CC Ordinance 2218ORDINANCE NO. 2218
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CAMPBELL AMENDING CHAPTERS 8.38,
8.40 AND 6.11 OF THE CAMPBELL MUNICIPAL
CODE TO ALLOW DELIVERY AND LIMITED
CULTIVATION OF MEDICAL MARIJUANA AND
CLARIFY RELATED REGULATIONS
WHEREAS, in 1996, the voters of the State of California approved Proposition
215 (codified as Health & Safety Code Section 11362.5 et seq. and entitled "The
Compassionate Use Act of 1996" referred to herein as the "CUA");
WHEREAS, the intent of the CUA was to decriminalize the possession and use
of marijuana for medical purposes by seriously ill Californians under State law once a
physician has deemed the use beneficial to a patient's health;
WHEREAS, in 2003, the California Legislature adopted SB 420, the Medical
Marijuana Program ("MMP"), codified as Health and Safety Code Section 11362.7 et
seq., which permitted 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;
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, dispense, deliver or process medical marijuana within its
jurisdiction;
WHEREAS, in May 2013, the California Supreme Court issued its decision in
City of Riverside v. Inland Empire Patients Health and Wellness Center, lnc., et al.,
holding that cities have the authority to ban medical marijuana land uses;
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;
WHEREAS, on October 9, 2015, Governor Jerry Brown signed the "Medical
Marijuana Regulation and Safety Act" (" Act"), which is comprised of the State
legislative bills known as AB 243, AB 266, and SB 643, into law;
WHEREAS, the Act became effective January 1, 2016 and contains provisions
that govern the cultivating, processing, transporting, testing, and distributing of medical
cannabis to qualified patients. The Act also contains new statutory provisions that:
• Allow 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));
• Expressly provide that the Act does not supersede or limit
local authority for local law enforcement activity, enforcement of
local ordinances, or enforcement of local permit or licensing
requirements regarding marijuana (Business & Professions Code §
19315(a));
• Expressly provide that the Act 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 (Business &
Professions Code § 19316(c)); and
• Require a local government that wishes to prevent marijuana
delivery activity, as defined in Business & Professions Code section
19300.5(m) of the Act, from operating within the local government's
boundaries to enact an ordinance affirmatively banning such
delivery activity (Business & Professions Code § 19340(a));
WHEREAS, many California cities, as well as the City of Campbell, have
reported negative impacts of marijuana processing and dispensing activities, including
offensive odors, illegal sales and distribution of marijuana, trespassing, theft, violent
robberies and robbery attempts, fire hazards, and problems associated with mold,
fungus, and pests;
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;
WHEREAS, the strong smell of marijuana creates an attractive nuisance, alerting
persons to the location of the valuable plants, and creating a risk of burglary, robbery or
armed robbery;
WHEREAS, the indoor cultivation of marijuana has potential adverse effects to
the structural integrity of the building, 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;
WHEREAS, based on the experiences of other cities, these negative effects on
the public health, safety, and welfare would be likely to occur in the City if marijuana
processing, cultivation and dispensing activities are established;
WHEREAS, Section 7 of Article 11 of the California Constitution and Section
2.04.010 of the Campbell Municipal Code provides the City Council with the authority to
make and enforce all laws, rules and regulations with respect to not in conflict with
general laws, and the power to exercise, or act pursuant to any and all rights, powers,
and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, under the Campbell Municipal Code ("CMC") every zoning district in
the City of Campbell prohibits "[a]ny use inconsistent with state or federal law;"
WHEREAS, the cultivation, processing and dispensing of medical marijuana is
currently prohibited in the City pursuant to the. aforementioned zoning provisions that
prohibit "[a]ny use inconsistent with state or federal law;"
WHEREAS, allowing and regulating the cultivation, processing and dispensing of
medical marijuana within the City limits of the City of Campbell would have a significant
impact on the resources of the City;
WHEREAS, on March 1, 2016, the City Council adopted Ordinance No. 2197,
which added Chapter 8.38 to the Campbell Municipal Code, expressly prohibiting the
processing, dispensing or delivery of marijuana in the City of Campbell;
WHEREAS, the Control, Regulate and Tax Adult Use of Marijuana Act ("AUMA")
was adopted by the voters of the state on November 8, 2016 as Proposition 64;
WHEREAS, AUMA allows the cultivation of up to six (6) plant in a private
residence for personal use;
WHEREAS, on November 1, 2016, the City Council adopted Ordinance No.
2214, in response to AUMA, adding Chapter 8.40 to the Campbell Municipal Code to
restrict and regulate non-medical marijuana to the extent that it was not already
regulated in the City of Campbell;
• WHEREAS, the City Council respects the right of qualified patients to use
medical marijuana for relief of their ailments; and
WHEREAS, the allowing delivery of medical marijuana from licensed
dispensaries located outside of the City to qualified patients located in the City would be
the least onerous way of affording access to patients within the City;
NOW THEREFORE, the City Council of the City of Campbell does ordain as
follows:
Section 1. The City Council of the City of Campbell hereby finds that the above
recitals are true and correct and are incorporated into the substantive portion of this
ordinance.
Section 2: Section 8.38.010 of the Campbell Municipal Code is hereby
amended to read as follows, with strikeouts (°~~~) indicating deleted text and
underlining indicating new text:
8.38.010 Legislative Findings and Statement of Purpose.
A. The City Council finds that the prohibitions on marijuana
processing, :~°~' ~°^° ~'°"~°^~ and marijuana dispensaries are
necessary for the preservation and protection of the public health,
safety, and welfare for the City and its community. The City
Council's prohibition of such activities is within the authority
conferred upon the City Council in state law.
B. On October 9, 2015, the governor signed the "Medical
Marijuana Regulation and Safety Act" ("Act") into law. The Act
became effective January 1, 2016 and contains new statutory
provisions that:
1. Allow local governments to enforce new and existing
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));
2. Expressly provide that the Act does not supersede or
limit local authority for local law enforcement activity,
enforcement of local ordinances, or enforcement of local
permit or licensing requirements regarding marijuana
(Business & Professions Code § 19315(a));
3. Expressly provide that the Act 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 (Business & Professions Code § 19316(c));
and
4. Require a local government that wishes to prevent
marijuana delivery activity, as defined in Business &
Professions Code section 19300.5(m) of the Act, from
operating within the local government's boundaries to enact
an ordinance affirmatively banning such delivery activity
(Business & Professions Code § 19340(a)).
C. The City Council finds that this Chapter: (1) acknowledges
that existing provisions of Title 21 of the Campbell Municipal Code
currently prohibit the ^~ ~'~ processing or dispensing of
marijuana in the City, as well as limiting the cultivation of marijuana
to six plants located on a residence for the personal use of the
residents, and precludes a conditional permit program pursuant to
Health & Safety Code section 11362.777 for the cultivation of
marijuana in the City; (2) exercises its local authority to enact and
enforce local regulations and ordinances, including those regarding
the permitting, licensing, or other entitlement of the activities
prohibited by this Chapter; and (3) exercises its police power to
enact and enforce regulations for the public benefit, safety, and
welfare of the City and its community; a^~ ins o.,^~o°ol„ ^~^":":+°
D. The City Council recognizes that despite the negative
impacts identified above, marijuana can provide some benefit to
qualified patients. In this regard the City Council finds that the
delivery of medical marijuana to qualified patients from licensed
dispensaries located outside of the City of Campbell would provide
access to medical marijuana for those patients seeking such
medication, while presenting the least negative impact on City
resources and the quality of life in Campbell.
Section 3: Subsections F and G are added to Section 8.38.020 of the
Campbell Municipal Code to read as follow, with and underlining indicating new
text:
F. "Marijuana Cultivation" means any activity involving the planting
growing, harvesting, drying, curing, grading, or trimming of
marijuana, including but not limited to the creation or maintenance
of a nursery or garden.
G. "Qualified Patient" means a person who has a recommendation
or approval of a physician to use marijuana for relief from a serious
medical condition.
Section 4: Section 8.38.030 of the Campbell Municipal Code is hereby
amended to read as follow, with strikeouts (~+~~'~„neo~) indicating deleted text and
underlining indicating new text:
8.38.030 Prohibited Activities; Exceptions.
A. Except as provided in subsections B, C and D of this section,
Marijuana Processing, Marijuana Delivery, Marijuana Cultivation,
and Marijuana Dispensaries shall be prohibited activities in the City;
ov^en+ ,.here the (`'+~. mn#or! ha follornl .. oMM Inw Frr.m
o^.,,.+~^,. .^"•"•+;,,^ ~ ,,." .,..+;,,;+„ No use permit,
variance, building permit, or any other entitlement, license, or
permit, whether administrative or discretionary, shall be approved
or issued for the activities of Marijuana Processing, Marijuana
Delivery, Marijuana Cultivation, or the establishment or operation of
a Marijuana Dispensary in the City, and no person shall otherwise
establish or conduct such activities in the City, °~^°^+ ,e,h r+rr+ +h°
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B. The prohibitions set forth in subsection A shall not apply to
the extent that such prohibitions are preempted by applicable State
or Federal law.
C. Notwithstanding subsection A, Mariiuana Cultivation is
allowed for personal medical use to the same extent and under the
same restrictions as allowed for personal use pursuant to Campbell
Municipal Code section 8.40.040.
D. Notwithstanding subsection A. Mariiuana Delivery shall be
allowed from Mariiuana Dispensaries located outside of the Citv of
Campbell to Qualified Patients in the City of Campbell subject to
the following restrictions:
1. Only Mariiuana Dispensaries that are licensed under the
applicable laws of the State of California, including but not limited to
the Medical Cannabis Regulation and Safety Act (California
Business and Professions Code sections 19300 et. sea.) and are
operating in compliance with the applicable laws of the local
jurisdiction in which the Mariiuana Dispensary is located shall be
allowed to provide Mariiuana Delivery to a Qualified Patient in the
City of Campbell;
2. Prior to commencing Mariiuana Deliveries to Qualified
Patients in the City of Campbell, the Mariiuana Dispensary shall
register with the Police Department of the City of Campbell, and
provide proof that the Mariiuana Dispensary is licensed under the
applicable laws of the State of California and operating in
compliance with the applicable laws of the local jurisdiction in which
the Mariiuana Dispensary is located;
3. Prior to commencing Mariiuana Deliveries to Qualified
provide the Campbell Police Department with the names and
driver's license numbers of all persons who will be conducting the
deliveries; and the Mariiuana Dispensary shall notify the Campbell
Police Department of any changes in the identities of the persons
conducting the deliveries within twenty-four hours of any change in
that information; and
4. Annually, prior to July 15~ of each year, the Mariiuana
Dispensary shall provide the Campbell Police Department with
local jurisdiction in which the Mariiuana Dispensary is located is
current and in effect.
Section 6: Section 8.40.020 of the Campbell Municipal Code is hereby amended
to read as follow, with strikeouts (~+~'~Q;s) indicating deleted text and underlining
indicating new text:
8.40.020 Definitions.
For purposes of this Chapter, the following definitions shall apply:
A. Except as otherwise set forth in this section, the definitions contained
in section 8.38.020 of this Title shall apply, provided that the terms
processing, dispensary and cultivation shall encompass the terms
Mariiuana Processing, Mariiuana Dispensary or Mariiuana
Dispensaries, and Mariiuana Cultivation but shall not be limited to
medical marijuana or medical marijuana use as defined in subsection
C of this section;
B. "Delivery" shall have the same meaning as set forth in .California
Business and Professions Code section 26001:
C. ~ "Marijuana" shall also include all things covered by section
11018 of the California Health and Safety Code, in addition to
the definition contained in section 8.38.020;
D. G "Medical marijuana or medical marijuana use" means the
use of cannabis for the purposes set forth in the Compassionate
Use Act and the Medical Marijuana Program Act, California Health
and Safety Code sections 11362.5 and 11362.7 et seq.;
E. ~ "Non-medical marijuana" or "non-medical marijuana use"
means all marijuana or uses of marijuana not included within the
definition of medical marijuana use;
F. € "Private residence" means a lawfully existing house, an
apartment unit, a mobile home or other similar dwelling.
Section 7: Section 8.40.040 of the Campbell Municipal Code is hereby amended
to read as follow, with strikeouts (~+~~) indicating deleted text and underlining
indicating new text:
8.40.040 Indoor Cultivation.
To the extent that the City is required by State law to allow the
cultivation of marijuana, the rules set forth in this section shall
apply:
A. The cultivation of marijuana may take place only inside a
lawfully existing and fully enclosed and secure private
residence, or inside a lawfully existing and fully enclosed and
secure accessory structure to a private residence that is located
on the same parcel as the private residence. No cultivation shall
occur outside of a fully enclosed structure;
B. The primary use of the property shall be for a residence;
C. All areas used for cultivation of non-medical marijuana shall
comply with Title 18 (Buildings Codes and Regulations) of the
Campbell Municipal Code, as well as all other applicable laws;
D. Indoor grow lights are not allowed in any structure used for
human habitation. Indoor grow lights in any other structure shall
not exceed 1,000 watts per light, and shall comply with the
California Building, Electrical and Fire Codes as adopted by the
City;
E. The use of gas products or volatile solvents, or dangerous
poisons, toxins or carcinogens (including but not limited to CO2,
butane, propane, natural gas, xylene, styrene, gasoline,
chloride, acetone, benzene, toluene, and trichloro-ethylene,) or
generators for cultivation of n^^o„me~a: marijuana is prohibited;
F. Any structure used for the cultivation of am;-,;,tee.: marijuana
must have a ventilation and filtration system installed that shall
prevent marijuana plant odors from exiting the interior of the
structure, and designed to prevent mold and moisture and
otherwise protect the health and safety of persons residing in
the residence and cultivating the marijuana. This ventilation
shall at a minimum consist of a system meeting the
requirements of the current, adopted edition of the California
Building Code § 1203.4 Natural Ventilation or § 402.3
Mechanical Ventilation (or its equivalent(s));
G. Any accessory structure used for the cultivation of aa;
marijuana shall be located in the rear yard area of the parcel or
premises, and must maintain a minimum setback equal to the
greater of (1) the setback imposed pursuant to the applicable
zoning provisions of Title 21 of this Code, or ~ ten-feet from
any property line. The yard where the structure is maintained
must be enclosed by a solid fence at least six feet in height;
H. Adequate mechanical locking
must be installed as part
commencement of cultivation;
or electronic security systems
of the structure prior to the
I. Marijuana cultivation shall be limited to six marijuana plants per
private residence, regardless of whether the marijuana is
cultivated inside the residence or in an accessory structure.
The limit of six plants per private residence shall apply
regardless of how many individuals reside at the private
residence;
J. The residential structure shall remain at all times a residence, with
legal and functioning cooking, sleeping and sanitation facilities with
proper ingress and egress. No room used for cooking of meals,
sleeping aad or bathing shall be used for cultivation;
K. Cultivation of ^o:,-~,GQ;sai marijuana shall ealy take place only on
impervious surtaces;
L. There shall be no exterior evidence of marijuana cultivation
occurring on the parcel;
M. No more than one room in any structure may be used for
cultivation;
N. The marijuana cultivation area shall not exceed thirty-two (32)
square feet and not exceed ten feet (10') in height per residence.
This limit applies regardless of the number of individuals residing in
the residence;
O. No room or area in a structure that is used for cultivation shall be
accessible to persons under 21 years of age;
P. Written consent of the property owner to cultivate +~ea-medic-al
marijuana within the residential structure shall be obtained and
shall be kept on the premises, and available for inspection by
agents of the City;
Q. A portable fire extinguisher, that complies with the regulations and
standards adopted by the State Fire Marshal and applicable law,
shall be kept in any room used for cultivation of marijuana;
R. No one other than afull-time resident of the residence shall be
involved or take part in the cultivation;
S. No chemicals fertilizers, pesticides, or other chemical agents shall
be used for marijuana cultivation;
T. The marijuana cultivation area shall not adversely affect the health
or safety of the nearby residents by creating dust, glare, heat,
noise, noxious gasses, odor, smoke, traffic, vibration, or other
impacts; and shall not be conducted in a manner that is hazardous
due to the use or storage of materials, processes, products or
wastes, or from other actiohs related to the cultivation;
U. The owner and any lessee of the residence upon which
cultivation will occur shall inform the Police Department of the
intent to cultivate marijuana, and obtain all necessary building
permits, inspections and approvals. T~~~ ^~*.if;cut;c^ ~,",~!! b
previded prior to the commencement of the cultivation. No
cultivation shall occur until the premises have been inspected by
the Building Division, and found to be incompliance with all
applicable laws;
V. Cultivation shall be limited exclusively for the personal use of
lawful residents of the property on which the cultivation is
occurring.
Section 8: Subsection (19) of section 6.11.110 of the Campbell Municipal Code
is hereby amended to read as follow, with strikeouts (~*~.,~~) indicating deleted text
and underlining indicating new text:
(19) "Smoke" means any gases vapors and/or particles released into the
air by combustion, electrical ignition, or vaporization when the apparent or usual
purpose of the combustion, electrical ignition, or vaporization is human inhalation of the
resulting byproducts, except when the combustible material contains no tobacco
nicotine, or controlled substance as defined in section 802 of Title 21 of the United
States Code and the purpose of inhalation is solely olfactory, such as, for example,
smoke from incense. The term "smoke," includes, but is not limited to, tobacco smoke,
and vapors from an electronic smoking devise.
Section 9: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases be declared, invalid
or unconstitutional.
Section 10: The City Council finds the approval of 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) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly. Alternatively, the City Council finds the
approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3)
because it has no potential for causing a significant effect on the environment.
Section 11: This ordinance shall be in full force and effect thirty (30) days after
its adoption by a majority vote of the City Council. The City Clerk shall cause this
ordinance, or a summary thereof, to be published pursuant to applicable law.
PASSED AND ADOPTED this 17th day of January, 2017 by the following roll call vote:
AYES: Councilmembers: Waterman, Cristina, Landry, Resnikoff, Gibbons
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED:
~~~~
li beth Gibbons, Mayor
ATTEST:
~~ 1
Wendy od, City Clerk