HomeMy WebLinkAboutOrd 2011-04ORDINANCE NO. 11 -04
AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN
HILLS ZONING ORDINANCE RELATED TO ADOPTING REASONABLE
REGULATIONS WITH RESPECT TO THE USE OF LAND FOR MEDICAL
MARIJUANA DISPENSARIES AND RELATED USES.
WHEREAS, Proposition 203, the Arizona Medical Marijuana Act (the "Act "), appeared
on the November 2, 2010, statewide ballot and, as approved by the voters, provides for certain
medical marijuana use, sale and cultivation, to include the establishment of medical marijuana
dispensaries in the State of Arizona; and
WHEREAS, the Federal Controlled Substances Act and applicable regulations classify
marijuana as a "Schedule I" drug and consequently prohibit its use in any manner, with
exceptions only for research purposes; and
WHEREAS, the Federal Food and Drug Administration (the "FDA ") continues to
support the placement of marijuana as a "Schedule I" controlled substance with no currently
accepted medical use in the United States; and
WHEREAS, past evaluation by federal agencies including the FDA, the Substance
Abuse and Mental Health Service Administration ( "SAMHSA ") and the National Institute for
Drug Abuse ( "NIDA ") have concluded that no sound scientific studies support medical use of
marijuana for treatment in the United States; and
WHEREAS, the FDA, as the federal agency responsible for reviewing the safety and
efficacy of drugs, the DEA, as the federal agency charged with enforcing the Controlled
Substances Act and the Office of National Drug Control Policy, as the federal coordinator of
drug control policy, do not support the use of smoked marijuana for medical purposes; and
WHEREAS, evaluation of several California cities' experiences with medical marijuana
dispensaries and the opinion of the California Police Chiefs' Association have indicated negative
secondary neighborhood affects associated with the operation of medical marijuana dispensaries
including: (i) illegal drug sales at a price less than dispensary prices, to dispensary patrons;
(ii) marijuana use in and around dispensaries; (iii) non - residents being attracted to the
community to secure marijuana; (iv) DUI arrests related to marijuana purchased at dispensaries;
(v) burglaries of dispensaries; (vi) drug dealers posing as medical marijuana users to purchase
and resell marijuana illegally; (vii) robbery of medical marijuana patrons; (viii) thefts in and
around dispensaries to support legal and illegal drug commerce; (ix) negative affects on
surrounding businesses resulting from a concentration of criminals associated with the
dispensary; and (x) illegal sale of drugs other than marijuana in dispensaries; and
WHEREAS, robberies, assaults and burglaries of dispensaries may be under - reported by
dispensaries and crime statistics may consequently inaccurately underestimate the incidence of
such crimes, and dispensaries may account for a disproportionate number of such incidents in
comparison to other business uses; and
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WHEREAS, dispensaries, by virtue of their operation: (i) may be the repositories of
large amounts of cash and marijuana and consequently operators have been attacked at their
dispensaries and at home; (ii) have been regularly burglarized; and (iii) account for other
negative affects on the community such as sales of drugs to minors, loitering, heavy vehicle
traffic, increased noise and robbery of dispensary customers; and
WHEREAS, the Director of the Office of National Drug Control Policy reports that in
states such as Colorado (where medical marijuana is legal), youths who receive information that
marijuana is a medicine assume that marijuana use is safe, but science is clear that marijuana use
is harmful and associated with dependence, respiratory and mental illness, poor motor
performance and cognitive impairment; and
WHEREAS, unregulated dispensaries can expand enormously within a municipality and
the current Town of Fountain Hills Zoning Ordinance (the "Zoning Ordinance ") does not
specifically address or regulate establishment, location or operation of marijuana dispensaries,
which, pursuant to Section 5.01 of the Zoning Ordinance, amounts to a total ban of the use; and
WHEREAS, the Act expressly authorizes cities to enact "reasonable" zoning regulations
that limit the use of land for registered nonprofit medical marijuana dispensaries, but does not
permit an outright ban, as currently exists; and
WHEREAS, Arizona law permits cities to enact zoning regulations in order to conserve
and promote the public health, safety and general welfare and regulate the use of buildings,
structures and land; and
WHEREAS, it is necessary to restrict, or prohibit, the use or division of real property
within the Town of Fountain Hills in order to protect the public's health by establishing
appropriate regulation of medical marijuana dispensaries and cultivation facilities; and
WHEREAS, regulations defining permitted location of dispensaries and cultivation
facilities (collectively referred to here as "Facilities ") and providing for the minimum separation
of such Facilities from uses such as churches, libraries, schools, parks, day care centers, licensed
treatment centers and other marijuana facilities will reduce the threat to public health, safety and
welfare potentially caused by medical marijuana uses; and
WHEREAS, the regulations, limitations and prohibitions established in this Ordinance
are necessary to protect and preserve the public's health and safety; and
WHEREAS, all due and proper notices of public hearings on this Ordinance held before
the Town of Fountain Hills Planning and Zoning Commission (the "Commission ") and the
Mayor and Council of the Town of Fountain Hills (the "Town Council ") were given in the time,
form, substance and manner provided by ARM REV. STAT. § 9- 462.04; and
WHEREAS, the Commission held a public hearing on this Ordinance on December 9,
2010, after which the Commission recommended to the Town Council that this Ordinance be
approved; and
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WHEREAS, the Town Council held an additional public bearing on this Ordinance on
January 6, 2011.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. The recitals above are hereby incorporated as if fully set forth herein.
SECTION 2. That certain document known as the "Town of Fountain Hills Medical
Marijuana Regulations" (the "Regulations ") three copies of which are on file in the office of the
Town Clerk of the Town of Fountain Hills, Arizona, which document was made a public record
by Resolution No. 2011 ®03 of the Town of Fountain Hills, Arizona, is hereby referred to,
adopted and made a part hereof as if fully set out in this Ordinance.
SECTION 3, The Town of Fountain Hills Zoning Ordinance is hereby amended by
creating a new Chapter 24, Medical Marijuana Uses, the text of which shall be the Regulations
adopted herein by reference.
SECTION 4. Any person found guilty of violating any provision of the Regulations shall
lie guilty of a class one misdemeanor. Each
offCn;c puiiisltable as herein above described.
i day that a violation continues shall be a separate
SECTION 5. If' any section, subsection, sentence, clause, phrase or portion of this
Ordinance or the Regulations is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions. of (Iris Ordinance or the Regulations.
SECTION 6. The Mayer, the Town Manager, the 'Town Clerk and the Town Attorney
are hereby authorized and directed to execute all documents and tike all steps necessary to carry
out the purpose and intent of this Ordinance.
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
Arizona, January G, 2411.
FOR I'll E TOWN' OF FOUNTAIN HILLS:
-! ��, -r, ( ; — —
Schlum, Mayor
REVIEWED BY:
Richard L. Davis, Town Manager
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ATTESTED TO:
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L .u�0, /.
AP- AZAPP VED AS TO FORM:
L, I—
P
J. McGuire, Town Attorney