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Sonoma County Releases Preliminary Draft of Cultivation Ordinance 2.0

By Lauren Mendelsohn

February 12, 2021 

[NOTE 2/20/21: Updated draft documents were posted to the county website on February 16, 2021. Please see our subsequent blog post for the newer versions, the comment deadline, and information about the public hearing.]

After more than a year of anticipation, Sonoma County recently released a preliminary draft of its Commercial Cannabis Cultivation in Agricultural & Resource Areas Ordinance (what I will refer to as the “Cannabis Cultivation Ordinance 2.0” or “CCO2.0” for short), along with an associated preliminary draft Subsequent Mitigated Negative Declaration (“SubMND”). The draft ordinance has not yet been scheduled for a public hearing, and the documents make it clear that the proposed language in the final draft may differ from this “working draft” version. 

The CCO2.0 would supplement the county’s existing commercial cannabis cultivation rules by creating a new pathway whereby applicants whose parcels are located in Agricultural or Resources zones (specifically in zoning districts DA, LIA, LEA and RRD) and who meet the other listed criteria would could apply for a ministerial permit from the Sonoma County Department of Agriculture, Weights and Measures (“AWM” or the “Ag Department”), rather than going through the current process which in most cases involves discretionary review by the Sonoma County Permit Resource Management Department (“PRMD”). However, the use permit track would still remain as an option, and may be required even for applicants in Agricultural or Resources zones based on various site-specific factors listed in the draft. The ordinance would not apply to parcels in the coastal zone, among other property-specific restrictions.

Some of the key provisions the proposed ordinance include:

  • The minimum allowable parcel size for commercial cultivation would be 10 acres. 
  • There would not be any limit to how many cultivation permits the county can issue.
  • Permits would be good for 5 years.
  • Cultivation may be allowed on up to 10% of the parcel area, depending on site specifics.
  • Operators / owners would not be restricted as to the cumulative amount of cultivation area they’re associated with throughout the county (versus the current 1-acre limitation).
  • Cultivation permits in Agricultural and Resource zones would be ministerial and issued by the Agriculture Department (versus discretionary permits issued by the Permit Resource Management Department, which is the case for most permits currently).
  • A variety of information, documents, plans and studies will have to be provided to demonstrate an applicant’s compliance with the stated requirements.
  • Cannabis events would no longer be expressly forbidden, as they are under the existing ordinance.
  • A use permit from PRMD may still be required in some circumstances, for example if mitigation measures are recommended by any of the required studies.

Numerous questions remain unanswered by the preliminary draft language, such as:

  • Can applicants who are currently going through the discretionary permit process transition over to the ministerial process, and if so, how?
  • Has the county analyzed how many of the available parcels and acres zoned DA, LEA, LIA, and RRD would be disqualified due to proposed restrictions, including but not limited to restrictions on parcel size and use of important farmland?
  • Will a Chapter 38 cultivation permit from the Agriculture Department be sufficient for an annual state cultivation license (in terms of CEQA); and if not, how should applicants and permittees handle this?
  • Could generators be used in the case of an emergency on the property that does not rise to the level of a local, state, or federal emergency?
  • How will distance from sensitive uses be measured? The draft ordinance says one thing, while the draft SubMND suggests another approach.

The goal of the new ordinance is to make it easier for cultivators to get permitted and thereby be eligible for state licensure. (A ministerial approval process is quicker as an applicant only must meet the criteria specified in the ordinance, in contrast to discretionary approvals which involve public noticing and hearings as well as discretion of county agents.) The current process, which requires discretionary use permits for most commercial cannabis activity, has not been as successful as the county and the industry had hoped it would be. For example, the Sonoma County Growers Alliance, a local trade organization representing cannabis operators, estimated that there were several thousand cannabis cultivators in Sonoma County prior to enactment of the current regulations [see Sonoma County Cannabis Economic Impact Task Force Report, p. 5 (2016)]. The county began accepting applications for commercial cannabis cultivation and other activities in 2017, yet according to the SubMND, only around 100 permits (ministerial and conditional) have been approved so far, and roughly 130 applications are in progress:

There are 78 ministerial permits that have been issued to date (including renewals) for medical cannabis cultivators, nurseries, manufacturers, and transporters, distributors, testing laboratories, and dispensaries. A total of 32 conditional use permits (CUPs) have also been approved and 3 have been issued (met compliance conditions of approval). There are currently 78 ministerial and 55 CUPs in process; applicants interested in establishing cannabis cultivation operations in unincorporated Sonoma County, including 39 cultivation permits [LOOF note: we are confused by this last part also]. It should be noted that some applicants may hold two license types at the same location. For example, a cultivation licensee may also hold a manufacturing license at the same location. 

[Draft Subsequent Mitigated Declaration, p. 19.]

The CCO2.0 makes no mention of how applicants and “Penalty Relief” operators under the current ordinance could transition over to the new pathway if their property allows for it without going to the back of the line to start (and pay for) the process all over again, despite the Agriculture Commissioner indicating that staff would look into a way to accomplish this when he spoke with industry stakeholders last year. 

Notably, Sonoma County is also proposing to amend its General Plan to redefine land use as inclusive of cannabis cultivation:

In support of the proposed updated Ordinance, Sonoma County is also proposing to amend the County’s General Plan 2020 to redefine agricultural land use as inclusive of cannabis cultivation. Pursuant to Objective AR-4.1 in the Agricultural Resources Element, the General Plan currently defines “agriculture” as “[t]he commercial production of food, fiber and plant material, or the raising and maintaining of horses, donkeys, mules, and similar livestock,” This definition would be amended to expressly include cannabis cultivation. In 2016, the Board of Supervisors found that cannabis should be treated differently from other agriculture because its classification under the federal Controlled Substances Act may cause it to have characteristics that were distinct from other agriculture. The County has since found that despite this federal classification, cannabis cultivation functions similarly to other agricultural operations and that it fits within the plain language and intent of the term “agriculture.”

[Draft Subsequent Mitigated Declaration, p. 15]

However, the document goes on to state the following later on:

The Sonoma County General Plan defines “agriculture” as “[t]he production of food, fiber, plant materials, and the raising and maintaining of horses, donkeys, mules, and similar livestock and farm animals.” The existing Ordinance considered cannabis uses separately from other agriculture because its classification under the federal Controlled Substances Act may cause it to have characteristics that were distinct from other agriculture. The County has since found that cannabis farms function similarly to other agricultural operations and that it fits within the plain language and intent of the term “agriculture.” However, due to the unique characteristics of cannabis operations, under the updated Ordinance provisions applicable to traditional agriculture are expressly not applicable to cannabis cultivation. For instance, cannabis is currently not protected under the “Right to Farm” Ordinance, which protects agricultural operations from being considered a nuisance and provides public disclosure to surrounding residential uses of potential incompatibility impacts such as noise, odor, or chemical use. Likewise, cannabis uses are currently not a qualifying use for tax benefits under the Uniform Rules for Agricultural Preserves, but would be allowed as a compatible use, pursuant to the companion amendment to the Rules.

[Draft Subsequent Mitigated Declaration, p. 26-27.]

Thus, it is a bit murky as to what benefit this reclassification would actually provide.

For information regarding the preliminary drafts of the new cultivation ordinance and environmental document, visit the Sonoma County Cannabis Program webpage. To submit feedback, you can email Cannabis@sonoma-county.org. Our office will be submitting comments soon outlining our position and suggestions.

This is a developing story; stay tuned for more details.

This information is provided as a public service and is not intended as legal advice. For specific questions regarding cannabis and hemp laws and ordinances in California, including how to obtain a commercial cannabis permit in Sonoma County, please contact the Law Offices of Omar Figueroa at 707-829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.

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