Fred Fletcher, September 15, 2019
My family and I are relocating to Oregon although an office will be maintained in Eureka for awhile. We moved to Humboldt with hopes of helping to improve the community, and learned billions of dollars of cash floating around a rural county unleashes a distopia: "a place where the condition of life is extremely bad, as from deprivation, oppression, or terror." Humboldt is full of wonderful individuals who are intimidated, uninformed, or tired of trying. Humboldt's golden age was when people did not inhabit her, and so we leave Humboldt. Please destroy English Ivy wherever you see her.
August 18, 2019
Latin is still used to describe legal doctrines.
The term "de novo" is commonly used to describe the right to a new trial of an administrative hearing officer's decision if appealed. This is an important right that can effect disability payments, permit and license revocations, and property rights. Without the right to a traditional "de novo" review of an administrative hearing officer's decision property and civil rights are at risk. An administrative hearing officer is someone the Government pays to determine the rights of its residents. Sometimes these hearing officers are unqualified, bias, or conflicted so California law allows their decisions to be reviewed by judges "de novo" or "anew."
Two Humboldt Superior Court Judges Kelly Neel, and Gregory Elvine-Kreis have determined the term "de novo" means the exact opposite of it's Latin origin. Both judges have held that a "de novo" review of an administrative hearing officer's decision is limited to the record at the administrative hearing meaning the review is not "anew" but is the opposite. Our judges have decided nothing "anew" is allowed to be presented on appeal to challenge the hearing officer's decision. This is an astonishing holding (postmodernism?) which appears to contravene the findings of every other Judge in the State who has pondered the issue. Will the Court of appeals agree with our Humboldt Court by turning Latin on it's head and disposing of due process?
July 15, 2019
Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S. ___ (2019)
Ms. Knick bought 90-acres of land in 1970 in Pennsylvania. In 2008, rumors started to circulate a dead body was buried on her land. A relative of the dead body convinced (probably bought) the City Counsel to designate the land as a cemetery which forced Ms. Knick to allow visitors on her land. Ms. Knick sued in State court where her case was dismissed because the City had not filed an enforcement action against her.
Ms. Knick petitioned the US Supreme Court to overturn a catch-22 for property owners. She claimed the City turning her property into a cemetery was an illegal taking (without just compensation) under the 5th amendment. Prior to this decision property owners were barred from seeking relief in Federal Court until they had sued and appealed all the way to the State Supreme Court.
The US Supreme Court overturned this rule and now property owners can sue directly in Federal Court when a locality takes property without just compensation. This decision may bring an end to our local bureaucracy.
Humboldt Planning and Building Department, Director John Ford on bottom right
I've been grounded from driving since Mother's day due to a medical condition giving me an opportunity to review Eureka's public transit system. On average public transit in Eureka is as fast as walking.
Assembly Bill 286, dubbed the Temporary Cannabis Tax Reduction bill, would temporarily cut state excise taxes for legal marijuana retailers from 15 percent to 11 percent and also suspend cultivation taxes altogether through 2022. The proposed legislation, which is sponsored by state Treasurer Fiona Ma. “The whole aim of legalization is to compete with the illicit market and to get people to buy from the regulated establishments,” he said. “You can’t do that if the taxes are so high and onerous that people are driven out of that market.”
This is at odds with the taxing scheme in Humboldt were the black market is estimated to be 1,500% larger than the white market. Yesterday, the Court refused to dismiss the Measure S lawsuit attorney Eugene Denson and I filed. The lawsuit seeks to return the tax to a crop tax as approved by the voters. The suit challenges the constitutionality of an amendment our county supervisors made to impose the tax whether or not plants are grown.
January 29, 2019
Judge, Haywood S. Gilliam Jr. of the US District Court in Oakland, on Sunday granted a request by more than a dozen states to temporarily block the Trump administration from putting into effect new rules that would make it easier for employers to deny women health insurance coverage for contraceptives.
Saul Loeb/AFP/Getty Images
Farm Employee Overtime
In 2016, California became the first state in the U.S. to require employers to pay overtime for farm workers who work more than eight hours. The first phase of the new rules will begin in January, when agricultural employees will earn overtime after working 9 1/2 hours in a day or 55 hours in a week. Currently, California farm-workers can get overtime after working 60 hours in a week or 10 hours in a day. The change only applies to businesses that employ at least 26 people. The rules do not apply to smaller agricultural employers until 2022. Our office consults with agricultural employers on compliance matters and we represent employees on wage and labor claims. Aside from wage and hour claims, sexual harassment and discrimination are constant concerns on the farm.
Street Vendor Permits
A law going into effect in January will allow local governments to design permit programs for vendors and limits when they can be criminally prosecuted. It pertains to anyone selling food or other merchandise from a pushcart, stand or “non-motorized conveyance.” I anticipate the City of Eureka will embrace this new law and its economic benefits. I predict the County will ignore this law until the County is forced to follow it by a judge.
Home Kitchen Businesses
A new law encourages Counties (like Humboldt) to permit home kitchens for the purpose of selling food products. California Assembly member Eduardo Garcia, who authored the bill, says that homemade food sales are a vital part of self-reliant communities. “Legitimizing these home businesses will offer a means of economic empowerment and pathways for many to achieve the ‘American dream,’” Garcia said when the bill was signed. Humboldt historically resists new opportunities which provide residents access to residual income. Perhaps after the County Supervisors election in 2020 progress will be made on this front.
January 17, 2019
Measure S is the cannabis cultivation tax the voters passed. We are challenging the County Supervisor's decision to amend Measure S as passed by the voters. The Supervisors amended the tax to apply to the property owner, not the farmer, and regardless of whether any crop is grown.
Yesterday, we filed our response to the County's demurrer to the Measure S lawsuit. (Set to be heard January 28, 2019.) The County hired a large Sacramento Firm (founded the year I was born) to defend the lawsuit. They argue it's impossible to tax farmers for the actual crop grown because the County can't verify how much was grown. We informed the Court, governments since the beginning of governments have taxed farmers for crops actually grown, and we cited the Book of Genesis as our evidence.
The amendments by the Supervisors have been misreported. The Supervisors amended Measure S to tax the permitted area regardless of the amount of crop grown. As such, the supervisors have amended the tax to be assessed against fallow land, without regard to crop grown. We provided the Court authority that Measure S as amended is a property tax and is unconstitutional. We ask the Court to return Measure S to its original state which acted as an excise tax on legal crop actually grown.
We will update this one.
January 15, 2019
In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment free speech rights of Brian Davison by banning him for 12 hours from her “Chair Phyllis J. Randall” facebook page.
Last election my office received a few complaints from citizens who were censored for making comments critical of politicians, on the left and right (somehow our local politics are becoming politically polarized). Now these citizens may have recourse. This First Amendment decision could impact local elections nationwide by allowing the public to be heard.
January 8, 2019
This lawsuit challenges HUD's rule which forces subsidized apartments to evict medical cannabis users. Plaintiff was evicted from her HUD apartment on July 10, 2018 when a maintenance man discovered some medical cannabis in her bedroom. She remains homeless and is not alone.
The lawsuit not only challenges HUD's rule but relies upon Murphy v NCAA (decided May 2018) to challenge the constitutionality of the Controlled Substance Act itself relative to medical marijuana in the State of California. The Supreme Court in Murphy v NCAA resurrected from near death the anti-commandeering doctrine, which in laymen's terms means the Congress cannot make orders directly to the States.
We are optimistic this lawsuit will prevail. If the District Court issues an order in our favor appealing the decision would pose a political pitfall for the Trump administration.
I will update this one.
January 3, 2019
We filed an action in Butte County on May 17, 2018 with the intent of having a jury decide punitive damages. We would be the first party to bring the defeat device case to jury trial. Peer reviewed studies proved thousands of people with lung diseases died from the fraud.
ORDINANCE NO. 342-2016
An ordinance establishing Section 17.30.195 of Title 17 of the Rio Dell Municipal Code relating to the Commercial Cultivation, Processing, Manufacturing and Distribution of Cannabis for Medical Use.
The City Council of the City of Rio Dell ordains as follows:
WHEREAS, California Government Code Section 65850, et seq. authorizes counties and cities to regulate land use, including agriculture, and to adopt and amend zoning ordinances for such purposes, and sets forth procedures governing the adoption and amendment of such ordinances; and
WHEREAS, on October 9, 2015 Governor Brown approved a package of three bills enacted by the legislature on September 11, 2015, SB 643, AB 243, and AB 266, providing for comprehensive, concurrent regulation and licensing by state and local governments of medical marijuana as an agricultural product, including its cultivation, processing, testing, manufacture, distribution, transportation, dispensing, and delivery; and
WHEREAS, pursuant to Section 11362.777, subsection (c)(3), "A city, county, or city and county's locally issued conditional permit requirements must be at least as stringent as the Department of Food and Agriculture's state licensing requirements"; and
WHEREAS, the state statutes establishing a regulated, legitimate basis for commercial medical cannabis economic activities under the authorization of state law provide an opportunity to bring unregulated activities into compliance with existing law and ameliorate adverse environmental impacts, while bringing it out of the shadows of an underground, black-market economy into a legitimate agricultural and commercial contributor to the local and state economy; and
WHEREAS, the City of Rio Dell has previously adopted a land use ordinance governing indoor and outdoor cultivation of medical marijuana for personal use; and
WHEREAS, the Planning Commission held five public hearings on the proposed Ordinance governing the Commercial Cultivation, Processing, Testing, Manufacturing and Distribution of Cannabis for Medical Use to receive a reports on the draft ordinance, as well as evidence and public testimony; and
WHEREAS, the Planning Commission reviewed and considered the report, evidence, and other testimony presented to the Commission, and recommended revisions to the draft land use Ordinance Governing the Commercial Cultivation of Commercial Cultivation, Processing, Manufacturing and Distribution for Medical Use; and
WHEREAS the City has reviewed and processed the proposed amendment in conformance with Sections 65350 – 65362 of the California Government Code; and
WHEREAS the City has reviewed and processed the proposed amendment in conformance with Section 17.35.010 of the City of Rio Dell Municipal Code; and
WHEREAS the City finds that based on evidence on file and presented in the staff report that the proposed amendment is consistent and compatible with the General Plan and any implementation programs that may be affected; and
WHEREAS the proposed amendment has been processed in accordance with the applicable provisions of the California Government Code and the California Environmental Quality Act (CEQA); and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rio Dell does hereby ordain as follows:
SECTION 1. Section 17.30.195 of Title 17 of the Rio Dell Municipal Code is hereby added as follows:
(1) Authority and Title
This Section shall be known as the Medical Marijuana Commercial Land Use Ordinance (“MMCLUO”), which provides for the regulation of Commercial Cultivation, Processing, Manufacturing and Distribution of cannabis for medical use, as defined in this Code, located within the City of Rio Dell
(2) Purpose and Intent
The purpose of this Section is to establish land use regulations concerning the commercial cultivation, processing, manufacturing and distribution of cannabis for medical use within the City of Rio Dell in order to limit and control such cultivation in coordination with the State of California in the implementation of the Medical Marijuana Regulation and Safety Act (MMRSA)(SB 643, AB 266, and AB 243 as adopted September 11, 2015, and approved by the Governor on October 9, 2015), so as to ensure the health and safety of employees, independent contractors, visitors to the area, neighboring property owners, and end users of medical marijuana; to protect the environment from harm to streams, fish, and wildlife; to ensure the security of the medical marijuana; and to safeguard against the diversion of medical marijuana for non-medical purposes. It is intended to address the City of Rio Dell’s prerogative to permit, and control commercial cultivation, processing, manufacturing and distribution of cannabis for medical marijuana as set forth in the MMRSA, including, but not limited to the provisions of Business and Professions Code Sections 19315, 19316, 19320, 19322, 19332, and 19360 and Health and Safety Code Section 11362.777, in conjunction with state licensing requirements, in order to protect the public health, safety, and welfare of the residents of the City of Rio Dell, and to reduce or eliminate any adverse environmental effects of existing commercial cannabis cultivation operations in the City of Rio Dell, and to prevent adverse environmental effects of any new commercial cannabis activities which may be permitted in the future in accordance with this Section and state law. This Section is not intended to supersede the provisions of Section 17.30.190 of the Rio Dell Municipal Code concerning cultivation of medical marijuana for personal use.
(3) Applicability and Interpretation
(a) These regulations shall apply to the location and permitting of commercial cultivation, processing, manufacturing, and distribution of cannabis for medical use in zoning districts within which such use is authorized, as specified in this Section.
(b) The commercial cultivation, processing, manufacturing, and distribution of cannabis for medical use within the jurisdiction of the City of Rio Dell shall be controlled by the provisions of this Section, regardless of whether those activities existed or occurred prior to the adoption of this Section.
(c) Nothing in this Section is intended, nor shall it be construed, to exempt the commercial cultivation, processing, manufacturing, and distribution of cannabis for medical use, from compliance with all other applicable zoning, and land use regulations, as well as compliance with any applicable state laws.
(d) Nothing in this Section is intended, nor shall it be construed, to exempt the commercial cultivation, processing, manufacturing, and distribution of cannabis for medical use, as defined herein, from any and all applicable local and state construction, electrical, plumbing, land use, water rights, waste water discharge, streambed alteration, or any other environmental, building or land use standards or permitting requirements.
(e) Nothing in this Section is intended, nor shall it be construed, to preclude a landlord or property owner from limiting or prohibiting commercial cultivation, processing, manufacturing, or distribution of cannabis for medical use on private property.
(f) The definitions in this Section are intended to apply solely to the regulations in this section.
(g) Notwithstanding the fact that Health and Safety Code Section 11362.777 declares that medical cannabis is an agricultural product for purposes of that Section and the MMRSA, Business and Professions Code Section 19300, et. seq., the commercial cultivation of cannabis for medical use is a highly regulated specialty crop and cultivation and processing of that specialty crop shall not be allowed as a principal permitted use unless a Conditional Use Permit is first obtained from the City of Rio Dell, and the person engaged in such activity has obtained all state licenses and permits which may be required by the applicable state licensing authorities whenever such licenses become available.
(4) Release of Liability and Hold Harmless
As a condition of approval for any Conditional Use Permit approved for the commercial cultivation, processing, manufacturing, testing, or distribution of cannabis for medical use, as defined herein, the owner or permittee shall indemnify and hold harmless the City of Rio Dell and its agents, officers, elected officials, and employees for any claims, damages, or injuries brought by affected property owners or other third parties due to the commercial cultivation, processing, manufacture, or distribution of cannabis for medical use and for any claims brought by any person for problems, injuries, damages, or liabilities of any kind that may arise out of the commercial cultivation, processing, manufacture, or distribution of cannabis for medical use.
(5) Penalties and Enforcement
All of the remedies provided for in this Section shall be cumulative and not exclusive of remedies available for violations under any other Section of the Rio Dell Municipal Code and the MMRSA.
Any violation of this Section, including, but not limited to failure to obtain and maintain in good standing the required Conditional Use Permit specified in this Section, shall be, and the same hereby is declared to be, a public nuisance and unlawful and shall be subject to injunction, abatement or any other administrative, civil, or criminal remedy available to the City under the applicable state and City laws, including those set forth in the Rio Dell Municipal Code.
“Area of Traditional Tribal Cultural Affiliation” means geographic areas of historic occupancy and traditional cultural use by local indigenous peoples (California Native American Tribes), as shown on the latest mapping prepared by the County of Humboldt Planning & Building Department, created from geographic information supplied by the Tribes of Humboldt County.
“Cannabis” means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, or any other strain or varietal of the genus Cannabis that may exist or hereafter be discovered or developed that has psychoactive or medicinal properties, whether growing or not, including the seeds thereof. “Cannabis” also means marijuana as defined by Section 11018 of the Health and Safety Code as enacted by Chapter 1407 of the Statutes of 1972. For the purpose of this section, “cannabis” does not mean “industrial hemp” as defined by Section 81000 of the Food and Agriculture Code or Section 11018.5 of the Health and Safety Code.
“Commercial Cannabis Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis for medical use, including nurseries, that is intended to be transported, processed, manufactured, distributed, dispensed, delivered, or sold in accordance with the Medical Marijuana Regulation and Safety Act (MMRSA) for use by medical cannabis patients in California pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code.
“Cultivation Area” the area encompassed by the perimeter surrounding the area within which cannabis plants are cultivated. Where plants are cultivated in separated pots, beds or plots, the cumulative total surface area of all such pots, beds or plots, and the surface area underneath the maximum anticipated extent of vegetative growth of cannabis plants to be grown in separate pots, beds or plots, used in combination for a single permitted cultivation operation.
“Cultivation site” means the location or a facility where medical cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or that does all or any combination of those activities, except where drying, curing, grading or trimming is otherwise prohibited.
“Dispensary” means a facility where medical cannabis, medical cannabis products, or devices (excluding pipes and water pipes) for the use of medical cannabis products are offered, either individually or in any combination, for retail sale.
“Distribution Facility” means the location or a facility where a person licensed with a Type 11 license pursuant to the MMRSA conducts the business of procuring medical cannabis from licensed cultivators or manufacturers for sale to licensed dispensaries, and the inspection, quality assurance, batch testing by a Type 8 licensee, storage, labeling, packaging and other processes prior to transport to licensed dispensaries.
“Indoor” means indoor cultivation using exclusively artificial lighting.
“Licensee” means a person issued a state license under the MMRSA to engage in commercial cannabis activity.
“Manufacturing Facility” means a process whereby the raw agricultural product is transformed into a concentrate, an edible product, or a topical product, and the production, preparation, propagation, or compounding of medical cannabis or medical cannabis products, directly or indirectly, by extraction methods, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.
“Mixed-Light” means cultivation using a combination of natural and supplemental artificial lighting at a maximum threshold as set forth in performance standards in Section 55.4.11 (t), et seq. of this ordinance, or as to be determined by the Department of Food and Agriculture, whichever is less.
“Nursery” means a licensee that produces only clones, immature plants, seeds, and other agricultural products for retail or wholesale sale, used specifically for the planting, propagation, and cultivation of medical cannabis.
“Outdoor” means outdoor cultivation using no artificial lighting.
“Person” means an individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit and includes the plural as well as the singular number.
“Premises” means a legal parcel compliant with the Subdivision Map Act, or a leasehold interest in agricultural land for agricultural purposes of outdoor or mixed-light cultivation or processing of medical cannabis, or space in an industrial or commercial building for purposes of indoor cultivation, processing, manufacture, or distribution of medical cannabis.
“Processing Facility” means the location or facility where medical cannabis is dried, cured, graded, trimmed, and/or packaged by or under the control of one or more licensed cultivators, at a location separate from the cultivation site where the medical cannabis is grown and harvested.
“State license,” means a state license issued pursuant to the MMRSA.
“Testing Laboratory” means a facility, entity, or site in the state that offers or performs tests of medical cannabis or medical cannabis products and that is both of the following:
(1) Accredited by an accrediting body that is independent from all other persons involved in the medical cannabis industry on the state; and
(2) Registered with the Department of Public Health.
“Tribal Cultural Resources” means sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe, including unique archaeological resources and historical resources as described under sections 21074, 21083.2(g), and 21084.1 of the Public Resources Code, respectively. Tribal Cultural Resource shall also include sites or resources identified by the tribe through an action of the Tribal Council or equivalent body.
(7) General Provisions
This section applies to all facilities and activities involved in the Commercial Cultivation, Processing, Manufacturing, Testing or Distribution of cannabis for medical use, as defined in this Section.
(a) All commercial cultivation, processing, manufacturing, testing, or distribution of cannabis for medical use shall operate in compliance with this Section, as well as all applicable state and local laws and conditions as deemed appropriate by Planning Commission and/or the City Council.
(b) Outdoor and Mixed-Light commercial cultivation of cannabis for medical use shall be conducted entirely within a fully enclosed, secure and lockable greenhouse and shall be conditionally permitted in the Rural (R) and Natural Resources (NR) designations, pursuant to the “Outdoor” and “Mixed-Light” parcel size and cultivation area provisions described in the Table of Permit Types, and subject to the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(c) Indoor commercial cultivation of cannabis for medical use shall be conditionally permitted in the Industrial Commercial (IC), Rural (R) and Natural Resources (NR) designations pursuant to the “Indoor” parcel size and cultivation area provisions described in the Table of Permit Types, and subject to the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(d) Processing Facilities accessory and appurtenant to on site cultivation for commercial cannabis for medical use shall be a conditionally permitted use in the Industrial Commercial (IC), Rural (R) and Natural Resources (NR) designations zoning districts, subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(e) Stand alone, independent Processing Facilities for commercial cannabis for medical use shall be a conditionally permitted use in the Industrial Commercial (IC) designation zoning district, subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(f) Extraction manufacturing of commercial cannabis concentrates for medical use shall be a conditionally permitted use in the Industrial Commercial (IC) designation, subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(g) Manufacturing of edibles (commercial kitchens) for medical use shall be a conditionally permitted use in the Industrial Commercial (IC), Town Center (TC), Neighborhood Center (NC) and Community Commercial (CC) designation subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(h) Wholesale Distribution Facilities for commercial cannabis for medical use shall be a conditionally permitted use in the Industrial Commercial (IC) designation, subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(i) Nurseries, as defined herein, producing commercial cannabis nursery products for retail sale, bulk wholesale sale or to supply retail nursery outlets shall be a conditionally permitted use in the Industrial Commercial (IC), Rural (R) and Natural Resources (NR) designations, subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(i) Testing laboratories as herein defined shall be conditionally permitted in the Industrial Commercial (IC), Town Center (TC), Neighborhood Center (NC) and Community Commercial (CC) designation subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(j) Dispensaries as herein defined shall be conditionally permitted in the Town Center (TC) designation subject to a Conditional Use Permit and the conditions and limitations set forth in this Section and as deemed appropriate by Planning Commission and/or the City Council.
(k) Other than as enumerated in this Section, the commercial cultivation, processing, manufacturing, testing or distribution of cannabis for medical use in any other zoning district in the City of Rio Dell is prohibited.
(l) The fact that an applicant possesses other types of state or county or city permits, licenses or other entitlements does not exempt the applicant from the requirement of obtaining a Conditional Use Permit from the City of Rio Dell to engage in the commercial cultivation, processing, manufacturing, testing or distribution of cannabis for medical use within the jurisdiction of the City.
(m) No more than four commercial cannabis activity permits of any type enumerated in Sections 17.30.195(8)(b) through 17.30.195(8)(g) of this ordinance may be issued to a single person, as defined herein. For purposes of this limitation, any natural person who owns or controls any interest, directly or indirectly, in a firm, partnership, joint venture, association,cooperative, collective, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, shall be collectively considered a single person with those entities.
(8) Cultivation Locations, Parcel Sizes and Allowable Canopies
The location of commercial cultivation of cannabis for medical use within the City shall be determined by the zoning designation and the size of the parcel on which the activity is to be conducted in accordance with the following table:
Cultivation Locations, Parcel Sizes and Allowable Canopies
Outdoor (Greenhouse) & Mixed-Light Cultivation
Rural (R) and Natural Resources (NR) Designations
State License Type Parcel Size Allowable Canopy
Type 1 & 1B, “Specialty Outdoor& Specialty Mixed Light” < 1 acre 1,000 sq. ft.
1-2.49 acres 2,000 sq. ft.
2.5-4.99 acres 5,000 sq. ft.
Type 2 & 2B, “Small Outdoor& Small Mixed Light” 5.0- 19.99 acres 10,000 sq. ft.
Type 3 & 3B, “Outdoor& Mixed Light” ≥ 20 acres 22,000 sq. ft.
Industrial Commercial (IC) Designations
Type 1A, “Specialty Indoor” < 1 acre 5,000 sq. ft.
Type 2A, “Small Indoor” 1.0- 1.99 acres 10,000 sq. ft.
Type 3A, “Indoor” ≥ 2 acres 22,000 sq. ft.
Type 1A, “Specialty Indoor” < 1 acre 1,000 sq. ft.
1-1.99 acres 2,000 sq. ft.
2.0-4.99 acres 5,000 sq. ft.
Type 2A, “Small Indoor” 5.0- 9.99 acres 10,000 sq. ft.
Type 3A, “Indoor” ≥ 10 acres 22,000 sq. ft.
Industrial Commercial (IC), Rural (R) and Natural Resources (NR) designations
Type 4, “Nursery” N/A 43,560 sq. ft.
(a) Processing of cannabis that is cultivated pursuant to these regulations may occur at the cultivation site subject to the Processing Performance Standards and Employee Safety Practices enumerated in Section 17.30.195(10) thru 17.30.195(13) are met.
(b) Multiple applicants may obtain a Conditional Use Permit for outdoor cultivation, mixed-light cultivation, or both, on one legal parcel so long as the cumulative cultivation area is within one contiguous cultivation footprint that does not exceed the total cultivation area size limits set forth in Table 8.1, Cultivation Locations, Parcel Sizes and Allowable Canopies.
(c) A combination of cultivation types may be allowed in the same zone (e.g. outdoor and, mixed light cultivation, or indoor cultivation and processing) that are for a total area equal to or less than the cultivated area size limit for the size of the underlying parcel.
(9) Application Requirements for All MMCLUO Conditional Use Permits:
(a) A completed standard application form for a Conditional Use Permit with the required deposit.
(b) If the applicant is not the record title owner of parcel, written consent of the owner for the application with original signature and notary acknowledgement.
(c) A Site Plan shall be submitted showing the entire parcel, including easements, streams and other surface water features, and the location and area for cultivation on the parcel with dimensions of the area for cultivation and setbacks from property lines. The site plan shall also include all areas of ground disturbance or surface water disturbance associated with cultivation activities, including: access roads, water diversions, culverts, ponds, dams, graded flats, and other related features. If the area for cultivation is within ¼ mile (1,320 ft.) of a school, the site plan shall include dimensions showing that the distance from the location of such features to the nearest point of the cultivation area is at least 600 feet.
(d) A Plan of Operations shall be submitted that includes, describes and addresses the following:
(i) A complete project description including the proposed use(s), hours and days of operation, number of employees, and the duration (temporary, seasonal or permanent) of the operation.
(ii) The number of daily and/or weekly incoming and outgoing deliveries
(iii) A Security Plan that addresses the cultivation, storage, processing, manufacturing and testing of any medical cannabis, including but not limited to video monitoring and commercial alarm systems.
(iv) A Waste Management/Disposal Plan shall be submitted describing any produced wastes, including by-products, recycling, reusing, recovery, storage, diversion and handling and disposal.
(v) A description of the storage or use of any solvents, fertilizers, pesticides, fungicides, rodenticide, or herbicides.
(vi) A description of any discharge or emissions the operation will generate.
(vii) A description of any noise level increase as a result of the operation.
(viii) A description of the operation’s use of public facilities such as roads, water or sewer systems.
(ix) A description of any proposed water source, storage, conservation and use; drainage, runoff and erosion control; watershed and habitat protection.
(e) Tribal Consultation: For any ground disturbing activities, acknowledge that the City will consult with the local Wiyot Tribe, including their Tribal Historic Preservation Officer (THPO) or other tribal representatives, before the approval of any Conditional Use Permit. During this process, the tribe may request that operations associated with the Conditional Use Permit be designed to avoid, minimize or mitigate impacts to Tribal Cultural Resources, as defined herein. Examples include, but are not limited to: conducting a site visit with the THPO or their designee to the existing or proposed cultivation site, requiring that a professional cultural resources survey be performed, or requiring that a tribal cultural monitor be retained during project-related ground disturbance within areas of sensitivity or concern.
(f) Community Relations: Each medical marijuana facility shall provide the City Manager or designee with the name, phone number, facsimile number, and email address of an on-site community relations or staff person or other representative to whom the City can provide notice if there are operating problems associated with the medical marijuana facility or refer members of the public who may have any concerns or complaints regarding the operation of the medical marijuana facility. Each medical marijuana facility shall also provide the above information to its business neighbors located within 100 feet of the medical marijuana facility.
(g) Consent to a to a minimum of at least one quarterly on-site compliance inspection, to be conducted by appropriate City officials during regular business hours (Monday – Friday, 9:00 am – 5:00 pm, excluding holidays). The applicant shall be required to pay the Inspection Fee in effect at that time.
(h) Compliance with the provisions of the Medical Marijuana Regulation and Safety Act.
(10) Performance Standards for all MMCLUO Cultivation Operations:
(a) No surface water withdrawals shall be allowed as part of any cultivation operations.
(b) No Timberland Conversion Permits or Exemptions as approved by the California Department of Forestry and Fire Protection (CAL-FIRE) shall be used to facilitate the cultivation of medical cannabis.
(c) The area of cannabis cultivation shall be located as shown on the application site plan, set back at least 50 feet from any property line, and 600 feet from any School. Cannabis cultivation is declared to be development, subject to compliance with Section 17.30.110, Environmentally Sensitive Habitat Area’s (ESHA’s). For purposes of this section, where enhanced, reduced, or modified watercourse or wetland setbacks have been agreed to by the operator and the RWQCB under enrollment pursuant to NCRWQB Order No. 2015-0023 and/or preparation of a Water Resources Protection Plan, these may control and supersede any setback applied pursuant to Section 17.30.110.
(b) Maintain enrollment in Tier 1, 2 or 3, certification with the North Coast Regional Water Quality Control Board Order No. 2015-0023, if applicable, or any substantially equivalent rule that may be subsequently adopted by the City of Rio Dell or other responsible agency.
(c) For cultivation areas for which no enrollment pursuant to NCRWQB Order No. 2015- 0023, is required by that Order, compliance with the standard conditions applicable to all Tier 1 dischargers.
(d) The storage or use of any fertilizer, pesticide, fungicide, rodenticide, or herbicide shall be in compliance with the manufacture’s recommendations and regulations administered by the State Department of Pesticide Regulation. Hazardous materials and wastes from agricultural businesses are regulated by the Humboldt County Environmental Health Division, which administers the Hazardous Materials program as one of the Certified Unified Program Agencies (CUPA). This includes the application, inspection, enforcement, and reporting under the program requirements and standards set by the California Environmental Protection Agency (CalEPA).
(e) Trucked water shall not be allowed as the primary water source. Water is to be sourced locally (on-site), except for emergencies. For purposes of this provision, “emergency” is defined as: “a sudden, unexpected occurrence demanding immediate action.”
(f) Carbon filter fans or equivalent superior filters/scrubbers shall be required to minimize or eliminate odor discharges to neighboring properties from cultivation and processing facilities.
(g) A Waste Management/Disposal Plan shall be submitted describing any produced wastes, including by-products, recycling, reusing, recovery, storage, diversion and handling and disposal.
(h) Those cultivators using artificial lighting for mixed-light cultivation shall shield greenhouses so that little to no light escapes. Light shall not escape at a level that is visible from neighboring properties between sunset and sunrise. Should the City receive complaints that the lighting is out of alignment or not complying with these standards, within ten (10) working days of receiving written notification that a complaint has been filed, the applicant shall submit written verification that the lights’ shielding and alignment has been repaired, inspected and corrected as necessary.
(i) Generators are only allowed as an emergency back-up power source. The noise produced by a generator used for cannabis cultivation shall not be audible from neighboring residences. The decibel level for generators at the property line shall be no more than 60 decibels.
(j) Fuel shall be stored and handled in compliance with applicable state and local laws and regulations, and in such a way that no spillage occurs.
(k) Comply with any special conditions applicable to that permit or parcel which may be imposed as a condition of the required Conditional Use Permit.
(11) Employee Performance Standards for Cultivation and Processing Activities:
(a) Pursuant to the MMRSA, Health and Safety Code section 19322(a)(9), an applicant seeking a cultivation license shall “provide a statement declaring the applicant is an ‘agricultural employer,’ as defined in the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (Part 3.5 commencing with Section 1140) of Division 2 of the Labor Code), to the extent not prohibited by law.”
(b) Cultivators shall comply with all applicable federal, state, and local laws and regulations governing California Agricultural Employers, which may include: federal and state wage and hour laws, CAL/OSHA, OSHA and the California Agricultural Labor Relations Act.
(c) Cultivators engaged in processing shall comply with the following Processing Practices:
i. Processing operations must be maintained in a clean and sanitary condition including all work surfaces and equipment; and
ii. Processing operations must implement protocols which prevent processing contamination and mold and mildew growth on cannabis; and
iii. Employees handling cannabis in processing operations must have access to facemasks and gloves in good operable condition as applicable to their job function; and
iv. Employees must wash hands sufficiently when handling cannabis or use gloves.
(d) All persons hiring employees to engage in commercial cannabis cultivation and processing shall comply with the following Employee Safety Practices:
i. Cultivation operations and processing operations must implement safety protocols and provide all employees with adequate safety training relevant to their specific job functions, which may include:
● Emergency action response planning as necessary; and
● Employee accident reporting and investigation policies; and
● Fire prevention;
● Hazard communication policies, including maintenance of material safety data sheets (MSDS); and
● Materials handling policies; and
● Job hazard analyses; and
● Personal protective equipment policies, including respiratory protection.
ii. Cultivation operations and processing operations must visibly post and maintain an emergency contact list which includes at a minimum:
● Operation manager contacts; and
● Emergency responder contacts; and
● Poison control contacts.
iii. At all times, employees shall have access to safe drinking water and toilets and handwashing facilities that comply with applicable federal, state, and local laws and regulations. Plumbing facilities and water source must be capable of handling increased usage without adverse consequences to neighboring properties or the environment.
iv. On site-housing provided to employees shall comply with all applicable federal, state, and local laws and regulations.
(e) All cultivators shall, at the time of the application for a cultivation permit, include a Processing Plan with all of the following:
i. Summary of Processing Practices.
ii. Description of location where processing will occur.
iii. Estimated number of employees, if any.
iv. Summary of Employee Safety Practices.
v. Description of toilet and handwashing facilities.
vi. vi. Description of plumbing and/or septic system and whether or not the system is capable of handling increased usage.
vii. Description of source of drinking water for employees.
viii. Description of increased road use resulting from processing and a plan to minimize that impact.
ix. Description of on-site housing, if any.
(12) Performance Standards for Manufacturing Activities:
(a) Compliance with CAL/OSHA, OSHA regulations.
(b) Compliance with State and local building regulations, including the California Building Code (CBC) and the California Fire Code (CFC).
(c) A Security Plan that addresses how the following measures shall be implemented or complied with:
(i) Security cameras shall be installed and maintained in good condition, and used in an on-going manner with at least 240 concurrent hours of digitally recorded documentation in a format approved by the Planning Commission. The cameras shall be in use 24 hours per day, 7 days per week. The areas to be covered by the security cameras shall include, but are not limited to, the public areas, processing areas, storage areas, employee areas, all doors and windows, and any other areas as determined to be necessary by the Planning Commission.
(ii) The facility shall be alarmed with an audible interior and exterior alarm system, unless waived for extenuating circumstances by the Planning Commission that is operated and monitored by a recognized security company, deemed acceptable by the Planning Commission. Any change in the security company shall be subject to the approval of the City Manager or his designee. All current contact information regarding the medical marijuana facility's security company shall be provided to the City Manager or designee.
(iii) Entrance to the extraction areas and any cannabis storage areas shall be locked at all times, and under the control of facility staff.
(iv) Medical marijuana shall be stored in buildings that are completely enclosed, and in a locked vault or safe, or other secured storage structure which is bolted to the floor or structure of the premises.
(v) Windows and roof hatches of the premises shall be secured from the inside with effective means so as to prevent unauthorized entry, and shall be equipped with latches or a similar mechanism that may be released quickly from the inside to allow exit in the event of emergency in compliance with all applicable building provisions in the Code.
(d) If using CO2 in processing, a professional grade closed-loop CO2 gas extraction system rated to a minimum of fifteen thousand (15,000) pounds per square (PSI) is required for every vessel in the system.
(e) Extraction processes shall use a commercially manufactured professional grade closed-loop extraction system designed to recover the solvents and built to codes of recognized and generally accepted sound engineering practices, such as (i) The American Society of Mechanical Engineers (ASME); (ii) American National Standards Institute (ANSI); (iii) Underwriters Laboratories (UL); or (iv) The American Society for Testing and Materials (ASTM).
(f) Volatile extraction operations shall occur in a spark-proof, explosion-proof room equipped with evacuation fans and lower explosive limit (LEL) detectors.
(g) Carbon filter fans or equivalent superior filters/scrubbers shall be required to minimize or eliminate odor discharges to neighboring properties.
(h) A Waste Management/Disposal Plan shall be submitted describing any produced wastes, including by-products, recycling, reusing, recovery, storage, diversion and handling and disposal.
(i) Manufacturers of edibles shall comply with the regulations in the California Health and Safety Code, which includes the California Retail Food Code administered by the California Department of Health Services - Food and Drug Branch, California Department of Food and Agriculture and the County Department of Environmental Health.
(j) Comply with any special conditions applicable to that permit or parcel which may be imposed as a condition of the required Conditional Use Permit.
(13) Performance Standards for Testing Laboratories
(a) The facility shall be alarmed with an audible interior and exterior alarm system, unless waived for extenuating circumstances by the Planning Commission that is operated and monitored by a recognized security company, deemed acceptable by the Planning Commission. Any change in the security company shall be subject to the approval of the City Manager or his designee. All current contact information regarding the medical marijuana facility's security company shall be provided to the City Manager or designee.
(b) Entrance to the lab area and any cannabis storage areas shall be locked at all times, and under the control of facility staff.
(c) Medical marijuana shall be stored in a secured and locked room, vault or safe, or other secured storage structure which is bolted to the floor or structure of the premises.
(d) Windows and roof hatches of the premises shall be secured from the inside with effective means so as to prevent unauthorized entry, and shall be equipped with latches or a similar mechanism that may be released quickly from the inside to allow exit in the event of emergency in compliance with all applicable building provisions in the California Building Code.
(e) All laboratory testing facilities shall comply with Sections 19341 through 19345 of the California Business and Professions Code.
(f) Comply with any special conditions applicable to that permit or parcel which may be imposed as a condition of the required Conditional Use Permit.
(14) Performance Standards for Dispensaries
(b) Entrance to the any cannabis storage areas shall be locked at all times, and under the control of facility staff.
(d) Windows and roof hatches of the premises shall be secured from the inside with effective means so as to prevent unauthorized entry, and shall be equipped with latches or a similar mechanism that may be released quickly from the inside to allow exit in the event of emergency in compliance with all applicable building provisions in the Code.
(e) No dispensing location for the collective shall be open between the hours of 8:00 p.m. and 9:00 a.m. on any given day.
(f) Only qualified patients, as defined in Section 11362.7 of the Health and Safety Code are allowed in dispensaries.
(g) Medical marijuana may not be inhaled, smoked, eaten, ingested, vaped, or otherwise used or consumed at the premises and/or location.
(h) The sales of pipes, including water pipes and other paraphernalia are prohibited.
(i) In addition to the labeling requirements of Section 19347 of the Business and Professions Code, all medical marijuana shall be packaged in an opaque childproof container which shall be accompanied by a leaflet or insert that clearly states the following:
(i) The complete legal name of the qualified patient who will be using the medical marijuana;
(ii) The name, address and on-site landline telephone number of the dispensary;
(iii) The amount of medical marijuana in the container;
(iv) The name of the attending physician recommending the use of medical marijuana for the qualified patient;
(v) The date the medical marijuana was provided;
(vi) A list of the chemicals and or substances that were used during the processing of the medical marijuana;
(vii) All necessary health and safety warnings, including, but not limited to direction that the medical marijuana be stored in a clean and dry place and out of the reach of children; and
(viii) A statement that the City of Rio Dell neither warrants nor guarantees the quality or safety of the medical marijuana contained therein.
(j) All edible medical marijuana products sold within the City of Rio Dell shall be placed in opaque packaging, without photos or images of food on the label. Packaging that makes the edible product attractive to children or imitates candy is not allowed. Edible medical marijuana products shall not imitate commercially produced goods marketed to children. The edible product must be accompanied by a leaflet or insert that clearly states the source/provider of the food production in addition to all of the information required by Subsection 17.30.095(14)(i).
(k) A sign shall be posted in a conspicuous location inside the premises advising the following: "Both the sale of marijuana and the diversion of marijuana for nonmedical purposes are violations of state law. The use of marijuana may impair a person's ability to operate a motor vehicle or heavy machinery. Loitering at the location of a medical marijuana collective for an illegal purpose is prohibited by California Penal Code Section 647(h). This collective is registered in accordance with the laws of the State of California and the City of Rio Dell."
(15) Term of Conditional Use Permit; Inspections.
(a) Any Conditional Use Permit issued pursuant to this section shall expire after one (1) year after date of issuance, and on the anniversary date of such issuance each year thereafter, unless the required compliance inspections have been conducted and the permitted site has been found to comply with all conditions of approval.
(b) If the inspector or other City official determines that the site does not comply with the conditions of approval, the inspector shall serve the permit holder with a written statement identifying the items not in compliance, and the action that the permit holder may take to cure the non-compliance, or file an appeal within ten (10) days of the date that the written statement is delivered to the permit holder. Personal delivery or mailing the written statement to the mailing address listed on the application by regular mail, plus three (3) days after date of mailing, shall constitute delivery. The permit holder may request a reinspection to determine whether or not the permit holder has cured all issues of non- compliance. Failure to request reinspection or to cure any items of noncompliance shall terminate the Conditional Use Permit and License, immediately upon the expiration of any appeal period, or final determination of the appeal if an appeal has been timely filed.
(c) The City shall notify any state license authority, as defined by the MMRSA, whenever the Conditional Use Permit and License has been revoked or terminated.
(16) Appeal of Annual Inspection Determination
Within ten (10) business days after delivery of the statement of non-compliance, the determination by the inspector that the site is or is not in compliance may be appealed by any interested party to the Planning Commission. The appeal shall be made, in writing, on a form provided by the City. The fee for filing the appeal is based on the adopted fee schedule in effect at the time of the appeal.
(a) The appeal shall be heard by the Planning Commission within thirty (30) days following the filing of the appeal. The Planning Commission shall render a written ruling on the appeal within three (3) business days following the hearing.
(b) The decision of the Planning Commission may be appealed to the City Council in accordance with Section 17.35.050 of the Rio Dell Municipal Code. If a timely appeal to the City Council is not filed, the ruling by the Planning Commission shall be final.
Section 2. Severability
If any provision of the ordinance is invalidated by any court of competent jurisdiction, the remaining provisions shall not be affected and shall continue in full force and effect.
Section 3. Limitation of Actions
Any action to challenge the validity or legality of any provision of this ordinance on any grounds shall be brought by court action commenced within ninety (90) days of the date of adoption of this ordinance.
Section 4. Effective Date
This ordinance becomes effective thirty (30) days after the date of its approval and adoption.
I HEREBY CERTIFY that the forgoing Ordinance was duly introduced at a regular meeting of the City Council of the City of Rio Dell on , 2016 and furthermore the forgoing Ordinance was passed, approved and adopted at a regular meeting of the City Council of the City of Rio Dell, held on the , 2016 by the following vote:
AYES: NOES: ABSENT: ABSTAIN:
Frank Wilson, Mayor
I, Karen Dunham, City Clerk for the City of Rio Dell, State of California, hereby certify the above and foregoing to be a full, true and correct copy of Ordinance No. 342-2016 which was passed, approved and adopted at a regular meeting of the City Council of the City of Rio Dell, held on the , 2016.
In : Rio Dell