HomeMy WebLinkAbout4015~- Ordinance 4015
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3 AN ORDINANCE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF BUTTE
~ EXTENDING ORDINANCE NUMBER 4013 TO TEMPORARILY PROHIBIT THE
5 ESTABLISHMENT OR OPERATION OF MARIJUANA DISPENSARIES.
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'~ The Board of Supervisors of the County of Butte ordains as
$ follows:
9 Section 1. F~.ndings. The Board finds and declares as follows:
10 (a) In 1996, the voters of the State o~ California approvec
11 Proposition 215 (codified as California Health and Safety
12 Code section 11362.5, and entitled "The Compassionate Use
~~ Act of 1996"). The intent of Proposition 215 was tc
14 enable persons who are in need of marijuana for medical
15 purposes to use it without fear of criminal prosecution
z6 under limited, specified circumstances.
1~ (b} In 2004, the Legislature enacted Senate Bill 42C
~8 (codified as California Health and Safety Code section
19 11362.7 et seq.} to clarify the scope of Proposition 215,
20 ~ and to provide qualifying patients and primary caregiver:
21 who collectively or cooperatively cultivate marijuana foa
22 medical purposes with a limited defense to certair
23 specified state criminal statutes.
24 (c} The federal Controlled Substances Act, 21 U.S.C. ~~ 80:
25 et seq., classifies marijuana as a Schedule I Drug, which
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is defined as a drug or other substance that has a hig
potential for abuse, that has no currently accepte
medical use in treatment in the fJnited States, and that
has not been accepted as safe for use under medical
supervision. The federal Controlled Substances Act makes
it unlawful, under federal law, for any person t
cultivate, manufacture, distribute or dispense, o~
possess with intent to manufacture, distribute or
dispense, marijuana. The federal Controlled Substances
Act contains no exemption for the cultivation,
manufacture, distribution, dispensation, or possession of
marijuana for medical purposes.
(d) Facilities which dispense marijuana have proven to have
serious harmful effects on the neighborhoods in which
they are located, to owners of property in suer
neighborhoods, and to citizens living, visiting,
shopping, conducting business or otherwise present in the
area, as reported by several other California countieti
and .cities. Such effects are due to such factors as the
illegal nature of the activity, the presence of large
quantities of marijuana at the dispensaries, the presencE
of large amounts of cash, the presence of weapons, anc
other factors. Harmful effects at the dispensaries anc
the surrounding areas have included an increase it
burglaries, robberies, illegal sales of drugs, use o3
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possession of marijuana by unauthorized persons, attacks
on persons entering or leaving the premises, loitering,
smoking marijuana in public places, and driving whit
under the influence of marijuana.
(e) Tn February 2009, the U.S. Attorney General stated that
federal law enforcement officials would ease enforcement
at California medical marijuana facilities. This
statement, along with other factors, has resulted in
burgeoning interest in establishing marijuana
dispensaries in the State of California and the region of
the County of Butte (including incorporated cities within
the County). Tn response, numerous cities and counties
around the state are enacting regulations. Among the
counties adjacent to Butte County, many agencies have
recently enacted ordinances either prohibiting oa
regulating marijuana dispensaries, or establishing
moratorium on marijuana dispensaries. These regulation:
can be expected to have the effect of redirecting person;
desirous of establishing such dispensaries, to consider
doing so in the unincorporated area of Butte County. Thy
County has received several inquires regarding the
establishment of marijuana dispensaries.
(f) Proposition 215 and Senate Bill 420 do not preempt loco
zoning or nuisance regulations affecting marijuana
related land uses; rather, Senate Bill 420' (Health an
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Safety Code Section 11362.83} expressly allows cities an~
counties to adopt and enforce ordinances that are
consistent with state law. The scope of local regulatory
power continues to be challenged by proponents of
marijuana-related land uses, and is presently being
resolved by the appellate courts in cases such as City of
Claremont v. Kruse (2009} 177 Cal.App.4th 1153 anc
Qualified Patients Assoc. v. City of Azaahezm (G040077,
app. pending}.
(g) [3nder the current provisions of the Butte County Zoninc
Code (Chapter 24 of the Butte County Code}, Marijuana
Dispensaries are not identified as a permitted use, or
use permitted subject to a use permit, in any zoninc
district in the County. Further, Marijuana Dispensarie:
are not found to be substantially similar to othe7
permitted, conditional, or accessory uses. The Count
interprets these provisions to mean that such uses arf
prohibited. However, the County recognizes that numerous
other local governments have faced arguments tha~
marijuana dispensaries are permitted uses under similes:
ordinances, or are encompassed within generic permitter
uses, such as "miscellaneous retail" or "medica
clinics."
(h) The County is currently engaged in the consideration an
study of possible means of regulating or prohibiters
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~ marijuana dispensaries, including zoning regulations an
2 other regulations, and by this ordinance sha11 direct th
3 continuation of such consideration and study.
4 (i) If marijuana dispensaries are allowed to be established,
5 developed, constructed, maintained, or operated in th
6 County without appropriate regulations, such uses may b
~ established in areas, ar operated in a manner, that would
$ conflict with the proposed regulations to be considered
9 and studied by the County, and would therefore defeat the
~~ purpose of the proposal to study and adopt new
11 regulations regarding marijuana dispensaries.
12 (j) The establishment, development, construction,
~3 maintenance, or operation of Marijuana Dispensaries, anc
14 the approval of use permits, variances, building permits,
15 or any other applicable entitlements authorizing their
16 establishment, would result in a current and immediate
l~ threat to the public health, safety and welfare, because
x8 such uses threaten to cause the harmful "secondary
~9 effects" identified above within the unincorporated area
20 of the County of .Butte, and because such uses mad
21 frustrate the accomplishment of the goals of the
22 marijuana dispensary regulations that the .County wil:
23 consider and study. It is therefore necessary to adopt
24 this ordinance to, prohibit their establishment,
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development, construction, maintenance, or operati
during the period of such consideration and study.
(k) On January 12, 2010, the Board of Supervisors of the
County of Butte adopted Ordinance Number 4013 temporarily
prohibiting the establishment or operation of marijuana
dispensaries, which will expire on February 26, 2010,
unless further extended as provided by law.
Section 2. In order to protect the public health, safety,
welfare of the residents of the County of Butte from a Curren
and immediate threat, Ordinance No. 4013 is hereby extended fo
22 months and 15 days,. in accordance with Government Cod
section 55858, subdivision (b).
Section 3. For the purpose of this ordinance, the followin
terms shall have the following meanings:
(a) "Development Application" shall mean an application fo
any permit or approval to be issued by any County of
Butte officer, department or other agency, includinc
subdivisions, use permits,- variances, building permits,
or.any other entitlement for use.
(b) "Marijuana Dispensary" shall mean: Any facility wherE
marijuana is made available for medical purposes it
accordance. with Health and Safety Code sectian 11352.`
or any state regulation adopted in furtherance thereof,
provided, however, that a "Marijuana Dispensary" shall
not include the following facilities pursuant to the
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following provisions of Division 2 of the Health an
Safety Code:
(1) A clinic licensed pursuant to Chapter ~.;
(2) A health facility licensed pursuant to Chapter 2;
(3) A residential care facility for persons wit
chronic, life-threatening illnesses license
pursuant to Chapter 3.01;
(4) A residential care facility for the elderl
licensed pursuant to Chapter 3.2; or
(5) A residential hospice or a home health agenc
.licensed pursuant to Chapter 8.
"Marijuana Dispensary" includes medicinal marijuana
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"cooperatives" and "collectives."
(c) "Marijuana" shall have the same meaning as that set
forth in Health and Safety Code section 1103.8.
(d) "Person" shall include: Any natural person,
association, corporation, cooperative, partnership,
collective, limited liability company, or any other
social or business entity.
Section 4. No Person shall cause or permit the establishment,
development, construction, maintenance, operation, or
enlargement of a Marijuana Dispensary, within the unincorporatec
areas of the County of Butte, nor sha11 any Development
Application be accepted, filed, processed, issued o.r approvec
for such a Marijuana Dispensary during the term of thi:
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~- moratorium ordinance. This interim ordinance shall in no wad
~ limit the right to possess, use or cultivate marijuana foz
3 medicinal purposes as is presently authorized by the laws of the
4 State of California as set forth in the Health and Safety Code.
5 Section 5. The Board of Supervisors hereby directs the Chief
5 Administrative Officer, in consultation with the Planninc
~ Department, Public Health Department, Sheriff, District
e Attorney, County Counsel, and Probation Department to consider
9 and study possible means of regulating or prohibiting Marijuana
l0 Dispensaries, including zoning .and other regulations.
~1 Section 5. This Section shall be in effect until the earlier o]
12 the following, anal shall thereupon be repealed and of no further
~3 force or effect:
14 (a) the completion of study, consideration and legislativE
15 action upon the -proposed regulations for Marijuana
16 ~ Dispensaries referred to in Section 5, designated as sucl
1; by the Board of Supervisors; or
18 (b) 22 months and 15 days from February 26, 2010.
7.9 Section 7. Pursuant to Government Code section 65858
20 subdivision (d) , the Board of Supervisors of the County of Butt
21 hereby ratifies and approves the report issued by the County o:
~~ February 9, 2010 describing the measures taken to alleviate th
23 conditions which led to the adoption of Drdinance 9013.
24 Section 8. If any provision, of .this ordinance or th
25 application. thereof to any person or circumstances is for an
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reason held to be invalid by a court or competent jurisdiction,
such provision shall be deemed severable, and the in.validit
thereof sha11 not affect the remaining provisions or othe
applications of the ordinance which can be given effect without
the invalid provision or application thereof.
Section 9. This ordinance extending an interim urgenc
axdinance is not a project under the California Environmental
Quality Act (Pub. Resources Code, §§ 21000 et seq.)("CEQA"}, an
accordingly is not subject to its provisions. Nevertheless, t
the extent that this ordinance extending an interim urgenc..
ordinance may be construed as a project, it is exempt from CEQ
under the general rule that it can be seen with certainty that
prohibiting the establishment or operation of marijuana
dispensaries on an interim basis has no possibility of having a,
significant effect on the environment, as set forth in
California Code of Regulations, title 14, section 15061,
subdivision (b)(3). Further, this ordinance extending an
'interim urgency ordinance is exempt from CEQA pursuant to the
provisions of Public Resources Code section 21080, subdivision
(b}(4} and California Code of Regulations, title 14, section
15307 and 15308.
Section 10. .This ordinance is adopted by the Board of
Supervisors pursuant to the California Constitution, article XI,
section '1 and Government Code Section 65$58 by a four-fifths or
greater vote, as an urgency measure to protect the public
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health, safety and welfare, and shall take effect immediately.
The reasons for such urgency are set forth in Section 1 above.
Before the expiration o£ 15 days after the adoption of this
ordinance, a summary hereof shall be published once, with the
names of the members of this Board voting for or against the
same. in the Chico Enterprise Record, a newspaper of general
circulation published in the County of Butte.
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PASSED AND ADOPTED by the Board of Supervisors of th
County of Butte, State of California, on the 23rd day o
February, 20I0, by the following vote:
AYES; Supervisors Dolan, Kirk, Lambert, Yamaguchi., and Chair Connelly
NOES : None
ABSENT : Nor-e
NOT VOTING: None
BILL CONNELLY, air of the
Butte County Board of Supervisors
ATTEST:
SCOTT TANDY,
Chief~n'strative Offi
and C r ~ ~e Board
By
De
tI
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