September 15, 2021 — The People’s Referendum to repeal the new cannabis ordinance, Chapter 22.18, has been victorious.The Board of Supervisors voted unanimously yesterday to repeal the ordinance, rather than place the decision on the ballot for a special election, which was the other option. Supervisor Mo Mulheren spoke up first during a straw poll before the vote.
“I was an active community member during Measure A,” she recalled of her time as a Ukiah City Council member in 2016 when Measure AF, the Mendocino Heritage Act, a fiercely fought citizens initiative that was widely opposed due to perceptions that it would allow for increased cultivation. “Watching this cannabis referendum on both sides behave in a way that’s detrimental to our community, I have no desire to place this item on the ballot,” she told her colleagues.
Ron Edwards is a local nursery owner who has been involved in the ordinance process since the beginning. He stopped just short of saying I told you so. “I and other members of the community have pleaded with you, have brought you information, time and time again, around cannabis, and it seemed to just be rejected...I don’t know how to participate better. I don’t know how you were thinking. I don’t think the citizens know your train of thought...it was quite clear where the public was going with this referendum vote. Yet you steadily went forward with where you wanted to go. And I am just confused.”
County Counsel Christian Curtis reported that case law is scarce and ambiguous, but the board is prohibited from crafting another ordinance that has the same essential feature as the one that’s now off the table. Kate Marienchild, who spearheaded the successful referendum effort along with Ellen Drell, said her legal counsel advised her that the board can bring back any item that was in 22.18 that was not specifically a target of the referendum. Proponents supported several environmentally conscious elements of the new ordinance. Marienchild suggested that this clears the way to including some of those elements in amendments to Chapter 10a17, the old ordinance, without running afoul of the law.
“So you don’t have to worry about a lawsuit being brought by proponents of the People’s Referendum,” she told the board, if they kept restrictions on trucking water and laying down road base for hoop houses. She also said the group also recognizes “the urgent need of phase I growers to complete the county permitting and state licensing processes. And we are open to the introduction of discretionary land use elements into Chapter 10a17. We have no desire to delay the implementation of those elements for the permitting of phase I growers, and we join the Mendocino Cannabis Alliance in calling for them,” whether the board decides to amend the old ordinance or craft a new one altogether.
Michael Katz, the executive director of the Mendocino Cannabis Alliance, submitted a detailed memo suggesting a variety of options if the board decided to repeal the new ordinance. One was to amend 10a17 to add a discretionary permitting process. He also asked that, if the board did decide to put the item on the ballot, they remove the provisions that would allow up to 10% of qualifying parcels zoned for ag and rangeland to be used for cultivation; not to open up rangeland for new cultivation; and to eliminate any expansion beyond what was allowed by 10a17. That maxes out at about a quarter of an acre, which supporters of the new ordinance argued is not enough for a financially viable business.
The board was confident that the environmental safeguards built into 22.18 would satisfy concerns about detrimental effects on wildlife, watersheds, and sensitive habitat. But they adopted the ordinance before a state requirement for environmental review kicked in, which was a sticking point for those who opposed it. Now if they write a whole new ordinance, they will be legally required to conduct a review.
Supervisor Glenn McGourty asked how much the board could work with 10a17, which Curtis described as “a difficult ordinance,” due to the ministerial permits and the mitigated negative declaration, which isn’t exactly the same as an environmental impact review.
Curtis described the complicated structure of 10a17, which “managed to accomplish what it did with a mitigated negative declaration really does sort of tie the board’s hands in terms of the scope of any changes that you might be able to make, but also tied the board’s hand in terms of what was initially able to be authorized because the only things that were authorized had to be below a threshold of significance in terms of any environmental impacts.”
Though a lack of meaningful enforcement and the proliferation of illegal grows in the last five years were driving factors in the success of the signature-gathering campaign, Supervisor Ted Williams claimed that, without tax revenue from legal growers, enforcement of illegal activities would be difficult to fund. He asked Supervisor John Haschak, who consistently voted against the new ordinance, if he had a plan for patching the hole in the budget.
“I don’t see a workable path forward,” he said. “ I see it as more of the same. All the problems we had from the current phase I we’re going we’re gonna see in the phase III. And if we try to add more restrictions to an ordinance that’s already impossible to implement and enforce, we’ll just have more outlaws.”
Supervisor Dan Gjerde laid out some of the economic factors beyond 22.18 that legal growers are contending with. “Currently I’m hearing it’s about $500 a pound from our cannabis manager, whether it’s legal or illegal,” he reflected. “And the $160 a pound is the state cultivation tax, so the profit is going away, unless the cultivators are also selling untaxed cannabis on the side. But nevertheless I think the voters of Mendocino County have really said that small is beautiful. And maybe it is. But small may be bankrupt as well.”