The Board of Supervisors makes the following findings in support of the enactment of this Chapter:
(a)
The County of Tulare has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses, and preserving the peace and integrity of neighborhoods within the unincorporated area.
(b)
Unregulated personal cultivation of cannabis and unregulated commercial cannabis activities can adversely affect the health, safety, and well-being of the County and its residents. Such adverse effects include, but are not limited to: crime or other illegal activities; negative environmental impacts; dangers posed to youth; and a negative effect on the general quality of life for areas in close proximity to where cannabis is cultivated, stored, manufactured, distributed, or sold.
(c)
Cannabis plants, whether grown indoors or outdoors, and especially as they mature prior to harvest, may produce a distinctive odor, and may be detectable far beyond property boundaries. The creation of persistent strong odors as cannabis plants mature and flower is offensive to many people, results in complaints of respiratory problems, and creates an attractive nuisance, alerting persons to the location of valuable cannabis plants and creating an increased risk of crime.
(d)
The County's geography and climate, which include dense vegetated areas that are remote and sparsely populated, as well as substantial agricultural land, provide conditions that are favorable to outdoor cannabis cultivation. Land in Tulare County costs less than in many other parts of the state, and outdoor cannabis growers can achieve a high per-plant yield because of the County's favorable growing conditions. Additionally, the County's remote rural areas and hillsides, such as in the Sierra Nevada Mountains and foothills, provide ideal locations to conceal illicit cultivation operations. These factors, coupled with known activities of certain drug cartels in the area, and continued confusion among the general populace regarding the interaction of state, federal, and local laws, make unincorporated Tulare County attractive to illegal cultivation operations.
(e)
Outdoor cannabis cultivation, especially within the remote hillside areas, is creating devastating impacts to California's surface and groundwater resources. The State Water Resources Control Board, the North Coast Regional Water Quality Control Board, the Central Valley Regional Water Quality Control Board, and the Department of Fish and Wildlife have seen a dramatic increase in the number of cannabis cultivation operations, and corresponding increases in impacts to water supply and water quality, including the discharges into water of sediments, pesticides, fertilizers, petroleum hydrocarbons, trash, and human waste. These impacts result from unpermitted and unregulated timber clearing, road development, stream diversion for irrigation, land grading, erosion of disturbed surfaces and stream banks, and temporary human occupancy without proper sanitary facilities.
(f)
In the absence of an updated local regulatory framework, cannabis cultivators will be less likely to learn of, or implement, guidelines that are protective of the public peace, health, safety, welfare, and the environment. Until the County's local cannabis regulations are updated, negative impacts frequently associated with unregulated cannabis cultivation are expected to increase, resulting in an unregulated, unstudied, and potentially significant negative impact on the environment and upon the public peace, health, safety, and general welfare of the unincorporated areas of the County.
(g)
Comprehensive civil regulation of any location used for cannabis cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated cannabis cultivation, which may be especially significant if the amount of cannabis cultivated on a single property is not regulated and significant amounts of cannabis are thereby allowed to be concentrated in one place.
(h)
The California Attorney General's Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use specifically recognize that the cultivation or other concentration of marijuana in any location without adequate security increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as loitering or crime. (Cal. Dept. of Justice, Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (Aug. 2008) p. 11.)
(i)
The defense to criminal prosecution provided to qualified patients and their primary caregivers under the Compassionate Use Act (Proposition 215, also referred to as the "CUA") to cultivate cannabis plants for medicinal purposes does not confer the right to establish a land use not expressly allowed in zoning or to create or maintain a public nuisance. See Browne v. County of Tehama, 213 Cal. App. 4th (2013); City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013), 56 Cal. 4th 729; also see Maral v. City of Live Oak (2013), 221 Cal. App. 4th 975. By adopting the regulations contained in Section 15.3 of the Zoning Ordinance and in Part V, Chapter 11 of the Tulare County Ordinance Code, the County is minimizing the risks and complaints regarding fire, odor, crime, nuisance, and pollution caused or threatened by the unregulated cannabis activities in the unincorporated area of Tulare County.
(j)
Comprehensive restriction of the land and buildings used for cannabis activities, including personal cultivation, is proper and necessary to address the risks and adverse impacts identified herein. These risks are especially significant if the amount of cannabis in a single area is not regulated and substantial amounts of cannabis are thereby allowed to be concentrated in one place.
(k)
Children are particularly vulnerable to the effects of cannabis use, and the presence of cannabis plants is an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children including schools, parks, churches, and other similar locations. Further, the potential for criminal activities associated with cannabis cultivation in such locations poses heightened risks that children will be involved or endangered. Therefore, commercial cannabis activities, as well as the outdoor personal cultivation, in areas where children congregate adversely affects the public safety and welfare.
(l)
The indoor cultivation of substantial amounts of cannabis within a residence also presents potential health, safety, and welfare risks to those living in the residence, especially to children. These risks include, but are not limited to: increased risk of fire from grow light systems that do not comply with all building codes, or from a large quantity of cannabis that is being dried or processed in the building; exposure to fertilizers, pesticides, anti-fungus/mold agents; and exposure to potential property crimes targeting the residence. As such, reasonable regulations are necessary to protect individual adult residents and children from dangers related to indoor cannabis cultivation.
(m)
Significant recent changes to state cannabis laws, which (i) authorize certain personal "adult-use" cannabis activities and (ii) provide new state regulatory and licensing frameworks for commercial medicinal and adult-use cannabis activities, have not eliminated the dangers posed to the residents of Tulare County regarding cannabis. This is especially true because cannabis remains a controlled substance under federal law. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., makes it unlawful under federal law for any person to cultivate, manufacture, distribute or dispense marijuana, or possess with intent to manufacture, distribute or dispense marijuana. This disconnect between state laws and federal law also creates a potential conflict for the County as it attempts to determine what laws and regulations would best protect the residents of the County of Tulare from the dangers of unregulated cannabis activities.
(n)
Pursuant to Article XI, section 7 of the California Constitution, the County may adopt and enforce ordinances and regulations not in conflict with general laws to protect and promote the public health, safety, and welfare of its residents. Furthermore, pursuant to Proposition 64 (also known as the "Control, Regulate, and Tax Adult-Use of Marijuana Act" or "AUMA"), and the Medicinal and Adult-Use Cannabis Regulation and Safety Act ("MAUCRSA"), the County has the authority to adopt and enforce local ordinances that: reasonably regulate actions and conduct related to personal cultivation of cannabis; and regulate businesses licensed under MAUCRSA, including, but not limited to, imposing local zoning and land use requirements, and imposing and requirements related to reducing exposure to secondhand smoke.
(o)
In adopting these ordinances allowing for two (2) M-licensees and setting reasonable regulations on personal cultivation, the County is attempting to balance the desires of individual qualified patients and primary caregivers, who would like reasonable access to cannabis and cannabis products, with the health, safety, and welfare concerns and risks posed by cannabis activities. In determining that two (2) M-licensees was a sufficient and appropriate number of commercial cannabis entities for the unincorporated areas, the County took the following information under consideration:
1.
Cannabis activities that cause large amounts of cannabis to be concentrated in a single area, such as a cannabis retail storefront or commercial cultivation site, may increase the risks of crime and public nuisances in the surrounding neighborhoods. To reduce such risks across the County, and to enable law enforcement to more closely monitor the activities around such premises, the lowest number of medicinal cannabis licensed premises should be selected.
2.
For many years, Tulare County qualified patients and primary caregivers have been able to cultivate a limited amount of medicinal cannabis in their private residences in accordance with the Compassionate Use Act (Proposition 215), and other state and local laws. After November 2016, County residents were also able to cultivate a limited number of adult-use cannabis plants in accordance with Proposition 64 and the reasonable regulations on personal adult-use cultivation established by the County's Interim Ordinances Nos. 3500 and 3502. With this revision to the County's permanent cannabis ordinances, individuals will continue to be able to cultivate a limited amount of adult-use and medicinal cannabis in their Private Residences, in accordance with state and local laws. Therefore, the County does not need a substantial number of medicinal cannabis retail locations so that patients can access medicinal cannabis.
3.
According to the California Department of Public Health statistics, only 383 medical marijuana identification cards total have been issued in Tulare County since 2006, and these cards must be renewed annually. As of May 2018, only 14 individuals in Tulare County have been issued medical marijuana identification cards for this calendar year. Although not all qualified patients or primary caregivers will solicit or receive a medical marijuana identification card, in addition to the criminal protections provided to cardholders, such cards also allow cardholders to avoid paying certain taxes on cannabis purchased at a commercial retail facility. Because of the low number of cardholders, even after the state and some municipalities have begun taxing cannabis transactions, the low number of cardholders suggests that only a small number of individuals in Tulare County may desire to access medicinal cannabis at a retail location.
4.
For several years, two collectives have been operating in the unincorporated areas of the County, and have thereby provided medicinal cannabis access to County residents. These collectives appear to have provided a sufficient number of locations in the unincorporated areas for qualified patients or primary caregivers to access medicinal cannabis. This conclusion is further supported by the fact that County officials are not regularly receiving feedback from citizens noting a lack of access to medicinal cannabis.
5.
Additionally, the number of inquiries to County Departments with respect to obtaining a license to operate a commercial cannabis facility has decreased significantly since Proposition 64 was passed and the State developed its licensing regulations.
6.
Tulare County residents also have access to commercial cannabis retail facilities in any incorporated jurisdictions within Tulare County that have determined to allow commercial cannabis, such as Woodlake or Farmersville. Thus, having a relatively small number of M-licensees in the unincorporated areas would not prevent citizens in Tulare County from accessing medicinal cannabis retail outlets.
(p)
The adoption of this chapter is necessary and desirable to protect the public health, safety and environmental resources of the County; to ensure safe access to medicinal cannabis for qualified patients and persons with identification cards; to clarify the County's enforcement authority with respect to certain cannabis activities; and to otherwise ensure that public peace, health, safety, welfare, environmental, and nuisance factors related to the cannabis industry are adequately addressed.
(q)
Business and Professions Code section 26069 provides that for the purposes of that division (relating to commercial cultivation licenses), "cannabis" is considered an "agricultural product." However, the proposed amendments to Section 15.3 of the Zoning Ordinance and Part V, Chapter 11 of the Tulare County Ordinance Code clarify that for the purposes of interpreting the County's Zoning Ordinances and other land use regulations, as well as its Right to Farm Ordinance, cannabis is differently situated than other types of agricultural products or operations. When the County enacted its land use and other regulations related to crop production and Right to Farm, it did not contemplate the possibility of cannabis as a permissible agricultural product, horticultural product, or other "agricultural operations." This is due to cannabis's federal classification as a Schedule I drug; the security concerns associated with a high value crop; and the unique characteristics of cannabis cultivation operations.
(Added by Ord. No. 3540, effective 9-14-18)