Trinity County Licensing Up and Running, But Durational Residency Requirement Susceptible to Constitutional Challenge

While California continues to dial in the details of state licensing for cannabis companies, local jurisdictions have also been hard at work doing the same. State law allows individual counties to draft and implement individualized ordinances controlling cannabis licensing and regulations. While this creates a far more complicated system that in many ways forces local business owners to navigate, research, and choose amongst many different potential counties, it also creates a land of opportunity for those willing to relocate. If, for instance, a prospective business owner found the regulations of their local jurisdiction too restrictive, with enough research they may well find another county with more desirable or easily accomplished requirements.

One county that has not only drafted but also finalized, passed, and implemented an ordinance for local cultivation licensing is Trinity County. Currently licensing is only available in Trinity County for cultivation, but licenses for dispensaries, nurseries, and distributors are all said to be in the works as well. Moreover, Trinity County’s commercial cannabis cultivation ordinance applies to both medical and adult-use cannabis operations. The application for Trinity County comes ready with a handy checklist detailing the necessary application materials, eligible zoning, setback requirements, and much more.

Currently, the cultivation licenses available within Trinity County are as follows:

• Type 1 for outdoor cultivation up to 5,000 sq. ft. or 50 plants;
• Type 1B for mixed-light cultivation up to 5,000 sq. ft. or 50 plants;
• Type 1C for “Cottage” cultivation up to 2,500 sq. ft. or 25 plants;
• Type 2 for up to 10,000 sq. ft.; and
• Type 2B for mixed-light cultivation up to 10,000 sq. ft.

A “Tier 3” license that would allow cultivation in excess of 10,000 sq. ft. is not yet available, but is being contemplated by the county.

Applications will not be accepted for projects located within the Trinity County jurisdiction of the Whiskeytown-Shasta-Trinity National Recreation Area or within the legal boundaries of Ruth Lake Community Service District. Nor will applications be accepted for properties zoned Residential 1 (R1), Residential 2 (R2), Residential 3 (R3), Agricultural Forest (AF), Commercial (C), Open Space (OS), Public Facility (PF), Village (V) land use designation, or Timber Production Zones (TPZ) (though there will be exceptions made for certain qualified Applicants (Phase 1)). Areas zoned as Unclassified (UNC) may be accepted depending on the land use designation. For qualifying zones, prospective applicants must still comply with setback requirements. Specifically, a commercial cannabis location must be:

• Three-hundred fifty feet (350 ft.) from any habitable dwelling on a neighboring property;
• Thirty feet (30 ft.) from any property line;
• One-thousand feet (1,000 ft.) from a youth-orientated facility, a school, any church, or residential treatment facility;
• Five-hundred feet (500 ft.) from an authorized school bus stop;
• Out of view from any public right-away; and
• Though not stated within the ordinance, it is recommended to be at least three-hundred fifty feet (350 ft.) from any public or commercial building or business.

In addition to the above and other requirements, there is also a constitutionally suspect roadblock for the nomadic growers who are ready to migrate to Trinity County and start the application process immediately. Currently, per Ordinance No. 315-816 (implementing the cultivation licensing program), applicants are required to prove residency in the county for a period of at least one (1) year prior to application. Thus, newcomers would be forced to wait for at least a year before even beginning the application process, a high disincentive for those hoping to get a jump on state licensing.

This type of requirement is generally referred to as a “durational residency requirement.” Durational residency requirements have traditionally been used by one state to deny benefits to residents who have recently moved from another state. For example, California might wish to deny certain unemployment benefits to individuals who have lived within the State of California for at least one (1) year before receiving such benefits. For those still interested in moving to a ready-to-license jurisdiction, there is still hope even in Trinity County however. Durational residency requirements have repeatedly been ruled unconstitutional by the Supreme Court unless the government entity can prove that the requirement is “necessary to promote a compelling government interest” and the requirement is narrowly tailored to promote that interest without overreaching (Shapiro v. Thompson, 394 U.S. 618, 634 (1969)).

In fact, the Supreme Court case establishing the illegality of durational residency requirements, Shapiro v. Thompson, bears a fair amount of resemblance to the Trinity County requirement. In Shapiro v. Thompson, the State of Connecticut denied welfare benefits to anyone who could not prove that they had lived within the state for at least one (1) year prior to applying for such benefits. In each instance, a government entity (county or state) demands that an individual reside in the state for at least one (1) year prior to applying for a particular benefit; there, welfare benefits, and here, commercial licenses. In the latter case, the court held the requirement unconstitutional because it in appropriately inhibited travel by United States citizens among the various states and denied certain government benefits to citizens of one state to those of another (which is considered a violation of the Privilege and Immunities Clause as well as the Equal Protection Clause). The court did not say that such requirements would always be unconstitutional however, rather a durational residency requirement could be enforceable if it was shown to be a narrowly tailored restriction addressing a compelling government issue.

In Shapiro v. Thompson, the state claimed that it had an interest in discouraging especially needy individuals from moving to the state for benefits so that it could protect its finances from an influx of such individuals in need of benefits. The state also argued a need to efficiently budget its resources, something it claimed to be unable to do since there was no way of anticipating how many needy individuals might move to the state and apply for benefits. The court found neither motive to be sufficiently “compelling” however and rejected the state’s arguments.

Here, Trinity County’s durational residency requirement also seems to lack a narrowly tailored and compelling government interest. According to a local media outlet, upon passing the ordinance, the Board of Supervisors indicated that the durational residency requirement was intended as a protection “for their local communities.” Specifically, Carson Anderson, the Senior Planner for Trinity County, stated that “[t]he board recognize[d] the land rush phenomenon in other jurisdictions” that legalized cannabis production and that they, Trinity County did not “want to see a lot of outsiders pouring in.” (See http://kymkemp.com/2016/09/01/trinity-supes-pass-marijuana-ordinance-one-year-residency-500-permit-cap/.) These statements seem to clearly indicate an understanding that the license constitutes a benefit as well as the county’s an intent to limit the offering of that benefit to individuals who have resided in their particular jurisdiction for a minimum length of time – just like in Shapiro v. Thompson. It seems unlikely that such an interest would be deemed compelling since it is clearly intended, just like in Shapiro v. Thompson, to discourage outsiders seeking a benefit from moving to the jurisdiction.

As such, the one (1) year residency requirement may well be vulnerable to attack for those willing to forge the path. Anyone interested in making such a challenge would require what is referred to as “legal standing” – in other words, someone who has a legal basis to contest the requirement in a court of law. Generally speaking, someone has standing when they have been directly harmed by the law being challenged. In this instance, a valid challenger would be someone who has moved to Trinity County, applied for the license, and already been denied based on the residency requirement. Someone who was close to the one (1) year residency at the time of denial also shows the sheer arbitrariness of the requirement and would thus be ideal. If you believe that you fit this description and are interested in challenging the requirement, we invite you to contact our office using the information below.

The above information is provided for informational purposes only and is not intended as legal advice.  Please contact a lawyer for legal counsel. If you would like legal assistance with regards to California cannabis compliance and laws from the Law Office of Omar Figueroa, please contact us at (707) 829-0215.