Policy

MCA Proposal for Phase 3

Good afternoon!

In Advance of the Planning Commission meeting scheduled for Friday, March 19, MCA has prepared a Memo with an alternative proposal to the currently proposed Commercial Cannabis Activities Ordinance, with specific recommendations rooted in years of cannabis policy work and our mission statement.

We are supportive of the development of a conditional land use permit program for cannabis cultivation in Mendocino County.  We recognize that this is a necessity. However, the current draft ordinance, as introduced, does not solve the problems our County continues to face in permitting and regulating commercial cannabis operations.

Our recommendations comprise a holistic proposal to regulate commercial cannabis cultivation that simultaneously would provide a viable pathway for a) existing operators, b) new cultivation sites, and c) expanded cultivation activities, all with an emphasis on sustainability and the protection of our environment, natural and cultural resources, and way of life.  We believe that this is what a majority of Mendocino County’s residents are seeking from our local government, and we believe that a majority of the cannabis industry wants this as well.

CLICK HERE to read the full Memo with our recommendations.

If you agree with our proposal, please email pbs@mendocinocounty.org to share your support!

Planning Commission & Outside Counsel docs

Click below to see the documents posted by the Mendocino County Planning Commission in advance of the 3/19 meeting.

And here is the recently released Outside County Counsel opinion on CEQA.  It was delivered to the County on Feb 19, and released to the public via Supervisor Williams’ Facebook Page on March 10.

MCA Memos for 3-09-2021 BoS Meeting

In Advance of the Board of Supervisors meeting scheduled for tomorrow, Tuesday March 9, MCA has prepared Memos on the following Agenda Items:

  • Item 5c – Crop Report
  • Item 5e – Disaster Relief Fund Investment
  • Item 5h – State Legislative Platform
  • Public Expression – In support of Move2030

CLICK HERE to read the memos!

If you agree with the content of these memos, we encourage you to email bos@mendocinocounty.org with your support.

MCA Policy Committee Responsibilities

Responsibilities of the MCA Policy Committee

The Policy Committee is the voting policy body of MCA.  As such, it has full authority to take policy positions, draft and release memos, connect with officials, members and media.  To fulfill this task, the Policy Committee:

 – The Policy Committee is tasked with pursuing the objectives and priorities of the annual strategic plan

  – Receives input on policy matters from membership via member calls, polling and surveys

 – Receives information, research and recommendations from Policy Leadership Committee

 – Discusses, deliberates and votes on MCA policy priorities and positions based on those inputs 

 – Discusses and schedules Membership Policy Meeting topics, presenters, and content in collaboration with MCA Executive Committee

Criteria for Committee Membership

The Policy Committee must include the following representation from the cannabis industry. Individual members can meet multiple criteria. 

 – A minimum of one licensee who holds a Cottage OR Specialty Cottage, Outdoor or ML Tier 1 

 – Distributor

 – Manufacturer

 – Retail

 – Outdoor Farmer

 – ML 1 Farmer

 – Indoor Farmer

 – Expertise in Communications

 – Experience in Mendocino County cannabis policy

 – Experience in Committee Leadership

 

Time Commitment

5-7 hours a week MINIMUM required: 

up to 2 (quantity) 90 minute meetings per week, 

up to 2 hours of reading/commenting/correspondence per week, potential for additional subcommittee work

Important Update on CEQA for Provisional Licensees

MCA met with CDFA CalCannabis on Friday 2/5/2021 in collaboration with our state-level advocacy partner, Origins Council.

We confirmed CDFA’s intent to send notices to Mendocino County’s provisional license holders asking them to provide evidence that site-specific CEQA is underway. We inquired about how this would work and expressed concern for any potential discontinuity of provisional licenses as an unintended consequence of this process.

CDFA provided us with the following information and offered to meet with us again once the process and messaging had been further developed. We have offered to be a resource to CDFA in supporting this process and are committed to providing timely and accurate information to our members – as well as the County’s provisional license holders more broadly – about what to expect and how they can begin to prepare for this process.

CLICK HERE to view the full report.

MCA Memos for Feb 9 2021 BoS Meeting

In advance of the February 9 Board of Supervisors meeting, MCA has prepared two documents outlining a comprehensive list of proposals for both existing operators in Mendocino County, and the County’s Legislative Platform.

As a Trade organization representing the best interests of our Members and the community at large, we encourage you to review our recommendations, and if you agree, to share that agreement with the Board of Supervisors. Info on how to do that below!


Item 6a – Phase 1

Our recommendations for this item are specifically geared to maintaining operational status for existing operators, and enabling reduced county staff to use their time as efficiently as possible to manage the bottleneck of applicants already in the system.

Among other items, we propose discontinuing the 30 Day Notice program in favor of a more comprehensive approach that will better support operators as they get ready to identify their best path forward to Annual Licensure.

CLICK HERE to read the full memo.


 

Item 5i – Legislative Platform

Mendocino County has its own Lobbyist who advances the County’s agenda at the State level.  MCA has proposed a slate of additions to support our local cannabis community to be added to the official Legislative Platform for 2021.  The Board of Supervisors has previously expressed support for these suggestions, so we sincerely hope to see them incorporated in the next draft of the document.
CLICK HERE to read the full list of recommendations.

MCA Memos for January 5 2021 BoS Meeting

In addition to being the first Board of Supervisors meeting of the new year, Jan 5 is the first BoS meeting with two new Supervisors! Sending a big MCA welcome to Sup. Maureen Mulheren from District 2 and Sup. Glenn McGourty from District 1!

The Agenda for Jan 5 has several important cannabis items:

MCA has been working tirelessly over the holiday to provide comprehensive input on each item. Click the item above to see each memo.

If you have any troubles viewing the files, please email info@mendocannabis.com for support.

MCA Questions & Considerations for 12/16/2020 Town Hall

MCA Questions & Considerations

Prepared for the 12/16/2020 Cannabis Town Hall 

MCA strongly believes that the county has an obligation to continue to pursue ALL potential pathways to Annual Licenses for Phase 1 operators. We disagree with the idea that the current system is a lost cause, and we reject the simplistic view that there is only one solution. The county has a responsibility to the whole Phase 1 cohort. These folks gambled on the county’s program when many of their neighbors didn’t, and in order to solve the CEQA issue and prevent these businesses from going under, the county needs to acknowledge that different solutions will be better for different projects due to their unique circumstances.

  1. Explore All Possible Options

In a recent discussion directly with CDFA, we learned that unless the County continues to demonstrate progress on CEQA requirements, applicants may be subject to non-renewal of current state licenses. As a result, it is imperative that we fire on all cylinders:

  • SSHRs for Everyone. Continue to process SSHRs, including for those files that need to be referred to CDFW beyond those that are up for renewal in case those files are still appropriate for Appendix G and in case the SSHR also can serve as a preliminary basis of an alternate CEQA process that file might be more appropriately using AND because it is a prerequisite for our local ordinance.
  • Efficient Processing into Appropriate Pathways.  Ensure an efficient process for review of all files, not just for completeness, but for the appropriate Pathway to achieve an annual license at the State level.
  • Stay the Course with Appendix G. Verify that Appendix G might still be appropriate for certain types of projects.
  • Solidify Alternate Avenues. Nail down the following:
    • project specific exemptions to CEQA, including opportunities to define projects to include more than one site, which is allowed if appropriate and if it sufficient describes all activities
    • How re-designation of cannabis as an Ag Activity may help with the utilization of some CEQA exemptions, in addition to assisting with other issues that create further barriers
    • whether the County’s prior programmatic NOE is valid to fulfill CEQA for purposes of the state annual license, much the way CDFW uses the Ministerial exemption for its LSAs under the General Order.,
    • the pros and cons regarding applicants preparing and submitting CEQA analysis for their site directly to CDFA

Our goal is to establish an appropriate prioritized pathway to Annual Licensure for every existing Provisionally Licensed operator  based on their specific site and project scope. 

 

  1. Continue Preliminary Work That Is Needed
    • The county has an obligation to continue to pursue ALL potential pathways to Annual Licenses for cultivators who signed up for Phase 1 permitting with the belief that it was a legitimate opportunity.
    • In order to demonstrate to the state that there is forward movement on CEQA, we propose that the County stay the course on the following four preliminary steps
      1. Evaluate and Report on Each Pathway. Perform a complete evaluation of each potential CEQA option and the pros and cons of the use of each Pathway and report to the Board;
      2. Assess and Categorize the Applicants. Review the newly updated files and assess which Applicants might be best suited for each pathway and what might specifically need to happen for each category of applications to proceed with the appropriate Pathway for them;
      3. Keep Getting Organized. Continuing the preliminary organizational work, whether through requiring complete resubmission of all current docs, or digitizing files, or whatever is needed to be able to determine items 1 & 2 and to effectively and efficiently reduce the time before people can know where they stand and to reduce the overall staff time to review files;
      4. Prioritize Permittees without SSHRs. Prioritizing Applicants who have been issued local Annual Permits without the County having done the SSHR required by the ordinance.

Q: Have sufficient staff and other resources been allocated to these or other steps that will demonstrate the active progress that the state needs to see?

  • If provisionals aren’t renewed, the County could lose 6M in taxes.
  • New tax revenue from Phase 3 operators won’t come any time soon if those operators can’t cultivate until after their entire use permit process has completed.

 

  1. Concerns Regarding Direct Submission of CEQA to CDFA
  • Again, we feel strongly that the county must pursue all potential solutions, but we have A LOT of questions about the so-called “Nuclear Option” that Supervisor Williams has mentioned on Facebook and various radio programs.
  • We understand the concept: that applicants can “do their own CEQA” and submit directly to CDFA. But we’ve heard very few details about how this would actually work for Phase 1 folks like me, and Supervisor Williams usually follows this with the caveat that CDFA considers this the ‘nuclear option’ because they don’t have the staff and resources allocated to process even a tiny fraction of the 800+ provisionally licensed cultivation businesses in operation in Mendocino County.
  • Naturally, this leads us to question if this is actually a reasonable pathway for Applicants at this time.
    • Our specific questions are:
      1. Q: What are the implications to applicants considering this route in terms of timeline and cost?
      2. Q: Would this require initial studies and potentially full Environmental Impact Reports by each applicant?
      3. Q: Can you explain the exact process for an applicant to do CEQA themselves?
        • Will a current Provisional still be valid in this scenario?
        • Will we have to file a new license application and will CDFA issue us new provisionals or will we have to wait possibly years to be authorized to cultivate?
        • Will current Provisional Licensees have to cease their current operations while their new application is in process?
      4. Q: Have other places successfully used this pathway?  
      5. Q: And for how many annual licenses was CDFA able to conduct and process full CEQA reviews in a year?  

Until we understand this pathway fully, it seems really premature for the county to be suggesting that people should start spending money ‘doing their own CEQA’ when it’s likely to be just as much of a bottle neck or dead end as the county program.

 

  1. 30 Day Notices and Application Paperwork Organization
  • In order to assess the Phase 1 Cohort and identify which pathway works best for each case, the County obviously needs the applications to be updated, complete, and organized.
  • More and more of the 30-Day notices have been going out requesting updated site plans, missing documents, and some documents never previously requested. 
  • The hope, of course, is that this process will lead to the County having all the documents necessary to make a determination for each Applicant about which pathways might be appropriate options for their project.  
  • Electronic submission of these files should cut down on Staff review time. Now that the submissions are electronic, and contain up-to-date information, what is the new projection of file review time (it was 5 hours per file because the County’s filing system was ineffective)?

Q: Are the 30-day notices working to get applications updated and organized and if so can you begin categorizing and informing applicants where they stand?

Q: Can the County begin to use this information to point to what Pathway could be right for each Applicant:

  • Continued processing through Phase 1 using Appendix G,
  • Using Categorical Exemptions to issue Notices of Exemption,
  • Discretionary use permit, 
  • Direct submission to CDFA

Operators NEED clarity sooner than later. Many are paused completely waiting for answers before they spend any more money continuing down the road to full compliance.  They need to know where they stand.

 

  1. Phase 3
  • When the CEQA issues started coming to light, the first alternative pathway that was proposed was to develop a Discretionary Use Permit process that Phase 1 operators could be processed through, and incorporate that into “Phase 3” which was originally designed to be for New Cultivation Sites.
  • We’re skeptical that Use Permits will provide a viable pathway for many of the Phase 1 cohort without them having to shut down their operation for one or more seasons, but again, we believe that efforts to make this pathway an option should be pursued, as certainly some existing and all new cultivation will need it.
  • Q: What is the status of Phase 3 Discretionary Use Permit Ordinance and what is the projected start date? 
      • Currently scheduled to begin in April of 2021, but it has not yet even gone to the Planning Commission and then has to go back to the BOS.  And then when you factor in the use permit timeframe and the bottleneck that will happen if Phase 1 operators must essentially start over in phase 3, cultivation businesses currently in operation are very unlikely to be unable to cultivate for at least 1-2 growing seasons.
    • There’s currently a massive effort underway by both the county and the Phase 1 applicants to process these 30-day notices and get more applications complete, updated, accurate, and organized. 
      • Q: If Phase 1 truly turns out to be a dead end for some of these folks, can the results of this process be utilized to fast-track their discretionary use permit process?
    • Specifically, we’d like to request that the county revisit the idea of an expedited Administrative Permit.  
      • Q: Can the county offer an expedited Administrative Permit for, at a minimum, Phase 1 operators who hit a dead end, using their Phase 1 application materials as the basis for their Administrative Permit Application?
      • Q: And can this be done in a way that allows them to continue cultivating, without having a gap in their county authorization or their state provisional licensure, until their county permit is finaled and their state annual license is granted?
    • For the businesses who can’t get through Phase 1 and now have to try again for Phase 3, we don’t know what the real impact of those shuttered businesses will be on our local economy.  
    • We propose that all existing applicants be given priority for any Phase 3 program.
  • Note: Humboldt has adopted this model, and with a staff of 14 planners they are getting through about 70 permits a year.  In the past, we were told that Humboldt County has had 14 Planners that processed about 70 discretionary review permits per year. Out of a little over 1500 licenses issued in Humboldt, a little more than 400 are Annual State licenses. Note: that has been in the years since State licenses have been issued and also remember, that a decent number of those licenses might be held on the same property/project, so while it looks like maybe 125-150 /year of state licenses, the reality is that there might be 2-5 licenses per project that the County approved, so comparing state licenses overall in  jurisdiction to those that have gotten through the annual process does not tell the whole story. Of how many discretionary review permits were issued in that County. As a comparison, Mendocino County has about 820 state licenses and only about 9 are Annual state licenses. 

 

  • Q: How is it going to be determined what will be prioritized in Phase 3?
  • Q: What is the plan to process applicants?
  • Q: What kind of staff and time would it take? 
  • Q: What is the County’s plan if there’s a gap for many businesses?

 

  1. Financial Considerations
    • This conversation always comes back to: “How can the county afford to pay for this? It was roughly estimated the cost might be 5-8 million to conduct the SSHR and the Appendix G review and Project Description preparation if prepared by the County.
    • Cannabis brought in 6M in tax revenue to the county and could bring in a lot more if our permitting program wasn’t stuck in the mud.  If this were reinvested for one year to solve the problem, the cannabis operators would have a chance to thrive and generate far more in Tax Revenue in subsequent years.  
    • We’re not suggesting that cannabis taxes be used to pay for ALL CEQA reviews for EVERYONE.
    • There should be a clear distinction made between PROCESSING of the files and conducting the foundational work, such as the SSHR, sorting files for the most efficient pathway, and verification with adherence to program parameters (which the county has to do) vs. the underlying CEQA work (which the applicant may be responsible for paying for). 
    • We believe that the actual CEQA processing could be handled on a cost recovery basis AFTER the County has properly conducted the foundational work necessary for a specific CEQA path to be undertaken (Appendix G, NOE, DIscretionary Permit, direct applicant submission) .
    • We suggest that you separate out the discussion of ‘who pays for CEQA work’ and first figure out ‘How can it be done?’ (staffing, timelines, process, SSHR contract, etc.)
      • Q: Don’t you agree that it is appropriate for the County to do SSHR and whatever other preliminary work is needed to be done to figure out all the viable options and identify which pathway each of our Phase 1 operators’ projects is best suited for? 
      • Q: Won’t the current electronic submissions of up-to-date and more complete information dramatically reduce the amount of time to conduct those foundational efforts?

CLICK HERE to see the video of the Town Hall from 12/16/2020

MCA Memos for Agenda Items 5h and 5i

The Mendocino Cannabis Alliance has prepared two memos in advance of the Board of Supervisor’s meeting on Tuesday December 8, 2020 on items 5h and 5i.

On Item 5h MCA specifically requests that Board postpone reviewing the Code Enforcement suggestions made until there is more of an opportunity to consider potential unintended consequences.

CLICK HERE to review the County materials for item 5h
CLICK HERE to email the Board of Supervisors and let them know you support MCA’s recommendation for 5h!

Regarding Item 5i, MCA strongly supports the re-classification of cannabis as an agricultural activity but is not certain that this would be sufficient to solve the CEQA issues we are currently facing locally.  Therefore we firmly believe that the County must continue to pursue all possible avenues simultaneously with the goal of getting the initial cohort of licensees from Provisional to Annual Licenses.

CLICK HERE to review the County materials for Item 5i
CLICK HERE to email the Board of Supervisors and let them know you support MCA’s recommendation for 5i!

Please email iinfo@mendocannabis.com with any questions!

Both memos may be downloaded by CLICKING THIS LINK.

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Re: Agenda Item 5h for Board of Supervisors Meeting 12/8/2020

Discussion and Possible Action Including Introducing and Waiving an Ordinance Amending Mendocino County Code Chapters 1.04, 1.08 and 16.30 Relating to Code Enforcement Procedures and Regulations, Including Administrative Penalty Increases Relating to Stormwater, Cannabis and Building Violations. (Sponsors: Planning and Building Services and County Counsel)

Honorable Supervisors:

We comment on 5h to express concern that the proposed amendments to these ordinances may conflict with 10A.17 and the Board’s explicit direction concerning Compliance Plans issued with Cannabis Permits. We respectfully request that the Agenda Item be brought back for consideration by the Board only after a careful examination of potentially conflicting language and unintended consequences.

  1. Potential unintended conflict with 10A.17.100 (C) (compliance plan approach to certain code violations of a commercial cannabis permit candidate) warrants a closer examination of the added language of the proposed ordinance changes.
    • We have seen many instances where current Code Enforcement has taken a reasonable approach to encouraging compliance as the goal. However, laws must be evaluated for their potential to be applied, using the plain language of the statute, in a manner that might be contrary to current internal policy or implementation and must be analyzed without presumption that a “reasonable” and circumspect application will in fact be utilized.
    • Here, we have language proposed that expands the purview of the NOV and Citation process (Endnote 1) without a clear understanding or time for analysis to see if, in light of 10A17.A 100 (C), whether there is an unintended conflict in policy and the potential for implementation in conflict with how Compliance Plans were designed. Specifically, there is a potential conflict in the procedure to give cultivators one year from the Cannabis Permit issuance date to apply for building permits for any structures used in the cannabis business that were not properly permitted. Furthermore, cultivators were explicitly told that entering into the cultivation permitting process would not automatically expose them to penalties for unpermitted structures, including non-cannabis structures. Perhaps ultimately, language can be added to clarify that it is not the intent to reverse the codified procedures and intent behind Compliance Plans. But, the first question is whether there is absolute certainty that passing these amendments would not erode the Compliance Plan mechanism and the policy behind it? 

We respectfully request the careful review of the ordinance language changes with the specific Compliance Plan issue in mind. 

2. Given the County’s current position of having still not completed review of annual cultivation permit applications for the vast majority of files despite the fact that it has been 3 years and 7 months since the ordinance passed, it seems that the Supervisors would want to avoid the appearance that they are simply trying to reduce its obligations to review all applications. It also seems to be putting the cart before the horse to enact a law that could potentially use minor building code violations to winnow out current applicants in light of the Compliance Plan approach enacted and the fact that the County has repeatedly failed to keep track of its own files and whether applicants have already fulfilled their requirements.

    • Applicants have been paying yearly cultivation taxes despite not having been issued any annual permit and while facing the existential question of whether they will be able to maintain a State license given the CEQA debacle.
    • Despite frequent attempts to lay blame at the feet of the State, or unresponsive applicants, there is a substantial mass of application files that various iterations of the Cannabis program failed to keep and track properly. It is disingenuous after 3 ½ years to fail to publicly recognize that fact and not take responsibility for evaluating ALL related laws, enforcement actions, and processes in that context. The County is most definitely one of the parties at fault in the current state of affairs.

3. The argument that may be made that these ordinances are immediately necessary to “go after” the bad actors and to deter future violations is belied by the simultaneous argument made by Staff, that these provisions do not expand any existing authority to target and prosecute violators. If the authority already exists, why the race to expand them (Waive 1st Reading, no analysis with respect to the intersection of these provisions with the Compliance Plan approach)? 

4. Additional avenues and resources for enforcement exist currently. Law Enforcement may investigate and the District Attorney may prosecute any person who is violating criminal and many environmental laws with respect to cultivation (Endnote 2). In fact, our District Attorney was adamant about being able to deny cultivation permits for applicants who were convicted of some of those crimes and on numerous occasions threatened to add conspiracy charges to amplify penalties for such crimes. 

Current State laws provide for enforcement of Administrative Citations with far greater fines (Endnote 3) and budgetary resources for local jurisdictions to remedy environmental and other negative impacts of cannabis activity (Endnote 4). In fact, it is worth asking whether the County applied for grants under the Prop 64 Public Health and Safety Program for 2020-2023 (Endnote 5) We point to these other avenues for enforcement and State funding, not as blanket opposition to County Administrative procedures and levels set for fines, but as an additional resource for pursuit of avenues of redress. 

5. Alternate service by mail provisions have previously been rejected by the Planning Commission and this Board and should be rejected again. Staff proposes to amend Section 1.08.080 by removing a requirement for certified mail as an alternative to personal service and instead simply requiring first class U.S. postal delivery without return receipt. We greatly appreciate some of the other due process considerations that were suggested, such as an expanded period of time to appeal and inclusion of procedural due process in line with State law, but given the nature of rural mail in general, the pandemic and recent slowing of U.S. mail services in particular, removing the certified mail requirement would be disastrous.

6. Section 1.08.030 (H) may be specifically intended to expand the capability of landowner responsibility.  Expansion of landowner liability is one thing, but the potential for ensnaring other “Responsible Parties” as defined, warrants further consideration.  A closer reading of other provisions concerning Responsible Party’s joint and several liability (Endnote 6) in conjunction with a careful reading of the definition of who a “Responsible Party” is, creates concern that professionals that serve as “Agents” for purposes of filing building, grading and even assisting with cultivation permits, could be scooped up in liability exposure. We want applicants to have professional assistance if it will help in the accurate and efficient filing and processing of such applications, particularly where there is technical knowledge involved. Our rural community already has a shortage of qualified professionals to assist applicants (engineers, etc.). Careful examination of the negative incentive created by additional liability for ANY “Responsible Party” as currently defined, should be considered.

7. Proposed Section 1.08.060(H)(2)(a) contradicts this Board’s direction to maintain consistency with State law definitions regarding Immature Plants. In fact, 10A.17 was specifically AMENDED to align its definition of Immature Plants with the State definition. This proposed section creates a completely different definition.

Conclusion

We respect the need to review and “cleanup” the NOV and Administrative Citation process and to create sufficient deterrence to encourage compliance rather than a flagrant violation of cultivation and other Mendocino County Codes. However, we believe that the proposed amendments fail to adequately consider the unintended consequences of enacting the language proposed. We respectfully request that the issues be carefully examined in light of our comments and returned to the Board after a specific analysis of those considerations has been conducted.

Thank you for your consideration.

Mendocino Cannabis Alliance

Endnotes:

(1) Sec.1.08.060 (A): adding additional language including “or other Mendocino County law, or any law that is specifically adopted or otherwise incorporated into the Code” can be the basis of an Administrative Citation. 

Sec.1.08.060 (F): adding in “any building or safety code, including but not limited to a violation of MCC Title 18” [building code violations] is subject to the specified fines.

(2) Section 11358, 11366.5.

(3)  See, in particular CA F&G Code Section 12025 which indicates fines for $8000/day, $10,000/day, and $20,000/day. See, CA Penal Code Title 10, Crimes Against Public Health, CA Health & Safety Code

(4) See, CA Rev. & Tax Code, § 34019

(5) The Bureau of Cannabis Control (BCC) released and later extended the deadline for an RFP for local jurisdictions to apply for funding under this law. Letters of Intent were (amended to be) due May 1, 2020 and Proposals were (amended to be) due June 5, 2020.

(6)  Sec. 1.08.060(H)(4)

 

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Re: Agenda Item 5i for Board of Supervisors Meeting 12/8/2020

Discussion and Possible Direction to Staff Regarding the Cannabis Cultivation Permitting Program Priorities from September 22, 2020 and Direction to Staff to Review Additional Options for the Program Including Potential Consideration of Cannabis Cultivation as an Agricultural Activity (Sponsor: Planning & Building Services)

Honorable Supervisors,  

MCA is in strong support of all efforts to research and consider the possible redesignation of cannabis cultivation as an agricultural activity in the County. We have not yet seen proof that this would solve our CEQA challenges, but this designation would, at a minimum, resolve other issues. For example, it would normalize CalFire road standards to certain cultivation sites, achieving parity with other agriculture in that regard.

We also understand the need to pause work on some objectives to free up resources to pursue this new path. However, it is imperative that work on current applications continues. MCA respectfully requests that any items that are paused be reported on by Staff and revisited by the Board every 30 days. 

Specifically, the CDFW Interagency Agreement should not be paused.  This plan, already in motion, to bring CDFW biologists in-house to process the Sensitive Species Habitat Reviews (SSHRs) is essential and we request that it continues. The SSHRs are required by our local ordinance 10A.17, have already been paid for by the current cohort of provisional licensees, and are necessary for Phase 1 permit holders to ultimately be eligible for State Annual Licenses.  Pausing on this work may put existing provisional licenses in jeopardy and, at a minimum, would do a great disservice to the vast majority of Phase 1 applicants who have been waiting in good faith for this review to be performed, in some cases for several years.

It remains uncertain whether or not (and if so, under what specific circumstances) redesignating cannabis cultivation as an agricultural activity locally would resolve the CEQA challenges the Phase 1 program has faced. It is imperative that we first understand definitively whether or not CDFA will accept the local redesignation of cannabis cultivation as an agricultural activity in light of the State’s current active designation of cannabis as an agricultural product, and issue Annual Licenses to existing Provisional License holders on this basis. This must be determined before resources are diverted from pursuing the various fixes to Phase 1 and the processing of Phase 1 applicants.

The fact is that cannabis is an agricultural crop.  And it is our firm conviction that cannabis cultivation is an agricultural activity and that our County’s cannabis cultivators are farmers. We strongly urge the County to take the lead on redesignation regardless of the CEQA issue and are prepared to support the County in any efforts to designate the activities of our cannabis farming community as such. Ultimately, local redesignation may lead to resolving the core discrepancy between State law (defining cannabis as an agricultural product) and reality (cannabis is an agricultural crop) and enable the smoother transition of our cannabis farmers into the regulated market. This has been one of the underlying causes of our County Cannabis Program’s inability to provide a definitive pathway for our existing Provisional License holders to become eligible for Annual Licenses.   While we don’t know if designation at the local level will fix the CEQA issue as long as the State maintains its designation of cannabis as an agricultural product, it clearly has other benefits and should be pursued regardless.

Thus far, our research indicates that local redesignation of cannabis as an agricultural activity has only a limited potential to solve the CEQA problem in certain cases.  Santa Cruz County has recently (June 2020) made changes to its cannabis program that certainly provide a model worth considering in detail.  However, our initial review of the CEQA documents filed with the Governor’s Office of Planning and Research (OPR) only turns up two projects successfully processed and granted Annual Licenses in this manner.  Both of the projects were approved based on a Class 1 Categorical Exemption from CEQA, meaning that the projects consisted of, at most, minor alterations of existing facilities or topographical features involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.  We are unsure about how many additional projects may be in the queue and eligible for Annual Licenses on a different basis, or if this approach would be useful for new projects.

Despite this, MCA strongly encourages the Board of Supervisors to direct Staff to explore the potential of redesignating cannabis as an agricultural activity without pausing on the CDFW Interagency Agreement and the Sensitive Species Habitat Reviews. We will continue conducting our own research into this option and are more than happy to share information and insights with the County as it explores redesignation as a possible solution.

Thank you for your consideration.

Mendocino Cannabis Alliance

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