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D.5
To: Board of Supervisors
From: John Kopchik, Director, Conservation & Development Department
Date: July  18, 2017
The Seal of Contra Costa County, CA
Contra
Costa
County
Subject: Report on Preliminary Regulatory Framework and Options for Cannabis uses within the Unincorporated Contra Costa County

APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE

Action of Board On:   07/18/2017
APPROVED AS RECOMMENDED OTHER
Clerks Notes:

VOTE OF SUPERVISORS

Contact: Ruben Hernandez (925) 674-7785
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown.
ATTESTED:     July  18, 2017
David Twa,
 
BY: , Deputy

 

RECOMMENDATION(S):

  
1. ACCEPT report on the preliminary framework and options for cannabis regulation within unincorporated areas of the County;  

  

2. PROVIDE direction to staff to develop land use and health ordinances;  

RECOMMENDATION(S): (CONT'D)
  
3. PROVIDE direction to staff on the approach to public outreach on this matter including methods and timing;  
  
4. DIRECT the Department of Conservation and Development to prepare an ordinance that would prohibit the establishment of certain cannabis-related uses until an ordinance to regulate the cultivation, delivery, manufacturing, and dispensing of medical and recreation cannabis is completed.

FISCAL IMPACT:

  
Adoption of a cannabis ordinance, in conjunction with a cannabis tax measure presented to voters of the County, would result in additional revenue for the County and would also result in increased costs through increased demand for certain services. Additionally, adoption of a County cannabis ordinance that incudes provisions for commercial cannabis uses as well as outdoor cultivation for personal use would make the County eligible for specific State grant funding to assist with law enforcement, fire protection, or other County programs addressing public health and safety associated with the implementation of the California Adult Use of Marijuana Act (AUMA).   
  
Estimated staff cost of preparing one or more ordinances to regulate and permit commercial cannabis and other provisions is expected to be within the $100,000 - $150,000 range but could be higher or lower depending upon the amount of additional research required, the complexity of regulatory approach chosen and the type and duration of the public process. Preparation of a ballot measure to adopt a Countywide cannabis tax would incur additional cost. Enforcement cost would vary with the regulatory approach chosen, which cannot be estimated at this time, but could be significant.  

BACKGROUND:

  
I. INTRODUCTION  
  
On April 25, 2017 the Board of Supervisors held a public workshop on Proposition 64 and potential cannabis regulation for the County. County staff from the Department of Conservation and Development, Health Department, Sheriff’s Office, District Attorney, County Counsel, Department of Agriculture, Treasurer Tax Collector, Probation Department and the County Administrators Office were present to answer any questions of the Board.  
  
After accepting public comments, the Board members discussed issues and concerns related to Proposition 64 and cannabis regulation and questioned staff on various aspects of potential regulations for the County. Upon conclusion of the discussion, the Board provided staff with general direction and guidance for the preparation of County wide cannabis regulations. The Board requested that staff return with an initial outline of potential regulations related to commercial cannabis land uses, personal cultivation and health protection.  
  
Staff from multiple departments have been approaching this through four focused but coordinated work areas: land use regulation, health regulation, public outreach and taxation. The first three areas are discussed in this report and taxation is discussed in a separate report for the July 18th meeting from the County Administrator.  
  
In preparing the regulatory framework and options presented herein, staff utilized the input received at the April 25, 2017 Board workshop, as well as input from various County Departments and members of the public. Staff suggests the following draft principles to guide development of the County's regulatory approach:

  • Health and Safety: The local regulatory framework should ensure that cannabis cultivation, distribution, manufacturing, testing and retail will not have an adverse impact on the health and safety of the people of Contra Costa County.
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  • Access: The local regulatory framework should, to the extent possible, provide the residents of Contra Costa County equitable access to medical and recreational cannabis and cannabis products and keep economic activity related to medical and recreational cannabis in the County.
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  • Revenue: The local regulatory framework should permit the establishment of safe and secure commercial cannabis businesses that would result in the collection of taxes which could be used to provide a source of revenue for the County which could be used for drug prevention and recovery programs, responsible use programs, law enforcement, fire protection and other Board priorities.
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  • Environmental Protection: The local regulatory framework should include conditions and requirements that protect the environment and promote conservation of valuable resources such as land, water and energy.
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  • Security: The local regulatory framework should include required security measures for all cannabis uses that prevent cannabis and cannabis products from getting into the hands of minors and that protect the safety and well-being of neighborhoods and commercial cannabis employees and customers.
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  • Outreach/Community Involvement: Public participation in the process of developing the County’s local regulatory framework should be encouraged. Input from community organizations, advisory councils, neighborhood groups, youth and homeless organizations should be solicited throughout the process.
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  • Economic Stimulation: The local regulatory framework should promote economic activity by encouraging the use of underutilized land and buildings within the County and should promote job growth for residents within Contra Costa County including creating job opportunities for residents having a difficult time re-entering the workforce.
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  • Equity of Opportunity: The County's local regulatory framework should encourage the spirit of entrepreneurship within the County and promote the establishment of safe, responsible successful commercial cannabis businesses, both large and small. The establishment of non-profit, co-ops, women and minority owned small businesses shall be encouraged and promoted with the ordinance.
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  • Compatibility with AUMA: The County's local regulatory framework shall be consistent with the provisions of the California Adult Use of Marijuana Act (AUMA) and should work in conjunction with state law in order to ensure that the commercial success of cannabis growers and producers from Contra Costa County.
  
II. LAND USE PERMITTING PROCESS  
  
Staff offers the following general recommendations and observations related to cannabis land use regulation for Board consideration.   
  
a. Land Use Permit
  
Prior to the establishment of any commercial cannabis use, approval of a land use permit is recommended. The land use permit process involves submittal of an application, public notification and a public hearing prior to approval. Land use permits are discretionary entitlements that may be approved or denied and are subject to various State and County standards in terms of the application process, review process and final determination. Decisions on a land use permit are made by the County Zoning Administrator, County Planning Commission or Board of Supervisors. In order for a hearing body to approve a land use permit specific land use permit findings must be made. All land use permit applications are also subject to the provisions of the California Environmental Quality Act (CEQA) in order to determine potential environmental impacts of the project, if any.
  
b. Standard Requirements and Conditions of Approval
  
Since the Board is still in the process of determining the overall direction of cannabis regulations, at this point staff has focused on identifying the appropriate zoning districts for the various cannabis related uses. Moving forward, a key component of the actual ordinance will be the incorporation of specific security and safety measures and well as operating conditions for each of the cannabis related uses. It is anticipated that the zoning ordinance will set minimum standards and individual land use permits will set site-specific conditions. Staff has prepared preliminary thoughts on potential standards and conditions and included these in Attachment B.
  
c. Buffer Zones
  
In order to protect sensitive receptors from exposure to cannabis and cannabis related uses, buffer zones from sensitive receptors are recommended for specific cannabis uses. The proposed buffer zones could be consistent with the County’s tobacco control ordinances, which require a 1,000-foot buffer from schools, parks, playgrounds and libraries for new tobacco retailers and a 500-foot buffer between tobacco retailers. Other buffers could also be considered, including adding drug treatment centers to the sites to be buffered, using larger or smaller buffers or varying the buffers by cannabis use Buffered discussed further below in Section III.  
  
  
  
d. Potential Limits on the Number of Specific Commercial Establishments and Request For Proposals (RFP) Process
  
Setting a cap on the number of certain types of commercial cannabis establishments that could be issued a land use permit is an option to consider. A Request For Proposals (RFP) process to select the applications eligible for permitting is also an option. Retail sales is probably the category of commercial use where such an approach may be most useful as such uses may be the most sensitive to site. Other jurisdictions, such as Alameda County are considering this approach. The Board may also wish to set duration limits on some or all permits.
  
e. Timing Considerations
  
Staff recommends that the Board authorize staff to prepare a land use ordinance to continue the restrictions currently in place as a result of urgency interim ordinance 2017-03. The urgency interim ordinance expires on January 30, 2018. If the County’s comprehensive ordinance to permit and regulate cannabis is not effect by that time, it is possible that commercial uses could be established without County approval and such uses would then be grandfathered in. Given the complexity of the topic, the need for a careful deliberative process, as well as the need for environmental review, staff believes it would be prudent to begin to develop a simple ordinance to continue the current restrictions beyond January 30, 2018 and until such time as the County’s ordinance to permit and regulate cannabis can take effect. Such ordinance would be reviewed by the Planning Commission before coming to the Board.  
  
In addition, the County should consider coordinating the timing of a new ordinance to permit and regulate cannabis uses with the timing of any potential tax measure. This issue is also discussed in the report on taxation. The Board may wish to make regulations that would permit commercial uses contingent upon passage by the voters of a tax measure.  
  
III. PRELIMINARY ZONING MAPS FOR COMMERCIAL CANNABIS USES  
  
One of the major considerations in preparing the proposed cannabis regulation framework and options was identifying the appropriate zoning districts where each of the specific commercial cannabis related uses could be established. After evaluating and analyzing each of the types of commercial cannabis uses, staff began the process of identifying the zoning districts that were most appropriate and compatible for each of the uses. In identifying the most appropriate and compatible zoning districts, staff also took into consideration the direction of the Board as provided at the April 25, 2017 cannabis workshop meeting.   
  
Once potentially suitable zoning districts were identified for each of the specific commercial cannabis uses, staff initiated the process of preparing preliminary zoning maps identifying the areas where each of the specific uses could be established based on zoning and the buffer zones as discussed elsewhere in this board order.   
  
Attachment A to this Board Order provides a brief staff analysis of the suitable zoning districts and buffer zones for each of the commercial cannabis uses. Attachment A also includes zoning analysis maps that identify the areas where each of the specific commercial cannabis uses could be established (with a land use permit) based on the suitable zoning district and buffer areas. A range of options is presented for each use category.   
  
The zoning maps found in Attachment A identify parcels that meet the zoning and buffer criteria of the preliminary zoning framework as presented to the Board today and should be viewed with some reservations. Simply because a parcel is shown on the map as a parcel that meets the preliminary zoning and buffer requirements does not mean that the identified commercial cannabis use could or would be established on any of the identified parcels, since the maps provide no analysis of the existing uses on each parcel, the surrounding uses, the parcel size, etc. These, and numerous other considerations, would be taken into account during the land use permit process and applications in eligible areas could be rejected.   
  
  
  
  
IV. PERSONAL CULTIVATION  
  
a. Indoor Cultivation for Personal Use  
  
Proposition 64 authorizes adults over the age of 21 to cultivate, for personal use, up to six (6) cannabis plants per residence, indoors, within a private residence. Proposition 64 does authorize local jurisdictions to place “reasonable” restrictions on the indoor cultivation for personal use, but it cannot be prohibited entirely. Indoor personal cultivation as authorized by Proposition 64 can occur within any private residence in any zoning district.  
  
The urgency interim ordinances adopted by the Board to prohibit the cultivation, delivery and sale of cannabis and cannabis related products included conditions for the indoor personal cultivation of cannabis that are consistent with Proposition 64. The conditions on personal indoor cultivation found in the County's urgency interim ordinances are recommended to be continued in future regulations. The conditions include:   
  
i. A maximum of six (6) cannabis plants per residence for personal use may be cultivated indoors.  
  
ii. The residence, and all lighting, plumbing, and electrical components used for cultivation, must comply with all applicable zoning, building, electrical, and plumbing codes and permitting requirements.  
  
iii. All living marijuana plants, and all marijuana in excess of 28.5 grams produced by those plants, must be kept in a locked room and may not be visible from an adjacent property, right-of-way, street, sidewalk, or other place accessible to the public.  
  
iv. The residence must be lawfully occupied by the person who cultivates the marijuana plants within the residence. If the residence is not owner-occupied, written permission from the owner of the residence must be obtained before marijuana plants may be cultivated.  
  
b. Outdoor Cultivation for Personal Use
  
Proposition 64 authorizes local jurisdictions the ability to prohibit or regulate the outdoor cultivation of cannabis for personal use. Although outdoor cultivation for personal use may be prohibited, Proposition 64 includes a provision that would deny local jurisdictions access to specific cannabis related grant funding if outdoor personal cultivation is completely prohibited [Revenue and Taxation Code Section 34019(f)(3)(C)].  
  
In order to ensure access to specific cannabis-related grant funding, the proposed cannabis regulations could include provisions permitting the limited outdoor cultivation of cannabis for personal use. Outdoor personal cultivation has potential benefits and disadvantages. Growing outdoors would conserve energy and avoid potential strains on residential structures, but it would also potentially have odor and security implications. Based on similar limitations placed on personal outdoor cultivation in other jurisdictions, the limitations on personal outdoor cultivation could include:
  
i. A limit of four (4) mature plants may be grown outdoor for personal use (6 plants total per residence)  
  
ii. Plants must be located behind the residence and not visible from any street or roadway or public area.  
  
iii. Plants cannot be located closer than 10-feet from any property line.   
  
iv. Plants shall not exceed 6-feet in height at any time.
  
  
  
V. HEALTH CONSIDERATIONS AND RECOMMENDATIONS FOR A COUNTY HEALTH ORDINANCE
  
The Health Services Department recommends that a separate County health ordinance be developed and adopted, particularly if commercial uses such as cannabis retail and manufacturing are allowed. The Health Services Department has prepared a report on health considerations, parts of which outlines key potential provisions of a health ordinance. That report is attached as Attachment C.   
  
VI. PUBLIC OUTREACH AND ENGAGEMENT  
  
As evidenced by the public testimony at the April 25, 2017 public workshop conducted by the Board, there is significant public interest and a diversity of opinions on the matter of cannabis regulation. In order to encourage public participation in this process, staff created a webpage within the County’s website that includes updated information on the County’s progress on cannabis regulation as well as an email sign-up form where those interested in County cannabis regulation can be placed on a mailing list to be informed of future meetings or hearings. As of July 12, 2017, approximately 200 people have requested to be on the email list. Additional public outreach and involvement will be helpful as the County proceeds with formulating its cannabis policy. Various industry groups, public health advocates, property owners and any other groups or organizations that could be impacted by potential cannabis regulation will have valuable input to offer.  
  
The Board initiated discussion on the approach to future public outreach and engagement on April 25. The Board discussed various approaches, including outreach to the cities via the Mayor’s Conference, additional public workshops, input from existing advisory committees as well as other approaches. The Board determined that it would be better to have more refined policy options or preliminary regulations prior to directing staff to broaden the public meeting venues beyond Board of Supervisors meetings.  
  
Based on the Board discussion from April 25, staff has developed a refined list of public involvement approaches, some of which are occurring already. Staff would appreciate direction from the Board on which approaches to public involvement the Board wishes to implement.  
  
a) Continue to update County’s notification list for this issue and notify interested parties of opportunities to participate in discussion of this topic.  
  
b) Maintain and refine the County’s website as a means for the public to access information on this topic and learn of ways to provide feedback and participate in discussions  
  
c) Continue to discuss this topic and refine proposals at televised open public meetings of the full Board of Supervisors meetings.  
  
d) Seek input from cities, including by requesting time to discuss this issue at the Mayors’ Conference.  
  
e) Develop an online survey. Several cities in the County have employed this approach and the County has the existing capability to conduct such surveys. Such approach would not provide a statistical estimate of overall public sentiment (a scientific public interest poll would be required for that), but it would provide a means to gather input from a large number of people.  
  
f) Seek input from existing, relevant advisory committees, such as the Alcohol and Other Drugs Advisory Board, Municipal Advisory Committees (MAC) and the P-Zone Committees.  
  
g) Consider scheduling one or more evening public workshops, possibly under the auspices of an “All-MAC” meeting for each Supervisorial District.  
  
h) Conduct a public interest poll. If the County were to consider a tax initiative related to cannabis, a public survey may be helpful to determine feasibility and voter preference. In addition to questions about potential taxes, the poll could also determine respondents’ opinions on the topic of cannabis regulation. This approach would require the County to retain an outside expert to conduct the poll, but may be an option to consider in the future as work on this topic progresses.
  
With respect to the timing of expanding the scope of the County’s public discussion of this topic beyond Board of Supervisors meetings (e.g., the timing for initiating some or all of items d through g in the above list), staff suggests the following timing options:  
  
1) Seek input on the preliminary regulatory framework and options presented in this report, as refined by Board of Supervisors discussion at July 18 meeting.  
  
2) Seek input on draft ordinances after being developed by staff and reviewed and revised by the Board of Supervisors.
  
There are tradeoffs with either approach. Option (1) would accelerate public input but would be requesting input on concepts and options rather than a specific proposal, so the input will also be less-specific. An alternative would be to perhaps initiate an online public survey soon asking for input on general concepts (not on the staff materials to date) as well as requesting an initial discussion with Mayor’s Conference to explain where the County is in the process, but delaying evening public meetings and referrals to advisory committees until after draft ordinances have been developed. (e.g., start items d & e soon, but consider f, g & h later).
  

CONSEQUENCE OF NEGATIVE ACTION:

If a permanent prohibition on the cultivation, delivery, manufacturing and delivery of medical and recreational cannabis is not adopted by the County prior to the issuance of commercial cannabis licenses by the State, which is expected to start at the beginning of 2018, the commercial cannabis uses could be established with a State license but without County approval.

CHILDREN'S IMPACT STATEMENT:

The County's cannabis regulations would be intended to support the Children's Report Card outcome #5) Communities are safe and provide a high quality of life for children and families.

CLERK'S ADDENDUM

Item D.5 and D.6 were considered together.

Speakers: Rod Schuman, resident of Clyde;  John Thiela, Jim Gonzalez & Associates (handout attached); Gita Dombrowski;, Firebrand; Mat Fogarty, Bliss Distribution; Eric Rehm, CCIM;  Ashley Bargenquast, Sean Casey, First 5 Coalition; Hakkim Jabbar, Weedonit Collective; Tina Larson, Weedonit; Patty Hoyt, ADAPT San Ramon Valley; Thomas Nunes, resident of Martinez; Elijah Dominguez, resident of Martinez; Jim Birmingham, resident of Richmond; Dana Richardson, Weedonit Collective.  

The following did not speak, but left written comments for the Board:  Mark Unterbad, resident of Brentwood; Celine Gonzales, resident of San Ramon; Brian Eliff, resident of Knightsen; Justina Henry, Weedonit Collective; Debbie Berndt, resident of Orinda; Eric Thomas, resident of Briones;

ACCEPTED the report;

DIRECTED staff to prepare a permanent ordinance for adoption substantially the same as the interim ordinance now in place, prohibiting all commercial uses and prohibiting personal cultivation except for indoor growth, that would be effective before January 1, 2018, to prevent default to state regulations, and until an ordinance to regulate the cultivation, delivery, manufacturing, and dispensing of medical and recreational cannabis is completed;

DIRECTED staff not to proceed with any outreach efforts to the public yet, to seek updated information in regard to the City of Concord's recent poll of other jurisdictions as to their intended direction related to cannabis business related ventures, and from organizations such as the Public Managers Association and regional planning directors, as possible;

DIRECTED the Department of Conservation and Development to develop land use and health ordinances, and return to the board with the further information on the following concerns: 1) maps showing details for options of buffer areas of varying size for cannabis industries and sales 2) recommendations on where vertical integration of cannabis industries is allowable or desirable 3) recommendations on where the various types of industry (cultivation, distribution, manufacture, testing, retail sales) is deemed most appropriate 4) the implementation of caps on the number of permits per area 5) whether the use of temporary or permanent permits is advisable, particularly in the sense of its effect on investment dollars 6) giving permit priority to already established businesses in the unincorporated area 7) information on the number of fires in East Contra Costa directly attributable to indoor growing operations.

The Board stated it's desire that the implementation of the new land use ordinance be directly tied to the success of a tax measure on the November 2018 General Election ballot, to ensure there is funding for county services and enforcement in relation to cannabis industry; if the taxing measure fails, the new ordinance will not be implemented.

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