The industrious political action committee known as California Cannabis Voice Humboldt (CCVH) has been busy lately, working diligently to draft a cannabis land use ordinance that it hopes will be adopted by the county — and maybe even serve as a template for statewide legalization. Convinced that legalization is a lock for 2016, CCVH is operating on an ambitious timeline — some say overly ambitious — which you can see here.
Over the past several months the group has organized weed-grower gatherings, community fora and invitation-only stakeholder meetings. At these latter gatherings, several dozen invitation-only attendees — including industry insiders, business and environmental leaders, government officials and more — gave input on drafting an ordinance.
CCVH’s lawyers have since been hammering out drafts, one of which recently found its way to a reporter at KMUD, who published it on the station’s website. This unauthorized early release evidently angered the leaders of CCVH, who threatened the station with legal action for “leaking” the document.
And that’s not the only sign that this ordinance-drafting process has started to turn sour.
CCVH, which eagerly sprouted from the offices of San Francisco attorney Matt Kumin earlier this year, is attempting a feat both admirable and Herculean: enticing a thriving outlaw industry into the sunlight of regulation. Yet despite the ambition and self-confidence of the group’s leaders, despite their promises of transparency and “grassroots” methodology, a number of the stakeholders who’ve participated feel disillusioned and skeptical. People who were ostensibly invited to help draft the ordinance are now saying that their feedback has been ignored.
“Stakeholders have provided some input,” said Natalynne Delapp, a stakeholder and the executive director of the Environmental Protection Information Center (EPIC), “but we are not driving this ordinance process.”
Christina Allbright, a Eureka attorney and president of the local bar association, agreed. “There were some opinions expressed [at the first stakeholder meeting] that weren’t reflected in the draft thereafter,” she said. And in the next meeting, Allbright added, “There were representation about things that were going to be taken out but weren’t.”
The group’s schedule calls for community meetings to take place next month, a final draft to be completed by January, signature gathering to begin immediately thereafter and Board of Supervisors approval by March. Compared to other land use policy decisions taken on by the county (i.e. Code Enforcement, Timber Production Zones, the General Plan Update), this would be a lightning-fast turnaround.
“I will tell you [CCVH’s] timeline is very ambitious and I would say unrealistic,” said Second District Supervisor Estelle Fennell, who participated in the stakeholder meetings along with Fifth District Supervisor Ryan Sundberg. “I don’t like to feel this rushed aspect of it.”
But the leaders of CCVH say the rush is necessary. “We’ve made no secret about our goal to do this as fast as possible,” said Thomas Edrington, the group’s outreach director. To hear him describe the situation, Humboldt County has the blade of a guillotine hovering over its collective neck. “[T]his is our last chance to preserve our lifestyle before billionaires carve up the entire industry for their own factory-level operations,” Edrington told the Outpost via email. And if we wait until after statewide legalization to enact local measures? “That’s the end of the county as we know it,” he said. “That’s the doomsday clock ticking down to 2016 in my head.”
But what results from this hurried process?
Scott Greacen, executive director of Friends of the Eel River, said that unless the ordinance changes dramatically from the drafts he’s seen, the measure will only exacerbate the damaging social and ecological side-effects of Humboldt County’s unruly weed industry. “If it stays in its current form,” Greacen said of the draft ordinance, “I think we’re looking at the potential for a substantial increase in the impacts of the green rush.”
Greacen applauds in principle the effort to regulate the cannabis industry, especially from those within the grower community. But he said the proposed policies currently in the draft ordinance, including a provision to allow grows with canopies of up to 20,000 square feet on properties of 40 acres or more zoned for timber production, would do nothing to address the negative impacts to water quality, stream flows and endangered species — particularly our local coho salmon population. “I don’t see this proposal coming anywhere close to dealing with the black market and bad actors,” Greacen said.
CCVH leaders’ strategy on that front is to incentivize legitimacy. They’re counting on pride to drive voluntary compliance with the new regulations. “When we give the most responsible growers permission to hold their heads high, others will want to be like them,” Edrington said.
That hasn’t been exactly how it’s worked in Colorado and Washington in the two years since those states legalized recreational cannabis. Instead, the traditional market forces of supply and demand have kept the black market flourishing, though some are predicting that increasing production will eventually level the playing field.
But criminal activity isn’t the only concern of those criticizing CCVH. There’s a legal twist — a recent court ruling that could allow the ordinance to sidestep state environmental law. The decision, rendered by the California Supreme Court in August, created a new bypass around the California Environmental Quality Act (CEQA).
The fight began in Sonora, a city of about 5,000 people nestled in the Sierra foothills, just west of Yosemite National Park. Walmart wanted to expand its 130,000-square-foot store there into a 160,000-square-foot, 24-hour “Supercenter.” In 2009, the city began working through the usual process for such a project — circulating a draft Environmental Impact Report (EIR) for public comment and placing the proposal before the planning commission, which unanimously recommended approval.
But before the city council could vote on the matter, Walmart financed a ballot initiative in the hopes of streamlining approval for the expansion. The company presented the city with a petition signed by more than 20 percent of Sonora’s registered voters, and after some deliberation, the city council adopted an ordinance, essentially giving Walmart a green light for its expansion.
Cue the blowback. A group called the Tuolumne Jobs & Small Business Alliance filed suit, alleging (among other things) that by going through the voter initiative process, Walmart and the City of Sonora illegally sidestepped CEQA, a wide-reaching environmental law that’s been a thorn in the side of developers since its passage in 1970.
Full CEQA review, which involves a complete Environmental Impact Report, is generally required when California governments enact land use laws that may impact the environment. (Think of Humboldt County’s General Plan Update, for example.) But state law has long held that CEQA is not required for laws passed by voter initiative. This Walmart case was sort of in the middle; the ordinance was launched through the voter initiative process but then directly adopted by the Sonora City Council.
So the question before the California Supreme Court was which should take precedence — the constitutional power of voters to enact laws by initiative, or the often lengthy CEQA review process required of legislation that might affect the environment. In its decision, rendered on Aug. 7, the court sided with Walmart by finding that the CEQA does not apply to citizen ballot initiatives passed by local government. The court reasoned that requiring CEQA review, which typically takes months, would run counter to a local government’s obligation to act quickly on citizen initiatives.
Here’s the deal, as spelled out in California Election Code Section 9214: When a local government is presented with an initiative petition that’s been signed by at least 15 percent of voters, if the petition asks for an immediate special election for the proposal then the government has only three options:
1) It can quickly adopt the proposed ordinance exactly as written.
2) It can immediately order a special election (an expensive and laborious endeavor).
3) It can ask staff to work up a report on the ordinance. This report must be completed within 30 days (a much shorter timeline than your typical CEQA review), and the local government must then vote on the ordinance within 10 days of receiving the report.
Environmental leaders were dismayed by the Walmart ruling. In a blog on California environmental law, attorney Juliet Cho wrote, “This case has far-reaching implications because it may establish a new way to exempt a project from CEQA.”
Business leaders, on the other hand, rejoiced. The California Chamber of Commerce, for example, celebrated the decision as a long-overdue reform that might help “drain the CEQA litigation swamp.”
“The upshot,” wrote an excited chamber leader, “is [that] a motivated applicant could avoid not just the post-EIR litigation but even the EIR itself by submitting signatures of 15 percent of registered voters for an initiative ordinance to a friendly local government.”
While it doesn’t appear that CCVH deliberately set out to exploit this loophole (indeed, it the loophole didn’t exist when CCVH was formed), Edrington said last week that the group is nevertheless planning to take this exact legislative bypass as they attempt to pass a cannabis ordinance. This has stakeholders worried.
“I’m concerned about it,” said Humboldt County Planning and Building Director Kevin Hamblin. His understanding, based on early meetings, was that the ordinance would go through the usual process of Planning Commission review, public hearings and revisions before coming before the Board of Supervisors for a vote.
“All of a sudden it’s like, whoa! I didn’t hear this would skip the approval process and go [straight] to voters,” Hamblin said.
Greacen said this shortcut gives project proponents “”a way to accomplish pretty substantial changes, including those to general plans, without going through this process of figuring out what it means and what we might need to do about it.”
Natalynne DeLapp said she, too, is worried about what might slip through the cracks. “The public deserves to know what the impacts of this ordinance are going to be on all of the county’s resources,” she said.
These heightened concerns about environmental impacts has caused some stakeholders to have second thoughts about the efficacy of the whole process.
“There have definitely been a couple of — how could I put it — glitches,” Supervisor Fennell said. Like others, she felt that feedback from the first meeting wasn’t reflected in the subsequent draft ordinance. And beyond that, Fennell said she and others are not sure the proposals are even feasible on a practical level. Will the county’s agricultural commissioner be able to accomplish the what the draft ordinance demands? Has the county’s Division of Environmental Health been consulted? The California Department of Fish and Wildlife?
Edrington said group leaders are meeting with public officials this week for just that purpose. Regardless, stakeholders don’t sound confident. Fennell said they voiced their concerns at a recent meeting. “We discussed the fact that [the ordinance] really was not ready for primetime in any shape or form,” she said. Like others, Fennell is concerned about allowing grows of up to 20,000 square feet. “This kind of factory-level production is something that I don’t think would work in Humboldt County in the first place or would be acceptable to a lot of people,” she said.
But Edrington is unapologetic. “The time to get hung up on perfection was five years ago, but none of the organizations here were up to the challenge,” he said. He called the CEQA concerns a “red herring,” suggesting that the law probably wouldn’t apply anyway since the ordinance doesn’t propose any new development.
Hamblin, the county’s planning and building director, was skeptical of that claim. In order to be exempt from CEQA, he explained, an ordinance would have to involve no physical change to the environment, which would be “a real tricky position to offer” in this case.
As for the larger process, Hamblin said it has had some very positive aspects. “I like the idea of people of like minds coming together and working on something, involving a large range of people,” he said. “But on other hand, if it’s part of a political effort, to be done by referendum and skip the normal process, I don’t think that’s a good way to adopt ordinances that deal with cannabis. This is something that needs public input and CEQA review. We all need to go in with our eyes wide open.”
That just hasn’t been the case with this process, argued Dan Ehresman, executive director of the Northcoast Environmental Center. He has attended meetings as a stakeholder and is now disillusioned. “They’re billing this as a public process, with public review, and from my perspective there’s no way that a private organization can run a so-called public process,” he said.
Ehresman added that none of the drafts he’s seen have adequately addressed such issues as watershed restoration and public safety, nor have they identified sufficient funding sources for permitting and enforcement.
Edrington, in turn, accused Ehresman of refusing to participate in public meetings and contributing nothing beyond saying, “No.” And initially Edrington dismissed criticism of the draft ordinance and the CCVH process as hurt feelings.
“I can’t speak for other people’s feelings,” he said, “and we didn’t spend all this money and time to cater to egos or feelings.”
No, they spent the money and time to get a marijuana ordinance passed, and that’s what they aim to do. “The simple fact of the matter is that it’s do or die time here in Humboldt,” Edrington said, “and CCVH is full of doers.”