CITY OF CARMEL-BY-THE-SEA

Planning Commission Report

January 11, 2017
To:

Chair Goodhue and Planning Commissioners

From:

Marc Wiener, AICP, Community Planning and Building Director

Subject:

Consideration of recommendations to the City Council for an Ordinance

adding chapter 8.78 and section 12.32.155 and amending sections
8.36.010 and 12.32.010 of the Municipal Code prohibiting nonmedical
marijuana sales, outdoor cultivation and use or smoking in public places

Recommendation:
Adopt the resolution recommending that the City Council adopt an Ordinance adding chapter
8.78 and section 12.32.155 and amending sections 8.36.010 and 12.32.010 of the Municipal
Code
Background:
On November 8, Californians approved Proposition 64 - the Control, Regulate, and Tax Adult
Use of Marijuana Act ("AUMA" or "the Act"), legalizing recreational marijuana use for adults 21
and older. While Carmel-by-the-Sea previously adopted an ordinance regulating medical
marijuana, its current regulations are insufficient to cover recreational marijuana use. Under
AUMA, jurisdictions have authority to regulate outdoor cultivation and commercial activities.
The State will not begin issuing permits for commercial marijuana until January 1, 2018.
Nevertheless, the development of an ordinance is a high priority. The Carmel Community
Planning and Building Department is proposing an ordinance that would prohibit recreational
marijuana sales, outdoor cultivation and use or smoking in public places.
Staff Analysis:
Municipal Code Amendments
Staff is proposing to add Chapter 8.78 to the Municipal Code, which identifies nonmedical
marijuana and provides the following general provisions:

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Nonmedical Marijuana Ordinance

January 11, 2017
Staff Report
Page 2

A.
B.
C.
D.

E.
F.

The processing, manufacture, distribution, testing, and sale of nonmedical marijuana,

including marijuana products, is a prohibited land use in all zoning districts in the City.
Not more than six (6) living plants may be planted, cultivated, harvested, dried or
processed within a single private residence at one time;
No outdoor cultivation, drying or processing is allowed out of doors.
The living plants and any marijuana produced by the plants in excess of 28.5 grams must
be kept in a locked space within the persons private residence or upon the grounds of
that residence and must not be visible by normal unaided vision from a public place.
All processing and other smells or aromas generated by the growing or processing of
any marijuana shall be kept and controlled on the grounds of the residence.
Nonmedical marijuana may not be planted, cultivated, harvested, dried or processed in
any other zone beside a single private residence.

The subject provisions are consistent with state law, which allows for individual to cultivate up
to six living plants within a single private residence. Proposition 64 gives local jurisdictions
authority to prohibit outdoor cultivation and commercial sales, and as such, the proposed
Ordinance would ban these activities.
Jurisdiction are also permitted to regulate nonmedical marijuana smoking in public places, in a
manner consistent with cigarette smoking regulations. Section 12.32.155 was added to address
that it is unlawful to use or consume nonmedical marijuana on public property. Section
8.36.020 (Attachment C) of the Municipal Code provides a list of places within the City that
smoking is prohibited, which includes City parkland and any structure that includes a no
smoking sign.
The code sections proposed to be added and amended are not part of the Citys Local Coastal
Program, and hence, do not require California Coastal Commission certification. It should be
noted that future revisions to the proposed code sections could occur in a fairly expedited
manner.
Policy Considerations
As an alternative, the Planning Commission could consider recommending that the City allow
nonmedical marijuana commercial activities, which may include retail stores and/or commercial
cultivation. An important consideration for the City Council is potential tax revenue.
Proposition 64 does not affect local governments authority to impose taxes on medical or nonmedical marijuana. Effective January 1, 2018, a State imposed marijuana excise tax and

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January 11, 2017
Staff Report
Page 3

cultivation tax applies to medical and non-medical marijuana. The new state excise taxes are in
addition to any other tax imposed by a city, county or city and county. New, increased, or
extended local taxes require voter approval of either 2/3 for a special tax or a majority vote for
a general tax. During the November 2016 election, there were 39 local measures to tax
marijuana and all but two failed. This brings the total number of California cities and counties
with enacted local marijuana taxes to 55. The most common local excise tax is a business
license tax for dispensing, cultivating, manufacturing and transportation. Business regulatory
fees may recover the reasonable regulatory costs for issuing licenses and permits, performing
investigations, inspections and enforcement.
Environmental Review: This ordinance is exempt from CEQA pursuant to CEQA Guidelines
section 15061(b)(3) which is the general rule that CEQA applies only to projects which have the
potential for causing a significant effect on the environment and CEQA does not apply where it
can be seen with certainty that there is no possibility that the activity may have a significant
effect on the environment. The Citys permissive zoning provisions already prohibits all uses
that are being expressly prohibited by this ordinance. Therefore, this ordinance has no impact
on the physical environment as it will not result in any changes.
ATTACHMENTS:

Attachment A Resolution No. 2017-02

Attachment B Proposed Municipal Code Additions/Amendments
Attachment C CMC 8.36.020: Smoking Prohibited in Certain Public Places

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Attachment A PC Resolution
CITY OF CARMEL-BY-THE-SEA
PLANNING COMMISSION RESOLUTION NO. 2017-02
A RESOLUTION RECOMMENDING THAT THE CITY COUNCIL ADOPT AN
ORDINANCE ADDING CHAPTER 8.78 AND SECTION 12.32.155 AND AMENDING
SECTIONS 8.36.010 AND 12.32.010 OF THE CARMEL-BY-THE-SEA MUNICIPAL CODE
PROHIBITING NONMEDICAL MARIJUANA SALES, OUTDOOR CULTIVATION AND
USE OR SMOKING IN PUBLIC PLACES.

WHEREAS, The City of Carmel-by-the-Sea is a unique community that prides itself in

its community character; and
WHEREAS, on or about January 5, 2016, the City amended Ordinance 17.14.040 and
adopted Section 17.14.240 regulating medical marijuana; and
WHEREAS, on November 8, 2016, California voters passed Proposition 64 which
legalized the possession and use of up to an ounce of nonmedical marijuana for adults over the
age of 21; and
WHEREAS, Proposition 64 provides local jurisdictions with authority to regulate certain
nonmedical marijuana activities; and
WHEREAS, the Planning Commission finds that the proposed Ordinance intended to
regulate nonmedical marijuana is necessary to protect the character of Carmel-by-the-Sea; and
WHEREAS, the Planning Commission held a duly noticed public hearing on January 11,
2017 at which time it considered all evidence presented, both written and oral and at the end of
the hearing voted to adopt a resolution recommending that the City Council adopt this
Ordinance; and

NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF THE

CITY OF CARMEL-BY-THE-SEA AS FOLLOWS:
Section 1.
Recitals. The Planning Commission hereby finds that the foregoing
recitals are true and correct.
Section 2.
CEQA Findings. Categorical Exemption: The proposed project is
categorically exempt from the provisions of the California Environmental Quality Act (CEQA)
per State CEQA Guidelines Section 15305 (Class 5 Minor Alterations to Land Use
Limitations). This exemption applies to projects involving minor alterations to land use
limitations, which do not result in changes in land use or density. The proposed Ordinance
Amendment falls under a Class 5 categorical exemption because it involves minor amendments
to the Zoning Code that include requiring a conditional use permit for certain land uses, adds a
few new land use definitions, codifies the use permit voting requirements, and allows
authorization for temporary events on private property. The proposed Zoning Code amendments
do not significantly change the current land use regulations. The amendments also do not
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propose or require physical changes to any specific property that will negatively impact the
environment.
Section 3.
Planning Commission Review and Recommendation. Pursuant to
Zoning Code Chapter 17.62, the Planning Commission has reviewed the proposed Zoning Code
amendments set forth in Attachment B. The Planning Commission hereby recommends their
adoption by the City Council.

PASSED AND ADOPTED BY THE PLANNING COMMISSION OF THE CITY OF

CARMEL-BY-THE-SEA this 11th day of January 2017 by the following roll call vote:
AYES:
NOES:
ABSENT:
ATTEST:
_________________________________
Cortina Whitmore, Admin. Coordinator

SIGNED:
_________________________________
Don Goodhue, Planning Commission Chair

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Attachment B Proposed Code Additions/Amendments (red and underlined is new)

Chapter 8.78
NONMEDICAL MARIJUANA
Sections:
8.78.010

Definition.

8.78.020

General Provisions.

8.78.030

Violations.

8.78.010 Definition.
Nonmedical marijuana is any marijuana or marijuana product, as defined in Division 10 of the California
Health and Safety Code.

8.78.020 General Provisions.

A.

The processing, manufacture, distribution, testing, and sale of nonmedical marijuana, including
marijuana products, is a prohibited land use in all zoning districts in the City.

B.

Not more than six (6) living plants may be planted, cultivated, harvested, dried or processed
within a single private residence at one time;

C.

No outdoor cultivation, drying or processing is allowed out of doors.

D.

The living plants and any marijuana produced by the plants in excess of 28.5 grams must be
kept in a locked space within the persons private residence or upon the grounds of that
residence and must not be visible by normal unaided vision from a public place.

E.

All processing and other smells or aromas generated by the growing or processing of any
marijuana shall be kept and controlled on the grounds of the residence.

F.

Nonmedical marijuana may not be planted, cultivated, harvested, dried or processed in any
other zone beside a single private residence.

8.78.030 Violations.
Any person violating any of the provisions of this chapter shall be deemed guilty of an infraction or
misdemeanor. Each day such violation is committed or permitted to continue shall constitute a
separate offense and shall be punishable as such.

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Attachment B Proposed Code Additions/Amendments (red and underlined is new)

Section 8.36.010.
The terms smoke or smoking are defined for purposes of this chapter to include the carrying of a lighted
pipe, lighted cigar or lighted cigarette of any kind, including, but not limited to one containing marijuana, or
the lighting of any pipe, cigar or cigarette.

12.32.010 Definitions.
A. For the purpose of this chapter, the term public property means any publicly owned or controlled
property or buildings property within the City, and shall include all parks, beaches, sidewalks, curbs, and all
parts of any public right-of-way devoted to planting, forest or park-like use.

12.32.155 Nonmedical Marijuana.

It is unlawful to use or consume nonmedical marijuana on public property.

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Attachment C Code Section for Smoking in Public Place

8.36.020 Smoking Prohibited in Certain Public Places.

Smoking shall be prohibited in the following places within the City:
A. Elevators generally open to the public;
B. Waiting rooms, reception rooms and public hallways of every private or public health care facility including,
but not limited to, hospitals; provided, however, that this prohibition shall not prevent the establishment of a
separate waiting room in which smoking is permitted;
C. Halls, reading or viewing rooms of City-owned museums, galleries and libraries whenever open to the
public;
D. Any building not open to the sky which is primarily used for, or is designed for the primary purpose of,
exhibiting motion pictures, stage dramas, lectures, musical recitals or other similar performances whenever
such buildings are open to the public, except that smoking is not prohibited in any area commonly referred to
as a lobby if the area is physically separated from the spectator area, and smoking is not prohibited on a stage
if such smoking is part of a stage production;
E. Smoking shall be prohibited in any business, office or structure open to the general public, or any part
thereof, which is posted with No Smoking signs by the owner or operator thereof. The posting of signs shall
be voluntary on the part of the owner or operator of the premises and this section shall not be enforceable
unless signs giving reasonable notice that smoking is prohibited on the premises are so posted;
F. Smoking is prohibited and is unlawful within the boundaries of Carmel Beach, on the Beach Bluff Pathway
and within any public beach access way including but not limited to stairways and walkways adjoining public
beach areas. Carmel Beach is defined as public lands: west and south of private property along Carmel Way;
west of private property on the west side of San Antonio Avenue between 2nd Avenue and Ocean Avenue;
west of San Antonio Avenue between 4th Avenue and Ocean Avenue; north of Ocean Avenue between San
Antonio Avenue and Del Mar Avenue; west of Del Mar Avenue; west of private property on the west side of
Scenic Road between Ocean Avenue and 8th Avenue; and west of the Scenic Road pedestrian pathway
between 8th Avenue and the City limit;
G. Smoking is prohibited and is unlawful in the following City parks: Devendorf Park, First Murphy Park, Forest
Hill Park, Mission Trail Nature Preserve, Piccadilly Park, Pescadero Park, Forest Theater, Rio Park, and Vista
Lobos Park. (Ord. 2007-10 1, 2007; Ord. 2005-05 1, 2005; Ord. 76-1 1, 1976; Code 1975 699.3).

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