title
Conduct a public hearing to consider a new ordinance amending Chapter 28 (Zoning Regulations) establishing regulations for the non-commercial cultivation of cannabis for personal and caregiver uses in certain zoning districts as recommended by the County Planning Commission (with minor amendments to comply with recent changes in state law); Find that the proposed ordinance is exempt from further environmental review under Section 15061(b)(3) of Title 14 of the California Code of Regulations; and Consider adopting ordinance language amending Chapter 28, either as recommended by the Solano County Planning Commission or as modified based on proposals previously considered by the Solano County Planning Commission
body
Published Notice Required? Yes _X___ No _ _
Public Hearing Required? Yes _X___ No _ _
DEPARTMENTAL RECOMMENDATION:
1. Conduct a Public Hearing to consider a new ordinance amending Chapter 28 (Zoning Regulations) establishing regulations for the non-commercial cultivation of cannabis for personal and caregiver uses in certain zoning districts within Unincorporated areas of Solano County as recommended by the Solano County Planning Commission (with minor amendments to comply with recent changes in state law); and
2. Find that the proposed ordinance is exempt from further environmental review under Section 15061(b)(3) of Title 14 of the California Code of Regulations because there is no possibility that the project may have a significant effect on the environment; and
3. Consider and take action to adopt ordinance language amending Chapter 28 (Zoning Regulation) regulating non-commercial cultivation of cannabis for personal and caregiver uses in certain zone districts, either as recommended by the Solano County Planning Commission or as modified based on proposals previously considered by the Solano County Planning Commission.
SUMMARY:
In recent years, the Board has addressed cannabis related issues in response to authorities granted under State Law and ongoing changes to the law. In 2013 the Board adopted a permanent ordinance prohibiting medical marijuana dispensaries in the unincorporated areas of Solano County. This provision continues in effect and no changes are recommended. In response to the passage of the Medical Cannabis Regulation and Safety Act (MCRSA) in October 2015 and Proposition 64 (Adult Use of Marijuana Act - AUMA) in November 2016, the Board, in December of 2016, approved an Interim Urgency Ordinance which prohibited the outdoor cultivation of medical cannabis and non-medical marijuana for personal use along with commercial activities associated with the cannabis industry. The Urgency Ordinance was extended by subsequent Board actions until December 6, 2017. In the ensuing period, the Planning Commission has developed a recommended ordinance addressing personal and caregiver use of cannabis (the subject of this item) and a Board Committee of Supervisors Vasquez and Hannigan was formed to explore and report out on commercial cannabis options for the unincorporated areas of Solano County. A report, along with the initial staff analysis of commercial cannabis options and issues, will be presented to the Board in September 2017.
The Planning Commission (PC) began their review of draft regulations for personal cultivation in November 2016 which included both medicinal and recreational cultivation as outlined in state law, as well as “caregiver” cultivation of medicinal cannabis. The Planning Commission held three public hearings; received reports from the Solano County Agricultural Commissioner on the horticultural and agricultural impacts of cultivating cannabis, and Solano County Public Health representatives on possible public health impacts of marijuana regulation. The PC also received updates from staff from a Community Outreach meeting held in February 2017 and an Industry Stakeholder meeting held in March of 2017, in which staff received public input on possible regulations on personal and “caregiver” cultivation as well as comments on commercial types of cannabis regulations. On March 16, 2017, the PC made their formal recommendation on personal and “caregiver” cannabis cultivation as discussed below and in Attachment A. The PC is continuing to evaluate aspects of commercial cannabis licenses.
If adopted by the Board, the PC recommended Draft Ordinance, as amended to comply with recent changes to state law, would allow every parcel in a zoning district that allows a residence by-right the ability cultivate up to six (6) cannabis plants for personal use in accordance with certain health & safety standards. The Draft Ordinance would also allow a primary caregiver, as that term is defined by law, to cultivate no more than six (6) mature cannabis plants or twelve (12) immature cannabis plants per patient for up to five (5) patients, subject to a yearly administrative permit and compliance with certain health & safety standards.
The PC recommended ordinance, as modified to reflect recent changes to state law, varies in several ways from ordinance concepts considered by the Board at the time the urgency ordinance was established. Most notably, the PC draft allows outdoor personal cultivation with certain standards whereas concepts originally considered by the Board, prohibited all forms of outdoor personal cultivation, as does the current urgency ordinance. Furthermore, original concepts considered by the Board and the PC contained more standards for indoor cultivation. The Board has the option of further considering some other previously reviewed standards for inclusion in the ordinance that is ultimately adopted.
DISCUSSION:
Status of State Law and Recent Changes
After the Planning Commission issued their recommendation in March 2017, SB 94 (referred to as MAUCRSA - Medicinal Adult Use Cannabis Regulation and Safety Act) was signed by Governor Brown on June 27, 2017. The primary purpose of MAUCRSA was to try to combine the Medical Cannabis Regulation and Safety Act (MCRSA) and the Adult Use of Marijuana Act (AUMA) to harmonize the laws regulating medicinal and recreational cannabis.
Previously, under state law medical cannabis cultivation for personal use was limited to a maximum of 100 square feet of canopy, while cultivation of personal recreational cannabis was limited to six (6) plants. Under MAUCRSA references to medical and recreational cannabis were eliminated in favor of calling both types of cultivation “personal cultivation”. Also, the amount of cannabis that can be cultivated for individual personal medicinal and recreational use is now the same - 6 plants. Instead of 500 square feet for “caregiver” cultivation for up to five patients, MAUCRSA allows a caregiver to cultivate no more than six (6) mature plants or twelve (12) immature plants per patient for up to five (5) patients. As a result of this law, the Planning Commission’s recommended Draft Ordinance on personal and “caregiver” cultivation has been amended to reflect these changes (Attachment A).
MAUCRSA continues to allow local jurisdictions to regulate or even ban both outdoor cultivation of personal and “caregiver” cultivation. MAUCRSA continues to allow local jurisdictions to ban indoor “caregiver” cultivation. However, MAUCRSA does not allow local jurisdictions to ban indoor cultivation for personal use. Local jurisdictions must allow indoor cultivation of up to six plants within a private residence or in an accessory structure on the grounds of a private residence. Local jurisdictions can further regulate indoor cultivation if they choose.
Framework under Solano County Zoning Regulations
The County PC recommended a draft ordinance that will allow personal and “caregiver” cultivation in zoning districts which allow a residence as a primary use. This would include Rural Residential, Residential Traditional Community including Mixed Use and Multi Family, in addition Zoning Districts that allow residences by right - which includes the Exclusive Agricultural zones, the Marsh Preservation and Watershed/Conservation zones and Commercial Recreation zones. Zoning Districts that do not allow a residence by-right and therefore would not be eligible to cultivate personal use cannabis are the Industrial Water Dependent Zone (I-WD), the Industrial Agricultural Service Zone (I-AS), Commercial Highway, Commercial Neighborhood, and Commercial Service Zones. Staff has put together a series of Zoning Tables which indicates where primary dwellings are allowed by-right and where they are not permitted. (Attachment B).
The draft ordinance, as proposed by the County PC reflects the “new” state cultivation standards of no more than to six (6) mature plants for non-commercial personal cultivation and “caregiver” cultivation of no more than six (6) mature plants or twelve (12) immature plants for up to five (5) patients. It is intended to address reasonable health and safety regulations for such cultivation. As proposes, personal cultivation of up to six (6) plants may occur outdoors if it occurs on a parcel with a residence inhabited by the person for whom the cannabis is intended; on the rear 50% of the parcel, screened from public view and with no part of the cannabis plant within ten (10) feet of any property line or easement. The County PC proposed ordinance does not contain a recommendation for a minimum parcel size for outdoor personal cultivation.
The draft ordinance requires “general standards” for “caregiver” cultivation regardless of whether the cultivation occurs indoors or outdoors. A complete list of these “standards” are provided in Table 1.0 “Regulatory Options Considered by Planning Commission” (Attachment C). Some of the general standards for “caregiver” cultivation in the County PC Draft Ordinance include the requirement that the cultivator obtain a yearly Administrative Permit from the Department of Resource Management, pay permit fees, and provide proof of ownership or landlord permission. A complete list of these standards is provided in Table 1.0 “Regulatory Options Considered by Planning Commission” (Attachment C).
Evolution of the Planning Commission Recommended Ordinance
At the November 17, 2016 County Planning Commission meeting, a draft ordinance regarding personal and “caregiver” cultivation was presented by staff reflective of standards discussed by the Board of Supervisors when the urgency ordinance was adopted in 2013. This first draft ordinance presented to PC banned all outdoor cultivation (medicinal, recreational and caregiver) and required indoor personal and medicinal growers to register with the Department of Resource Management. The first draft also required an Annual Permit from Resource Management for indoor “caregiver” cultivation. The Commission received significant testimony during their public meeting (Attachment H - County Planning Commission Reports and Minutes) with the concerns being that the proposed ordinance was restrictive and contained standards that would be difficult to enforce. The County PC public hearing was continued to January 19, 2017 with the direction to staff to bring back additional personal cultivation options for the Planning Commission’s consideration. On January 19, 2017, staff provided a menu of regulatory options for personal and “caregiver” cultivation to the Planning Commission for their consideration. The Planning Commission reviewed each of the options, received public comment, and directed staff to revise the draft to reflect these recommendations. Staff presented a revised draft ordinance with the requested edits to the Planning Commission on March 16, 2017 and the Planning Commission voted to make a formal recommendation to the Board to adopt the Draft Ordinance (Attachment A). The Planning Commission staff reports, attachments, draft ordinances and minutes of the meetings have been distributed to the Board. Also, included with the previously distributed materials is Table 1.0 “Regulatory Options Considered by Planning Commission” which illustrates the evolution of the regulations presented at each Planning Commission meeting. (Attachment C)
Community Outreach
The Department of Resource Management maintains a list of Homeowner’s Associations for project notification purposes. Staff contacted each association with an invitation to attend an association sponsored meeting to discuss cannabis regulations; no response was received. Staff also contacted Neighborhood Watch Groups within the unincorporated area also expressing a willingness to discuss the topic of potential cannabis regulations. Staff was invited to speak at the Willotta Oaks/Green Valley Landowner’s Association meeting on June 5, 2017 and at the Horse Creek Neighborhood Meeting in Elmira on June 20, 2017. A summary of these meetings is included as Attachment D. One notable point from the Neighborhood Watch meetings was the importance of enforcement and enforceability of whatever type of cannabis regulations are adopted.
As referenced above, staff conducted a Community Outreach Meeting on February 8, 2017 to obtain public input on medical and non-medical cannabis and also receive comments on the commercial aspects of cannabis. A majority of the public were in support of allowing outdoor personal cultivation with setbacks and safety standards for indoor and outdoor cultivation.
Staff also conducted an Industry Stakeholder Meeting on March 8, 2017 to receive input on possible cannabis regulations for potential commercial cannabis regulations from cannabis industry representatives. A summary of both of these meetings is attached though the February 8th meeting summary is more relevant to the personal and caregiver ordinance that is the topic of the current PC recommended draft ordinance. (Attachment E)
Monitoring other Legislation and Regulatory Activities
Cannabis legislation continues to evolve and change. The Bureau of Marijuana Control, the Department of Food and Agriculture and the Department of Public Health all released draft regulations based on MCRSA in April of 2017. However, due to the passage of the MAUCRSA in June 2017, these departments will be drafting new regulations under the Emergency Rule Making Procedures to create regulations based on MAUCRSA. Each agency has reported that they do intend to offer temporary licenses to applicants with these temporary licenses expiring every 90 days until the final regulations are adopted. State applicants are still required to show local approvals prior to the State Departments issuing these temporary licenses.
Solano Cities
Staff has been following how the cities within Solano County are addressing personal and “caregiver” cultivation. A summary of this information can be found in Attachment F. Overall, most of the cities (Benicia, Dixon, Fairfield, Suisun, Vacaville) prohibit outdoor personal cultivation but allow indoor cultivation as provided by MAUCRSA - 6 plants grown within a private residence or in an accessory structure on the grounds of a private residence. Fairfield and Dixon are the only cities with permanent ordinances prohibiting outdoor cultivation; Benicia, Suisun and Vacaville have moratoriums in place. The City of Rio Vista allows personal indoor cultivation in accessory structures with security standards and setbacks. Rio Vista has recently adopted an ordinance allowing dispensaries and other commercial cannabis businesses. The City of Vallejo currently has 11 dispensaries in compliance with their regulations and are currently studying the possible allowance of cultivation and manufacturing in association with those dispensaries. The City of Dixon allows personal cultivation per MAUCRSA and is moving forward with commercial cannabis businesses including dispensaries. Benicia, Suisun, and Vacaville are currently conducting public outreach and studying whether to allow or regulate types of commercial cannabis operations.
Adjacent Counties
Staff continues to monitor cannabis regulations in neighboring counties. A summary of this information can be found in Attachment G. Contra Costa County, Napa County and Sacramento County prohibit all outdoor personal cultivation. Yolo County allows outdoor personal cultivation with setbacks and location development standards as well as commercial outdoor cultivation of medical cannabis with development standards. As stated in MAUCRSA, all local jurisdictions must allow indoor personal cultivation but Napa County further limits indoor cultivation to 25 square feet. Sacramento County limits indoor medicinal cultivation for caregivers to nine plants. It appears that most counties, like Solano, are undergoing further study on regulating cannabis as state law changes and as local jurisdictions wait for final state regulations from the Department of Food and Agriculture, Department of Public Health and the Bureau of Cannabis Control.
Options to the Planning Commission Recommended Ordinance
The draft ordinance being presented to the Board reflects the final recommendations from the PC. Table 1.0 “Regulatory Options Considered by Planning Commission” (Attachment C) summarized the sequence of draft ordinances and the range of standards considered by the PC. The most significant variation is in outdoor personal cultivation. The initial draft ordinance presented to the PC prohibited outdoor personal cultivation whereas the final recommended ordinance allowed outdoor personal cultivation. The Board has the ability to choose a standard considered that was previously reviewed by the PC including the standard to prohibit outdoor personal cultivation. Board may also consider the option of blending standards between the original standards provided to the PC that was reflective of previous Board discussion and the final version recommended by the PC. Should the Board ultimately choose any of these previously considered options they will be incorporated into the final adopted ordinance. Examples of previously considered options found in Table 1.0 “Regulatory Options Considered by Planning Commission” (Attachment C):
• Prohibition of outdoor personal cultivation (November 7, 2016)
• Require annual registration with the Department of Resource Management (November 7, 2016)
• Limit the minimum parcel size for outdoor personal cultivation to 2.5 acres or larger (January 19, 2017)
• Prohibit outdoor caregiver cultivation (November 7, 2016)
• Require caregiver cultivation to be conducted indoors in a private residence or in an accessory structure such as a greenhouse (November 7, 2016)
• Require minimum parcel size for outdoor caregiver cultivation to 2.5 acres or larger (January 19, 2017)
• Require 50’ setbacks from grow sites to property boundaries for outdoor personal cultivation (January 19, 2017)
It is notable that most nearby jurisdictions strongly regulate or prohibit outdoor personal cultivation. Reasons vary but one recurring factor is the potential nuisance and safety factors associated with outdoor personal cultivation, particularly in the caregiver category due to the number of plants allowed. Potential nuisances associated with “caregiver” cultivation are security and odor. Staff believes the indoor standards recommended by the Planning Commission are reasonable and enforceable. More stringent standards for indoor cultivation for personal use are possible under the state law, but could be intrusive and would require more staff resources to carry out compliance reviews due to increased need for inspections.
Based on prior recommended provisions considered by the Board, a blend between those provisions and the current recommended Planning Commission ordinance might include a more reserved approach to outdoor cultivation for personal and caregiver use. Either prohibiting all outdoor personal cultivation or limiting outdoor personal cultivation to parcels greater than 1 acre, 2.5 acres, or 5 acres minimum, are options corresponding to the RR 2.5 and RR 5 zone districts. Limiting outdoor personal cultivation to a larger parcel size may reduce the nuisances such as odor and security associated with outdoor personal cultivation. For informational purposes, there are approximately 1412 parcels that are larger than 1 acre but less than 2.5 acres within the unincorporated area. There are approximately 1450 parcels that are at least 2.5 acres in size and smaller than 5 acres. There are approximately 7370 parcels in the unincorporated county that are at least 5 acres are larger in size. The Board may also consider limiting outdoor “caregiver” cultivation based on parcel size or require all “caregiver” cultivation be grown within an accessory structure, such as a greenhouse, which may reduce odor and security issues. The PC ordinance allows outdoor “caregiver” cultivation on parcels of at least one acre in size with setbacks 20’ from the property boundaries. The Board could consider an increase in parcel size to further reduce potential nuisances. The Board could also require indoor cultivation within a greenhouse, on a larger parcel size, to further reduce possible nuisances associated with larger cultivation sites such as odor, security, and lighting.
ENVIRONMENTAL REVIEW:
All zones where the proposed personal use cannabis cultivation would occur are already able to have a “kitchen garden” incidental to a residential use. In accordance with the California Environmental Quality Act (CEQA), it has been determined that this project is exempt from further environmental review under Section 15061(b)(3) of Title 14 of the California Code of Regulations because there is no possibility that the project may have a significant effect on the environment.
FINANCIAL IMPACT:
The cost to analyze County options for regulating medical and recreational cannabis activities are covered by the General Fund within the County Counsel and Department of Resource Management budgets. Implementation and enforcement of this ordinance will be initiated utilizing current staff resources. It is unknown at this time the full extent of the staff and fiscal impacts associated with building and public safety enforcement as a result of this ordinance, which could be significant.
ALTERNATIVES:
The Board may choose to:
1. Direct staff to make specific modifications to the Planning Commission recommended Draft Ordinance.
2. Refer the entire ordinance back to the Planning Commission for further study.
OTHER AGENCY INVOLVEMENT:
Solano County Department of Public Health and the Solano County Agricultural Commissioner’s Office.
CAO RECOMMENDATION:
APPROVE DEPARTMENTAL RECOMMENDATION