County Cannabis: Legally Unsupportable

In Nick Welsh’s Santa Barbara Independent article “Cannabis Farm Passes Smell Test,” he wrote: “This was the first of many such appeals that cannabis critics will be filing. Some planning commissioners opined it was long on emotion and short on legally supportable grounds.”

In fact, while the county has not been long on emotion, it
has been extraordinarily short on legally supportable grounds. To paraphrase
the planning commissioners’ words, perhaps the county is more accurately
described as “long on greed and short on legally supportable grounds.” I base
this admittedly harsh judgment on the following:

1. The regulatory scheme of S.B. County has relied
   heavily on the county designation of sites as Legal Nonconforming Users,
   allowing such sites to grow cannabis prior to being permitted. Under California
   law, such a designation can only be made upon the county finding that the claimant has presented substantial evidence in a public forum to meet its burden
   of proving (1) that the Legal Nonconforming Use exists and (2) the
   size of that Legal Nonconforming Use.
2. By its own admission in its Letter of
   Authorization to the State, the county
   has not heard any evidence in a public or private forum to support a
   Legal Nonconforming Use designation.
3. Absent strict adherence to the above California
   process, the county designation of Legal Nonconforming Use is invalid and the
   sites should not have received the benefits of Legal Nonconforming User status,
   which for many of these sites should have resulted in the immediate shutting
   down of the cannabis operations, pending completion of permitting.
4. California law also clearly states that a
   governmental entity determining Legal Nonconforming Use status cannot waive
   adherence to the process. The “Letter of Authority” sent by the county to the state,
   by its own words, acknowledges that it has waived such adherence.
5. The county, under the guise of public safety,
   hid the identity of the sites claiming Legal Nonconforming Use status from the
   public for over 18 months. This secrecy made a timely public forum for public
   input impossible.
6. License stacking and other unique county
   policies that overwhelmingly favor the interests of cannabis growers and county
   revenue over other legitimate community interests have made Santa Barbara
   County the most intensely cannabis-cultivated California county.

As to Marc Byers of Byers Scientific putting together expert
and impartial testing of odor control for the county to rely on, I suggest
there is a clear conflict of interest. There can be no dispute that an
impartial, expert test must have total separation from a party that may benefit
from the results. The county cannot delegate its responsibility to an
interested party. It was unacceptable enough when the county accepted the Byers
system as “best available” when, by its own words, the certification was based
on the assumption that all of Byers marketing claims were true and, further, the
certifying entity did not investigate other available systems before certifying the Byers system as the “best available.”