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
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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.
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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
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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.
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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.