On May 18, 2021 the Board of Supervisors conducted a public hearing on the proposed Cannabis Land Use Ordinance (CLUO), CLUO Final Environmental Impact Report (Final EIR), and related items. Staff presented a summary of the CLUO, including a decision chart summarizing the positions of key stakeholders on the eight decisions related to the scope and content of the CLUO.
At that hearing the Board received testimony from 46 individuals. The Board provided non-binding tentative direction on items 1, 2, 3, and 4.2 as shown in the second column of Attachment A and summarized below:
Item 1 (Overall Regulatory Controls) – The Board voted (5:0) to move forward with adoption of a CLUO.
Item 2 (Capay Valley Boundary) – As a component of their action on Item 3, the Board voted (4:1, Sandy opposed) to define the Capay Valley area using boundaries consistent with those used in the General Plan which include the town of Capay but do not include the towns of Esparto or Madison.
Item 3 (Capay Valley Regulations) – The Board voted (4:1, Sandy opposed) to establish the following restrictions in the Capay Valley area:
- No regional-serving nurseries, processing, or distribution licenses
- No testing, manufacturing, or retail licenses
- No more than 5 cannabis use permits total within the area
- The cannabis cultivation canopy area may not increase beyond the area approved on the effective date of the CLUO
- Use permits may not “transfer” – if a use permit is not used or is allowed to lapse it is removed from the available inventory
- 1,000 foot buffers between outdoor cultivation and identified sensitive uses
- Buffer easements, exceptions, and/or 10 percent reductions are not allowed
- The geographic area for the Capay Valley shall be the boundaries used in the County’s General Plan (Item 2)
Item 4.1 (Buffers for Sensitive Uses) – No action was taken, see discussion below.
Item 4.2 (Buffers for Tribal Cultural Resources) – The Board voted (5:0) to establish 1,000 foot buffers for Tribal Cultural Resources.
Item 4.3 (Buffers for Cities, Spheres of Influence, or Towns) – No action was taken, see discussion below.
The Board’s discussions on May 18th did not move beyond Item 4.3 and the hearing was continued to 1:00 p.m. on June 8, 2021 to continue deliberating items on the decision chart. The Board requested follow up on the following items:
- Implementation of the CLUO – Staff will report back on this following final action on the CLUO.
- Freeze on licenses – Chair Provenza requested discussion of this matter.
- Special regulations applicable in the Esparto area – Chair Provenza requested discussion of this matter.
- Ability to restrict permits/licenses to local residents – Supervisor Villegas inquired regarding the ability to impose such a restriction.
- Item 4.1 (Buffers for Sensitive Uses) – Board members discussed this item but no tentative direction was provided. The last standing motion of the Board is reflected in Attachment A.
- Chair Provenza requested further discussion on how buffers would be measured.
- Supervisor Villegas requested information on how many operators would be affected by 1,000 foot buffers from identified sensitive land uses based on points of measurement identified in Table 1 of Attachment A.
- Chair Provenza requested discussion of buffers between outdoor cannabis cultivation and non-cannabis crops on adjoining properties.
- Item 4.3 (New Buffers for Cities, SOIs, or Towns) -- Board members discussed this item but no tentative direction was provided. The last standing motion of the Board is reflected in Attachment A.
- Supervisor Saylor requested discussion of revenue sharing.
- Supervisor Sandy requested discussion of contiguous city Specific Plan areas under active planning, with proposed residential uses.
- Board members focused their deliberation on buffers from city limits rather than spheres of influence and indicated an interest in “grandfathering” existing cannabis operators in connection with such buffers.
- Board members discussed buffers of up to 2,500 feet from cities, spheres of influence, and towns.
Requested Information
FREEZE ON LICENSES
Absent further direction from the Board prior to CLUO adoption, licenses will continue to be issued under the existing licensing ordinance . The Board could direct staff to pursue a temporary prohibition or “freeze” on the issuance of cannabis licenses to operators eligible but not currently operating, until such time as the CLUO is in effect and cultivators file a use permit application (or satisfy other interim requirements for continued licensing). A “freeze” could be implemented through a new ordinance adopted pursuant to Government Code Section 65858, which authorizes a moratorium on uses that may be in conflict with a contemplated zoning proposal if special findings of fact can be made, or by amending the existing licensing ordinance to include appropriate restrictions.
With adoption of the CLUO imminent, the staff does not see a significant advantage for enacting a freeze on licenses. Interest in new licenses from eligible operators not currently operating has been minimal, with numbers of applicants generally decreasing every year since the program began.
SPECIAL REGULATIONS FOR ESPARTO
Proposed buffers from homes and residentially zoned land that will be included in the CLUO will have the effect of creating a buffer around Esparto. If the Board desires to impose additional regulations on cultivation (and potentially other cannabis uses) in and adjacent to the town, staff will be prepared to assist the Board in those deliberations.
RESTRICTION OF PERMITS/LICENSES TO LOCAL RESIDENTS
This issue was addressed in the Final EIR in response to a comment on the CLUO (Response to Comment 40-8). The response explained that this issue was considered and rejected on legal grounds during development of the licensing ordinance. Specifically, rights protected in the United States Constitution (the right to travel and the right to equal protection) were identified as presenting significant obstacles to a restriction of this nature. In contrast with “local preference” practices that may be constitutionally permissible where the government is a market participant (i.e., a purchaser of goods or services), a provision favoring local applicants for cannabis use permits or licenses is likely an impermissible form of market regulation. In other words, governments can decide how they want to exercise their purchasing authority, but they cannot more broadly dictate who may participate in the local (or state) economy.
County Counsel has completed additional research of this matter and confirmed that such a restriction is likely impermissible for the reasons mentioned above. Additionally, the Privileges and Immunities Clause found in Article IV, section 2 of the United States Constitution has also been applied by courts to prohibit discrimination against non-residents in a variety of situations, including the right to undertake lawful occupations. This clause furnishes yet another potential legal obstacle to favoring local residents in the distribution of cannabis use permits and licenses.
BUFFER DISTANCES AND POINTS OF MEASUREMENT
The Board expressed interest in 1,000-foot buffers from identified sensitive land uses and deliberated appropriate points of measurement. The following table summarizes potential implications to current cultivators of buffers of various distances, measured from various points.
The scenarios below would apply between outdoor cannabis sites and identified sensitive land uses. Scenarios 1 and 2 below represent the staff and Planning Commission recommendations respectively. Scenario 3 was requested by Supervisor Villegas to assess the implications of 1,000 foot buffers for all identified sensitive land uses, using the same point of measure as Scenarios 1 and 2. Scenario 4 and 5 were added by staff for informational purposes. Scenario 4 assesses the implications of 1,000 foot buffers measured from parcel lines. Scenario 5 is identical to Scenario 4, except that the point of measurement for residences in non-residential zones would be from the home.
Point of measurement from homes on agriculturally zoned parcels is particularly significant in Yolo County because of the large size of most agricultural parcels and the large number of farm dwellings countywide. Existing licensees could be accommodated through the use of buffer reduction, buffer easements, and/or buffer exceptions as described below.
Table 1, Results of Buffer Run Scenarios
SENSITIVE LAND USE
(MEASURE POINT)1 |
BUFFER RUN SCENARIO (in feet) |
Scenario 1
(Staff Rec'd) |
Scenario 2
(PC Rec’d) |
Scenario 3 |
Scenario 4 |
Scenario 5 |
Homes in Non-Residential Zones
(from building) |
600 |
1,000 |
1,000 |
|
1,000 |
Home In Non-Residential Zones
(from parcel) |
|
|
|
1,000 |
|
Residentially Zoned Land
(from zone boundary) |
600 |
1,000 |
1,000 |
1,000 |
1,000 |
| Parks (from parcel) |
600 |
600 |
1,000 |
1,000 |
1,000 |
| Day cares, places of worship, schools, treatment facilities, youth centers (from building) |
600 |
600 |
1,000 |
|
|
| Day cares, places of worship, schools, treatment facilities, youth centers (from parcel) |
|
|
|
1,000 |
1,000 |
| Tribal Trust Land (from parcel) |
1,000 |
1,000 |
1,000 |
1,000 |
1,000 |
RESULTS |
| Operation Okay |
19 |
16 |
16 |
0 |
16 |
| Operation Must Move Onsite |
9 |
4 |
4 |
0 |
4 |
Operation Must Move Offsite
(or move indoors) |
7 |
15 |
15 |
35 |
15 |
| Total2 |
35 |
35 |
35 |
35 |
35 |
| Number of Operations Affected3 |
16 of 35 (46%) |
20 of 35 (57%) |
20 of 35 (57%) |
35 of 35 (100%) |
20 of 35 (57%) |
Notes:
1/This table is based on countywide GIS data that is not reliable at the parcel level, an aerial layer that is currently 4 years old, and residential addressing information not intended to be used for this purpose. Therefore results are useful for understanding order of magnitude results but imprecise at the parcel level. Actual site conditions and unknown property constraints could result in different outcomes. Business decisions and risk tolerance of individual operators could also affect results.
2/Based on 2020 licensees (48), with Capay Valley licensees (13) excluded.
3/ Does not reflect additional attrition that may occur due to the over-concentration threshold or other requirements of the CLUO which may preclude an individual site or project from successful compliance.
Staff will seek confirmation from the Board that the chosen point of measurement is also intended to apply within the Capay Valley.
BUFFERS BETWEEN CROPS
Staff does not recommend a requirement for buffers between crops. This would be unprecedented for Yolo County and the EIR documented that there is no environmental impact meriting the imposition of such buffers (for example, see Impact AG-3 on page 3.2-23, Impact AQ-1 on page 3.3-19, Impact HAZ-1 on page 3.9-17, Impact HYDRO- 1 on page 3.10-35, Master Response 5 on page 3-9, and Responses to Comments 6-2, and 11-1 to 11-7, among other references). Pesticide application must be controlled by the farmer or applicator subject to the requirements of existing law. Because this is a fully regulated matter, additional mitigation measures are not legally necessary. The potential for impact was found to be less than significant. Moreover, the County has a long history of organic and non-organic crops successfully co-existing based on communications and courtesies between neighboring farms.
Concerns regarding impacts from cannabis odor contaminating adjoining crops were similarly demonstrated to be less-than-significant. Nevertheless, should the Board wish to impose crop buffers for other policy reasons, staff can assist in facilitating that discussion and report back with additional information or analysis if requested.
REVENUE SHARING
In exchange for the County not placing any cannabis uses within a certain buffer area around a city, this concept would involve the relevant City sharing revenue generated inside its borders with the County. If so directed by the Board, the application of specified buffer prohibitions around a city could be made automatic following negotiation of an acceptable revenue sharing agreement.
BUFFERS FROM EXISTING AND PLANNED CONTIGUOUS RESIDENTIAL AREAS
During deliberations on Item 4.3 (New Buffers for Cities, SOIs, or Towns) the Board discussed a 1,000 foot buffer around all City limits, including around any contiguous residential areas. As shown on Exhibit 5 (Adjacent Residential and SOIs) which was provided as a component of the May 18th staff report and is included here again as a convenience (see Attachment C), there are four residential areas immediately contiguous to city limits:
- El Macero (Davis)
- Willowbank (Davis)
- Royal Oaks Mobile Home Park (Davis)
- Westucky (Woodland)
The Board also deliberated an additional restriction relevant to these four areas. Specifically, in the area just outside a 1,000 foot buffer around these four areas only (in the area between 1,000 and 2,500 feet from the 1,000 foot buffer), the CLUO could be modified to require that any cannabis use permit application in this secondary distance be decided by the Board of Supervisors, following a recommendation by the Planning Commission. Should the Board find this to be a worthwhile policy approach, staff recommends it be broadly applied to any urban residential area sharing common circumstances as articulated by the Board.
Attachment D depicts buffers of 2,500 feet around city limits and spheres of influence; no additional existing operations are affected by this buffer. Attachment E depicts buffers of 2,500 feet around towns; this buffer would affect 14 existing operators of which three are on residentially zoned land and therefore would be unable to secure a Use Permit under any scenario, and four others fall within the Capay Valley area.
Finally, the Board deliberated additional restrictions relevant solely to Specific Plan areas with planned residential areas contiguous to city limits. Staff is aware of only one circumstance where this currently exists, in the Woodland Research and Technology Park south of the City of Woodland. Information about this project is available at the following website: https://cityofwoodland.org/583/Woodland-Research-Technology-Park . However, if adopted by the Board, relevant regulations would also apply to future specific plan areas that met any identified criteria. An example of an additional restrictions the Board might consider for these areas could include:
- Prohibitions on cannabis applications within the identified unincorporated area boundaries of the specific plan.
- Requirements that any cannabis use permit application within 1,000 feet of the specific plan boundary be heard by the Board of Supervisors in addition to the Planning Commission.
- Agreement to provide notice to the relevant city manager’s office for any cannabis applications in the area described above, to allow the city to express concerns and submit comments.
SUMMARY AND CLARIFICATION OF VARIOUS BUFFER CONTROLS
There has been discussion regarding a number of discreet regulations that could apply to buffers if adopted. A summary is as follows:
- Buffers from Sensitive Land Uses, Section 8-2.1408(E) – Required buffers distances from identified sensitive land uses.
- Ten Percent Buffer Reduction, Section 8-2-1408(E)(5) – Allows for a reduction of up to ten percent of the required buffer distances based on consideration of project-specific and/or site-specific factors during the use permit process. This reduction would be discretionary.
- Buffer Easement, Section 8-2.1408(E)(6) – Allows the County to accept a buffer easement executed between a cannabis operator and one or more neighbors as an alternative to compliance with the identified required buffer distance. Acceptance of an easement as an alternative to the required buffer distances would be discretionary.
- Buffer Exceptions (not currently in the Draft CLUO) – Would allow for a reduction of the required buffer distance based on consideration of project-specific and/or site-specific factors during the use permit process. State minimum buffers would still apply. Approval of buffer exceptions would be discretionary.
- Buffer Exemptions (Grandfathering) (not currently in the Draft CLUO) – Would exempt a licensee notwithstanding project-specific and/or site specific factors. If included in the adopted CLUO, buffer exemptions would be by right, and would not be discretionary.
Table 2, Tentative Actions on Various Buffer Regulations
| BUFFER REGULATION |
CAPAY VALLEY |
COUNTYWIDE
(EXCEPT CAPAY VALLEY) |
Buffers from Sensitive Land Uses:
- Homes in any zone
- Residentially zoned land
- Parks
- Day cares, etc
- Tribal Trust lands
|
1,000 feet (point of measurement to be confirmed) |
TBD |
| 10% Buffer Reduction |
No |
TBD |
| Buffer Easement |
No |
TBD |
| Buffer Exceptions |
No |
TBD |
| Buffer Exemptions |
No |
TBD |
TBD = To be determined by the Board.
It should be noted there are other environmental buffers identified in the Draft CLUO including protective buffers from species, habitats, water courses, and cultural resources. There are also applicable setbacks in each zone. These environmental buffers and setbacks would be mandatory and generally could not be reduced during the Use Permit process. The various buffer controls described above would not affect the environmental buffers and/or setbacks mentioned here.
It should also be noted there are currently no buffers for indoor cannabis uses (cultivation or non-cultivation), between operations or from other crops.
Errata
Subsequent to the May 18th hearing, staff identified two errata in the decision chart:
- Item 4.2 (Buffers for Tribal Cultural Resources) was incorrectly described as a buffer applicable to “outdoor cultivation”; however, as described verbally in the presentation, these buffers would apply to all new indoor and outdoor cannabis uses. A correction is shown in Attachment A.
- Item 7 (Caps on CUPs and Licenses) was missing row E. However to avoid confusion in using the table no correction was made.
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