6. Buffers -- With the exception of buffers for tribal trust lands, the proposed CLUO establishes smaller buffers than Alternative 2 for the same list of identified sensitive land uses (Section 8-2.1408(E)). Alternative 2 assumed 1,000-foot buffers for all identified sensitive land uses. The proposed CLUO establishes buffers ranging from 200 feet to 1,000 feet depending on the specific identified sensitive land use. The Alternatives examined in the CLUO Final EIR analyze a range of buffer distances from 75 feet to 1,000 feet. The buffers included in the proposed CLUO fall within that range.
7. Eliminate buffers for personal use -- The proposed CLUO creates an exception from buffers for personal use but all other performance standards including odor control apply, thus ensuring the ability to control and enforce for nuisance behavior related to personal use. Alternative 2 assumes buffers apply to personal use, with the exception of within residentially designated areas because that would have the unintended effect of prohibiting personal use entirely within those zone districts.
8. Over-Concentration Threshold – The proposed 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)). Alternative 2 assumes control on over-concentration will be established but does not identify specific thresholds. The threshold included in the proposed CLUO is consistent with the CLUO Final EIR analysis and incorporates Mitigation Measure OVC-1(a-c).
SUMMARY OF PLANNING COMMISSION WORKSHOP
The staff report for the workshop included a summary of the proposed CLUO, additional explanation supporting the staff recommendation, a summary of the EIR including the Master Responses contained in the Final EIR volume, a review of the comments and recommendations of the Citizen’s Advisory Committees (CACs), and a review of key features of the staff recommendation for the proposed CLUO. That information is not repeated in this staff report but can be accessed here
All volumes of the EIR are available here
Between 40 and 50 members of the public attended the workshop which was conducted virtually due to public health requirements. Seven participants made comments. The list below identifies the key issues raised during the workshop, either by the public or by Commissioners, with brief staff responses to each item:
Over-Concentration and Co-Located Sites
– A concern was expressed over the way co-located sites were proposed to be counted for purposes of over-concentration. The staff concurs and has proposed a modification to Section 8-2.1406(H) so that each owner/entity at a co-located site would be counted individually.
Proposed Caps by Cannabis License Type
– Comments were received advocating a variety of changes, both higher and lower, to the proposed caps by license type. The staff is comfortable with the caps as recommended and proposes no changes. In making this recommendation the staff balanced the following considerations:
“Grandfathering” of Existing Cannabis Licensees
- Allow opportunities for new operators to cultivate.
- Start slowly with a reasonable number in each category. The County may modify the CLUO, including the identified caps, at any time in the future.
- Allow for market growth overall.
- Expand beyond the current restriction solely to cultivation and allow for reasonable numbers of new cannabis activities.
- Remain generally at or below the mid-point analyzed in the EIR.
- Reflect generally the permit caps suggested by the CACs.
– Comments were received in favor of granting exemptions to existing operating cannabis licensees, presumably without requiring compliance with certain requirements of the CLUO, such as buffers for example. The staff does not recommend this approach. All licensees were notified 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 proposed CLUO already includes several sections that are relevant to this discussion:
- Priority Processing For Existing Cultivators (Section 8-2.1404(B)) -- This gives priority to existing licensees in applying for cannabis use permits and all license types.
- Minor Administrative Relief for Buffers (Section 8-2-1408(E)) – This allows for variation from the buffers of up to ten percent of the required distance, at the discretion of the County, based on consideration of project-specific conditions. It should be noted as well, that the proposed buffers are graduated to recognize the reasonableness of providing greater protections for residences on smaller agricultural properties that are less likely to be involved in intensive agricultural activity.
- Functionally Equivalent Standards (Section 8-2.1408(S)) -- This allows for one or more requirements or standards in the ordinance to be addressed by alternative means that have an equally effective or better outcome. This provides for flexibility on a case-by-case basis, at the discretion of the County, yet imposes the overall regulatory standard of equal or better.
- Odor Easement (Section 8-2.1408(DD)(3)) – This allows neighbors to agree to accept odorous conditions on their property by agreeing to an easement to allow this to occur. The easement would be an alternative to compliance with the identified odor threshold.
If “grandfathering” were nevertheless determined by the Planning Commission or Board of Supervisors to be desirable, staff recommends it be limited and specific. It should identify those specific regulations of the CLUO for which waivers or exemptions would be provided for existing licensees, and require full compliance with all other aspects of the CLUO. Licenses should be in good standing and operators afforded this opportunity should be those that have operated in good faith and full compliance with all applicable laws over the course of their licensure. The discussion of a “buffer easement” below addresses this issue from a different perspective – regulatory relief for one specific requirement and in situations where neighbors are in agreement.
Buffer Easement Concept
– Comments were received in favor of allowing smaller buffers provided an easement agreement is reached between an operator and affected neighbors. The staff does not recommend this approach, particularly in light of the flexibility already proposed as a part of the CLUO (described above). Nevertheless, were this concept to move forward, 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.
– A concern was expressed that the proposed over-concentration threshold may not be consistent with the EIR. The staff has confirmed that the proposed approach is in full compliance with the analysis in the EIR and Mitigation Measure OVC-1. The EIR analysis identifies that five or fewer sites within a six-mile diameter should not be considered over-concentrated and that 23 or more sites within a six-mile diameter should be considered over-concentrated. The analysis points out (page 4-37, Draft EIR volume) that between six and 22 sites within a six-mile diameter area should be considered potentially over-concentrated and acknowledges that the precise threshold for over-concentration, within this range, is a matter of policy. Mitigation Measure OVC-1a(II) directs the County to identify the appropriate threshold within the range and incorporate it in the CLUO. In Section 8-2.1406(H) the proposed over-concentration threshold is:
>10 use permits/operations within 6-mile area = over-concentration
<10 use permits/operations within 6-mile area = acceptable concentration
CEQA Baseline for Impact Analysis
– A comment was expressed in disagreement with the assumed operation of 78 existing and eligible licensees as the CEQA “baseline” for analyzing impacts in the EIR. The staff understands this perspective but notes that this is a matter of law that has been confirmed consistently by the courts. Master Response 2 in the Final EIR volume (page 3-4) is helpful in better understanding this issue.
– A concern was mentioned regarding volatile manufacturing. The proposed CLUO would allow all types of manufacturing, with appropriate project-specific and site-specific considerations, which the cannabis use permit process will ensure. Compliance with all relevant local, state, and federal requirements for hazards and hazardous material will be required. The staff supports all manufacturing types and proposes no change to the CLUO in this regard. The EIR (Chapter 3.9) confirms that potential impacts associated with manufacturing are fully mitigated.
Cannabis-infused products (such as edibles, tinctures, and oils) are important components of the cannabis industry and growing in popularity. A key ingredient of these products is cannabis extract. To create these products chemical solvents are used to extract the active ingredients from whole marijuana flowers. The solvents are often flammable pressurized chemicals which, if used improperly during the extraction process, could be dangerous. The most common chemicals/gases used for cannabis extraction are butane, ethanol (alcohol), propane, and carbon dioxide.
To limit potential dangers, California split the activity of cannabis manufacturing into two different categories, volatile and non-volatile, distinguished by whether or not they use volatile solvents, and placed differing restrictions on the two categories, with additional precautions required for manufacturing operations that used volatile solvents. There are different license types for each manufacturing type. Based on California Department of Public Health regulations, butane and propane are considered volatile solvents and ethanol and carbon dioxide are considered non-volatile solvents.
It is helpful for context to note that many common products and daily activities involve the use of hazardous chemicals including swimming pool maintenance, agricultural applications, house cleaning, painting, and furniture refinishing, among many others. Butane is used in cigarette lighters and camping stoves. Ethanol is used in gasoline, varnishes, and perfumes. Propane is used to fuel BBQs and in many rural homes. Carbon dioxide is used in fire extinguishers, sodas, and beer. With proper controls and oversight, these chemicals and gases are used effectively and safely every day.
Agricultural Use on Parcel Remainder
– There was discussion regarding additional creative mechanisms to support agricultural use of portions of cannabis parcels not being used for cannabis activities. The staff noted during the workshop that farmers receiving any type of federal assistance are prohibited by the terms of their agreements from any agricultural endeavors on parcels associated with cannabis activities. Until federal policy and regulations change regarding cannabis this creates challenges for cannabis licensees seeking to collaborate with non-cannabis farmers. The staff does not propose changes to the CLUO in this regard. Section 8-2.1408(B) requires agricultural use or proper maintenance of cannabis remainder areas. Nevertheless there is nothing prohibiting voluntary programs and incentives to support farmers not otherwise prohibited due to their federal commitments. This could be pursued as a possible cannabis incentive program outside of the CLUO regulations.
ADDITIONAL STAFF-PROPOSED CHANGES TO THE CLUO
Since the Planning Commission workshop, the staff has identified several additional proposed edits to the CLUO. These are identified in Attachment C in yellow highlight and include:
LETTERS RECEIVED SINCE THE CLOSE OF THE DRAFT EIR COMMENT PERIOD
- General -- A number of non-substantive clarifications and corrections. Included in these is the removal of the words “regional-serving” from the description of nurseries and processing in Section 8-2.1406(G). These words were intended to be descriptive but caused unintentional confusion.
- Section 8-2.1406(H) – Modification to require that each owner/entity at a co-located site be counted individually for purposes of evaluating over-concentration.
- Section 8-2.1411(A) – Modifications to sub-sections 1 and 4 because this information is already required under state law.
Since the close of the Draft EIR comment period, the County has received the following 12 comment letters on the CLUO (see Attachment F). These comments have been considered in developing the staff recommendation.
Date Received -- Commenter
December 22, 2019 -- Brian Boyce and Linda Deering
January 6, 2020 -- Carol Owens
February 6, 2020 -- Meg Hehner
March 1, 2020 -- David Hills
March 3, 2020 -- Yocha Dehe Wintun Nation
March 5, 2020 -- South Davis CAC
September 2, 2020 -- PG&E
September 9, 2020 -- Caltrans District 3
September 10, 2020 -- Susan Pelican
September 11, 2020 -- Capay Valley CAC Minutes from December 4, 2019
September 14, 2020 – Loren Hamilton
September 28, 2020 -- Brian and Gretchen Paddock
If the Planning Commission requires a second meeting to take action on the CLUO, staff will return to the Commission on December 10, 2020 for this purpose. If a second meeting is not needed, the next step will be to move this item forward to the Board of Supervisors:
- January 19, 2021 Board of Supervisors Workshop
- February 23, 2021 Board of Supervisors Hearing
- March 9, 2021 (tentative) Board of Supervisors Meeting (if needed)
The staff will report back to the Planning Commission at a later date regarding implementation of the CLUO including considerations for accepting and processing applications following adoption of the ordinance.