Comments on Comprehensive Cannabis Program Update – Grandfathering

January 12, 2024

Tennis Wick, Director (Tennis.Wick@sonoma-county.org)

Scott Orr, Assistant Director (scott.Orr@sonoma-county.org)

Crystal Acker, Supervising Planner (crystal.acker@sonoma-county.org)

Re: Comments on Comprehensive Cannabis Program Update – Grandfathering

Dear Tennis, Scott, and Crystal:

The Neighborhood Coalition advocates for sustainable, environmentally sound, and neighborhood-compatible cannabis policies in Sonoma County. This submission on grandfathering issues is part of a series of comments on the elements of the cannabis program update that Permit Sonoma released in support of its December 13, 2023 meetings on these issues. Policies concerning grandfathering are a vital component of Permit Sonoma’s “effort to improve compatibility between cannabis land uses and the neighborhoods they are located within or near.”1

Permit Sonoma acknowledges that revisions to the ordinance that better protect neighbors and the environment are likely to result in existing operations and proposed projects in the permit process that will be located within new setback boundaries or nonconforming zoning. Policy options to address such nonconforming uses include: allowing existing operations to continue subject to limitations imposed on Nonconforming Uses; setting a sunset date for existing permits; allowing in-process permit applications to continue, either as proposed or with restrictions; or requiring in-process permit applications to withdraw or modify the project to meet current code requirements.2

Because most nonconforming uses are problematic cultivation sites that are incompatible with the neighborhoods where they are located, it makes no sense, as a matter of policy, to allow them to continue. Those operations are the impetus for revising the ordinance, and we hope that this exercise is more than the proverbial closing the barn door after the horses have bolted.

_{1 Press Release, Permit Sonoma to host cannabis ordinance update information meetings Dec. 13 (Nov. 29, 2023)].}

_{2 General Program Elements for Cannabis Land Uses, p. 7 (November 2023).}

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Background. The board of supervisors contemplated that the newly legal cannabis industry would rapidly change during its formative years, and included provisions in the ordinance to clarify that permittees have limited rights. Thus, all permits issued to date have an expiration date, and by law the County has no obligation of any kind to renew them. This issue is well-understood by cannabis cultivators, even while they object to it, as well as regulating agencies (California Department of Cannabis Control and Permit Sonoma). The Department of Cannabis Control has rewritten the statewide regulations several times, and has completely reorganized its regulatory apparatus. Sonoma County adopted extensive revisions to the ordinance in 2018 and failed in its attempt to rewrite it again in 2021 because of an inadequate CEQA analysis. The current exercise is the third effort to rewrite the Cannabis Ordinance to address its failures. Few other County ordinances or programs have witnessed such rapid changes.

Among the provisions in the current ordinance that are pertinent to addressing grandfathering and nonconforming use issues are the following:

Sec. 26-88-250. Commercial cannabis uses.

(e) Term of Permit. Zoning permits for commercial cannabis activities shall be issued for a limited term not to exceed one (1) year from the date of permit approval. Use permits for commercial cannabis activities may be approved for a limited term of up to five (5) years from the date the use permit certificate is issued, after all pre-operational conditions of the use permit have been met. Limited term permits shall expire and have no further effect unless a complete application for renewal is submitted prior to the expiration date. No property interest, vested right, or entitlement to receive a future permit to conduct a commercial cannabis activity shall ever inure to the benefit of such permit holder. (Emphasis added.)

Sec. 26-88-252. Enforcement. Suspension, Revocation or Modification.

Cause for Revocation. A permit, license or approval issued under Sections 26-88-250 through 26-88-258 may be suspended, revoked, or modified by the agency having jurisdiction, if the director or the agricultural commissioner determines any of the following:

(c)(1)(a) Circumstances under which the permit was granted have changed and the public health, safety, and welfare require the suspension, revocation, or modification. (Emphasis added.)

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Recommendations on Grandfathering and Nonconforming Uses. Circumstances under which most cannabis cultivation permits were issued have significantly changed. One major change has been economic. Sonoma County’s consultant (HdL) concluded in 2022 that there is little to no market for outdoor sun-grown cannabis. The combination of a decrease in demand and the significant oversupply in product has crushed margins resulting in only 8 acres of outdoor cultivation in the County in 2022, down from 40 acres the previous year. Why does the County continue to promote a failed economic model – one that is now requiring tax subsidies to cover just the program management costs? The promised revenue stream that would fund innumerable county programs has been a chimera. A second change is that many cultivators have been unable to comply with CEQA or Department of Cannabis Control licensing requirements.

Key to addressing grandfathering and nonconforming issues is that we know far more now than we did in 2016 and 2018. For example:

• Beta-myrcene, a terpene emitted by cannabis, is a carcinogen on the State’s Proposition 65 list of toxins and inundates neighbors 24/7. To our knowledge, the fact that cannabis cultivation exposes neighbors to a carcinogen was never considered in any previous County deliberation. We know of no other agricultural odor that is a known carcinogen and regulated under Proposition 65. Forcibly exposing neighbors to this carcinogen 24/7 violates their rights to enjoy their property, is a public health nuisance, and violates the notification requirements of Proposition 65.

• The County’s ministerial permitting program did not comply with Department of Cannabis Control licensing requirements and allowed outdoor cultivators to game the system to grow more than allowed while avoiding site-specific review.

• Neighborhood compatibility is far from being solved. The current ordinance lists 100/300 feet as minimum setbacks, subject to the Health and Safety Clause § 26-88-250(f). That requirement was ignored in many approvals, apparently at the urging of County Counsel, resulting in violations of health and safety of nearby residents by subjecting them to strong noxious odors containing carcinogenic gases. Environmental impacts and cumulative impacts might further worsen if the proposed program elements are adopted in the revised ordinance.

We respectfully request that Permit Sonoma and the Board of Supervisor take the following actions. It makes no sense to allow cultivation sites to continue that are incompatible with the neighborhoods where they are located, violate the current ordinance, and expose the public to harm.

1. Enact a moratorium on all new outdoor cannabis cultivation permitting until a revised ordinance is adopted.

2. Require expiring outdoor permits to apply for a use permit subject to the requirements of the revised ordinance. Pursuant to § 26-88-250(e), a permit holder has no property interest, vested right, or entitlement to receive a future permit under the previous requirements.

3. For cultivations that are a serious threat to public health, safety, and welfare, invoke § 26-88-252 to terminate existing permits because circumstances under which the permits were granted have changed. Exposure to the carcinogen beta-myrcene is one such threat that was not considered in the initial approval of outdoor cultivation or improperly-filtered indoor/greenhouse cultivation.

4. The EIR should study the negative environmental effect on surrounding residences of allowing non-conforming cannabis cultivation sites to operate under the requirements of the prior ordinance.

5. Do not allow ministerial permits except possibly in industrial-zoned properties for which a thorough CEQA analysis has been previously conducted to provide required protection to the environment and people.

Thank you in advance for listening to and addressing our concerns.

Neighborhood Coalition

Nancy and Brantly Richardson, Communications Directors

SonomaNeighborhoodCoalition@gmail.com

cc: cannabis@sonoma-county.org