On January 9, 2018, the Board approved a three-pronged strategy for the County’s cannabis program. Although complementary and part of an integrated program approach, each strategy will operate on its own timeline. The updated schedule for the comprehensive cannabis program is listed below. The schedule is also included in Attachment A.
- June 2018 Tax Measure (Status: Board action on amended tax ordinance and resolution and Board direction on the composition of the Citizen’s Oversight Committee and scope of authority - Complete; Board action on resolution creating a Citizen’s Oversight Committee -TBD);
- Development Agreements (Status: Letters of Intent deadline April 6, 2018 - Complete; Applications due May 18, 2018. Please note staff recommendation below regarding changes to the application filing deadlines);
- Development of the CLUO (Status: Present first draft of the CLUO to the Board, April 24, 2018; Citizen Advisory Committee and Planning Commission meetings on the first draft of the CLUO May; Board of Supervisors meeting on CLUO June 2018. The schedule for the remainder of the development of the CLUO and CEQA PEIR schedule is included in Attachment A.)
The focus of this staff report pertains to the Early Implementation Development Agreement program and CLUO.
Early Implementation Development Agreements
On March 6, 2018, the Board approved the Early Implementation Development Agreement (“Early DA”) policy for capital intensive cannabis projects. The policy required eligible applicants to submit a Letter of Intent by 4:00 p.m. on April 6, 2018. The Letter of Intent was to include a demonstration of eligibility and a summary of the information required pursuant to County Code Section 8.5-201 Development Agreements. Among other things, the Code requires a general description of the public benefits to be derived as a result of the applicant’s project.
As of the April 6 deadline, the County received 30 Letters of Intent. Staff is now in the process of reviewing the letters and determining if they contain the required information pursuant to the policy. Once a letter is deemed complete, staff holds a pre-application meeting with the applicant to discuss the applicant’s proposed project, the Early DA application and process, additional information, such as the tribal consultation required under California law (AB 52) and any other permit applications necessary for a full Development Agreement application.
It is important to note that many of the Letters of Intent received propose activities that are inconsistent with the cannabis Interim Ordinance. Staff is still reviewing the Letters of Intent, but have initially found that the inconsistencies include:
- Cultivation, processing, manufacturing, distribution, microbusiness licenses for recreational cannabis; and
- The issuance of additional cultivation licenses to increase cultivation acreage in excess of one acre.
Staff recommends that it continue processing the Letters of Intent and holding pre-application meetings with the Applicants in order to fully understand their proposals and discuss the Development Agreement process. However, to address the inconsistencies with the Interim Ordinance, staff recommends that a workshop be held in June to obtain Board direction on the items listed above, as well as any others discovered through continued review and discussion. Applicants with complete Letters of Intent, which are consistent with the Interim Ordinance, could continue with the Early DA application process. However, for those proposed projects which are not consistent, filing of the applications would be postponed until after the Board provides direction at the workshop. Staff would discuss Interim Ordinance consistency with applicants at their pre-application meeting.
Proposed Early Implementation Development Agreement Policy Changes
Given the number of Letters of Intent received and the time required to process them, staff recommends that the May 18, 2018 Development Agreement application deadline specified in the Early DA policy be pushed out. The current May 18, 2018 deadline will not provide enough time for staff to identify and applicants to address incomplete Letters of Intent, hold the pre-application meetings, and have sufficient time to prepare their applications. Staff proposes that the application deadline be modified to require applications be filed by May 18, 2018 or 30 days after the pre-application meeting with staff, whichever is later. The application filing deadline for proposed projects which are not consistent with the Interim Ordinance is proposed to be within 30 days after the Board of Supervisors concludes the public workshop discussed above.
In addition, staff recommends adding to the policy a May 18, 2018 deadline for applicants to submit complete Letters of Intent. Those applicants whose Letters of Intent have not been deemed complete by that date will be precluded from filing an Early DA application. This deadline is necessary to ensure applicants act expeditiously to address deficiencies. Without a deadline, staff is concerned that Letter of Intent deficiencies will linger and require the diversion of staff resources on an ongoing basis, jeopardizing the timeframe for other cannabis program items such as completing the CLUO.
A revised Early DA policy reflecting the modified application filing deadlines and the deadline to complete Letters of Intent is included in Attachment B.
Cannabis Land Use Ordinance
Overview
The following four issues require Board consideration and direction. These issues are briefly summarized in this Overview and are explained in more detail in the following sections.
First, in action taken March 6, 2018 the Board authorized staff to proceed with five identified PEIR Alternatives (see Attachment C, Ordinance/PEIR Alternatives). Based on new information resulting from subsequent analysis, we have determined that the buffer assumption in three of those alternatives could render a substantial number (as specified below) of the current cannabis licensees unable to qualify for a cannabis use permit. In order to provide a more expansive PEIR analysis and preserve decision-making flexibility for the Board when a final CLUO is approved next year, we are recommending a modification to the assumed buffer distance in one of the alternatives.
Second, in order to commence with drafting of the PEIR, we are also requesting the Board identify one PEIR Alternative as the “preferred alternative” for CEQA purposes only. This is explained in more detail below.
Third, in action taken March 20, 2018 the Board directed staff to move forward with the drafting of the CLUO following the outline and approach discussed at that meeting. Provided below is an overview on the proposed first draft of the CLUO. Staff is seeking initial input from the Board on the CLUO prior to undertaking public outreach including workshops before the Citizens Advisory Committees (CACs) and Planning Commission.
Fourth and finally, staff will return to the Board in June with an overview of the input received on the first draft of the ordinance and recommendations for any subsequent changes for the next draft of the ordinance.
Details for each of these items is provided below.
Interim Analysis of 1,000-foot Buffer
On March 6th the Board authorized the use of five PEIR Alternatives. One of the variables that differentiated these alternatives is the assumption regarding buffers from identified sensitive uses which are comprised of occupied residences located on a separate parcel, youth-oriented facilities, schools, school bus stops, parks, churches, residential treatment facilities or federal lands held in trust by the federal government, or that is the subject of a trust application, for a federally recognized tribal government. Alternatives 2, 3, and 5 assume 1,000-foot buffers. Alternative 1 assumes 75-foot buffers from individual residences and 1,000 feet from the other uses. Alternative 4 assumes 600-foot buffers from schools, day cares, and youth centers required by the State CDFA Emergency Regulations Section 8102(w).
Subsequent to the Board’s March 6th direction regarding the five PEIR Alternatives, staff collected and analyzed data related to the specific cultivation site location of all existing cannabis licensees, including calculation of 1,000-foot buffers assumed in Alternatives 2, 3, and 5. The results show that of the 72 cannabis licensees, 52 of them (or 72 percent) would fail to achieve the required 1,000-foot spacing from these uses. While this outcome may ultimately be acceptable as a policy decision, in order to analyze a broader range of potential impacts as part of the PEIR and provide the Board with greater decision-making ability ultimately, we are recommending that the buffer assumptions for Alternative 3 be modified to 75-feet for all of the identified sensitive uses.
Identification of a Preferred Alternative for the PEIR
Based on recent case law (Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277), the Board must identify one of the PEIR Alternatives as the “preferred alternative” for the purposes of the CEQA analysis. The PEIR Alternatives are included in Attachment C. This technical requirement has little significance in the context of a PEIR that, as the Board has previously directed, will provide an “equal weight” analysis of all included project alternatives. Nonetheless, this is exactly what the recent decision requires. It is important to note that this will not restrict the Board’s ability to adopt a different alternative, or combination of alternatives, as the final CLUO, so long as the PEIR covers a sufficiently broad analysis to properly disclose the potentially adverse impacts of the combination of decisions ultimately made by the Board.
Staff recommends the Board identify Alternative 2, All License Types With Moderate Limits as the preferred alternative. Alternative 2 includes:
- All license types
- Moderate limits on the number of licenses to be issued per license type
- Licensed activities allowed in Agriculture, Industrial, and Commercial General and Highway zones, depending on activity
- Control of over-concentration assumed
- Adult (recreational) use assumed
- 1,000-buffers assumed for residences and other sensitive uses
This Alternative reflects the broadest range of cannabis uses, modest assumptions for numbers of operations, a full range of appropriate zone districts, assumptions for over-concentration, adult use, and 1,000-foot special buffers. However, identification of any of the defined alternatives will satisfy the legal requirement and the choice of one over another will have no implications for the Board’s later decision making regarding the ordinance. As mentioned, staff is undertaking an equal weight analysis of the five alternatives so that we can provide flexibility for the Board in making that future decision.
The Board will not make a decision regarding adoption of the CLUO until 2019 when the full PEIR analysis will be available to provide additional information.
Overview of First Draft Cannabis Land Use Ordinance
On March 20th, the Board authorized staff to proceed with preparation of the first draft of the CLUO based on an outline accepted by the Board. The Board’s action included additional direction to consider expanded neighbor noticing of actions on cannabis projects, and possibly final action on all cannabis use permits by the Board of Supervisors rather than the Planning Commission. Staff recommends that these items be addressed when the CLUO is before the Board for final approval next year.
A first draft of the CLUO has been prepared (see Attachment D, Proposed First Draft CLUO and Attachment E Use Table) that substantively follow the outline previously approved by the Board and which address items raised during prior public outreach and the Final Guiding Principles for Proposed Cannabis Land Use Ordinance adopted October 10, 2017. Staff is seeking initial comments from the Board prior to undertaking public workshops and outreach.
Section 8-2.1401, Relationship to Other County Cannabis Regulations – This section identifies other County Code sections that contain regulations specific to cannabis activities.
Section 8-2.1402, Purpose – This section elaborates on the purpose of the regulations. It establishes County intent in implementing the code. It describes the primary policy concerns and how they are to be balanced.
Section 8-2.1403, Applicability – This section addresses various aspects of how the CLUO will be applied. For the various EIR alternatives authorized by the Board (see Attachment B) Ordinance/EIR Alternatives), Section 8-2.1403(I) related to Commercial Adult Use (i.e., recreational use) will be one of the variables we modify in the different alternatives. For example, in Alternative 1 we will assume no adult use. In the other alternatives, adult use will be assumed.
Section 8-2.1404, 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. Sections 8-2.1404(C through E) related to various cannabis use categories and use types will be modified in the different EIR alternatives. In Alternative 1 we will assume cultivation, nurseries, and processing only. In Alternatives 2 and 3, we will assume all use types (except Special Events). In Alternative 4 outdoor uses will be excluded. In Alternative 5, we will assume the same use types as Alternative 2 with the exclusion of retail.
Section 8-2.1405, Cannabis Permit Requirements – This section clarifies the various license and permit requirements. Among other things it authorizes an administrative process for placing limits on the number of license and permits issued. It also establishes controls on over-concentration. For purposes of the EIR, the alternatives assume different variations on numbers and locations of operations. Alternative 1 will assume 80 licenses with no specific control on over-concentration. Alternatives 2 and 4 will assume 132 licenses each and both will assume control on over-concentration. Alternative 3 will assume 264 licenses with control on over-concentration. Alternative 5 will assume 130 licenses with no control on over-concentration. The section identifying findings for approval and denial will be drafted for subsequent version of the ordinance, after it has gone through the first round of public outreach and Board review.
Section 8-2.1406, Table of Cannabis Development Requirements – This section identifies in table format which use types are allowed in which zone districts as well as other applicable development requirements, such as maximum canopy area and buffers from sensitive uses. This table would be modified to reflect the differences between the alternatives in terms of use types and allowed zones. Per the March 6, 2018 direction of the Board, special 1,000-foot buffers from identified sensitive uses including individual residences will be assumed for Alternatives 2, 3, and 5. Alternative 1 will assume 75-foot buffers from individual residences and Alternative 4 will assume only the 600-foot buffers from schools, day cares, and youth centers required by the State CDFA Emergency Regulations Section 8102(w). If the Board authorizes the recommended modification to the buffer assumption for Alternative 3 this would be reflected here.
Section 8-2.1407, Specific Use Requirements and Performance Standards -- This section is substantial in content. It provides specific requirements and performance standards to regulate operations for all use types. For EIR purposes, the same buffer variations by alternative as described above will be assumed in Section 8-2.1407(F), Buffers.
Section 8-2.1408, Definitions – This section will provide definitions for various terms. It will be compiled for subsequent versions of the ordinance following the first round of public outreach and Board review.
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 environmental at all levels, and limitations on County liability.
Section 8-2.1410, Application Submittal and Processing – This section identifies information required for the cannabis use permit application specific to the proposed site and operation. It establishes general code compliance requirements and identifies development agreement requirements specific to cannabis applications. It also discloses the intent to achieve project-specific CEQA coverage from the programmatic EIR. Direction from the Board related to whether Cannabis Use Permits are to be deliberated by the Board and related to neighborhood noticing distances will both be reflected in this section, however there is no need for the Board to resolve these items until much later in the process.
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.
Section 8-2.1412, Enforcement – This section describes the enforcement process and related topics, including abatement, penalties, procedures for suspension and/or revocation, enforcement, and other matters. Additional text for this section will be developed for subsequent versions of the ordinance following the first round of public outreach and Board review.
Public Outreach and Next Steps
Following this meeting, staff requests the Board’s concurrence to proceed with public outreach on the proposed first draft of the CLUO, including any direction provide by the Board, after which time we will return in June to present public input and receive final Board direction on the draft CLUO.
These actions will enable staff and the PEIR consultant to commence the EIR preparation process; however, detailed analysis of the CLUO alternatives will wait until after final Board direction is received in June.
The schedule of key next steps is as follows:
2018
May – Workshops before the CACs, Planning Commission, and other stakeholders
June – Return to BOS for direction
October – Release Draft PEIR for 45-day comment period
2019
January – Release Final PEIR and staff recommended final CLUO
February – Meetings before CACs regarding final CLUO
March/April – Planning Commission recommendation on final CLUO
April/May – Board of Supervisor final action on CLUO |