COUNTY COUNSEL'S OFFICE - M. GRANGER

Make CEQA Findings, Read Title of Ordinance, Accept Introduction, Waive Further Reading and Adopt Urgency Ordinance, adding new Chapter 11.15 to the San Benito County Code, restricting and regulating marijuana cultivation within San Benito County, or in the alternative, accept introduction, waive reading and continue the matter to October 11, 2016 for adoption.

SBC FILE NUMBER: 160

Background:

In October 2015, the Board of Supervisors appointed the Ad Hoc Committee to hold public meetings and prepare a draft ordinance for the Board of Supervisors.  Initially, Supervisors Botelho and Muenzer were assigned to the Committee.  On December 9, 2015, the Board of Supervisors held a special meeting to discuss the issue of a marijuana cultivation ordinance, at the request of the Ad Hoc Committee.  At that meeting, which the Board is aware, the public comment, primarily from potential cultivators, strongly favored opening the County to larger scale/"commercial" cultivation and cultivation being allowed outdoors.

At the January 12, 2016 Board of Supervisors' meeting, Chair Robert Rivas appointed Supervisors De La Cruz and Botelho to serve on the committee in 2016. 

On January 26, 2016, the Board again considered a marijuana cultivation issue.   The Board directed that the Ad Hoc Subcommittee to develop a personal cultivation/use ordinance and to further research a commercial cultivation/use ordinance.

On September 13, 2016, the Board received an update from the Ad Hoc Committee, and directed staff to return on the September 27, 2016 Board meeting with a draft ordinance for potential adoption, as well as a draft moratorium ordinance. 

The draft ordinance and moratorium are presented based on the Board’s direction on September 13, 2016: 

a) Limit the number of plants to 6.

b) No outdoor cultivation within 1000' feet of a school. (Staff has added parks and "youth facilities" to this restriction as that would be consistent with the Board's intent.  Staff did not add churches or religious establishments as that would be an expansion of the Board’s direction.

c) No outdoor cultivation within 1000' feet of another residence without a fence surrounding the marijuana. (See drafting considerations below.)

d) Cultivation to be allowed outdoors or indoors.

e) No commercial cultivation.

f) A sunset clause.  (The moratorium cannot be extended longer than 2 years under state law and therefore did not need an express sunset clause.)  The regular ordinance has been drafted with a sunset clause of two years.

Issues for Discussion/Drafting Considerations:

1) The 2015 draft ordinance had a two year amortization clause.  This amortization clause was problematic in that it could be too long for some cultivators and too short of period for others, based on the evidence presented on a case by case basis.  The attached draft ordinances proposes a short amortization period including language at the present time which eliminates the limited immunity period after cultivation of the current crop, followed by a hearing process which was modeled after the Measure J Implementing Ordinance to allow a cultivator to request a longer amortization period as necessary to avoid an unconstitutional taking.  However, this amortization section may be modified should the Board so desire.

2) Many counties/cities allow six mature plants or 12 immature plants on a parcel based on the following provision in state law:

§ 11362.77.  Quantity of marijuana which qualified patient or primary caregiver may possess; Local guidelines; Recommendations by Attorney General

(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.

(b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.

(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).

(d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section.

(e) The Attorney General may recommend modifications to the possession or cultivation limits set forth in this section. These recommendations, if any, shall be made to the Legislature no later than December 1, 2005, and may be made only after public comment and consultation with interested organizations, including, but not limited to, patients, health care professionals, researchers, law enforcement, and local governments. Any recommended modification shall be consistent with the intent of this article and shall be based on currently available scientific research.

(f) A qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article.

However, case law has further interpreted this section as to not restrict/limit the County’s right to impose a lower limit on the number of plants that may be cultivated pursuant to its local land use authority. Therefore, the Board may impose a six plant limit should it so desire.

Additional Drafting Considerations:

The draft ordinance was prepared closely following the Board’s directions. Additional areas that could be included in the ordinance, should the Board so desire, are set forth below:

#1 If the Board desires to increase the number of plants based on the immature/mature distinction, it should include at the end of its motion.

With the amendment to the ordinance, in that Subsection 11.15.040 (A)(1) shall read as follows:

1)      The number of marijuana plants being cultivated on a parcel does not exceed six (6) mature plants or twelve (12) immature plants, regardless of the number of patients or caregivers residing on the premises or participating directly or indirectly in the cultivation.  This limitation shall be imposed notwithstanding any assertion that the person(s) cultivating marijuana are the primary caregiver(s) for qualified patients or that such person(s) are collectively or cooperatively cultivating marijuana. 

#2: If the Board desires to add setbacks of outdoor growth from any residential structure (instead of requiring a fence between the cultivation site and an adjacent structure), the board should add at the end of its Motion:

With the change that subsection (A)(4) of section 11.15.040 shall be changed to read “Reserved” and Subsection (A)(2) shall be added to 11.15.050 to read as follows:

            (2)        Outdoors within one thousand (1,000) feet of any occupied legal residential structure located on a separate legal parcel. The distance to any residential structure shall be measured from the nearest part of the marijuana cultivation to the nearest exterior wall of the residential structure.

#3: If the Board desires to add odor language to the ordinance (which is not recommended at this time as this matter may be deferred to the development of the final cultivation ordinance due to the difficultly in accurate measurement and quantification of objectionable odor), the Board should add at the end of its Motion: 

“With the change to the ordinance, by the addition to subsection (D) to 11.15.040 to read as follows:

(D)       No person owning, leasing, occupying, or having charge or possession of any premises within the County shall cause, allow, suffer, or permit such premises to be used in a manner that the cultivation subjects offsite persons of normal sensitivity to objectionable odors.

#4: If the Board desires to add a permit requirement for parcels cultivating the six plants or less, the Board could add the following language to its motion:

With the direction that the staff bring back to the Board a proposed ordinance amendment establishing a permit process for cultivation of six plants or less. 

(Note: Establishing a permit process at the present time is not recommended due to the potential need for code enforcement against those sites not complying with the new ordinance,  the need to process applications filed for extended amortization period, and because a fee structure for such permits needs to be established).   However, after the amortization hearing process is completed and a fee structure is in place, a permit process could be further pursued should the Board so desire.)

#5: Sunset clause

            The urgency ordinance has an established two year maximum time period which cannot be extended pursuant to State law.  Pursuant to the Board direction, the regular ordinance has also been drafted with a two year sunset clause.  If the Board desires to remove the sunset clause in the regular ordinance, the motion should include the following:

“With the change to the ordinance, by the elimination of section 11.15.150.” 

#6: Fees are best addressed in a future Board agenda item, rather than in this ordinance.  The Board does not need to specifically direct staff on this issue. However, if the Board wants to include direction to staff, the motion should specify:

With the direction that the staff bring back to the Board of Supervisors at a future meeting, a proposed fee resolution or ordinance, establishing fees necessary and sufficient to recover the County’s costs in administering this Chapter.

#7:       Staff contemplated adding a provision regarding Public Records Act Requests into the proposed ordinance.  The Proposed ordinance does not contain the following language at this time. 

(1) If the County determines information should be released pursuant to a Public Records Request or a subpoena, COUNTY shall give notice to Applicant of any request for the disclosure of such information and whether or not the County intends to produce such information. The Applicant shall then have five (5) days from the date it receives such notice to enter into an agreement with the COUNTY (if County determines desirable to do so), satisfactory to the County Counsel, providing for the defense of, and complete indemnification and reimbursement for all costs (including plaintiff’s attorney fees) incurred by COUNTY in any legal action to compel the disclosure of such information under the California Public Records Act for any documents which Applicant and/or County withhold(s) from production.  The parties understand and agree that any failure by Applicant to respond to the notice provided by COUNTY and/or to enter into an agreement with COUNTY shall constitute consent to production, and such information shall be disclosed by COUNTY pursuant to applicable procedures required by the Public Records Act.  

(2) Notwithstanding the above, the COUNTY reserves its right to produce all documents as it determines required to be produced under State Law pursuant to the Public Records Act or a lawful subpoena, in its sole discretion, regardless of whether Applicant requests that such documents not be disclosed, and/or whether or not Applicant is willing to enter into an agreement to defend/indemnify the County.

(3) Applicant shall retain all rights to seek a protective order in court prohibiting disclosure of any records it believes exempt from production in the event there is a disagreement between County and Applicant regarding the production of documents.

If the Board desires to this language, the motion should include: 

“With the change to the ordinance, by the addition the proposed language contained in the staff report relating to public records act requests to end the of subsection (B) of Section 11.15.110, by the addition of the language set forth in the staff report under Drafting Consideration #7, as subsections (1)-(3) to subsection (B). 

#8  Limited Immunity/Limited Amortization Section.

The following language has been added to Section 11.15.100.

(7)     The marijuana plants must be reasonably proven to have been under cultivation as of September 27, 2016 to be recognized as existing nonconforming cultivation.  This exemption (of limited immunity) terminates for each cultivation site when existing nonconforming plants are harvested, but in no event shall this exemption apply after December 27, 2016.   

If the Board does not wish this language to be included, the motion should include: 

            “With the deletion of Subsection (A)(7) of 11.15.100.

a)            Read Title of the Ordinance for the Record; 

b)            Make a motion (1) Finding that adoption of the proposed Urgency Ordinance is not subject to review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines sections 15060, subdivision (c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15061, subdivision (b)(3) (there is no possibility the activity in question may have a significant effect on the environment), and that in addition to the foregoing general exemptions, the Ordinance is also categorically exempt from review under CEQA under the Class 7 and Class 8 Categorical Exemption, and as further set forth in the ordinance, and direction to the Director of the RMA to file a Notice of Exemption;

(c)  Make a motion to accept introduction, waive further reading of the ordinance and adopt Urgency Ordinance  No. ___, adding Chapter 11.15 to the San Benito County Code to restrict and regulate the cultivation of marijuana. (requires four-fifths vote) (with any specified changes the Board wishes to make); or,

Absent the required four-fifths vote, make a motion to accept introduction, waive further reading of the ordinance with changes as directed by staff, and continue the matter to October 11, 2016 for adoption. (with any specified changes the Board wishes to make)