HomeMy WebLinkAboutReso 04-16 City's Zoning Code under Title 17, Marijuana Cultivation UsesRESOLUTION N0. 04-16
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA,
REAFFIRMING AND CONFIRMING THE CITY'S ZONING CODE, ENUMERATED
UNDER TITLE 17 OF THE MORRO BAY MUNICIPAL CODE, IS A PERMISSIVE
ZONING CODE, SUCH THAT MARIJUANA CULTIVATION USES, AS USES NOT
SPECIFICALLY ENUMERATED IN THE ZONING CODE, ARE PROHIBITED
THE CITY COUNCIL.
City of Morro Bay, California
WHEREAS, the City of Morro Bay has exercised its land use and zoning authority by
enacting a zoning code that is enumerated under Title 17 of the Morro Bay Municipal Code
("Zoning Code"); and
WHEREAS, the State Legislature recently passed, and the Governor Signed, the Medical
Marijuana Regulation and Safety Act ("MMRSA"); and
WHEREAS, the MMRSA provides that the California Department of Food and
Agriculture is a potential licensing authority for the cultivation of medical marijuana; and
WHEREAS, the MMRSA further provides, in Health &Safety Code § 11362.777(b)(3),
if the City "does not have land use regulations or ordinances regulating or prohibiting the
cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or
chooses not to administer a conditional permit program pursuant to this section, then
commencing March 1, 2016, the division shall be the sole licensing authority for medical
marijuana cultivation applicants in that city... ;" and
WHEREAS, the court in City of Corona v. Naulls (2008) 166 Cal. App. 4th 418, 425
("Naulls"), cited in County of Sonoma v. Superior Court (2010) 190 Cal, App. 4th 1312, FN 3
("County of Sonoma") found a permissive zoning code is defined as a zoning code where, if a
specific use is not enumerated, then that use is presumptively prohibited; and
WHEREAS, the court in Naulls further found the City of Corona's zoning code was a
permissive zoning code; and
WHEREAS, Title 17 of the Morro Bay Municipal Code ("MBMC") contains language
evidencing an intent to prohibit uses not expressly identified; and
WHEREAS, as in Naulls, Title 17 of the Morro Bay Municipal Code ("MBMC") divides
the City into several primary districts (MBMC § 17.24.010) and evidences an intent to limit the
allowed uses in those districts to those expressly identified in the chapter or those similar in
nature, including but not limited to the following sections:
• MBMC § 17.08.020 [land use determination criteria]: "Whenever the planning
commission of the city is called upon to determine whether or not the use of land
or any structure in any district is similar in character to the particular uses
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allowed in a district, the planning commission shall consider the following factors
as criteria for their determination: A. Effect upon the public health, safety and
general welfare of the neighborhood involved and the city at large; B. Effect
upon traffic conditions; C. Effect upon the orderly development of the area in
question and the city at large in regard to general planning of the whole
community."
• MBMC § 17.12.664 [Use, conditionally permitted]: "`Conditionally permitted
use means a new or expanded use of land or building, authorized to be
constructed and/or established through issuance of an approved conditional use
permit, pursuant to Chapter 17.60"; and
• MBMC § 17.30.30 [Special Use Permits]: "The special uses listed in this section
may be allowed by the planning commission upon approval of a conditional use
permit processed in accordance with the provisions of Chapter 17.60. All of the
uses listed in this section and all matters directly related thereto are declared to be
special uses possessing characteristics of such unique and special form as to make
impractical their inclusion in any class of use set forth in the various districts
defined in this title and, therefore, the authority for a location of the operation of
any of the uses designated herein shall be subject to the issuance of a special use
permit in accordance with the provisions of this chapter. In making the findings
required by Section 17.60.030 the planning commission shall, in addition to other
relevant data, explicitly consider the following factors to determine that the
characteristics of the listed uses will not be unreasonably incompatible with the
uses permitted in surrounding areas: damage or nuisance from noise, smoke,
odor, dust or vibration; hazard, or nuisance from explosion, contamination, or
fire; hazard occasioned by unusual volume or character of traffic or the
congregating of a large number of people or vehicles; or height of structure....."
• MBMC § 17.30.050 [Temporary Use Permits]: "The temporary uses listed in this
section may be allowed by the zoning administrator under an administrative
temporary use permit. The administrator may attach such conditions to the
permit as are necessary to assure that the temporary use complies with the
intent of this section."
• MBMC § Section 17,60.010 [Use permits]: "Use permits, conditional, special or
interim, may be issued as provided in this chapter for any of the uses for which
such permits are required or permitted by the term of this title, and for only
those uses."
WHEREAS, as the Naulls Court found, under the principle the expression of certain
things in a statute necessarily involves the exclusion of other things not expressed, any use that is
not specifically identified in the Zoning Code is prohibited; and
WHEREAS, based upon the forgoing, the City's Zoning Code, Title 17 of the MBMC, is
a permissive zoning code whereby any use that is not expressly enumerated in the code is
presumptively prohibited under the principles of permissive zoning, as contemplated by Health
& Safety Code § 11362.777(b)(3) and as provided in Naulls and County of Sonoma; and
WHEREAS, Chapter 9.06 of the MBMC, as amended, further explicitly bans both
dispensaries and cultivation in the City; and
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WHEREAS, by this Resolution the City Council desires to re -affirm and confirm that the
City's Zoning Code operates as a permissive zoning code within the meaning of Health & Safety
Code § 11362.777(b)(3) and Naulls, as cited in County of Sonoma;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MORRO BAY,
CALIFORNIA9 DOES HEREBY RESOLVE, AS FOLLOWS:
SECTION 1. The forgoing Recitals are true and correct and are incorporated herein.
SECTION 2. The City Council of the City of Morro Bay hereby re -affirms and confirms
that the Zoning Code, found under Title 17 of the Morro Bay Municipal Code, is a permissive
zoning code, as contemplated by Health & Safety Code § 11362.777(b)(3) and City of Corona v.
Naulls (2008) 166 Cal. App. 4th 418, 425, cited in County of Sonoma v. Superior Court (2010)
190 Cal. App. 4th 1312, IN. 3, such that any use not expressly enumerated in the Zoning Code is
presumptively prohibited.
SECTION 3. With the exception of personal individual cultivation by a primary
caregiver or qualified patient for use of medical marijuana, as permitted by the Compassionate
Use Act of 1996, the cultivation of marijuana is, therefore, not a permitted use within the City,
because it is not expressly enumerated as a permitted use in the City's Zoning Code and,
therefore, even in any zoning district or specific plan where medical marijuana cultivation is not
expressly prohibited, it is nevertheless a prohibited use under the principles of permissive
zoning.
SECTION 4. Based upon the forgoing, the City Council of the City of Morro Bay
hereby affirmatively determines, pursuant to Health & Safety Code § 11362.777(b)(3), the
California Department of Food and Agriculture, or any other state agency, may not issue a state
license to cultivate medical marijuana within the City.
SECTION 5. The City Manager and his authorized designees are hereby authorized and
directed to take such other and further actions and sign such other and further documents as is
necessary and proper to implement this Resolution on behalf of the City.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular
meeting thereof held on the 12 day of January, 2016 on the following vote:
AYES: Irons, Headding, Johnson, Makowetski, Smukler
NOES: None
ABSENT: None
ATTEST:
ar�\So r%�
biKNA SWANSON, City Clerk
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J L.IRONS, mayor