor in any way ... " See Section 20.08.133. 53 54 Proposal: 55 Staff believes retaining local control is essential. Given that at this point it is unknown 56 what the State's final regulations, or even intention, will be, the following analysis 57 supports an immediate action as a stop-gap measure to retain local control. This 58 recommendation is consistent with the advice and input from the City Attorney. 59 60 Specifically, as shown in the attached regulation (Attachment 1 to the Planning 61 Commission Staff Report), the definition of"medical marijuana dispensary" would be 62 relocated and combined with the medical marijuana regulations in Section 20.60.400. 63 The definition of "medical marijuana dispensary" would be slightly modified to add the 64 definition of "dispensary" as defined under the MMRSA. 65 66 Most significantly, the attached regulation would prohibit all cultivation of medical 67 marijuana in the City, including cultivation for personal medical use by a qualified 68 patient, a person.with an identification card, or a primary caregiver. The zoning 69 amendments would be adopted bothon an urgency and regular basis by the City Council. 70 The urgency is due to the need to have land use regulations prohibiting or regulating 71 cultivation of marijuana in effect by March 1, 2016 in order to preserve the City's

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January 26, 2016 Planning Commission Hearing Medical Marijuana Cultivation Regulations

72 authority to regulate or ban cultivation within city limits. Once the cultivation 73 regulations are in place, the City would be able to revise or amend its regulation of 74 marijuana cultivation in the future, for example, to permit limited cultivation for personal 75 use. 76 77 The justification for banning medical marijuana cultivation pursuant to the City's police 78 power includes, without limitation: 1) the increased risk to public safety, based on the 79 value of marijuana plants and the accompanying threat of break-ins, robbery and theft, 80 and attendant violence and injury; 2) the strong "skunk like" malodorous fumes emitted 81 from mature plants that can interfere with the use and enjoyment of neighboring 82 properties by their occupants; and 3) the risk of electrical fire hazards caused by medical 83 marijuana cultivation. 84 85 Criminal activity is often associated with medical marijuana activity. As marijuana 86 plants begin to flower, and for a period of two months or more, the plants produce a 87 strong, unique odor, offensive to many people, and detectable far beyond property 88 boundaries if grown outdoors. This odor can have the effect of encouraging theft by 89 alerting persons to the location of the valuable plants, and creating a risk of burglary, 90 robbery or armed robbery of the plants and creating the potential for violent acts related 91 to such criminal activity. 92 93 Furthermore, indoor cultivation of marijuana, often unattended, has potential to cause 94 harm to persons and property in that the use of high wattage grow lights and excessive 95 use of electricity increases the risk of fire which presents a distinct risk of harm to the 96 building and its occupants. Buildings where marijuana is cultivated are often illegally 97 wired and have overloaded electrical systems that result in fires. Several examples of 98 significant house-fires as a result of home cultivation have occurred throughout the State 99 just in the last year.

100 Staff Recommendation:

101 Based on the information and findings provided in this staff report and attachments, Staff 1 02 recommends the Planning Commission consider the direction provided by the City 103 Council from their January 19,2016 meeting (to be provided under separate cover memo 104 following the January 19th Council meeting) and either:

105 1. Approve the Resolution (EXHIBIT I) supporting Zoning Ordinance Amendments 106 to establish a ban on medical marijuana; or,

107 2. Approve the Resolution (EXHIBIT I) supporting modified Zoning Ordinance 108 Amendments incorporating the City Council suggested changes; or,

109 3. Approve the Resolution (EXHIBIT I) supporting modified Zoning Ordinance 11 0 Amendments incorporating the City Council suggested changes and suggested 111 Planning Commission changes.

112

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January 26,2016 Planning Commission Hearing Medical Marijuana Cultivation Regulations

113 Environmental Review:

114 The proposed prohibition on the cultivation of medical mc,rrijuana is exempt from the 115 requirements of the California Environmental Quality Act ("CEQA"), pursuant to CEQA 116 Guidelines Section 15061(b)(3) because it can be seen with certainty that there is no 117 possibility that the proposed prohibition on marijuana cultivation within the City's 118 jurisdiction will have a significant effect on the environment. The regulations impose 119 greater limitations on uses and activities allowed in the City, and will thereby serve to 120 eliminate potential significant adverse environmental impacts. The ordinances will not 121 have an impact on the physical environment as they will not result in any changes to the 122 environment.

123 Attachments:

124 1. EXHIBIT I: Planning Commission Resolution

125 2. Zoning Ordinance Amendments: Proposed Medical Marijuana Regulation, 126 Exhibit A

4

EXHIBIT I

RESOLUTION NO. 16-__

RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MILL VALLEY RECOMMENDING THE CITY COUNCIL ADOPT THE URGENCY

ORDINANCE AND REGULAR ORDINANCE AMENDING SECTIONS 20.08.133 AND 20.60.400 OF THE MILL VALLEY MUNICIPAL CODE TO EXPRESSLY PROHIBIT

CULTIVATION OF MEDICAL MARIJUANA, INCLUDING CULTIVATION BY QUALIFIED PATIENTS, PRIMARY CAREGIVERS, AND PERSONS WITH IDENTIFICATION CARDS AND TO CONTINUE THE BAN ON MEDICAL

MARIJUANA DISPENSARIES

WHEREAS, On July 7, 2007, the City Council used its authority to adopt Ordinances prohibiting medical marijuana dispensaries in all zoning districts of the City to protect the public safety, heath and welfare of the City.

WHEREAS, On October 9, 2015 Governor Brown signed Assembly Bill No. 243, Assembly Bill No. 266, and Senate Bill 643 into law, which collectively are known as the Medical Marijuana Regulation and Safety Act (hereinafter "MMRSA"). The MMRSA establishes a State licensing scheme for commercial medical marijuana uses while protecting local control by requiring that all such businesses must have a local license or permit to operate in addition to a State license.

WHEREAS, The MMRSA becomes effective January 1, 2016 and contains provisions that govern the cultivating, processing, transporting, testing, and distributing of medical cannabis to qualified patients. The MMRSA also contains new statutory provisions that allow local governments to enact ordinances by March 1, 2016 expressing their intent to prohibit the cultivation of marijuana and their intent not to administer a conditional permit program pursuant to Health & Safety Code Section 11362.777 for the cultivation of marijuana.

WHEREAS, continuing to prohibit medical marijuana dispensaries, and prohibiting cultivation of marijuana from being established will reduce conflict with General Plan requirements, surrounding land uses, State and federal judicial rulings on the legality of dispensaries, and will not detriment public health, safety and/or welfare of the City.

WHEREAS, while medical marijuana dispensaries are currently not permitted in the City ofMiJl Valley, revisions to the Municipal Code are required to satisfaction of the provisions ofthe MMRSA.

NOW, THEREFORE, IT IS HEREBY RESOLVED, ORDERED AND DECLARED THAT:

The Planning Commission of the City of Mill Valley on this 26th day of January 2016, adopt Resolution No. 16-__ recommending the City Council adopt the proposed ordinances (Attachment 1) amending Sections 20.08.133 and 20.60.400 ofthe Mill Valley Municipal Code

to expressly prohibit cultivation of Medical Marijuana and to continue the ban on Medical Marijuana Dispensaries.

PASSED AND ADOPTED at a regular meeting of the Planning Commission of the City of Mill Valley on the 26th day of January 2016 by the following vote:

AYES:

NOES:

ABSENT:

Ricardo Capretta, Chair, Planning Commission

ATTEST:

Vin Smith Planning & Building Director

Enc: Attachment 1: Draft City Council Ordinances

Planning Commission Resolution No. 16- __ 2

1 URGENCY ORDINANCE NO. __ _ 2 3 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILL 4 VALLEY AMENDING SECTIONS 20.08.133 AND 20.60.400 OF THE MILL VALLEY 5 MUNICIPAL CODE TO EXPRESSLY PROHIBIT CULTIVATION OF MEDICAL 6 MARIJUANA, INCLUDING CULTIVATION BY QUALIFIED PATIENTS, PRIMARY 7 CAREGIVERS, AND PERSONS WITH IDENTIFICATION CARDS AND TO 8 CONTINUE THE BAN ON MEDICAL MARIJUANA DISPENSARIES 9

10 THE CITY COUNCIL OF THE CITY OF MILL VALLEY DOES ORDAIN AS 11 FOLLOWS: 12 13 SECTION 1. Urgency Findings. The City Council finds as follows:

14 (a) In 1996, the voters ofthe State of California approved Proposition 215 (codified 15 as California Health and Safety Code § 11362.5, and entitled "The Compassionate Use Act of 16 1996" or "CUA" sometimes herein).

17 (b) In 2004, the Legislature enacted Senate Bill 420 (codified as California Health 18 and Safety Code § 11362.7, et seq., and sometimes referred to herein as the "Medical Marijuana 19 Program" or "MMP") to clarify the scope of Proposition 215 and to provide qualified patients 20 and primary caregivers who collectively or cooperatively cultivate marijuana for medical 21 purposes with a limited defense to certain specified State criminal statutes. Assembly Bill 2650 22 (2010) and Assembly Bill 1300 (2011) amended the Medical Marijuana Program to expressly 23 recognize the authority of cities and counties to "[a]dopt local ordinances that regulate the 24 location, operation, or establishment of a medical marijuana cooperative or collective" and to 25 civilly and criminally enforce such ordinances.

26 (c) In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. 27 (2013) 56 Cal.4th 729, the California Supreme Court held that "[n]othing in the CUA or the 28 MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own 29 ordinances, to regulate the use of its land ... "

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(d) In Browne v. County ofTehama (2013) 213 Cal.App.4th 704, the California Court of Appeal found that the CUA does not confer a right to cultivate marijuana and that an ordinance limiting the number of medical marijuana plants that may be grown outside, precluding marijuana cultivation within 1000 feet of schools, parks and churches, and requiring that an opaque fence of at least six feet to be installed around all marijuana grows was not preempted by state law. Further, in Mara! v. City of Live Oak (2013) 221 Cal.App.4th 975, the Court of Appeal held that the CUA and the MMP do not preempt a city's police power to completely prohibit the cultivation of all marijuana within that city because "there is no right -and certainly no constitutional right- to cultivate medical marijuana .... "

(e) The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., classifies marijuana as a Schedule 1 Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United State, and that has not been accepted as safe for use under medical supervision. The Federal

43 Controlled Substances Act makes it unlawful under federal law for any person to cultivate, 44 manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, 45 mariJUana.

46 (f) The possession, cultivation, use, and dispensing of marijuana continues to be 47 illegal under Federal law.

48 (g) On October 9, 2015 Governor Brown signed Assembly Bill No. 243, Assembly 49 Bill No. 266, and Senate Bill 643 into law, which collectively are known as the Medical SO Marijuana Regulation and Safety Act (hereinafter "MMRSA"). The MMRSA establishes a State 51 licensing scheme for commercial medical marijuana uses while protecting local control by 52 requiring that all such businesses must have a local license or permit to operate in addition to a 53 State license.

54 (h) The MMRSA became effective January 1, 2016 and contains provisions that 55 govern the cultivating, processing, transporting, testing, and distributing of medical cannabis to 56 qualified patients. The MMRSA also contains new statutory provisions that:

57 (1) Allow local governments to enact ordinances by March 1, 2016 expressing 58 their intent to prohibit the cultivation of marijuana and their intent not to administer a 59 conditional permit program pursuant to Health & Safety Code Section 11362.777 for the 60 cultivation of marijuana (Health & Safety Code§ 11362.777(c)(4));

61 (2) Expressly provide that the MMRSA does not supersede or limit local 62 authority for local law enforcement activity, enforcement of local ordinances, or 63 enforcement of local permit or licensing requirements regarding marijuana (Business & 64 Professions Code § 19315 (a)); and

65 (3) Expressly provide that the MMRSA does not limit the authority or 66 remedies of a local government under any provision of law regarding marijuana, including 67 but not limited to a local government's right to make and enforce within its limits all police 68 regulations not in conflict with general laws (Business & Professions Code § 19316( c)).

69 (i) While cultivation is prohibited under the City's permissive zoning regulations, the 70 City Council desires to enact this ordinance to expressly make clear that such uses are prohibited 71 in all zones throughout the City. Nothing in this ordinance shall be interpreted to mean that the 72 City's permissive zoning scheme allows any other use not specifically listed therein.

73 G) The cultivation of marijuana has significant impacts or the potential for 74 significant impacts on the City. These impacts include damage to residences and other buildings, 75 dangerous electrical alterations and use, inadequate ventilation, increased robberies and other 76 crimes, and the nuisance of strong and noxious odors.

77 (k) Marijuana plants, as they begin to flower and for a period of two months or more, 78 produce a strong odor, offensive to many people, and which may be detectable far beyond 79 property boundaries in sufficient quantities.

80 (1) The strong smell of marijuana creates an attractive nuisance, alerting persons to 81 the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery.

82 (m) The Attorney General's August 2008 Guidelines for the Security and Non-83 Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other 84 concentration of marijuana in any location or premises without adequate security increases the 85 risk that nearby homes or businesses may be negatively impacted by nuisance activity such as 86 loitering or crime.

87 (n) The indoor cultivation of marijuana has potential adverse effects to the structural 88 integrity of the building, and the use of high wattage grow lights and excessive use of electricity 89 increases the risk of fire which presents a clear and present danger to the building and its 90 occupants.

91 ( o) Furthermore, indoor cultivation of marijuana, often unattended, has potential to 92 cause harm to persons and property in that the use of high wattage grow lights and excessive use 93 of electricity increases the risk of fire which presents a distinct risk of harm to the building and 94 its occupants. Buildings where marijuana is cultivated are often illegally wired and have 95 overloaded electrical systems that result in fires. In 2015 alone, there were a number of reported 96 incidents of indoor marijuana cultivation sites causing fires. On February 9, 2015, there was a 97 fire in a residence in Sacramento that was caused by the indoor cultivation of marijuana. On 98 February 19, 2015, there was an electrical fire in Arcadia caused by an indoor marijuana 99 cultivation operation. On April 24, 2015 there was an explosion in a Silver Lake home that

100 leveled the house and destroyed several cars that was caused by an indoor marijuana cultivation 101 operation. In May 2015, a fire erupted in a commercial building in Sun Valley that was caused 102 by indoor marijuana grow house. In that same month, there was a fire in an Elk Grove home 103 caused by an overheated illegal electrical power connection used to power an indoor marijuana 104 grow house. In June 2015, there was a fire in a Sacramento residence caused by an indoor 105 marijuana grow house. In July 2015, there was a fire in a Baldwin Park home caused by grow 106 house. In September 2015, there was a fire in the garage of a Sun Valley residences that was 107 caused by an indoor marijuana grow house. On October 23, 2015, there was a fire in a Rialto 108 home that was caused by an indoor marijuana grow, started by an electrical panel that burst.

109 (p) Based on the experiences of other cities, these negative effects on the public 110 health, safety, and welfare are likely to occur, and continue to occur, in the City due to the 111 establishment and operation of marijuana cultivation, processing and distribution activities.

112 ( q) Based upon the findings above, the City Council finds that there is a current and 113 immediate threat to the public health, safety and welfare presented by the recent enactment of the 114 MMRSA, and the potential for cultivation of medical marijuana to occur in the City.

115 (r) Based upon the findings above, the City Council finds that this urgency ordinance 116 is necessary for the immediate preservation of the public health, safety and welfare. The City 117 Council finds and determines that the immediate preservation of the public health, safety and 118 welfare requires that this Ordinance be enacted as an urgency ordinance pursuant to Government 119 Code Section 36937(b) and take effect immediately upon adoption. Pursuant to state law, the 120 City must adopt a land use regulation expressly prohibiting the cultivation of medical marijuana

121 that is in effect by March 1, 2016, or the State will become the sole licensing authority for the 122 cultivation of medical marijuana. Unless this Ordinance becomes effective immediately, there 123 could be regulatory uncertainty whether cultivation of marijuana is prohibited in the City of Mill 124 Valley, thereby creating a risk to the public health, safety and welfare. Therefore, this Ordinance 125 is necessary for the immediate preservation of the public peace, health, safety and welfare and its 126 urgency is hereby declared.

127 SECTION 2. Section 20.08.133, entitled "Medical marijuana dispensary," of the Mill Valley 128 Municipal Code is hereby repealed. 129 130 SECTION 3. Section 20.60.400, entitled "Medical marijuana dispensaries prohibited," of the 131 Mill Valley Municipal Code is hereby re-titled "Medical marijuana regulations," and shall be 132 revised and replaced in its entirety as set forth in Exhibit A, attached hereto. 133 134 SECTION 4. CEQ A. The City Council hereby finds that it can be seen with certainty that there 135 is no possibility that the adoption of this ordinance, and the prohibitions established hereby, may 136 have a significant effect on the environment, because the ordinance will only impose greater 137 limitations on activities in the City, and will thereby serve to eliminate potentially significant 138 adverse environmental impacts. It is therefore not subject to the California Environmental 139 Quality Act review pursuant to Title 14, Chapter 3, Section 15061(b)(3) ofthe California Code 140 of Regulations. 141 142 SECTION 5. Severability. If any section, subsection, sentence, clause, or phrase ofthis 143 ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of 144 competent jurisdiction, such decision shall not affect the validity of the remaining portions ofthe 145 ordinance. The City Council hereby declares that it would have passed this ordinance and each 146 section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that anyone or 14 7 more sections, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional. 148 149 SECTION 6. Savings Clause. Neither the adoption of this ordinance nor the repeal or 150 amendment by this ordinance of any ordinance or part or portion of any ordinance previously in 151 effect in the City, or within the territory comprising the City, shall in any manner affect the 152 prosecution for the violation of any ordinance, which violation was committed prior to the 153 effective date of this ordinance, nor be construed as a waiver of any license, fee or penalty or the 154 penal provisions applicable to any violation of such ordinances. 155 156 SECTION 7. This urgency ordinance shall go into effect immediately upon adoption. A 157 summary of this ordinance shall, within fifteen (15) days after passage, be published in 158 accordance with Section 36933 ofthe Government Code ofthe State of California with the 159 names of the City Councilmembers voting for and against it. 160 161 THE FOREGOING URGENCY ORDINANCE was adopted at a regular meeting of the City 162 Council of the City of Mill Valley on this on the_ day of , 2016 by the 163 following vote:

164 AYES: Councilmembers: 165 NOES: Councilmembers:

166 ABSENT • Councilmembers: 167 ABSTAIN: Councilmembers: 168 169 170 171 172 173 174 ATTEST: 175 176 177 KELSEY ROGERS

JOHN McCAULEY MAYOR OF THE CITY OF MILL VALLEY

178 CITY CLERK/ADMINISTRATIVE ANALYST 179

180 EXHIBIT A 181 182 "20.60.400 Medical marijuana regulations. 183 184 A. Definitions.

185 1. "Cultivation" shall have the same meaning as set forth in California Business and 186 Professions Code Section 19300.5(1), as the same may be amended from time to time, 187 and shall include any activity involving the planting, growing, harvesting, drying, curing, 188 grading, or trimming of marijuana.

189 2. "Identification card" is a document issued by the State Department of Health Services 190 which identifies a person authorized to engage in the medical use of marijuana and the 191 person's designated primary caregiver, if any, as set forth in California Health and Safety 192 Code Section 11362.7.

193 3. "Marijuana" shall have the same meaning as "cannabis" as set forth in California 194 Business and Professions Code Section 19300.5(f), as the same may be amended from 195 time to time, and shall include all parts of the plant cannabis sativa linnaeus, cannabis 196 indica, or cannabis ruderalis, whether growing or not; the seeds thereof; the resin, 197 whether crude or purified, extracted from any part of the plant; and every compound, 198 manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. 199 "Marijuana" also means the separated resin, whether crude or purified, obtained from 200 marijuana. "Marijuana" also means marijuana as defined by Health and Safety Code 201 Section 11018. For the purpose of this Section, "marijuana" does not mean "industrial 202 hemp" as defined by California Food and Agricultural Code Section 81000 or California 203 Health and Safety Code Section 11018.5.

204 4. "Medical marijuana dispensary" means any location, structure, vehicle, store, co-op, 205 residence, or similar facility used, in full or in part, as a place at or in which marijuana is 206 sold, traded, exchanged, or bartered for in any way. "Medical marijuana dispensary" shall 207 include but not be limited to facilities which make available and/or distribute marijuana 208 in accordance with California Health and Safety Code Section 11362.5 et seq. "Medical 209 marijuana dispensary" shall also include "dispensary" as defined in the Medical 210 Marijuana Regulation and Safety Act, Business and Professions Code Section 211 19300.5(n), as the same may be amended from time to time. "Medical marijuana 212 dispensary" shall not include the following uses, as long as the location of such uses are 213 otherwise regulated by this code or applicable law: a pharmacy regulated by Chapter 9, 214 Division 2 of the Business and Professions Code and/or the Federal Controlled 215 Substances Act of 1970 and its implementing regulations, a clinic licensed pursuant to 216 Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed 217 pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care 218 facility for persons with chronic life-threatening illnesses licensed pursuant to Chapter 219 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly 220 licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a 221 residential hospice licensed pursuant to Chapter 8.5 of Division 2 of the Health and 222 Safety Code, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the

223 Health and Safety Code, as long as any such use complies strictly with applicable law, 224 including, but not limited to, Health and Safety Code Sections 11362.5 et seq.

225 5. "Medical Marijuana Regulation and Safety Act" or "MMRSA" shall collectively mean 226 the Medical Marijuana Regulation and Safety Act as contained, codified, and enacted as 227 California Business and Professions Code Chapter 3.5.

228 6. "Person with an Identification Card" shall have the same meaning as set forth in 229 California Health and Safety Code Section 11362.7, as the same may be amended from 230 time to time.

231 7. "Primary caregiver" shall have the same meaning as set forth in California Health and 232 Safety Code Section 11362.7, as the same may be amended from time to time.

233 8. "Qualified patient" shall have the same meaning as set forth in California Health and 234 Safety Code Section 11362.7, as the same may be amended from time to time.

235 B. Prohibitions.

236 1. A medical marijuana dispensary is not an allowable use anywhere in the City.

237 2. Cultivation of marijuana for commercial or non-commercial purposes, including 238 cultivation by a qualified patient, primary caregiver, or person with identification card is 239 expressly prohibited in all zones in the City. No person, including a qualified patient, 240 primary caregiver or person with identification card, shall cultivate any amount of 241 marijuana in the City, even for medical purposes.

242 C. Enforcement.

243 A violation of this section is a public nuisance and subject to all remedies available at law. No 244 provision of this section shall authorize a criminal prosecution or arrest prohibited by the 245 Medical Marijuana Program, Health and Safety Code, Section 11362.7 et seq. 246 247 D. Construction with state law.

248 Nothing in this chapter is intended to conflict with the provisions of state law concerning the 249 regulation of marijuana. In the event of a direct and express conflict between state law and any 250 provision of this chapter, state law, as applicable, shall control."

1 ORDINANCE NO. __ _ 2 3 A REGULAR ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILL 4 VALLEY AMENDING SECTIONS 20.08.133 AND 20.60.400 OF THE MILL VALLEY 5 MUNICIPAL CODE TO EXPRESSLY PROHIBIT CULTIVATION OF MEDICAL 6 MARIJUANA, INCLUDING CULTIVATION BY QUALIFIED PATIENTS, PRIMARY 7 CAREGIVERS, AND PERSONS WITH IDENTIFICATION CARDS AND TO 8 CONTINUE THE BAN ON MEDICAL MARIJUANA DISPENSARIES 9

10 11 12 13

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27 28

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35 36 37 38

39 40

THE CITY COUNCIL OF THE CITY OF MILL \':ALLEY DOES ORDAIN AS FOLLOWS: _

-SECTION 1. Findings. The City Council finds as follt.&fSG

(a) On October 9, 2015 Governor B~igned Assei't!ihly Bill No. 243, Assembly Bill No. 266, and Senate Bill 643 into law; "'hich collectively 1D:Jmown as the Medical Marijuana Regulation and Safety Act (hereina&ef "MMRSA"). The MNitSA establishes a State licensing scheme for commercial medical m~a uses..::W'hile protectii'iH. local control by requiring that all such businesses must have a loca§ieense nr:permit to operate in addition to a State license. ~ ~ --- -

(b) The MMRSA becomeaffecd:qe January I, jJQ 16 and contains provisions that govern the cultivating, processing, tranS!@ ting, tet!ljug, and di'm:ibuting of medical cannabis to qualified patients. The also con~ new SjilifQcy pro~s that: - -- -="---==-- -

( 1) orduia~JCes by March 1, 2016 expressing their intent to and their intent not to administer a conditional permit ~am"jiii=ant to & Safety Code Section 11362.777 for the cultiviidue ufmerijuana::t!l§lth & ~ 11362.777(c)(4)); ~ -=- -==:...... '"':"' -- -

-=._ (2) Expressly prgyide that t'ffi.FMMRSA does not supersede or limit local aut~ for local~ en:fOi!eement activity, enforcement of local ordinances, or enforcetBent of local pemrit or llii:tsing requirements regarding marijuana (Business & Professions£ode § 19315§); and "::""

-(3) :::::Expressly provide that the MMRSA does not limit the authority or

remedies of a lo~~ent under any provision of law regarding marijuana, including but not limited to a hitii:govemment's right to make and enforce within its limits all police regulations not in conflict with general laws (Business & Professions Code § 19316( c)).

(c) The City Council desires to enact this ordinance to expressly make clear that cultivation of medical marijuana is prohibited in all zones throughout the City. Nothing in this ordinance shall be interpreted to mean that the City's permissive zoning scheme allows any other use not specifically listed therein.

SECTION 2. Section 20.08.133, entitled "Medical marijuana dispensary," of the Mill Valley Municipal Code is hereby repealed.

41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62

63 64 65 66 67 68 69 70 71 72 73 74

75 76

SECTION 3. Section 20.60.400, entitled "Medical marijuana dispensaries prohibited," of the Mill Valley Municipal Code is hereby re-titled "Medical marijuana regulations," and shall be revised and replaced in its entirety as set forth in Exhibit A, attached hereto.

SECTION 4. CEQA. The City Council hereby finds that it can be seen with certainty that there is no possibility that the adoption of this ordinance, and the prohibitions established hereby, may have a significant effect on the environment, because the ordinance will only impose gre~ter limitations on activities in the City, and will thereby serve to eliminate potentially significant adverse environmental impacts. It is therefore not subject to the:Califomia Environmental Quality Act review pursuant to Title 14, Chapter 3, Section 1 Snd1 (b)(3) of the California Code of Regulations. ~

- -- -SECTION 5. Severability. If any section, subsed:Wn;::sentence, clause, or phrase of this ordinance is for any reason held to be invalid or ummnstitutional By fJ.e decision of any court of competent jurisdiction, such decision shall no~ the validity of~aining portions ofthe ordinance. The City Council hereby declares Hiit.it would have passed ffiiordinance and each section, subsection, sentence, clause, and phrase tfieteof, irre~tive of theW that anyone or more sections, subsections, sentenc~uses, or pliiil:ss b.liiiffiared invalid m ~~constitutional.

SECTION 6. Savings Clause. Nei~JUiaption oftlm; ordinance nor the repeal or amendment by this ordinance of any - or poffiiSh.of any ordinance previously in effect in the City, or within the territory sln111 in any manner affect the prosecution for the violll!i!!B nl nny wa5'#(>mmitted prior to the effective date of thi~ance, nm be license, fee or penalty or the penal provisions appli@We to any';Hi)lation

- -- -- -SECTION 7. if-his-ordin~aJjlii';¢fteetive following its adoption by the City Council...::iaiii'rii'i~his Oliiiillce (15) days after passage, be published in acc~e with S~69~he Govel'H£1imllt Code ofthe State of California with the names al'll>~e City Councilmembers vOting for and against it. - -=-INTRODUCE@ at a regular rtl¢ting ofttie City Council of the City of Mill Valley on the _dayof ~ ,201&aiid

-PASSED AND ADOI!HD at a J:egular meeting of the City Council of the City of Mill Valley on this __ day of - - , 2016, by the following vote:

77 AYES: Councilmembers: 78 NOES: Councilmembers: 79 ABSENT Councilmembers: 80 ABSTAIN: Councilmembers: 81 82 83 84 JOHN McCAULEY 85 MAYOR OF THE CITY OF MILL VALLEY

86 87 ATTEST: 88 89 90 KELSEY ROGERS 91 CITY CLERK/ADMINISTRATIVE ANALYST 92

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EXHIBIT A

"~0.60.400 Medical marijuana regulations.

A. Definitions.

1. "Cultivation" shall have the same meaning as set forth in California Business and Professions Code Section 19300.5(1), as the same may be amended from time to time, and shall include any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. -

2. "Identification card" is a document issued by the ~partment of Health Services which identifies a person authorized to engage i.Bfii.i'iiis:dical use of marijuana and the person's designated primary caregiver, if anL :get fodli jo California Health and Safety Code Section 11362.7. -=..- -=-- -- -- -- -

3. "Marijuana" shall have the same meamag as "cannabis" as set fcnth in California Business and Professions Code Section ~0.5(±), as .the same m~ amended from time to time, and shall include all parts of t~t QatBiiitbis sativa li~s, cannabis indica, or cannabis ruderalis;@l¥;ther growing ~e seeds thereof; itie resin, whether crude or purified, exlii:tiW:Pm any p~e plant; and every compound, manufacture, salt, derivative, :riiiSCt~eparation ufthe plant, its seeds, or resin. "Marijuana" also means the sepC~l!led r~ther criile or purified, obtained from

mealianarijuallii3i=tlefine~ealth and Safety Code of tJii:.SecJiiif''~a',.....does not mean "industrial

'-'<U.U ........... a. Food aijiJf§i'icultura~de Section 81 000 or California atets;,ode ~eeJEH>n 11018.5

4. ~~~~~~:: any location, structure, vehicle, store, co-op, l rac:tm~llseo, i~n=part, as a place at or in which marijuana is

o~51~et·ed for tlMtlly way. "Medical marijuana dispensary" shall liHBK:o to Bdlities which make available and/or distribute marijuana

~and Safety Code Section 11362.5 et seq. "Medical marijuaiii'dispensary" also include "dispensary" as defined in the Medical Marijuan~lation ~afety Act, Business and Professions Code Section 19300.5(n), ~ sam~ be amended from time to time. "Medical marijuana dispensary" shall§iii;t~de the following uses, as long as the location of such uses are otherwise regulate~is code or applicable law: a pharmacy regulated by Chapter 9, Division 2 of the Business and Professions Code and/or the Federal Controlled Substances Act of 1970 and its implementing regulations, a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life-threatening illnesses licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice licensed pursuant to Chapter 8.5 of Division 2 of the Health and Safety Code, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the

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B.

Health and Safety Code, as long as any such use complies strictly with applicable law, including, but not' limited to, Health and Safety Code Sections 11362.5 et seq.

5. "Medical Marijuana Regulation and Safety Act" or "MMRSA" shall collectively mean the Medical Marijuana Regulation and Safety Act as contained, codified, and enacted as California Business and Professions Code Chapter 3.5.

6. "Person with an Identification Card" shall have the same meaning as set forth in California Health and Safety Code Section 11362.7, as the same may be amended from time to time.

7. "Primary caregiver" shall have the same meaning a:! !Ill! forth in California Health and Safety Code Section 11362.7, as the same may ~'H~ from time to time.

8. "Qualified patient" shall have the same meafitng as set fotih jo California Health and Safety Code Section 113 62.7, as the s~ be amended 1iiiB.. time to time. - -- -- -- -- -Prohibitions. -=-- ~

..=.. - - -1. A medical marijuana is not an allOWfr.b~anywhere in tlie « 'ity.

2. Cultivation of marijuana for or non-cm:&'.l:llercial purposes, including cultivation by a qualified . · 01 Jl!!:lrson with identification card is expressly pro hi · all zones flii3:he Ci~erson, 4il*luding a qualified patient, primary · with idiii:aficatiuiiiiiil; shall ctjfivate any amount of

medi~.

C. Enforcement.

A violat~jhis£~ is iii!':!!!ic nu~d siliiject to all remedies available at law. No provision Ofthis sectiOn shall aUUUIIize a cri~osecution or arrest prohibited by the MedicSmijuana Program, Healff€i:!..4 Safety COde, Section 11362.7 et seq.

D. Cons~with state~ . - - -Nothing in this eli~ is intendQG to conflict with the provisions of state law concerning the regulation of mariju~ the e"ent of a direct and express conflict between state law and any provision of this chapter;=s£8~, as applicable, shall control."