Cannabis Cultivation In Brea?

Proposition 215 (the Compassionate Use Act of 1996) is a California law legalizing the use of medical cannabis. Enacted on November 5, 1996 by means of the initiative process, Prop 215 passed with a majority vote of 55.6%.

Though medical cannabis was legalized and accepted by the majority of California voters, Prop 215 does not supersede federal law. Marijuana is still illegal under federal law which causes a conflict between the state and the U.S. Government.

A legal frame of reference.

cannabisFearing that state law might be created that would usurp local control, on April 3, 2007, Council adopted emergency interim Ordinance No. 1100-U prohibiting medical cannabis dispensaries in the city of Brea.

On March 18, 2008, Council, adopted interim Ordinance No. 1113 extending the prohibition — with a one year time limit, expiring in April 2009.

Prior to the expiration of Ordinance 1100-U the city’s options were to either adopt a full prohibition of cannabis dispensaries or form standards to allow the use.

Obviously, Council opted to adopt full prohibition. On December 9, 2008, the Planning Commission adopted a resolution which recommended language to Council for an ordinance prohibiting medical cannabis dispensaries in the city of Brea. (Documentation)

Council, on January 20, 2009, had the first reading of an amendment to the Brea Municipal Code prohibiting medical cannabis dispensaries in the city of Brea. As on all prior occasions public hearings were conducted. Having no one wishing to speak to the matter, hearings were opened and closed without comment.

On February 3, 2009, Council had the second reading of the resolution and adopted Ordinance No. 1120, a full prohibition of medical cannabis dispensaries. (Documentation)

It only took 19 years for the next chapter in the Chronicles of Cannabis to be written.

On October 9, 2015 AB266, AB243 and SB643 became California law. Known as the Medical Marijuana Regulation and Safety Act (MMRSA). It’s charter was to license and regulate commercial medical cannabis. MMRSA created the Bureau of Medical Marijuana Regulation in the Department of Consumer Affairs – an agency to be similar in scope to the California Department of Alcoholic Beverage Control.

Buried deep within MMRSA, a phrase marked for deletion indicating that any county or municipality not having an ordinance on the books by March 1st regarding cultivation of cannabis would have their authority to control locally ceded to the state. Inadvertently overlooked, this clerical error triggered panic across the state.

Clerical error amended!

AB21, introduced by Assembly member Jim Wood, on January 4th, is making the rounds in Sacramento and should land on Governor Brown’s desk by January 18. Governor Brown has guaranteed his signature. By the time Council meets the compelling need to respond will no longer exist. (Documentation)

Frankly, there have been too many instances of emergencies like this and this sort of unnecessary pressure hasn’t generally produced the best results.

Still, the sky is falling in Brea?

Pot_BReacting to the clerical error, on December 15, 2015, Council declared a state of urgency and enacted Interim Ordinance No. 1181 “Prohibiting all commercial medical marijuana uses in the city, including deliveries, prohibiting all medical cultivation including cultivation for medical use by a qualified patient or primary caregiver.” (Documentation)

Though the title of this ordinance clearly is all inclusive of areas subject to local control, it has been commonly referred to as a blanket prohibition of cultivation. The ordinance obviously extends to usage and distribution of cannabis issues as well.

On January 19 Council will duplicate it’s extension of the antecedent temporary ordinance prohibiting dispensaries, pushing out the prohibitions of Ordinance No. 1181 to January 2017. And, as before, the Planning Commission is (tentatively) being tasked “… to make a recommendation to the City Council related to land uses associated with the cultivation of marijuana (MJ). This recommendation will be in the form of a proposed amendment to the Zoning Code.

If this goes to the Planning Commission to initiate the process of making the “interim” prohibitions permanent, it will likely be at their January 26th meeting. Agendas for these meetings have not been finalized or publically released.

Stirring the pot, pun intended.

Pot_CInfuriated with the absence of public input in all prior policy-making, I’m hoping to encourage greater comment and opinion from Breans. At the Council meeting on January 19 and, if it is decided that nothing less than permanent law will be adequate to protect Brea’s authority, at the Planning Commission on January 26.

Okay really… an interim ordinance doesn’t say, “Please try to avoid doing these things.

An interim ordinance is as fully prohibitive as a permanent ordinance. The only difference is one runs out after a year the other remains in effect, theoretically, in perpetuity.

A lot of dust hasn’t settled.

Here are a few of the reasons I’m inclined to believe an interim ordinance would be sufficient to give Brea the time for a better look at the evolving landscape.

  • It will take as much as two years to get the Bureau of Medical Marijuana Regulation, the enforcement agency, up and running.
  • Much of the operating scheme of this agency is yet to be determined, i.e. licensing, fees, oversight and enforcement policies, etc.
  • More than one initiative dealing with aspects of cultivation, processing, distribution and usage (yes, think recreational) is either already qualified or likely will be qualified for the November 2016 ballot.

Pot_DAs we will likely know so much more by next November, wouldn’t it be better to wait to finalize Brea code until we have more answers than questions?

It’s been said that we shouldn’t worry about committing to a position now because we can always amend the code later. Really? It’s okay to do a half-assed job now because we can rewrite it later?

Sorry, but I don’t come from a place that thinks, “We can’t afford to get it right the first time, but we can always afford to fix it later.

The jury is still out.

For reasons that shouldn’t need explanation, I am in limbo on all of this. In the short term, understanding there is not really any urgent need to codify to preserve authority, what should Brea allow or prohibit and why? Should commercial cultivation and personal cultivation for medicinal use be linked together or treated separately?

Please, if you have feelings or opinions about this — of any persuasion — do yourself and your community a favor and carve out some time to be part of the process

Without your input how can the Council or Planning Commission be confident that the majority will, in fact, rule?

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Moore On Madrona.

Moore on MadronaHaving born witness to the folly that has been Madrona since the beginning, few are better equipped to provide a history lesson than Council Member Roy Moore.

In his newsletter, Brea Net (No. 687) published last Wednesday, he offered this summary (published here with permission).

“I was beginning to think we would never make a final decision on the Madrona project.  It has be in process now for about 15 years. The City Council finally voted last night (4-1, Simonoff dissenting) to deny the appeal of the Planning Commission’s approval of the project (formerly known as Canyon Crest) and to allow the 162 Carbon Canyon homes to proceed to construction.

It has been a long and excruciating journey and now that we have reached the end (barring any legal challenges) I would like to share my disappointment, not in the final conclusion, but in the final deliberative process of the City Council.

Madrona approved.After having read hundreds of pages of data, including the EIR, developer’s submittals, emails for and against, staff reports, etc., the Council was directed that in order to approve this project we had to find that its benefits outweigh the negatives of three overriding considerations: (1) The increase in traffic on Carbon Canyon Road, (2) the removal of 1400 oak and walnut trees, and (3) air pollution generated during construction.

A public hearing was conducted over several City Council meetings as we listened to hours of testimony from residents most expressing their opposition to the development. The public hearing was finally closed on April 15. Now it was time for the much awaited discussion and deliberation by the Council. There seemed to be a reluctance to speak but finally Council Member Simonoff stated his opposition to the project for public safety reasons and moved that the project be rejected. The motion did not receive a second and failed. More silence.

Garcia on MadronaFinally I read my statement (included in Brea Net No. 682) that addressed my positions on the three overriding considerations as well as subsidiary issues of water, fire, earthquakes, landslides and private property rights. I thought this may generate some challenges and kick off a lively discussion.  It did not.

Council Member Garcia voiced his support for Madrona.

Murdock on MadronaAt this point Mayor Murdock and Mayor Pro Tem Marick tossed a brick into the punch bowl stating they could not endorse the project unless the developer agreed to eleven new conditions essentially highjacking what was already a weak or non-existent deliberation.

All the attention now switched to these conditions and away from other key issues.  Interestingly none of these additional requirements addressed any of the three overriding conditions, except for water shares, would impact Brea residents only indirectly, would increase the cost of the development and the purchase price to the future home buyers.

Marrick on MadronaThere is nothing wrong in requesting added concessions from the developer.  I had a couple of my own.  The Mayor and Mayor Pro Tem should not have waited until the public hearing was closed to discuss their concerns which must have been known several weeks earlier.

They set the council agendas and should have scheduled this topic for at least a Study Session allowing the whole Council to participate, maybe modify or add to the list.  The public hearing would still be open allowing for residents’ comments.

So what could the Madrona developer do but to agree to substantially meet all the additional requirements.  I understand he is facing financial difficulties and needs this project to survive.  He must have invested millions already in the land, legal development, architecture design, etc., costs.  He probably could not sell the land without entitlements.

Simonoff on MadronaCouncil Member Simonoff read a statement further elaborating his public safety reasons for opposing the project and requested his council colleagues to clarify their positions in regard to the three overriding considerations.

I had already done this with my statement at the April 15 meeting and voiced my continued approval of the project as did Council Member Garcia.

The Madrona applicant was called on and expressed substantial agreement with the added conditions, the City Council was satisfied and the development was approved.

After taking hours of testimony the Council did not take the time to weigh all the public’s concerns but placed most of our emphasis on how much more we could extract from the developer.

I don’t think the final result would have changed but maybe the concerned residents would have felt that we had listened to their concerns and given them consideration.

On issues like this one, often the Law of Unintended Consequences applies. Brea has worked for years to develop a good reputation for working well with developers and the business community.  Sometimes it only takes one issue to sour such relationships and result in Brea losing future beneficial projects.

Not likely to be Madrona’s final chapter.

Roy mentions the possibility of litigation, a topic that has been bandied about since Hills For Everyone convinced Bev Perry, their perennial spokesmodel, to act as the appellant in their long running effort to halt the development. I’ll wager we’re nowhere near the end.

The appeal was overturned with little or no interest in traffic issues, tree removal (the paperwork for Madrona staff reports, correspondence, revised site plans, seismic data and that monstrous EIR probably destroyed more trees) or short term environmental concerns. Following the brick in the punchbowl heard around the world, most attentions turned to seeing how much more could be wrung out of a developer already beaten half to death.

Simonoff prefaced his remarks with some Kenny Rogers “condition my condition was in” reference then read a long winded reprise of his public safety message. Taking the negative position, even in the face of confirmation from staff and the Fire Chief that his concerns were unfounded, seems to me to  be more about preserving his relationship with the appellant than about providing “substantial evidence.”

Then Simonoff asked that the other Council Members state their findings. C’mon Marty. A bit too obvious to some of us what this is really all about. Roy reiterated his position again. Garcia stayed out of the fray and let the limited soundbite of his support for the project speak for him.

Erskine on MadronaAt Murdock’s urging, the applicant’s attorney, John Erskine, addressed Council restating his clients willingness to provide sufficient overriding considerations, including their agreement to make both a voluntary community park donation and a voluntary water shares contribution, dodging the illegal nature of Murdock and Marick’s initial request, sweetening the pot by over $3.4 million.

Murdock wades in with the final word on Madrona.

Repeatedly prefacing his remarks with, “the Mayor Pro Tem and I,” muting Marick for most of the discussion, Murdock’s tortuous and generally disconnected comments sounded more like a stump speech on the campaign trail than a legitimizing of that brick in the punch bowl.

Marick was able to finally toss in a few words of wisdom of her own, but the die was cast as far as Madrona was concerned and her purpose seemed more to reclaim her independent territory than add anything new to the discussion.

Sorry Roy, but your final analysis rings a bit hollow.

You said, “Brea has worked for years to develop a good reputation for working well with developers and the business community.  Sometimes it only takes one issue to sour such relationships…” and here we disagree completely.

I am certain, if you could convince folks from Madrona, Brea Downtown, South Brea Lofts, La Floresta, Central Park Brea and other major developers with history here to share without concern for retribution their experiences – you would discover Brea’s real reputation for pushing developers to the brink of economic failure.

It’s this sort of shakedown that paid for the War Memorial and countless other pet projects over the years. Sadly, it’s not that difficult to see what sort of condition our condition is in.

 

Council Is Blindsided Again!

While watching Tuesday’s Council meeting (04/15) my cellphone blew up with calls and texts saying, in one form or another, that Council is blindsided again. Most referenced last December’s Council reorganization meeting as the blindsiding benchmark.

Madrona-yes-1After receiving Planning Commission approval, first in 2008 and then in 2013, the Madrona development was challenged again by a small but vocal special interest group Hills For Everyone. Their Vice President/Treasurer, Bev Perry, took the lead role as appellant and asked Council to overturn the Commission’s decision.

After several hearings going back to November of last year, the appellant presented their objections to the project, the applicant presented overriding considerations, both sides rebutted the other’s facts and figures and the public was given the opportunity to wade in, on the record, with their opinions.

The finish line was in sight.

Or was it? With the public hearing closed, this was to be the wrap-up discussion by Council with a vote to either uphold the appeal or deny it – in essence to deny or approve the development moving forward. Then Council, at least some of them, had the rug pulled out from under their feet.

brett_praysSuddenly we were listening to Mayor Murdock and Mayor Pro Tem Marrick dive into their special list of additional considerations ranging from the ridiculous to the sublime.

No one calling or texting me thought this was appropriate and wondered why neither other Council members or the City Attorney interjected and pulled the plug on their dog and pony show.

Well within their rights.

christine_talksI discussed this with folks either having  a strong background in planning and development or legal authorities specializing in development law.

Murdock and Marrick were well within their rights to present their considerations.

But what is legal may not be prudent. Many still question their secretive style which seemed more than a little politically motivated. Plus, the items they rattled off, with marginal support from other Council members, added weeks to a process most in the community were ready to put to bed.

How critically important are these last minute considerations?

roy_intervenesHere, lifted from Roy Moore’s Brea Net (#682) newsletter, are the items in question. (The commentary is mine, don’t go calling Roy on this.)

Roy concludes, “As you can see many are relatively harmless with minimum cost impact. Others are major and may be hard for the developer to comply. The Council approved a motion to ask staff to develop a draft of the [above] conditions for approval of the Madrona development. The Madrona saga continues on May 6.”

1.  Madrona should not be a gated community.

Claiming that good old Brea’s reputation would be poorly served by creating a security barrier around executive estates, that it would appear snobby… I guess Marrick overlooked the numerous gated apartment and condo properties throughout Brea.

Besides, why would owners of million dollar plus homes want that sort of security anyway?

2.  Other than for emergency uses, Olinda Place will never be used by Madrona residents for daily use.

This really doesn’t provide an overriding consideration benefitting much of Brea outside of Olinda Village residents, the loud voices droning on and on supporting Hills for Everyone.

marty_motionsNoteworthy however is that this allowed emergency use provides the second ingress egress point felt mandatory by Councilman Simonoff who seemed to be weighing his total view of Madrona based on a public safety technicality.

To be sure, Simonoff has a lengthy track record of fighting for public safety issues. Someone should remind him that Fire Chief Kanaabe was satisfied with the plan as written.

When I questioned Simonoff about this, he reconfirmed his position relative to safety issues and said that, if Olinda Village came to him today for approval, he would likely vote no on it as well.

3.  A system should be included in the development to collect and recycle water runoff.

For most concerned this is a useful and feasible consideration. Not sure where they want it collected or how they want it redistributed. I suppose we’ll hear more at the next meeting.

4.  Each home should have the capability to collect and recycle “gray” water.

This will likely prove more difficult, more costly, because it calls for two parallel plumbing systems, doubles the number of connections and requires the addition of individual purification systems. No figures were given regarding water savings. And again, I have to ask what is the overriding benefit derived by the rest of us living in Brea? Weren’t water issues determined to be non-issues now?

5.  The developer should procure water shares in Cal Domestic for the City.

david_respondsIn a word, impossible. There are no shares available now. The current price per share is $16,000 dollars.

What, you want a check so if and when shares become available we can acquire them? How big a check? At what price per share? Putting this “water in lieu” idea on the table is unfeasible, impractical.

Did you not listen to staff when they told you this? You keep laying it on thick how wonderful, how brilliant these folks are who, as Murdock put it, “get the big bucks…” Why don’t you listen to them? They’re trying to earn their keep. Let ’em!

6.  The future buyers should have the option to include solar panels on their home.

ron_babblesAnother half baked snake bit idea. From your conversation it’s clear that you have no clue how this would be implemented. Kudos to Garcia for mumbling something about solar panels he saw once at a League of Cities meeting that look like shingles. Maybe I was the only one who heard him because the discussion raced off in another direction and the whole matter was dumped into staff’s lap.

7.  The development should contain 10% of the homes as true custom homes on minimum one-half acre lots.

There are half acre lots already, maybe they could be designated as your “custom” lots Ms. Marrick. But wait! This sounds really snobby to me! Big fat mini-mansions in the hills? How does this not completely conflict with your wanting no security gates? You can’t have it both ways, pick one and argue for it.

8.  At least one of the pocket parks should contain amenities such as a tot lot.

Hmmm, pretending that you didn’t come up with this months ago Ms. Marrick, the idea still gets stuck in first gear for me. Tell me how many families able to afford million dollar plus homes have kids still in the toddler stage? Are they supposed to wait until they become grandparents before the amenity is useful to them? Or maybe you thought all of Brea’s young moms and dads would flock there, through the un-gated entry, on weekends and holidays. Yeah, that will help sell executive homes.

9.  Provide back up generators for the two water pumping stations on Carbon Canyon Road.

Might be a bit excessive considering that the Fire Chief, already satisfied with the development, has a clear plan to cover this need. This sounds more like bankrolling political collateral. We’ll know for sure if, during campaign season, we see another of those “Look What I Did For Ya” flyers circulating all over town.

10. Get Cal Trans approval to the ingress and egress to the tract before beginning any excavation.

This is an absolute. It should have been on the “list” months ago. The space out there is tight and Cal Trans has a reputation of taking forever on matters like this. The Olinda Village signal took what, two years to get approved? Seems like it. This is the developer’s number one mission. Without this, nothing else being discussed matters.

11.  Increase projected school fees.

12.  Increase projected transportation fees.

These get lumped together because they’re statutory fees and arbitrarily doubling them, as pointed out Tuesday night, is actionable. The school fees are totally out of the scope of city business and Murdock needs to start paying better attention in class. These should be pulled off the list before the next meeting if for no other reason than to minimize the embarrassment to the community.

At the risk of opening Pandora’s box.

markman_chidesAfter the meeting the applicant’s attorney approached City Attorney Markman seeking to confirm that he and the applicant’s people will now be allowed to meet with city staff.

Both Murdock and Marrick, in there comments, alluded to this needing to happen. Markman confirmed that access was assured.

Really? What I discovered is that the appellant and her people had unlimited access to Council and staff during the hearings but that Markman barred city staff from having any contact with the applicant or their staff. What purpose did this serve?

It’s like trying to negotiate peace between Russia and the Ukraine… and telling the Ukraine they can’t come to the negotiating table. Sorry, but that sounds totally counterproductive to me and I’m surprised Council put up with it.

As long as the box is open.

Another issue that surfaced was, with all of these “new” considerations on the table, should the public hearing be reopened allowing the public to speak on the record again? When I queried Markman about this via email, here is his response.

“A reopened additional hearing would not be required legally. A Council may modify a project through conditioning as a result of a hearing process without reopening the hearing to discuss the Council’s revisions. The Council may reopen the hearing if the Council decides to do so by motion.”

Roy Moore asked the question. Brett Murdock said absolutely not. Markman said it’s possible but not required. The more people talked, the more they thought about what meaningful contribution John Q. Public made in this whole affair and the less interested they were in reopening public comment.

I agree. Don’t reopen the public hearing. Seriously, go back and watch the meetings.

Except for three or four very well articulated positions, everything else became a din of emotionally delivered soundbites of canned Hills For Everyone rhetoric delivered over and over like a broken record.

I know I’m going to get royally jammed up on that one so I’m hoping all of you who have turned off Matters From The Audience half way through to watch a rerun of Waking Ned Devine will support me with your comments.

It’s Time To Fish Or Cut Bait.