Comments on Comprehensive Cannabis Program Update –Cannabis is classified as a Commercial Product
January 10, 2024
January 10, 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: Cannabis is classified as a Commercial Product
Dear Tennis, Scott, and Crystal:
The Neighborhood Coalition advocates for sustainable, environmentally sound, and neighborhood-compatible cannabis policies in Sonoma County. This letter 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 meetings on these issues.
This submission addresses Permit Sonoma’s foundational proposals to classify cannabis as a secondary and incidental agricultural use; and thus, to issue conditional use permits for the cultivation, manufacture, and distribution of cannabis products in AG and RRD zones.
I. The Proposed General Plan and Zoning Code Amendments Do Not Comply with State or Federal Law
Permit Sonoma sets forth a foundational doctrine for its General Plan Amendment that proposes cannabis activities be recategorized as an agricultural use, while recognizing that it is a Schedule 1 substance under the federal Controlled Substances Act.1 The State Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) and Nov 2023 Department of Cannabis Control Regulations refer only to commercial cannabis activities, cannabis plant parts, and cannabis products.
1 2023-24: General Plan Amendment proposal: “The proposed General Plan Amendment includes defining cannabis cultivation as an agricultural use in Sonoma County, while also recognizing that cannabis is classified as a Schedule 1 substance under the federal Controlled Substances Act, and therefore should be subject to additional regulations and limitations compared to other agricultural uses.”
The authority of the State Department of Cannabis Control (DCC) over licensing for all cannabis activity underscores the fact that the local use permit process is not a “land use compatibility” issue; but, rather, specifying conditions to limit a commercial business over which the State has the ultimate authority. The County’s proposed Program Elements must comply with DCC regulations that clearly identify all cannabis activities as commercial uses.
The psychoactive compounds contained in cannabis are very different from food products and require significant regulation that is not needed for an agricultural use. There are extensive DCC regulations governing cultivation, processing and sale emphasizing that fact.
Cannabis is a Schedule 1 controlled substance under federal regulations. Schedule I drugs are defined as having high addiction potential and no accepted medical benefits. Health and Human Services has asked the Drug Enforcement Agency (DEA) to evaluate reclassification to Schedule III, which will require the DEA to analyze clinical safety and efficacy studies. These controlled clinical studies have not been completed and whether or when such a change will occur is speculative.
A 2023 literature review showed more negative effects than benefits for medical cannabis, especially in the 36 available controlled clinical studies (PLoS One, 2023). The 2023 California Health and Safety Code § 109925(a) specifies that cannabis products are not food, drugs (i.e., not used/intended to be used in treatment or mitigation of any disease, nor having any effect on function of the human body), or cosmetics.3 With those exclusions, what remains is the established identity of cannabis as a controlled substance.
The current classification of cannabis as a non-agricultural commercial use in the County’s Cannabis Ordinance must continue to stand, without the change proposed in the County’s 2023-24 proposal.4
In 2021, the Planning Commission and County Counsel, as well as Shute, Mihaly & Weinberger (May 17, 2021 letter to County) all confirmed that cannabis could not be classified as agricultural as this violated State law. Even the Department of Industrial Relations Business specifies that employees working in the cannabis area are subject to IWC Wage Order 4-2001, which provides more employee protections than IWC Wage Order 14-2001 that governs agricultural occupations. California Business & Professions Code § 26065.
Permit Sonoma cannot assume cannabis will be declassified from Schedule I when conducting the EIR or preparing the new cannabis ordinance. Regardless, even if there were a change in the DEA schedule, it would not reduce crime or extensive environmental impacts (water availability, potential groundwater and surface water contamination, high wildfire risk, and lack of public safety infrastructure) that make cannabis activities incompatible with AG- and RRD-zoned land, nor would it reduce noxious odors including carcinogens that negatively impact neighborhood compatibility.
2 DCC Regulations (November 2023): Section 1: Definition (o): “Commercial cannabis activity” includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery, or sale of cannabis or cannabis products as provided for in this division, or acting as a cannabis event organizer for temporary cannabis events.”
3 “Drug” means any of the following: …… (2) An article used or intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human beings or any other animal. (3) An article other than food, that is used or intended to affect the structure or any function of the body of human beings or any other animal. (d) Cannabis product, including any cannabis product intended for external use, is not a drug. Ca. Health and Safety Code § 109925
4 County 2023-24 Proposal: “Currently, cannabis is not considered an agricultural use under the General Plan. Thus, while the zoning code allows cannabis uses on agricultural lands, it does not define cannabis cultivation as an agricultural use, instead defining it as a separate commercial use that involves activities like those of other types of farming. Due to its non-agricultural classification, cannabis operations in agricultural areas are analyzed like other commercial operations and must be consistent with General Plan policies to protect agricultural lands for agricultural production, which requires staff to find that a cannabis operation is secondary to and compatible with “traditional” agricultural uses.”
II. Permit Sonoma’s Proposal Must Clearly Identify All Illegal Activities
As stated throughout our letters, the County proposal clearly violates state and possibly federal law. Again, we request that the County specifically and clearly identify elements, aspects, definitions, or criteria that do not comply with current law. This is a bare minimum obligation under Item 2 (Transparency) in the Program Framework. It is a disservice to Sonoma County residents, cultivators, other business owners and public officials to pretend in an official proceeding that the County has authority to codify illegal activities. This is deeply disturbing and not good governance.
III. Cannabis Cultivation, Processing, Manufacturing and Distribution are Non-Agricultural Commercial Uses - Not “Incidental and Compatible” Agricultural Uses
Any aspects of the proposed program that rely on a change of classification to an agriculture use as a means to justify removing the limits on permitting manufacturing, distribution, and retail on AG and RRD land must fail, according to the facts above.
Permit Sonoma clearly stated the primary goals of updating the cannabis program were to “enhance neighborhood compatibility and environmental protections.” Permit Sonoma identified these goals in its November 29th Press Release,5 which was consistent with the direction given by the Board of Supervisors (March 2022, Framework for Updating the Cannabis program) and the goals reiterated at the December 13th public meeting.
Instead, the Program Elements and proposed Zoning Code “criteria and permitting requirement” amendments significantly increase well-documented impacts and exacerbate cumulative impacts contrary to California’s environmental laws. The proposed cannabis program refers to § 26-88-215 of the Zoning Code yet the proposed program elements do not remotely relate to its traditional agriculture-based Purpose statement.
5 Program Elements: “The primary goals of the cannabis program update are to consider cannabis land uses …. and further enhance neighborhood compatibility and environmental protections. The analysis could result in proposals to expand, restrict, or eliminate cannabis land uses ... update the public on key program elements and the mapping of residential enclaves in an effort to improve compatibility between cannabis land uses and the neighborhoods they are located within or near.” Emphasis added.
Program elements referring to Farm Sales (§§ 26-18-140 and 26-88-215) are deeply concerning. The program elements refer to “tasting rooms,” yet, DCC regulations clearly state that alcohol and cannabis product cannot be stored or served in the same facility, and that cannabis cannot be consumed on a cultivation site. Such a sale would violate California Civil Code § 3479, which includes “the illegal sale of controlled substances” as a nuisance, which can be addressed under nuisance law.
The Zoning Code does not allow selling or serving alcohol (let alone a controlled substance) at a winery, tasting room, or vegetable garden without a discretionary use permit or one-time Special Zoning permit to host a farm to table dinner. Proposing that the cultivation, handling, and sales of cannabis are even remotely like a “farm stand” selling locally grown fruit and vegetables offends our well-established organic and sustainable farming enterprises – assets for which our County is known.
The County’s assumption that outdoor cannabis cultivation conserves and protects the use of high quality, agricultural soils land is misplaced. Most outdoor cultivation does not use the existing soil on site. Instead, cannabis is cultivated in “grow bags” of specially-prepared and heavily amended soil at all stages of growth without any use of native soils. The grow medium, heavily laced, with supplements and chemicals, is eventually discarded, along with a significant amount of plastic covering the ground and from hoop houses. This waste adds to taxpayer cost for public services, especially impacts to our landfills. The techniques used today are more akin to giant, industrial petri dishes that culture cannabis instead of microorganisms or cells. This is bogus “agriculture,” and to call it agriculture is to redefine that word. Our December 28 position paper on outdoor cultivation issues noted that the soil in the “one-acre” cultivation site at 2274 Wellspring Road is not conserved when grow bags are used. Because Sonoma County counts acreage in ways that we believe violate the spirit if not the letter of the law, this “one acre” cultivation destroys almost 2.5 acres of agricultural soil that the County asserts it wants to conserve and protect.
The program elements appear to be devoid of criteria or conditions to enhance neighborhood compatibility. Granted setbacks were increased albeit only modestly and measured from the property line, as required; yet, proposals to reduce parcel sizes for cultivation and increase the cultivation to 10% of the parcel size have far greater consequences for adjacent property owners. The proposed changes to allow even more cultivation, manufacturing, and distribution of cannabis product on Ag- and RRD-zoned lands increases both the intensity and impacts of allowed uses. Thus, the program tasks the EIR consultant to assess the most impactful alternatives.
IV. Mandatory Findings for Incidental Activities
On AG- and RRD-zoned parcels, the required policy finding must be specified in measurable and observable terms to deem an activity “secondary and incidental” to the primary traditional agricultural uses conferred by right in the Zoning Code. After decades of land use advocacy and multiple environmental lawsuits against the County, Permit Sonoma knows that specifying a use as “incidental” or “secondary” to another use, unless specifically quantified, is not allowed by state law.
Nevertheless, in the current proposal, Permit Sonoma has created yet another ambiguous term with the creation of “accessory manufacturing.” While the proposed element entitled “manufacturing” seems to limit cannabis manufacturing to industrial zones, it creates a loophole for “accessory manufacturing”6 proposing merely a limit to the type of extraction, with commercial manufacturing of a controlled substance allowed “Within Agricultural and Resource Zoning Districts (LIA, LEA, DA and RRD).”
Curiously, § 26-10-010, which sets forth the permitted uses for the RRD, has no provision for manufacturing. In effect, this is suggesting that cannabis cultivators be allowed expanded uses beyond what the Zoning Code allows. We submit that this ostensible limitation simply underscores the ambiguity because it identifies nothing by way of a product, while creating intrusion of industrial uses into the rural AG and RRD zones again that have very limited public safety protections – no hazardous materials response teams and limited police/fire services.
Manufacturing and distribution facilities contravene our General Plan’s Goals to preserve agriculture (growing of crops and animals) and to protect our rural character. The land use element of the General Plan is intended to avoid conflicts between the uses of land: “The County recognizes that the policies of GP 2020 represent a legislative balance between the individual rights of property owners and the health, safety, and welfare of the community at large.”
V. Public Safety Risks from Illegal Activities and Crime Make Cannabis Activities Are Not Compatible with Remote, Rural Lands
Cannabis is often the target of criminal activity, which has occurred multiple times in Sonoma County, both at retail dispensaries in cities as well as remote cultivation sites. Extensive regulation and safety precautions are necessary to help combat such criminal activity and protect adjacent landowners. The EIR must study all public safety and required additional public services impacts associated with proposed additional cannabis commercial uses in remote, rural AG, and RRD zones.
6 The proposal purports to limit the manufacturing noting, “accessory manufacturing is limited to chemical extraction using carbon dioxide (ethanol is excluded); mechanical extraction; infusion of non-ingestible products.”
State law is clear, MAUCRSA § 26011.5 provides: “The protection of the public shall be the highest priority for the department in exercising licensing, regulatory, and disciplinary functions under this division. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”
The extensive numbers of sections related to safety and “chain of custody” requirements in the DCC Regulations7 indicate that unsecured cannabis cultivation, manufacturing, and distribution facilities are not compatible with rural lands that have very limited police and emergency service protections. In addition, extensive security measures at cannabis facilities clearly indicate that this is a product vulnerable to theft and other crimes including fraud and murder. Sonoma’s public officials are responsible for the public health of the citizens in our County. Based on all the above facts, classifying cannabis as agriculture would be irresponsible as well as illegal. If Sonoma County were to classify cannabis as agriculture or an incidental agricultural use, it would result in direct, physical harm to County residents and would result in costly litigation for County taxpayers.
VI. Right to Farm – Does Not Apply to Cannabis Cultivation, Manufacturing, or Distribution Activities
The State and other counties with agricultural- and tourist-based economies, such as Napa and Ventura, protect their agricultural lands and adjacent land owners from the deleterious impacts of cannabis cultivation, manufacturing, and distribution activities. Commercial cannabis activities are restricted to commercial- and industrial-zoned land, which avoids land use conflicts with adjacent properties - residences, vineyards, traditional ag operations, tourist businesses, and winery tasting rooms. Those protections also retain the rural character of their agricultural lands – an asset not to be taken lightly as it is our major tourist draw.
Nuisance law is one of the few remedies that property owners adjacent or near cannabis operations can use to protect the “comfortable enjoyment of their life or property.” The law is clear: a nuisance as defined in Civil Code § 3479 provides a single property owner with the legal right to sue a neighbor for creating and maintaining a nuisance.
7 DCCs requirements for cannabis, include extensive “chain of custody” requirements such as: Track and Trace, Accounting, Shipping manifests, Inventory reconciliation, and Licensing requirements as well as safety measures for transportation of cannabis products.
Agriculture is subject to the California Right to Farm Act § 3482.5(a)(1), which provides that traditional agriculture has certain protections from nuisance-related claims.8 Sonoma County has a similar Right to Farm Ordinance; which is subservient to the State law.
Nuisance is defined in § 3479 of the California Civil Code as (emphasis added): “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” Emphasis added.
Permit Sonoma knows that the odor and health impacts from cannabis terpenes as well as forced exposure to Proposition 65-listed carcinogens (e.g., beta-myrcene) is a huge issue for neighborhood compatibility and that said odors interfere with rights to enjoy property. (See December 28, 2023 Odor Issues letter by the Neighborhood Coalition).
For all the stated reasons, cannabis activities are not agriculture or agricultural uses. They do not fall under the protections of the “Right to Farm.” Given Santa Barbara vineyard owners have sued cannabis operators for creating nuisances that impact their vineyards, homes, and businesses, it cannot be argued that cannabis operations are “compatible” with adjacent traditional farming.
Removing current protections under California health and safety laws by inferring that the Right to Farm classification/protections may apply to cannabis activities, even though such classification conflicts State Right to Farm law, would extinguish long-standing rights of neighbors leading to a waste of taxpayer dollars defending lawsuits.
VII. Limited Use Permit Terms – with Periodic Review and Revision at Time of State Relicensing
All cannabis activities and commercial businesses require a State License, with periodic reviews and re-licensing. Per MAUCRSA § 26012(a)9 the State retains authority to issue or revoke a license at any time. Thus, it is logical that local discretionary use permits remain term-limited, in sync with State license renewals, and have clear revocation language.
Cannabis cultivation involves a Schedule I controlled substance with demonstrated, significant crime potential and firearm control requirements with operations requiring on-going monitoring and enforcement activities. The current cannabis ordinance requires many Operator Qualifications (§ 26-88-250 (h)), including background checks and non-approval for serious or violent felony convictions. Permit Sonoma’s proposal to delegate all operator qualifications to the DCC proves again the necessary interrelationship between State licenses and re-approval of County term-limited use permits. The required State license renewal processes remove any rationale for permits that “run with the land in perpetuity.”
8 “No agricultural activity, operation, or facility, or appurtenances thereof, conducted or maintained for commercial purposes, and in a manner consistent with proper and accepted customs and standards, as established and followed by similar agricultural operations in the same locality, shall be or become a nuisance, private or public, due to any changed condition in or about the locality, after it has been in operation for more than three years if it was not a nuisance at the time it began.”
9 “It being a matter of statewide concern, except as otherwise authorized in this division, the department shall have the sole authority to create, issue, deny, renew, discipline, condition, suspend, or revoke licenses for commercial cannabis activity.”
Public safety is the primary responsibility of our public officials. Yet, an approval process requiring both state and the county evaluation of operator qualifications has inadvertently approved applications by felons and individuals violating firearm laws. Thus, proper policy and enforcement must involve both Sonoma County and State determination of operator eligibility to minimize such errors.
California is still grappling with how to regulate the cannabis industry. Although a state law was passed in 2021 requiring new lab testing regulations and a warning issued by DCC that the new law was soon to be implemented, the industry did not change their fraudulent activities. “On Jan. 1, California shut down testing of popular products at a majority of pot labs previously certified to check the potency of cannabis flower, in a drastic move intended to combat widespread labeling scams in the industry… As of Jan. 3, only 12 of the state’s 38 labs had met the new requirements, according to the DCC’s website.” (As reported by SFGate).
DCC Director Nicole Elliott summed up the on-going enforcement issue when she told the Cannabis Business Times in 2022 that potency inflation was “the result of unscrupulous labs that are intentionally undermining the regulatory space, scamming consumers and threatening public health.”
In addition to the difficulties in regulating this industry, there are many unknowns that cannot be adequately studied in a 2024 Program EIR, including climate change, change in weather patterns (e.g., increase in strong winds subjecting greater numbers of neighboring properties to odors and carcinogens), drought, wildfire, and changes in groundwater both in terms of water availability and groundwater contamination.
To prevent unintended consequences, the County’s ordinance should specify discretionary use permits, with periodic review and revision, including continued operator qualification review, given changing conditions and State regulations that are still grappling with industry fraud.
VIII. Alternatives for Evaluation in EIR
In addition to documenting baseline conditions, current permitted and licensed acreage of outdoor cultivation, indoor and mixed light cultivation, number/capacity, and location of processing, manufacturing and distribution facilities, the Program EIR must study the “no project” alternative and other policy scenario alternatives.
We question the County’s decision to propose the most impactful set of definitions, criteria, and performance standards in its December 13 Program Elements, opening AG and RRD lands to commercial and industrial activities.
Given the circular logic embedded in the program, it is questionable whether the program elements can be assessed, quantified and mitigations defined. The County concedes the point that cannabis activities cannot be defined as agricultural production and now is proposing that cannabis be defined as an “Agricultural Use” that, by law, must be “incidental and compatible with” the primary use of the land – which on our AG- and RRD-zoned lands, is agricultural production. As cannabis cultivation is not agriculture, a cannabis permit for another cannabis use cannot be deemed incidental to cannabis cultivation. It must be incidental to and compatible with traditional agricultural production on the parcel.
This mandatory policy finding is complicated by the Program Element proposal to reduce parcel sizes (making even the new setbacks proposed impossible) versus requiring larger parcel sizes that can accommodate the primary agricultural use, required setbacks and ability to mitigate the proposed cannabis acreage or impacts of processing, manufacturing or distribution facilities. The ‘incidental” requirement will be impossible to meet on 5- to 10-acre parcels.
Even on a large LEA parcel, questions arise under State law, our Zoning Code, and the Williamson Act. If a dairy farmer is permitted a cannabis manufacturing facility on the property and then sells the herd of cattle, should the permit be revoked? And, how does the proposed use permit impact the requirements, protections, and tax benefits of the Williamson Act?
Recommended Alternative: Industrial zone indoor cannabis cultivation, processing, manufacture, and distribution.
As demonstrated by Bay Area and Napa counties, the optimum solution for protecting the environment, and ensuring neighborhood compatibility – including neighboring tourist-oriented businesses – is to restrict cannabis cultivation, manufacturing, and distribution to industrial and commercial zones with enclosed and secure structures and ample public services – water, sewer, fire, and police protection. Research is also clear that indoor cultivation provides the highest yields and prices in the market. Such a policy will help ensure the long-term viability of this industry in Sonoma County.
The alternative that is consistent with the General Plan, the Zoning Code, and State law would be to only permit Cannabis Cultivation in industrial zones. Colorado and other states can regulate, enforce, and obtain taxes from their cannabis operations because activities are limited to secure structures.
IX. Conclusion
Alternatives with rational and enforceable definitions, criteria and performance standards need to be defined, analyzed, and mitigated in a Program EIR that addresses known impacts to adjacent property owners and the environment.
The Board of Supervisors has clearly stated the primary goals of updating the cannabis program are to enhance neighborhood compatibility and environmental protections. Permit Sonoma’s foundational proposal to classify cannabis as an agricultural use, to remove limits on manufacturing and distribution of cannabis products in AG and RRD zones, and issue use permits without term limits create new unstudied and cumulative impacts.
Sonoma County taxpayers must not be forced to pay for future mitigations necessary to address unintended consequences or cover County legal fees to defend the proposed Cannabis Ordinance given it is not compliant with state cannabis and environmental laws.
For the reasons outlined above, the Neighborhood Coalition submits aspects of Permit Sonoma’s proposals cannot be supported by law.
Thank you in advance for addressing our concerns and incorporating our comments in the administrative record.
Neighborhood Coalition
Nancy and Brantly Richardson, Communications Directors SonomaNeighborhoodCoalition@gmail.com
cc: cannabis@sonoma-county.org