To: Board of Supervisors
From: Planning and Building Department
Agenda Section: Departmental
Vote Requirement: Majority
SUBJECT:
title
Request to Direct Staff to Initiate Changes on the Commercial Cannabis Land Use Ordinance to Address Hemp Cultivation, Indoor Cultivation in New Permitted Buildings, and to Allow the Use of Monofilament Netting
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RECOMMENDATION(S):
Recommendation
That the Board of Supervisors:
1. Direct staff to initiate work on modifying the CCLUO as follows:
A. Do not allow hemp cultivation under existing county cannabis permits; and
B. Allow use of new permitted buildings for indoor cannabis cultivation; and
C. Allow use of monofilament netting subject to performance criteria.
Body
STRATEGIC PLAN:
This action supports the following areas of your Board’s Strategic Plan.
Area of Focus: A Diverse, Equitable & Robust Economy
Strategic Plan Category: 2001 - Promote strong economic resiliency and growth
DISCUSSION:
Executive Summary
The Board of Supervisors is being asked to authorize the Planning and Building Department to work on modifications to the Commercial Cannabis Land Use Ordinance (CCLUO). As the county has implemented the CCLUO and the market conditions have changed, there is a desire to modify the ordinance to allow certain activities and materials.
The first request is related to allowing hemp cultivation under existing county permits. Staff is not recommending authorization of this petition because it would create new regulatory burdens that are difficult to predict and would ultimately add to the cost of the permitting. In addition, it creates the opportunity to be abused and for high THC cannabis to be cultivated as hemp and sold out of state.
The request to cultivate cannabis in new buildings constructed after 2016 at this point would not cause a proliferation of indoor cultivation and may allow some farmers to maintain a more consistent income stream.
The use of monofilament netting is not addressed by either the CCLUO or the Commercial Medical Marijuana Land Use Ordinance (CMMLUO), but its prohibition is a condition of discretionary permit approval. It would be beneficial to modify the ordinance to supersede conditions of approval and allow use of monofilament netting subject to performance standards.
Additional Information
Each request is discussed below:
1. Allow Hemp Cultivation under Cannabis Permit
This is a request presented by the Humboldt County Growers Alliance (HCGA) and is explained in their letter (Attachment 1). The basic request is to allow permitted cannabis farms to use their permitted area to be used to grow hemp and/or to allow permitted cannabis farmers to cultivate 5,000 square feet of hemp in addition to their permitted cannabis cultivation area. The rationale for this is that the price of cannabis has precipitously dropped, while the cost of maintaining a state license has remained high. The rationale for allowing an additional 5,000 square feet is so as to not interfere with the license area granted by the Department of Cannabis Control.
Hemp is classified as an agricultural commodity. Starting in 2019 the Board of Supervisors adopted a series of moratoriums to preclude the cultivation of hemp in Humboldt County. At the time of adopting the moratorium one concern was that the difference between hemp and cannabis is very small and there was concern with pollination of cannabis plants with fields of hemp, but HCGA now does not see that as an issue. The same regulatory issues continue to exist, but in this context HCGA is asking to tie the allowance to cultivate hemp to a cannabis permit.
As part of the preparation of this petition, Planning and Building staff asked for comments from the Sheriff and the Agricultural Commissioner. The Sheriff expressed opposition to this proposal particularly since hemp can be shipped across state lines and this could result in high THC cannabis being transported across state lines as hemp. As indicated in the HCGA proposal, it is likely that the primary market for Humboldt hemp would be out of state due to the saturation of the hemp market in California.
The Agricultural Commissioner commented that this would be adding another regulatory program to the Agricultural Commissioner’s department, which is already stretched thin. The cost of inspecting and testing the hemp would have to be passed on to the growers. This discussion has come up at California Agricultural Commissioners and Sealers Association conferences in the past. Cultivating cannabis in the name of hemp had become common practice in other counties and many of those counties have regretted allowing hemp cultivation because of the burden it puts on the agricultural departments. The Agricultural Commissioner also agrees with the comments from the Sheriff. In addition, the Agricultural Commissioner provided the following references:
a) White Paper - The Great Hemp Hoax. Study finding much of what passes for hemp product has high levels of THC and synthetic THC.
b) Technical Report -Oregon. Part of report is about hemp testing finding that there are high levels of THC and synthetic THC in products.
c) Letter from Sutter County Agricultural Commissioner. Requests moratorium on hemp due to costs of administration of the program and insufficient income to administer program.
The law enforcement concerns about hemp being grown as a cover for illegal cannabis is not new. Early in the legalization journey the hemp being grown in Oregon made its way into California dispensaries as cheap, high-THC cannabis. For many cannabis farmers recalling back to this is unfair, but experience has also taught that not everybody works within the regulatory framework. It is important to take into consideration that there are risks here associated with creating a pathway for illegal activity. There will need to be an expansion of the Agricultural Commissioners’ office to address the increased demand for inspections and monitoring, and this will need to be part of the permitting cost.
If the Board should choose to direct that exploration of this regulatory change be made, the hemp cultivation should be within the permitted square footage. Hemp cultivation is essentially the same activity as cannabis cultivation for which the county has adopted a set of mitigation measures and regulations to protect the environment. Many farms are in areas that are not traditional agricultural locations and are more environmentally sensitive. The county has done a lot of work to address water use within watersheds. It would be hard to justify allowing additional square footage for cultivating hemp in locations where there have been extensive efforts to protect the water source. To allow 5,000 square feet in addition to the permitted area could be outside of the bounds of what could be permitted at a given location. If a farmer wanted to expand their cultivation area, and that is allowed under the CCLUO, the appropriate process is to apply for an expansion.
The county has typically taken the stance of being extremely proactive to support and sustain the cannabis farmer. On the surface it seems harmless to allow hemp cultivation as part of permitted farms. The result of this requested action is to allow hemp cultivation, which is not regulated by the DCC, thus the regulatory burden would be placed on the county. The licensing area that is filled by the DCC would then be filled by the Agricultural Commissioner and Sheriff for enforcement.
To adopt an ordinance, the Board of Supervisors must find that the ordinance is in the public interest. The county has maintained a supportive stance to the plight of the cannabis industry. Creating another avenue for revenue generation is consistent with supporting the industry. The Board of Supervisors must balance whether it is in the public interest to create a regulatory pathway to allow hemp cultivation considering the concerns expressed by the Sheriff and Agricultural Commissioner. Pursuing an ordinance would be done with the understanding there is potential for abuse, and that the Agricultural Commissioner’s staff and resources would need to be expanded to address the added demand of hemp and other counties have not had good success with the allowance of hemp. The potential county cost of this action would not be in the public interest at a time when resources are stretched thin.
2. Allow use of permitted buildings for indoor cannabis cultivation
The Commercial Cannabis Land Use Ordinance in subsection 55.4.8.1.1 allows up to 5,000 square feet of indoor commercial cannabis cultivation in agricultural zones with a Zoning Clearance Certificate in a building in existence prior to Jan. 1, 2016, and allows up to 10,000 square feet in new or existing buildings on parcels over 320 acres. Requests have been made to allow indoor cultivation in buildings constructed since 2016 in agricultural zones on smaller parcels.
The purpose of the limitation on not allowing new buildings to be used for indoor cultivation was to discourage construction of buildings in agricultural zones for indoor cannabis cultivation. There have been shop buildings constructed on agriculturally zoned land that has not affected prime soils or resulted in tree removal, that could be used for cannabis cultivation. At this stage of the evolution of the cannabis industry, allowing permitted indoor cultivation in new buildings complying with performance standards to be in a curtilage and to not use prime agricultural land or remove timber would provide an option for a struggling industry in Humboldt County. Staff recommend directing work on this alternative as part of an update to the CCLUO.
3. Allow use of monofilament netting
Neither the CMMLUO nor the CCLUO regulate monofilament netting specifically. Monofilament netting is used by the cannabis industry to support the plants as they grow. A good substitute has not been found.
The monofilament netting regulation comes from issued permits that include a condition prohibiting monofilament netting. This condition is imposed at the request of the California Department of Fish and Wildlife because wildlife can get tied up in the monofilament netting. It is not the monofilament netting in particular that is a problem but rather how it is handled and disposed. Monofilament netting left out in the open is a danger to wildlife. Monofilament netting within a greenhouse used to trellis cannabis plants is a much lower danger to wildlife. It should be noted that cultivation sites approved under a Zoning Clearance Certificate do not have any limitations on the use of monofilament netting.
The tension here is that farmers continue to use monofilament netting which is a violation of their permits. It is much more efficient to allow the use of the netting subject to storage and disposal performance standards than to continue to issue inspection reports showing the farm is in violation. So far, staff has not suspended or recommended revocation of any permits if the only violation is the use of monofilament netting. It is not clear how staff can modify hundreds of permits with a legislative act, but that is the path being recommended. The change to the CCLUO would provide performance standards that supersede the conditions of approval. This would provide clear direction for all farmers relative to the use of monofilament netting. Staff recommend the Board of Supervisors direct staff to pursue this as part of these changes to the CCLUO.
SOURCE OF FUNDING:
Narrative Explanation of Financial Impact:
This work would be done out of the Long-Range Planning Budget unit (1100-282). This unit for work like this is primarily supported by the General Fund. The proposed changes should be able to be completed with a cost of less than $10,000. However, if your Board chooses to allow hemp cultivation as described above then it would likely require additional resources to be allocated to the Agricultural Commissioner’s Office.
Narrative Explanation of Staffing Impact:
This would likely be completed by a staff person and manager. At the level of work proposed this is a fairly simple project in the Planning and Building Department. However, if your Board chooses to allow hemp cultivation as described above, the Agricultural Commissioner’s Office would experience a significant increase in workload.
OTHER AGENCY INVOLVEMENT:
This change would be coordinated with the Sheriff’s office, Agricultural Commissioner’s office, County Counsel and the Department of Fish and Wildlife.
ALTERNATIVES TO STAFF RECOMMENDATIONS:
The Board could choose to not to proceed with the proposed changes to the CCLUO.
ATTACHMENTS:
1. HCGA Requested Hemp Change
2. White Paper - The Great Hemp Hoax
3. MJ- Technical Report
4. Letter from Sutter Ag Commissioner
PREVIOUS ACTION/REFERRAL:
Meeting of: N/A
File No.: N/A