title
Receive a presentation from David McPherson, Principal with HDL Companies, regarding the changing marijuana regulatory environment; Conduct a public hearing to receive input from the public and an update on the results of staff’s research efforts relative to medical marijuana regulation; Provide comments and direction to staff on components and provisions of a permanent ordinance addressing personal marijuana regulation; Direct staff to prepare a twelve month extension of the interim urgency ordinance banning commercial cultivation, delivery, distribution, manufacturing, testing and transportation of marijuana; and Direct staff to continue to explore possible options for allowing indoor commercial cultivation and testing facilities in certain industrial zone districts
body
Published Notice Required? Yes ____ No _X _
Public Hearing Required? Yes __ _ No _X__
DEPARTMENTAL RECOMMENDATION:
The Department of Resource Management recommends that the Board of Supervisors:
1. Receive a presentation from David McPherson, Principal with HDL Companies, regarding the changing marijuana regulatory environment;
2. Conduct a public hearing to receive input from the public on commercial marijuana activity and personal cultivation;
3. Consider the findings of staff’s research regarding the regulation of marijuana by other states, including an update of California and local legislation, and possible marijuana license types by zone districts;
4. Direct staff to return on December 6 with an ordinance prohibiting outdoor personal cultivation while permitting indoor personal cultivation with specific regulations to reduce the associated potential nuisances, such as odor control, security and other possible nuisances;
5. Direct staff to prepare and return on December 6 with a 12 month extension of the interim urgency ordinance that would expire on January 4, 2018;
6. Direct staff to continue to explore possible options for allowing indoor commercial cultivation and testing facilities in certain industrial zone districts and return with further recommendations prior to expiration of the urgency ordinance.
SUMMARY:
On February 9, 2016, the Board adopted a 10 month and 15 day extension of an interim 45 day urgency ordinance prohibiting the commercial cultivation, delivery, distribution, transportation, manufacturing and development of testing facilities for medical marijuana in unincorporated Solano County. This was in response to the Medical Marijuana Regulation and Safety Act (MMRSA) which went into effect on January 1, 2016 - (Note: MMRSA has now been renamed the Medical Cannabis Regulation and Safety Act - MCRSA). The urgency ordinance will expire on January 4, 2017 unless extended. Previously, the Board had adopted a Zoning Ordinance Amendment prohibiting medical marijuana dispensaries in all zoning districts in unincorporated Solano County and that ordinance has been and will continue to be in effect unless amended.
On August 2, 2016, staff gave an update to the Board on the public outreach and general research conducted by staff on marijuana legislation. At that time, the Board also on August 2 introduced and later adopted an ordinance imposing a business license tax of up to 15% on the gross receipts on any medical and non-medical marijuana businesses in Solano County. As this ordinance proposes a tax, it has been placed on the November 8th ballot as Measure C.
Pursuant to Board direction, staff has expanded upon the information that was presented in August to the Board regarding impacts of recreational use in other states where it has been legalized and the current regulation of medical marijuana in other local jurisdictions (Attachments A, B and C - Summary of State Marijuana Regulations - Medical Marijuana, Summary of State Marijuana Regulations - Recreational Marijuana and Current/Proposed Local Ordinances). Staff has also been following closely efforts by the State of California to promulgate medical marijuana regulations as required by MCRSA. It is clear the State has much more work to do given the scope and complexity of these new rules. The potential passage of the recreational marijuana measure titled the Adult Use of Marijuana Act (AUMA)(Proposition 64 on the November 8th ballot) further complicates the evaluation of options.
Given that Solano County currently has not addressed the issue of personal cultivation in prior ordinance adoptions (the ordinance prohibiting dispensaries and the current urgency ordinance prohibiting many other forms of commercial medical marijuana activities), and the fact that Proposition 64, if enacted, would preclude local jurisdictions from prohibiting indoor cultivation for personal use, staff believes the most immediate action should be to take early action to establish rules for indoor personal cultivation while banning all outdoor cultivation, whether for commercial or personal purposes. If the Board concurs with this approach, staff will bring an ordinance forward on December 6, 2016 reflective of this action which will include standards for personal cultivation. Staff is also recommending that the urgency ordinance be brought forward on December 6 for a one year extension, as allowed under State law, to give the County additional time to sort through the implications of the new recreational measure, should it pass, and to be better informed as to how the State will be addressing marijuana issues that are still evolving. It will also give staff time to further analyze possible future changes to allow indoor commercial cultivation and laboratory testing in industrial zones. These are specifically noted because staff received some positive input for these two categories of commercial marijuana activities.
DISCUSSION:
MCRSA requires that the State adopt regulations and create a licensing program for commercial marijuana activities, such as the cultivation, distribution, and transportation of medical marijuana. MCRSA also contains specific provisions that allow local governments to enact ordinances further regulating or prohibiting these types of commercial marijuana activities within their local jurisdictions. The County’s Interim Urgency Ordinance currently bans commercial cultivation, delivery, distribution, transportation, manufacturing and testing facilities for medical marijuana. The County currently does not regulate personal cultivation of medical marijuana beyond what is allowed per MCRSA which is 100 square feet for personal cultivation (indoor or outdoor) and 500 square feet (indoor or outdoor) for caregivers with up to 5 patients. The Interim Urgency Ordinance is set to expire on January 4, 2017. (The Board previously approved Ordinance 2013-1736 banning medical marijuana dispensaries which remains in effect.)
On June 28, 2016, AUMA which proposes to legalize recreational marijuana for adults over the age of 21 qualified for the November 2016 ballot as Proposition 64. AUMA is patterned after MCRSA in that it will regulate adult use of recreational marijuana using most of the same type of licenses as medical marijuana for recreational marijuana. MCRSA includes 12 different licenses involving cultivation, nursery, manufacturing, testing, dispensary, distribution and transportation. (See Attachment D, Types of Commercial Marijuana Licenses).
However, commercial marijuana activities under AUMA differ from MCRSA in that AUMA allows a “microbusiness” which is vertical integration of several license types; and a provision for large scale cultivation (over 1 acre in size). Descriptions of these licenses are included in Attachment D - Types of Commercial Marijuana Licenses.
AUMA also differs with MCRSA on personal and caregiver cultivation. AUMA of course, has no provision for caregiver cultivation, and it allows personal indoor cultivation of recreational marijuana by right in a residence or in an outbuilding of a residence. Instead of using square footage limits like MCRSA, AUMA allow 6 plants per residence as opposed to MCRSA’s 100 square feet.
Like MCRSA, AUMA allows for local control of marijuana with one exception. AUMA does not allow local jurisdictions to ban private residential indoor cultivation or indoor cultivation on the grounds of a residence. Therefore, at a minimum, the County will have to allow indoor cultivation in a residence or in a secured building on the grounds of a residence. AUMA does allow the County to “reasonably regulate” personal cultivation.
Staff prepared tables addressing the different medical marijuana license types as they may apply to each of the zone districts in the unincorporated County along with possible regulatory standards should the Board consider permitting that marijuana license type. Since AUMA does not allow local jurisdictions to ban indoor personal cultivation in a private residence, the tables show exactly what zone districts allow dwellings and where personal cultivation would be allowed by AUMA. The Manufacturing/Industrial table also describes which district could support indoor commercial cultivation and research/testing facilities should the Board consider allowing some type of commercial marijuana businesses. Included in these tables addressing medical marijuana licenses and zone types, there is a section addressing AUMA license types and a map of unincorporated areas by that particular zone district. (See Attachments E, F, G, and H- Possible Medical Marijuana License Use Type by Agriculture Zone District, Possible Medical Marijuana License Use Type by Commercial Zone District, Possible Medical Marijuana License Type by Manufacturing/Industrial Zone District and Possible Medical Marijuana License Type by Residential Zone District.)
Meetings
As mentioned during the previous update in August, staff has met with Health and Social Services and Sheriff’s Departments staff to gain insight as to their stance on MCRSA and AUMA. Both agencies have recommended that the Board adopt a permanent ordinance prohibiting commercial cultivation, delivery, distribution facilities, transportation facilities, manufacturing, processing and testing facilities in Solano County. Public Health has submitted a position paper addressing marijuana use (Attachment I - Public Health Position Paper) which outlines their concerns with marijuana and potential impacts to public health.
Staff met with Solano Agricultural Commissioner Jim Allan to discuss medical marijuana cultivation in Solano County and how other Agricultural Commissioners were handling the new MCRSA regulations. It was noted that there are some counties choosing to regulate and other choosing to completely prohibit all aspects of the commercial marijuana industry.
Staff met with the Agricultural Advisory Committee (AAC) and found that no member was in favor of outdoor or indoor cultivation of medical marijuana on agricultural zoned properties citing nuisance impacts on their property, including odors, trespassing, and the potential for criminal activity that may be associated with commercial cultivation sites. Attendees concluded that if the County chooses to regulate commercial cultivation that it should only be allowed indoors on industrial zoned properties with set standards for security and public safety. A majority of members were supportive of personal cultivation of medical marijuana as long as there were standards set by the County for mitigation of nuisance impacts, safety and security.
Staff met with the Solano County Farm Bureau and found most members were also against indoor or outdoor commercial cultivation of marijuana on agriculturally zoned properties. Concerns over security of their property, trespassing and crime/theft of their farm equipment were given as reasons. Some members believed that indoor commercial cultivation might be feasible in an industrial zone with additional county permitting that would require security and other measures to reduce potential nuisances or criminal activity.
Monitoring other Legislation and Regulatory Activities
Staff continues to monitor other jurisdictions as they move forward with establishing marijuana regulations. Most of the cities within Solano County have banned commercial cultivation of medical marijuana as well as distribution, testing, processing, and manufacturing as described in MCRSA. The City of Vallejo has established regulations regarding existing dispensaries. City staff will be reporting back to the Vallejo Council on November 1 with potential regulations regarding on-site cultivation and delivery service for their permitted dispensaries. Both the cities of Benicia and Rio Vista regulate personal medical marijuana cultivation. Rio Vista requires registration with their police official and requires the grow area to be indoors and secured. Benicia requires the grow area to meet specific setbacks. The City of Dixon recently approved an ordinance repealing a ban on commercial cannabis activity and allowing two dispensaries to operate within the city limits of Dixon. See Attachment C- Current/Proposed Local Ordinances.
As directed by the Board, staff researched and compared California medical marijuana legislation with Colorado, Oregon, Washington and Hawaii. Comparisons were made on local control, taxes, personal cultivation, caregiver cultivation, dispensaries and impacts since legislation. Staff also researched and compared the proposed AUMA regulations with regulations of states that have legalized recreational marijuana. These states include Oregon, Washington, Colorado and Alaska. Staff compared local control, tax rates, personal cultivation, commercial cultivation, dispensaries/retail stores, and impacts since legalization. Both of these comparison tables are included as Attachment A & B (Summary of State Marijuana Regulations - Medical Marijuana, Summary of State Marijuana Regulations - Recreational Marijuana.)
Basis for Staff Recommendation/Options
Since, the current interim urgency ordinance does not address personal cultivation as defined by MCRSA and with AUMA pending voter approval; staff believes that addressing personal marijuana cultivation should be done now. Staff has been and is continuing to research how other jurisdictions are approaching personal cultivation especially with the possibility of AUMA passing and losing the ability to ban personal cultivation in private residences.
Staff believes it is important to extend the interim urgency ordinance beyond the expiration of January 4, 2017. This will continue the ban on commercial marijuana activities while allowing the County to continue to monitor what develops with State regulations both as they are developed by the State departments charged with implementing MCRSA, and should it pass, AUMA. The extension will also allow staff the opportunity to explore how other local jurisdictions in California are choosing to regulate commercial medical and possible recreational activities in the local area and across the state.
Staff is recommending that the Board direct staff to prepare a draft ordinance addressing personal cultivation specific to MCRSA as well as AUMA should it pass November 8th. There are several options the Board could consider for regulating personal cultivation.
The options for regulating personal marijuana cultivation include:
Least restrictive:
Allow both indoor and outdoor personal cultivation as allowed by MCRSA (100 sf personal) and AUMA (6 plants) with no additional County regulations.
Minimally restrictive:
Ban outdoor personal cultivation and allow only what is defined in MCRSA (100 sf) and in AUMA which is 6 plants cultivated indoors, in a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, with no additional County regulations.
Most restrictive:
Ban outdoor personal cultivation defined by MCRSA (100 sf) and allow only what is required under AUMA which is 6 plants cultivated indoors, in a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, with County standards. County standards could include a requirement to obtain a building permit for room or accessory structure alterations, a letter from the landlord approving the cultivation, requirements to reduce nuisances such as odor, and trespassing and possible registration with a County department.
A variation of the most restrictive personal cultivation standard described above reflects the type of input staff has received from its outreach in the community. The key for staff will be establishing effective regulations that are reasonably enforceable such as setbacks and building permit requirements for building modifications.
Assuming that the Board concurs and the urgency ordinance is extended, one area of staff focus will be the possibility of indoor commercial cultivation and laboratories in the industrial zoned districts. As already noted, these were areas where there might be some support for further study based on staffs outreach to date. Staff would initiate more outreach to determine the level of support for these types of uses in the noted zoning districts and the potential issues that might be associated with such as uses. Water and energy use and the potential of these businesses for nuisance impacts would be areas of focus.
FINANCIAL IMPACT:
The cost to analyze County options for regulating medical marijuana cultivation facilities are covered by the General Fund within the County Counsel and Department of Resource Management budgets.
ALTERNATIVES:
The Board may choose to:
1. Not extend the urgency ordinance that prohibits commercial cultivation, delivery, distribution, transportation, manufacturing and development of testing facilities for medical marijuana in unincorporated Solano County; or
2. Direct staff to draft an ordinance allowing outdoor personal cultivation in addition to regulating indoor personal cultivation.
Staff does not recommend these alternatives as the input received as a result of staff outreach was not supportive of any outdoor cultivation, personal or commercial in the unincorporated area. Extending the urgency ordinance will allow staff to further study the options for possibly allowing commercial indoor cultivation businesses and testing laboratories in the industrial zone areas. These potential businesses would fall under the new business license tax should that tax measure pass on November 8.
OTHER AGENCY INVOLVEMENT:
County Counsel reviewed this item. The County Administrator concurs with the recommended action.
CAO RECOMMENDATION:
APPROVE DEPARTMENTAL RECOMMENDATION