Sonoma County Supervisors Consider Updates to Cannabis Ordinance
By Associate Attorney Lauren Mendelsohn
August 8, 2018
Overview
On August 7, 2018 the Sonoma County Board of Supervisors discussed proposed updates to the county’s commercial cannabis ordinance, which was initially adopted in December 2016. Implementation of the commercial cannabis program has not gone very smoothly from anyone’s perspective. Since the county began accepting permit applications, turnout has been much lower than was expected. According to the staff presentation, 207 applications have been submitted since July 2017, with only 18 permits approved so far (3 minor use permits, 15 zoning permits, and 0 conditional use permits). 101 applications are deemed “complete for processing,” 33 are still incomplete, 43 were withdrawn, and the remaining 11 applications are listed as “other.” According to the Sonoma County Growers Alliance, there were an estimated 3,000+ cultivators in unincorporated Sonoma County prior to implementation of the current program, in addition to other types of operators that existed here.
Despite the low numbers of applications that have been submitted and permits that have actually been granted, there has been a significant amount of pushback against the commercial cannabis program from organized neighborhood groups. These groups, which include “No Pot on Purvine” and “Save Our Sonoma Neighborhoods,” created websites and hired lobbyists and lawyers to engage in a campaign against the regulated cannabis program. The opposition argued primarily that they did not want commercial cannabis cultivation operations nearby due to the odor, increased security risk, and impact on the natural environment and local aesthetics that they believe to be associated with cannabis businesses. The pro-cannabis cohort, represented by organizations such as the Sonoma County Growers Alliance and the Sonoma County chapter of Americans for Safe Access as well as local cannabis business owners, expressed the need to embrace this growing industry in a responsible fashion and emphasized that they, too, are neighbors and members of the community.
For those of you who aren’t familiar with the area, Sonoma County’s economy is based largely on agriculture. The county is a notable producer of wine grapes, dairy, and other crops and livestock. Cannabis has been cultivated here for decades, albeit in the shadows, and the region’s climate is considered optimal for cannabis production. Additionally, its location between the Emerald Triangle in the north, where much of the state’s cannabis has traditionally been produced, and the San Francisco Bay Area in the south as well as Los Angeles further south of that, where most of the state’s cannabis is consumed, make it a strategic point in California’s cannabis supply chain.
After a bumpy rollout that took months, the County of Sonoma decided to revisit the cannabis ordinance to try to fix some of the problems leading to both unhappy neighbors and low turnout and success rates on the permitting side. Prior to the August 7 meeting, there was an initial Board of Supervisors meeting back in April to talk about potential changes followed by two Planning Commission meetings on this topic, during which the Planning Commission made recommendations for the Board of Supervisors to consider.
At the August 7 meeting, questions and comments from the Supervisors, staff presentations, public comment, and finally straw voting on this item alone lasted for over four hours. The supervisors took unofficial votes on a number of proposals sent to them by staff and the Planning Commission, and will be returning to make final decisions on these items on August 28.
Outcome of the Meeting
During the August 7 meeting, Supervisor Gore motioned to require that all new cultivation applications be on parcels at least 10 acres in size unless they are in industrial or commercial zones, and that they would all require a Conditional Use Permit (rather than a Zoning Permit or Minor Use Permit, which are currently permissible on certain agricultural parcels). Permits currently in the pipeline on parcels smaller than 10 acres could continue through the process, but any zoning permits would have to go through a use permit process so that conditions could be added on a case-by-case basis. This motion passed.
This potential change and “pipeline provision” would impact 5 zoning permits on agricultural parcels smaller than 10 acres that have already been approved, as well as 17 applications on agricultural parcels smaller than 10 acres that are complete for processing, and 7 applications on agricultural parcels smaller than 10 acres that are incomplete. It would also impact any applications in resource (RRD) zones on parcels less than 10 acres, though those exact numbers were not provided by staff.
At some point around that time during the meeting, Supervisor Rabbit, who has been dissatisfied with the direction the County has taken on this ordinance from the beginning and has many upset constituents in his district, moved for a moratorium on new cannabis applications until the County could figure things out. None of the other supervisors supported his proposal, and the motion for a moratorium failed 4-1.
The Supervisors then voted 4-0 (one abstention) to allow a reduction in the County’s 1,000-foot setback to parks with a use permit if it’s determined that a physical separation exists between the cannabis operation and the park such that the operation is not visible or accessible from the park. State law does not require any setback from parks, so this decision brings Sonoma County closer to being in line with the State in this regard.
In an interesting twist, the Supervisors voted unanimously to not have “inclusion zones.” They also voted 3-2 against having “exclusion zones,” with Supervisor Zane speaking passionately about the need for objective criteria and how the measure would enable wealthy, organized neighborhoods to create exclusion zones while other neighborhoods would lack this ability. Inclusion Zones and Exclusion Zones had been recommended by the Planning Commission as a way to create flexibility in what types of cannabis permits would be permissible in which neighborhoods, but in reality (which the Supervisors realized), the ordinance already has “exclusion zones” and “inclusion zones” written into it in the sense that there are already zoning and other locational requirements and restrictions.
The supervisors were all in favor of allowing up to 25% propagation area to support onsite cultivation with a use permit. This was prompted by cultivators arguing that the current ordinance does not give them enough non-taxed room for young plants. In addition, the supervisors were in favor of extending the term of cannabis use permits from 1 to 5 years and cannabis zoning permits from 1 to 2 years, respectively.
Earlier in the meeting, Supervisor Hopkins made a comment about how the average age of comments and attendance at Board of Supervisors meetings drops by about two decades when cannabis is being discussed, which is important in an aging county full of retirees. Supervisor Gorin referred to it as a “generational shift.” There was also a recognition that this industry allows young people to afford to live and work and have children in increasingly expensive Sonoma County.
There was discussion of a “Phase Three” in which the following topics might be addressed: potential caps on permits, whether Type 7 manufacturing will be allowed, delivery-only retail, requirements regarding distance from sensitive uses, and more. “Phase Two” (which up until last night was the only other phase anyone was expecting) is set to primarily address neighborhood concerns.
In addition to the Commercial Cannabis Land Use Ordinance, there were also minor updates to the Cannabis Business Tax Ordinance and the Cannabis Health Ordinance that were proposed. The Supervisors unanimously voted to support both of these proposals with no discussion on either of them (likely due to the fact that they had all been there for around 12 hours at that point, almost half of which was spent just discussing the cannabis item, and they still had more items on their agenda).
The proposed changes to the Cannabis Business Tax Ordinance included changing the outdoor cultivation payment schedule to better align with industry cultivation season; reducing the penalty rate from 25% to 10%; allowing the Board to appoint a referee to conduct a Cannabis Tax hearing for appeals from Treasurer-Tax Collector determinations; and allowing the Treasurer-Tax Collector to refrain from collecting de minimis tax amounts due.
The proposed changes to the Cannabis Health Ordinance included expanding the scope of the ordinance to allow adult use; updating definitions and legal references to align with state law and regulations; revising construction standards for dispensaries; a streamlined health permit application process for dispensaries and edible cannabis manufacturing businesses; and a revision to align discounts and giveaways as stipulated in state regulations.
What Does this Mean for Cannabis Operators in Sonoma County?
The results of the meeting on August 7 indicate that a majority of the current Board of Supervisors is in favor of continuing the commercial cannabis program with some minor tweaks that will hopefully lead to increased applicant success as well as fewer conflicts with neighbors. Many people were concerned that the whole program was in jeopardy, but that concern has been alleviated as seems clear to County decision-makers that this program will be beneficial overall and that the cannabis industry is “here to stay.” Applications for all available license types are still being accepted, and hopefully the rate at which the Permit & Resource Management Department (PRMD) processes these applications will increase.
Stay tuned for more updates on this story.
Sonoma County Cannabis Program Webpage: https://sonomacounty.ca.gov/cannabis-program/
Item Materials (including staff report and proposed ordinance amendments): http://sonoma-county.granicus.com/MetaViewer.php?view_id=&event_id=953&meta_id=247775
Staff Presentation: http://sonoma-county.granicus.com/MetaViewer.php?view_id=&event_id=953&meta_id=247777
Policy Options, as presented by staff (NOTE – The Supervisors’ motions did not match the exact wording on these documents): http://sonoma-county.granicus.com/MetaViewer.php?view_id=&event_id=953&meta_id=247779
Maps: http://sonoma-county.granicus.com/MetaViewer.php?view_id=&event_id=953&meta_id=247783
Video of Meeting: http://sonoma-county.granicus.com/MediaPlayer.php?view_id=2&clip_id=828
This information is provided as a public service and is not intended as legal advice. For specific questions regarding California’s cannabis laws and regulations or obtaining a permit in Sonoma County, please contact our office at (707) 829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.