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Former Supervisor John McCowen Answers Pot Permit Program Questions

What should the BOS do about enforcement?

Accepting the Planning Commission recommendation to “allocate appropriate resources to the Department of Planning and Building Services and the Mendocino County Sheriff's Office for permitting, enforcement and oversight” would be a good start. When the BOS adopted the current ordinance in 2017 it was with the expectation that there would be adequate enforcement and oversight. As Sheriff Kendall says, it doesn't matter what the rules are if they aren’t enforced. The overwhelming majority of the 407 commenters to the Planning Commission (really only 290 after taking out the duplicates) want to see effective oversight and enforcement. This is true whether they support a Phase 3 ordinance or not. I think it’s very likely the Board will vote to adopt a Phase 3 ordinance, including some level of expansion. But it won't make a difference without adequate funding for oversight and enforcement. The meeting on April 12 is an opportunity to tell the BOS where you stand on enforcement. 

What happens if the BOS does not adopt Phase 3 by June 30?

We will be stuck where we are now. We will not have a functional ordinance that aligns with State law, that results in State Annual licenses for legally compliant cultivators or protects the neighbors. We are in a brief window where adoption of the ordinance, if done before June 30, is exempt from CEQA. The State legislature has made a policy decision that the best way for local jurisdictions to satisfy the State requirement for site specific CEQA is to adopt an ordinance based on discretionary land use permits. Failure to adopt the ordinance nowmeans it will be years if ever before a functional ordinance can be adopted. There is an interesting de facto alliance between people who think they are protecting the environment by preventing Phase 3 and illegal growers who benefit from the current dysfunctional system.

Sheriff Kendall says that what he sees today in Redwood Valley, Potter Valley, Hopland and other areas is what he saw in Covelo 3 and 4 years ago. Everything that has gone wrong in Covelo has gone wrong under the current ordinance. Everything that is starting to go wrong in Redwood Valley, Potter Valley, Hopland and other areas is going wrong under the current ordinance. The current ordinance is not working for applicants, the environment or the neighbors.

What will prevent an explosion of large cannabis grows all over the County?

Phase 3 applicants will be limited to specific zoning and will be subject to the Use Permit process which requires site specific environmental review with completion of an Environmental Checklist for 18 categories of environmental impacts, notice to about two dozen state and local agencies, notice to the neighbors, a Public Hearing where anyone may be heard, the ability to condition or deny the application in an open public process, the right to appeal the decision and the right to challenge it in court. None of these protections exist now. Every cultivation site will be subject to complete environmental review, including cumulative impacts to the watershed, to rangeland, to roads and many other issues. The CDFW presentation on the agenda for Monday makes it very clear that much of the rangeland in Mendocino County is steep, arid and in proximity to protected species or their habitat. The Planning Commission is not going to approve Major Use Permits for expansion if it will create negative impacts to the environment or to residential neighbors. Anyone buying a 40 acre vineyard with small residential lots on two or three sides is going to have a rude awakening if they apply for a Use Permit for 10%.

What makes you think a Phase 3 ordinance will protect the environment?

Unlike Phase 1, applicants will be required to obtain approval BEFORE they are allowed to cultivate. Every cultivation project will be subject to CEQA under the Phase 3 ordinance. It is a State requirement. Site specific CEQA is also part of the Use Permit process which includes an Environmental Checklist that covers 18 subject areas of environmental impact with multiple aspects of each of those 18 areas. The project will then be circulated to about two dozen State and local agencies for comment. After receiving the comments staff will consider additional conditions to address issues that have been raised. Notice will be given to neighbors and published in a newspaper of general circulation describing the project, where to get more information and the date and time of the Public Hearing where everyone may be heard. Staff will present the project to the Planning Commission (citizens who serve on a volunteer basis), the Planning Commission will hear from the public, will then deliberate among themselves and will then either decide to approve or deny the project or approve it with additional conditions. Anyone dissatisfied with the outcome can appeal the decision. If they still don’t like the result they can challenge it in court. None of these protections exist how. The neighbors have no say whatsoever in the current process. Applicants will also be subject to all of the State standards which are stringent to the point of being onerous and oppressive. 

What’s wrong with the current ordinance and why can’t it be enforced?

There are many reasons. The County did an Initial Study and concluded that pre-existing cultivation sites limited to less than ¼ acre would not have a significant environmental impact based on mitigations in the ordinance. Later the State adopted a requirement for site specific environmental review which has created an impasse. It’s a complicated issue but after countless discussions and hours of staff time and after Supervisor Williams’ best efforts, the impasse remains. The ordinance has also suffered from ineffective administration. We have had 3 Ag Commissioners, a Director and Interim Director of P&BS and 4 Cannabis Program managers in four years. When the program started in 2017 the Ag department failed to develop a systematic way to track the applications, verify they were complete and process them. That never got better until the recently departed and current Cannabis Program managers came on board. Of equal importance, high turnover of staff and a unique only in Mendocino County ordinance has hamstrung the department. Because our ordinance is unique senior planning staff need to train new planners on how to administer it. Then the new planner leaves and the cycle begins again. The individual provisions of the Mendocino County ordinance do not create barriers to compliance but the overall ordinance is complicated enough that with high turnover it takes too much time to get new planners up to speed. We will never gain traction as long as we are tied to the current only in Mendocino County ordinance. In contrast, every planner understands the Use Permit process and how to implement it. Another problem has been understaffing. In 2019, over the CEO’s objections, I pushed the Board to approve full staffing for the Cannabis Program but the positions were never filled. Yes, recruitment and retention are issues but the bottom line is, the CEO controls hiring and frequently orders Human Resources not to fill budgeted and approved positions.

Administration of the ordinance has also suffered from political interference. Past attempts to clean up the applicant pool have stalled primarily because Supervisor Haschak has intimidated staff and used his influence to protect growers who are not in compliance. The Board has several times directed that non-compliant and non-responsive applicants be denied but according to someone who is no longer with the County, whenever staff sends out denial letters Haschak intercedes on the grower’s behalf. This has put staff in a very uncomfortable position and made them reluctant to do their jobs. In October of 2019 the BOS directed staff to study the Humboldt County program that uses aerial imagery for enforcement. Haschak abused his position as Chair to block the item from coming back before the BOS. He has also stalled consideration of a Phase 3 ordinance for nearly a year and is still leading the charge to block it from being adopted. You'll notice Haschak is not a co-sponsor of the agenda item discussing enforcement that is being brought forward by Supervisor Williams. We’ll see how he votes on April 12 but to this point Haschak has done everything he can to prevent enforcement. The irony is that Haschak has fooled people into thinking he is standing up for protecting the environment when he is really protecting non-compliant growers who will never be legal.

Where is the money coming from?

An ongoing blatant lie promulgated by the CEO is that there is no money for anything except her pet projects. (Like spending $5 million to buy a 3,000 acre ranch for only one example.) Failure to move forward with aerial imagery has been blamed on lack of funds. But there is an abundance of money available for cannabis enforcement if the BOS chooses to make it a priority. Lack of funds? How about $5.6 million in cannabis tax revenue for the last fiscal year with probably a similar amount this year? How about $22.6 million in unrestricted PG&E disaster settlement funds? And if all else fails how about the many millions in unrestricted County General Fund reserves? What is more important: spending $2.8 million on a collapsed roof on an unneeded dilapidated white elephant of a building or adequately funding cannabis oversight and enforcement?

Cannabis tax money is an obvious source of funding for cannabis enforcement. In 2016 the voters passed Measures AI, the cannabis tax, with 63% approval and AJ, an advisory measure, with 68.5% approval. The advisory measure told the BOS to spend a majority of the cannabis tax on: 1) Mental Health; 2) Fire and EMS; 3) Roads; 4) Cannabis Enforcement. Unlike cannabis enforcement, the other three functions already receive significant county funding. Mental Health is supported by Measure B. Fire Agencies receive dedicated funding from the TOT tax on campgrounds as well as Prop 172 funding. The Road Fund receives over $3.5 million annually in county discretionary funding. The County has been collecting cannabis tax money for three years including $5.6 million last fiscal year. The BOS has NEVER had a discussion about how to allocate these funds. 

But what if the cannabis tax cupboard is bare? What other possible source is there? 

In July the County received a $22.7 million dollar 2017 fire disaster settlement of unrestricted funds from PG&E. The CEO openly lied and blocked discussion of these funds by falsely asserting it was unknown what purposes they could be used for. Her pattern of lies is a story in itself. The fact is, the County did receive $22.7 million in unrestricted funds. I am sympathetic to the reasonable expectations of the victims of the 2017 fire that first call on these funds ought to be ongoing fire recovery efforts. I've always thought that a minimum of $10 million (it could be $15 million or whatever the BOS agrees to) ought to put into a Disaster Recovery and Mitigation Fund with all disbursements related to disaster recovery or mitigation and clearly shown. This could include such things as infrastructure, rebuilding assistance to homeowners, funding for prevention projects by the Fire Safe Council, funding for recovery and prevention projects by the Mendocino County RCD and others. But isn’t the ongoing degradation of the environment and safety of our neighborhoods caused by unregulated cannabis also a disaster? And some of the areas being hardest hit are Redwood Valley and Potter Valley.

The Disaster Fund (PG&E funds by any other name) could also LOAN money to cannabis enforcement to be repaid from fines collected from violators. We are all aware of the millions of dollars collected by Humboldt County. And we have appropriate fine schedules in place. All we need is an enforcement program. In October 2019 the BOS gave direction to P&BS to review the Humboldt County operation and return with a presentation on how to implement it in Mendocino County. But Supervisor Haschak, as stated above, abused his position as Chair to prevent that discussion from coming back to the BOS. The CEO also never thought protecting our communities from illegal cannabis was a priority, as witnessed by her shifting grant money away from the Sheriff's Office. In short, there is plenty of money to adequately fund cannabis enforcement. All that is lacking is clear direction from the BOS. It's time to stop Haschak from protecting the illegal growers and it's time to tell the CEO to quit hoarding money for her pet projects.

What would enforcement look like?

What is needed is a coordinated approach between the Cannabis Program, Code Enforcement, County Counsel and the Sheriff's Office. Areas of responsibility, responsible agencies and responsible individuals must be identified for each of several areas. We need to hear from the agencies involved but here’s one suggested approach: 1) Current Applicants - lead agency and responsible party would be the Cannabis Program & Cannabis Program Manager; 2) Illegal backyard grows in Sunset and Exclusion Zones - lead agency and responsible party would be Code Enforcement & Chief Code Enforcement Officer; 3) Unpermitted small scale cultivation outside of Sunset Zones - lead agency and responsible party would be Code Enforcement & Chief Code Enforcement Officer or the Sheriff's Office and County of Mendocino Marijuana Eradication Team (COMMET) Commander; 4) large scale criminal operations - lead agency and responsible party would be the Sheriff's Office and COMMET Commander. Above all, there needs to be a coordinated effort so that the Cannabis Program; Code Enforcement; County Counsel and the Sheriff's Office are all working together to identify the most appropriate response. For many it will be a simple cease and desist letter with no penalty for those who comply. For others it will be forced eradication. Once people know the County is serious about enforcement it will be much easier to gain compliance.

It can’t be emphasized enough that without adequate oversight and enforcement it won’t matter what the rules are. Whatever the flaws of the current ordinance, the fatal flaw has been lack of accountability. After four years of local legalization, it’s time to adopt a fully functional ordinance and insist on oversight and enforcement.

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