UKIAH 2/13/2017 — The board of supervisors will meet tomorrow to discuss two cannabis items, receive an update on Solid Waste of Willits, make a decision about the Ukiah Valley Groundwater Sustainability Agency, and interview applicants to the county retirement board. There are two mental health items in the consent calendar, one approving an increase in payments to an adult behavioral health facility in Novato; and one approving an agreement with a local non-profit to build housing for recipients of mental health care.
For anyone who was overwhelmed by last week’s decisions regarding mitigations to the medical cannabis cultivation ordinance, there is an item dedicated to clarification. There are still questions to be resolved, especially concerning tenants in common and when to rely on a watershed assessment or a water availability analysis when issuing new permits, which will start in 2020. The full text of the clarification memo, by Second District Supervisor John McCowen, who is chair of the board, can be read at the bottom of this article.
In a separate item, the office of the county counsel is also requesting direction from the board regarding an ordinance for the cultivation of recreational marijuana. Until the adoption of the proposed medical cannabis cultivation ordinances, the only ordinance regulating cannabis cultivation is Chapter 9.31, which does not cover recreational cultivation under the new state law passed by Prop 64.
County counsel suggests creating chapter 9.30, a temporary ordinance that would cover cultivation of recreational cannabis pursuant to the passage of Prop 64, as a way to address how medical and recreational cannabis cultivation should interact. A memo signed by deputy county counselors Matt Kiedrowski and Brina Blanton points out that “While the county is currently in the process of reviewing new medical cannabis cultivation regulations, these regulations do not cover recreational cannabis cultivation pursuant to Prop 64.”
Therefore, the county needs stopgap regulations until the ordinances are adopted. One possibility suggested in the letter is allowing six recreational plants, as is allowable under the new state law, in addition to medical cultivation. The full text of the memo from county counsel can be found at the end of this article.
The board will receive an update on the Ukiah Valley Groundwater Sustainability Agency, and possibly approve a structure for a joint powers authority (JPA). Seats would be held by representatives of the Upper Russian River Water Agency, Russian River Flood Control, Mendocino County, the City of Ukiah, and agricultural and tribal interests. Directors would have two-year terms, with each member agency or stakeholder group appointing a director.
Solid Waste of Willits
Last week, the board heard from Westport residents who were unhappy that the transfer station in their town was scheduled to close. One of the cost-saving concessions the board offered Solid Waste of Willits, which operates the transfer station in Westport, was closing recycling buy-back centers in Westport, Gualala, and Boonville. The supervisors did not realize that this would also trigger the closure of Westport’s transfer station. Tomorrow, they will hear an update on the feasibility of keeping two of the buy-back centers and the Westport transfer station open, possibly under a different provider.
Personnel: legal representation
In personnel matters, the board will decide the question of renewing the legal contract with Terry Gross, the attorney who represents the Mendocino County Air Quality Management District. The MCAQM is currently involved in four suits, two against Grist Creek Aggregates and two against the Friends of Outlet Creek.
The board is scheduled to interview and appoint or re-appoint two members to the county retirement board. The candidates are current board members Ted Stephens and John Sakowicz, Stanley Anderson, a retired U.S. Air Force Master Sergeant and the former office manager of the Fort Bragg Advocate News and the Mendocino Beacon; and Richard Weinkle, who claims to be “fluent in pension design,” due to having owned an insurance agency for 26 years.
The consent calendar: mental health
The board is likely to approve a long-awaited contract with Rural Communities Housing Development Corporation, whereby the housing non-profit will receive $1,336,000 to provide rental housing to clients who are homeless or at risk of becoming homeless and are recipients of mental health care. There is also a proposed amendment to the county’s contract with Canyon Manor, a residential treatment facility for adult behavioral health and recovery services in Novato. The amended contract would increase payments from $285,000 to $335,000 for a contract that expires June 30, 2017.
The supervisors are also set to disburse $25,000 in Mendocino County Fish and Game grants to the Round Valley Indian Tribes, Woodlands Wildlife, the Eel River Recovery Project, and Reef Check California, for a variety of projects in education, restoration, and monitoring of wildlife and habitat.
Sarah Reith [email protected]
Here is the memo from county counsel to the board, explaining why they are asking for direction to add a chapter regulating recreational cannabis cultivation:
Honorable Board Members,
Cultivation of medical marijuana in the County is currently governed by Chapter 9.31, which was most recently amended in 2016. While the County is currently in the process of reviewing new medical cannabis cultivation regulations, these regulations do not cover recreational cannabis cultivation pursuant to Proposition 64.
The passage of Proposition 64 allows the cultivation of cannabis for recreational or adult use, although it allows cities and counties to enact and enforce reasonable regulations to regulate such cultivation. The County’s current ordinance and its setback and other limitations do not apply to the cultivation of cannabis for adult use, even under Proposition 64’s personal cultivation allowance of 6 plants.
Staff seeks direction from the Board of Supervisors regarding whether to bring forward an ordinance creating Chapter 9.30 that would regulate the cultivation of cannabis pursuant to Proposition 64, and what limitations should apply to such cultivation.
Please note that this ordinance would not serve as the County’s final regulation regarding permitted, commercial cannabis cultivation pursuant to Proposition 64. The purpose of bringing forward an ordinance at this time is to apply, to the extent desired, limitations that have always existed for medical cannabis under Chapter 9.31 to cultivation of cannabis pursuant to Proposition 64.
Proposition 64 does state that cities and counties may not completely prohibit the possession, planting, cultivation, harvesting, drying or processing of not more than 6 living marijuana plants either (a) inside a private residence or (b) inside an accessory structure to a private residence located on the grounds of a private residence that is fully enclosed and secure.
Ordinance No. 4356 is included with this agenda packet for the purpose of assisting the Board in reviewing the County’s current requirements and how they may be applied to cannabis cultivation pursuant to Proposition 64.
Staff also seeks direction on how cultivation of cannabis pursuant to Proposition 64 could or should interact with cultivation of medical cannabis. For the time being, the County’s Chapter 9.31 allows 25 medical cannabis plants per legal parcel. The County could permit a legal parcel to have both 25 medical cannabis plants and 6 recreational plants. Among other alternatives, the County could seek to limit a legal parcel to no more than 25 plants, of which 6 could be for recreational use. The Board of Supervisors could also consider other alternatives to these limitations.
Here’s McCowen’s memorandum clarifying last week’s decisions about the county’s proposed medical cannabis cultivation ordinances:
On Feb. 7 the Board gave direction to staff on literally dozens of items related to development of cannabis cultivation regulations. The purpose of this agenda item is to clarify and confirm the direction of the Board and allows further direction in response to items identified by staff or by the Board.
Williamson Act Policies and Procedures The Board supported the proposed revision of the Williamson Act Policies and Procedures with further direction to allow home manufacturing of cannabis produced on site provided only nonvolatile extraction methods are utilized. This is consistent with Board direction at the January 27 workshop to allow home manufacturing by existing cultivators using non-volatile extraction methods and cannabis produced on Site.
Recommendations from the Planning Commission January 19, 2017 Resolution
lA. The Board accepted the revision to AES-l.
l.B. The Board accepted the removal of AIR-2.
l.C. The Board accepted Staff recommendation that BIO-l be modified to delete the requirement for an automatic referral to CDFW. Comments in Support of the modification are that applicants are required to enroll with the State Water Board or comply with Best Management Practices; Agricultural Commissioner cannabis inspectors all have four year degrees in biology or natural resources and can work closely with CDFW to review and apply the California Natural Diversity Database and other reference materials. The application process can be expanded to obtain Sufficient information to identify areas of concern. Careful review of application information and site inspections will identify those instances where referral to CDFW is warranted.
l.D. The Board accepted the revisions to the Aesthetics Section of the Initial Study on page 3O.
l.E. The Board accepted the revisions to Tables l and 2 of the cultivation ordinance to eliminate medium outdoor cultivation in the Il and I2 Zoning districts.
l.F. The Board accepted the revisions to the Air Quality section of the Initial Study on page44.
The Board accepted the recommended changes to the Williamson Act Policies and Procedures with further direction as stated above.
The Board accepted revisions to the Medical Cannabis Cultivation Program pursuant to the mitigation measures of the Initial Study subject to further revision as stated herein.
The Board accepted the revised language for Section 20.242,040.A)2, further Substituting "more than one" in place of "only one or more" to clarify that more than one cultivation site may be established on a legal parcel provided all cultivation sites on a legal parcel are included in one application and the permit and the total cultivation does not exceed the maximum allowed for the zone and type of permit issued. (See Additional Issues section for discussion of Tenants in Common, requirements for a letter from land partners, and application period).
The Board accepted the revision to Section 10A.I.7.020 to clarify that one or more areas of cannabis cultivation may exist on One legal parcel.
The Board accepted the revision to Table l in Section 20.242,070 to eliminate medium outdoor cultivation permits in Il and I2 zoning districts.
The Board accepted elimination of the dwelling unit requirement of Section 10A.l7,080 for parcels in the UR zoning district. (see 4.D. for discussion of oak woodland protection ordinance and grading ordinance).
The Board did not accept elimination of the dwelling unit requirement of Section lO.A.l7.080 for RR-5 parcels, but did accept elimination of the dwelling unit requirement for legal conforming parcels in the RR-10 Zoning district upon issuance of an Administrative Permit with specified findings.
The Board accepted recommendations to limit commercial cannabis cultivation in residential zoning districts with the following clarifications:
է1 Commercial cannabis cultivation is not allowed in the R-l, R-2, R-3, SR, RC, RRlor RR-2 zoning districts, or on non-conforming lots in the RR-5Zoning district, eitherindoors or outdoors, regardless of the parcel size;
#2 Existing cultivators who are in compliance with the limitations in Section 10A.l7.04.0 may be allowed a two year Sunset period from the date of adoption of this ordinance provided they apply for a permit within 90 days of the date of adoption; are granted a permit, and comply with all permit conditions including timely renewal;
#3 Any current cultivator in the above specified zones who is not in compliance with the limitations in section 10A.l7,040; or who is in compliance with the limitations in section 10A.l7.040 but who does not apply for a permit within 90 days of the date of adoption of this ordinance; or who is denied a permit, or who fails to renew a permit, or who has a permit revoked shall immediately cease all commercial cannabis cultivation or be subject to enforcement and eradication of an illegal cultivation site.
#4 Staff shall develop an ordinance that will allow for the creation of overlay zones or community based plans to identify communities or neighborhoods where the above limitations and zoning restrictions may be modified or waived. Staff may work with Municipal Advisory Councils (MAC) to initiate the planning process but the opportunity shall be available to all areas of the County, including those not located within a MAC.
i5 Commercial cultivation is not allowed on any parcel less than 2 acres in size in
any Zoning district.
The Board accepted the recommendation to adopt an oak woodland protection Ordinance prior to January 1, 2020 consistent with existing General Plan policies. The Board did not endorse an expanded grading ordinance but directed Staff to review existing State and local regulations, including coastal zone regulations to determine what gaps, if any, existin current law, and return with recommendations.
The Board accepted the recommendation that all applicants obtain a grading permit pursuant to Chapter 18.70 if applicable.
The Board accepted the recommendation that pending adoption of an oak woodland protection ordinance the County not allow any oak tree to be removed or harmed to cultivate cannabis. The Board clarified that oak trees could be pruned for maintenance and removed if necessary due to Safety or disease concerns.
The Board accepted the recommendation to limit the response time for other agencies to 30 days.
The Board agreed to identify a Source of funds for effective enforcement of cannabis regulations, including use of contingency or reserve funds if necessary.
The Board rejected the recommendation to consider future amendments to allow cultivation of cannabis in the RL, FL, and TPZzoning districts.
Additional Issues Related to the Cultivation Ordinance, Zoning Code Ordinance, Initial Study and Application Process
The Board accepted Staff recommendation to prohibit removal of any of the Cal Fire listed commercial tree species or removal of oak woodland habitatin order to cultivate cannabis. This enhanced mitigation further Supports the recommended revision to BIO-l. This recommendation is consistent with paragraph 3 of the "Coalition Letter" that recommends revision of Mitigation Measure Ag-4 to specify that no cannabis cultivation permits will be issued if the cultivation requires a Less-Than-Three-Acre-Exemption or a Timberland Conversion Permit. In response to public comment it was clarified that an Exemption or Permit could be obtained for other purposes but not to allow for cannabis cultivation. The Board Supported retaining the conditions requiring mitigation for any prior unauthorized timberland conversions and that future unauthorized timberland conversions shall result in denial for any permit application.
The Board accepted Staff recommendation to revise Mitigation Measure Air-l to delete automatic referrals and expand the application process to obtain sufficient information from the applicant to identify those applications that require referrals to Air Quality for further consultations, inspections or permits.
The Board confirmed previous direction that Tenants in Common on one legal parcel would be limited to the total cultivation allowed for the zone and type of permit issued.
The Board directed that in the case of multiple owners on one legal parcel that no sign off is required from Owners who choose not to apply for a permit.
The Board directed Staff to consider an application cutoff period of 90 days and return with a recommendation.
The Board discussed the definition of "legal parcel" which includes language pertaining to certificates of compliance and agreed that certificates of compliance that had not been recognized prior to Januaryl, 2016 are not eligible for additional cultivation permits.
The Board discussed the January 19 recommendation to the Planning Commission that would allow an owner of multiple parcels to lease them out for cannabis cultivation and directed that an owner be limited to leasing out no more than two parcels, as recommended in paragraph 4 of the "Coalition Letter". It was later clarified that cultivators could form a collective for the purpose of leasing a legal parcel which would constitute one lease or one financial interest for the lessor of the parcel.
The Board directed that the right to apply for a permit is non-transferrable with the exception that they may be transferred to family members on the same basis that vacation home rental permits may be transferred pursuant to the Mendocino Town Plan.
The Board accepted the Suggestion that documentation showing proof of prior cultivation not be retained by the permitting authority, but be returned to the applicant.
The Board directed that Certifications pursuant to Section 10A.l7.120 be revised to require that only cannabis produced using the equivalent of organic production Standards may carry the Mendocino County name. Cannabis not using the equivalent of organic standards may be permitted but may not use the Mendocino County name.
The Board directed that Staff review the issue of plant canopy vs. plant count with the possibility of allowing an option to utilize plant count based on an equivalent Square footage for outdoor cultivation and to consider allowing a combination of part outdoor and part mixed light on a single parcel.
The Board accepted the Suggestion of preparing a booklet, check list or other informational materials to provide information to applicants and the public as to what is legally allowed or required.
The Board confirmed previous direction to not allow new cultivation permits in RL, FL or TPZ zoning districts but directed that an existing cultivation site in RL could relocate to another parcel in RL provided the destination parcel had an existing cultivation site, no new cultivation sites would be established, and the original cultivation site would be restored and excluded from any future cultivation.
The Board requested that Staff consider revising ordinance language to require conformance to adopted Track and Trace standards, but not include the Standards within the Ordinance. I believe staff may also have been directed to consider an alternative to attaching a unique identified to each plant, particularly with regard to indoor and mixed light cultivation where assigning a unique identifier to a measurement of Square footage or a garden bed or Section might be appropriate.
Additional issues for consideration
Shall existing cultivators who are able to comply with the Limitations in Section 10.l7A.040 be eligible for permits whether or not they previously were in strict compliance with the 25 plant perparcel limit?
Shall ventilation and filtration Systems be required for all green house and mixed light structures, many of which are in remote locations, or shall the necessity for this condition be determined on a case by case basis based on the existence of nearby sensitive receptors or complaints?
May an existing legally compliant grower in RR-5 relocate to RL provided there is an existing cultivation site, no new cultivation sites will be established, and the original cultivation site would be restored and excluded from any future cultivation.
The issue of a water availability analysis vs. a watershed assessment was discussed but perhaps not resolved. The Board previously directed that a watershed analysis would be required for new permits beginning in 2020, except for the Ag zoning district. Does the Board confirm this direction? I believe the Board previously approved an exception for relocation parcels because watershed assessments are not yet available. But in these instances a water availability analysis or a will serve letter would be required.
Should Tenants in Common be required to provide notice to their land partners that they are applying for a cultivation or nursery permit?
If multiple Tenants in Common apply for cultivation permits and they do not mutually agree on the amount of allowed cultivation that they each are entitled to shall the County direct that each qualifying household is entitled to an equal share of the allowed cultivation amount?
The Board discussed allowing parcels subject to the sunset provisions the opportunity to apply for an Administrative Permit in order to establish that there are no nearby neighbors that would be negatively impacted. Shall staff be directed to develop criteria for such a process?