October 25, 2022 — The Board of Supervisors is working on amending the cannabis cultivation ordinance to add a new ordinance that will establish an appeals process for applicants whose permits have been denied. The amendment could go live as soon as December, after a fee hearing and a second reading.

The effort to craft the appeals ordinance is taking place concurrently with an attempt to clarify what kind of tree removal cultivators can engage in, and what evidentiary standards should be required to prove that they are not damaging the environment by removing trees to improve their cultivation sites. Outside legal counsel is scheduled to bring the tree removal item before a Board of Supervisors standing committee in December.

Last week, the full Board discussed the amendment that will establish how permit applicants can appeal a denial. Cannabis Department Director Kristin Nevedal told the Board that for now, only applicants who never got as far as the portal are being denied. She added that the process of renewing permits has involved a certain amount of correspondence.

Nevedal told the Board that, “The only individuals that have been denied since the Board directive to pause denials until the appeals ordinance has been completed are those who failed to submit materials through the 2021 portal, and then a smaller portion of folks who failed to submit in 2021 but were allowed into the 2022 corrections portal and then failed to submit again. They have been denied as well. So what we’re struggling with currently in regards to a lack of response is issued permits that are undergoing renewal. So we have renewals, not in all cases, but in a number of instances, taking an incredibly long time because folks will not respond with full application packets in a timely manner. So we’re constantly sending notices. It’s a fifteen-day notice, and then it’s a seven-day notice, and then we still don’t have the materials we need at the department to conduct the review. We have not denied issued permit holders when they are undergoing that renewal review for failure to complete their renewal application.”

In a memo to the Board, longtime cannabis attorney Hannah Nelson noted that the appeals process does not include a provision that would allow growers to continue growing while their case is in the appeals process. She wrote that, “Here we have cultivators that have waited 5 ½ years for the County to get its act together regarding processing the application…As such, the appeals provisions should include protections from abrupt termination of their continued right to cultivate, unless there is an imminent harm or safety concern to people or the environment.” She elaborated on her position in a call to the Board during the meeting, with a reminder that State deadlines are coming up fast.

“With respect to not allowing people to continue to cultivate, i.e. a stay pending the appeal,” she began. “I think that there may be a way to break up the egregious violations and the people who were completely non-responsive, versus the majority of people who are going to fall into these more nuanced areas. You have to remember the context here, which is, not only does code enforcement have the ability to immediately go and require those plants to be cut down, but there’s the possibility that at this point, particularly if it’s after next March, that there will be no entry back into the State licensing system.”

County Counsel Christian Curtis offered an explanation of the balance his office is trying to strike with the ordinance.

“One of the things that the Board had really, I think, if I may say, struggled with, is the question of balancing the fairness of people who have some pretty good faith bases, with those that may be egregious violators, but may go ahead and put in an appeal merely to be able to extend their cultivation period for some length of time, while they're able to go ahead and harvest,” he noted.

Mendocino Cannabis Alliance Executive Director Michael Katz and Chantal Simonpietri, an environmental consultant who works largely with cannabis cultivators, presented arguments against the characterization of growers as egregious violators.

“It seems like there’s more of a concern of egregious actors trying to take advantage of the appeals process to stay in the licensed cannabis industry, which as many of you may know, is less profitable than the unlicensed industry,” Katz observed. “So if somebody is trying to appeal to stay in it, odds are they are not these egregious actors of whom you’re speaking. So it would be a shame for you to get caught up and have less ability to have a meaningful appeals process because of these concerns.”

Simonpietri added that, “On these egregious actors, I don’t think there’s that many out there that are still involved. Unless they’re really, really, not that smart, honestly. It’s not worth it to stay in at that point.”

The question of tree removal is expected ...