COUNTY OF LAKE COMMUNITY DEVELOPMENT DEPARTMENT

Planning Division Courthouse - 255 N. Forbes Street Lakeport, CaliforniGI 95453 Telephone 707/263-2221 FAX 707/263-2225

 

 

MEMORANDUM

     

TO:

Board of Supervisors

FROM:

Richard Coel, Community Development Director

SUBJECT:

Concerns Regarding Medical Marijuana Cultivation Act of2012 Initiate; February 21, 2012 Agenda Item

DATE:

February 10, 2012

 

   

   

 

 

DISCUSSION Staff of the Community Development Department appreciates the opportunity to provide your Board with comments concerning the proposed Medical Marijuana Cultivation Act of 2012. As the proponents have designed their ordinance to be an addition to the Lake County Zoning Ordinance if approved by the voters of Lake County, staff has reviewed and analyzed the proposal in the context of potential land use conflicts and also for inconsistencies with the General Plan and current sections of the Zoning Ordinance. There are numerous, serious problems with the proposed Cultivation Act, which we have described below: 1.

 

Section 72A.3 of the proposed Cultivation Act of2012 would allow cultivation on vacant as well as developed lots in residential, as well as rural and agricultural zoning districts. This would severely limit the County's ability to enforce travel trailer occupancy and grading and stormwater violations. It would likely become difficult for the County to keep up with the number of violations as increased numbers of marijuana cultivators relocate to Lake County and set up their camps. Because the ordinance would allow 12 mature female plants on any residential lot under V2 acre it can be expected that many vacant subdivision lots would be used as cultivation sites. Contiguous lots under common ownership could result in scenarios of 12 plants per lot managed by one grower. We have already experienced numerous growers camping on vacant lots and cultivating significant numbers of plants. Enforcement has been possible in these cases because the Zoning Ordinance currently does not allow cultivation or any other accessory use on residentially zoned properties without first establishing a primary residential use. The Cultivation Act would create internal conflicts within the Zoning Ordinance because agricultural uses on vacant, residential lots are not an allowed use, nor is Camping in RV's. Every cultivation site that Community Development Department staff have investigated on vacant land has been occupied by growers, who camp in anything from tents to motorhomes to secure and tend to their grows. It is unreasonable to expect that grows will be unsecured and unattended, and one can easily conclude that the County will be overwhelmed by the need to take enforcement action against camping due to the

 

Staff 2/19/12 10:47 PM Comment [1]: Why  is  there  an  assumed   increase  in  medical  marijuana  cultivation  if   cultivation  is  regulated  instead  of   unregulated?  

Staff 2/19/12 10:47 PM Comment [2]: The  medical  marijuana     ordinance  would  not  change  the  ability  to   enforce  the  Zoning  Ordinance.       Staff 2/19/12 10:48 PM Comment [3]: In  those  residential  zoning   districts  that  currently  do  not  allow   gardening  except  as  an  accessory  use  after   establishing  a  primary  residential  use,   cannabis  gardens  can  be  abated  simply  on   that  basis,  in  addition  to  using  the  nuisance   laws.    The  Ordinance  does  not  change  that,   since  it  states  that  all  cultivation  is  subject   to  other  existing  Lake  County  ordinances.     On  those  vacant,  residential  lots  where   camping  in  RV’s  is  not  now  allowed,  nothing   in  the  Ordinance  changes  that.  

 

 

       

BOS Memorandum; Comments Concerning Medical Marijuana Cultivation Act of 2012

   

associated health and safety, and grading and stormwater violations that result, with no ability to address the core activity that drives such violations. Lake County has thousands of vacant, unimproved properties.

 

Also, there are a number of "R2" zoned properties in mobilehome parks (Rivieras Planning Area in particular). number of "R2" lots improved with apartments and duplexes. sites for cultivation given the high density living conditions apartment buildings.

  2.

 

Twelve (12) mature female plants on parcels less than 1 / 2 acre in residential subdivisions will create nuisance odor conditions and attraction of crime that can result in a general deterioration of quality of life and property values. Review of August 2011 Google Earth photos shows large plants in excess of 6 feet in diameter on numerous properties. One example on a 50-foot wide lot in Lucerne includes a row of five large plants parallel to the rear property line fence. That row of plants occupies the entire lot width from side yard fence to side yard fence, with no gaps between plants. This row of marijuana plants is adjacent to a senior apartment building and a mobile home park. The area of canopies of 12 mature outdoor plants can easily reach 28 square feet per plant for a total of approximately 340 square feet. This is based on six-foot diameter canopies. Some plants have been estimated to have canopies in excess of eight feet in diameter (50 square feet each) in August 2011 Google Earth photos.

3.

24 plants on 1 /2 acre and larger "R1" and "R2" zoned lots will serious nuisance odor complaints and increased crime rates because these sites within community areas. Many of these lots are in close proximity density apartment complexes and mobile home parks, exposing even more nuisance odor issues and increased criminal activity.

4.

Section 72A.3.4 of the proposed Cultivation Act states: "In SR, RR, RL, A, APZ and TPZ zoning districts on parcels less than 5 acres, no more than 36 female marijuana plants may be grown outdoors." If approved, this ordinance will allow 36 plants per lot

 

5.

The Right to Farm protections would be one-sided as there are no buffer, pesticide, herbicide or fertilizer use regulations included within the proposed Cultivation Act, yet all other agricultural operators are subject to these regulations. It is Community Development staffs understanding that there are no local, state or federal pesticide or herbicide standards in place for marijuana cultivation. The proposed Cultivation Act

 

2  

result in are located to higher people to

on a high number of substandard sized existing lots throughout the County. This includes several thousand legal non-conforming lots above Nice, Lucerne, Glenhaven and Clearlake Oaks that were zoned "RR" in an attempt to encourage parcel consolidation. Also, there are several other areas in the County where Y4 to Y2 acre "SR" zoned lots are somewhat common, including Spring Valley and areas within the Cobb Mountain and Rivieras Planning Areas. This is particularly concerning to staff because the authors of the proposed Cultivation Act did not include language to prohibit cultivation on vacant lots. Many of these "SR" and "RR" zoned lots are in very close proximity to existing residences, and are located within established subdivisions.

 

 

the County that contain Additionally, there are a These are not appropriate in mobilehome parks and

Staff Staff 2/20/12 4:38 PM Comment [4]: There  are  many  large  R2   parcels  containing  just  one  residence.    If   there  are  two  residences,  it  is  unlikely  that   one  resident  will  grow  medical  cannabis   unless  the  people  in  the  other  residence   approve,  or  unless  they  do  it  collectively.    If   there  are  multiple  unit  apartments  and   complexes  in  R2  zoning,  it  is  unlikely  that   anyone  will  grow  outside.  Unless  someone   has  a  very  private  fenced  in  backyard,  it  is   extremely  unlikely  that  anyone  will  grow  in   a  mobile  home  park,  and  if  they  do,  the   garden  can  be  abated  under  the  Ordinance   as  a  nuisance.       Staff Staff 2/20/12 12:15 PM Comment [5]: If  12  plants  grown  on  a   parcel  less  than  1/2  acre  in  size  create  a   nuisance  due  to  the  odor  or  other  factors,   they  can  be  abated  under  the  Ordinance.      

Staff Staff 2/20/12 12:15 PM Comment [6]: Currently,  an  unlimited   number  of  plants  are  allowed.    12  plants  is  a   limit  where  one  does  not  currently  exist.   Staff Staff 2/20/12 12:15 PM Comment [7]: Currently,  there  is  no  limit   on  the  plants  on  ½  acre  or  larger  parcels  in   R1  or  R2.  If  24  plants  on  1/2  acre  or  larger   parcels    in  R1  or  R2  result  in  nuisance  odor   complaints,  and  other  nuisances,  they  can   be  abated  under  the  nuisance  laws  and  the   Right  to  Farm  Ordinance  is  inapplicable  in   those  residential  zoning  districts.       Staff Staff 2/20/12 12:18 PM Comment [8]: Currently  there  are  no   limitations  on  SR  zones,  so  unlimited   number  of  plants  can  be  grown.  If  36  plants   in  SR  result  in  nuisance  odor  complaints,   and  other  nuisances,  they  can  be  abated   under  the  nuisance  laws  and  the  Right  to   Farm  Ordinance  is  inapplicable  in  SR   (suburban  reserve)  zoning  districts.       Staff Staff 2/20/12 12:19 PM Comment [9]: In  addition,  the  Ordinance   specifies  that  the  County  may  pass  a  new   ordinance  providing  for  inspections  and   accompanying  fees  or  taxes  on  cultivation  in   excess  of  36  plants,  in  order  to  assure   compliance  with  this  Ordinance  and  all   other  county  ordinances.   Staff Staff 2/20/12 12:19 PM Comment [10]: In  addition,  the   Ordinance  specifies  that  the  County  may   pass  a  new  ordinance  providing  for   inspections  and  accompanying  fees  or  taxes   on  cultivation  in  excess  of  36  plants,  in   order  to  assure  compliance  with  this   Ordinance  and  all  other  county  ordinances.      

 

   

   

BOS Memorandum; Comments Concerning Medical Marijuana Cultivation Act of 2012

  offers nothing in the way of setbacks or agricultural buffers for marijuana cultivation. This is inconsistent with policies found in the Agricultural Element of the Lake County General Plan. It appears to staff that cultivators would be able to grow large numbers of plants along property lines with nothing more than a screening fence for a buffer from whatever land use exists on adjacent properties zoned "RR", "RL", "A", "APZ" and "TPZ". This is particularly troubling given the provisions in Sections 72A.3.5 and 72A.3.6 of the proposed Act that would allow 66 plant cultivations on parcels between five and seven acres in these districts, and 84 plant cultivations on parcels exceeding seven acres. With no setback or buffer requirements, and with Right to Farm protections, nuisance odor impacts to adjacent land uses could be severe. These are zoning districts that allow wineries with tasting rooms and events, retreats, and equestrian facilities with events. Land use conflicts will be a likely outcome and poorly planned or managed cultivation sites may have negative economic impacts on existing, entitled land uses.

 

Also, the Right to Farm Ordinance was developed in order to protect the rights of farmers, as well as to provide notification to people considering moving into agricultural areas that there are certain inconveniences and discomforts that they may experience living adjacent to agricultural operations. These include increased dust from tilling or disking practices, and noises from tractors and irrigation pumps on occasion at unusual hours. These property owners will not be expecting to experience three-month long periods of continuous odors from large cultivations sites of up to 84 female marijuana plants, with no ability to obtain relief through enforcement action.

  6.

  7.

 

Nuisance odor complaints would likely be trumped by the "Right to Farm" Ordinance, even for complaints lodged by residents within Community Growth Boundaries. There are a number of large parcels located within, and adjacent to community growth areas that have been set aside as infill development sites. These larger parcels are typically zoned "RR" and "RL" as placeholders. These properties abut the rear yards of numerous residential lots (a good example being the two 40-acre parcels in Clearlake Riviera). The proposed Cultivation Act would allow large cultivation operations on these sites, with no required buffers or setbacks, and would protect those growers from nuisance odor complaints of the many neighboring residents. Last summer staff detected odors from a 60 plant cultivation site at a distance of more than 1/3 mile away in Big Valley, and another large cultivation site in the Cobb Mountain area at least a Y4 mile away. Cumulative water consumption increases in already challenged small water systems may become a problem. While tiered water rates encourage conservation and discourage vegetable gardens on lots within taxed water systems, the value of marijuana justifies the increased water consumption at the higher rates. Peak water demand for marijuana cultivation in the late summer and fall months is coincidentally the most challenging time for water purveyors, whether the supply is from Clear Lake or groundwater wells. Over the last few years, Community Development Department staff has been able to obtain water consumption information for outdoor marijuana cultivation sites. The average consumption ranges from three gallons per plant per day for plants grown illegally on national forest and BLM lands, to five gallons per plant per day in backyard grows where the plants are larger. These estimates are during the summer and fall months.

 

3

 

Staff Staff 2/20/12 12:20 PM Comment [11]: The  Right  to  Farm   Ordinance  would  apply  on  acreage  in  RR,   RL,  A,  APZ  and  TPZ  zoning.    Most  cannabis   farmers  on  acreage  will  create  their  own   setbacks  and  buffer  zones,  that  is  the   common  sense  thing  to  do.    If  a  cannabis   farmer  owns  5  acres,  or  10  acres,  or  20   acres  or  more  there  is  no  reason  to  have  a   garden  near  the  property  lines.    There  will   be  self-­‐regulation  in  the  vast  majority  of   cases.   Staff Staff 2/20/12 12:50 PM Comment [12]: CDD  maintains  that  there   is  a  3  month  odor  from  large  gardens,  but   not  all  varieties  emit  a  skunk  odor  or  any   intense  odor,  and  if  they  do,  it  is  for  one  to   two  months  during  the  peak  flowering   period,  and  is  most  intense  for  about  2  or  3   weeks.    Three  months  is  an  exaggeration.   Staff Staff 2/20/12 12:50 PM Comment [13]: If  someone  has  a  large   garden  on  a  40  acre  parcel  that  abuts  the   rear  yards  of  numerous  residential  lots,   common  sense  dictates  that  the  farmer  will   grow  somewhere  near  the  middle  of  the  40   acre  parcel,  and  40  acres  is  a  lot  of  land,   especially  considering  that  84  large  plants   can  be  grown  on  1/8  of  an  acre.    (If  80   plants  are  grown  in  10  rows  of  8  each,  and   they  are  generously  spaced  8  feet  apart,   they  will  cover  about  5,120  square  feet,  and   an  acre  is  43,560  square  feet.)   Staff Staff 2/20/12 12:50 PM Comment [14]: To  repeat  a  comment   elsewhere,  this  water  concern  appears  to   ignore  current  reality  and  the  fact  that  the   Ordinance  would  LIMIT  the  number  of   cannabis  plants  that  could  be  grown  in  the   county.    Currently,  there  are  no  regulations   in  place  and  no  limits  on  the  numbers  of   plants  that  may  be  grown  in  various  zoning   districts  provided  the  gardens  comply  with   state  law.    The  Ordinance  would  reduce   water  problems  by  placing  reasonable  limits   on  the  cultivation  of  medical  marijuana  and   providing  a  means  under  the  zoning   ordinance  to  destroy  excess  numbers  of   plants  even  if  they  are  in  compliance  with   state  law.      

 

 

       

BOS Memorandum; Comments Concerning Medical Marijuana Cultivation Act of 2012

  According to Lake County Special Districts, peak water demand occurs from July 4th through Labor Day. Increased risk to the viability of existing, challenged water systems to provide water could result from the proposed Cultivation Act. The following systems operated by Special Districts are challenged, and therefore could be at risk: Mt. Hanna, Bonanza Springs, Star View, Paradise Cove, Spring Valley, and Soda Bay. It should be noted that the lots located within the Mt. Hanna, Bonanza Springs and Star View systems were zoned "SR" with the adoption of the Cobb Mountain Area Plan in 1989 (36 plants per lot would be allowed). The average peak (summer) water consumption for a typical household, according to Special Districts, is approximately 436 gallons per day. At five gallons per day, per plant, a 36 plant cultivation operation would consume 180 gallons of water per day. This would result in an increase in water consumption of approximately 40% on those sites. For challenged water systems, even experiencing a situation whereby 10 to 20 percent of the served lots begin cultivating at this level, there could be serious impacts to these systems that result in water shortages for residents. In drought years the problem would be worse.

  8.

The amounts of cultivation that would be allowed in, and within close proximity to residential areas will likely result in public safety impacts from increased home invasion robberies. The fences cannot hide what can be found by the noses of criminals. Google Earth regularly updates their photos and repeat growers can become an easy target for criminal activity. Smaller grows are less likely to attract criminal activity, but 12 mature female plants grown outdoors can easily produce over 24 pounds of processed bud. At $1,500 per pound, that is $36,000 worth of marijuana being grown and processed on a small residential lot in town. These figures can be tripled in many cases due to the 36 plant allowance proposed on many small "SR" and "RR" lots already discussed above.

  9.

  10.

Landlord notification will not be required by the proposed Cultivation Act, even though it is ultimately the property owners who are at risk of Federal forfeiture and payment of assessed fees due to nuisances created by their tenants. There will be no opportunity for landlords to decide whether they want to allow their tenants to cultivate indoors or outdoors. The proposed Cultivation Act does not address indoor cultivation amounts or practices. According to Section 72A.1(c): "This Article does not restrict or affect the right of

qualified patients and their primary caregivers to cultivate medical marijuana indoors." Since there are no other local regulations in place for the indoor cultivation of

marijuana, it is safe to assume that some growers will cultivate outdoors in the amounts proposed by this Act, and also will cultivate indoors. Unless an indoor cultivation ordinance were developed and adopted by the Board of Supervisors, enforcement of indoor cultivation would likely only be practical in cases were significant health and safety violations occur from improper and unpermitted modification of interiors of dwellings, or in cases where the total number of plants exceeds what has been recommended by the patient(s) doctor.

  11.  

The proposed Cultivation Act defines dispensary as a storefront and does not say that dispensing from residential and agricultural districts is prohibited. Growers will likely try and argue that they are allowed to dispense medicine from their residences. This could

 

4  

Staff Staff 2/20/12 12:51 PM Comment [15]: To  repeat  a  comment   above,  this  water  concern  appears  to  ignore   current  reality  and  the  fact  that  the   Ordinance  would  LIMIT  the  number  of   cannabis  plants  that  could  be  grown  in  the   county.    Currently,  there  are  no  regulations   in  place  and  no  limits  on  the  numbers  of   plants  that  may  be  grown  in  various  zoning   districts  provided  the  gardens  comply  with   state  law.    The  Ordinance  would  reduce   water  problems  by  placing  reasonable  limits   on  the  cultivation  of  medical  marijuana  and   providing  a  means  under  the  zoning   ordinance  to  destroy  excess  numbers  of   plants  even  if  they  are  in  compliance  with   state  law.       Staff Staff 2/20/12 12:51 PM Comment [16]: Most  backyard  gardeners   on  small  lots  in  R1  will  not  harvest  2  pounds   a  plant,  especially  since  under  the   Ordinance  the  plants  will  have  to  be   screened  from  view  from  adjacent  parcels.     This  will  limit  the  size  of  the  plants.    Most   people  cannot  grow  in  full  all  day  sun  with  a   South  exposure  while  screening  their   gardens  from  view,  and  full  sun  plus  a  lot  of   knowledge  of  cannabis  gardening  is   required  to  get  2  pounds  a  plant.    Most   backyard  gardeners  in  residential  zoning   get  no  more  than  about  1/4  pound  per   plant,  and  are  ecstatic  to  get  1/2  pound.       Staff Staff 2/20/12 12:51 PM Comment [17]: The  county  need  not   interfere  with  the  landlord/tenant   relationship.    The  issue  of  whether  a   landlord  should  be  notified  is  best  left  to  the   private  sector,  and  the  lease  agreement   between  a  landlord  and  tenant.    A  landlord   concerned  with  this  issue  can  prohibit   indoor  and/or  outdoor  cannabis  cultivation   via  the  lease,  along  with  an  appropriate   inspection  clause.  There  is  no  compelling   reason  for  the  county  to  be  involved  in  the   landlord-­‐tenant  relationship.    This  should   be  a  private  matter  between  the  landlord   and  tenant.       Staff Staff 2/20/12 12:52 PM Comment [18]: Section  72A.1(b)  of  the   Ordinance  states  that  its  purpose  “is  to   regulate  by  land  use  provisions  in  the   zoning  ordinance  the  numbers  of  medical   marijuana  plants  that  can  be  grown   outdoors  .  .  .  .”      The  County  is  free  to  adopt   an  indoor  cultivation  ordinance.      And,   indoor  cultivation  can  be  abated  under   current  laws  if  it  creates  a  nuisance.      

 

:

   

-

   

BOS Memorandum; Comments Concerning Medical Marijuana Cultivation Act of 2012

 

 

 

   

 

 

be construed by growers as a green light to set up dispensing operations from their homes and would likely wind up in court when the County tries to abate "homefront" dispensary operations. Given the high number of plants proposed to be allowed by the Cultivation Act, this should be looked at as a probable scenario. 12.

The definition of "Parcel" within the proposed Cultivation Act is not accurate, and is inconsistent with the Zoning Ordinance. Since this issue is discussed in more detail in the comments prepared by County Counsel, Staff will simply reiterate that this definition will likely create confusion and inconsistencies for staff and the public. There are many properties that have multiple APN's even though they are actually only one legal parcel of record. There are also many instances whereby one APN is used for several separate lots of record owned in common ownership. This could add additional unpredictability for the public when trying to determine how much cultivation they might expect to have occurring around them.

Staff Staff 2/20/12 12:51 PM Comment [19]: The  only  reason   “dispensary”  is  defined  is  because  the   Ordinance  provides  that  “all  persons   cultivating  medical  marijuana  must  possess   documentation  that  they  are  authorized  to   cultivate  either  as  a  qualified  patient,  as  a   primary  caregiver,  for  a  collective,  or  for  a   dispensary.”    In  fact,  the  harvest  from  a   collective  garden  may  well  be  distributed  to   the  collective  members  at  the  location  of  the   garden,  or  delivered  to  the  members.        

county of lake

establishing a primary residential use, cannabis gardens can be abated simply on .... vegetable gardens on lots within taxed water systems, the value of marijuana justifies the increased water consumption at the ... Bonanza Springs, Star View, Paradise Cove, Spring Valley, and Soda Bay. It should be noted that the lots ...

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