New proposed amendments to the Santa Barbara County Code could significantly impact existing medical cannabis cultivators whose operations are legal under the County’s legal non-conforming use exemption. Legal nonconforming uses are those medical cannabis cultivators within the unincorporated portion of the County that were in existence on January 19, 2016, and legal under State law.

The purpose of the new amendments is to establish a process by which the County may determine the non-conforming status of a medical cannabis cultivation site existing as of January 19, 2016, and to create a “sunset” date by which all legal nonconforming sites must either cease operations, or apply for and obtain State and local licenses in compliance with current law in order to continue operations. The proposed amendments were presented to the Santa Barbara Planning Commission on September 13, 2017, for approval and their recommendations. They are then scheduled to come before the Board of Supervisors on October 17th.

The proposed amendments could put existing cultivators in a tough position, especially if they want to apply for state licenses when they become available in January 2018, or if they have made upgrades or modifications to their operations since January 2016. One requirement for state licensure is showing your operations meet all local regulations. For existing operators who qualify for legal non-conforming status, that means showing they have not altered their operations in violation of local codes since the moratorium on commercial cannabis operations took effect in 2016.

Legal, Non-Conforming Use Determination Requirements

Under the proposed amendments, an applicant for a legal, non-conforming use determination must provide substantial evidence of the following:

That the medical cannabis cultivation operation was in existence as of January 19, 2016;

That the cultivation site is not within 600-feet of a sensitive receptor (schools, etc.);

That the location complies with all local laws, including zoning, building, grading, water requirements, codes and ordinances;

That the operation is a not-for-profit business;

That the operator has an established caregiver relationship with qualified patients;

That the quantity cultivated complies with the limits set by Health and Safety Code § 11362.77, or is reasonably related to the medical needs of each patient; and

That the operation has a valid Seller’s Permit and has paid and pays all appropriate sales and use taxes.

In addition, the Planning Commission will hold at least one public hearing on each application prior to making a determination of legal non-conforming use status. Notice of the hearing must be published and sent to all interested parties, as well as surrounding properties. The Planning Commission voted to recommend to the Board of Supervisors to revise the proposed amendments to require that notice of the hearing be given to all neighboring properties within a 1000-ft. radius

If the Planning Commission determines a cultivation site to be a legal non-conforming use, then the site may continue to operate up until the “sunset” date set by the proposed amendments, at which time it must either cease operations or apply for and obtain State and local permits under current law. If requested to do so by the State (as when an applicant applies for State licensing), the County will report the result of any non-conforming use determination.

Denial of local nonconforming use status may be fatal to a State license application, and establishing the requirements for qualification as LNC may be incompatible with the requirements for current state licensing.

Even with a proposed recommendation from the Planning Commission to add an exception to the legal non-conforming use determination process for modifications that were made in order to maintain compliance with state law, existing operators are left to wonder where they stand.

MCRSA, AUMA, MUACRSA

When the state legislature passed SB 94, it merged the two statutory systems developed for medical marijuana (MCRSA) and for adult or recreational use (AUMA) into one better aligned statutory structure for all commercial cannabis activity, both medical and recreational (MUACRSA).

However, that re-write of the law has now caused the state to withdraw its proposed regulations for medical cannabis, released in April and May of this year. Meaning, operators statewide still do not know exactly what regulations they must comply with to meet state law, and that local cultivators who have modified their operations to stay in compliance with state law, do not know if those modifications will comply with the regulations yet to be adopted by the state.

All this adds up to great uncertainty for existing cultivators within the county whose continued existence hangs in the balance, with an uncertain state and local timelines which do not line up. This is to say nothing of the potential issues raised by certification by the Coastal Commission of any amendments which impact properties within the coastal zone. Because certification of amendments typically takes about 15 months, local permitting for operators within the coastal zone may be delayed far beyond the timeline for state licensure. Meanwhile, existing operators, their patients, and their collective investments wait in limbo for the regulatory mix to shake out.