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HomeMy WebLinkAboutItem 4 - Staff Report - Permissive ZoningCHULA VISTA PLANNING COMMISSION AGENDA STATEMENT.. Item: 4 Meeting Date: 1/13/16 ITEM TITLE: Public Hearing: MPA15 -0001; Consideration of an Amendment to Title 19 to affirm that Title 19 is governed by permissive zoning principles and to clarify that uses prohibited elsewhere in the Municipal Code are also prohibited as land uses. Resolution MPA15 -0001 of the City of Chula Vista Planning Commission recommending that the City Council approve an amendment to Municipal Code Title 19 to affirm permissive zoning principles and to clarify that uses prohibited elsewhere in the Municipal Code are also prohibited land uses. SUBMITTED BV: Steve Power, Principal Planner Megan McClurg, Deputy City Attorney Michael Shirey, Deputy City Attorney REVIEWED BY: Kelly Broughton, Director of Development Services INTRODUCTION The impetus for this subject amendment to Municipal Code Title 19 stems from the state laws governing medical marijuana. On October 9, 2015, Governor Jerry Brown signed the "Medical Marijuana Regulation. and Safety Act" (the "Act ") into law. The Act becomes effective January 1, 2016 and contains provisions that govern the cultivating, processing, transporting, testing, and distributing of medical marijuana to qualified patients throughout the state. The Act contains statutory provisions that allow local governments to enact ordinances to prohibit marijuana cultivation, processing, delivery, and dispensaries. A provision within the Act states that local governments that wish to prevent marijuana cultivation within their boundaries must have prior to March 1, 2106 a land use regulation or ordinance, either expressly or under the principles of permissive zoning, that prohibits medical marijuana cultivation. If local governments do not have such regulations or ordinances prior to March 1, 2016, the state will become the sole licensing authority for cultivation applicants in that local jurisdiction. The attached proposed resolution and ordinance affirm and clarify that the current provisions contained in Municipal Code Chapter 5.66 prohibiting the cultivation of marijuana extend to the land use code and that such cultivation is a prohibited as a land use under Title 19. ENVIRONMENTAL REVIEW The proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined under Section 15378 of the state CEQA Guidelines because it will not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, Planning Commission January 13, 2016 MPA 15 -0001 Page No. 2 the activity is not subject to the CEQA. Notwithstanding the foregoing it has also been determined that there is no possibility that the activity may have a significant effect on the environment; therefore, pursuant to Section 15061(b)(3) of the State CEQA Guidelines, the activity is not subject to the CEQA. Thus, no environmental review is required. RECOMMENDATION That the Planning Commission adopt Resolution MPA15 -0001 recommending that the Chula Vista City Council amend Title 19 to affirm that Title 19 is governed by permissive zoning principles and to clarify that uses prohibited elsewhere in the Municipal Code are also prohibited as land uses under Title 19. DISCUSSION In 1996, the voters of the State of California approved Proposition 215, the Compassionate Use Act of 1996 (CUP) to enable seriously ill Californians, under the care of a physician, to legally possess, use, and cultivate marijuana for medical use under state law. In 2003, the California Legislature adopted SB 420, the Medical Marijuana Program (MMP) which permits qualified patients and their primary caregivers to associate collectively or cooperatively to cultivate marijuana for medical purposes without being subject to criminal prosecution under the California Penal Code. Neither the CUP nor the MMP require or impose an affirmative duty or mandate upon a local government to allow, authorize, or sanction the establishment of facilities that cultivate medical marijuana within its jurisdiction. In May 2013, the California Supreme Court issued its decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., et al., holding that cities have the authority to ban medical marijuana land uses. Under the Federal Controlled Substances Act, the cultivation of marijuana remains unlawful and subject to federal prosecution without regard to claimed medical need. As discussed above, on October 9, 2015, Governor Jerry Brown signed into law the Act which is comprised of the state legislative bills known as AB 243, AB 266, and SB 643. The Act becomes effective January 1, 2016 and contains provisions that govern the cultivating, pro_ cessing, transporting, testing and distributing of medical cannabis (i.e., marijuana) to qualified patients. The Act also contains a new statutory provision in Health & Safety Code section 11362.777(c)(4) that requires local governments that wish to prevent marijuana cultivation within their boundaries to have a land use regulation or ordinance, either expressly or under the principles of permissive zoning, prior to March 1, 2016, that prohibits cultivation. In the event that a local government does not have the applicable regulation, ordinance, or express zoning principle prior to March 1, 2016, the state will became the sole licensing authority for medical marijuana cultivation applicants in that local jurisdiction. The Chula Vista City Council adopted Ordinance 3204 enacting municipal code Chapter 5.66 on September 20, 2011. Chapter 5.66 prohibits medical marijuana dispensaries from operating in the City of Chula Vista. The definition of "medical marijuana dispensary" includes any fixed facility or location where marijuana is cultivated for medical purposes. Chapter 5.66 is contained within the Business Licenses, Taxes and Regulations section of the Municipal Code. In addition to being prohibited under Chapter 5.66, the cultivation of medical marijuana is not listed as a permitted use in Title 19, the Planning and Zoning section of the Municipal Code. Planning Commission January 13, 2016 MPA 15 -0001 Page No. 3 Land uses not permitted in the City of Chula Vista, either expressly or as a conditional use, are unlawful and prohibited under section 19.08.020 of the Municipal Code. A zoning code that operates to prohibit any non - permitted uses has been defined by the California Courts of Appeal in City of Corona v. Naulls and City of'Monterey v. Carrnshimba as a "permissive zoning" code. Although the City has already prohibited the cultivation of medical marijuana under Chapter 5.66 and the City of Chula Vista's zoning code currently operates under the principals of permissive zoning, it is in the City's interest, given the newly enacted provisions of Health & Safety Code section 11362.777(c)(4) to explicitly affirm the permissive zoning nature of its zoning code and clarify its prohibited land uses. DECISION -MAKER CONFLICTS: Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations Title 2, section 18702.2(a)(11) is not applicable to this decision for purpose of determining a disqualifying real property - related financial conflict of interest under the Political Reform Act (Cal. Gov. Code section 87100, el seq.). Staff is not independently aware, and has not been informed by any Planning Commission member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CONCLUSION: In response to newly enacted Health & Safety Code section 11362.777(c)(4), Title 19 should be amended to expressly affirm that (1) the City of Chula Vista's zoning code operates under permissive zoning principles; therefore, any use not permitted under Title 19 is prohibited; and (2) any action prohibited elsewhere in the municipal code is also prohibited as a land use under Title 19. Such amendments to Title 19 will further evidence the City of Chula Vista's desire to maintain local jurisdiction over the cultivation of marijuana within the city. FISCAL IMPACT: This subject amendment to Title 19 results in no fiscal impact to the city. ATTACHMENTS: 1. Planning Commission Resolution 2. City Council Ordinance