Saturday, 12 June 2021

City of Clearlake: Second extension of interim moratorium on industrial hemp cultivation

ORDINANCE NO. 250-2021
SECOND EXTENSION OF AN INTERIM ORDINANCE IMPOSING A MORATORIUM ON INDUSTRIAL HEMP CULTIVATION IN THE CITY


WHEREAS, as of January 1, 2019, both California and federal law allow the cultivation and sale of industrial hemp. Since 2013, California has regulated the cultivation and sale of industrial hemp for both commercial and research purposes. (California Food and Agricultural Code, sections 81000-81011.) On January 1, 2019, the federal government decriminalized hemp by removing it from the list of Schedule 1 controlled substances under the Controlled Substances Act of 1972 and authorized an agricultural research pilot program for the growth, cultivation, and marketing of industrial hemp. (7 U.S.C.A., sections 1639o and 5940; and 21 U.S.C.A., section 802(16)(B).); and

WHEREAS, under California law, an individual or organization must register with the county agricultural commissioner to cultivate hemp. Recently, the California Department of Food and Agriculture and the County of Lake have made registration available. The County has not registered any individual yet, but the County did enact land use regulations for industrial hemp cultivation to be effective April 24, 2020; and

WHEREAS, the City of Clearlake has no regulations regarding the cultivation of industrial hemp. Subject to certain exceptions, the City prohibits uses of land that are not specifically listed in its zoning code. The Clearlake Municipal Code does not expressly allow the cultivation of industrial hemp; and

WHEREAS, the regulatory scheme for industrial hemp is changing. For example, under federal and California law, the definition for industrial hemp has already changed several times in the past five years. (7 U.S.C.A., section 5940 (2014 and 2018 versions); California Food and Agricultural, sections 81000(d) (2013, 2016, and 2018 versions)); and

WHEREAS, on October 12, 2019, Governor Newsom signed SB 153, which updates California law to take full advantage of the 2018 Farm Bill hemp provisions. However, SB 153 requires the California Secretary of the Department of Food and Agriculture, in consultation with the Governor and the Attorney General, to develop and submit a state plan to the United States Secretary of Agriculture, on or before May 1, 2020. The USDA has 60 days to approve or deny that plan which can be resubmitted if changes are required. Considering the volatility of hemp regulations, adoption of local regulations should await the completion of the California legislative process.

WHEREAS, further, the methods to distinguish and identify industrial hemp (the non-intoxicating Cannabis sativa L. plant) from cannabis (the psychotropic version of the plant) are also complex and evolving. Industrial hemp and cannabis are derivatives of the same plant, Cannabis sativa L. Currently, under California law, industrial hemp is largely distinguished from cannabis by the amount of tetrahydrocannabinol (THC), the psychoactive chemical in the plant. If the plant has less than 0.3% THC, it is categorized industrial hemp. As such, industrial hemp and cannabis may be difficult to distinguish without a chemical analysis for the presence of THC content. The federal Drug Enforcement Administration is in the process of seeking companies to develop test kits that can verify THC content at a cultivation site. There may be other ways to distinguish cannabis and from hemp through the physical characteristics of the plants. However, such expertise requires training and the investigation could be time consuming and labor intensive. This difficulty in distinguishing industrial hemp from cannabis plants may adversely affect the public health, safety, or welfare of the residents or visitors of the City of Clearlake because individuals may claim that cannabis plants are hemp plants thus thwarting enforcement efforts and causing an increase in crime.

WHEREAS, on April 16, 2020, the City Council of the City of Clearlake voted 5-0 to adopt an Urgency Ordinance No. 241-2020, placing a 45-day moratorium on the cultivation of industrial hemp to allow for the City Council to consider suitable land use regulations, if any, can be completed.

WHEREAS, on May 21, 2021, the City Council of the City of Clearlake voted 5-0 to adopt an extension of the Urgency Ordinance No. 243-2020, extending the moratorium by 10 months and 15 days until April 5th, 2021, on the cultivation of industrial hemp to allow for the City Council to consider suitable land use regulations, if any, can be completed.

WHEREAS, the Council desires to further extend the moratorium. Pursuant to California Government Code section 65858, subdivision (a) this interim ordinance prohibiting the cultivation of industrial hemp may be extended one additional year from April 5, 2021, to April 4, 2022.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF CLEARLAKE DOES ORDAIN AS FOLLOWS:

Section 1. Extension. The City Council of the City of Clearlake hereby extends Urgency Ordinance 241-2020, in its entirety, which thereby places a moratorium on the cultivation of industrial hemp for a period of one additional year from the end of the first extension, which thereby extends the moratorium to April 4, 2022.

Section 2. Immediate Effect. Consistent with Government Code Section 65858, this ordinance shall take effect immediately upon the expiration of Urgency Ordinance 243-2020 (April 5, 2021) and the existing provisions of the code previously affected by this Ordinance will continue in force unaffected upon the expiration of this time period consistent with Government Code Section 65858 or as amended during this time period by the Clearlake City Council. The ordinance may be extended further by one year pursuant to action of the City Council consistent with the requirements of California Government Code Section 65858.

SECTION 3. Severability. If any portion of this ordinance is found to be unenforceable, each such provision shall be severed, and all remaining portions of this ordinance shall be enforced to the maximum extent legally permissible.

SECTION 4. Certification. The City Clerk shall certify to the passage and adoption of this ordinance as required by law.


PASSED, APPROVED AND ADOPTED this 18th day of March, 2021 by the following vote:

AYES: COUNCILMEMBERS: Mayor Slooten, Vice Mayor Perdock, Councilmembers Overton, Claffey and Cremer
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
____________________________
Dirk Slooten, Mayor
ATTEST:

______________________________
Melissa Swanson, City Clerk


I, Melissa Swanson, City Clerk of Clearlake, do hereby certify that the foregoing urgency ordinance was introduced and adopted at a meeting thereof on the 18th day of March, 2021.



_______________________________
Melissa Swanson, City Clerk

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