To: Sonoma County Board of Supervisors
Department or Agency Name(s): Permit Sonoma
Staff Name and Phone Number: Crystal Acker, Supervising Planner (707) 565-8357
Vote Requirement: Majority
Supervisorial District(s): Second
Title:
Title
3:45 PM -UPC17-0020: Appeal of approval of a Two-Year Review to allow continuation of the outdoor cultivation operation at 334 Purvine Road in Petaluma.
End
Recommended Action:
Recommended action
To conduct a public hearing and adopt a Resolution denying the appeal and upholding the Board of Zoning Adjustment’s decision to approve a Two-Year Review of outdoor cannabis cultivation activities without modification to adopted Conditions of Approval at 334 Purvine Road (UPC17-0020), and to allow continuation of outdoor cannabis cultivation for the remaining permit term through May 15, 2025.
end
Executive Summary:
The cannabis cultivation project at 334 Purvine Road, Petaluma (UPC17-0020) was approved by the Board of Zoning Adjustments (BZA) on April 11, 2019. The BZA added a Condition of Approval for a Two-Year Review to address neighborhood compatibility issues potentially associated with the outdoor cultivation component of the project, primarily odor-related, but also visual and security concerns. On September 30, 2019, the Board of Supervisors denied an Appeal by No Pot on Purvine and upheld BZA approval of the project, adopting a Mitigated Negative Declaration and Conditions of Approval, which included a Two-Year Review of the outdoor cultivation operation. On May 15, 2020, phased authorization was granted to allow operation of the outdoor cultivation area to begin. A Two-Year Review of 2020 and 2021 outdoor cultivation activities was conducted and approved unanimously (4-0-1 vote) by the BZA on June 9, 2022. An appeal of the approval was filed by Sanjay Bagai on June 20, 2022.
The appeal alleges violations related to special events, water use, and unpermitted signage, and states that due to these violations, the outdoor cultivation activities constitute a nuisance.
A Mitigated Negative Declaration (MND) was prepared for the complete project, including the outdoor cultivation operation, which determined that all potential impacts can be mitigated to a less than significant level, and all mitigation measures were incorporated into the project conditions of approval. The project was approved with conditions, and the MND was adopted by the Board of Supervisors on September 30, 2019. The Two-Year Review is consistent with the previously adopted MND, none of the conditions under Section 15162 of the CEQA Guidelines are met, and no additional environmental review is required for the Two-Year Review.
Discussion:
PROJECT DESCRIPTION
The approved project consists of two phases, described below.
The Phase I operation (authorized May 15, 2020) includes up to 28,560 square feet of outdoor cannabis cultivation, and associated security and landscaping improvements. Security improvements for the outdoor operation include fencing with locked gates around the cultivation area, motion-activated security lighting, and cameras around the cultivation perimeter. Landscaping, consisting of trees and shrubs, was planted along the fence on the exterior sides (facing Purvine Road & neighbors to the southwest).
The Phase II operation will consist of 8,096 square feet of mixed light cultivation, 2,880 square feet of indoor cultivation, and 4,080 square feet of indoor propagation in a new greenhouse; on-site processing of site-grown cannabis - consisting of trimming, drying, curing, weighing, and packaging - in a new processing building; construction of various accessibility, emergency access, and fire safety improvements (e.g., internal road and parking improvements, fire truck turnaround, dedicated fire suppression water storage); installation of rainwater capture and water storage tanks for irrigation; installation of permanent security improvements (e.g., security office, building security features including alarms, cameras, and security lighting); and installation of landscaping improvements around the new buildings. Construction has begun on Phase II buildings, but Phase II has not yet been authorized for operation.
The approved Site Plan, Premises Map, and a Vicinity Map are included in Attachment 5 (the BZA Staff Report, as Attachment 3. Figures).
TWO-YEAR REVIEW
Condition of Approval 17 requires:
A review of outdoor cultivation activities under this Use Permit shall be undertaken by the director two (2) years after commencement of the first outdoor harvest to determine compliance with the Conditions of Approval applicable to the outdoor cultivation operation, including but not limited to landscape screening, odor control, security, and water use, and to determine whether the outdoor cultivation use constitutes a nuisance, consistent with the authority granted pursuant to Sonoma County Code Section 26-92-120 (Revocation generally).
The appeal did not cite landscape screening, odor control, or security as concerns; however, each was evaluated in the Two-Year Review and is briefly discussed below.
Landscape Screening
All applicable landscaping improvements for the outdoor cultivation site have been completed (additional landscaping will be required in the future after construction of cultivation buildings). The outdoor cultivation site is surrounded by a screening fence. Landscaping was planted in 2020 around the exterior sides of the cultivation fence (facing Purvine Road & neighbors to the southwest), and includes native oaks, madrone, pines, ceanothus and blackberry. The property also has a wildflower field for bee-keeping, a 5-acre vegetable garden, a half-acre hemp garden, and a row of eucalyptus trees along a portion of the Purvine Road property frontage, which provide additional screening.
Odor Control
Installation of odor control systems is required for all structures used in cannabis cultivation and processing (Sec. 26-88-254(g)(2)). However, the code does not include any odor-control or odor-monitoring requirements or thresholds for outdoor cultivation, other than minimum setbacks of 100 feet from property boundaries and 300 feet from residences on surrounding properties (Sec. 26-88-254(f)(6)), and that cannabis operations “shall not create a public nuisance or adversely affect the health or safety of the nearby residents” (Sec 26-88-250(f)). Odor was the primary neighborhood compatibility concern that prompted the BZA to impose the Two-Year Review requirement.
However, most public comments received during the Two-Year Review have not been related to odor, and the appeal did not cite odor as a concern.
The approved Odor Control Plan for the project requires daily odor monitoring during the cultivation season, and reporting of odor complaints and any mitigations conducted to address odor complaints. Odor Monitoring logs for 2020 and 2021 were submitted. Odor complaints were received from one residence on Purvine Road during the 2020 harvest; none were received during the 2021 cultivation season. Mitigation Measure AIR-3 (Condition 109) states that staff may bring the outdoor cultivation component of the project back to the BZA for review if multiple verified odor complaints are received. That does not appear to be warranted, as 2020 complaints were received from a single location and no complaints were received in 2021.
The goals of the applicant’s proposed daily odor monitoring are 1) to verify that odor-control equipment in structures is operating as designed and in compliance with code, and 2) to provide information on whether outdoor odors are detectable at property boundaries. Although the informal daily odor monitoring log conducted by employees does not provide a measurement of odor quantity or intensity, it does provide qualitative data on how far from the source the odor typically travels and in which direction. The submitted Odor Monitoring Log provides a daily record of whether cannabis odors are detectable at eight different locations on the project parcel. Odor was primarily detected at three locations adjacent to the outdoor cultivation area: B - located east of the grow, C -located northeast of the grow, and to a lesser extent, D - located southwest of the grow. Odor was rarely detected at any of the three locations along the Purvine Road property boundary to the west (maximum of three recorded odor days in 2020; none in 2021), or at the northeast property corner (maximum of 7 recorded odor days in 2020; none in 2021) or at the southeast property corner (maximum of 12 recorded odor days in 2020; 1 in 2021). Location B is adjacent to the eastern property boundary, but there are no residences nearby in an easterly direction (the nearest is approximately 1,250 feet away). The outdoor cultivation area was sited where it is near the eastern boundary in consideration of this fact. The submitted monitoring log’s low number of occurrences of detectable odor at property boundaries to the north, west, and south, and the distance between the eastern property boundary and nearby residences supports the determination that, although outdoor odor may occur, it does not create a public nuisance or adversely affect the health or safety of the nearby residents.
The Odor Monitoring Logs and Odor Monitoring Station Maps are included in Attachment 5 (the BZA Staff Report, as part of Attachment 4 the Two-Year Review Package).
Security
The approved Site Security Plan for the project requires maintenance of a security incident log. No security incidents have occurred. Staff have verified installation of locking gates, cameras, and security lights for the outdoor operation.
ISSUES RAISED IN THE APPEAL
The appeal letter and exhibits are provided as Attachment 3 and Attachment 4, respectively.
Issue 1. Special Events
The appellant contends that the applicant has violated Conditions of Approval by holding special events.
Staff Analysis
2018 Public Activities
During the 2019 project hearings, many public commenters expressed concern about special events or other forms of public access, due to public activities held on the project parcel during 2018. Commenters submitted photos and complaints about large public gatherings with vehicles parked along Purvine Road and members of the public interacting with cannabis plants. Two formal complaints were submitted to and investigated by County Code Enforcement staff in 2018: VCM18-1232 for unpermitted cannabis, and VCM18-1233 for unpermitted special events. Code Enforcement file notes indicate that the cannabis plants were a legal, permit-exempt personal grow associated with the on-site residence and no violation was issued. The personal grow was not replanted after the 2018 harvest; there has been no personal cannabis grow on-site since then. File notes also indicate that the “event” had been a neighborhood party, and that no fee had been charged. No violation for an unpermitted special event was issued. Code Enforcement staff also noted the following during the site inspection: a hoop house being used for vegetable starts was present, which had been up for just under six months, had no electrical or mechanical improvements, and was permit-exempt; a complaint about long-term occupancy in a “yurt” was unfounded as the yurt was a 150-square-foot canvas tent without framing, electrical, or mechanical that showed little evidence of habitation and was also permit-exempt; unpermitted framing and electrical improvements in an on-site barn were cited as violations. These violations were legalized by building permits (BLD18-7628 and BLD19-0005) and the violation file was closed on January 10, 2019.
The photographs submitted by the Appellant appear to all be from 2018, prior to project approval and prior to operation of the outdoor cultivation area which is the subject of this Two-Year Review.
Code Enforcement Actions during 2020 and 2021
There was one complaint submitted to Code Enforcement on the parcel - VCM21-1194 - for an occupied travel trailer. The complaint file was closed and no violation issued as the trailer was a refrigerated unit for temporary storage of cannabis during harvest. The trailer was not being occupied and was removed after harvest was completed.
Compliance with Special Event-Related Conditions of Approval
The BZA imposed several additional Conditions of Approval at the April 11, 2019 hearing in response to public concerns about special events, including the following:
11. Special Events. Tastings, promotional activities, and events are prohibited by Sonoma County Code Section 26-88-250(c) and therefore are also prohibited by this Cannabis Use Permit.
12. Transient Occupancy. Farm stays, vacation rentals, hosted rentals, and other transient occupancies are prohibited.
13. Temporary Occupancy Structures. Tents, yurts, and other temporary structures designed for human habitation are prohibited.
15. On-Street Parking. Parking on Purvine Road is prohibited.
Other than the 2021 complaint about the refrigerated harvest trailer described above, no complaints or comments have been received since 2018 related to temporary occupancy structures or on-street parking (Conditions of Approval 13 and 15).
Staff are aware that 250 Purvine Road (next door property under same ownership) has a vacation rental permit (TVR21-0085). This property is a separate parcel and is not part of the cannabis operation; the prohibition on vacation rentals applies to the parcel on which the land use entitlement (Use Permit) was granted (i.e., 334 Purvine Rd). Guests of the vacation rental are allowed to buy produce and tour the rest of the farm at 334 Purvine, with the exception of the cannabis cultivation area. The applicant is aware that members of the public cannot be provided access to the cannabis operation, which currently includes only the outdoor cultivation site, but ultimately will include a cultivation greenhouse and an on-site processing building. The vacation rental website for 250 Purvine Road alerts guests of this prohibition and requires their compliance with it. The applicant has stated that the home is primarily used as a permanent residence and has only occasionally been used as a vacation rental. Note also that the hemp garden is not part of the cannabis operation and that touring of hemp sites is not prohibited by local ordinance. The state requires that hemp cultivation areas and cannabis cultivation areas have separate, distinct premises that cannot overlap. The hemp cultivation site at 334 Purvine has been registered each year it has been planted; the current registration is HMP22-0004.
There has been “public” access associated with non-cannabis agricultural operations on the parcel, such as the chefs garden, hemp garden, and livestock grazing areas. As mentioned above, guests of the 250 Purvine vacation rental, and other members of the public, can tour the 5-acre chef’s garden and hemp garden, but are not allowed access to any cannabis-containing areas (e.g., existing outdoor cultivation area, future greenhouse, future processing building). These “farm tours” may occur as long as they do not meet the definition of a special event, which would require a separate special event permit (special event permitting is discussed in more detail below). In addition, people associated with other commercial agricultural operations on the parcel are allowed access to those operations (e.g., commercial buyers of hemp or of produce, and the owners of the livestock leasing the property for grazing), but also are prohibited from all cannabis-containing areas.
There is no evidence of any public access to the outdoor cultivation area (currently the only cannabis-containing area on the property). All access to the cultivation area has been by licensed cannabis supply chain businesses. For example, manufacturing or dispensary personnel interested in purchasing site-grown cannabis and distribution personnel picking up a shipment of cannabis would be allowed controlled access to the cultivation area. Note that on-site sampling or consumption of cannabis is not allowed, even for licensed industry professionals.
Public comment and the appeal include complaints of marketing, advertisements, and promotions; however, the Zoning Code does not prohibit these activities by a cannabis business, or any business. The code does impose limitations on how cannabis businesses can promote or advertise. Cannabis dispensaries are prohibited from displaying visible signage or symbols which advertise the availability of cannabis on the premises. All cannabis operations are prohibited from holding promotional activities or special events in Sec. 26-88-250(c)(5):
Tasting, promotional activities, and events related to commercial cannabis activities are prohibited.
This code section is intended to apply to a physical permitted location to ensure neighborhood compatibility and minimize potential environmental impacts typically associated with special events (e.g., noise, traffic, parking). Therefore, a cannabis business cannot hold special events or other promotional activities attended by members of the public on the property permitted by a Use Permit (or a Zoning Permit), nor can a cannabis business apply for a separate Special Event Zoning Permit to hold promotional activities on any other property within County jurisdiction (the City of Santa Rosa does allow cannabis special events, such as the Emerald Cup). This code section does not contemplate that a cannabis business cannot engage in marketing or branding activities which do not meet the following County definition of a Special Event (Sec. 26-04-020(P)):
Periodic Special Events. Periodic special events such as parades, concerts, festivals, races and gatherings which attract, either by direct participation, or as spectators, a large gathering of people.
A Special Event Zoning Permit is required for all events that have any one or more of the following characteristics: live amplified music; an admission fee; more than one-day event or a one-day event beyond the hours of 7:00 AM to 11:00 PM; overnight sleeping accommodations; an event occurring more than once in a 30-day period; publicized to the public at large through printed advertisements, newspaper, radio or television; or sale of food or beverage (note that sale of “food” means prepared food and does not apply to the sale of produce).
Special Event/Public Access Compliance Conclusion
As described above, a complaint submitted for unpermitted special events in 2018 was investigated by County Code Enforcement; however, no violation was issued as the “event” was determined to not meet the above definition of a special event which would have required a permit. Since 2018, there have been no large gatherings of people at the permitted parcel that might meet the definition of a special event. Nor has the applicant advertised for or held a special event on any other parcel within County jurisdiction. Members of the public have been allowed access to tour non-cannabis-containing portions of the farm, as have people associated with other commercial agricultural operations on the parcel. No access to the cannabis cultivation area has been allowed for these purposes. All access to the cultivation area has been by licensed cannabis supply chain businesses. There is no evidence of any public access to the outdoor cultivation area.
Issue 2. Water Use
The appellant contends that the applicant has violated Conditions of Approval 49 through 52, associated with water use, including monitoring and reporting requirements, exceedance of water use limitations and outdoor cultivation area, and importing trucked water for cultivation purposes. The relevant Conditions of Approval are:
49. Water well(s) used for cultivation shall be equipped with a meter and sounding tube or other water level sounding device and marked with a measuring reference point.
50. Water meters shall be calibrated and copies of receipts and correction factors shall be submitted to Permit Sonoma staff at least once every five years. Static water level and total quantity of water pumped shall be recorded quarterly and reported annually. Static water level is the depth from ground level to the well water level when the pump is not operating after being turned off. Static water shall be measured by turning the pump off at the end of the working day and recording the water level at the beginning of the following day before turning the pump back on. Groundwater monitoring reports shall be submitted annually to the County by January 31 of each year. The annual report shall show the location of the well(s) with the groundwater level measuring device and the location of the water meter(s), and shall include a cumulative hydrograph of static water levels and total quarterly quantities of water pumped from well(s) used in the operation.
51. The location of the wells, and groundwater elevations and quantities of groundwater extracted for this use shall be monitored quarterly and reported to Permit Sonoma in January of the following year pursuant to Section WR-2d of the Sonoma County General Plan and County policies. Annual monitoring fees shall be paid at the rate specified in the County Fee Ordinance. If the County determines that groundwater levels are declining in the basin, then the applicant shall submit and implement a Water Conservation Plan, subject to review and approval by Permit Sonoma.
52. Prior to building permit final or granting of occupancy or initiation of the use, the County shall verify that the well monitoring equipment has been installed and that the access easement has been recorded. Water meters shall be calibrated and copies of receipts and correction factors shall be submitted to Permit Sonoma staff at least once every five years. In the event that project groundwater use exceeds 2.08 acre-feet per year from the project well, Permit Sonoma staff may bring this matter back to the Board of Zoning Adjustments for review of additional measures to reduce water use. In the event that groundwater use exceeds 2.08 acre-feet per year by more than 10 percent, Permit Sonoma staff shall bring this matter back to the Board of Zoning Adjustments to consider whether additional measures to reduce water use are appropriate.
Staff Analysis
Groundwater Well Monitoring and Reporting (Conditions 49-51). Well metering equipment was installed in 2020. Meters are currently installed at the well head and at the outdoor cultivation area. An additional meter will be required at the proposed greenhouse, after it is constructed.
Annual groundwater monitoring fees have been paid; the current year was paid on January 11, 2022.
The County’s Professional Geologist reviews annual groundwater reports and identifies any projects in non-compliance for follow-up. Well monitoring data forms have been submitted to and accepted by the County for both the 2020 and 2021 cultivation seasons.
Groundwater Use Limitation (Condition 52). Groundwater use for cannabis cultivation is limited to 2.08 acre-feet per year because that is the water use estimate studied in the hydrogeologic analysis in the approved project MND, and is the amount determined to result in a less than significant impact to the cumulative groundwater table. In 2020, the cultivation operation used 1.2 acre-feet (399,280 gallons). In 2021, the cultivation operation used 1.1 acre-feet (338,841 gallons). Both years are well below the total water use compliance threshold of 2.08 acre-feet.
Staff also evaluated whether the actual outdoor cultivation water usage was within the range of the below estimated water use budget studied in the project MND:
Greenhouse/Indoor cultivation - 1.66 acre-feet per year
Outdoor cultivation - 1.27 acre-feet per year
Rainwater harvest offset - 0.85 acre-feet per year
Net cultivation water use - 2.08 acre-feet per year
The water budget for the outdoor cultivation project component was estimated at 1.27 acre-feet; the actual annual water use ranged from 1.1 to 1.2 acre-feet, slightly less than the MND analyzed.
Outdoor Cultivation Size Limitation. The appellant stated that they believed the outdoor grow was greater than 1.5 acres in size, and was concerned that such an exceedance of the approved cultivation area would result in substantially greater water use than studied in the MND.
Annual site inspections were conducted by the Sonoma County Department of Agriculture / Weights & Measures (AWM) on October 14, 2020 and September 22, 2021, prior to harvest. In both years, the canopy was measured and determined to be in compliance with the permitted outdoor cultivation area- 28,560 square feet (see Attachment 5. The BZA Staff Report’s Attachment 6. AWM Site Inspection Reports). Note that the fenced premise of an outdoor cultivation area is often larger than the plant canopy itself to allow space for walkways between planting rows. Details on how cannabis plant canopy is measured can be found at the following link:
<https://sonomacounty.ca.gov/Ektron%20Documents/assets/Sonoma/County-wide%20content/Services%20Shared/Cannabis/_Documents/Determining%20Canopy%20Comprehensive.pdf>
Trucked Water. The cannabis ordinance (Sec. 26-88-254(g)(10)) prohibits trucked potable water for cannabis cultivation purposes. However, there is neither a prohibition nor any regulatory requirements in the Zoning Code related to trucked water for non-cultivation purposes, such as construction.
Several complaints were received in 2021, including from the appellant, related to water hauling to 334 Purvine Road and other properties in the Petaluma Dairy Belt. In response to complaints, the applicant submitted two letters from their contractor (Attachment 8) stating all water imported to the 334 Purvine property was used for construction purposes, including but not limited to: construction foundation work for the new drying barn and greenhouse; construction of access roads, ADA-compliant pathways, and parking improvements; and watering for dust control as required by Mitigation Measure AIR-1 and Condition of Approval 107.
Attachment 8 also includes a site plan showing the locations of all on-site water tanks and a Water Tank Details sheet identifying water tank sizes and what the water is used for. Of note are the two 4,000-gallon tanks adjacent to the well head pump house (Locations 3 and 22 on the Attachment 8 Site Map). These tanks are for domestic uses associated with the residence.
Approximately 3,000 gallons was imported to these domestic tanks after a pipe was broken during construction and all the water leaked out. The photographs of a Petaluma Creamery truck submitted by the Appellant are shown filling these two domestic tanks by the pump house. The water was used to prime the well pump; the tanks were then filled back up to full capacity from the well. No other water has been imported to these tanks. There is no evidence that the trucked water was used for cannabis cultivation purposes.
Water Use Conclusion. As described above, groundwater use for outdoor cultivation (1.1 to 1.2 acre-feet per year) has been far below the Use Permit limit of 2.08 acre-feet, and slightly below the outdoor cultivation water use estimate of 1.27 acre-feet studied in the MND. For comparison, an average California household uses between 0.5 and 1.0 acre-foot of water per year (including both indoor and outdoor uses). Although trucked potable water for cannabis cultivation is prohibited, trucked water for construction (or any other) purpose is neither prohibited nor regulated by the Zoning Code.
Issue 3. Unpermitted Signage
The appellant contends that the applicant has violated Condition of Approval 17, copied below, by installing unpermitted signage.
17. Signage. The project approval does not include any signage. A separate administrative design review application will be required if any exterior signage is proposed.
Staff Analysis
Painted murals advertising a business are considered wall signs (such as the Sonoma Hills Farm mural painted on the pump house near Purvine Road). Staff has discussed the need for an administrative design review approval for the current sign/mural with the applicant. The applicant has indicated they plan to repaint the mural to remove the name of the business; a mural without advertisement would not be subject to design review. Although located on a separate parcel and not subject to the project’s Conditions of Approval, the banner sign on the fence at 250 Purvine has been removed by the owner and a second Sonoma Hills Farm mural painted on a retaining wall will also be repainted to remove the business name.
ENVIRONMENTAL DETERMINATION
A Mitigated Negative Declaration (MND) was prepared for the complete project, including the outdoor cultivation operation, which determined that all potential impacts can be mitigated to a less than significant level, and all mitigation measures were incorporated into the project conditions of approval. The project was approved with conditions, and the Mitigated Negative Declaration was adopted by the Board of Supervisors on September 30, 2019. The MND is available on the State Clearinghouse website:
<https://ceqanet.opr.ca.gov/Project/2019039068>.
No additional environmental review is required for the two-year review.
STAFF RECOMMENDATION
Staff recommends the Board deny the appeal, and uphold the Board of Zoning Adjustment’s decision to approve successful completion of a Two-Year Review of outdoor cultivation activities without modification to the adopted Conditions of Approval, which would allow continuation of the outdoor cultivation operation for the remaining permit term through May 15, 2025.
Strategic Plan:
Not Applicable
Prior Board Actions:
September 30, 2019: The Board of Supervisors denied an appeal, adopted a Mitigated Negative Declaration, and upheld the BZA’s decision to grant a Use Permit for cannabis cultivation at 334 Purvine Rd in Petaluma.
Fiscal Summary
Narrative Explanation of Fiscal Impacts:
Not Applicable
Narrative Explanation of Staffing Impacts (If Required):
Not Applicable
Attachments:
Att 1 UPC17-0020 Board of Supervisors Resolution
Att 2 UPC17-0020 Exhibit A of the Resolution - Adopted Conditions of Approval, 9-30-2019
Att 3 UPC17-0020 Appeal submitted by Sanjay Bagai, 6-20-2022
Att 4 UPC17-0020 Appeal Exhibits submitted by Sanjay Bagai, 6-27-2022
Att 5 UPC17-0020 BZA Staff Report package, 6-9-2022
Att 6 UPC17-0020 BZA Resolution, 6-9-2022
Att 7 UPC17-0020 BZA Hearing Minutes, 6-9-2022
Att 8 UPC17-0020 Water Use Exhibits
Att 9 UPC17-0020 Public Comment 6-9-2022 through 7-6-2022
Related Items “On File” with the Clerk of the Board:
Not Applicable