Myth: Phase 3 is about expansion.

Phase 3 is about compliance and the transition to a responsible cannabis cultivation industry. If Phase 3 were about scaling up the current negative impacts of cannabis cultivation, I would not support it. Most Mendocino County residents do not have a problem with cannabis cultivation, but rather, they take issue with the negative impacts. All of the complaints today are about the failure of Phase 1. The proposed Phase 3 ordinance provides much stronger protection of environment and neighborhoods.

Myth: Current permitting problems should be addressed before implementing a new ordinance.

It’s not possible. The County’s existing cannabis Cultivation ordinance (Phase 1) is the problem. It’s unworkable. Two authorizations are required to legally cultivate cannabis in Mendocino County:

  1. county permit
  2. state license

The County’s existing cannabis cultivation ordinance (Phase 1) is misaligned with state law. The State’s Program Environmental Impact Report for licensing requires discretionary, site specific review. The County’s existing ordinance does not provide discretionary site specific review. Former Supervisor John McCowen, with history spanning from the 9.31 program through Phase 3 draft, strongly supports Phase 3 because of the impasse between Phase 1 and the State CEQA requirements. Phase 3 aligns with state policy, builds on a path that is utilized by other counties including Humboldt, is endorsed by California Department of Food & Agriculture and offers a viable path to licensure.

Myth: Phase 3 will reduce oversight and protections.

To the contrary, Phase 3 will provide the most stringent cannabis cultivation review Mendocino County has ever seen. I expect very few to get through the process. The goal is to locate commercial cannabis farms where appropriate with safeguards.

Phase 1 allowed continued cultivation with an “embossed receipt” while waiting for a permit. Phase 1 allowed hauled water to dry parcels. Phase 1 didn’t give neighbors an opportunity to voice concern or request mitigation.

Phase 3 prohibits cultivation and related development while the application is pending. Cultivation or development prior to approval will result in application denial. Phase 3 invites all state and local agencies to submit concern. Phase 3 requires a public hearing where neighbors have a venue to voice concern and be heard. Unlike Phase 1, the Planning Commission can approve or deny an application. If they choose to approve it, they can impose conditions to mitigate environmental and neighborhood concerns that have been identified.

Myth: Phase 3 favors out of area corporations.

Out of area corporations see Santa Barbara and Salinas as more favorable. Mendocino County lacks farmland, labor, transportation to metropolitan markets, housing and other sought-after characteristics.

Phase 1 was restricted to people who could show proof of prior cultivation. Those not cultivating before 2016 were categorically excluded. The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws”. It mandates that individuals in similar situations be treated equally by the law. Phase 1 has excluded ranchers, farmers and other law abiding citizens from the state’s legal cannabis cultivation framework.

Phase 3 opens cultivation to all people, but requires appropriate land and compliance.

Myth: Use Permits are weak

Use Permit applications must convince the Planning Commission of certain findings:

Sec. 20.196.020 – Findings.
Before any use permit may be granted or modified, it shall be shown:

(A) That the establishment, maintenance or operation of a use or building applied for is in conformity to the General Plan;

(B) That adequate utilities, access roads, drainage and other necessary facilities have been or are being provided;

(C) That such use will not, under the circumstances of that particular case, constitute a nuisance or be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in or passing through the neighborhood of such proposed use, or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the county; provided, that if any proposed building or use is necessary for the public health, safety or general welfare, the finding shall be to that effect;

(D) That such use preserves the integrity of the zoning district.

Mendocino County’s standard Use Permit Application can be viewed at:

Myth: Phase 3 will increase water hauling, hoop house plastic, hillside grading, deforestation, light pollution, generator noise …

The Board of Supervisors provided staff direction to include additional protections through “standard conditions”. This model allows the Planning Commission to add additional conditions (restrictions) on a case-by-case basis.

In October, 2020, the Board gave direction to restrict water trucks except in the case of a natural disaster. Later, at the January 25, 2021 Meeting, the Board added additional conditions to mitigate consequences of the Phase 1 program (from official meeting minutes):

Board Directive: GENERAL CONSENSUS OF THE BOARD creation of an Ad Hoc Committee of Supervisors McGourty and Gjerde to work with Planning and Building Services on a process to best manage resources and staffing related to tasks directed by the Board of Supervisors. 

Board Action: Upon motion by Supervisor Williams, seconded by Supervisor McGourty, IT IS ORDERED that the Board of Supervisors directs staff to submit proposed County Code amendments related to commercial cannabis cultivation, facilities and other special events to Planning Commission to review and make its report and recommendations on the proposed amendments within forty days; and directs staff to include standard conditions that allow:

generators only in special circumstances; and to limit hoop houses to no more than 10,000 feet and ensure agricultural soil quality is maintained and that agricultural lands being damaged or destroyed are referred to the Planning Commission; addition of an asterisk zoning table indicating phase 1 applicants not included in sunset or opt out zones be allowed to reapply under phase 3, irrespective of zoning and parcel size; and with an addition of an indication of the zoning table that expansion of up to 10% of parcel size is permitted in Upland Residential Zoning. 

The motion carried by the following vote: Aye: 4 – Supervisor McGourty, Supervisor Mulheren, Supervisor Gjerde and Supervisor Williams No: 1 – Supervisor Haschak Absent: o – None

Myth: Phase 3 will scale up current problems

Phase 3 moves away from using canopy area as a proxy for environmental and neighborhood protection. There are neighborhoods where the existing 10k square feet allowance is inappropriate. Likewise, there are large ranches where a few acres would not negatively impact neighbors. Phase 3 favors placing cannabis cultivation where it will not creates negative impacts for other residents.

Forcing a cultivator to operate within 10k square feet does not necessarily reduce environmental impact. In a small space, the cultivator must maximize yield, often through mixed lighting (necessitating hoop houses). With more land available, crop rotation and in-ground sun-grown planting becomes financially feasible.

Myth: Larger scale farms will flood the market

Mendocino County is a small contributor to the state wide legal market. Soon, interstate commerce will open. Mendocino County does not control supply or demand. Further, it’s not the role of county government to regulate cannabis product price. Our job is not to tell an apple farmer how many acres of apples they may grow. Land use is about mitigating impacts between neighboring parcels, not fixing commodity prices through regulation of supply.

Supervisor Haschak, in an opinion piece dated March 31, 2021, raised specific concern, “Wall Street investors, buying up land for profit are instigating a race to the bottom, damaging our local economy by bringing cheap labor and extracting profits to benefit far-away private equity funds.”

With all due respect, show me the cheap labor? Multi-generational ranches, including in John’s 3rd District, have offered tours. My take-away: they’re paying upwards of $40 per hour to long time local residents in an area without much economic opportunity. Living wage jobs with benefits are in fact an equity issue. Not everyone has the means or opportunity to operate a legal small farm in their backyard. A County Supervisor’s job is to balance the competing needs of approximately ninety-thousand residents. The wage earners are indeed one of our priorities. Show me the cheap labor at legal cannabis farms.

I favor small farms, but I also believe a grape grower is capable of swapping a few acres of grapes for cannabis without creating violent crime or damaging our environment. Choosing which people should benefit from legalization is wrong and in some cases, illegal.

Myth: Phase 3 allows 10% of parcel size

Not exactly. Phase 3 sets a maximum ceiling of 10% in agricultural zones (AG, RL, UR). Practically, very few projects will find approval of 10% due to state environmental regulations. Many rangeland parcels are too steep to allow cultivation, many others lack sufficient water supply, few if any will be approved for 10% which is a cap, not an entitlement. For example, I recently toured the farm of a third generation rancher. His 92 acre parcel appeared suitable for perhaps 3 acres of cultivation. Phase 3 is about approving projects based on site specific facts and science, not arbitrary values. One size does not fit all.

Under Phase 3, the size of a cannabis farm will be established based on water, land characteristics, neighborhood compatibility and other environmental concerns.

Myth: Mendocino County lacks adequate enforcement

Unfortunately, this is true. The ambiguity of Phase 1 has negatively contributed to a quasi-legal market. Some Phase 1 farmers are good neighbors with farms in harmony with the environment. Other farms bend rules and are lousy neighbors. No matter the ordinance, enforcement is necessary to address neighborhood nuisance and environmental destruction. Phase 3 alone will not fix this problem. Phase 3 will increase the contrast of who is in compliance with local and state regulations, and who is not. After 4 years in limbo, it’s time to determine which applicants will succeed in Phase 1 and which need to transition to Phase 3.

We can’t hold people to an unattainable regulatory model. Phase 3 gives cultivators a pathway toward legalization. Enforcement can help funnel farms down the regulatory pathway.

Myth: Phase 3 allows commercial cannabis in every zone and corner of the county.

The proposed Phase 3 zoning table restricts new cannabis operations to commercially appropriate zones, moving activity out of neighborhoods and forest lands into agricultural zones. While existing Phase 1 legacy farms may be grandfathered in at their current locations under Phase 3, they will be subject to the same site specific review and conditions as all other Phase 3 applicants to ensure the compatibility of their location.

Myth: Cannabis will use all of the water

Water is indeed a concern, but it’s a concern for all crops. Mendocino county has over 16,500 bearing acres of wine grapes. Cannabis will be grown, either legally or illegally. In the legal market, we gain oversight, including waterboard and California Department of Fish and Wildlife oversight of water sources and use. Limiting canopy size does not protect water. Discretionary review of water sources and impacts on neighbors can provide stronger protection of a finite resource. If water is our #1 concern, we should regulate water directly and encourage farms to maximize the use. Forcing all farms to 10k square feet does not encourage best water management practices. Phase 3 allows us to hold cultivators to existing, well crafted water policy:

Water Quality: Evidence of enrollment with the Regional Water Quality Control Board or State Water Resources Control Board for water quality protection programs or written verification from the appropriate Board that enrollment is not necessary. ( Bureau § 5501., (a); CDFA § 8102., (p) & § 8304.,(a)(1)&(2))

Roads & Water Crossings: Applicants must identify all roads and water crossings on the property. (Bureau § 5501., (d)(1); CDFA § 8105., (c))

Water Source Disclosure: If proposing use of a surface water diversion, groundwater well, or rain catchment system for cultivation, applicants must show on the property diagram those locations with lat. and long coordinates or the California Coordinate System, including – sources of water used, pump locations, water distribution system; location, type and capacity of each storage unit; (Bureau § 5501., (d)(2)(A-B) & (e))

Water Source Disclosure: Applicants must identify and label all water sources for beneficial use type, including but not limited to irrigation, domestic, fire, protection, power, fish and wildlife preservation and enhancement, and/or recreation; (CDFA § 8105., (d))

Water Source Disclosure: Applicants must identify all water sources used for cultivation activities and the applicable supplemental information for each source including: a retail water supplier, a groundwater well, a rain catchment system, and/or a surface water diversion or an underground stream flowing in a known and definite channel (Bureau § 5501.,(f)(1-4); CDFA § 8102., (v)(1-4))

Retail Water Source – Municipal: If the water source is a retail water supplier such as a municipal supplier the applicant must provide the following information: the name of the retail water supplier, and a copy of the most recent water service bill. (CDFA § 8107., (a))

Retail Water Source Information: Applicants must provide information identifying any and all retail water sources: if the water supplier is a small retail water supplier such as a delivery service the applicant must identify whether the water is picked up from a surface water source or an underground stream flowing in a known and definite channel and include: the geographical coordinates of the water source; the authorized place of use of any water right used by the retail water supplier; and the maximum amount of water delivered to the applicant. If the water supplier picks up water from a groundwater well the applicant must provide the geographical location of the groundwater source; the maximum amount of water delivered to the applicant; a copy of the well log filed with DWR. (Bureau § 5503., (a)(1)&(2); CDFA § 8102., (v)(1-4); § 8107 (a)(2)(A)&(B))

Groundwater Well Source Information: If the applicant will be using a groundwater well the applicant must provide the coordinates of the well’s geographical location; and a copy of the well completion report filed with the DWR (Bureau § 5503., (b); CDFA §8107., (b)(1)&(2))

Rainwater Catchment System Information: If the applicant is using a rainwater catchment system the applicant must identify the total square footage of the catchment footprint area(s); the total storage capacity in gallons; and a detailed description of the type, nature and location of each catchment surface. (Bureau § 5503., (c); CDFA § 8107., (c)(1-3))

Surface Water Diversion Information: If the applicant proposes use of a surface water diversion the applicant must provide any applicable statement, application, permit, license, or small irrigation use registration identification number and either: a copy of any applicable registrations, permits, or licenses or proof of a pending application as evidence of approval of a water diversion by the SWRCB; or a copy of any statements of diversion and use filed with the SWRCB before 11.31.2017; or a copy of documentation submitted to the SWRCB before 11.31.2017 demonstrating that the diversion is authorized under a riparian right and that no diversion occurred in any calendar year between 01.01.2010 – 01.01.2017; or if the applicant has claimed an exemption from the requirement to file a statement of diversion, a copy of the documentation submitted to the SWRCB before 01.01.2019. (Bureau 5503.,(d); CDFA § 8107., (d)(1-2))

Non Municipal Water Source Requirements: If the applicant is proposing the use of a diversions from a waterbody or an underground stream flowing in a known and definite channel, groundwater well, or rain catchment system the applicant must include the following information and locations on the property diagram with locations provided as coordinates: sources of water used, including the location of waterbody diversion(s), pump locations(s), and distribution system(s); and location, type, and capacity of each storage unit to be used for cultivation (CDFA § 8105., (e)(1)&(2)) DFW – LSA: Applicants must provide a copy of, and maintain compliance with, any final lake or streambed alteration agreement; or written verification from DFW that a lake and streambed alteration agreement is not required (Bureau §5501.,(g); CDFA § 8102., (w) &§ 8304.,(a)(1)&(2)) Notification of DFW Violations: If applicable the applicant must provide a detailed description of any fines or penalties for cultivation or production of a controlled substance on public or private land pursuant to DFW code §12025 or §12025.1 against the applicant or a business entity in which the applicant was an owner or officer within 3 years preceding the date of application (Bureau §5501., (k); CDPH § 40130., (a)(7)(C))

Myth: Phase 3 proposal was sprung on the public as a surprise

Phase 3 has been part of County Code since April 4, 2017, when the Board of Supervisor adopted Chapter 10A.17 and Chapter 20.242 to regulate cannabis cultivation in Mendocino County. Phase 3 was scheduled to open more than a year ago. During 2020, Supervisor McCowen attempted to bring forward a plan to rework Phase 3 as a Land Use ordinance due to identified infeasibility of the ministerial model.

The full board gave direction to staff regarding Phase 3 ordinance and zoning table on September 22, 2020.

The full board gave further direction to staff regarding Phase 3 again on October 13, 2020.

The full board approved the Phase 3 proposed ordinance on January 25, 2021 for submission to the Planning Commission, sponsored by Cannabis Ad Hoc Committee of Supervisors Williams and Haschak.

Myth: The County must approve the 1,100 pending Phase 1 applicants

The Phase 1 applications vary in quality and projects vary in compliance. Some applications lack permits (drying sheds, buildings, greenhouses, clearing, ponds, electrical, …). Other applications lack adequate plot plans. Some projects are well crafted and could sail through the remaining hurdles. The county’s role is to process the 1,100. I expect few will actually receive a county permit and state license. When California voters passed Proposition 64, they did not vote to legitimize the existing illicit market. The transition is difficult and parallels the transition out of alcohol prohibition.

Myth: Let’s not rush, we should open incrementally

State law will require an Environmental Impact Report for any program approved after this summer, costing county taxpayers up to $1 million extra, when cannabis is already subject to robust site specific California Environmental Quality Act review. Policy established now will be locked in place for years. Cannabis prices will decline in the years ahead as the market becomes efficient. Locking in a permanent static cap on canopy will bolster outlaw activity and limit true legal market participation. Delaying a viable permitting policy, we will be stuck in ongoing deliberations for years to come. The county has other, more pressing issues. It’s bad policy.

Myth: The County approved Mitigated Negative Declaration should satisfy CEQA for state license purposes.

I’ve raised concern about California Environmental Quality Act since my first months in office, but became more verbose after joining the Cannabis Ad Hoc Committee mid-2020. I asked for an explanation about how CDFA’s CEQA requirement could be met with the county’s ministerial process. Cannabis cultivators heard the noise and demanded we obtain a second legal opinion. We obtained an opinion from Abbott & Kindermann, a firm specialized in CEQA. It backs my position that the model is beyond a compromise and may be indefensible if challenged. It’s the applicants (cultivators) who are at risk, not county government. Read the legal opinion:

https://www.mendocinocounty.org/home/showpublisheddocument?id=41172

Myth: Phase 3 is an attempt to phase out legacy farmers

Phase 1 has not delivered state annual licenses, even for appropriate projects demonstrating exemplary farming methods, and may not be legally defensible if challenged. Phase 3 is a potential bridge to state licensure for these legacy farms. The Board directed staff to grandfather in the zoning and setbacks for Phase 1 applicants as part of the Phase 3 zoning table to provide another path to licensure. Our goal is to maximize participation in the regulated market for the well intentioned, tax paying, law abiding farms in our communities. Let’s be careful with generalizations, because some legacy farms are exceptional stewards.

Myth: The phase 3 ordinance will have devastating environmental impacts

Humans have an environmental impact with everything we do and consume. Singling out one plant, specifically a strain producing 0.3% or greater cannabinoid THC, is nonsensical. Developing thoughtful land use policy around legal cannabis production makes sense.

Protecting sensitive habitats, requiring mitigation measures, promoting sun grown on previously disturbed lands, regulating water sources and waste water, preventing forest clearing, eliminating the noise and pollution of generators and other aspects of regulation can lessen the impact.

Where cannabis has been cultivated historically might not be where it is most appropriate today from an environmental standpoint. Migrating cannabis cultivation from illegal to legal can reduce impact. To promote a robust relegated market and minimize the illicit market, policy must be crafted for market feasibility. How successful are the outcomes of status quo Phase 1? Of impacts, farming, whether sungrown wine grapes or cannabis on appropriate farmland, must be viewed relative to our overall impact.

Myth: Phase 3 is bad for Mendocino County residents

Residents are against cannabis negatively impacting the quality of life in Mendocino County. Unfortunately, they’ve been misled about the proposed ordinance. Follow the money. Ask these sources for specific details about how the Phase 1 and Phase 3 programs differ. Ask how Phase 1 addresses present negative consequences. If you hear platitudes, your source is either ignorant or attempting to manipulate you with mistruths. Phase 3 will not cover hillsides with cannabis or garbage (state environmental regulations). It will not allow grading or forest removal (county and state regs) nor will it increase the count of pit bulls or any of the other ridiculous claims. Rather, it’ll allow all farmers access to the state’s legal cannabis market while shedding light on those who have one foot in and one foot out of legal compliance. Phase 3 is designed to address many of the historical problems with cannabis cultivation.

Myth: Commercial cannabis cultivation will ruin our pastoral vistas.

Actual views of licensed Mendocino County farms:

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