Loading...
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 1 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 2 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 3 J L.IRONS, mayor