SUMMARY: BILL NUMBER: ORDINANCE NUMBER:
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- Mervyn McKinney
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1 SUMMARY: An ordinance prohibiting medical marijuana establishments in any zoning district within the unincorporated areas of Humboldt County. BILL NUMBER: ORDINANCE NUMBER: AN ORDINANCE ADDING NEW SECTION 100 TO TITLE 17 ZONING, CHAPTER 10 GENERAL PROVISIONS TO THE HUMBOLDT COUNTY CODE TO PROHIBIT MEDICAL MARIJUANA ESTABLISHMENTS IN ANY ZONING DISTRICT WITHIN THE UNICORPORATED AREAS OF HUMBOLDT COUNTY, AND AMENDING THE PROHIBITED USES LISTED IN ALL COMMERCIAL AND INDUSTRIAL ZONING DISTRICTS, SPECIFICALLY HUMBOLDT COUNTY CODE SECTIONS FOR NC-R NEIGHBORHOOD COMMERCIAL/RURAL DISTRICT, FOR GC GENERAL COMMERCIAL DISTRICT, FOR CH HIGHWAY COMMERCIAL DISTRICT, FOR M-L LIGHT INDUSTRIAL DISTRICT, FOR M-1 INDUSTRIAL DISTRICT AND FOR M-2 HEAVY INDUSTRIAL DISTRICT, TO ADD MEDICAL MARIJUANA ESTABLISHMENTS AS A PROHIBITED USE, AND OTHER MATTERS PROPERLY RELATING THERETO. WHEREAS, the Board of County Commissioners recognizes the rights of qualifying individuals to grow, possess and use marijuana for medical purposes as provided by the Nevada Revised Statutes (hereafter referred to as NRS ) in NRS Chapter 453A since 2001; and WHEREAS, Nevada law provides immunity from state and local prosecution for possessing, delivering and producing marijuana in certain limited amounts for patients with qualifying medical conditions; and WHEREAS, the Nevada Legislature adopted SB 374 during the 2013 Session, and as a result on April 1, 2014, a number of amendments to NRS Chapter 453A concerning medical marijuana establishments have come into effect; and WHEREAS, these amendments, among other things, permit medical marijuana establishments to operate in the State of Nevada, subject to certain statutory and regulatory requirements; and WHEREAS, NRS 453A.116 provides that medical marijuana establishment means: (1) an independent testing laboratory; (2) a cultivation facility; (3) a facility for the production of edible marijuana products or marijuana-infused products; (4) a medical marijuana dispensary; or (5) a business that has registered with the Division and paid the requisite fees to act as more than one of the types of businesses listed in (2), (3) and (4); and WHEREAS, medical marijuana establishments will be required to be registered with the Division of Public and Behavioral Health of the Department of Health and Human Services in order to operate without being subject to prosecution under State law; and WHEREAS, pursuant to NRS 453A.322(3)(a)(5), the Division of Public and Behavioral Health of the Department of Health and Human Services may not register a medical marijuana establishment without proof of licensure or a letter from the applicable local governmental authority certifying that the proposed medical marijuana establishment is in compliance with zoning restrictions; and
2 WHEREAS, NRS 453A.350 provides that medical marijuana establishments may only be located in commercial or industrial zoning districts or overlays, must comply with all local governmental ordinances and rules pertaining to zoning and land use, and be professional in appearance; and WHEREAS, the County may make and enforce within its boundaries all local, police, sanitary, zoning and other ordinances and regulations not in conflict with general laws; and WHEREAS, preemption of the County's authority will not be implied when the legislative scheme either permits or recognizes local regulation. NRS 453A.350 explicitly provides that a county may enact zoning restrictions; and WHEREAS, the mere fact that a local law imposes restraints that the state law does not impose does not establish a conflict; and WHEREAS, there is legal uncertainty between federal laws and Nevada laws regarding medical marijuana establishments. The United States Supreme Court has held that the federal Controlled Substances Act validly prohibits local cultivation, and use of marijuana under all circumstances (Gonzales v. Raich, 125 S. Ct (2005)) and the federal Controlled Substances Act prohibits marijuana use, distribution and possession, and that no medical necessity exception exists to these prohibitions (United States v. Oakland Cannabis Aiycri' Cooperative, 121 S. CL 1711 (2001)); and WHEREAS, cities and counties in other states that have permitted the establishment of marijuana dispensaries and related facilities have witnessed an increase in crime, such as burglaries, robberies and sales of illegal drugs in the areas immediately surrounding such facilities; and WHEREAS, regulations are further needed to protect the public, health, safety and welfare of residents, children, and businesses from harmful secondary effects of certain types of land use and such regulations are necessary and proper and consistent with the guidelines set forth in NRS ; and WHEREAS, zoning is a field covered by local regulation and there is significant local interest that may differ from one locality to another; and WHEREAS, regulations related to the sale and distribution of substances controlled by state and federal law are necessitated by the large geographic size and rural nature of the County, the limited resources of the County, and the close proximity of residential, school, park and religious uses to commercial and industrial uses in each community in the County; and WHEREAS, the County has a long tradition of applying strict land use standards to protect the unique land use zones and communities in Humboldt County and, in some cases, Humboldt County has banned certain types of retail and industrial uses; and WHEREAS, the County desires to enact a zoning restriction which prohibits medical marijuana establishments within the unincorporated boundaries of Humboldt County in all zoning districts.
3 NOW, THEREFORE, THE BOARD OF COUNTY COMMISSIONERS OF HUMBOLDT COUNTY, NEVADA DOES ORDAIN AS FOLLOWS: SECTION 1. That a new Section 100 be added to Humboldt County Code Title 17, Chapter 10 General Provisions to read as follows: Medical marijuana establishments prohibited. A. Notwithstanding any other provision of this Code, medical marijuana establishments are not allowed, and shall be unlawful as a permitted use, conditional use or accessory use in any zoning district within the unincorporated areas of Humboldt County. For purposes of this section, "medical marijuana establishment" shall have the same definition as in NRS 453A.116, and as may be amended. B. This prohibition is not intended to interfere with the individual rights of persons to the medical use of marijuana as permitted by Chapter 453A of the Nevada Revised Statutes. SECTION 2. That Humboldt County Code Title 17, Chapter 28, Section 050 Prohibited Uses for NC-R Neighborhood Commercial/Rural District be amended to read as follows (additions are shown in italics and bold, and deletions are shown with strikethrough): Prohibited uses. The following are prohibited uses in the NC-R neighborhood commercial/rural district: A. Commercial uses not addressed as permitted under Section or ; B. All industrial uses.; SECTION 3. That Humboldt County Code Title 17, Chapter 30, Section 050 Prohibited Uses for GC General Commercial District be amended to read as follows (additions are shown in italics and bold, and deletions are shown with strikethrough): Prohibited uses. The following are prohibited uses in the GC general commercial district: A. All industrial uses are prohibited uses in the GC general commercial district.; B. Medical marijuana establishments pursuant to Humboldt County Code SECTION 4. That Humboldt County Code Title 17, Chapter 32, Section 050 Prohibited Uses for CH Highway Commercial District be amended to read as follows (additions are shown in italics and bold, and deletions are shown with strikethrough): Prohibited uses. The following are prohibited uses in the CH highway commercial district: A. Residential uses; B. All industrial uses; C. Commercial uses not addressed as permitted under Section or ; D. Medical marijuana establishments pursuant to Humboldt County Code SECTION 5. That Humboldt County Code Title 17, Chapter 36, Section 050 Prohibited Uses for M-L Light Industrial District be amended to read as follows (additions are shown in italics and bold, and deletions are shown with strikethrough):
4 Prohibited uses. The following are prohibited uses in the M-L light industrial district: A. Public and semipublic buildings such as, but not limited to the following: churches, schools and libraries; B. Convenience markets with a gross floor area in excess of three thousand square feet; C. Retail shops; D. Manufacture of any acid or acid byproduct, chemical or gas, corrosive or explosive product.; E. Medical marijuana establishments pursuant to Humboldt County Code SECTION 6. That Humboldt County Code Title 17, Chapter 38, Section 050 Prohibited Uses for M-1 Industrial District be amended to read as follows (additions are shown in italics and bold, and deletions are shown with strikethrough): Prohibited uses. The following are prohibited uses in the M-1 industrial district: A. Churches, public schools and libraries; B. Manufacture of acid byproducts, chemicals or gas, corrosive or explosive products.; SECTION 7. That Humboldt County Code Title 17, Chapter 40, Section 050 Prohibited Uses for M-2 Heavy Industrial District be amended to read as follows (additions are shown in italics and bold, and deletions are shown with strikethrough): Prohibited uses. The following are prohibited uses in the M-2 heavy industrial district: A. Public and semipublic buildings such as but not limited to the following: churches, schools and libraries; B. Residential uses.; SECTION 8. General Terms. 1. Severability. If any section of this ordinance or portion thereof is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such holding shall not invalidate the remaining parts of this ordinance. 2. Repealer. All ordinances, or parts thereof, in conflict or inconsistent with the provisions of this ordinance are hereby repealed, but only to the extent of such conflict or inconsistency. The repeals provided in this section shall not be construed to revive any ordinance, or part thereof, which has been previously repealed. 3. Effective Date. Pursuant to NRS (2)(c), this ordinance shall take effect and be in force from and after its passage and the publication thereof by title only, together with the names of the county commissioners voting for and or against its passage, in a newspaper published in and having a general circulation in Humboldt
5 County, Nevada, at least once a week for a period of 2 weeks. Specifically, this ordinance shall be in force and effect on the day of, PROPOSED on the day of, 2014 by Commissioner. PASSED and ADOPTED on this day of, VOTE by Commissioners: Ayes: Nays: Abstentions: Absent: BOARD OF COUNTY COMMISSIONERS HUMBOLDT COUNTY, NEVADA ATTEST: By: DAN CASSINELLI, Chair TAMI RAE SPERO, County Clerk
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