Welcome to the brave new world of commercial medicinal cannabis in California. With legislation looming in the state, Humboldt County has become ground zero for the future of regulatory cannabis production. North Coast residents have enacted two major sets of laws in the past six months, and now, Humboldt County folks will face a third set in the County’s new land use ordinance. Prop. 215’s days are now officially numbered, so wrap your mind around these three new sets of laws, and start preparing for the new commercial medical cannabis regime.
Last September saw the introduction of a large-scale, statewide legislative scheme, the “Medical Marijuana Regulatory and Safety Act.” The MMRSA signals the beginning of the end of the Proposition 215 era, with its ‘seed-to-patient’ amalgam rigged together for “Compassionate Use” legal defenses. This all ends January 1, 2018 when the MMRSA’s state agencies’ regulatory authority kicks in with its licensing classification scheme, which is tied to local licensing. Until then you can watch the “rulemaking process,” by which the several state agencies tasked in MMRSA begin forming their regulatory regimes for public comment and response. Areas such as pesticides, manufacturing, testing and others will have regulations proposed, amended, and promulgated.
Also last September, the North Coast Regional Water Quality Control Board issued its very innovative and far-reaching “Cannabis Cultivation and Associated Activities” Order No. 2015-023. For us on the North Coast, the Water Board Order is a massive game-changer beyond MMRSA, which requires “enrollment” of all parcels where cannabis-related activity may threaten water quality, due February 15th. The Order establishes three “tiers” of sites, a set of “Standard Conditions, Applicable to All Dischargers,” and requires remediation in two of the tiers.
But the new Humboldt County “Commercial Medical Marijuana Land Use Ordinance” (“LUO,” get used to it) is the sharpest edge-cutter of the three. Humboldt’s LUO was long and tedious to make, and one may find it just as tiresome to read. It is also innovative, practical, and overall, very well done. Land use is where life’s rubber hits the road. The LUO has a licensing scheme tailored to fit Humboldt County’s special land uses in conjunction with the Water Board Order and the MMRSA authorities; you have to pick and fit your own parts together for yourself. The following is a brief explanation of the major parts of this brand-new county ordinance, how it works and how to navigate it for yourself:
First, all Humboldt County land use lies in either the “Coastal Zone” or the “Inland Zone.” The ordinance has separate parts for each Zone. These two parts are largely identical, with certain differences required by the California Coastal Act for the Coastal Zone. Which Zone is your parcel in? After that question is answered, which “zoning classification” applies to your parcel; e.g., are you RA, AG, AE, MB, ML, or U? This “classification” is critical to what is allowed on your parcel in any land use ordinance (see chart, below in “Permit Types”).
Land use law is all about what activities are being performed on the ground (or will be). The Humboldt LUO has five sections deserving focus here; they address: 1) Categories of activities (“General Provisions”), 2) “Permit Types,” 3) “Performance Standards,” 4) “Retirement” of certain site types, and 5) “Humboldt Artisanal Branding.”
The “General Provisions” section (55.4.8) of the Ordinance divides cannabis-related activity into five types: 1) Outdoor and Mixed-Light Cultivation, 2) Indoor Cultivation, 3) Processing Facilities, 4) Wholesale Distribution Facilities, and 5) Nurseries.
What is your activity type? Might you expand it to more than one? What permits and licenses might you need for these activities? Go to section 126.96.36.199 through 188.8.131.52, the latter of which limits county cannabis land use permits to only four to each “person.” How many “persons” are involved in your Humboldt County permitting dreams?
“Permit Types” (55.4.9)
For cultivators, the permit tier choices fall into “Outdoor” or “Mixed-Light” (“New” or “Existing” for either), and “Indoor” categories. This sentence is key: “The type of Zoning Clearance Certificate, Special Permit, or Use Permit [to engage in cultivation] shall be determined by the size and zoning classification of the parcel on which the activity is to be conducted and the type of state license required for that operation pursuant to the MMRSA, in accordance with the following chart:” You then study the chart, find your zoning classification and parcel size, and learn the maximum “cultivated area size limit” allowed.
This section also provides for a combination of permit types within the same application. It also contains a requirement for “All operators of existing cultivation sites seeking recognition of cultivation activities that occurred on or before [1-1-16 to] register with […] Planning & Building within 180 days of the effective date of this ordinance.”
“Permit Standards” (55.4.11)
This section contains a very long and varied list of things which permittees must do. These include inspections and appeals, being licensed at the state level and elsewhere, enrolling in the Water Board’s Order, setbacks, hazardous materials handling protocols, water source, use and forbearance, noise, employee practice requirements, light use and disturbance, neighbor’s complaints, and more. As always, some will apply to your operations, others will not. Choose your permit type and then read through what standards apply to any such permit holder.
“Retirement, Remediation, and Relocation (RRR) of Cannabis Cultivation Sites” (55.4.14)
This is the County’s effort to “incentivize” those owners or operators of sites which are inappropriately located and need to be abandoned. The LUO offers the possibility of expanding the previous cultivation acreage if relocated to an appropriate parcel, or if the former site is remediated and then abandoned for further such use.
“Humboldt Artisanal Branding” (55.4.15)
This, of course, is Humboldt’s long-sought answer to the French wine “appellation” concept, or “terroir,” the idea that a food product coming from a particular geographic region has a unique attribute worthy of legal protection by name. “Appel” is French for “to call (something),” so you might think now about calling your product something Humboldtian for when you’ve qualified your operations under section 55.4.15.
That is it for now, my space is up. California’s cannabis law landscape is vastly altered and bursting with opportunity, with the North Coast and Humboldt County carrying the regulatory spear’s tip. So boldly grow how no one has grown before!
Paul Hagen is an environmental attorney dedicated to the North Coast’s vibrant future and making it so. His North Coast Environmental Law Office is located in Arcata, visit his website at Northcoastelaw.com.