MCA Memo re: Item 6b

MCA Memo re: Item 6b

 

September 19, 2020

Mendocino County Board of Supervisors

501 Low Gap Road

Ukiah, CA 95482

 

Re: Agenda Item 6B) Discussion and Possible Action Including Direction to Staff on Cannabis Cultivation Permitting Priorities Including, but Not Limited to: County Counsel Analysis of State CEQA request, Digital Portal, Cost Recovery for Work Outside of Application Scope, Interagency Biologist Agreement, Publication of Cannabis Cultivation Guide, Plan for Staffing Increase or Consultant Request for Proposal (RFP), Equity Grant Program Update, Notices to Correct Applications, Request Provisional License Extension from California Department of Food and Agriculture, and Schedule Special Board of Supervisors Meeting for Cannabis Cultivation Phase 3 Zoning Table and Permitting Model (Sponsor: Cannabis Ad Hoc Committee (Supervisors Haschak and Williams)

 


 

Honorable Supervisors,

We would like to thank you all for your continued efforts to resolve the existential issues facing our county’s licensed cannabis farmers. We are especially grateful to the Cannabis Ad Hoc Committee members for their relentless exploration of the issues and for the comprehensive set of recommended actions being presented today. MCA is strongly aligned with this approach. We respectfully encourage all Supervisors to vote in favor of all recommended actions and to consider refining them as per our comments and questions outlined here in our memo.

First, before we address each specific recommended action, it is important to highlight that many of the issues we face, which these proposed recommended actions seek to address, all stem from one fundamental problem:

 

Cannabis cultivation is an agricultural land use and it should be regulated as such.

 

Mendocino County is a community rooted in cannabis agriculture that co-exists alongside our vineyards, orchards and farms. With our increasingly localized food system, generations of herbal medicine makers, and culture of innovative land steward entrepreneurs, we are poised to demonstrate to the world that our region’s cannabis crops yield unique products of place, rooted in our land and the culture of our farming community. Until our cultivators are recognized and treated as the farmers that they truly are, our whole County will continue to suffer under an oppressive regulatory system that considers cannabis to be a manufactured product, rather than an agricultural crop. It is this fundamental mischaracterization of cannabis cultivation land use that in turn causes most of the problems we have been wrestling with as a County since our permitting program launched in 2017.

 

We strongly encourage the Board of Supervisors to take up this cause and lead the charge with other rural legacy producing regions and advocate for changes to state law that would accurately redefine cannabis as an agricultural crop.

 

  1. Appendix G:
    • We support this exploration into whether the Appendix G as currently required by the State is a lawful burden to place on the
    • We request that the 30-day deadline for county counsel to report back to the Board of Supervisors be a hard deadline and the absolute maximum time allowed. Any extension of this timeline will continue to exacerbate the problem we face.
    • Any exploration of this issue must include an analysis of the logistical, financial and regulatory IMPACT on the current applicants and permit holders given the commitment the County has already made to get them over the finish line and given the years of taxes the County has collected and hopes to collect from regulated cultivators into the
  2. Digital Portal:
    • We support the development of a digital portal for submission of documents and application status
    • We strongly recommend that explicit direction be given to decouple the digitizing of existing files from the development of a portal for document submission. It is urgent that documents be digitized so that assessment of completeness and notice of corrections can be issued as soon as possible. This should not be delayed by the time needed to identify and implement portal
    • We request that MCA be consulted as part of this process. Our leadership has extensive experience with the County’s ordinance requirements, file management process, and CDFA’s digital application portal. The County has had numerous attempts at “cleaning-up” the application system. It continues to fall short of efficient processes because new ideas are not vetted with industry
    • Applicants should be encouraged to re-submit their files and supporting documentation (in a digitized form or on a thumb drive) AFTER a complete and list of essential forms and documents for the entire process, accurately matched to the ordinance, SSHR and potential Appendix G requirements is compiled and disseminated.
  3. Cost Recovery:
    • An accurate evaluation of whether costs are duplicative or specifically tied to actual requirements of the ordinance, SSHR, or Appendix G process is
  4. Interagency Biologist:
    • We support the securing of an onsite biologist through CDFW in order to expedite Sensitive Species and Habitat Reviews. However, we believe this should be a temporary stopgap measure while the County continues to explore whether or not it is possible to remove reference to CDFW from the ordinance section regarding the SSHR, and to conduct the SSHR by using any qualified biologist. (See MCA Memo from 6/9/2020 on Agenda Items 6A/6B.)
  5. Cannabis Cultivation Guide:
    • We generally support the creation of appropriate guides which provide consistent explanations and reference materials to help applicants and permittees through various stages of the
    • We request that time and resources be focused on producing reference guides for SSHR, Appendix G (if applicable), implications of site development or other processes that have a direct impact on CEQA compliance and, ultimately, CDFA annual license eligibility. A flow chart explaining what applicants should or should not do to make it through that process would be extremely helpful. It is imperative that the information and guidance provided be accurate and not based on expanded
    • This guide should be focused on the permitting process and not on cultivation practices.
  6. Staffing:
    • We support the concept of a 6-month application processing timeline and the outsourcing of this effort to a third party if the County canno
    • However, we request that the Scope of Work be defined after we have fully evaluated the need for Appendix G. If the scope is to include the SSHRs, Appendix G, and the processing of cultivation applications, we have concerns that it will be difficult to find a single consultant that is reasonably priced and has the correct expertise to navigate these components in a timely manner.
  7. Equity Grant Program:
    • We support the recommended direction to Staff to provide a presentation as soon as possible. Given that the Requests for Proposal were posted on August 25th, 2020 and due on September 24th, 2020 and the Equity Program is set to launch on November 1st, 2020 it is important that not only the Board of Supervisors, but potential applicants also be informed of the program’s development
    • We request that a specific date for the presentation be determined as part of the recommended
  8. Notice to Correct:
    • We support the concept of providing Notices to Correct to permittees/applicants provided they are given sufficient time to respond and County Staff has sufficient resources to receive and keep track of documents and information
    • We request that a minimum of 30 days be given to respond to any Notice to Correct, with extensions of time due to outside agency processes, Covid or Fire delays, or lack of available professional assistance..
    • We also request that Notice to Correct be processed/sent in batches to keep the workload manageable for both County Staff and various consultants and professionals.
    • Permittees should be prioritized first, in order of application, followed by pending applicants in order of
  9. Provisional Extensions:
    • We support pursuing all possible avenues to achieve a State extension of the Provisional to Annual license window beyond 12/31/21.
  10. Phase 3 Zoning:
    • We support the proposed direction to schedule a special meeting to discuss Phase 3 Zoning and appreciate the attention that this would give to such a complex and consequential

 

Thank you for your thoughtful consideration of our requests and recommendations.

Respectfully,

Mendocino Cannabis Alliance

MCA Memo Re: Agenda Item 4o and 4r

MCA Memo Re: Agenda Item 4o and 4r

 

August 18, 2020

Mendocino County Board of Supervisors

501 Low Gap Road

Ukiah, CA 95482

 

Re: agenda Items 4o and 4r – Fire District Ordinances

 

Honorable Supervisors,

MCA supports all acts that reinforce fire safety and we certainly appreciate the efforts of the local fire districts to keep our communities safe. At first glance, the requested approval of the fire ordinances on the Consent Calendar makes sense. However, we believe that a more careful reading and consideration of the ordinances might be warranted.

We request refinements of several sections be recommended by the Board.

Specifically, the proposed amendments to Section 105.61, requiring Additional Operational Permits (on page 5 of each of the ordinances in Agenda items 4o and 4r) is proposed for ALL cultivation. We believe that there should be a distinction between operations that utilize electrical equipment and those that do not. We already have building permit review for fire safety, including adherence to building and fire codes and regulations and we have CalFire clearance to ensure fire safety rules are being adhered to. Yet another permit for activity that might not create a special hazard, especially when there are safety protections built into the review process for any structures that might be involved, seems unnecessary and duplicative. Refining the list of operations that might need an Additional Operational Permit could prevent unnecessary duplication without compromising safety.

Additionally, both Fire District ordinances propose a change in use classification (page 8 RVCFD, page 7 HFPD) that would classify all “Agricultural crop production, including cultivation, drying, processing and/or storing” as F1 moderate hazard uses. This appears to be more stringent than the County’s policy of allowing things like dry sheds to be Ag Exempt and not F1 if there are no workers or members of the public. To require F1 structures without exemptions would put applicants back to where we started before the Board encouraged the Building Official to expand the use of less onerous, but still safe occupancy use classifications, such as Ag Exempt, when possible. Again, the fire safety of all structures with building permits is examined during the building permit application process. To disallow the use of Ag Exempt building permits for dry sheds in these districts after applicants had gone through the process to get those types of building permits, would thwart the progress in streamlining that has been made.

 

Thank you for your consideration.

Mendocino Cannabis Alliance

 

MCA Memo Re: Agenda Item 4ae

MCA Memo Re: Agenda Item 4ae

August 16, 2020

Mendocino County Board of Supervisors

501 Low Gap Road

Ukiah, CA 95482

 

Re: agenda Item 4ae – DEA Grant Funding for Illegal Cannabis Enforcement

 

Honorable Supervisors,

MCA continues to be on record as supporting enforcement on public lands and for egregious environmental violations. We also continue to register concern about militarized enforcement and to restate the reality that enforcement without the opportunity to apply for and participate in the permit program is a broken paradigm.

Federal Prohibition is a vast failure on all levels of society and it is important that local government and law enforcement keep in mind that monies for enforcement are a bandaid for a gunshot wound. Until legalization occurs at the federal level, our county will continue to encounter trespass and public lands cultivation sites.

The permitting program has been complicated and expensive, with many changes to the procedures and requirements, as well as multiple changes to the program’s management, inspectors, and administrative staff. Many farmers find themselves in limbo with the county and state, uncertain whether the program they signed up for will ultimately allow them to continue their legal operation beyond next year. Currently, it is unclear what they should be doing to  meet all of the requirements of the many agencies with oversight of different aspects of the legal cannabis industry. Given this reality, it is crucial to remember that the majority of state licensed operators have only provisional licenses, and the majority of legal county operators only have embossed application receipts at this time. Most of these people have been trying their best to comply and to navigate the constantly changing landscape, and we ask that the county acknowledge that full compliance with all requirements of all agencies is practically impossible for most operators at this time.

Additionally, our county was only recently awarded equity grant funding intended to benefit those legacy operators most impacted by the war on drugs, many of whom have been locked out of the permitted cultivation program due to financial hardship, etc. Until this program opens, and permitted cultivation is actually a possibility for these folks, enforcement on these members of our community should not take place.

In closing, for all of the reasons stated above, MCA continues to stand by our position that enforcement priorities should be focused on public lands and egregious environmental violations only. We also request that the official narrative recognize that far more than the 275 annual permit holders that are referenced in the Grant application are in good standing with the County.

 

Thank you for your consideration.

Mendocino Cannabis Alliance

8-2-20 Policy Update

8-2-20 Policy Update

August 2nd, 2020

 

Mendocino County Board of Supervisors

501 Low Gap Road

Ukiah, CA 95482

 

Re: Agenda Item 5b)

 

Honorable Supervisors,

I. THE STATE ANNUAL LICENSING DEADLINE IS PARAMOUNT AND IS THE LENS THROUGH WHICH ALL ISSUES MUST BE EVALUATED

The Staff Memo of the Mendocino County Board of Supervisors’ August 4, 2020 meeting agenda advocates for abandonment of the current ordinance and adoption of a land use-based permitting system, with a proposed “transition” timeframe for all current applicants and permit holders. MCA strongly believes that none of the recommendations put forth within the Staff Memo can be considered outside of the context of the urgent State Annual License deadline facing current cannabis permittees and applicants. This deadline MUST be the lens through which all other issues are considered.

Whether under the current Cannabis Permitting Program or under a new land use-based program, TWO items to fulfill CEQA requirements must be performed before a State Annual License will be issued: The Sensitive Species and Habitat Review (“SSHR”) and the site-specific review. Under both the current ordinance and the suggested land use program, the Staff Memo offers no assurance that the existing cohort of applicants and permit holders will have both of those processes completed prior to the deadline to obtain State Annual Licenses (January 1, 2022). While the Staff Memo focuses on that Department’s clear preference for switching to a land use-based system, it fails to address the paramount question of whether the County will be able to conduct those tasks for all applicants in time.

While specific issues regarding how to troubleshoot the mechanics of processing all of the applicants and permit holders is important, principal consideration must be given to the State Deadline issue. Applicants and permit holders MUST be able to know, with certainty, if the County is unable to conduct the necessary reviews before the deadline for State Annual Licenses. These applicants have poured their life savings, blood, sweat and tears into wrangling the complex and expensive regulatory process on the basis of believing that if they did everything required, they would be eligible for a State Annual License.

At this time, we cannot simply blame state regulatory agencies. We must act. We also cannot simply look to the California Legislature to rescue us. The legislative session for this year is ending in 5 weeks and, due to the Covid-19 pandemic, many of the current bills have inadequate time to proceed. Even if the matter is introduced next year, unless the County does everything in its power to try to resolve these problems before turning to the Legislature, the request is likely to fall on deaf ears. We cannot operate on the assumption that a bill extending provisional licenses will be introduced next year, and we cannot be certain whether such a bill would pass until at least 13 months from now. That is a gamble that is far too risky, and will most assuredly negatively impact licensed, tax-paying businesses. We must push forward with solutions at the local level.

II. THE SPECIFIC ISSUES ARE COMPLEX AND REQUIRE MUCH MORE DETAILED INFORMATION THAT WOULD BE BEST MANAGED BY AN AD HOC COMMITTEE WORKING WITH STAFF AND OUTSIDE AGENCIES

At this time, due to insufficient information surrounding key issues, there is no clear direction to take. Additionally, many of the issues to resolve are complex and interrelated. Individual decision points taken in isolation, before gathering missing information, could prevent many from obtaining State Annual Licenses and would likely result in additional unintended consequences.

Specific Issues for Resolution:

  1. With respect to the SSHR:
    • If the CDFW Pilot Program is approved and implemented, how much time would each screening take and how would that impact the ability to get through all of the files in the current cohort?
    • The threshold for referral appears to be quite low. Would CDFW have the capacity to process referrals?
    • What happens if four months down the road, CDFW decides the Pilot Program is not working well enough to continue to have the County do the initial SSHR screening?
    • The Staff Memo stated “there will be cultivation sites that will not demonstrate a ‘less than significant impact’ to Sensitive Species.” How do they know this and how many of the sites
    • How will the County and CDFW work out issues related to County Staff training, more articulable criteria to determine whether a review must be kicked back to CDFW, and clear criteria regarding when CDFW can require further studies?
    • There are many detailed issues that arose in the Pilot Project materials which are too technical to detail in this memo.
  1. With respect to the Site-specific review provided by Appendix G:
    • The Staff memo makes the case for switching to a land use-based system, in part due to planners being practiced in reviewing project descriptions in the normal course of their work. If this is true, why did the time estimate to complete Appendix G increase from 2 hours to 11-40 hours when the only additional information requested by CDFA was related to the project description narratives? The March 2019 CDFA Guidelines were issued before the negotiated Checklist was drafted. Even still, the CDFA Guidelines (Attachment C), provide a very straightforward project description for a rural project. A professional who prepares much more complex and technical Project Descriptions for LSA and Water Board Site Management Plans have indicated that the likely number of hours is more in the 2-8 hour range.
    • The Staff Memo lists only three possible options for completing the Appendix G Checklist. Are those options the most efficient and cost effective, and are they the only options? And will they result in completion of the Checklists in the timeframe required for all pending applicants and permit holders?
  1. With respect to the transition of current applicants to a new land use-based system in some period of time:
    • Presuming no changes in the applicant’s site or activities from the time the SSHR and Appendix G site-specific review is conducted under the current system, would the SSHR and site-specific review be usable when they apply for a discretionary permit later?
    • If a current applicant or permit holder did want to take advantage of the 10-year discretionary permit by switching to a land use-based system, wouldn’t it create an unintended incentive for them to expand cultivation or non-cultivation structures to further develop their business to include on-site processing facilities, or other development?
    • Staff has referred previously to creating a streamlined system to transition current applicants. What are the details of that streamlined system?
    • If an applicant opted to switch to a land use-based system right away, can they be guaranteed to make it through that process before the State Annual License deadline? If so, how would that be guaranteed at the same time that those who opt to remain in the current system are not guaranteed to be processed in time according to the Staff Memo?

III. A LAND USE-BASED SYSTEM IS APPROPRIATE FOR BRAND NEW CULTIVATION OR EXPANSION BUT NOT FOR LEGACY CULTIVATORS

MCA believes that a land use-based system for brand new cultivation sites and for any expansion above 10,000 square feet for current or future permit holders could be appropriate. In fact, MCA submitted a memo in February of this year, outlining its recommendations regarding Phase 3 (new cultivation) and expansion beyond 10,000 square feet, which stated MCA’s support for limited expansion and accommodating new cultivation. In a more recent memo, MCA presented the current concerns regarding the delays in conducting the SSHR and site-specific reviews and refined its position, in light of those concerns, to address new and expanded cultivation once the crisis facing legacy cultivators is addressed.

We continue to support the limited expansion and new cultivation under those recommendations once the crisis concerning legacy cultivators is addressed. However, switching the current system for legacy cultivators at this point in time will compound the crisis they face with the State Annual License deadline.

The current cohort of applicants and remaining legacy cultivators who qualify under the existing system must have a certainty that all resources are directed to processing their files before the State Annual License deadline. This must occur before a land use-based system is considered.

    • A land use-based system will need to address zoning, size adjustments, articulate reasonable conditions, and requires other changes to address concerns regarding brand new cultivation sites or expanded cultivation on existing sites.
    • A land use-based system will take time to develop and enact into law. Additionally, the site specific review and SSHR that must be done to satisfy CDFA, will still have to be done in a land use-based system, so there would be no time savings. The Staff claim that this work would be faster in a land use-based system is erroneous and must be verified.
    • Reimbursable costs cannot be the basis for any decision made to switch legacy cultivators to a land use-based system when the failure of the current ordinance process was not theirs, and given the looming State deadline.
    • PBS was already given the budget to hire 8 Planners, in part based on the need to continue to process Cultivation files. Both the site-specific review (Appendix G) and bringing the SSHR review in-house were being negotiated for more than a year. Therefore, the budget approval for 8 Planners must have included that scope of work.

IV. RE-OPEN PHASE 1 IN LIGHT OF EQUITY FUNDING

Staff recommends against re-opening Phase 1, and also recommends closing Phase 2. MCA strongly disagrees. The Equity Grant funding awarded by the State was intended in part to allow insufficiently-resourced cultivators impacted by the War on Drugs to participate in the regulated market. If Phase 1 is not reopened now, while this grant funding is available, those cultivators will likely be shut out of the process. The Board has indicated a willingness to re-open Phase 1 for this reason. Additionally, Equity Funding should not be used to correct failures in program administration, but should be reserved to fulfill the intent of the grant. As stated in the Mendocino County Cannabis Local Equity Program Manual approved of by the State:

The Mendocino County Cannabis Equity Assessment (2020) established that Mendocino has been hit hard by the criminalization of cannabis, and a targeted, data-driven and well-funded equity program can help certain populations and neighborhoods, particularly small growers and those impacted from past policies that may be left behind, into a legal sustainable economic future.

A failure to embrace those legacy cultivators, who only now have an opportunity to receive financial and technical assistance to participate, would be tragic. To rob the Equity Grant funding in order to correct the failure to process applicants in a timely manner would be reprehensible. It would be preferable to use the mandatory Cannabis Taxes that have been levied against people who believed they would be eligible for a State Annual License.

V. FAILURE TO PRIORITIZE AND PROCESS THE LAST TWO STEPS NEEDED FOR ANNUAL STATE LICENSES BEFORE THE DEADLINE COULD BE WORSE FOR THE ENVIRONMENT AND LAW ENFORCEMENT RESOURCES

Cultivators who participate in a regulated system, which imposes rigorous local and State requirements and environmental controls, must not be discarded or dis-incentivized. To do so would only strengthen the underground market option and diminish the prospects of bringing more people into the legal marketplace.

Full and robust support of existing permitted cultivators and applicants must be strengthened, regardless of which pot of money the County draws from to process the current files; admit Equity Grant-eligible legacy cultivators; and subsequently create a different system for new cultivation and expansion beyond 10,000 square feet.

Negative impacts to the environment are made more possible when cultivators are not regulated. Now, in these times of Covid-19, we can ill afford to further strain law enforcement resources to implement enforcement against an expanded group of illegal grows. Should the County not take responsibility for, and control of, the current looming State deadline crisis, cultivators will abandon the regulated system. These are high stakes requiring that the County do the right thing.

VI. SUMMARY

MCA strongly supports the immediate creation of an Ad Hoc that can dig deeper into the issues that still need to be resolved, and obtain the information necessary for the Board to make wise decisions in this precarious moment in time.

The urgency of the situation must not be diminished, and the County must not wait to see if the State will rescue us. The County must rise to the occasion and fulfill its desire to provide local regulation in exchange for the ability of cultivators to secure Annual State Licenses, thus continuing their contributions to the economic health of our County through their considerable taxes.

MCA supports re-opening Phase 1 so that equity-eligible applicants can utilize the long-awaited grant funding that has been awarded to become compliant and participate in the legal industry.

MCA will be submitting additional memos addressing more technical issues concerning the proposals. However, before those issues can be fully analyzed, the preliminary question of whether the County can and will fulfill its commitments to locally regulate commercial cannabis cultivation in exchange for taxes and adherence to County-desired rules must be answered.

We look forward to working with the Board and Staff to find sensible solutions to difficult problems.

Thank you for your consideration.

Mendocino Cannabis Alliance

08.04.20 MCA Memo