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Regular-General Government # 31.
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| Board of Supervisors |
County Counsel |
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| Subject |
| Waive second reading and consider adoption of an ordinance amending Chapter 20 to Title 5 of the Yolo County Code regulating medical marijuana cultivation in the unincorporated area of Yolo County to slightly broaden the exception to the cultivation prohibition, provide an appeals process for those denied a license to cultivate medical marijuana by permit and to add a 1,000 foot outdoor cultivation setback from tribal lands. (No general fund impact) (Nunes/Tengolics) |
| Recommended Action |
| Waive second reading and consider adoption of an ordinance amending Chapter 20 to Title 5 of the Yolo County Code regulating medical marijuana cultivation in the unincorporated area of Yolo County to slightly broaden the exception to the cultivation prohibition, provide an appeals process for those denied a license to cultivate medical marijuana by permit and to add a 1,000 foot outdoor cultivation setback from tribal lands. |
| Strategic Plan Goal(s) |
Operational Excellence
Thriving Residents
Safe Communities
Sustainable Environment
Flourishing Agriculture |
| Reason for Recommended Action/Background |
On November 22, 2016, the Board adopted revisions to Yolo County's interim medical marijuana cultivation ordinance banning cultivation of medical marijuana in Yolo County while grandfathering in those currently legally operating and those in the process of getting licensed. At that meeting, the Board requested certain additional revisions to the interim ordinance and the purpose of this amendment is simply to make those limited revisions. The revisions include:
- Broadening the exception to the cultivation prohibition by including those who have a fully executed purchase and sale agreement for the purchase of the real property on which they will cultivate medical marijuana
- Providing an appeals process for those denied a business license to cultivate medical marijuana by permit
- Adding a 1,000 foot outdoor cultivation setback from tribal lands
- Clarifying that County Code should not be construed to conflict with the Control, Regulate and Tax Adult Use of Marijuana Act of 2016
The Board has previously recognized and protected the efforts of those who have taken significant steps towards cultivating medical marijuana legally under County Code by exempting them from the ban on cultivation. The addition of a 1,000 foot setback from tribal lands would affect approximately three of those cultivators. Accordingly, the proposed ordinance, as drafted for the Board's consideration, is prospective in application only and exempts both patients and those cultivators who are otherwise exempt from the ban from the tribal lands setback. And of course, it applies only to outdoor cultivation.
Since the introduction of this ordinance on December 13, 2016, County staff have received several questions from the public regarding the legality of the proposed buffer from tribal trust and fee lands. The Tribe requested the proposed buffer to ensure the continued use and enjoyment of tribal lands is not impaired by nearby outdoor medical cannabis cultivation. This is a valid basis for County regulation and, as explained further below, the buffer is neither arbitrary nor unreasonable.
State law provides some examples of similar efforts to protect tribal interests, including laws that require state agencies and local governments to consider impacts to tribal lands, economic development opportunities and related matters in the course of performing their governmental functions. (E.g., Pub. Resources Code § 25333, Gov. Code §§ 11019.8, 65351-65352.4.). The California Attorney General has also opined that the California Department of Transportation can promote tribal economic development and self-sufficiency by extending hiring preferences to Native American workers for state highway projects on and near tribal lands, even though the work occurs entirely within state rights-of-way. (93 Ops. Cal. Atty. Gen. 2010 (March 8, 2010).) Further, in a similar government-to-government context, the County has adopted many ordinances and policies that afford special treatment to lands near city boundaries and spheres of influence. (Yolo County General Plan Policies LU-2.1, LU-2.4; Yolo County Code Section 8-2.404(d)(2)(i)(B).) Taking a comparable approach to lands owned by a quasi-sovereign entity such as Yocha Dehe in the very limited context of outdoor cultivation of medical cannabis is thus legally appropriate and supported by ample precedent.
Finally, questions regarding the legal and policy justification for the buffer must be considered with the understanding that (as noted above) the buffer applies to activities that are already illegal under the Yolo County Code, subject only to limited exceptions that are preserved in the buffer ordinance. The buffer thus has no present effect on the rights of those that own or lease land within its boundaries, and it will become legally relevant only if the prohibition established by the interim ordinance is relaxed in the future. Also, like all elements of any ordinance that eventually (in mid- or late- 2017) replaces the interim ordinance, the buffer will be fully reevaluated by the Planning Commission and the Board of Supervisors in public hearings if it is included in that ordinance for consideration.
Attachment A is the draft amended ordinance, revised as directed by the Board at the first reading of the ordinance on December 13, 2016. Today's second reading is an opportunity for the public to provide input to the Board on these changes prior to adoption of the ordinance.
As requested at the December 13 meeting, staff will bring back an ordinance to implement a ban on non-medical marijuana commercial activities. While commercial activities of non-medical marijuana, including cultivation, is not currently legal under State law, with the passage of Proposition 64, the Adult Use of Marijuana Act, it will become legal in January of 2018 absent local regulations prohibiting such activity. |
| Collaborations (including Board advisory groups and external partner agencies) |
| Agriculture, County Administrator, County Counsel, Sheriff's Office, District Attorney, Community Services |
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| Fiscal Impact |
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