Recently, a new draft MAUCRSA implementation cannabis ordinance (“Draft Cannabis Ordinance” or “Draft Ordinance”) was released by the County of Lake, California (the “County” or “Lake County”). Though the Draft Cannabis Ordinance is merely the first step in what will likely be a lengthy effort by Lake County staff, stakeholders, and the Lake County community at large to draft cannabis policy that is fair, effective, and safe, specific portions of the Draft Ordinance should be addressed quickly to ensure the County doesn’t fall prey to issues that have and continue to plague similarly situated jurisdictions throughout the State.
Lake County’s Current Draft Cannabis Ordinance
Specifically, the the Draft Cannabis Ordinance, (1) limits Lake County to issuing a maximum of seven (7) new major use permits (“MUPs”) for cannabis cultivation1 per year (Draft Ordinance Section 73.19) and (2) requires every cannabis cultivation permit applicant to conduct a project specific Environmental Impact Report (“EIR”) as a part of its discretionary permit application process (Draft Ordinance Section 73.8).
Suggested Changes to the Ordinance
Given that Lake County has historically had issues processing and issuing cannabis MUPs in a timely manner due to a lack of resources and staff time, it is no surprise that the Draft Cannabis Ordinance currently seeks to limit the number of new MUPs for cannabis cultivation that may be authorized each year. However, limiting the number of MUPs available while increasing the application requirements for each applicant pursuant to the California Environmental Quality Act (“CEQA”) may not have the impact the County desires.
This is not only because requiring each cannabis cultivation MUP applicant to conduct its own project specific EIR will add to the complexity of the County’s review process, but also because requiring each applicant to conduct an EIR is not fundamentally necessary under CEQA.
As detailed in previously published articles, it is actually not necessary for the County to require each applicant to conduct its own project specific EIR during the permit application process. Instead, , the County could elect to conduct its own Programmatic EIR (“PEIR”), which would be applicable to the County’s entire MAUCRSA implementation program itself 2. If Lake County elected to conduct a PEIR, it would also be able to shift its permitting program from a mostly discretionary process3 to a purely ministerial one, which would dramatically cut down on the resources and staff time necessary to administer the program in the first place.
Sierra Club v. County of Sonoma
Although potentially controversial and expensive for Lake County, this process has been vetted and upheld by the First District Court of Appeal in Sierra Club v. County of Sonoma ((2017) 11 Cal.App.5th 11)) (“Sierra Club”). In Sierra Club, the plaintiff, an environmental group, challenged the Sonoma County Agricultural Commissioner’s issuance of an erosion control permit for a vineyard under CEQA. (Id.) More specifically, the plaintiff challenged the ministerial permitting program enacted by the County of Sonoma and the ministerial approval of a permit to develop over fifty (50) acres of land for use as a vineyard under CEQA. (Id. at 18.) The Sierra Club court held, among other things, that a permit’s issuance is ministerial if “[t]he fixed approval standards delineate objective criteria or measures which merely require the agency official to apply the local law … to the facts as presented in a given … application.” (Id. citing Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162, 180.) )4 As articulated by the Court in Sierra Club, the validity of a ministerial permitting program and its ability to overcome judicial scrutiny is based, among other things, on the discretion, or lack thereof, in the lead agency’s approval of a project.
Generally, courts recognize that “‘CEQA does not apply to an agency decision simply because the agency may exercise some discretion in approving the project or undertaking. Instead[,] to trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to “mitigate … environmental damage” to some degree.’” Sierra Club, supra, 11 Cal.App.5th at p. 23 citing San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 934, italics omitted; see also Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286, 308. [permit is discretionary if agency “has [the] authority to condition the permit in environmentally significant ways”].) An agency’s determination that an activity falls under the ministerial exemption is generally reviewed subject to a “‘a prejudicial abuse of discretion.’” standard. (Sierra Club, supra, 11 Cal.App.5th at p. 23 citing MuzzyRanch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 381,quoting CEQA §21168.5; and Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 693.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (CEQA §21168.5.) CEQA Guidelines §15268(a) makes clear that “[t]he determination of what is ‘ministerial’ can most appropriately be made by the particular public agency involved based upon its analysis of its own laws, and each public agency should make such determination either as a part of its implementing regulations or on a case-by-case basis.” (See Friends of Davis v. City of Davis, 83 Cal.App.4th 1005, 1015; see also Sierra Club, supra, 205 Cal.App.4th at p. 178.)
Conclusion: Lake County Can Minimize County Resources Needed to Administer a Successful Cannabis Licensing Program
This is all to say that municipalities, including Lake County, should feel confident that their ministerial MAUCRSA implementation programs will be durable provided that they (1) conduct a legally sufficient PEIR, and (2) adhere to general parameters concerning limiting discretion of the lead agency in the issuance of ministerial permits. Given the holding in Sierra Club, Lake County should take direction from the Court of Appeal and adopt a MAUCRSA implementation program that calls for ministerial cannabis permitting following the County’s completion of a PEIR. Doing so will significantly minimize the amount of County resources needed to successfully administer the MAUCRSA implementation program currently being considered.
1 The Draft Ordinance does not propose to limit the number of minor use cannabis cultivation permits that may be issued per year.
2 The County’s permitting process for commercial cannabis cultivation projects.
3 MUPs (also known as “Conditional Use Permits”) are discretionary permits, which require project specific environmental review under CEQA. If a PEIR is conducted and adopted, the County could merely require minor use permits, which are not discretionary, for commercial cannabis projects. Non-discretionary permits are called “ministerial” permits and are generally issued as long as all application requirements are met.
4 This is essentially a restatement of the standard in the CEQA Guidelines at section 15369.