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Ordinance Number 927ORDINANCE NO. 927 AN INTERIM URGENCY ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, ESTABLISHING ZONING RESTRICTIONS ON THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES PENDING A ZONING STUDY. THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: WHEREAS, under federal statutory law, it is illegal to possess, use, or manufacture, or distribute marijuana under any circumstance, and WHEREAS, federal case law in the case of Gonzales v. Raich. 125 S.Ct. 2195 2( 005) has confirmed that there is no federal law provision permitting an legal exception for marijuana use for medical necessity purposes, and WHEREAS, California voters adopted a state-wide initiative entitled "The Compassionate Use Act of 1996" (Health and Safety Code section 11362.5 et seq.) to expressly authorize the use of marijuana for medical uses under limited circumstances, and WHEREAS, as a result of Proposition 215, individuals have attempted to establish medical marijuana dispensaries in some California cities, and WHEREAS, the City's Police Department has been advised that cities which have experienced the opening of such dispensaries have also experienced an increase in crime, such as burglary, robbery, loitering, money laundering and the sale of other illegal drugs, and WHEREAS, a medical marijuana dispensary is a unique land use arising from the adoption of Proposition 215, and which is not expressly designated as a "permitted use' in any zoning district in the City of San Juan Capistrano, and WHEREAS, the legality of Proposition 215 and use of marijuana remains in serious legal doubt because of federal law prohibitions as noted herein, and NOW THEREFORE, the City Council of the City of San Juan Capistrano does hereby establish the following restrictions on the establishment of marijuana dispensaries or any other such similar uses: SECTION 1. Prohibition of Establishment and Operation of Medical Marijuana Dispensaries or Related Uses. The establishment of any medical marijuana dispensary, or other described use involving the use, cultivation, or dispensing of marijuana, is hereby prohibited within any zoning district of the City pending a full and complete zoning study, and enactment of a municipal code amendment, pertaining to the potential appropriate locations for such a use within the community. Page 1 of 4 0927 SECTION 2. Definitions. For purposes of this ordinance, "medical 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 for the use of more than one (1) person. A "medical marijuana dispensary" includes a "collective" as defined in Health and Safety Code Section 11362.115, and a marijuana club as described in People v. Peron, (1997) 59 Cal.AppAth 1383. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by the City's Code: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health & Safety Code, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health & Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health & Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of the Health & Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health & Safety Code Section 11362.5 et seq. Further, nothing in this ordinance shall be interpreted to permit any activity prohibited under federal laws and regulations. SECTION 3. Environmental Review. The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) (Title 14, of the California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; and it prevents changes in the environment pending the completion of the contemplated City Code review. SECTION 4. Zoninq Study. The Planning Department, with the support of the Police Services Department, is hereby directed to commence a zoning study relating to medical marijuana dispensaries, or similar uses as further described in section 2; more particularly, whether such uses should be allowed in the City, which zoning districts are appropriate zoning districts for such uses if allowed, and whether other appropriate regulations are necessary to protect the public health, safety and welfare. SECTION 5. Findings. This Urgency Ordinance is enacted pursuant to Government Code section 65858. The City Council hereby finds that the approval of any land use entitlement or business license for the uses described in this ordinance would result in a threat to the public health, safety, and welfare of the community in that: a) The City does not have specific land use regulations in place to address proposals for medical marijuana dispensaries; b) medical marijuana facilities, or similar such uses, have been found to have adverse criminal secondary effects upon citizens in other communities as demonstrated by the material provided in this staff report. Accordingly, it is necessary to prohibit such uses until a zoning study is completed to determine how the City is to land use plan for such uses. Page 2 of 4 0927 SECTION 6. Effective Date. This interim urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This interim urgency ordinance shall continue in effect for forty-five (45) days from the date of its adoption and shall thereafter be of no further force and effect unless otherwise extended pursuant to Government Code section 65858. SECTION 7. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in 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 of effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional. PASSED, APPROVED, AND ADOPTED thi 17th day of July, 2007. SA A" VATO, MAYOR I ATTEST: CITY CLERK STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed hereby certify that the foregoing is a true adopted and passed at a Regular Meeting the following vote, to wit: AYES: COUNCIL MEMBERS: NOES COUNCIL MEMBERS: 'ABSENTrONCI´┐Ż.,´┐ŻAEM ERl3 S: /MAMd'ANy6ARET R. MO rrACCJJHANI, City Clerk ) ss. City Clerk of the City of San Juan Capistrano, do and correct copy of Ordinance No. 927 which was of the City Council on the 17th day of July 2007 by Nielsen, Hribar, Uso, Soto, and Mayor Allevato None None Page 3 of 4 0927 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, declare as follows: That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano; That in compliance with State laws, Government Code section 36933(1) of the State of California, on the 11`" day of July 2007, at least 5 days prior to the adoption of the ordinance, I caused to be posted a certified copy of the proposed ordinance entitled: AN INTERIM URGENCY ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, ESTABLISHING ZONING RESTRICTIONS ON TH EESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES PENDING A ZONING STUDY This document was posted in the Office of the City Clerk R-1 R. MONAHAN, CITY CLE an Capistrano, California Page 4 of 4 0927