Mendocino County Supervisor Ted Williams made an inevitable reference to Kafka’s masterpiece of legal futility during an hours’-long discussion about tree removal at this week’s Board of Supervisors meeting. “I think you could draw a parallel between “The Trial” and what these cannabis applicants have gone through,” he observed.
The Mendocino Cannabis Alliance would seem to agree. On Wednesday, the trade and advocacy organization publicized a 16-page letter it sent to the governor and the Department of Cannabis Control, titled, “Requesting Urgent Intervention to Prevent Mendocino Licensing Collapse.” The letter complains that the county Cannabis Department has failed applicants who have been trying to get legal for over six years.
The letter details expensive and stressful delays ranging from kicking large numbers of applicants to the back of the line for reasons it claims are “demonstrably false;” to lagging on administering grants, to denying or threatening to deny applications based on unlawful tree removal.
When the county adopted its cultivation ordinance in April of 2017, it did so with a mitigated negative declaration, or MND, meaning that it avoided certain state environmental review provisions. The permit system is ministerial, which is often regarded as a streamlined process. In 2017, fears of a “green rush” that never materialized, plus documented cases of illegal environmental degradation, led supervisors to include strict prohibitions on clearing trees for the purposes of growing cannabis. But now, 30-40 applicants are caught in what’s known as “veg mod hell.” Their permit approvals are held up as they struggle to prove that they removed trees for a legitimate purpose, after May 4, 2017. Some applicants claim that trees have fallen down from natural forces, or were cut before 2017.
Deputy County Counsel Jared Schwass said the county sent applicants letters requesting proof that trees had been legally removed within 15 days. “After receiving those letters, the county received several comments from the applicants, from the permit holders, from their advocates, (and) from their representatives, expressing concern about requiring evidence that was not required at the time of removal,” he reported. “The language of the prohibition itself is ambiguous. The department must establish objective criteria for the approval or denial of an application. The issue here is that the ordinance that requires objective standards is ambiguous.”
County Counsel’s office prepared an affidavit that applicants could sign, attesting that trees had been removed for legal reasons, like disease and safety concerns. But the office remains concerned about what to do regarding evidence that contradicts the affidavits.
Long-time cannabis attorney Hannah Nelson prepared multiple memos for the Board’s consideration, including a letter she co-signed with high-powered Sonoma County attorney Lauren Mendelsohn, objecting to the deprivation of due process regarding vegetation removal. They closed by informing the board that they sincerely hope stakeholders will not be forced to “vindicate their rights in court.” Nelson expanded on some of her themes during public comment.
“The proof that is required has to do with a couple of different topics,” she said. “There’s the disease and safety exception, which is written into the ordinance, clear as a bell. Disease and safety concerns are a legitimate reason to remove trees. Even protected species. So how do you prove that it was for those purposes? Again, you get back to the fact that this is a ministerial permit. Why in heck is somebody going back in time and double-checking an affidavit to see if there’s contradictory proof?”
Scott Ward, a former county building official who now consults for cannabis applicants, pointed out that any search for deviations from the letter of the law will turn up deficiencies. He told the Board that as a government employee, he spent 28 years “doing nothing but administer ministerial permits…We’re all outlaws. If somebody sharp-eyed at MCD (Mendocino Cannabis Department) got onto Google and matched it up with the building permit record, I bet everybody in here might need a building permit…when you’re on the horns of a dilemma as a regulator, which I was, you can go two ways. You can over-regulate and find a way to say no, or you can be fair, and try to find a way to say yes. Being overly subjective has no place in a ministerial permit process. We have a time crunch here because of the delay in reviewing applications at MCD.”
The cannabis department proposed a number of scenarios intended to define the purpose of developing a cultivation site, exploring a variety of nuances to clearing trees to expand the sites to put in ponds, roads, and other growing amenities.
Ellen Drell, a leading environmentalist from Willits, objected, saying, “In my opinion, the options before you today don’t resolve any ambiguities,” she began; “but instead they are another effort to undermine the environmental protections of 10A17 (the cannabis cultivation ordinance of 2017).Staff appears to be trying to finesse a change to 10A17 that would exclude road-building, pond-building, irrigation and power infrastructure building, driveways, parking lots, from what is meant by creating and expanding a cannabis cultivation site,” thus making those exempt from tree removal prohibitions. “Clearly this was not the intent of the ordinance and the accompanying MND…it’s obvious that pond building, road widening and parking lot impacts have much more potential for environmental impacts and likely removal of trees,” than simply putting in a drying shed, she said in a voicemail on the item.
The board agreed that they want staff to come back with proposed amendments to the cultivation ordinance favoring the simplest and most lenient scenario, and simplifying the affidavit. Supervisor Glenn McGourty offered his overview of the cannabis program: “We spend huge amounts of time, not only at meetings, but also trying to support the program,” he reflected. “If this was my kid in school, getting a D, I’d want to speak to the teacher.”