Mendocino County’s Phase Three Cultivation Ordinance
In June of 2021, Mendocino County adopted, among other things, amendments to its commercial cannabis cultivation regulations. Commonly known as the “22.18 amendments” and the “phase three cultivation ordinance”, the new regulations involve sweeping changes to the way cannabis cultivators obtain permits along with many other changes that work to streamline the County’s permitting process.
A New Discretionary Use Permitting Process for Cannabis Cultivation
The 22.18 amendments established a discretionary use permit process for applicants seeking commercial cannabis cultivation permits, which is a significant change from the administrative process that previously existed. While the discretionary use permit process may initially be more intensive for those seeking permits in phase three and beyond, it will also enable applicants to obtain the California Environmental Quality Act (“CEQA”) clearances necessary to apply for and obtain annual state cultivation licenses from CalCannabis Cultivation Licensing (“CalCannabis”).
What is a “Discretionary Use Permit Process”?
You may be asking yourself, what is a “discretionary use permit process”? Well, it is actually a process that has been adopted by many other local jurisdictions throughout California for the consideration and issuance of local permits related to commercial cannabis projects.
At the most basic level, the Discretionary Use Permit process allows a locality to consider certain uses that are desirable to members of the community, but which are NOT allowed as a matter of law or right within specified zoning districts. Meaning, the locality has the power and discretion to issue an applicant a permit to operate a commercial cannabis business within certain zoning districts but is not required to issue the permit if the applicant fails to meet certain criteria or if the project would have a detrimental effect on the community.
Public Hearing and Public Comments
Discretionary Use Permit applications are generally brought before a governing body (such as the board of zoning, planning commission, zoning administrator, etc.) for consideration at a public hearing. Prior to the hearing, the owners of properties near the proposed operating site are sent written notice of the hearing date and are provided the opportunity to make public comment about the project at the hearing.
Hearing Outcome and Conditional Use Permits
If the hearing body determines that the application at issue meets all local requirements and is not detrimental to the community, the locality has the right to (but is not required to) issue a use permit to the applicant. The locality may issue the permit in conjunction with a set of conditions that the operator must adhere to before and during its operations (this type of use permit is called a “conditional use permit”).
The Advantages of the New Discretionary Use Permit in Mendocino County
Given the general discussion above, it is clear that the discretionary use permit process is more detailed and involved that the administrative or “over the counter” process that Mendocino County previously conducted. However, for a myriad of reasons, the Discretionary Use Permit process provides permittees with more protections than the non-discretionary administrative permit process previously used by Mendocino County and will allow cannabis cultivators to obtain the California Environmental Quality Act (CEQA) approvals necessary to obtain annual state cannabis licenses.
Simplified CEQA Compliance for Annual State Cannabis Cultivation Licenses
This is because conditional use permits are subject to CEQA, meaning that prior to the public hearing on the proposed use permit application, the locality must evaluate the proposed use to determine whether or not it may have any significant adverse effects on the environment. If the proposed use is not exempt from CEQA the locality is required to prepare either a negative declaration indicating that the project as proposed will have no significant effect on the environment, or an Environmental Impact Report (“EIR”) which describes the potential negative impacts of the proposed use and the means to avoid or lessen those impacts. Proof of CEQA compliance is required for cannabis cultivators to obtain annual cannabis cultivation licenses from CalCannabis. Unlike an administrative permitting process, the discretionary use permit process puts the onus of evaluating projects for CEQA compliance on the locality rather than the operator itself and is therefore extremely beneficial to applicants.
Unlike an administrative permitting process, the discretionary use permit process puts the onus of evaluating projects for CEQA compliance on the locality rather than the operator itself and is therefore extremely beneficial to applicants.
Increase in Permitted Canopy Size for Cannabis Cultivators in Mendocino
In addition to establishing a discretionary use permit process, the Phase Three Cultivation Ordinance in Mendocino County also made some changes to where cannabis cultivators can conduct operations and how much mature plant canopy operators can grow. Perhaps most notably, the 22.18 amendments state that operators with premises located on parcels in the AG or RL zoning districts that are ten (10) acres or larger in size may cultivate up to 10% of the parcel area with the issuance of a Major Use Permit.
Perhaps most notably, the 22.18 amendments state that operators with premises located on parcels in the AG or RL zoning districts that are ten (10) acres or larger in size may cultivate up to 10% of the parcel area with the issuance of a Major Use Permit.
For example, if an operator has a 100-acre parcel in the RL zoning district, it may cultivate up to 10 acres of mature plant canopy on site assuming that all other set back and location requirements are met and the operator obtains a state license to cultivate before operations begin. This is increase in permitted canopy size for cultivators and allow Mendocino County based cultivation businesses to compete with large scale cultivators from around the state.
Changes of the magnitude described above are rarely without objection. There are many in Mendocino County that object to the changes adopted by the County and therefore, more changes may be on the horizon. All in all, if you are considering whether or not to cultivate cannabis in Mendocino County, it is imperative that you keep up to date on Mendocino County’s local ordinance amendments. For more information about the status of Mendocino County’s cannabis regulations, contact Rogoway Law Group today.
