Agenda Item Wording:
title
First reading and public hearing for Ordinance No. 2023-13 for Zoning Text Amendment No. 2023-02, a request by the City of Visalia to add Chapter 5.66, amend Chapter 8.64, add section 17.32.167. and amend Visalia Municipal Code Chapter 17.25, in order to address upcoming state mandated changes as a result of the passage of Senate Bill (SB) 1186, the “Medicinal Cannabis Patients’ Right of Access Act,” and establish objective standards for permitting delivery only medical marijuana retail establishments within the City of Visalia.
.body
Deadline for Action: 11/6/2023
Submitting Department: Community Development
Contact Name and Phone Number:
Devon Jones, Economic Development Manager, devon.jones@visalia.city <mailto:devon.jones@visalia.city>, 713-4190 Paul Bernal, Community Development Director, paul.bernal@visalia.city <mailto:paul.bernal@visalia.city>, 713-4025
Department Recommendation:
Staff recommends that the City Council hold a public hearing and introduce the first reading of Ordinance No. 2023-13 for Zoning Text Amendment (ZTA) No. 2023-02 to amend the following Municipal Code Chapters:
1. Title 5: Add Chapter 5.66 “Regulations and Requirements for Cannabis Businesses Permitted to Operate Under California State Law”.
2. Title 8: Amend Chapter 8.64 “Public Use/Consumption of Medical Marijuana”.
3. Title 17: Amend Chapter 17.25
4. Add section 17.32.167 “Delivery only medical marijuana retail” to the Visalia Municipal Code.
The amendments and additions to several sections of the municipal code is required to address upcoming state mandated changes as a result of the passage of SB 1186, the “Medicinal Cannabis Patients’ Right of Access Act,” and establishes objective standards for permitting delivery only medical marijuana retail establishments within the City of Visalia.
Summary:
On July 17, 2023, staff conducted a work session with City Council on this subject and gained authority to proceed with municipal code updates to Title 5 Business Regulations, Title 8 Health and Safety, and Title 17 Zoning. Further, on October 9, 2023, the Planning Commission adopted Resolution No. 2023-52 recommending that the City Council approve adoption of ZTA No. 2023-02. This zoning ordinance update is seeking to implement reasonable zoning regulations in response to SB 1186.
Background:
SB 1186 states:
“(a) A local jurisdiction shall not adopt or enforce any regulation that prohibits the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers, or that otherwise has the effect of prohibiting the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers by licensed medicinal cannabis businesses in a timely and readily accessible manner, and in types and quantities that are sufficient to meet demand from medicinal cannabis patients within the local jurisdiction, including, but not limited to, regulation of any of the following that has the effect of prohibiting the retail sale by delivery of medicinal cannabis:
(1) The number of medicinal cannabis businesses authorized to deliver medicinal cannabis in the local jurisdiction.
(2) The operating hours of medicinal cannabis businesses.
(3) The number or frequency of sales by delivery of medicinal cannabis.
(4) The types or quantities of medicinal cannabis authorized to be sold by delivery.
(5) The establishment of physical premises from which retail sale by delivery of medicinal cannabis within the jurisdiction is conducted by a licensed non-storefront retailer, except that this paragraph shall not be construed to require the establishment of additional physical premises in a local jurisdiction that allowed medicinal cannabis retail as of January 1, 2022, and in which at least one physical premises engaged in the retail sale of medicinal cannabis, whether storefront or delivery, is already established.”
However, SB 1186 also states:
“(b) Nothing in this chapter shall be construed to prohibit the adoption or enforcement of reasonable regulations on retail sale by delivery of medicinal cannabis, including, but not limited to, reasonable regulations related to:
(1) Zoning requirements that are not inconsistent with subdivision (a). If compliance with subdivision (a) would otherwise require a local jurisdiction to authorize a physical premises from which retail sale by delivery of medicinal cannabis within the jurisdiction is conducted, this paragraph shall not be construed to alter that requirement.
(2) Security or public health and safety requirements.
(3) Licensing requirements.
(4) The imposition, collection, and remittance of any applicable state or local taxes upon retail sales occurring within the local jurisdiction.
(5) Regulations consistent with requirements or restrictions imposed on cannabis businesses by this division or regulations issued under this division.
(c) Nothing in this chapter shall be construed to limit or otherwise affect the ability of a local jurisdiction to adopt or enforce any regulations on commercial cannabis operations other than retail sale by delivery of medicinal cannabis in the local jurisdiction.”
In response to SB 1186, ZTA No. 2023-02 is a city-initiated request to address imminent state mandated changes as a result of the passage of SB 1186, the “Medicinal Cannabis Patients’ Right of Access Act” which becomes effective on January 1, 2024. After this date, “delivery only” (delivery of medicinal cannabis) businesses will be permitted, subject to reasonable zoning regulations for public health and safety, within the City of Visalia. This means that warehouse-based businesses could legally operate in the City of Visalia as long as they sold medicinal cannabis via delivery only (no retail store front). The City’s current municipal code prohibits cannabis businesses from operating within the City of Visalia, and this prohibition will not be enforceable when the new state law becomes effective for delivery only medicinal cannabis businesses. Visalia has no zoning or operational standards established specific to this type of use. ZTA No. 2023-02 establishes objective standards for permitting this specific type of cannabis business within our jurisdiction while all other types of cannabis businesses would remain prohibited.
Proposed Municipal Code Updates:
1. Add Chapter 5.66 “Regulations and Requirements for Cannabis Businesses Permitted to Operate Under California State Law”.
Under this new municipal code chapter, the following standards under the purview of the Visalia Police Department are required:
• Security plans, including cameras will be required for the site and the Visalia Police Department will be required to review and approve the security plans prior to these businesses being allowed to operate. Video cameras of all entrances, product storage area, building exterior, and parking area will be required as part of the security plan.
• A site plan of the proposed business will be required.
• These businesses will be required to be closed to the public. Sales will only be permitted by delivery. This is also covered in new Section 8.64 as noted below.
• Delivery vehicles will be inspected by City and obtain an operating permit prior to use and must meet all state requirements for cannabis delivery vehicles.
• Background inspections of all owners and all drivers will be required for the business to operate.
• These businesses will be required to prevent the smell of marijuana from the business from being detected on adjacent private properties and the public right of way. This will require an odor control plan be prepared and submitted to the City for approval.
Performance standards are also incorporated into Chapter 5.66 provided in detail, including:
• Maintaining a valid M-license (medicinal designation) and Type 9 license (non-storefront retailer, delivery only) in good standing from the CA Department of Cannabis Control required.
• Entry into the premises by the general public is prohibited. All sales are to be made by delivery offsite only.
• Background checks required for all new employees, managers, or owners, prior to hiring.
• Meeting all requirements stated in VMC Chapter 8.64.055.
Please review the attached Ordinance No. 2023-13 for all the changes made with Chapter 5.66.
2. Amend Chapter 8.64 “Public Use/Consumption of Medical Marijuana”.
Staff will include modifications to portions of current municipal code Chapter 8.64 that broadly prohibit all commercial cannabis activities. This section will be revised to reflect state law mandating that delivery only businesses that sell medical marijuana will be a “permitted” use, subject to applicable zoning and operational requirements. This will also require the creation of a new section, 8.64.055, to define delivery only medical marijuana retail dispensary.
This Chapter defines the use as follows:
“A delivery only medical marijuana retail dispensary is any facility or location operated by a state licensed non-storefront retailer possessing a current M-license and Type 9 license from CA Department of Cannabis Control where medical marijuana is made available, and/or distributed by method of delivery only, with no on-site customer services of any kind, to medicinal cannabis patients, as defined in Section 11362.7 of the Health and Safety Code, who possess a physician’s recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2, or a qualified patient or primary caregiver for a qualified patient issued a valid identification card pursuant to Section 11362.71 of the Health and Safety Code.”
Please review the attached Ordinance No. 2023-13 for all the changes made to Chapter 8.64.
3. Amend Title 17, Chapter 17.25 Commercial, Mixed Use, Office, and Industrial Zones Use Matrix:
The City of Visalia Title 17 Zoning provides a precise and detailed plan for the use of land within the city, and more precisely works to achieve the policies and objectives of the General Plan. Similarly, of the various chapters in Title 17 Zoning, Chapter 17.25 establishes the list of land uses that are permitted or conditionally permitted in the various zone districts within the City of Visalia.
The amendment to Chapter 17.25 is as follows:
1. Add new line M46, “Delivery only medical marijuana retail” to be permitted in Light Industrial (I-L) and Industrial (I) zones in accordance with Chapters 5.66, 8.64, and 17.32.167.
Given the explicit delivery requirements under SB 1186, including the prohibition that no retail storefront be permitted, this use closely resembles that of a trucking/warehousing/internet fulfillment centers in many ways, and as such, these uses are listed as “Permitted” in both the Light Industrial and Industrial zones. Furthermore, trucking/warehousing/internet fulfillment centers are also “Permitted” in the Service Commercial (C-S) zone; however, staff is not recommending the C-S zone be listed due to a majority of this zoning designation being located in areas of the community (Ben Maddox corridor and East Main Street) that are in close proximity to sensitive land uses which would conflict with the proposed zoning objective standards described in greater detail below. There are concerns of secondary impacts that this type of business could influence young persons if the business is visible similar to tobacco stores, and there are concerns over these types of businesses being targets of crime since cannabis businesses often have cash as well as cannabis on hand. Based on staff’s analysis, staff recommends “Delivery only medical marijuana retail” uses be “Permitted” in both the Light Industrial and Industrial zones.
2. Amend lines M46 - M65 accordingly (see Zone Matrix chart below).
4.
Add new Special Provisions Section 17.32.167 “Delivery only Medical Marijuana Retail:
Chapter 17.32 Special Provisions has served as a chapter of the Zoning Ordinance to address items which have not otherwise been explicitly address in specific zones but work to structure performance standards or operational standards for specific uses or within specified zones. New Section 17.32.167 has been drafted to contain the following provisions to regulate delivery only medical marijuana retail uses subject to the following objective standards:
A. Purpose and Intent. It is the purpose of this section to allow, in certain cases and subject to specific zoning restrictions and development and operational standards, the operation of delivery only medical marijuana retail facilities and to regulate such operations for the protection of the general health, safety and welfare of the citizens of the city.
B. Zoning Restrictions:
1. Use is permitted in the Light Industrial (I-L) Zone and Industrial (I) Zone.
2. Marijuana cultivation is not permitted.
3. Delivery only medical marijuana retail businesses shall not be located:
Within five hundred (500) feet of any existing or planned public, private, or parochial schools, elementary schools, middle schools, or high schools located either inside or outside of the city limits.
As used in this section, “existing” means existing at the time the permit application is submitted. “Planned” means property designated on the general plan of the city for such use, or other official planning documents of the city, or property owned or leased by the city for such use.
C. Parking requirements.
One parking space for each employee during the shift of maximum employment, plus one parking space for each vehicle used in conjunction with the use is required.
D. Fencing and/or security gates.
A minimum seven foot fence or security gates shall be required subject to the provisions as defined in Section 17.36.070.
E. Signage.
All signage is subject to the requirements as defined in Section 17.48.
F. Other Delivery only medical marijuana retail standards.
Delivery only medical marijuana retail establishments must also meet all requirements of Chapter 5.66 - Regulations and Requirements for Cannabis Businesses Permitted to Operate Under California State Law.
Please review the attached Ordinance No. 2023-13 for all the changes made to Title 17.
Additional ‘buffer’ options:
The Planning Commission supported staff’s recommendation that a 500-foot ‘buffer’ from sensitive uses be established as noted in Section 17.36.167.B.3.i. of the proposed ordinance. When this item was previously raised, consideration of a buffer from sensitive uses, similar to the buffer requirement for adult businesses, such as smoke shops, was discussed to prevent encouraging usage of drugs by minors and concerns over crime being drawn to businesses that sell cannabis. A buffer greater than 500-feet potentially limits the number of Light Industrial zoned sites which would otherwise be eligible for a delivery business. Reducing the number of Light Industrial zoned properties could be construed as not meeting the intent of SB 1186 by limiting the number of eligible sites in the Light Industrial zone if a ‘buffer’ greater than 500-feet was implemented (see attached 750 ft. and 1,000 ft. map exhibits). Additionally, because onsite retail sales are prohibited, entry into these premises by the general public is not allowed, and safety plans are required per Title 5, Section 5.66, staff concludes typical concerns due to locating this type of business proximity to sensitive uses may not be as applicable and are recommending a smaller buffer.
Fiscal Impact: None
Prior Council Action:
On July 17, 2023, staff conducted a work session with City Council on this subject and gained authority to proceed with municipal code updates to Title 5 Business Regulations, Title 8 Health and Safety, and Title 17 Zoning.
Committee/Commission Review and Action:
On October 9, 2023, the Planning Commission adopted Resolution No. 2023-52 recommending that the City Council approve adoption of ZTA No. 2023-02 related to revisions to Title 17.
Alternatives:
The City Council, in lieu of the recommendation, may direct staff to consider the following:
1. Deny the Zoning Text Amendment in whole or in part;
2. Return the items to the Planning Commission for further consideration.
Please note that effective on January 1, 2024, “delivery only” (delivery of medicinal cannabis) businesses will be permitted to operate in the City of Visalia by state law SB 1186, regardless of City regulations in place or not.
Recommended Motion (and Alternative Motions if expected):
recommendation
I move to introduce for first reading Ordinance No. 2023-13 for Zone Text Amendment No. 2023-02.
Environmental Assessment Status:
The requested action is considered exempt under Section 15061(b)(3) of the State Guidelines for the California Environmental Quality Act (CEQA).
CEQA Review:
The requested action is considered exempt under Section 15061(b)(3), Per Section 15061(b)(3) of the State Guidelines for the California Environmental Quality Act (CEQA). A Notice of Exemption No. 2023-46 has been prepared for the project because Section 15061 (b) (3) states that the project is exempted from CEQA if the activity is covered by the common sense exemption that CEQA applies only to projects that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The proposed text amendment to establish objective standards for delivery only medical marijuana retail establishments will not have a significant effect on the environment.
Attachments:
1. Ordinance No. 2023-13 for Zoning Text Amendment No. 2023-02
2. Planning Commission staff report dated October 9, 2023
3. Buffer maps (500-ft., 750-ft., 1,000-ft.)
4. Senate Bill 1186
5. Notice of Exemption No. 2023-46