Loading...
HomeMy WebLinkAboutAGENDA REPORT 2020 0115 REG CCSA ITEM 08ACITY OF MOORPARK, 
CALIFORNIA City Council Meeting of January 15, 2020 ACTION Adopted Urgency Ordinance No. 479; and Adopted Resolution No. 2020- 3870. BY B.Garza. A. Consider Interim Urgency Ordinance to Extend the Existing Moratorium on the Cultivation, Manufacturing, Testing, Storing, and Certain Sales of Industrial Hemp in the City of Moorpark, Declaring the Urgency Thereof and the Immediate Effectiveness of the Ordinance Pursuant to Government Code Section 65858, 36934 and 36937, and Making a Determination of Exemption under the California Environmental Quality Act; and Consider Resolution Initiating Zoning Code Amendment to Address Permanent Regulations for Industrial Hemp Uses. Staff Recommendation: 1) Conduct the public hearing on the proposed extension of the moratorium on industrial hemp uses; and 2) Waive full reading and adopt Urgency Ordinance No. 479 as read by title only. (REQUIRES A ROLL CALL VOTE AND A 4/5THS VOTE OF THE CITY COUNCIL TO ADOPT); and 3) Direct City staff to prepare a written report of the steps taken to address the impacts of industrial hemp on the community and have that report presented at least ten days before the Interim Urgency Ordinance’s expiration date, currently scheduled for December 16, 2020; and Adopt Resolution No. 2020-3870 to initiate the preparation of a non-urgency ermanent amendment to the Zoning Code that establishes zoning and other necessary restrictions on the cultivation, manufacturing, testing, sale and storing of industrial hemp, and other necessary restrictions on the sale of non-FDA approved products containing CBD, in the City. (Staff: Troy Brown/Kevin Ennis) Item: 8.A. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Troy Brown, City Manager Kevin G. Ennis, City Attorney Nicholas R. Ghirelli, Assistant City Attorney DATE: 01/15/2020 Regular Meeting SUBJECT: Consider Interim Urgency Ordinance to Extend the Existing Moratorium on the Cultivation, Manufacturing, Testing, Storing, and Certain Sales of Industrial Hemp in the City of Moorpark, Declaring the Urgency Thereof and the Immediate Effectiveness of the Ordinance Pursuant to Government Code Section 65858, 36934 and 36937, and Making a Determination of Exemption under the California Environmental Quality Act; and Consider Resolution Initiating Zoning Code Amendment to Address Permanent Regulations for Industrial Hemp Uses INTRODUCTION On December 18, 2019, the City Council adopted Interim Urgency Ordinance No. 477 to impose a temporary, 45-day moratorium on the on the cultivation, manufacturing, testing, and storing of industrial hemp, among other related activities such as drying and processing industrial hemp, in all zoning districts of the City. The interim ordinance also prohibits the sale of products that contain cannabidiols (“CBD”), if the sale of those products requires FDA approval and the products do not have such approval. Finally, the interim ordinance prohibits the sale of all industrial hemp products, if the sale comprises five percent or more of a business’s floor area or gross sales in any month. The City will not issue zoning permits, building permits, land use entitlements and business registration permits for any of those activities within the City of Moorpark. The initial 45-day term of Interim Urgency Ordinance No. 477 is scheduled to expire on February 1, 2020. In order to extend the moratorium on industrial hemp uses, the City Council must hold a public hearing and adopt a new interim urgency ordinance to extend the moratorium for an additional 10 months and 15 days, through and including December 16, 2020. Item: 8.A. 1 Honorable City Council 01/15/2020 Regular Meeting Page 2 BACKGROUND Over the last several months, large numbers of residents in the Peach Hill, Mountain Meadows, Serenata and other areas and neighborhoods in the southern portion of the City have experienced offensive odors from relatively new and large-scale outdoor industrial hemp farms located in the Tierra Rejada Valley located immediately south of the City in the unincorporated area of the County of Ventura. Dozens of residents have called City and County officials complaining of the continual skunk-like odor in their neighborhoods as terpenes from a large farm of industrial hemp grown to produce CBD oil wafts into residential neighborhoods adjacent to this hemp farm. Aside from having to experience offensive odors, many of these residents also have complained of headaches, nausea, sore throats and other physical side effects from breathing and smelling the distinctive odor generated by industrial hemp grown to produce CBD oil. In an effort to prevent industrial hemp uses from intruding into the City, on December 18, 2019, the City Council adopted Interim Urgency Ordinance No. 477 to temporarily prohibit the cultivation, testing, storing, and certain retail uses of industrial hemp in the City. Pursuant to Government Code Section 65858, the initial moratorium established by Interim Urgency Ordinance No. 477 is scheduled to expire 45-days after its adoption, on February 1, 2020. The Council directed staff to schedule a public hearing and prepare an ordinance to extend the moratorium on industrial hemp uses for an additional 10 months, 15 days, through and including December 16, 2020 as permitted by Section 65858. The additional time is needed to continue studying appropriate land use regulations for industrial hemp and CBD uses and to prepare a permanent ordinance to codify those regulations. Concurrently with the adoption of the ordinance to extend the moratorium, City staff is also recommending that the City Council initiate the process of amending the Zoning Code to codify the permanent industrial hemp regulations. A draft resolution to do so is attached to this staff report. A special meeting was held on Thursday, January 2, 2020, at which the City Council adopted a report that briefly explains the reasons why the moratorium on industrial hemp uses was adopted and the measures taken to alleviate the problems caused by industrial hemp. Pursuant to Government Code Section 65858(d), this report must be adopted 10 days prior to any extension of an existing land use moratorium. A copy of the 10-day report adopted by the City Council is also attached to the staff report. DISCUSSION A. Background “Industrial hemp” is defined as “a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of one percent (0.3%) tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, 2 Honorable City Council 01/15/2020 Regular Meeting Page 3 manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.” In contrast, traditional cannabis, also known generally as marijuana, has a THC content that exceeds 3/10th of one percent in its flowering tops, seeds or resin. Industrial hemp is grown to produce a variety of products, including fiber for clothing, textiles, paper, building materials and for CBD oil for human use and consumption. Cannabis is principally grown for the psychoactive properties of THC when ingested. Industrial hemp and cannabis are regulated differently under federal and state law. On December 20, 2018, the Agricultural Improvement Act of 2018 (also known as the 2018 Farm Bill) was signed into law by the President of the United States. Effective January 1, 2018, that law removed industrial hemp from Schedule I of the federal Controlled Substances Act and directed the U.S. Agricultural Department to develop a federal regulatory oversight program for the cultivation, production and marketing of industrial hemp. Similarly, the California state government enacted a regulatory program to allow for the cultivation of industrial hemp in California. Under that program, growers of industrial hemp for commercial purposes must register with the county agricultural commissions and obtain an annual permit. (See, generally, California Food and Agricultural Code Section 81000 et seq. and Title 3 of the California Code of Regulations, Section 4900 et seq.) B. Impacts on City In the last year, Ventura County has become an increasingly popular area for the growing of industrial hemp because of the County’s unique climate that allows for the year-round and staggered growing of industrial hemp crops. The specific cultivar of industrial hemp that is grown to produce CBD oil is a cultivar that produces a large amount of flowering resin. This flowering resin produces a smell or terpene that is often described as having the strong odor of marijuana or, to some, the smell of a skunk. In the last year, a large farm area in the Tierra Rejada Valley just south of the City was planted to grow industrial hemp. The specific type of cultivar planted to produce CBD oil combined with the large acreage of hemp plants planted for staggered harvesting over many months of the year has caused significant and pervasive foul orders to infiltrate the southern portion of the City of Moorpark. Dozens of residents in the affected area have described the impacts as being a nuisance. Impacts include constant exposure to offensive odors, inside and outside their homes. Many residents indicated that they are now inhibited from enjoying the outdoor areas around their homes and from using passive and active recreation areas in their neighborhoods. Many residents have reported headaches, nausea, and sore throats. Given the strong and pervasive odor in the neighborhood, residents are concerned about the potential diminution in the value of their homes and whether prospective purchasers of homes in the area would be driven away by the pervasive and strong odor. Staff is informed that the County’s recently adopted urgency ordinance is expected to prevent 3 Honorable City Council 01/15/2020 Regular Meeting Page 4 industrial hemp farming in the Tierra Rejada Valley. Additional concerns were raised about the volatile organic compounds (VOC) generated by industrial hemp plants and whether large-scale production of industrial hemp could lead to the increased generation of smog-producing ozone in Ventura County. Public safety concerns were also raised. Ventura County Sheriff’s Captain Victor Fazio, reported on the increased number of crimes committed by persons seeking to steal industrial hemp plants from open and unsecured fields, the collateral crimes committed in the course of those thefts, and the criminal element that is being attracted into Ventura County to take advantage of these opportunities for theft. Based on this information and all the evidence presented at its meeting of December 18th, the City Council found that the cultivation, manufacturing, testing, sale, and storing of industrial hemp poses a current and immediate threat to the public health, safety and welfare of the community. Allowing for cultivation of industrial hemp in the City could create similar and additional impacts from those noted in this report. The moratorium on industrial hemp is, and continues to be, necessary to prohibit the cultivation, manufacturing, testing, sale, and storing of industrial hemp in the City because any those activities may be in conflict with zoning and municipal code regulations that the City may want to adopt over the next several months. Moreover, given the reported incidents of theft of industrial hemp, the City Council found that nearly all industrial hemp activities should be prohibited. The extension of the Interim Urgency Ordinance is needed to provide city staff with additional time to study appropriate regulatory tools to address these impacts, including a permanent prohibition on industrial hemp activities within the City, during the moratorium period. City staff is preparing an ordinance to implement those tools. To that end, a resolution to initiate a Zoning Code amendment is being presented to the City Council for consideration. C. CBD Products The existing industrial hemp moratorium also prohibits the sale of industrial hemp-derived CBD oil and CBD products that are not approved for human or animal consumption by the Federal Drug Administration (FDA). At this time, the FDA has approved only one CBD product, Epidiolex, a prescription drug product to treat two rare, severe forms of epilepsy. The moratorium will not ban the sale of Epidiolex. The health and safety concerns giving rise to the City Council’s decision to include the sale of unapproved CBD products in the moratorium is fully explained and analyzed in the December 18, 2019 staff report, a copy of which is attached hereto. As part of staff’s comprehensive investigation of industrial hemp and its potential impacts on public health, safety, and welfare, staff is continuing to evaluate whether and to what extent retail sales of CBD products contribute to any such health and safety impacts. 4 Honorable City Council 01/15/2020 Regular Meeting Page 5 Similarly, staff is also continuing to evaluate whether retail stores that have more than five percent of their floor area or five percent of gross sales in any month, are appropriate uses in the City of Moorpark. INTERIM ORDINANCE PROCEDURES California law authorizes municipalities to adopt “interim” ordinances that place an immediate moratorium on the establishment of specified new activities and uses in the City. California Government Code Section 65858 provides for the procedures and requirements for the adoption of an “interim” ordinance. Section 65858 provides that, without following normal zoning code ordinance adoption procedures, a city council may, in order to protect the public health, safety, and welfare of the community, adopt as an urgency measure an “interim ordinance” prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City Council, Planning Commission or Planning Department is considering or studying for adoption within a reasonable time. Section 65858 provides that a city council cannot adopt an interim ordinance unless the ordinance contains legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional entitlements for a specific use or uses would result in a threat to the public health, safety, or welfare. Interim Urgency Ordinance No. 477 is scheduled to expire after an initial 45-day period (until February 1, 2020.) As proposed here, the City Council may extend the interim ordinance by an additional 10 months and 15 days by the adoption of an additional urgency ordinance. The City Council must conduct a noticed public hearing prior to extending the interim ordinance. The proposed extension also requires a four-fifths vote for adoption. On January 2, 2020, in accordance with Government Code Section 65858(d), the City Council adopted a written report which describes the measure taken by the City to alleviate the condition that led to the adoption of the ordinance. This written report was required to be issued by the City Council at least 10 days prior to extension of the interim ordinance. Finally, if the City has not been able to enact permanent zoning regulations during that extension period, the law allows for one additional one-year extension, for a total cumulative duration of the interim restrictions of two years. Concurrent with the interim ordinance process, City staff has begun the process of preparing permanent zoning and other regulations and then process those through the normal zoning ordinance adoption process. That process will include a noticed public hearing before the Planning Commission, the Planning Commission’s adoption of a resolution making recommendations on the proposed text of a permanent ordinance to the City Council, a noticed public hearing before the City Council and the regular two reading 5 Honorable City Council 01/15/2020 Regular Meeting Page 6 processing for adoption of a non-urgency ordinance by the City Council. Pursuant to Section 17.44.050 of the Moorpark Municipal Code, the City Council must adopt a resolution of intent to initiate an amendment to the Zoning Code. As stated above, a draft resolution for the Council’s consideration is attached to this report. CALIFORNIA ENVIRONMENTAL QUALITY ACT This extension of the interim ordinance is exempt from review under the California Environmental Quality Act (CEQA) on several grounds. This interim ordinance is categorically exempt from CEQA, under Section 15308 of the State CEQA Guidelines, because this ordinance is a regulatory action taken by the City in accordance with California Government Code Section 65858 to assure maintenance and protection of the environment pending further review of the potential impacts of industrial hemp uses in the City and completion of contemplated Zoning Ordinance revisions. In addition, this interim ordinance is not a “project” within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential to result in a direct physical change in the environment, and it has no potential to result in any reasonably foreseeable indirect physical change in the environment. The interim ordinance will impose greater limitations on development in the City than under the current Zoning Code because the moratorium will temporarily halt the cultivation, manufacturing, testing, and storing of industrial hemp, the sale of products contains CBD if the sale of those products requires FDA approval and have not obtained that approval, and the sale of industrial hemp products if such products comprise five percent or more of a business’s floor space or gross sales in any one month. The interim ordinance will thereby serve to reduce potentially significant adverse environmental impacts caused by those activities in the City. Finally, this interim ordinance is exempt from CEQA review pursuant to Section 15061(b)(3) of the State CEQA Guidelines. This interim ordinance is covered by the general rule that CEQA applies only to projects that have the potential to cause a significant effect on the environment. Because the interim ordinance will impose a moratorium on cultivation, manufacturing, testing, and storing of industrial hemp, as well as the sale of products containing CBD, if the sale of those products requires FDA approval and have not obtained that approval, and the sale of industrial hemp products if such products comprise five percent or more of a business’s floor space or gross sales in any one month, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment, and therefore, this interim ordinance is not subject to CEQA. FISCAL IMPACT There is no fiscal impact associated with this action. 6 Honorable City Council 01/15/2020 Regular Meeting Page 7 COUNCIL GOAL COMPLIANCE This action does not support a current strategic directive. STAFF RECOMMENDATION 1. Conduct the public hearing on the proposed extension of the moratorium on industrial hemp uses; and 2. Waive full reading and adopt Urgency Ordinance No. ___ as read by title only. (REQUIRES A ROLL CALL VOTE AND A 4/5THS VOTE OF THE CITY COUNCIL TO ADOPT); and 3. Direct City staff to prepare a written report of the steps taken to address the impacts of industrial hemp on the community and have that report presented at least ten days before the Interim Urgency Ordinance’s expiration date, currently scheduled for December 16, 2020; and 4. Adopt Resolution No. ____ to initiate the preparation of a non-urgency permanent amendment to the Zoning Code that establishes zoning and other necessary restrictions on the cultivation, manufacturing, testing, sale and storing of industrial hemp, and other necessary restrictions on the sale of non-FDA approved products containing CBD, in the City. Attachment 1: Draft Urgency Ordinance No. ___ to Extend Moratorium Attachment 2: Draft Resolution No. 2020-____ to Initiate Zoning Code Amendment Attachment 3: 10-Day Report Attachment 4: December 18, 2019 Staff Report on Moratorium 7 ATTACHMENT 1 ORDINANCE NO. ___ AN INTERIM URGENCY ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA, EXTENDING THE EXISTING MORATORIUM ON THE CULTIVATION, MANUFACTURING, TESTING, STORING, AND CERTAIN RETAIL SALES OF INDUSTRIAL HEMP, DECLARING THE URGENCY THEREOF AND THE IMMEDIATE EFFECTIVENESS OF THIS ORDINANCE PURSUANT TO GOVERNMENT CODE SECTIONS 65858, 36934 AND 36937, AND MAKING A DETERMINATION OF EXEMPTION UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. Findings A. The City Council desires to provide for the public safety, health and welfare of the residents and visitors to the City of Moorpark (“City”) by exercising its police power authority under Section 7 of Article XI of the California Constitution. Based on the findings and evidence set forth below, the City Council finds that certain uses of industrial hemp may create public safety, health and welfare impacts within the City. These activities include the cultivation, manufacturing, testing, retail sale, and storing of industrial hemp. At this time, industrial hemp uses are not specifically listed for regulation by Municipal Code Chapter 17.20 (Uses by Zone). B. The City finds that the public welfare will be harmed without studying and evaluating the impacts associated with industrial hemp, including odor, processing safety, and the generation of air pollutants, such as volatile organic compounds (VOCs). Dozens of residents have called City and County of Ventura (“County”) officials complaining of the continual skunk-like odor in their neighborhoods as terpenes from a large farm of industrial hemp grown to produce CBD oil wafts into residential neighborhoods adjacent to this hemp farm. During public hearings regarding industrial hemp, the City Council heard from a substantial number of individuals regarding the harmful effects of the odor emanating from industrial hemp cultivation located adjacent to the City in unincorporated areas of the County. Aside from having to experience offensive odors, many of these residents also have complained of headaches, nausea, sore throats and other physical side effects from breathing and smelling the distinctive odor generated by industrial hemp grown to produce CBD oil. C. The City Council finds that there is a current and immediate threat to the public safety, health and welfare presented by the increased crime associated with 8 Ordinance No. ____ Page 2 industrial hemp activities. The Ventura County Sheriff’s Department documented 10 cases of hemp theft in only 34 days in October and November 2019, and the County has arrested 10 individuals in connection with stolen hemp. During one such event a firearm was reportedly brandished where the suspects were suspected of planning to steal hemp plants. Of the 10 individuals arrested on suspicion of hemp theft, nine of them resided outside of the County. Given that industrial hemp is now grown within the County, the Sheriff’s Department is concerned that criminals are travelling into the County for the purpose of stealing hemp plants and hemp paraphernalia. Theft of hemp plants is made easier by limited security measures observed by the Sheriff’s Department during inspections of existing hemp farms within the County. The additional patrols and investigatory resources devoted to industrial hemp activities prevent the Sheriff’s Department from undertaking other crime prevention activities in surrounding areas, and it is reasonable to surmise that hemp activities within the City would detract the Sheriff’s Department from undertaking other crime prevention activities in the City. Based on this evidence, the City Council finds that the adoption of this Interim Ordinance is necessary for the immediate preservation of the public safety, health and welfare. D. The City Council further finds that certain products containing or produced with industrial hemp, primarily cannabidiols (CBD), have not yet received Federal Drug Administration (FDA) approval to determine whether they are effective to treat particular conditions or have other effects that may be claimed. In addition, such products have not been subjected to an FDA evaluation to determine proper dosages, dangerous side effects, or other safety conditions. As a result, persons purchasing such products may be exposed to misleading, unproven, or false claims associated with industrial hemp products, including CBD extracted from industrial hemp, which is a real and legitimate public health and safety concern. Furthermore, the FDA has noted that it has seen only limited data about CBD safety and the data points to real risks that should be considered before CBD is ingested. Finally, according to the FDA, the quality of many CBD products has not been fully evaluated with respect to the processing controls and practices involved in the production of CBD that may put consumers at additional health risks. For these reasons, the City Council desires to exercise its police power, including the City’s land use authority, to protect the public health and safety from the risks associated from the retail sale of industrial hemp products, including CBD, that have not yet received approval from the FDA for consumption. E. Allowing industrial hemp activities, without a complete and adequate state and federal regulatory framework in place, will not adequately protect the public’s safety, health and welfare. As such, if the City fails to enact this moratorium, industrial hemp activities will continue to create a current and immediate threat to the public safety, health and welfare. 9 Ordinance No. ____ Page 3 F. For the foregoing reasons, and based on all evidence made available to the City Council, on December 18, 2019, the City Council adopted Interim Urgency Ordinance No. 477 to establish an initial 45-day moratorium on the cultivation, manufacturing, testing, storing, and certain retail sales of industrial hemp within the City. G. During the initial 45-day moratorium, City staff undertook measures to alleviate the conditions described above that led the City Council to adopt Interim Urgency Ordinance No. 477. These measures include reviewing the County of Ventura’s independent actions to mitigate impacts caused by industrial hemp cultivation, conferring with the Ventura County Sheriff’s Department, researching actions taken by the Federal Drug Administration and other jurisdictions to regulate industrial hemp, and researching and developing permanent amendments to the Moorpark Zoning Code to codify appropriate limitations on industrial hemp activities. These measures are more fully explained in the report adopted by the City Council on January 2, 2020, pursuant to Government Code Section 65858(d). This report is attached to the January 15, 2020 staff report accompanying this Interim Urgency Ordinance and made a part of the record thereto. H. The City is still undertaking its review of the measures needed to alleviate the conditions that led to the adoption of Interim Urgency Ordinance No. 477. Accordingly, the City Council is adopting this ordinance to extend the moratorium by an additional 10 months, 15 days, unless terminated sooner by the City Council. I. Pursuant to Government Code Section 65858(a), the City Council held a duly noticed public hearing prior to adopting this Interim Ordinance. J. The City Council finds that this Interim Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15061(c)(3) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), 15060(c)(3) and 15378 (the activity is not a project under CEQA) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. This is because the moratorium adopted by this Interim Ordinance merely prohibits uses that have significant impacts on public health, safety and welfare, and does not permit any development that could result in a significant change to the environment. Furthermore, the moratorium established by this Interim Ordinance is temporary pending the study and investigation of regulatory tools to address the impacts created by industrial hemp activities. In addition, the Interim Ordinance is categorically exempt from CEQA pursuant to Section 15308 of the CEQA Guidelines, because this ordinance is a regulatory action taken by the City in accordance with California Government Code Section 65858 to assure maintenance and protection of 10 Ordinance No. ____ Page 4 the environment pending further review of the potential impacts of industrial hemp uses in the City and completion of contemplated Zoning Ordinance revisions. SECTION 2. Definitions A. “Cultivation” means the planting, growing, harvesting, drying, curing, grading, or trimming of industrial hemp. B. “Industrial hemp” means a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of one percent (0.3%) tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom. C. “Unapproved industrial hemp products” means any item or thing containing any amount of industrial hemp that is intended for human or animal consumption and has not yet received approval by the United States Food and Drug Administration. D. “Manufacturing” means to compound, blend, extract, infuse, process, or otherwise make or prepare an industrial hemp product. E. “Retail sale” means any person or business selling or offering to sell, or to otherwise convey or exchange for any form of consideration, the following: (1) industrial hemp or products derived from any amount of industrial hemp where the sale of such products comprises five percent or more of the business’s floor area or five percent or more of the gross sales of such business in any one month period; or (2) unapproved industrial hemp products in any quantity or amount. F. “Storing” means to store unprocessed industrial hemp. G. “Testing” means a laboratory, facility, or entity in the state that offers or performs tests of industrial hemp and industrial hemp products. SECTION 3. Moratorium Extended The City of Moorpark hereby extends the current moratorium on the cultivation, manufacturing, testing, retail sale, and storing of industrial hemp. Cultivation, manufacturing, testing, retail sale, and storing of industrial hemp shall all constitute prohibited uses under Title 17 of the Moorpark Municipal Code and no building permit, 11 Ordinance No. ____ Page 5 business regulatory permit, zoning clearance, or other entitlement may be issued for the purposes of authorizing such uses. SECTION 4. Penalty A violation of any provision of this Interim Ordinance shall constitute a violation of the Municipal Code and is subject to all applicable penalties, fines, and remedies described in Chapter 1.10 of the Moorpark Municipal Code. Each and every day a violation of this Interim Ordinance exists shall constitute a separate and distinct violation of the Municipal Code. SECTION 5. Term of Moratorium This Interim Ordinance shall expire, and the moratorium established hereby shall terminate on December 16, 2020, which is 10 months, 15 days after the expiration date of the initial 45-day moratorium established by Interim Urgency Ordinance No. 477 on December 18, 2019, unless extended by the City Council at a noticed public hearing pursuant to California Government Code Section 65858. Alternatively, the City Council may terminate the Interim Ordinance prior to its expiration date of December 16, 2020 upon the adoption of a permanent ordinance that regulates industrial hemp activities. SECTION 6. Investigation and Report During Term of Moratorium During the term of this Interim Ordinance, the Community Development Director is directed to continue studying appropriate regulatory tools to mitigate the conditions outlined in Section 1 that arise out of the cultivation, manufacturing, testing, retail sale, and storing of industrial hemp, including but not limited to the prohibition of all such uses. The Community Development Director is further directed to report back to the City Council with his or her findings and a proposed ordinance to implement the recommended course of action. SECTION 7. Effective Date; Findings of Urgency; and Duration A. This Interim Ordinance is adopted as an urgency ordinance pursuant to the provisions of Government Code Sections 65858, 36934 and 36937, and shall take effect immediately upon its adoption. Based upon the findings set forth in Section 1 above, the City Council finds and determines that the adoption of this Interim Ordinance is an urgency ordinance authorized by Government Code Section 65858, and is necessary for the immediate preservation of the public health, safety, and welfare. B. Pursuant to Government Code Section 65858(a), this Interim Ordinance shall be adopted by not less than a four-fifths vote of the City Council and shall be in 12 Ordinance No. ____ Page 6 effect for 10 months, 15 days from February 1, 2020. The City Council may extend the Interim Ordinance for up to an additional one year, if necessary. The Community Development Director and the City Clerk’s office shall undertake all actions legally necessary to extend this Interim Ordinance in the event the studies and reports desired by the City Council will not be concluded on or before December 16, 2020. SECTION 8. Severability If any provision of this Interim Ordinance, the application thereof to any person or circumstance, or the moratorium on any of the specific uses of industrial hemp is held invalid, such invalidity shall not affect other provisions, moratoria, or applications of this Interim Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this Interim Ordinance irrespective of the invalidity of any particular portion thereof. SECTION 9. Publication and Certification The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall publish notice of adoption in the manner required by law. PASSED AND ADOPTED this 15th day of January, 2020. Janice S. Parvin, Mayor ATTEST: Ky Spangler, City Clerk 13 ATTACHMENT 2 RESOLUTION NO. 2020-____ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, INITIATING A ZONING CODE AMENDMENT AND DIRECTING THE PLANNING COMMISSION TO HOLD A PUBLIC HEARING AND PROVIDE A RECOMMENDATION TO THE CITY COUNCIL ON AMENDMENTS TO TITLE 17 (ZONING) OF THE MOORPARK MUNICIPAL CODE TO ADDRESS THE CULTIVATION, MANUFACTURING, TESTING, STORING, AND RETAIL SALE OF INDUSTRIAL HEMP AND DETERMINING THAT THIS ACTION IS NOT A PROJECT SUBJECT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT WHEREAS, Section 17.44.050 of the Moorpark Municipal Code provides that the City Council may initiate proceedings to consider amendments to the Zoning Code by the adoption of a resolution of intent; and WHEREAS, the City Council has established a moratorium on the cultivation, manufacturing, testing, storing, and certain retail sales of industrial hemp, which is currently scheduled to expire on December 16, 2020; and WHEREAS, in adopting the interim ordinances that established the current moratorium on the above-referenced industrial hemp uses, the City Council directed City staff to take all actions necessary to prepare an ordinance that amends the Zoning Code to codify permanent regulations of industrial hemp uses; and WHEREAS, consistent with its prior direction, the City Council now desires to initiate proceedings to amend Title 17 of the Moorpark Municipal Code (Zoning) to address industrial hemp uses within the City; and WHEREAS, the Community Development Director has determined that the initiation of proceedings for a Zoning Code Amendment is not a “project” as defined under the California Environmental Quality Act (CEQA) because the initiation of a proposed amendment to the Zoning Code itself does not have the possibility of having a direct or indirect physical change on the environment (State CEQA Guidelines Section 15378 (b)(5)). NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. ENVIRONMENTAL DETERMINATION: The City Council concurs with the Community Development Director’s determination that the initiation of proceedings for a Zoning Code Amendment is not a project subject to CEQA and, therefore, no further environmental review pursuant to CEQA is required. 14 Resolution 2020-____ Page 2 SECTION 2. INITIATION OF PROCEEDINGS: The City Council hereby institutes proceedings to consider a Zoning Code Amendment that would amend Title 17 ( Zoning) of the Moorpark Municipal Code to establish zoning regulations and limitations on the cultivation, manufacturing, testing, storing, and sale of industrial hemp. SECTION 3. DIRECTION TO PLANNING DIRECTOR: The Community Development Director is hereby directed to continue her and her staff’s research and analysis of appropriate regulations and limitations on the uses of industrial hemp and to prepare an ordinance that best addresses the impacts in light of the City Council’s findings that supported the current moratorium on industrial hemp uses. SECTION 4. DIRECTION TO THE PLANNING COMMISSION: The Planning Commission is hereby directed to study, hold a public hearing, and a provide a recommendation to the City Council on this matter. SECTION 5 The City Clerk shall certify to the adoption of the Resolution and shall cause a certified resolution to be filed in the book of original Resolutions. PASSED AND ADOPTED this 15th day of January, 2020. _____________________________________ Janice S. Parvin, Mayor ATTEST: ________________________________ Ky Spangler, City Clerk 15 REPORT ON THE MEASURES TAKEN TO ALLEVIATE THE CONDITIONS WHICH LED THE CITY OF MOORPARK TO ENACT INTERIM URGENCY ORDINANCE NO. 477 ON DECEMBER 18, 2019 TO IMPOSE A MORATORIUM ON THE CULTIVATION, MANUFACTURING, TESTING, STORING, AND CERTAIN RETAIL SALES OF INDUSTRIAL HEMP ISSUED BY THE CITY COUNCIL OF THE CITY OF MOORPARK ON JANUARY 2, 2020 PURSUANT TO GOVERNMENT CODE SECTION 65858(d) Background: On December 18, 2019, pursuant to Government Code Section 65858, the Moorpark City Council enacted an Interim Urgency Ordinance to impose a moratorium on the cultivation, manufacturing, testing, storing, and certain retail sales of industrial hemp. Absent any additional action, the Interim Urgency Ordinance will expire after 45 days (February 1, 2020). However, staff anticipates additional time will be necessary to thoroughly research and evaluate a permanent, non-urgency ordinance establishing zoning regulations and other restrictions on the cultivation, manufacturing, testing, sale, and storing of industrial hemp. City staff has therefore scheduled and will notice a public hearing for January 15, 2020, to extend the Interim Urgency Ordinance from February 1, 2020 for an additional 10 months and 15 days, through and including December 16, 2020. Reasons for 45-Day Interim Ordinance and Its Extension: The 45-Day Interim Ordinance was adopted for the following reasons: A. Cultivation, Manufacturing, Testing and Storing of Industrial Hemp. Over the last several months, large numbers of residents in the Peach Hill, Mountain Meadows, Serenata and other areas and neighborhoods in the southern portion of the City have experienced offensive odors from relatively new and large-scale outdoor industrial hemp farms located in the Tierra Rejada Valley located immediately south of the City in the unincorporated area of the County of Ventura. Dozens of residents have called City and County officials complaining of the continual skunk-like odor in their neighborhoods as terpenes from a large farm of industrial hemp grown to produce CBD oil wafts into residential neighborhoods adjacent to this hemp farm. Aside from having to experience offensive odors, many of these residents also have complained of headaches, nausea, sore throats and other physical side effects from breathing and smelling the distinctive odor generated by industrial hemp grown to produce CBD oil. Additional concerns were raised about the volatile organic compounds (VOC) generated by industrial hemp plants and whether large-scale production of industrial hemp could lead to the increased generation of smog-producing ozone in Ventura County. ATTACHMENT 3 16 Ten-Day Report - Ordinance No. 477 Page 2 Public safety concerns were also raised. Ventura County Sheriff’s Captain and Moorpark Chief of Police Victor Fazio, reported on the increased number of crimes committed by persons seeking to steal industrial hemp plants from open and unsecured fields, the collateral crimes committed in the course of those thefts, and the criminal element that is being attracted into Ventura County to take advantage of these opportunities for theft. B. CBD Products After the 2018 Farm Bill was signed into law, the Food and Drug Administration (“FDA”) released a statement stating that it is unlawful under the Food, Drug, and Cosmetics Act (“FD&C”) to introduce food containing added CBD into interstate commerce, or to market CBD products as, or in, dietary supplements, regardless of whether the CBD was derived from industrial hemp or from cannabis. Similarly, the California Department of Public Health released a statement explaining that the use of industrial hemp as the source of CBD to be added to food products is prohibited. The California Department of Public Health explained that until the FDA rules that industrial hemp-derived CBD oil and CBD products can be used as a food or California makes a determination that they are safe to use for human and animal consumption, CBD products are not an approved food, food ingredient, food additive, or dietary supplement. The FDA has approved only one CBD product, Epidiolex, a prescription drug product to treat two rare, severe forms of epilepsy. The moratorium will not ban the sale of Epidiolex. Under the FD&C, any product intended to have a therapeutic or medical use, and any product (other than a food) that is intended to affect the structure or function of the body of humans or animals, is a drug. Drugs must generally either receive premarket approval by the FDA through the New Drug Application process or conform to a "monograph" for a particular drug category, as established by FDA's Over-the-Counter (“OTC”) Drug Review. CBD is not an ingredient considered under the OTC drug review. An unapproved new drug cannot be distributed or sold in interstate commerce. There are no FDA approved products that contain CBD other than Epidiolex. Therefore, the sale of CBD products that are intended to have a therapeutic or medical use is a violation of federal law, and as discussed below, can pose a significant risk to the public. In addition, the FDA has concluded that CBD cannot be sold as a dietary supplement. The FDA has also concluded that it is a prohibited act to introduce or deliver for introduction into interstate commerce any food (including any animal food or feed) to which CBD has been added.1 Unlike the FDA-approved CBD drug product, unapproved CBD products, which could include unapproved drugs, cosmetics, foods, and products marketed as dietary supplements, have not been subject to FDA evaluation regarding whether they are effective to treat a particular disease or have other effects that may be 1 Ingredients that are derived from industrial hemp that do not contain THC or CBD might be able to be added to food. In December 2018, the FDA determined that hulled hemp seed, hemp seed protein powder, and hemp seed oil can be legally marketed in human foods for consumption as marketers do not make claims that they treat disease. These products do not fall within the City’s categorical ban. 17 Ten-Day Report - Ordinance No. 477 Page 3 claimed. In addition, they have not been evaluated by the FDA to determine what the proper dosage is, how they could interact with other drugs or foods, or whether they have dangerous side effects or other safety concerns. Misleading, unproven, or false claims associated with CBD products may lead consumers to put off getting important medical care, such as proper diagnosis, treatment, and supportive care, which is a real public health and safety concern. The FDA notes that it has seen only limited data about CBD safety and the data points to real risks that need to be considered before taking CBD for any reason. According to the FDA, CBD has the potential to cause liver injury, and can affect the metabolism of other drugs, causing serious side effects. Use of CBD with alcohol or other Central Nervous System depressants increases the risk of sedation and drowsiness, which can lead to injuries. CBD can also cause changes in alertness, most commonly experienced as drowsiness or sleepiness, gastrointestinal distress, most commonly experienced as diarrhea and/or decreased appetite, and changes in mood, most commonly experienced as irritability and agitation. In addition to safety risks and unproven claims, the quality of many CBD products may also be in question. The FDA has raised concerns about the lack of appropriate processing controls and practices that can put consumers at additional risk. For example, the FDA has tested the chemical content of cannabinoid compounds in some of the products, and many were found to not contain the levels of CBD they claimed. The FDA is also investigating reports of CBD potentially containing unsafe levels of contaminants (e.g., pesticides, heavy metals, and THC). A cosmetic is defined in Section 201(i) of the FD&C Act as "(1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap." Under the FD&C Act, cosmetic products and ingredients are not subject to premarket approval by FDA, except for most color additives. Ingredients not specifically addressed by regulation must nonetheless comply with all applicable requirements, and no ingredient – including a cannabis or cannabis-derived ingredient – can be used in a cosmetic if it causes the product to be adulterated or misbranded in any way. A cosmetic generally is adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling, or under such conditions of use as are customary or usage. If a product is intended to affect the structure or function of the body, or to diagnose, cure, mitigate, treat or prevent disease, it is a drug, or possibly both a cosmetic and a drug, even if it affects the appearance. As part of staff’s comprehensive investigation of industrial hemp and its potential impacts on public health, safety, and welfare, staff will also evaluate whether and to what extent retail sales of CBD products contribute to any such health and safety impacts. 18 Ten-Day Report - Ordinance No. 477 Page 4 C. Hemp Retail Stores Other cities in Ventura County have also seen an increase in stores specializing in the sale of hemp products, such as CBD. In order to comprehensively review the appropriateness of this type of focused retail store to be located in the City and in certain types of commercial districts of the City, the City wants to consider a range of zoning and other regulatory options that may pertain to these types of retail stores. The City also wants to study a potential exemption for certain types of hemp products from the definition of what would constitute a non-permissible hemp store. Based on these and other concerns expressed by the public and described in the staff report for the December 18, 2019, City Council meeting, the City Council adopted Ordinance No. 477 to impose a moratorium on: (1) the cultivation, manufacturing, testing and storing of industrial hemp in the City; (2) the retail sale of unapproved CBD products; and (3) the establishment of hemp stores in the City. Measures Taken to Alleviate the Conditions Which Led to the Adoption of the Ordinance: The County of Ventura has proposed an interim ordinance to create a one- half mile buffer between sensitive receptors and industrial hemp cultivation activities carried out in unincorporated County land. The County’s proposed interim Ordinance will be considered at an upcoming Board meeting on January 14, 2020. The City has submitted a letter asking that the County develop a science-based standard for separation between residences and other sensitive uses and hemp cultivation areas. The City is concerned that with wind patterns, both on-shore and off-shore flows, the separation needed to ensure that residents are not subjected to objectionable odors may need to be greater than one-half mile. City staff intends to attend the upcoming County Board meeting and provide input into the Board’s decision. City staff has been conferring with the Ventura County Sheriff’s Department in order to better understand the causes of additional criminal activity surrounding industrial hemp activities and what type of security measures are needed to avoid hemp farms from being a magnet for criminal theft of hemp plants. City staff has been monitoring and researching the current regulatory environment surrounding CBD products that have not yet been approved for human consumption by the Federal Drug Administration. Staff is undertaking this research to determine whether, in the absence of a robust and well- understood federal regulatory program, municipal permanent restrictions on CBD productions are appropriate. City staff has begun researching permanent amendments to the Municipal Code to codify the moratorium’s prohibitions on industrial hemp activities, 19 Ten-Day Report - Ordinance No. 477 Page 5 including prohibitions on the cultivation, manufacturing, testing and storing or industrial hemp in the City. City staff is also researching whether the Interim Ordinance ban on what are effectively hemp stores (retail stores with at least five percent of its floor area or five percent of its gross sales from hemp projects) is needed to protect the community from the unregulated sale of hemp products. Staff will be evaluating the percentage threshold for the ban and also whether additional exemptions for certain hemp products are appropriate. Assuming the City Council elects to extend the Interim Urgency Ordinance, and thereafter, amendments to the Moorpark Municipal Code were to be approved by the City Council, staff would at that time recommend rescinding the Interim Urgency Ordinance upon the effective date of the new regulations prior to December 16, 2020. 20 MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Troy Brown, City Manager Kevin G. Ennis, City Attorney Nicholas R. Ghirelli, Assistant City Attorney DATE : 12/18/2019 Regular Meeting SUBJECT: Consider Adoption on an Urgency Ordinance to Prohibit the Cultivation, Manufacturing, Testing, Storing, and Certain Sales of Industrial Hemp in the City of Moorpark, Declaring the Urgency Thereof and the Immediate Effectiveness of the Ordinance Pursuant to Government Code Section 65858, 36934 and 36937, and Making a Determination of Exemption under the California Environmental Quality Act INTRODUCTION Staff has prepared a proposed urgency ordinance to impose a moratorium on the cultivation, manufacturing, testing, and storing of industrial hemp, among other related activities such as drying and processing industrial hemp, in all zoning districts of the City. The urgency ordinance also prohibits the sale of products that contain cannabidiols (“CBD”), if the sale of those products requires FDA approval and the products do not have such approval. In addition, the urgency ordinance prohibits the sale of all industrial hemp products, if the sale comprises five percent or more of a business’s floor area or gross sales in any month. The proposed urgency ordinance would prohibit issuance of zoning permits, building permits, land use entitlements and business registration permits for any of those activities within the City of Moorpark for an initial 45-day period. If this urgency ordinance is adopted, City staff will take other necessary actions required by state law to permit the City Council to extend that moratorium for another 10 months and 15 days at its January 15, 2020 City Council meeting and to begin the preparation of permanent regulations during the pendency of the moratorium. A special meeting is expected to be called for Tuesday, January 2, 2020, for the City Council’s consideration of a report that briefly explains the measures taken to alleviate the problems caused by industrial hemp. This report must be adopted by the City Council 10 days prior to any extension of the urgency ordinance. Item: 9.A. ATTACHMENT 4 21 Honorable City Council 12/18/2019 Regular Meeting Page 2 BACKGROUND Over the last several months, large numbers of residents in the Peach Hill, Mountain Meadows, Serenata and other areas and neighborhoods in the southern portion of the City have experienced offensive odors from relatively new and large-scale outdoor industrial hemp farms located in the Tierra Rejada Valley located immediately south of the City in the unincorporated area of the County of Ventura. Dozens of residents have called City and County officials complaining of the continual skunk-like odor in their neighborhoods as terpenes from a large farm of industrial hemp grown to produce CBD oil wafts into residential neighborhoods adjacent to this hemp farm. Aside from having to experience offensive odors, many of these residents also have complained of headaches, nausea, sore throats and other physical side effects from breathing and smelling the distinctive odor generated by industrial hemp grown to produce CBD oil. On Tuesday, November 19, 2019, the Ventura County Board of Supervisors held a special meeting at the Moorpark Community Center to hear from residents who are experiencing these odors. At this standing-room only meeting, a large number of residents voiced their complaints and raised a series of questions about the problems associated with industrial hemp grown close to residents. At the conclusion of that meeting, the City was informed that the County Board of Supervisors provided direction to County staff to bring back a draft moratorium on the issuance of new industrial hemp permits and to develop permanent regulations to avoid or lessen the impacts of hemp farms on nearby residents. On December 10, 2019, the Board of Supervisors unanimously approved an urgency ordinance to establish a one-half mile buffer zone between industrial hemp farms and sensitive receptors, including residential uses. On Wednesday, November 20, 2019, the Moorpark City Council received a presentation from the County’s Agricultural Commissioner, Ed Williams, and his Deputy, about industrial hemp cultivation and permitting in Ventura County. At the meeting, residents and Councilmembers posed a series of questions about the process of permitting hemp farms and potential solutions to address the impacts on the community. Ventura County Sheriff Captain Fazio also detailed a series of public safety issues generated by the outdoor and open cultivation of industrial hemp. At the conclusion of that discussion, the Council directed that an item be placed on this City Council agenda that would allow the City Council to address the current and immediate threat to the public health, safety and welfare caused by the cultivation of industrial hemp and to allow the City Council to adopt as an urgency measure an interim ordinance prohibiting industrial hemp cultivation in the City. 22 Honorable City Council 12/18/2019 Regular Meeting Page 3 DISCUSSION A. Background “Industrial hemp” is defined as “a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of one percent (0.3%) tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.” In contrast, traditional cannabis, also known generally as marijuana, has a THC content that exceeds 3/10th of one percent in its flowering tops, seeds or resin. Industrial hemp is grown to produce a variety of products, including fiber for clothing, textiles, paper, building materials and for CBD oil for human use and consumption. Cannabis is principally grown for the psychoactive properties of THC when ingested. Industrial hemp and cannabis are regulated differently under federal and state law. On December 20, 2018, the Agricultural Improvement Act of 2018 (also known as the 2018 Farm Bill) was signed into law by the President of the United States. Effective January 1, 2018, that law removed industrial hemp from Schedule I of the federal Controlled Substances Act and directed the U.S. Agricultural Department to develop a federal regulatory oversight program for the cultivation, production and marketing of industrial hemp. Similarly, the California state government enacted a regulatory program to allow for the cultivation of industrial hemp in California. Under that program, growers of industrial hemp for commercial purposes must register with the county agricultural commissions and obtain an annual permit. (See, generally, California Food and Agricultural Code Section 81000 et seq. and Title 3 of the California Code of Regulations, Section 4900 et seq.) B. Impacts on City In the last year, Ventura County has become an increasingly popular area for the growing of industrial hemp because of the County’s unique climate that allows for the year-round and staggered growing of industrial hemp crops. The Ventura County Agricultural Commissioner informed the City Council on November 20, 2019, that so far in 2019, the County has issued permits to 47 applicants seeking to cultivate industrial hemp on 110 sites covering approximately 3,600 acres of land. Each permit is valid for one year. Of those, most were issued for the cultivation of industrial hemp for the production of CBD oil. The specific cultivar of industrial hemp that is grown to produce CBD oil is a cultivar that produces a large amount of flowering resin. This flowering resin produces a smell or terpene that is often described as having the strong odor of marijuana or, to some, the smell of a skunk. 23 Honorable City Council 12/18/2019 Regular Meeting Page 4 In the last year, a large farm area in the Tierra Rejada Valley just south of the City was planted to grow industrial hemp. The specific type of cultivar planted to produce CBD oil combined with the large acreage of hemp plants planted for staggered harvesting over many months of the year has caused significant and pervasive foul orders to infiltrate the southern portion of the City of Moorpark. Dozens of residents in the affected area have described the impacts as being a nuisance. Impacts include constant exposure to offensive odors, inside and outside their homes. Many residents indicated that they are now inhibited from enjoying the outdoor areas around their homes and from using passive and active recreation areas in their neighborhoods. Many residents have reported headaches, nausea, and sore throats. Given the strong and pervasive odor in the neighborhood, residents are concerned about the potential diminution in the value of their homes and whether prospective purchasers of homes in the area would be driven away by the pervasive and strong odor. Staff is informed that the County’s recently adopted urgency ordinance is expected to prevent industrial hemp farming in the Tierra Rejada Valley. Additional concerns were raised about the volatile organic compounds (VOC) generated by industrial hemp plants and whether large-scale production of industrial hemp could lead to the increased generation of smog-producing ozone in Ventura County. Public safety concerns were also raised. Ventura County Sheriff’s Captain Victor Fazio, reported on the increased number of crimes committed by persons seeking to steal industrial hemp plants from open and unsecured fields, the collateral crimes committed in the course of those thefts, and the criminal element that is being attracted into Ventura County to take advantage of these opportunities for theft. Based on this information and all the evidence presented to the City Council in the prior meetings on this issue, staff believes that the cultivation, manufacturing, testing, sale, and storing of industrial hemp poses a current and immediate threat to the public health, safety and welfare of the community. Allowing for cultivation of industrial hemp in the City could create similar and additional impacts from those noted in this report. Adoption of the proposed interim ordinance is necessary to prohibit the cultivation, manufacturing, testing, sale, and storing of industrial hemp in the City because any those activities may be in conflict with zoning and municipal code regulations that the City may want to adopt over the next several months. Moreover, given the reported incidents of theft of industrial hemp, all industrial hemp activities should be prohibited. City staff will study appropriate regulatory tools to address these impacts, including a permanent prohibition on industrial hemp activities within the City, during the moratorium period. In addition, staff will prepare an ordinance to implement those tools. 24 Honorable City Council 12/18/2019 Regular Meeting Page 5 C. CBD Products After the 2018 Farm Bill was signed into law, the Food and Drug Administration (“FDA”) released a statement stating that it is unlawful under the Food, Drug, and Cosmetics Act (“FD&C”) to introduce food containing added CBD into interstate commerce, or to market CBD products as, or in, dietary supplements, regardless of whether the CBD was derived from industrial hemp or from cannabis. Similarly, the California Department of Public Health released a statement explaining that the use of industrial hemp as the source of CBD to be added to food products is prohibited. The California Department of Public Health explained that until the FDA rules that industrial hemp-derived CBD oil and CBD products can be used as a food or California makes a determination that they are safe to use for human and animal consumption, CBD products are not an approved food, food ingredient, food additive, or dietary supplement. The FDA has approved only one CBD product, Epidiolex, a prescription drug product to treat two rare, severe forms of epilepsy. The moratorium will not ban the sale of Epidiolex. Under the FD&C, any product intended to have a therapeutic or medical use, and any product (other than a food) that is intended to affect the structure or function of the body of humans or animals, is a drug. Drugs must generally either receive premarket approval by the FDA through the New Drug Application process or conform to a "monograph" for a particular drug category, as established by FDA's Over-the-Counter (“OTC”) Drug Review. CBD is not an ingredient considered under the OTC drug review. An unapproved new drug cannot be distributed or sold in interstate commerce. There are no FDA approved products that contain CBD other than Epidiolex. Therefore, the sale of CBD products that are intended to have a therapeutic or medical use is a violation of federal law, and as discussed below, can pose a significant risk to the public. In addition, the FDA has concluded that CBD cannot be sold as a dietary supplement. The FDA has also concluded that it is a prohibited act to introduce or deliver for introduction into interstate commerce any food (including any animal food or feed) to which CBD has been added.1 Unlike the FDA-approved CBD drug product, unapproved CBD products, which could include unapproved drugs, cosmetics, foods, and products marketed as dietary supplements, have not been subject to FDA evaluation regarding whether they are effective to treat a particular disease or have other effects that may be claimed. In addition, they have not been evaluated by the FDA to determine what the proper dosage is, how they could interact with other drugs or foods, or whether they have dangerous side effects or other safety concerns. Misleading, unproven, or false claims associated with CBD products may lead consumers to put off getting important medical care, such as proper diagnosis, treatment, and supportive care, which is a real public health and safety concern. 1 Ingredients that are derived from industrial hemp that do not contain THC or CBD might be able to be added to food. In December 2018, the FDA determined that hulled hemp seed, hemp seed protein powder, and hemp seed oil can be legally marketed in human foods for consumption as marketers do not make claims that they treat disease. These products do not fall within the City’s categorical ban. 25 Honorable City Council 12/18/2019 Regular Meeting Page 6 The FDA notes that it has seen only limited data about CBD safety and the data points to real risks that need to be considered before taking CBD for any reason. According to the FDA, CBD has the potential to cause liver injury, and can affect the metabolism of other drugs, causing serious side effects. Use of CBD with alcohol or other Central Nervous System depressants increases the risk of sedation and drowsiness, which can lead to injuries. CBD can also cause changes in alertness, most commonly experienced as drowsiness or sleepiness, gastrointestinal distress, most commonly experienced as diarrhea and/or decreased appetite, and changes in mood, most commonly experienced as irritability and agitation. In addition to safety risks and unproven claims, the quality of many CBD products may also be in question. The FDA has raised concerns about the lack of appropriate processing controls and practices that can put consumers at additional risk. For example, the FDA has tested the chemical content of cannabinoid compounds in some of the products, and many were found to not contain the levels of CBD they claimed. The FDA is also investigating reports of CBD potentially containing unsafe levels of contaminants (e.g., pesticides, heavy metals, and THC). A cosmetic is defined in Section 201(i) of the FD&C Act as "(1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap." Under the FD&C Act, cosmetic products and ingredients are not subject to premarket approval by FDA, except for most color additives. Ingredients not specifically addressed by regulation must nonetheless comply with all applicable requirements, and no ingredient – including a cannabis or cannabis-derived ingredient – can be used in a cosmetic if it causes the product to be adulterated or misbranded in any way. A cosmetic generally is adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling, or under such conditions of use as are customary or usage. If a product is intended to affect the structure or function of the body, or to diagnose, cure, mitigate, treat or prevent disease, it is a drug, or possibly both a cosmetic and a drug, even if it affects the appearance. As part of staff’s comprehensive investigation of industrial hemp and its potential impacts on public health, safety, and welfare, staff will also evaluate whether and to what extent retail sales of CBD products contribute to any such health and safety impacts. INTERIM ORDINANCE PROCEDURES California law authorizes municipalities to adopt “interim” ordinances that place an immediate moratorium on the establishment of specified new activities and uses in the City. California Government Code Section 65858 provides for the procedures and requirements for the adoption of an “interim” ordinance. 26 Honorable City Council 12/18/2019 Regular Meeting Page 7 Section 65858 provides that, without following normal zoning code ordinance adoption procedures, a city council may, in order to protect the public health, safety, and welfare of the community, adopt as an urgency measure an “interim ordinance” prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City Council, Planning Commission or Planning Department is considering or studying for adoption within a reasonable time. Section 65858 provides that a city council cannot adopt an interim ordinance unless the ordinance contains legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional entitlements for a specific use or uses would result in a threat to the public health, safety, or welfare. Adoption of the interim ordinance requires a 4/5ths vote of the City Council. If one member of the City Council is absent from the City Council meeting, a unanimous vote in favor of adoption of the Ordinance by the remaining four members is required to adopt the Ordinance. A motion to waive full reading and adopt the proposed Urgency Ordinance as read by title will require a roll call vote. If that motion passes, the Urgency Ordinance will go into effect immediately and would remain in effect for a period of forty-five (45) days, pursuant to Government Code section 65858(a), unless further extended by the City Council. If the Urgency Ordinance is adopted, it will remain in effect for an initial 45-day period (until January 18, 2020.) Prior to that expiration, the City Council may extend the interim ordinance by an additional 10 months and 15 days by the adoption of an additional urgency ordinance. Any extension shall also require a four-fifths vote for adoption. This means that if the City Council wants the interim ordinance to extend past January 18, 2020, the City Council will need to extend the Ordinance at its January 15, 2020 City Council meeting. In order to allow for that potential extension, City Staff is required to prepare a written report pursuant to Government Code Section 65858(d) which describes the measure taken by the City to alleviate the condition that led to the adoption of the ordinance. This written report is required to be issued by the City Council at least 10 days prior to extension of the interim ordinance. As the City Council will not have a meeting the first week of January (due to the January 1, 2020 holiday), and the extension of the ordinance will need to occur at the January 15, 2020 Regular City Council Meeting, the City Council will need to act to approve and issue that written report at a special meeting scheduled for Thursday, January 2, 2019.. Aside from the written report, City Staff will also provide 10-day advance notice of a public hearing on January 15, 2020 at which meeting the City Council will consider an ordinance to extend the interim ordinance by 10 months and 15 days. Finally, if the City has not been able to enact permanent zoning and other limitations during that extension period, the law allows for one additional one-year extension, for a total cumulative duration of the interim restrictions of two years. 27 Honorable City Council 12/18/2019 Regular Meeting Page 8 Concurrently with the interim ordinance process, City staff will begin the process of preparing permanent zoning and other regulations and then process those through the normal zoning ordinance adoption process. That process will include a noticed public hearing before the Planning Commission, the Planning Commission’s adoption of a resolution making recommendations on the proposed text of a permanent ordinance to the City Council, a noticed public hearing before the City Council and the regular two reading processing for adoption of a non-urgency ordinance by the City Council. CALIFORNIA ENVIRONMENTAL QUALITY ACT This interim ordinance is exempt from review under the California Environmental Quality Act (CEQA) on several grounds. This interim ordinance is categorically exempt from CEQA, under Section 15308 of the State CEQA Guidelines, because this ordinance is a regulatory action taken by the City in accordance with California Government Code Section 65858 to assure maintenance and protection of the environment pending further review of the potential impacts of industrial hemp uses in the City and completion of contemplated Zoning Ordinance revisions. In addition, this interim ordinance is not a “project” within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential to result in a direct physical change in the environment, and it has no potential to result in any reasonably foreseeable indirect physical change in the environment. The interim ordinance will impose greater limitations on development in the City than under the current Zoning Code because the moratorium will temporarily halt the cultivation, manufacturing, testing, and storing of industrial hemp, the sale of products contains CBD if the sale of those products requires FDA approval and have not obtained that approval, and the sale of industrial hemp products if such products comprise five percent or more of a business’s floor space or gross sales in any one month. The interim ordinance will thereby serve to reduce potentially significant adverse environmental impacts caused by those activities in the City. Finally, this interim ordinance is exempt from CEQA review pursuant to Section 15061(b)(3) of the State CEQA Guidelines. This interim ordinance is covered by the general rule that CEQA applies only to projects that have the potential to cause a significant effect on the environment. Because the interim ordinance will impose a moratorium on cultivation, manufacturing, testing, and storing of industrial hemp, as well as the sale of products containing CBD, if the sale of those products requires FDA approval and have not obtained that approval, and the sale of industrial hemp products if such products comprise five percent or more of a business’s floor space or gross sales in any one month, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment, and therefore, this interim ordinance is not subject to CEQA. 28 Honorable City Council 12/18/2019 Regular Meeting Page 9 FISCAL IMPACT There is no fiscal impact associated with this action. COUNCIL GOAL COMPLIANCE This action does not support a current strategic directive. STAFF RECOMMENDATION 1.Waive full reading and adopt Urgency Ordinance No. ___ as read by title only. (REQUIRES A ROLL CALL VOTE AND A 4/5THS VOTE OF THE CITY COUNCIL TO ADOPT); and 2.Direct City staff to prepare a written report of the steps taken to address the impacts of industrial hemp on the community and have that report presented at a Special City Council meeting on January 2, 2020; and 3.Provide Notice of a Public Hearing for January 15, 2020, to consider the extension of Urgency Ordinance No. ___; and 4.Direct staff to begin the preparation of a non-urgency permanent Ordinance establishing zoning and other necessary restrictions on the cultivation, manufacturing, testing, and storing of industrial hemp in the City; and 5.Direct staff to begin the preparation of a non-urgency permanent Ordinance establishing zoning and other necessary restrictions on the sale of products containing CBD, if the sale of those products requires FDA approval, and the products do not have such approval. (ROLL CALL VOTE REQUIRED) Attachment: Draft Urgency Ordinance No. ____ 29 ORDINANCE NO. ___ AN INTERIM URGENCY ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA, ESTABLISHING A MORATORIUM ON THE CULTIVATION, MANUFACTURING, TESTING, RETAIL SALE, AND STORING OF INDUSTRIAL HEMP, DECLARING THE URGENCY THEREOF AND THE IMMEDIATE EFFECTIVENESS OF THIS ORDINANCE PURSUANT TO GOVERNMENT CODE SECTIONS 65858, 36934 AND 36937 AND MAKING A DETERMINATION OF EXEMPTION UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. Findings A. The City Council desires to provide for the public safety, health and welfare of the residents and visitors to the City of Moorpark (“City”) by exercising its police power authority under Section 7 of Article XI of the California Constitution. Based on the findings and evidence set forth below, the City Council finds that certain uses of industrial hemp may create public safety, health and welfare impacts within the City. These activities include the cultivation, manufacturing, testing, retail sale, and storing of industrial hemp. At this time, industrial hemp uses are not specifically listed for regulation by Municipal Code Chapter 17.20 (Uses by Zone). B. The City finds that the public welfare will be harmed without studying and evaluating the impacts associated with industrial hemp, including odor, processing safety, and the generation of air pollutants, such as volatile organic compounds (VOCs). Dozens of residents have called City and County of Ventura (“County”) officials complaining of the continual skunk-like odor in their neighborhoods as terpenes from a large farm of industrial hemp grown to produce CBD oil wafts into residential neighborhoods adjacent to this hemp farm. During public hearings regarding industrial hemp, the City Council heard from a substantial number of individuals regarding the harmful effects of the odor emanating from industrial hemp cultivation located adjacent to the City in unincorporated areas of the County. Aside from having to experience offensive odors, many of these residents also have complained of headaches, nausea, sore throats and other physical side effects from breathing and smelling the distinctive odor generated by industrial hemp grown to produce CBD oil. C. The City Council finds that there is a current and immediate threat to the public safety, health and welfare presented by the increased crime associated with industrial hemp activities. The Ventura County Sheriff’s Department documented 10 cases of hemp theft in only 34 days in October and November 2019, and the County has arrested 10 individuals in connection with stolen hemp. During one such event a 30 Ordinance No. ____ Page 2 firearm was reportedly brandished where the suspects were suspected of planning to steal hemp plants. Of the 10 individuals arrested on suspicion of hemp theft, nine of them resided outside of the County. Given that industrial hemp is now grown within the County, the Sheriff’s Department is concerned that criminals are travelling into the County for the purpose of stealing hemp plants and hemp paraphernalia. Theft of hemp plants is made easier by limited security measures observed by the Sheriff’s Department during inspections of existing hemp farms within the County. The additional patrols and investigatory resources devoted to industrial hemp activities prevent the Sheriff’s Department from undertaking other crime prevention activities in surrounding areas, and it is reasonable to surmise that hemp activities within the City would detract the Sheriff’s Department from undertaking other crime prevention activities in the City. Based on this evidence, the City Council finds that the adoption of this Interim Ordinance is necessary for the immediate preservation of the public safety, health and welfare. D. The City Council further finds that certain products containing or produced with industrial hemp, primarily cannabidiols (CBD), have not yet received Federal Drug Administration (FDA) approval to determine whether they are effective to treat particular conditions or have other effects that may be claimed. In addition, such products have not been subjected to an FDA evaluation to determine proper dosages, dangerous side effects, or other safety conditions. As a result, persons purchasing such products may be exposed to misleading, unproven, or false claims associated with industrial hemp products, including CBD extracted from industrial hemp, which is a real and legitimate public health and safety concern. Furthermore, the FDA has noted that it has seen only limited data about CBD safety and the data points to real risks that should be considered before CBD is ingested. Finally, according to the FDA, the quality of many CBD products has not been fully evaluated with respect to the processing controls and practices involved in the production of CBD that may put consumers at additional health risks. For these reasons, the City Council desires to exercise its police power, including the City’s land use authority, to protect the public health and safety from the risks associated from the retail sale of industrial hemp products, including CBD, that have not yet received approval from the FDA for consumption. E. Allowing industrial hemp activities, without a complete and adequate state and federal regulatory framework in place, will not adequately protect the public’s safety, health and welfare. As such, if the City fails to enact this moratorium, industrial hemp activities will continue to create a current and immediate threat to the public safety, health and welfare. E. The City Council finds that this Interim Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15061(c)(3) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), 15060(c)(3) and 15378 (the activity is not a project under CEQA) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or 31 Ordinance No. ____ Page 3 indirectly. This is because the moratorium adopted by this Interim Ordinance merely prohibits uses that have significant impacts on public health, safety and welfare, and does not permit any development that could result in a significant change to the environment. Furthermore, the moratorium established by this Interim Ordinance is temporary pending the study and investigation of regulatory tools to address the impacts created by industrial hemp activities. In addition, the Interim Ordinance is categorically exempt from CEQA pursuant to Section 15308 of the CEQA Guidelines, because this ordinance is a regulatory action taken by the City in accordance with California Government Code Section 65858 to assure maintenance and protection of the environment pending further review of the potential impacts of industrial hemp uses in the City and completion of contemplated Zoning Ordinance revisions. SECTION 2. Definitions A. “Cultivation” means the planting, growing, harvesting, drying, curing, grading, or trimming of industrial hemp. B. “Industrial hemp” means a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of one percent (0.3%) tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom. C. “Unapproved industrial hemp products” means any item or thing containing any amount of industrial hemp that is intended for human or animal consumption and has not yet received approval by the United States Food and Drug Administration. D. “Manufacturing” means to compound, blend, extract, infuse, process, or otherwise make or prepare an industrial hemp product. E. “Retail sale” means any person or business selling or offering to sell, or to otherwise convey or exchange for any form of consideration, the following: (1) industrial hemp or products derived from any amount of industrial hemp where the sale of such products comprises five percent or more of the business’s floor area or five percent or more of the gross sales of such business in any one month period; or (2) unapproved industrial hemp products in any quantity or amount. F. “Storing” means to store unprocessed industrial hemp. G. “Testing” means a laboratory, facility, or entity in the state that offers or performs tests of industrial hemp and industrial hemp products. 32 Ordinance No. ____ Page 4 SECTION 3. Moratorium Established The City of Moorpark hereby establishes a moratorium on the cultivation, manufacturing, testing, retail sale, and storing of industrial hemp. Cultivation, manufacturing, testing, retail sale, and storing of industrial hemp shall all constitute prohibited uses under Title 17 of the Moorpark Municipal Code and no building permit, business regulatory permit, zoning clearance, or other entitlement may be issued for the purposes of authorizing such uses. SECTION 4. Penalty A violation of any provision of this Interim Ordinance shall constitute a violation of the Municipal Code and is subject to all applicable penalties, fines, and remedies described in Chapter 1.10 of the Moorpark Municipal Code. Each and every day a violation of this Interim Ordinance exists shall constitute a separate and distinct violation of the Municipal Code. SECTION 5. Term of Moratorium This Interim Ordinance shall expire, and the moratorium established hereby shall terminate, 45 days after the date of adoption, unless extended by the City Council at a noticed public hearing pursuant to California Government Code Section 65858. SECTION 6. Investigation and Report During Term of Moratorium During the term of this Interim Ordinance, the Community Development Director is directed to study appropriate regulatory tools to mitigate the conditions outlined in Section 1 that arise out of the cultivation, manufacturing, testing, retail sale, and storing of industrial hemp, including but not limited to the prohibition of all such uses. The Community Development Director is further directed to report back to the City Council with his or her findings and a proposed ordinance to implement the recommended course of action. SECTION 7. Effective Date; Findings of Urgency; and Duration A. This Interim Ordinance is adopted as an urgency ordinance pursuant to the provisions of Government Code Sections 65858, 36934 and 36937, and shall take effect immediately upon its adoption. Based upon the findings set forth in Section 1 above, the City Council finds and determines that the adoption of this Interim Ordinance is an urgency ordinance authorized by Government Code Section 65858, and is necessary for the immediate preservation of the public health, safety, and welfare. B. Pursuant to Government Code Section 65858(a), this Interim Ordinance shall be adopted by not less than a four-fifths vote of the City Council and shall be in effect for 45 days from its adoption. After notice pursuant to Government Code Section 33 Ordinance No. ____ Page 5 65090 and a public hearing, the City Council may extend the Interim Ordinance for up to an additional 10 months and 15 days and subsequently for one year, if necessary. The Community Development Director and the City Clerk’s office shall undertake all actions legally necessary to extend this Interim Ordinance in the event the studies and reports desired by the City Council will not be concluded on or before the 45th day subsequent to the adoption of this Interim Ordinance. SECTION 8. Severability If any provision of this Interim Ordinance, the application thereof to any person or circumstance, or the moratorium on any of the specific uses of industrial hemp is held invalid, such invalidity shall not affect other provisions, moratoria, or applications of this Interim Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this Interim Ordinance irrespective of the invalidity of any particular portion thereof. SECTION 9. Publication and Certification The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall publish notice of adoption in the manner required by law. PASSED AND ADOPTED this 18th day of December, 2019. Janice S. Parvin, Mayor ATTEST: Ky Spangler, City Clerk 34