Commentary: Is CEQA sine qua non for changes to cannabis cultivation ordinance in Nevada County?

Commercial cultivation licenses likely not available in 2018.

NEVADA CITY, Calif. April 30, 2018 – The Nevada County Board of Supervisors (BOS) will hold another special meeting tomorrow, May 1st, to discuss changes to the Cannabis Cultivation Ordinance. CEQA, the California Environmental Quality Act, looms large in the discussion. But, is a full Environmental Impact Report (EIR) and CEQA analysis necessary to make minor changes for this year’s growing season?

Back to basics

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The land use regulations governing cannabis cultivation in Nevada County have undergone multiple changes and updates – starting back in 2012, according to a comparison chart attached to the agenda item.

These ordinances document the changes in policy and have a common denominator – they are exempt from CEQA under a determination made by Nevada County.

Urgency ordinances are routinely exempt from the lengthy review process, because they are, well, urgent.

Kicking the CEQA can down the road

The staff report details some of the state requirements and options for the permitting process, the ultimate goal of any permanent cultivation ordinance. “Under a discretionary permit process, each cannabis cultivation permit would be required to comply with CEQA before the permit could be issued. This includes requirements to mitigate any project specific impacts as well as countywide cumulative impacts that would likely occur as a result of the new regulations. Requiring each project to conduct its own, individualized CEQA analysis would significantly increase the time, cost and complexity of obtaining cannabis permits and significantly impact staff’s ability to process all development permits (cannabis and non-cannabis) in a timely manner. In other words, although the County could invoke this “exemption” for purposes of adopting its own regulations, doing so would simply “kick the CEQA can down the road” and create a process that is significantly more burdensome for both staff and applicants.

So far, Nevada County has done a great job at “kicking the can down the road.”

Consider this: Enacted an outdoor cultivation ban in January of 2016, subsequently overturned by voters in June. Minor changes after the defeat of Measure W in July of 2016, then three meetings with stakeholders resulting in an impasse between growers, opponents and the county. Go figure. The year-long Community Advisory Group (CAG) process in 2017 with consensus on a majority of issues was deemed not be be a resounding success, again. But, it bought a year of little to no action.

Now, with the outdoor growing season set to begin in the next few weeks, CEQA analysis can easily delay any new permanent rule for another year.

A look at what’s next

Should a permanent cultivation ordinance undergo CEQA analysis? Absolutely.

Water quality, erosion control, toxic substance usage, traffic mitigation and more need to be factored in as cumulative impacts on Nevada County and its residents.

Will it take a year or more? Probably.

A draft EIR will be released after all the studies are completed, then public comment will be incorporated, hearings will be held and eventually the Planning Commission and ultimately the BOS will vote to accept the EIR. The process is the same than for any land use regulation and needs to be respected.

What’s on tap for tomorrow?

The BOS will give direction to staff regarding some aspects of the draft ordinance.

A provision requiring registration for personal use cultivation has raised eyebrows. “If the Board chooses to require registration for Personal Use, staff contemplates using a simple online registration form designed to capture information about who is cultivating for personal use and where the grow is located. This information could aid in responding to citizen complaints.”

A database with all the (legal) personal cannabis grown in Nevada County. What could possibly go wrong?

Privacy aspects aside, section 1.7 of the ordinance appears to provide some information as to how the database would be used and who would administer said data: “…Upon request, the Sheriff’s Office shall inform any person proposing to construct or operate a new or relocated School, , School Evacuation Site, Church, Park, Child Care Center, or Youth-Oriented Facility regarding whether there is a Premises upon which Cannabis is known to be cultivated within 1000 feet of the proposed location of such use…” [emphasis added]

During a recent candidate forum, all three candidates for Sheriff expressed their misgivings about law enforcement conducting inspections and enforcing a land use ordinance. While all of them will vigorously enforce the law if an illegal grow is found – inspecting someone’s six plants did not rank high on their priority list.

Chances are the BOS will not require residents to register – an easy “giveaway” for a board majority who prides itself on lessening regulation and efficient customer service. The database however should to be shifted to the Community Development Agency, just as databases containing the location of wineries, industrial zones, farms etc are held by those who issue the permits. Since this is a land use ordinance, code compliance, building and planning departments are the natural candidates to create and update these records.

Commercial cultivation will be limited – according to Section 1.5 G of the draft ordinance: “Cannabis may be Cultivated for Medical Purposes only.” Maybe an Economic Impact Study (EIS) during the CEQA process could shed light on the economic benefits of medical vs recreational commercial cultivation.

As far as any type of commercial cultivation on a temporary basis goes, the staff report offers some options:

However, if the Board is inclined to consider temporary licenses for commercial cultivation, a licensing scheme that relies on the existing ordinance could be drafted quickly and adopted using an urgency ordinance. The urgency ordinance would require a 4/5ths vote of the Board. Potential terms for the temporary permit program would be as follows:

  •  Temporary permits would be allowed only in zones where the Board is now proposing to allow commercial cannabis (specifically AG, AE, and FR)
  • Licenses would be limited to cultivation that complies with the County’s existing ordinance, including limitations on grow sizes and setback requirements. The currently allowed cultivation areas depend on parcel size, but generally range from 6 plants or 300 sf on parcels between 2 and 5 acres to 25 plants or 1000 sf on parcels greater than 20 acres.
  • The County would require only a minimal administrative license-type permit with written landowner consent. No land use permits to allow for permanent or long term cultivation would be issued.
  • Permittees would be subject to an onsite inspection prior to issuance of the temporary permit and agree to a right of entry allowing County staff to conduct additional inspections at any time.
  • Limit the total number of temporary permits (up to 100).
  • Complete permit applications would be due by a date certain. If the number of applications exceeds the number of allowed permits, then permits would be allocated using a lottery system.
  • Per State law, permits would be good for up to 120 days and automatically expire as of December 31, 2018, regardless of when issued. Under the State’s current emergency regulations, a temporary permittee must file a completed application for permanent licensure prior to the expiration of this 120 period in order to obtain an extension on the temporary license. In order to file a completed application for permanent licensure, the applicant must obtain a local authorization for the permanent permit. At this time, it appears unlikely that applicants will qualify for a state extension of the temporary permit because the County will not be in a position to issue this local authorization before the end of the initial 120 day period.
  • Permits would be issued ‘at risk’, meaning that issuance of a temporary permit would not entitle the holder to a permanent license or provide any guarantee or assurance that a temporary cultivation site will comply with future cannabis regulations.
  • Permittees would execute a standard indemnification agreement committing to defend and indemnify the County for all risks and liabilities associated with issuance of the permit and any cultivation activities on the site. Permittees also would be subject to penalties for violating the terms of the temporary permit (including fines, immediate termination of the permit, report to the State, and abatement of the cultivation site).

A four-fifths vote would be required to initiate the urgency ordinance amendment which would come to the BOS for a vote on May 22nd – temporary permits could be issued no later than July 1, 2018.