Summary of Direction from the Board
At meetings held May 18, June 8, and June 29, 2021 the Board provided direction to staff regarding changes to the draft CLUO. Attachment A includes the actions/direction from each meeting.
Most recently, the Board directed staff to return with the revised draft CLUO and a preliminary review of whether any of the changes directed by the Board would require modified or supplemental CEQA review/analysis. The revised draft CLUO is provided in Attachment B. Proposed revisions are annotated to reflect the relevant Board Minute Orders. A preliminary discussion of CEQA compliance is provided later in this staff report.
Board members also asked staff to consider the following:
A. Neighborhood Governance – As part of the implementation process (see recommended Action E.4 above), staff will identify and implement a process for “neighborhood governance” to enable meaningful discussion between and among cannabis operators and neighbors to build relationships and dialog.
B. Definition of Existing Licensees – Existing licensees are defined as approved, current licensees in good standing as of June 29, 2021. See Section 8-2.1403 of the revised draft CLUO.
C. Timeline for Relocation – This is addressed in Section 8-2.1404 of the revised draft CLUO, Staff is refining this language and will present a summary and revised language to the Board at the hearing.
D. Crop Compatibility Considerations – Section 8-2.1406(L.11) of the revised draft CLUO has been modified to specifically reference consideration of information from the Agricultural Commissioner related to crop compatibility.
E. Generators – The revised draft CLUO has been modified to clarify that a permanent source of power is required but that regulations relevant to generators are no different than those imposed by the State. See Sections 8-2.1408 (O and T) of the revised draft CLUO.
F. Consideration of Indoor Cannabis – Section 8-2.1413 of the revised draft CLUO has been modified to include consideration of whether the County should further encourage or require indoor cannabis cultivation as part of the first post-adoption evaluation of the CLUO.
Land Use Implications of Revised CLUO
Staff ran several GIS analyses to examine potential effects of the revised draft CLUO on licensees in the Capay Valley, existing licensees outside of the Capay Valley, and future new and relocated licensees/permittees. It is not possible to identify all the implications of the ordinance because it will affect each site and each project differently, depending on specific conditions and characteristics, and the County’s site-specific GIS information is limited. However, it is possible to examine the combined implications of the zoning, buffer, and over-concentration requirements. The results are as follows:
Land Use Effects in Capay Valley:
There are currently 13 active cannabis licensees in Capay Valley. After applying the buffer constraints described below, 3 of the 13 could continue to operate as they are currently – the other 10 would be required to relocate onsite or move their operations indoors, both of which could involve considerable expense, and/or be infeasible for the individual operator.
Buffer constraints for Capay Valley permits: 1,000-foot buffer from all identified sensitive land uses (homes in any zone, residential zoning, parks, day cares, churches, schools, treatment facilities, youth facilities, and tribal trust land). Buffer is measured from buildings/parcels as per the chart in 8-2.1408(E) based on available data layers.
As a reminder, the 13 current licensees will be competing for 5 available use permits – ultimately 8 must cease operation and/or relocate out of the area. Because Capay Valley is an area of over-concentration, pursuant to Section 8-2.1406(H), all applicants within the Capay Valley will be processed simultaneously. Also pursuant to Section 8-2.1406(H), the Board of Supervisors will be the final decision-making body for the applications in the Capay Valley.
The 5 allowed permittees are limited to cultivation only with no increase in cannabis canopy over existing conditions (see Section 8-2.1403(F)).
Land Use Effects on Existing Licensees Excluding the Capay Valley:
There are currently 36 active cannabis licensees in the unincorporated area, excluding Capay Valley. Three of these licensees are on residentially zoned land, which will not be allowed under the CLUO requirements. Of the remaining 33, 12 are affected by the buffer constraints described below and would be required to relocate onsite or move their operations indoors, both of which could involve considerable expense, and/or be infeasible for the individual operator.
Buffer constraints for Permits outside of the Capay Valley: 600-foot buffer from identified sensitive land uses (homes in any zone, residential zoning, parks, day cares, churches, schools, treatment facilities, youth facilities) and 1,000-foot buffers from tribal trust land. Buffer is measured from buildings/parcels as per the chart in 8-2.1408(E) based on available data layers.
The remaining 33 licenses would also need to be in compliance with the over-concentration threshold, which is no more than 7 licensees within a 12-mile diameter. After applying this over-concentration threshold, 25 of the remaining 33 licensees fall within an area of over-concentration.
Because the areas of over-concentration overlap it is not possible to estimate at this time how many must be denied within any given 12-mile circle or in total. This determination would be undertaken at the time of processing. Pursuant to Section 8-2.1406(H), all 25 licensees within these overlapping areas must be processed simultaneously. Pursuant to Section 8-2.1406(H), use permit applications submitted by licensees within these over overlapping areas must be decided ultimately by the Board of Supervisors as the final decision-making body. The Planning Commission is the decision-making body for the remaining 8 licensees not located within overconcentrated areas.
For comparison purposes, staff ran an alternative over-concentration threshold of more than 10 in any 6-mile diameter area for the same 33 existing licensees that pass zoning requirements and may pass buffer requirements. No areas of over-concentration were identified.
Land Use Effects on New/Relocating Licensees:
Attachment C shows in green available acreage remaining for new and relocated permittees after applying the constraints listed below, based on available information. Some of the areas shown in green are not suitable for cultivation, such as mountainous regions and areas in waterways, etc. The areas in green represent 52 percent of the total acres in the unincorporated area, excluding Capay Valley (285,402 acres available out of 550,535 total).
Land Use constraints for new and relocated sites:
- Apply 1,000-foot buffer from all identified sensitive land uses (homes in any zone, residentially zoned land, parks, day cares, churches, schools, treatment facilities, youth facilities, tribal trust land). Measure buffer from buildings/parcels as per the chart in 8-2.1408(E) based on available data layers.
- Apply 1,500-foot buffer from residentially zoned land in cities and town growth boundaries (Clarksburg, Dunnigan, Esparto, Knights Landing, Madison, Yolo, Zamora).
- Exclude all public land.
- Exclude city limits.
- Exclude areas of over-concentration.
As a test, staff ran the effects on new/relocating licensees using an alternative over-concentration threshold of more than 10 in any 6-mile diameter area. Acres/areas remaining countywide in which new/relocated cannabis can occur after application of constraints listed above = 398,227 acres (72 percent of unincorporated total excluding the Capay Valley). In other words, 20 percent more of the unincorporated County area would be potentially available for new/relocated operations under this scenario. This is depicted in Attachment D.
Clarifications Sought by Staff
Buffers for New Greenhouses for Existing Licensees – Staff is seeking confirmation of the intent behind Minute Order No. 21-92 related to buffers from indoor uses. Some existing licensees have existing greenhouses which the Board clarified would be allowed to remain as conforming uses and therefore not subject to this requirement. However, some of these existing licensees may wish to pursue additional new greenhouses. Staff has revised the CLUO to assume all new greenhouses, whether proposed by existing licensees or new licensees, must meet the new 100-foot buffer requirements. Is this assumption consistent with the Board's intent, or is the 100-foot buffer not intended to apply to new greenhouses built by existing licenses?
Buffers for Residentially Zoned Land in Cities and Towns -- Staff is seeking confirmation of the intent behind Minute Order No. 21-89 related to buffers from residentially zoned land in city-limits, and town growth boundaries outside of the Capay Valley. For new or relocating licensees, the direction applies a 1,500-foot buffer between outdoor cannabis activities, and land zoned for residential uses inside city limits and inside the General Plan growth boundaries for the following towns: Clarksburg, Dunnigan, Esparto, Knights Landing, Madison, Yolo, Zamora. The 1,500-foot buffer would not apply to residential land in the unincorporated area immediately adjacent to city limits. The Board had previously discussed four “contiguous residential areas”:
- El Macero (Davis)
- Willowbank (Davis)
- Royal Oaks Mobile Home Park (Davis)
- Westucky (Woodland)
For outdoor cannabis activities, these areas would be subject to a 600-foot buffer from existing licensees and a 1,000-foot from new or relocating licensees. For new and relocating licensees, did the Board intend to also apply a 1,500-foot buffer to the four contiguous residential areas?
Over-concentration – Section 8-2.1408(H) of the revised draft CLUO stipulates that all permits within any area of over-concentration shall be processed as a “batch” to enable consideration of community specific issues and facilitate community involvement. It further stipulates that the Board of Supervisors shall be the final decision-making authority in areas of over-concentration. The use of the 7/12-mile threshold (not applicable in the Capay Valley) for purposes of over-concentration will result in 25 of the existing licensees falling into overlapping areas of over-concentration, and new/relocating operations will be limited to an area that constitutes 52 percent of the County. Is the Board comfortable with this outcome, or would it like to further evaluate (and potentially revise) the overconcentration threshold? For purposes of comparison, the use of a 10/6-mile over-concentration threshold would result in none of the existing licensees falling into an area of over-concentration, and new/relocating operations would be limited to an area that constitutes 72 percent of the County.
On a related note, assuming all 25 licensees within areas of over-concentration outside of the Capay Velley and all 13 licensees within the Capay Valley (which is also an area of over-concentration) submit applications for cannabis use permits, that would mean a total of 38 applications from the 49 existing licensees would potentially go before the Board of Supervisors for final decision-making. Direction from the Board is requested if a different result is desirable.
Capay Valley – The regulations for the Capay Valley will require the 13 existing licensees to compete for the 5 available use permits. Until the use permit process is completed it is not possible to speculate which of the 13 existing operators will ultimately secure a use permit enabling them to continue operation. However, based on the analysis conducted by staff, only 3 of the 13 could continue to operate as they do currently – the other 10 would be required to relocate onsite or move their operations indoors, either of which could be costly or infeasible for existing licensees.
Direction from the Board is requested if there is interest in providing additional flexibility that would allow more of the existing licensees to compete for the five available use permits without having to relocate onsite or move indoors. One way to accomplish this would be to allow for the possibility of buffer exceptions and easements in the Capay Valley area for existing licensees only. This would result in the same overall reduction from 13 licensees to 5 use permits, but it would allow for a larger pool of existing licensees to compete for those permits without having to significantly modify their operations. For these reasons, would the Board like to consider buffer exceptions and/or easements in the Capay Valley?
Allocation of Limited Licenses/Permits – Regarding methods for allocating limited licenses/permits in instances where demand exceeds availability, staff has previously described (March 9, 2021 staff report) to the Board three likely processes. This information is repeated below.
Each applicant would be required to identify the full range of requested licenses (with the exception of retail storefront for which applications may not be accepted for two years) and their application would be analyzed for those uses. Applicants receiving use permit approval would be restricted to cultivation licenses only initially. At a pre-determined future point, after all existing licensees have had their opportunity to submit a timely application, an allotment process would be conducted for any non-cultivation licenses where demand exceeded supply. There are three likely ways this process could be undertaken:
- By chance, using a lottery – This would be entirely objective and random. Applicants would be randomly drawn from the pre-qualified pool of permittees that had applied for each non-cultivation license type.
- By merit, based on best fit – This would be a merit-based process. Applicants for the various types of limited permits/licenses would be ranked based on “best fit” among the qualified applications, and the top-ranking applications would be granted the available permits/licenses.
- By purchase, using a bidding process – This could be a sealed or competitive “auction” to sell available permits/licensees to the highest qualified applicant bidders.
As part of implementation, staff and the Planning Commission will require a process for allocation of limited license types. A similar process will be necessary for allocation of the 5 permits allowed in the Capay Valley. Staff is leaning towards a merit-based process, though all three have both merit and concerns. Direction from the Board is requested if there is a known preferred method at this time; if not, this issue can be addressed after CLUO adoption. Once allocated, rights to licenses could not be transferred or sold to another licensee, and if not exercised would be returned to the allocation pool.
Energy Use - As directed by the Board, staff added a requirement that permittees must achieve ultra-green energy standards, and specified a deadline of 2030 to allow a reasonable time for implementation. Direction of the Board is requested if a different deadline is desirable.
Preliminary Assessment of CEQA Compliance
Limitations on Licenses and Permits – The limits of 65 use permits, 49 cultivation licenses, and various other license limitations fall significantly below the ranges analyzed in the various EIR alternatives, with the minor exception of retail (storefront). The revised draft CLUO would allow for up to 5 retail (storefront) licenses after a minimum of two years of implementation of the CLUO. The EIR examined a range of two to four retail (storefront) operations -- one less than the number tentatively directed by the Board. In light of the conservative land use controls throughout the entire ordinance as compared to the range of possible impacts analyzed in the EIR, the preliminary staff conclusion is that the EIR adequately covers the inclusion of one additional retail (storefront) operation.
Two-acre Maximum Cultivation Canopy – The revised regulations are more permissive than the assumed one-acre canopy limit, however the restriction to 49 cultivation licenses limits the overall acreage to 98 acres of canopy (49 x 2) whether indoor or outdoor. The EIR examined impacts associated with a range of 78 acres of canopy (Alternative 1) to 160 acres of canopy (Alternative 3). Therefore, the preliminary staff conclusion is that the EIR adequately covers this decision.
Buffers – The various new buffers ranging from 600 to 1,500 feet are significantly greater than the 75-foot buffers to which the existing cultivators were subject under the Licensing Ordinance and fall within the range of buffers (0 to 1,000 feet) assumed under the various EIR alternatives. Therefore, the preliminary staff conclusion is that the EIR adequately covers this decision.
Generators – The revised regulations are less restrictive, but consistent with state law and would be applied to a smaller universe of permits (65 maximum) and cultivation licenses (49 maximum) than assumed for any of the CEQA alternatives. The CEQA alternatives assumed a range of 78 to 264 permits, and 78 to 160 cultivation licenses. As directed by the Board, the allowed canopy at each cultivation site will be increased from a one-acre limit to a two-acre limit; however, as noted above, the maximum of 98 acres of canopy falls well within the range of 78 to 160 acres of canopy examined in the EIR. Therefore, the preliminary staff conclusion is that the EIR adequately covers this decision.
CEQA Baseline – County Counsel addressed this matter in the May 18, 2021 staff report concluding (in summary) that the baseline condition of 78 “existing and eligible” cannabis cultivation sites was reasonable based on available information, and allowable as a matter of law.
Sierra Club Letter Dated May 17, 2021 – The Sierra Club submitted comments on the EIR on May 17, 2021, almost four months after the close of the Draft EIR comment period. The letter raises concerns regarding odor emissions, impacts to sensitive receptors, General Plan policy consistency, consistency with County climate change goals, and consistency with Board Resolution No. 20-114 related to climate change. County staff and the EIR consultant are assessing the comments and have not completed their review. However, the preliminarily determination is that the EIR analyses of odor, consideration of sensitive receptors, analysis of climate change, and assessment of plan and policy consistency are adequate and defensible.
Next Steps
Staff will return with a complete approval package for the Board’s final action on September 14, 2021. The public hearing on this date will be re-noticed to ensure public awareness. |