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  Regular-Community Services   #   3.    
Board of Supervisors - Cannabis Land Use Ordinance Workshop Community Services  
Meeting Date: 01/19/2021  
Brief Title:    Cannabis Land Use Ordinance Workshop
From: Taro Echiburu, Director, Department of Community Services
Staff Contact: Leslie Lindbo, Chief Assistant Department Director, Department of Community Services, x8581

Subject
Conduct a public workshop on the Cannabis Land Use Ordinance (CLUO) and related matters. (No general fund impact) (Lindbo/Tschudin)
Recommended Action
  1. Receive a staff report on the draft Cannabis Land Use Ordinance (CLUO) and Environmental Impact Report (EIR), and related matters;
     
  2. Conduct a public workshop on the CLUO and EIR allowing for comments, questions, and discussion by the Board of Supervisors, County staff, and interested parties; and
     
  3. Provide input and direction to staff regarding materials and information requested to conduct a future public hearing and take action to certify the EIR, adopt the CLUO, and direct implementation.
Strategic Plan Goal(s)
Thriving Residents
Safe Communities
Flourishing Agriculture
Robust Economy
Reason for Recommended Action/Background
The purpose of this workshop is to allow staff to present the Draft CLUO and the Final EIR to the Board of Supervisors, and allow for comments, questions, and discussion with the Board and public. 
 
Yolo County (County) is proposing to adopt a Cannabis Land Use Ordinance (CLUO) (see Attachment A) and take related actions described later in this report.    The Draft CLUO will apply to all unincorporated areas of the County.  The County currently regulates the cultivation of cannabis through an annual ministerial licensing program conducted pursuant to the Marijuana Cultivation Ordinance codified in Chapter 20 of Title 5 of the Yolo County Code.
 
The County proposes to amend the County Code to add a discretionary conditional use permit requirement for allowable cannabis activities.  This permit would add requirements for zoning compliance, site design, and various performance standards related to development and operation.  The Draft CLUO would allow for the expansion of cannabis activities (both numbers and types) in the unincorporated County (as compared to existing conditions), and would include requirements for public noticing, buffers from identified sensitive land uses, caps on the number of operations and license types, and other requirements.  Amendment of several policies of the County General Plan, and of several related County regulations, is also proposed.
 
The staff has completed extensive public and industry outreach , including public meetings with the Planning Commission, and is recommending the Board of Supervisors take final action to adopt the CLUO.  A Final Environmental Impact Report (Final EIR) has been completed and must be considered prior to taking the recommended actions to approve the CLUO. All volumes of the EIR are available online at the following  link.

The Planning Commission concluded their deliberations on these items at their regularly scheduled December 10, 2020 meeting, and has recommended certification of the Final EIR and approval of the CLUO including specific recommendations that differ from the staff recommendation.  These are summarized later in this report. 
 
Table of Contents for Staff Report:
  1. Background
  2. Summary of Draft CLUO
  3. Summary of All Proposed Regulatory Changes
  4. Environmental Impact Analysis
  5. Key CLUO Issues
  6. Recommendation of CACs and Yocha Dehe Wintun Nation
  7. Recommendation of Planning Commission
  8. Retail Storefront Uses
  9. Cannabis Greenhouse Setbacks
  10. Buffers from Residential Uses
  11. Buffer Easements
  12. Next Steps
 
1. Background:
The following background information summarizes the relevant history of cannabis regulation in Yolo County:
 
September 2015 – The California Medical Marijuana Regulation and Safety Act was enacted creating a comprehensive statewide licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis.
 
March 2016 – In response to the Medical Marijuana Regulation and Safety Act and to effect greater local control, the Yolo County Board of Supervisors adopted the Marijuana Cultivation Ordinance (Chapter 20 to Title 5 of the Yolo County Code) regulating medical cannabis cultivation in Yolo County.  This ordinance is also referred to as the County Cannabis Licensing Ordinance.
 
October 2016 – The County established a moratorium on the issuance of cannabis cultivation licenses which limited the number of eligible cannabis cultivation licenses to 78.
 
November 2016 – California voters approved Proposition 64, the California Marijuana Legalization Initiative, or the Adult Use of Marijuana Act. Proposition 64 decriminalized the personal use and cultivation of marijuana in California as of November 9, 2016. The ability to sell recreational cannabis in the state, and statewide taxation of those transactions, went into effect January 1, 2018.  The act established a comprehensive system to decriminalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana products, for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana for recreational use.
 
October 2017 – The Board of Supervisors approved Guiding Principles for Proposed Cannabis Land Use Ordinance (Attachment B) as the basis for the development of a CLUO.  (Note: With respect to Principle 3.d the Board later concurred that the Draft CLUO should allow for additional possible cannabis uses in addition to cultivation).  Ten public outreach meetings were held with residents, property owners, and cultivators to obtain comments on what should be included in the ordinance.
 
November 2017 – A provision was added to the County Marijuana Cultivation Ordinance allowing the licensing of a limited number of nursery and processing facilities as part of a pilot program.  The County received four applications under the pilot program.  None of these applications have yet been approved, although one is currently undergoing environmental review1.   Two have since been withdrawn and one is on hold pending completion of the CLUO process.
 
March 2018 – The Board approved an early implementation development agreement policy for existing licensed cannabis cultivators in Yolo County proposing projects that include indoor or mixed-light (greenhouse) cultivation.
 
April 2018 – The Board authorized release of the first Draft CLUO based on the Guiding Principles approved in October 2017. Twelve public outreach meetings were held in numerous locations within the County with residents, property owners, citizen advisory committees, and cultivators to obtain public input on the CLUO. Two Planning Commission meetings were also held.
 
June 2018 – The voters of Yolo County, including those in the incorporated cities, approved Measure K, authorizing the County to impose a general tax on the gross receipts of commercial cannabis activity in unincorporated Yolo County. The measure was approved by 79 percent of the voters.
 
July 2018 – The County Marijuana Cultivation Ordinance was amended to allow for recreational cannabis activities in addition to medicinal. The amendment also allowed for the issuance of distributor licenses (limited to distribution of a County cultivation licensee’s own product) in conjunction with the nursery and processing facilities pilot program when requested under a development agreement.
 
March 2019 – The Board amended the County Marijuana Cultivation Ordinance to allow distribution licenses for existing County licensed cultivators to distribute their own product, broaden penalties for violations of the ordinance, and to provide and allow for the adoption of early implementation development agreements.  The County received eight applications for early development agreements, two of which were also applicants under the nursery and processing facilities pilot program.  None of these applications have been approved.  At this time, one is undergoing environmental review (the GCI Early Development Agreement/Pilot Project Initial Study/Mitigated Negative Declaration) and the remainder are on hold pending completion of the CLUO process.
 
October 2019 – The CLUO Draft EIR was released October 25, 2019 for an extended 60-day review period that ended December 3, 2019.  Appendix C of the Draft EIR contained the October 2019 Revised Public Draft CLUO which took into account comments received on the April 2018 version, and was the version of the ordinance upon which the Draft EIR analysis was based.  The County also released a CLUO Guide to Citizen Participation and held fourteen outreach meetings throughout the County to summarize and answer questions about the Draft CLUO and Draft EIR.  Several of the meetings were held with Citizen Advisory Committees which provided their recommendations regarding the CLUO (see Attachment D).
 
September 2020 – The CLUO Final EIR was released September 1, 2020.  The Final EIR included the Draft EIR by reference, copies of all comments received, responses to all comments, and changes/ clarifications to the Draft EIR.  Appendix D of the Final EIR contained the September 2020 Staff Proposed Revised Draft CLUO which included additional staff recommendations and all mitigation measures identified in the Draft EIR. 
 
September 10, 2020 – The Planning Commission CLUO workshop was held.
 
November 12, 2020 – The first Planning Commission hearing was held to consider final action on the CLUO.  At this meeting the Planning Commission provided tentative direction on their recommendations to the Board of Supervisors.
 
December 10, 2020 – The second and final Planning Commission hearing was held at which time the Commission took a final action on the CLUO in the form of a recommendation to the Board of Supervisors to certify the Final EIR and adopt the CLUO (and other related actions) with specified modifications.
 
January 19, 2021  – The Board of Supervisors CLUO workshop.
 
February 23, 2021 – The first hearing of Board of Supervisors to consider action on the Final EIR and CLUO, and related matters.  Staff will recommend the Board take action in the form of an “intent  to approve”.
 
March 9, 2021 – The final meeting of Board of Supervisors to take final action to certify the Final EIR and adopt the CLUO, and related matters.
 
2. Summary of Draft CLUO:
The County currently regulates the cultivation of cannabis under the Marijuana Cultivation Ordinance. The Marijuana Cultivation Ordinance is an interim regulation that includes standards for licensing, setbacks, compliance with state regulations, surety bonding, lighting restrictions for mixed-light cultivation, and implementation and enforcement provisions. The approval process for cannabis cultivation licenses is ministerial with no public notification or hearing process. Cannabis cultivation licenses are required to be renewed annually.
 
The Draft CLUO would add Article 14 to Title 8, Chapter 2, of the Zoning Regulations of the Yolo County Code. It would regulate all cannabis operations within the unincorporated area. Specific land use requirements and development performance standards are proposed in the Draft CLUO that would address, among many topics, a range of regulatory concerns.
 
The Draft CLUO has evolved over time based on initial direction from the Board, research and professional input from County staff and consultants, comments and suggestions from cannabis cultivators and industry representatives, and input from the public, responsible agencies, and interested parties.  A draft of the CLUO was originally released for public review April 24, 2018.  It was subsequently revised and released with changes as part of the Draft EIR on October 25, 2019, refined and released with the Final EIR on September 10, 2020, and further refined and released with the November 12, 2020 Planning Commission staff report.   Attachment A contains the most recent version of the Draft CLUO (January 2021) with recommended changes since November 12, 2020 shown in strike out/underline format.  In the intervening period since the December 10, 2020 Planning Commission, the Draft CLUO was formally reviewed by County Counsel’s office.  The version in Attachment A reflects the changes recommended by Counsel, which though extensive in appearance, are limited primarily to legal clarifications.  Modifications recommended by the Planning Commission that differ from the staff recommendation are highlighted in yellow.
 
The discussion below summarizes the Draft CLUO and describes key issues for consideration by the Board of Supervisors:
 
Section 8-2.1401, Relationship to Other County Cannabis Regulations: This section identifies other Yolo County Code sections that contain regulations specific to cannabis activities including zoning regulations, development agreements, and licensing.
 
Section 8-2.1402, Purpose: This section elaborates on the purpose of the regulations. It establishes County intent in implementing the ordinance. It describes the primary policy concerns and how they are to be balanced.
 
Section 8-2.1403, Definitions: This section provides definitions for various terms.
 
Section 8-2.1404, Applicability: This section addresses various aspects of how the CLUO will be applied and provides compliance timeframes for transitioning existing licensees into CLUO compliance.  
Licensees operating on the effective date of the CLUO will have one year to submit a complete application and may continue to operate in the interim.  Complete applications from operating licensees will be given processing priority.  The ordinance allows for the one year deadline to be modified administratively once implementation procedures have been established.  For licensees unable to comply with the CLUO, this section also identifies deadlines for relocation by operation or activity type:  one year for outdoor cultivators, two years for mixed-light (greenhouse) cultivators, and three years for indoor cultivators. 
 
Section 8-2.1405, Cannabis Use Categories and Use Types: This section identifies each of the state license use types and categorizes them for purposes of the CLUO. Generally, the use types are as defined in state law. Attachment F provides working definitions of each use type.  The staff is proposing that all cannabis use types except Retail-Special Cannabis Event be allowed.  The Planning Commission has recommended that Retail-Storefront uses not be allowed.
 
Section 8-2.1406, Cannabis Permit Requirements: This section clarifies the various license and permit requirements. In general, a cannabis operation must have the appropriate state cannabis license(s), a County cannabis license, a County business license (this requirement does not apply to cultivators, nurseries, or processing-only license holders), and a County cannabis use permit.  The County may choose to set a maximum term for a use permit.   Approval of a cannabis use permit must consider 13 identified findings of fact.
 
Staff has proposed a maximum of 132 cannabis use permits .  Furthermore staff has proposed the following limits/caps by license type: 
 
Personal (indoor or outdoor) = unlimited
Cultivation (indoor or outdoor) = 95
Nurseries = 5
Processing = 7 (0 in Guinda/Rumsey)
Manufacturing = 6 (0 in Guinda/Rumsey)
Testing = 2 (0 in Guinda/Rumsey)
Distribution = 7 (0 in Guinda/Rumsey)
Retail (Store front) = 5 (Planning Commission recommended 0)
Retail (Non-Storefront) = unlimited; must be associated with a CUP
Microbusiness = 5
 
The staff approach in recommending these caps was to:  1) allow opportunities for new operators to cultivate; 2) allow for market growth overall; 3) expand beyond the current prohibition on non-cultivation uses and allow for reasonable numbers of new cannabis activities; 4) remain generally at or below the mid-point analyzed in the EIR; 5) reflect generally the permit caps suggested by the CACs; and  6) support an overall approach to the regulations of starting slowly with a reasonable number in each category acknowledging that the County may modify the CLUO, including the identified caps, at any time in the future. 
 
This section also addresses over-concentration.  Staff has proposed the following overconcentration limits:
<10 use permits/operations within 6-mile area = acceptable concentration
>10 use permits/operations within 6-mile area = over-concentration
 
Section 8-2.1407, Table of Cannabis Development Requirements: This section identifies in table format which cannabis use types are allowed in which zone districts, and maximum allowed canopy. 
 
Section 8-2.1408, Specific Use Requirements and Performance Standards: This section is extensive. It provides 48 specific requirements and performance standards that would regulate operations for all cannabis use types. Examples of staff recommended changes to standards identified in this section include the following:
 
Buffers 8-2.1408(E) – Staff proposes the following buffers: 
CLUO Sensitive Use Buffer5 Measure Buffer From
1/ Off-site individual legal residences located on AG zoned parcels under separate ownership >20 ac (“farm dwelling on large AG parcel”) = 200 ft
 
<20 ac (“farm dwelling on small AG parcel”)= 600 ft
Building1
 
Parcel2
2/ Residentially zoned land 600 ft Zone boundary3
3/ Public parks 600 ft Parcel4
4/ Licensed day cares 600 ft Building1
 
 
5/ Recognized places of worship
6/ Public or licensed private schools
7/ Licensed treatment facilities for drugs or alcohol
8/ Licensed youth centers
9/ Federal lands held in trust by the federal government or subject of a trust application for a federally recognized Tribal government 1,000 ft Parcel4
Cannabis Land Use Buffer Measure Buffer From
10/ Personal cultivation (indoor and outdoor) None N/A
11/ Commercial indoor cultivation on AG, IND, or COMM parcel (with approved odor control system if needed) None N/A
12/ Commercial outdoor cultivation As identified above for various sensitive uses The closest point of any structure or outdoor area containing any cannabis
1 Buffers applied to farm dwellings on agriculturally zoned parcels of 20 acres or more, day cares, places of worship, schools, treatment facilities, and youth centers shall be measured from the closest surface of the building in which the use is operated to the closest point of any structure or outdoor area containing cannabis.
 2Buffers applied to residences on agriculturally zoned parcels less than 20 acres would be measured from the closest point of the parcel boundary to the closest point of any structure or outdoor area containing cannabis.
3 Buffers applied to residentially zoned land would be measured from the closest point of the residential zone boundary to the closest point of any structure or outdoor area containing cannabis.
4 Buffers applied to public parks and Tribal trust land would be measured from the closest point of the parcel boundary to the closest point of any structure or outdoor area containing cannabis.
5 When deliberating a Cannabis Use Permit application, reductions of up to ten percent of the required buffer distances described above may be approved by the County based on consideration of project-specific and/or site-specific factors
.  

The Planning Commission recommendation differed from the staff recommendation with respect to  buffers from residences.  The Commission recommended 1,000 foot buffers from any residence in an Agricultural zone regardless of size, and 1,000 foot buffers from the zone boundary of any Residential zone.  The Planning Commission also recommended the addition of buffer easements. This is discussed in more detail later in this report.
 
It should be noted that other applicable buffers associated with other regulatory and policy requirements are identified in 8-2.1408(D) for streams (100 feet) and  8-2.1408(H) for Tribal cultural resources (600 feet). 
 
Energy Use 8-2.1408(O) – A permanent power source is required. 
 
Generators 8-2.1408(T) -- An applicant may not rely on generator power.
 
Lighting 8-2.1408(Z) – Control of nighttime light glow from greenhouses is required.
 
Nuisance 8-2.1408(CC) and Odor Control 8-2.1408(DD) – The proposed odor standard is below 7:1 D/T at the property line.  This standard may be modified by the County in the future through a public process.  Should that occur, the new standard would apply to all permittees upon becoming effective.  There is no minimum equipment required for cannabis odor control, but odor cannot exceed the odor standard.  The County may accept odor easements as an alternative to meeting the odor standard.
 
Consideration of nuisance, enforcement, and odor control are critical to the success of the CLUO.  Under the CLUO an odor nuisance is defined as a cannabis odor that is “persistent”.  Persistent cannabis odor is defined in the draft ordinance as requiring all of the following:
  • Verified by persons of normal odor sensitivity;
  • Present three consecutive days in any two-week period; and
  • Exhibiting a D/T ratio of 7:1 or stronger at the property line of the cannabis operation.
Measuring odor is complicated.  Factors such as frequency, intensity, duration, offensiveness, and location are all relevant.  With proper training odor characteristics may be accurately assessed in the field with the naked nose; however staff has proposed to utilize a conventional field olfactometer known by the brand name, Nasal Ranger. 
 
The D/T ratio is a “dilution-to-threshold” meaning it is not so much a measurement of odor as it is an indication of the relative strength of the odor.  The first number is the amount of clean air that would be necessary to dilute the odor to a non-detect level.  The higher the first number of the D/T ratio the stronger the odor. A 7:1 D/T equates to an odor of such strength that seven parts of clean air are required to acceptably dilute one part of odorous air.  Said another way for comparison, a 7:1 D/T allows more odor than a 4:1 ratio and less odor than a 15:1 ratio. 
 
Odor verifications at a cannabis site are typically conducted by two trained Cannabis Task Force staff. Using the Nasal Ranger, each staff person will take turns taking odor readings at locations along the perimeter of the cannabis cultivation property line, toward the direction of the reported odor complaint. The measurements at each monitoring location are separated by approximately 15 minutes.  This odor verification process is used to document complaints, and ultimately determine whether or not an odor nuisance exists.
 
Upon determination of a nuisance odor, the County will initiate a three-level correction system consisting of the following:
  • Alert
  • Warning citation
  • Notice of Violation followed by abatement which could include suspension, revocation, or modification of the Cannabis Use Permit
 Through the enforcement process under the CLUO, the County will be able to require modification to, suspension of, and/or revocation of cannabis use permits, if a public nuisance is not resolved.
 
Security 8-2.1408(LL) – This section is proposed to be moved to the Licensing Ordinance.  A requirement will be added that security staff be professionally trained and licensed.
 
Setbacks  8-2.1408(MM) – The staff has proposed that all setbacks be as established for each zone category, and that all buffers be as established in 8-2.1408(E) summarized above.  The Planning Commission has recommended that setbacks for cannabis greenhouses in an Agricultural zone be 100- feet.
 
Section 8-2.1409, Special Cannabis Restrictions and Concerns: This section identifies and discloses restrictions and concerns unique to cannabis, including the current federal framework, the potential for changes in the regulatory environment at all levels, and limitations on County liability.
 
Section 8-2.1410, Application Submittal and Processing: This section identifies information required as a part of a cannabis use permit application, that is specific to the proposed site and operation. It establishes general code compliance requirements and identifies use permit requirements specific to cannabis applications. It also discloses the intent to achieve project-specific CEQA coverage from the programmatic EIR by utilizing available CEQA streamlining opportunities.  It includes a proposed 1,000-foot radius for public noticing of cannabis use permits, similar to County practice for other zoning entitlements and permits.  State law requires a minimum of 300 feet.
 
Section 8-2.1411, Reporting and Inspections: This section identifies annual reporting and inspection requirements, and describes how that information will be presented to the Planning Commission and Board of Supervisors.
 
Section 8-2.1412, Enforcement: This section describes the enforcement process and related topics, including revocation, enforcement, and site restoration. 
 
Section 8-2.1413, Effectiveness. This section identifies a required evaluation of the effectiveness of the ordinance.  The staff had proposed that such an assessment occur no later than five years from the effective date of the ordinance to allow for implementation.  The Planning Commission recommended the assessment occur every two years and the staff concurs.
 
3. Summary Of All Proposed Regulatory Changes:
Adoption of the Draft CLUO will require the following actions by the Board of Supervisors.  These actions will be before the Board for consideration at the hearing scheduled for February 23, 2021. 
  • Adoption of a Resolution certifying the CLUO Final EIR as complete and adequate under CEQA, and allowing for potential future CEQA streamlining by cannabis use permit applicants.
  • Adoption of a Resolution amending the General Plan to revise the text of Policy LU-1.1 and Table LU-4, modify Policies LU-2.3 and AG-1.3, and add new Policies LU 1.4 and AG-3.21.  This Resolution would also adopt the CLUO EIR Mitigation Monitoring and Reporting Program (MMRP).  
  • Adopt an Ordinance approving the CLUO by amending the County Code to add Article 14 (Cannabis Land Use Ordinance) to Chapter 2, Zoning Regulations, of Title 8.
  • Approve an Ordinance amending the Subdivision Regulations in Section 8-1.802 (Streets) of the County Code to comport to CLUO Section 8-2.1408(K) (Driveway Access) to include standards related to access for new private driveways and encroachments.
  • Approve an Ordinance making two additional amendments to the County Zoning Regulations to comport to the CLUO by eliminating Section 8-2.116 which prohibits medical marijuana dispensaries and by amending Section 8-2.217 (Use Permits) to clarify and expand the process for revocation or modification of a use permit.
 Following adoption of the CLUO, two additional clean up actions will be brought forward to the Board of Supervisors as soon as feasible:
  • Adoption of amendments to replace the County Marijuana Cultivation Ordinance (Chapter 20 of Title 5) with a new Chapter 4 (Cannabis Licenses) in Title 12 (Business Licenses) to comport the licensing requirements to the adopted CLUO, recognize new license types, and make other regulatory clarifications.
  • Adoption of additional “clean up“ amendments to the County Zoning Regulations to add allowed cannabis use types to each zone district table of permit and development requirements.
4. Environmental Impact Analysis:
The CLUO EIR analyzes five “equal weight” CEQA alternatives (see Attachment C) which are essentially different variations of the Draft CLUO.  Each of these alternatives assumes the same underlying regulatory requirements related to land use, zoning, and development standards. The alternatives vary based primarily on allowed cannabis license types, assumed numbers of operations, allowed location based on zoning, controls on over-concentration, and required buffers from identified sensitive uses.  The alternatives are:
 
Alternative 1: Cultivation (Ancillary Nurseries and Processing Only) with Existing Limits (Existing Operations with CLUO) (CEQA Preferred Alternative) – 78 licenses
 
Alternative 2: All License Types with Moderate Limits – 132 licenses.  Overall, the recommendations of the staff and the Planning Commission are most similar to this alternative.
 
Alternative 3: All License Types with High Limits – 264 licenses
 
Alternative 4: Mixed-Light/Indoor License Types Only with Moderate Limits, No Hoop Houses or Outdoor Types – 132 licenses
 
Alternative 5: All License Types with Moderate Limits, Within Agricultural Zones Only, No Retail – 130 licenses
 
The Draft EIR was released October 25, 2019 for a 60-day comment period that concluded December 23, 2019.  The Planning Commission received a presentation on the Draft EIR on December 3, 2019, received verbal comments from interested parties, and provided individual Commission comments on the Draft EIR at that time.  The record of that meeting is identified as Letter 12 in the Final EIR.  
 
The County received 78 comment letters in total, including seven letters received after the deadline.  The 78 comment letters contained approximately 955 individual comments for which the County provided individual responses in the Final EIR.  Approximately 685 comments (72 percent) were specific to the Draft CLUO (or related non-EIR matters) and approximately 270 comments (28 percent) were about the EIR and/or CEQA process. 
 
The Final EIR was released September 1, 2020.  It includes responses to comments received on the DEIR;  revisions to the Draft EIR; a Mitigation Monitoring and Reporting Program (MMRP); a revised corrected table of impacts and mitigation measures; and other relevant information.  The Final EIR includes 17 “master responses” which provide more comprehensive responses to issues raised by multiple commenters.  These are as follows:
 
Master Response 1: No Project Alternative and No Cannabis Alternative
Master Response 2: Baseline Conditions Used in the Draft EIR
Master Response 3: Range of Alternatives Evaluated in the Draft EIR
Master Response 4: CEQA Alternatives and County Decision-Making
Master Response 5: Cannabis as an Agricultural Crop
Master Response 6: Economic Effects and Property Values
Master Response 7: Code Enforcement and Crime
Master Response 8: Marijuana and Hemp
Master Response 9: Buffers
Master Response 10: CUP Process and Overconcentration
Master Response 11: Cultural Change
Master Response 12: Expression of Opinion/Preference
Master Response 13: Cannabis Tax Revenue
Master Response 14: County Cannabis Disclosures
Master Response 15: Traffic Analysis
Master Response 16: Cannabis Licensing Program
Master Response 17: Consolidated Cannabis Campus
 
5. Key CLUO Issues:
Throughout the process of drafting and refining the CLUO, a handful of key issues emerged over which opinions diverged, sometimes significantly, whereas consensus has generally been achieved for other components of the ordinance.  These key issues are as follows:
  1. Base EIR Alternative – The Draft CLUO recommended by staff, and ultimately supported by the Planning Commission, is most similar to EIR Alternative 2,“All License Types with Moderate Limits”.
  1. Range of Cannabis Uses – The Draft CLUO would allow the following new cannabis land uses in addition to cultivation (Section 8-2.1405): manufacturing, testing, processing, nursery, distribution, retail, and microbusiness.  This same range of uses was assumed in EIR Alternative 2.  The staff recommendation and Planning Commission recommendation were ultimately in agreement in support of all use types, with one exception.  The Commission did not support Retail-Storefront.
  1. Allowed Location -- The Draft CLUO would allow the same types of cannabis uses in the same zoning districts as assumed for EIR Alternative 2,  including prohibitions on commercial cannabis uses in all Residential zones (Section 8-2.1407).  The staff and Planning Commission were ultimately in agreement on allowed location by use type.
  1. Use Permit Cap – The Draft CLUO would limit the number of cannabis use permits to 132 total (Section 8-2.1406(G)) which is consistent with the cap assumed under EIR Alternative 2.  The staff and Planning Commission were ultimately in agreement on the recommended total number of allowed cannabis use permits.
  1. License Type Cap -- The Draft CLUO would establish generally lower caps on specified cannabis activities by land use/cannabis license type (Section 8-2.1406(G)) than the range of allowed uses analyzed in the CLUO Final EIR between Alternatives 2 through 5.  The  Draft CLUO is most similar to EIR Alternative 2.  The differences between the Draft CLUO and EIR Alternative 2 reflect market and policy considerations and would have no material effect on, or arguably reduce, the impact conclusions of the EIR because they fall within the magnitude and range of impacts analyzed in the equal weight analysis of the five alternatives.  The staff and Planning Commission were ultimately in agreement regarding proposed license type caps, which are provided above under the summary of Section 8-2.1406 of the Draft CLUO.   
  1. Buffers -- With the exception of buffers for tribal trust lands, the staff recommends buffers of 200 feet and 600 feet, which are smaller than what was assumed in EIR Alternative 2 (Section 8-2.1408(E)).  The Planning Commission recommended buffers of 1,000 feet for residences which is more closely aligned with EIR Alternative 2.  EIR Alternative 2 assumed 1,000-foot buffers for all identified sensitive land uses.  The staff and Planning Commission buffer recommendations are described further below.
  1. Over-Concentration Threshold -- The Draft CLUO would establish the threshold for over-concentration as more than ten cannabis operations in any 6-mile diameter area throughout the unincorporated County (Section 8-2.1406(H)).  EIR Alternative 2 assumed controls on over-concentration would be established but did not identify specific thresholds.  The threshold included in the Draft CLUO is consistent with the CLUO Final EIR analysis, incorporates Mitigation Measure OVC-1(a-c), and was supported by both staff and the Planning Commission.
  1. Personal Use – Under state law personal cultivation of six of fewer plants grown indoors is allowed by right in any residence in any zone with no license or permit.  This personal use exemption is restricted to cultivation only, no sales or other uses are allowed. The Draft CLUO expands this right to include outdoor cultivation with no buffers.  However, other standards in the Draft CLUO (such as odor control and nuisance) would apply.  The staff and Planning Commission were in agreement regarding personal use regulations.
 
6. Recommendations of Citizens Advisory Committees and Yocha Dehe Wintun Nation:
The County’s Citizen Advisory Committees (CACs) met to discuss the Draft CLUO, provide comments, and make final recommendations:
 
Capay Valley CAC             February 5 and 26, 2020
Clarksburg CAC                 February 13, 2020
Esparto/Madison CAC       February 18, 2020 (joint)
Dunnigan CAC                   February 19, 2020
South Davis CAC               February 20 and March 5, 2020
 
Each CAC was asked to weigh in on the same list of key issues described above: recommended “base” alternative; the range of cannabis uses that should be allowed; the allowed location for various uses; appropriate caps on use permits and types; appropriate buffers; thresholds for over-concentration; and any other relevant points the CAC wanted to make.  A summary of input received from each CAC is provided in Attachment D. 
 
The Yocha Dehe Wintun Nation (YDWN) also met with County staff and provided input on the Draft CLUO.  The recommendations from YDWN are included in Attachment D.  The YDWN submitted a comment letter on the Draft EIR (Letter 17) and several additional letters to the Planning Commission which were considered during their deliberations.    

7. Recommendation of the Planning Commission:
On December 10, 2020, the Planning Commission unanimously approved a recommendation to the Board to certify the Final EIR, adopt the related general plan text amendments and CEQA Mitigation Monitoring and Reporting Program (MMRP), adopt the CLUO, and adopt various amendments to other sections of the County Code.  Related to adoption of the CLUO, the Planning Commission recommendation differed from the staff recommendation in several areas, and there were several actions of the Commission that were not unanimous and of which the Commission wanted the Board to be aware.  A summary of those items is provided below:
  • Assessment of program effectiveness every two years, VOTE: 7:0
  • Prohibition of Retail Storefront license type, VOTE: 7:0
  • Unlimited cap on the number of Retail Non-Storefront licenses, VOTE: 4:3 (Campbell, Dudley, Muller voting no)
  • 100-foot setback for cannabis greenhouses in an Agricultural zone, VOTE 7:0
  • Accept the proposed buffers for non-residential identified sensitive uses as shown in the Draft CLUO, VOTE: 5:2 (Dudley and Muller voting no)
  • 1,000-foot buffer from all residences in an Agricultural zone, VOTE 6:1 (Dubin voting no)
  • Addition of Buffer Easements to the CLUO, VOTE: 7:0
  • 1,000-foot buffer from Residential zoning, VOTE 7:0 (Dubin voted yes to make consistent with Ag zone buffer)
 With regard to allowing Retail Storefront uses, setbacks from cannabis greenhouses, buffers from residential uses, and buffer easements, the staff recommendation and the Planning Commission recommendation are materially different.  More information regarding those differences is provided below.
 
8. Retail Storefront Uses:
The state cannabis licensing system recognizes two types of retail uses:  storefront (dispensaries) and non-storefront (delivery services).  The difference is essentially whether a customer travels to a physical store location to make a purchase or the cannabis is delivered to the customer at their location for sale. Both are highly regulated by Bureau of Cannabis Control including hours of operation, identification requirements, packaging and labeling, shipments, inventory, and records. The staff recommended that both use types be allowed and recommended a cap of five Retail-Storefront licenses and unlimited number of Retail-Non-Storefront.  The reasons for this include support for all facets of the cannabis industry, convenience for local residents, and realization of tax revenues from sales.
 
In the Draft CLUO, Retail Storefront would be allowed (with a use permit) in any Commercial and Industrial zone.  Retail Non-Storefront would be allowed (with a use permit) in General Commercial and Highway Services Commercial zones only (not in Local Commercial or Mixed-Use zones), any Industrial zone, and any Agricultural zone. Retail Non-Storefront delivery operations originating from outside the County would not require a County cannabis use permit; however pursuant to Section 8-2.1408(I) of the Draft CLUO, the operator would be required to obtain a business license.  The staff acknowledges that identifying delivery business originating from outside the County will likely be challenging.
 
Under state law, retail delivery properly licensed by a jurisdiction may deliver in any jurisdiction.  A jurisdiction may preclude retail delivery, subject to local enforcement.  If the County does not allow retail uses, it will derive no tax benefits from those sales – the point of sale will occur outside the County even if the delivery occurs inside the County.
 
The Planning Commission recommendation differed with the staff recommendation solely as related to Retail-Storefront.  The Commission did not agree that this was a compatible use in the County and felt it was better suited to urban areas.  As a result the Planning Commission recommendation was to prohibit Retail-Storefront licenses.
 
Of the four Yolo County cities, Davis, West Sacramento, and Woodland allow cannabis activities; Winters does not.  Davis is the only Yolo city that allows retail cannabis uses.  It has five approved dispensaries and another four delivery-only businesses.  Of the jurisdictions adjoining, and potentially serving Yolo,  the cities of Dixon and Sacramento allow retail cannabis, including delivery.
 
9. Cannabis Greenhouse Setbacks:
Section 8-2.305 of the County Code (Zoning Regulations) establishes setbacks in the Agricultural zones of 20 feet on the front and side, and 25 feet in the rear.  Staff applies these setbacks to cannabis greenhouses.  With respect to cannabis uses, the staff has recommended no changes to setbacks established for each zone in the zoning code.  Staff felt the existing setbacks, in conjunction with the rigorous requirements of the Draft CLUO, were adequate to address potential externalities associated with cannabis greenhouses.   The Planning Commission felt that the existing setbacks would not be adequate to provide appropriate protections.  In consideration of this, the Planning Commission has recommended that setbacks for cannabis greenhouses be increased to 100 feet on all sides.  This represents a five-fold increase or more compared to existing requirements.  Of the 48 operating licensees, ten licensees have a total of approximately 28 approved cannabis greenhouses.  Preliminary analysis indicates that 15 or more approved cannabis greenhouses may become “nonconforming” as a result of this change.
 
10. Buffers from Residential Uses:
The Planning Commission recommendation differs from the staff recommendation with respect to  buffers from residences.  For all other identified sensitive uses, the Planning Commission supported the staff recommendation. 
 
The table below summarizes the differences between the staff recommendation and the Planning Commission recommendation related to buffers for residences:
 
Identified Sensitive Use Staff Recommended Buffer Planning Commission Recommended Buffer
Residence on Agricultural zoned parcel > 20 acres (farm dwelling on large parcel) 200 feet measured from residence 1,000 feet measured from residence
Residence on Agricultural zoned parcel < 20 acres (farm dwelling on small parcel) 600 feet measured from parcel line
Residence on Residential zoned parcel 600 feet measured from the zone boundary 1,000 feet measured from the zone boundary
 
In making this recommendation regarding buffers the staff balanced the following considerations:
  • The state-established default buffer is 600 feet from schools, day cares, and youth centers (Section 26054(b) of the State Business and Professions Code).  This buffer would apply unless a local jurisdiction has identified alternative buffers. The state buffer does not apply to residential uses.
  • The buffers in the County’s licensing ordinance are 75 feet from any residences in any zone measured from the residence, and 1,000 feet for other identified sensitive uses measured from the parcel.
  • The CAC recommendations were primarily in support of 1,000 foot buffers for all identified sensitive uses, including residences in any zone (see Attachment D).
  • Residential buffers in other counties that allow outdoor cultivation, are primarily under 600 feet, with 12 of 17 at or under 400 feet, and four counties with no residential buffers at all (see Attachment E).
  • Odor analysis modeling conducted by Trinity Consultants indicates that the difference between no buffer and 500 feet is substantial in terms of odor control (see Appendix E of the Final EIR volume).  It also indicates that increasing the buffer from 500 to 1,000 feet gets about half again the gains; and from 1,000 to 1,500 feet, the gains are dramatically diminished.  This suggests that the optimum distance for buffers is somewhere between 500 and 1,000 feet. 
  • Preliminary GIS modeling, looking solely at buffers and based on gross assumptions regarding site boundaries, indicates that of the 48 currently operating cultivation licensees:
  • Approximately 48 percent could potentially fail or have to relocate on-site under a 600-foot buffer measured from any residence in any zone. 
  • Approximately 52 percent could potentially fail or have to relocate on-site under the staff proposed buffers.
  • Approximately 67 percent could potentially fail or have to relocate on-site under a 1,000-foot buffer measured from any residence in any zone.  This is most similar to the Planning Commission recommendation. 
  • Approximately 81 percent could potentially fail or have to relocate on-site under a 600-foot buffer measured from the parcel line of any residence in any zone. 
  • Approximately 100 percent could potentially fail or have to relocate on-site under a 1,000-foot buffer measured from the parcel line of any residence in any zone. 
As discussed in Master Response 9 (Buffers) on page 3-20 of the Final EIR volume, buffer distance can have a notable effect on the location of cannabis operations. One square acre of cannabis would have dimensions of approximately 208 feet by 208 feet. Rounding these to 200 x 200 for quick analysis purposes, a required buffer of 1,000 feet from the property line of a neighboring parcel would require an area totaling 121 acres, assuming the cannabis cultivation is centered on a square parcel. A required buffer of 500 feet would extend over an area totaling 36 acres, assuming again that the cannabis use was centered in the middle.  In other words, cutting the buffer in half reduced the required land area by almost 70 percent.  Table 3-2 below from the Final EIR Table 3-2 reflects the approximate extent of the buffer area for various buffer distances.
 
FEIR Table 3-2, Land Area Impacted by Buffer Distances
Buffer Distance Affected Area1
2,000 feet ±256 acres
1,000 feet ±121 acres
700 feet ±64 acres
500 feet ±36 acres
200 feet ±9 acres
75 feet 2 to 3 acres
+Notes: 1 Surrounding a 1-acre-square cultivation site.
 
11. Buffer Easements:
Comments have been received and discussion has occurred throughout the process in favor of flexibility regarding, and potentially exemptions to, buffers for existing operating cannabis licensees.  To address this concern, the Planning Commission recommended the use of “buffer easements” which would allow smaller buffers provided an easement agreement is executed between an operator and all affected neighbors.  This concept is reflected in Section 8-2.1408(E) of Attachment A (see footnote 6).
 
If this concept is embraced by the Board, staff recommended considerations include: use of a standardized agreement template for equity and fairness; definition of the externalities intended to be covered by (and excluded from) the easement such as odor, noise, light, etc.; clarity regarding enforcement within buffer easement areas; clarity regarding determinations of nuisance within the easement; requirements that the easement be recorded against all affected properties; and protections against coercion. 
 
Similar to language included in the Draft CLUO for odor easements, appropriate language would be included in Section 8-2.1408(E) indicating that on a case-by-case basis, at the discretion of the County, in conjunction with consideration of a Cannabis Use Permit or Cannabis Use Permit amendment, buffer easements on neighboring property(ies) could be considered as an alternative to compliance with the identified required buffers.  The easement would need to be in effect so long as the Cannabis Use Permit is in effect, and would need to be recorded on the deed(s) for the affected property(ies) using a template approved by the County. 
 
As noted earlier, the staff recommendation regarding buffers seeks to balance applicable facts, science, state guidance, common practice, and County policy regarding agricultural preservation. The staff did not recommend the use of buffer easements or other outright exemptions from buffers for a number of reasons:  
  • All licensees were notified throughout the process, and in particular prior to securing building permit approvals for capital improvements to their existing operations, that compliance with future regulations would be required.  They were all required to sign a waiver acknowledging this disclosure. 
  • The Draft CLUO allows for reduction of buffers of up to ten percent of the required distance, at the discretion of the County, based on consideration of project-specific conditions (Section 8-2-1408(E))
  • The staff recommended buffers are graduated to provide greater protections for residences on smaller agricultural properties that are less likely to be involved in intensive agricultural activity.
  • The Draft CLUO allows neighbors to agree to accept odorous conditions on their property by agreeing to an odor easement (Section 8-2.1408(DD)(3)).  Odor easements provide an alternative to compliance with the identified odor threshold.
  • As a matter of equity and fairness, staff believes equal buffers for all operators throughout the unincorporated County are important.
  • Staff is concerned that the complexities of maintaining buffer agreements will be challenging.
 
12. Next Steps:
The following three meetings have been scheduled for consideration of the CLUO:
 
January 19, 2021               Board of Supervisors Workshop
February 23, 2021            Board of Supervisors Hearing and Tentative Decision
March 9, 2021                    Board of Supervisors Meeting and Final Decision
 
If a final decision on the CLUO is made at the March 9th meeting, the ordinance would become effective April 9th.  Staff work on implementation and application processing procedures would begin immediately after the March decision with the goal of accepting applications after a set date, as soon as possible.
 
Examples of important procedures to have in place for a regulatory transition of this magnitude include:  an application package; format requirements for exhibits; step-by-step instructions for applicants; format requirements for project descriptions and technical studies; fee schedule; complete application checklist; CEQA compliance checklist; application routing procedures; templates for review letters and requests for information; CLUO compliance checklist; CLUO findings checklist; and standard conditions of approval, among other items.
 
Examples of resources that will be needed include:  staff and contract staff; on-call CEQA consultants; on-call technical consultants; county project management team; internal application review procedures; and the possibility of greater frequency for Commission meetings.
 
A likely process would involve processing manageable “batches” of 10-14 applications using a staggered schedule starting with the 48 operating licensees.  For the limited non-cultivation licenses a lottery or some other process for allocation will be necessary if demand exceeds the number of licenses allowed.  The optimum point for that step is likely after the processing of the CUP applications for the operating licensees, which is when the complete pool of eligible permittees and the demand for each non-cultivation license type would be known. 
 
Attachments:
A – January 2021 Draft CLUO
B – CLUO Guiding Principles
C – CLUO EIR Alternatives
D – Summary of CAC Recommendations
E – County Buffer Summary Table
F – Cannabis Use Type Definitions
Collaborations (including Board advisory groups and external partner agencies)
Staff has completed extensive public and industry outreach over a four year period, including:
 
  • 2017: Ten public outreach meetings were held with residents, property owners, and cultivators to obtain comments on what should be included in the ordinance.
  • 2018: Twelve public outreach meetings were held in numerous locations within the County with residents, property owners, citizen advisory committees, and cultivators to obtain public input on the CLUO. Two Planning Commission meetings were also held.
  • 2019: The County released a CLUO Guide to Citizen Participation and held fourteen outreach meetings throughout the County to summarize and answer questions about the Draft CLUO and Draft EIR. Several of the meetings were held with Citizen Advisory Committees which provided their recommendations regarding the CLUO.
  • 2020: A Planning Commission Workshop was held September 2020, and two hearings followed in November and December 2020.
     
Interdepartmental coordination and collaboration continues with the County Administrators Office, Sheriff's Office, County Counsel, Department of Financial Services, and the Department of Agriculture/Weights & Measures.

Fiscal Information
No Fiscal Impact
Fiscal Impact of this Expenditure
Total cost of recommended action $0
Amount budgeted for expenditure
Additional expenditure authority needed $0
On-going commitment (annual cost)
Source of Funds for this Expenditure
General Fund $0
Further explanation as needed
The cost of implementing the recommended action will be funded by applicant and licensee fees. 
Attachments
Att. A. Draft CLUO Jan 2021
Att. B. Guiding Principles
Att. C. CLUO EIR Alternatives
Att. D. CAC Recommendations Summary
Att. E. Buffer Summary Table
Att. F. Use Type Definitions
Att. G. Presentation

Form Review
Inbox Reviewed By Date
Eric May Eric May 01/11/2021 10:15 AM
Taro Echiburu Taro Echiburu 01/11/2021 06:57 PM
Charlie Tschudin Charlie Tschudin 01/12/2021 10:16 AM
Form Started By: Leslie Lindbo Started On: 01/11/2021 05:30 AM
Final Approval Date: 01/12/2021
Level double AA conformance,
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