County of Sonoma Agenda Item Summary Report

Transcription

1 County of Sonoma Agenda Item Summary Report Agenda Item Number: 39 (This Section for use by Clerk of the Board Only.) Clerk of the Board 575 Administration Drive Santa Rosa, CA To: Sonoma County Board of Supervisors Board Agenda Date: February 2, 2016 Vote Requirement: 4/5 Department or Agency Name(s): County Administrator s Office / Permit and Resource Management Department Staff Name and Phone Number: Veronica Ferguson, Tennis Wick, Title: Supervisorial District(s): Countywide Interim Urgency Ordinances for Medical Marijuana Cultivation and Resolution of Intention Recommended Actions: 1. Adopt Urgency Ordinances and make specific findings to maintain current local regulations regarding marijuana cultivation (4/5 vote). 2. Adopt a Resolution of Intention directing staff to develop new zoning regulations to permit marijuana cultivation, storage, distribution, deliveries, manufacturing and other marijuana regulations (Majority vote). Executive Summary: These actions would maintain Sonoma County s current laws related to medical marijuana in light of new State legislation, and direct staff to engage in community outreach and policy analysis to develop comprehensive local land use regulations for continued safe access to medical marijuana. On January 1, 2016, the Medical Marijuana Regulation and Safety Act (MMRSA) took effect, setting forth a deadline of March 1, 2016, for local governments to regulate the cultivation of marijuana. The Urgency Ordinances (Attachments A and B) are necessary to maintain local control over land use, which is critical to the public safety, health and welfare, and will provide the time necessary for the due diligence and thoughtful deliberation required for sound policy development. Background In 1996, voters adopted Proposition 215, entitled the Compassionate Use Act, which allowed for the use of marijuana for medicinal purposes by qualified patients and for caregivers to provide medical marijuana and receive reimbursement for their costs. Following adoption of the state proposition, many new land uses evolved, but the interplay between federal, state, and local law was unsettled. More recently, the law has established some statewide parameters for maintaining local land use controls.

2 In 2005, the Board adopted an urgency ordinance imposing a temporary moratorium on the establishment of medical marijuana dispensaries to allow the County time to engage the community, study the issue, and produce an appropriate permitting and land use policy. While the dispensary ordinance was being developed, the Board enacted Resolution No in 2006, which set Sonoma County limits on dried marijuana and plants (3 pounds of dried marijuana and 30 plants per qualified patient) above the state default possession and cultivation limits (8 ounces of dried marijuana in addition to no more than 6 mature plants or 12 immature plants per qualified patient). In 2007, the Board adopted Ordinance 5715 amending the zoning code to permit medical marijuana dispensaries as a conditional use within certain commercial zoning districts, and setting minimum location and operational standards. In 2012, the Board adopted another amendment to the zoning code establishing a maximum limit of nine dispensary permits within the unincorporated area of the County. New State Law The Medical Marijuana Regulation and Safety Act ( MMRSA ), consisting of AB 243 (Wood), AB 266 (Bonta) and SB 643 (McGuire), was signed into law by Governor Brown on October 9, This legislation constructs a comprehensive framework for the regulation of commercial marijuana, covering a broad array of topics including cultivation, delivery, transportation, manufacturing, environmental standards and enforcement, general enforcement, advertising and labeling, employer/workplace restrictions, appellation/organic standards, fees and taxation, safety standards, criminal penalties, and tracking and tracing systems. MMRSA also establishes a dual licensing scheme under which anyone engaged in commercial cannabis activity must first obtain a local license or permit, and then a state license. While MMRSA took effect on January 1, 2016, the estimated start date for the new State licensing program is not until January 1, Once the State s licensing scheme is developed, only qualified patients or primary caregivers who cultivate no more than 500 square feet (or 100 square feet for each qualified patient) will be exempt from commercial licenses. While MMRSA replaces cooperative and collective cultivation with licensed commercial cultivation, growing cooperatively/collectively remains a defense to prosecution until the State s licensing scheme is implemented. March 1 Deadline to Regulate Cultivation Despite MMRSA s January 1, 2018, start date for state licensing, AB 243 specified that if a local government does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana... then commencing March 1, 2016, the [State] shall be the sole licensing authority for medical marijuana cultivation. (Health & Safety Code (c)(4)). This has been interpreted to mean that if the local government does not explicitly regulate cultivation by March 1, 2016, it will lose its opportunity to do so. As a result, many local governments have taken action to regulate cultivation since the passage of MMRSA. Local Regulations Sonoma County currently has two local regulatory mechanisms that impact medical marijuana cultivation: 1) Resolution No , which adopted local Guidelines establishing limits on

3 possession and cultivation of marijuana under the Compassionate Use Act; and, 2) the Zoning Code, which regulates land use. Guidelines In September 2006, the Board adopted Guidelines per Resolution No , which established limits for possession and cultivation of 3 pounds of dried marijuana and 30 plants per patient, above the State default limits of 8 ounces and 6 mature plants or 12 immature plants. Both the State and the County set the square foot limit at 100 square feet per qualified patient. The Resolution is available as a defense to prosecution for qualified patients or caregivers who cultivate or possess medical marijuana in accordance with the prescribed limits except when: 1) the cultivation occurs in zones where the growing of legal plants is not already allowed; 2) a nuisance is created; or 3) the cultivation is for profit or distribution. Zoning Code Sonoma County, like most local jurisdictions, has a permissive zoning code, which means that any use not expressly allowed by the code is not permitted. Currently, the zoning code does not contain any provisions allowing for the cultivation of marijuana or any other controlled substances, so it is therefore not considered an allowed land use. However, the County has recognized the above defense to prosecution with regards to local land use violations. The lack of explicit cultivation regulations drives staff s recommendation for an urgency ordinance, a process many other jurisdictions have taken to ensure local land use authority. The explicit language within the proposed urgency ordinance provides an unambiguous statement of current conditions, while allowing the County to maintain the status quo. Other Jurisdictions Actions Regulating Cultivation Several other counties and cities have taken actions in response to MMRSA in order to maintain local control. Alameda County, which has a permissive code, introduced an ordinance on January 12 prohibiting cultivation of medical marijuana. Similarly, the Contra Costa Board of Supervisors directed staff to prepare an urgency ordinance prohibiting cultivation in the unincorporated areas of the county. Napa County is also considering a similar ordinance prior to the March 1 deadline. Humboldt County recently passed a cultivation ordinance after completing a comprehensive planning process similar to the one proposed in the Resolution of Intention included in this item. Lake, Mendocino, San Francisco, and San Mateo Counties already regulate marijuana cultivation. The City of Sonoma adopted a resolution explicitly reaffirming that the city s existing permissive code prohibits cultivation. On January 4, Petaluma adopted an ordinance banning commercial cultivation, in addition to setting other requirements for personal grows. The Rohnert Park City Council is considering an urgency ordinance prohibiting the issuance of entitlements for marijuana cultivation facilities; and Cloverdale will consider a cultivation ordinance prohibiting commercial cultivation and requiring a permit for personal grows of more than three plants. The Town of Windsor will be considering a reaffirmation of its prohibition as a placeholder. Santa Rosa City Council has directed staff to develop an ordinance that would establish a use permit for commercial cultivators. Sebastopol and Healdsburg already regulated marijuana cultivation prior to the passage of MMRSA.

4 Recommended Urgency Ordinance Pursuant to Government Code section 65858, to protect the public safety, health, and welfare, the County may adopt a zoning ordinance as an interim measure prohibiting any uses that may be in conflict with contemplated policy. The measure requires a 4/5th vote and would be effective immediately for a duration of 45 days, at which point it could be extended for up to two years. Urgency ordinances are not required to go through the Planning Commission, but any subsequent local land use regulations will be required to have a recommendation from the Planning Commission prior to adoption by the Board. To maintain local control over cultivation, staff recommends that the Board adopt urgency ordinances confirming and articulating the County s status quo, which is that the cultivation of marijuana is not permitted under the County Zoning Code. The recommended Urgency Ordinances would incorporate the Guidelines, ensuring that the defense to prosecution for possession and cultivation of medical marijuana remains in place, and continue unchanged the local regulatory and enforcement framework. The only change resulting from adoption of the Urgency Ordinances is that the County would have acted before March 1 st, preserving its ability to maintain local land use controls over the emerging marijuana industry. Alternative Options to Adoption of the Urgency Ordinances The Board may still have a possibility of maintaining local control should it decline to pass the urgency ordinances. First, the provision of MMRSA imposing the March 1 deadline recognizes the principles of permissive zoning as a prohibition meeting the requirement for retaining local control. However, relying on permissive zoning leaves the County open to challenges that marijuana cultivation is similar to a permitted use and thus allowed under the Zoning Code. Further, the proposed Urgency Ordinances maintain the status quo dictated by the permissive code, so the outcome would be equivalent for practical purposes. Second, the State legislature is considering a bill that would eliminate the March 1 deadline and thus the chance of losing local control. In January, Assemblymember Jim Wood, the author of AB 243, introduced AB 21 to strike the entire provision at issue. Although AB 21 is currently moving through the Legislature, the fact and timing of its adoption are open questions. Given the extended timeline of adopting any alternative zoning ordinance, staff does not find that any other action exists to develop a land use regulation for marijuana cultivation prior to March 1. Recommended Resolution of Intention / New Land Use Regulations In addition to the urgency ordinances, staff further requests Board adoption of a Resolution of Intention (Attachment B), initiating the process for developing more comprehensive land use regulations regarding all facets of the emerging marijuana industry, including cultivation, dispensaries, deliveries, distribution, and manufacturing of edibles and other medical marijuana products. Among other specific issues, staff will identify and recommend ways to provide Sonoma County cultivators with preferred status under MMRSA, which would allow privileges related to state licensing applications.

5 On the near horizon is a set of ballot measures to legalize marijuana recreationally statewide, similar to measures that have passed in other states. The Draft Project Work Plan (Attachment D) presents the major tasks and a recommended process for development and consideration of new zoning regulations for medical marijuana, and provides an opportunity to consider regulations for recreational use in the event a more general legalization takes place. The Work Plan includes a robust public outreach process working with the Board Ad Hoc Committee, other County departments and local agencies, as well as hosting several public workshops in the affected communities and focus groups with other stakeholders. The Work Plan envisions an 18 to 20 month process for policy development, including public hearings before the Planning Commission, culminating in the presentation of a full range of policy options for Board consideration in the Summer of At the community meeting hosted by the Medical Marijuana Ad Hoc on Monday January 25 th, many in attendance expressed the desire for an expedited timeline. Staff is currently examining the additional resources that would be required to complete the planning process in a shorter timeframe. Staff recommends that the Board adopt the attached Resolution of Intention directing staff to develop new land use regulations to permit continued safe access to marijuana addressing cultivation, storage, distribution/dispensaries and manufacturing, as well as to address the impacts any new ballot measures or state legislation. Prior Board Actions: January 31, 2012: The Board enacted Ordinance No March 20, 2007: The Board enacted Ordinance No September 26, 2006: The Board enacted Resolution No May 17, 2005: The Board adopted an urgency ordinance imposing a temporary moratorium on medical marijuana dispensaries. Strategic Plan Alignment Goal 1: Safe, Healthy, and Caring Community Establishing comprehensive marijuana policies is necessary to preserve our environmental resources, protect the health and safety of our communities, and ensure the industry contributes positively to the economic vitality of our County. Expenditures Fiscal Summary - FY Funding Source(s) Budgeted Amount $ $ Add Appropriations Reqd. $ State/Federal $ $ Fees/Other $ $ Use of Fund Balance $ $ Contingencies $ $ $ Total Expenditure $ Total Sources $

6 Narrative Explanation of Fiscal Impacts (If Required): PRMD staff time has been included in the PRMD Comprehensive Planning Work Plan. Any additional resources required will be included when staff returns to the Board with the Medical Marijuana Ad Hoc Charter. Staffing Impacts Position Title (Payroll Classification) Monthly Salary Range (A I Step) Additions (Number) Deletions (Number) Narrative Explanation of Staffing Impacts (If Required): None Attachments: Attachment A: Draft Urgency Ordinance Attachment B: Draft Urgency Ordinance Coastal Zone Attachment C: Draft Resolution of Intention Attachment D: Draft Project Work Plan Related Items On File with the Clerk of the Board: