Ordinance No. 1152ORDINANCE NO. 1152
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, AMENDING PORTIONS OF THE ZONING CODE,
APPENDIX I, SECTION 2, OF THE CYPRESS MUNICIPAL CODE
TO PROHIBIT MARIJUANA CULTIVATION AND MARIJUANA
PROCESSING IN SPECIFIED ZONING DISTRICTS
WHEREAS, in 1996, the voters of the state of California approved Proposition
215, codified at Health and Safety Code section 11362.5 et seq. and entitled "The
Compassionate Use Act of 1996" (the "CUA "); and
WHEREAS, the CUA was intended to provide seriously ill Californians the ability
to possess, use and cultivate marijuana for medical use once a physician has deemed
the use beneficial to a patient's health;
WHEREAS, in 2003, California Senate Bill (SB) 420 was enacted by the
Legislature to clarify the scope of the CUA and to allow California cities and counties to
adopt and enforce rules and regulations consistent with SB 420 and the CUA; and
WHEREAS, these new regulations and rules became known as the Medical
Marijuana Program ( "MMP "), which, among other things, enhanced the access of
patients and caregivers to medical marijuana through collective, cooperative cultivation
projects; and
WHEREAS, neither the CUA 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 or process medical marijuana within its jurisdiction; and
WHEREAS, in 2013, the California Supreme Court confirmed that cities have the
authority to ban medical marijuana land uses (City of Riverside v. Inland Empire
Patients Health and Wellness Center (2013) 56 Ca1.4th 729); and
WHEREAS, also in 2013, the California Supreme Court further determined that
the CUA and MMP do "not preempt a city's police power to prohibit the cultivation of all
marijuana within that city" (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 978);
and
WHEREAS, under the Federal Controlled Substances Act, codified in 21 U. S. C.
Section 801 et seq., the use, possession, and cultivation of marijuana are unlawful and
subject to federal prosecution without regard to a claimed medical need; and
WHEREAS, on October 9, 2014, Governor Jerry Brown signed into law, three (3)
bills — AB 243, AB 266 and SB 643 — which together form the Medical Marijuana
Regulation and Safety Act (the "Act "); and
WHEREAS, the Act, which becomes effective January 1, 2016, creates a
comprehensive state licensing system for the commercial cultivation, manufacture, retail
sale, transport, distribution, delivery, and testing of medical cannabis; and
WHEREAS, in addition to creating these State controls, the Act preserves the
City's authority to prohibit, regulate and /or license medicinal marijuana uses within its
jurisdiction, as it expressly provides that the Act:
• Is not intended "to supersede or limit existing local authority for law
enforcement activity, enforcement of local zoning requirements or local
ordinances, or enforcement of local permit or licensing requirements" (Bus. &
Prof. Code § 19315(a));
• Does not limit the authority or remedies of a local government under any
provision of law regarding marijuana, including but not limited to a local
government's right to make and enforce within its limits all police regulations
not in conflict with general laws (Bus. & Prof. Code § 19316(c));
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• Authorizes local jurisdictions like the City with the power to "adopt ordinances
that establish additional standards, requirements, and regulations for local
licenses and permits for commercial cannabis activity" (Bus. & Prof. Code §
19316); and
WHEREAS, the Act further expressly allows local governments to enact
ordinances 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 (Health & Safety Code § 11362.
777(c)(4)); and
WHEREAS, under the dual licensing system created by the Act, before any kind
of medical marijuana license will be issued by the State, the applicant must have
obtained the necessary local license and /or permit for the requested marijuana - related
use; and
WHEREAS, pursuant to the following statutes created by the Act, local
jurisdictions that adopt a ban on medicinal marijuana dispensaries and /or cultivation will
effectively have a "veto" over whether a state license for the locally regulated activities
can be issued:
Business & Professions § 19320(b): "A licensee shall not commence
[commercial cannabis] activity under the authority of a state license until
the applicant has obtained, in addition to the state license, a license or
permit from the local jurisdiction in which he or she proposes to operate,
following the requirements of the applicable local ordinance."
Health & Safety Code § 11362.777(b)(1): "A person shall not cultivate
medical marijuana without first obtaining ... A license, permit, or other
entitlement, specifically permitting cultivation pursuant to these provisions,
from the city... in which the cultivation will occur."
Business & Professions Code § 19320(b): "Revocation of a local license,
permit or authorization shall terminate the ability of a medical cannabis
business to operate within that local jurisdiction...."
Business & Professions Code § 19312: "Each licensing authority may
suspend or revoke licenses...."
WHEREAS, the City hereby re- affirms and confirms that the City's Zoning Code
is adopted and operates under the principles of permissive zoning, meaning that any
land use not specifically authorized or identified in the zoning code is prohibited; and
WHEREAS, California Health & Safety Code Section 11362.777(b)(3) expressly
provides that the Department of Food and Agriculture may not issue a state license to
cultivate medical marijuana within a city that prohibits cultivation under the principles of
permissive zoning; and
WHEREAS, several California cities have reported negative impacts of marijuana
cultivation and processing activities, including but not limited to offensive odors, criminal
activity including trespassing, theft, violent robberies and robbery attempts, and the
illegal sale and distribution of marijuana; and public health concerns including fire
hazards, mold, fungus, and pests; and
WHEREAS, marijuana plants, as they begin to flower and for a period of two
months or more, produce a strong odor, offensive to many people, and detectable far
beyond property boundaries if grown outdoors; and
WHEREAS, due to the value of marijuana plants and their strong smell (which
alerts others to their locations), marijuana cultivation has been linked to break -ins,
robbery, armed robbery, theft and attendant violence and injury, creating an increased
risk to public safety and /or "attractive nuisance "; and
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WHEREAS, the indoor cultivation of marijuana has potential adverse effects to
the structural integrity of the buildings in which it is cultivated, and the use of high
wattage grow lights and excessive use of electricity increases the risk of fire, which
presents a clear and present danger to the building and its occupants; and
WHEREAS, the Attorney General's August 2008 Guidelines for the Security and
Non - Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or
other concentration of marijuana in any location or premises without adequate security
increases the risk that nearby homes or businesses may be negatively impacted by
nuisance activity such as loitering or crime; and
WHEREAS, based on the experiences of other cities, these negative effects on
the public health, safety, and welfare are likely to occur, and continue to occur, in the
City due to the establishment and operation of marijuana cultivation, processing and
distribution activities; and
WHEREAS, based on the findings set forth above and herein, the potential
establishment of the cultivation, processing and distribution of medical marijuana in the
City without an express ban on such activities poses a current and immediate threat to
the public health, safety, and welfare in the City due to the negative impacts of such
activities as described above; and
WHEREAS, the issuance or approval of business licenses, subdivisions, use
permits, variances, building permits, or any other applicable entitlement for marijuana
cultivation, processing and /or distribution will result in the aforementioned threat to
public health, safety, and welfare; and
WHEREAS, pursuant to the above - described express statutory authority and its
police power, the City has determined that, in addition to the existing prohibition on the
establishment of medicinal marijuana dispensaries codified in the Ordinance, an
express prohibition on the cultivation of marijuana is needed to protect the public health,
safety and welfare; and
WHEREAS, in light of the findings and determinations set forth herein and further
advanced during the public hearing on this matter, the City now desires to amend the
Zoning Code, Appendix I, to the Cypress Municipal Code to further prohibit cultivation
pursuant to the new state law requirements (AB 266 and AB 243), and to make other
miscellaneous edits to effectuate the same (the "Amendments "); and
WHEREAS, these Amendments would affect all properties city -wide; and
WHEREAS, on January 11, 2016, the City's City Council, acting in its capacity as
the Planning Agency for the City of Cypress, conducted a duly noticed public hearing on
the proposed Amendments, and all testimony received was made a part of the public
record; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Findings. The City Council, acting in its capacity as the Planning
Agency for the City of Cypress, finds and determines as follows:
A. The cultivation and dispensing of marijuana has significant impacts
or the potential for significant impacts on the City. These impacts include damage
to residences and other buildings, dangerous electrical alterations and use, inadequate
ventilation, and the nuisance of strong and noxious odors. Additionally, there is
evidence of an increased incidence of crime - related secondary impacts in locations
associated with medical marijuana dispensaries and cultivation.
B. The proposed Amendments will further the public health, safety and
general welfare. The proposed Amendments to the Ordinance will prohibit cultivation
of medical within the City limits and will help protect the public health, safety and
general welfare of the City and its residents. They will also mitigate or reduce the
crime - related secondary impacts associated with medical marijuana dispensaries and
cultivation, which is contrary to policies that are intended to promote and maintain the
public's health, safety and welfare. These prohibited services will help preserve the
City's law enforcement services, in that monitoring and addressing the negative
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secondary effects and adverse impacts will likely burden the City's law enforcement 203
resources.
C. The proposed Amendments will not adversely affect adjoining
property as to value, precedent or be detrimental to the area. The proposed
Amendments to the Ordinance will further solidify the City's stance on prohibiting
medical marijuana dispensaries and expand it to include a ban on cultivation. The
prohibition of these uses will help protect property values in the City and discourage a
wide range of illicit activities associated with the sale, cultivation and dispensing of
marijuana and /or medical marijuana.
D. The proposed Amendments are consistent with the General Plan and
are in compliance with all applicable provisions of the Zoning Code and other
ordinances and regulations of the City. The proposed amendments prohibiting
medical marijuana dispensaries and cultivation within the City's limits are consistent
with the existing language of the Cypress Zoning Code, Appendix I, to the Cypress
Municipal Code.
E. The proposed Amendments are consistent with Federal Law. The
possession, cultivation, use, and dispensing of marijuana continues to be illegal under
Federal law. The Federal Controlled Substances Act classifies marijuana as "Schedule
Drug," which is defined as a drug or other substance that has a high potential for
abuse, and makes it unlawful for any person to cultivate or dispense marijuana. The
Controlled Substance Act contains no statutory exemption for the possession of
marijuana for medical purposes.
Section 2. Cypress Zoning Code § 6.31.020 (at Appendix I [Zoning], Article 6
[Definitions], Section 6 [Definitions]), Sub - Section M. Definitions, "M. ", by amending, in
its entirety, the definition of medicinal marijuana dispensary and by adding the following
new definitions, alphabetical order (deleted text, if any, is show in ctrikethrough; new
text, if any, is show in bold & italics):
"Marijuana" means any or all parts of the plant Cannabis sativa
Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing
or not; the seeds thereof; the resin or separated resin, whether crude
or purified, extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or preparation of
the plant, its seeds or resin, including marijuana infused in foodstuff
or any other ingestible or consumable product containing marijuana.
The term "marijuana" shall also include "medical marijuana" as such
phrase is used in the August 2008 Guidelines for the Security and
Non - Diversion of Marijuana Grown for Medical Use, as may be
amended from time to time, that was issued by the office of the
Attorney General for the state of California or subject to the
provisions of California Health and Safety Code Section 11362. 5
(Compassionate Use Act of 1996) or California Health and Safety
Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).
"Marijuana Cultivation" means the growing, planting, harvesting,
drying, curing, grading, trimming or processing of marijuana or any
part thereof.
Safety Code § 11362.5 et seq. A "medical marijuana dispensary" shall not
include the following uses, as long as the location of such uses arc
otherwise regulated by this Code or applicable law: a clinic licensed
pursuant to Health and Safety Code division 2, chapter 1; a health care
licensed pursuant to Health and Safety Code, division 2, chapter 3.01; a
Safety Code, division 2, chapter 3.2; a residential hospice, or a home
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chapter 8; as long as any such use complies strictly with applicable law
"Marijuana Dispensary" means any for - profit or not - for - profit facility
or location, whether permanent or temporary, where the owner(s) or
operator(s) intends to or does possess and distribute marijuana, or
allows others to possess and distribute marijuana, to more than one
person, such as a qualified patient, primary caregiver or a person
with an identification card issued in accordance with California
Health and Safety Code Sections 11362.5 to 11362.83. A "medical
marijuana dispensary" includes a "collective" or "cooperative" as
described in Health and Safety Code Section 11362.775, and includes
an establishment that delivers marijuana to offsite locations. A
"medical marijuana dispensary" shall not include the following uses;
provided, that the location of such uses is permitted by the Code and
the uses comply with all applicable state laws including Health and
Safety Code Section 11362.5 et seq.:
1. A clinic licensed pursuant to Chapter 1 of Division 2 of
the Health and Safety Code;
2. A health care facility licensed pursuant to Chapter 2 of
Division 2 of the Health and Safety Code;
3. A facility licensed pursuant to Chapter 2 of Division 2 of
the Health and Safety Code;
4. A residential care facility for persons with chronic life -
threatening illness licensed pursuant to Chapter 3.01 of
Division 2 of the Health and Safety Code;
5. A residential care facility for the elderly licensed
pursuant to Chapter 3.2 of Division 2 of the Health and Safety
Code; or
6. A residential hospice or a home health agency licensed
pursuant to Chapter 8 of Division 2 of the Health and Safety
Code.
"Marijuana Processing" means any method used to prepare
marijuana or its byproducts for commercial retail and/ or wholesale,
including but not limited to: drying, cleaning, curing, packaging, and
extraction of active ingredients to create marijuana related products
and concentrates.
Section 3. Cypress Zoning Code, Prohibited land uses, Tables 2 -2, 2 -6, 2 -11,
and 2 -17 are all amended to add a "" (meaning that the listed land use is prohibited in
that specific zoning district) to the following defined terms and tables (deleted text, if
any, is show in ; new text, if any, is show in bold & italics):
Cypress Zoning Code § 2.05.030 and associated Table 2 -2 [prohibited uses in
residential zoning district] — marijuana cultivation, medicinal marijuana dispensary,
marijuana processing; and
Cypress Zoning Code § 2.06.030 and associated Table 2 -6 [prohibited uses in
commercial zoning district] — marijuana cultivation, medicinal marijuana dispensary,
marijuana processing; and
Cypress Zoning Code § 2.07.030 and associated Table 2 -11 [prohibited uses in
industrial zoning district] — marijuana cultivation, medicinal marijuana dispensary,
marijuana processing; and
Cypress Zoning Code § 2.08.030 and associated Table 2 -15 [prohibited uses in
special purpose zoning district] — marijuana cultivation, medicinal marijuana
dispensary, marijuana processing.
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Section 4. If any section, subsection, sentence, clause, phrase, or portion of 21 0
this Ordinance is, for any reason, held to be invalid or unconstitutional by the decision of
any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council of the City of Cypress hereby
declares that it would have adopted this Ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases, or portions thereof may be
declared invalid or unconstitutional.
Section 5. This Ordinance shall be in full force and effect thirty (30) days after
its adoption following second reading.
Section 6. The City Clerk shall certify to the passage and adoption of this
Ordinance by the City Council of the City of Cypress and shall cause a summary of this
ordinance to be published in accordance with Government Code § 36933.
FIRST READING at a regular meeting of the City Council of said City held on the
1th day of January, 2016 and finally adopted and order posted at a regular meeting held
on the 25th day of January, 2016.
MAYOR OF THE CITY CI F CYPRESS
ATTEST:
` - itL.JC
CITY CLERK OF THE CITY OF CYPRESS
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
I, DENISE BASHAM, City Clerk of the City of Cypress, DO HEREBY CERTIFY that
the foregoing Ordinance was duly adopted at a regular meeting of said City Council held
on the 25th day of January, 2016, by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: Berry, Johnson, Peat, Morales and Yarc
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
CITY CLERK OF THE CITY dF CYPRESS
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