Board Of Supervisors — Tuesday, April 1, 2025

TO: Board of Supervisors FROM: Mireya Turner, Community Development Director Mary Claybon, Senior Planner DATE: April 1, 2025 (Continued from March 25, 2025) SUBJECT: 10:00 A.M. - Consideration of Appeal (AB 24-05) of Planning Commission's Denial of Major Use Permit (UP 20-14), Nina Star Farms, LLC/ Nevelina Bogdanova, applicant and appellant; location: 23180 Shady Grove Road, Middletown (APN 014-006-16) Exhibits A. Staff Report from the December 12, 2024, Planning Commission hearing with the following attachments: 1. Project Site Plans (7/2023) 2. Draft Conditions of Approval 3. Property Management Plan (8/2023) 4. Initial Study/Mitigated Negative Declaration (8/6/2024) 5. Hydrology Report (9/6/2021) 6. Drought Management Plan (9/6/2021) 7. Biological Assessments (2/2/2020, 10/8/2024) 8. Electrical Load Calculations (8/4/2023) 9. Agency Comment 10. Tribal Comment 11. Public Comment B. Planning Commission Minutes from December 12, 2024, Public Hearing C. Appeal Application (AB 24-05) I. EXECUTIVE SUMMARY On December 12, 2024, the Lake County Planning Commission denied a Major Use Permit (UP 20-14) request for commercial cannabis cultivation consisting of two (2) A-Type 3B licenses for 37,446 square feet (sf) of mixed-light canopy within a 48,529 sf cultivation area and an A-Type 13 Distributor, Self-Distribution, transport only license. At the December 12 hearing, the Planning Commission noted issues related to siting of the proposed project and expressed the position that the project did not fit the character of the neighborhood; the Planning Commission denied the project on a 4-0 vote, with one commissioner absent. The Planning Commission staff report and associated attachments are included as Exhibit A; the minutes of the meeting are included as Exhibit B. The meeting may be viewed online at: Planning Commission on 2024-12-12 9:00 AM - In accordance with the Lake County Code, Zoning Ordinance Article 58, Section 21-58 subsection 58.31, the applicant filed an appeal (AB 24-01) of the Planning Commission's decision on December 18, 2024. The appeal application is included in Exhibit C. There was no new information presented at the Planning Commission hearing that identified inconsistencies between the project (as conditioned) and the County Code, or information resulting in Staff being unable to make the findings required for a major use permit. As such, Staff's original recommendation for approval of the project remains. Staff recommend the Board of Supervisors uphold the appeal (AB 24-05), reversing the Planning Commission's denial of the project and approve Initial Study (IS 20-16) and Use Permit (UP 20-14). II. PROJECT SUMMARY Setting. The site is accessed via dirt and gravel driveway that branches to the east of Shady Grove Road, parallel to State Highway 29 in Middletown. Public Resource Codes (PRC) Sections 4290 and 4291 for Road Standards shall be applied to this project due to the permanent structures in which cultivation activities would occur. Internal gates and roadways are designed to meet CALFIRE requirements including adequate road standards and width requirements for fire equipment access and a turnaround for emergency vehicles. For the purpose of establishing minimum wildfire protection standards in conjunction with building, construction and development in the State Responsibility Area, the roadway will include widening from the existing 14' to 20' of unobstructed horizontal clearance with a grading permit following approval of the major use permit and installing turnouts for emergency vehicle access. In addition, signage and building numbering; private water supply reserves for emergency fire use utilizing steel/fiberglass/or concrete water storage; and 100' of defensible space around structures are required. Proposed Project. The applicant has indicated that construction would occur over a five-week period. Construction would require grading of the roadway, installation of identified parking spaces, and preparation of cultivation-related structures. All construction activities, including engine warm-up, will occur from 9:00 a.m. to 6:00 p.m. Monday through Saturday and shall adhere to all noise requirements in adherence to the Lake County Code. Additionally, all equipment will be maintained and operated to all federal, state, and local agency requirements to minimize spillage or leakage of hazardous materials. During construction, no vehicles will be left idling. Vehicles will only be parked on existing roadways/driveways or in previously disturbed areas. Water from the approved onsite well will be used to mitigate the generation of dust during development with a water truck. Proposed uses include 37,446 sf of mixed-light canopy, within a total of eight greenhouses. Specifically, the greenhouses will consist of five (5) structures measuring 90' x 60', one (1) structure measuring 90' x 104', and one (1) structure measuring 30' x 104'. Additionally, immature plant propagation will be carried out in one (1) greenhouse measuring 103' x 30'. The greenhouses will be constructed using galvanized steel frames, covered with 6-millimeter polyethylene film for blackout purposes. Artificial lighting for the mixed-light cultivation will be implemented at a maximum intensity of 25 watts per square foot. The proposed greenhouses will be equipped with a black plastic film to ensure that light does not escape during the use of artificial lighting. The location of the ancillary buildings adheres to the setbacks of Scenic Combining District as identified by the project's site plans (Exhibit A1) Cultivation operations will utilize water sourced from existing groundwater well, which has a capacity of 16 gallons per minute. To ensure efficient use of water resources, a drip irrigation system is proposed. The applicant has provided a Hydrological Analysis (Exhibit A5) and a Drought Management Plan (Exhibit 6) outlining water conservation strategies in the event of a declared drought emergency. There are two (2) agricultural ponds and two (2) existing stream crossings on-site. One stream crossing is a metal span bridge across Saint Helena Creek that is not proposed as an access point for the project. The other water crossing is a triple-barrel corrugated metal culvert crossing for the Class II watercourse. The culvert appears stable but likely does not meet current design specifications for withstanding 100-year floods and will need to be replaced in alignment with a California Department of Fish and Wildlife (CDFW) Lake Streambed Alteration Agreement (LSAA). Cultivation activities will occur in a relatively flat section of the parcel, which is situated within flood zones X and AE. Certain areas of the site located in the AE flood zone, as illustrated in Figure 3 below, will necessitate elevation certificates at the building permit stage of development. Mixed light cultivation includes artificial lighting of up to 25 watts per square foot of canopy area. The Electrical Load Calculations prepared by DTN Engineering, dated August 3, 2023, identifies the project would utilize 3,300 amps. All electricity needed for the project will be supplied by the existing PG&E connection. According to the Property Management Plan, Nina Star Farms will require an electrical upgrade on the property. The electrical upgrade is to be applied for along with building permits for the processing facility and greenhouses after approval of the major use permit. The project is proposing a backup generator to be used in emergency situations when electricity cannot be supplied by PG&E. The proposed use would not include wasteful, inefficient, or unnecessary consumption of energy resources during Project development or operation. All energy usage shall adhere to all Federal, State, and local agency requirements regarding energy use. Immature plants will be sourced from a permitted off-site nursery or propagated on-site in the immature plant mixed-light greenhouse. Distribution activities for self-transport will be carried out from the processing facility and will consist of up to one delivery or pickup per day. Subsequently, the cannabis will be transported and transferred to a licensed distribution facility. FIGURE 1 - VICINITY MAP FIGURE 2 - SITE PLANS Environmental Review. Notification of the Project was sent to the following Tribes: Big Valley Rancheria, Cortina Rancheria, Elem Colony, Hopland Band of Pomo Indians, Koi Nation, Mishewal-Wappo, Middletown Rancheria, Redwood Valley Rancheria, Robinson Rancheria, Scotts Valley Band of Pomo Indians, Habematolel Pomo of Upper Lake Tribe, and Yocha Dehe Wintun Nation on February 18, 2020. On February 19, 2020, Middletown Rancheria responded stating the project is located within the aboriginal territory of Tribe. The Middletown Rancheria Tribal Historic Preservation Department stated they are, "okay with the project moving forward under the mutual understanding that the Tribe is contacted should there be any significant inadvertent discoveries." On August 10, 2022, Yocha Dehe Wintun Nation sent comments deferring to Middletown Rancheria. Tribal Consultation was not requested. Tribal Comments are Exhibit A10 to the Planning Commission Staff Report. The California Environmental Quality Act (CEQA) requires agencies to evaluate the environmental implications of land use actions. A Draft Initial Study and Mitigated Negative Declaration (Exhibit A 4 of the Planning Commission Staff Report in Exhibit A) was prepared and circulated for public review in compliance with CEQA from 11/29/2023 to 12/28/2023. The Initial Study found all impacts to be less than significant with implementation of mitigation measures related to Aesthetics, Air Quality, Biological Resources, Cultural/Tribal Resources, Geology/Soils and Noise, Hazards & Hazardous Materials, Hydrology/Water Quality, Noise, Tribal Cultural Resources, Utilities and Services, and Wildfire. III. BASIS FOR THE DENIAL Although the Planning Commission did not refute the fact that the proposed project meets all of the codified siting requirements within the Lake County Zoning Ordinance and State cannabis regulations, the Planning Commission noted a number of issues related to siting of the proposed project. Issues raised were not formalized within the motion for denial, but Staff summarizes the main points raised by the Planning Commission below. 1. Location is not consistent with the neighborhood character along State Highway 29 at Shady Grove Road 2. Impacts to St. Helena Creek 3. Potential Code Enforcement issues on separate parcel (held under identical ownership) IV. APPEAL ANALYSIS Per Lake County Zoning Ordinance Section 58.31, decisions of the Planning Commission may be appealed by an interested party within seven (7) calendar days of the decision and shall be accompanied by a written statement setting forth the grounds upon which the appellant asserts there was an error or abuse of discretion by the Planning Commission. In this case, the appeal (AB 24-05) of December 12, 2024, Planning Commission decision was filed by the applicant in a timely manner on December 18, 2024. The applicant/appellant states, "...Planning Commission Decision based on false and defamatory statements made by individuals from the public, rather than the substantial evidence provided..." as the reason for the appeal. The appeal application (AB 24-05) is included in Exhibit C. Staff's response to each of the issues raised by the Planning Commission is provided below. 1. Location is not consistent with the neighborhood character along Highway 29 at Shady Grove Road Staff Response: Under Article 27.13(at), commercial cannabis cultivation is allowable upon obtaining a major use permit under a zoning designation for Rural Lands and Agriculture. Cannabis cultivation is allowed in certain areas within Lake County upon issuance of a major or minor use permit depending on the project's size and characteristics of the site. The cultivation of cannabis is similar to an agricultural use and would take place on the property. The addition of eight greenhouses, a processing facility, a storage shed, four 5,000-gallon water storage tanks, and 6'10" perimeter fencing would support the use and is not considered a conversion of the land. The applicant meets all development standards under Article 5 with further restrictions under Article 27.13(at) regarding minimum setback requirements. In this case, the property is located on a property with base zoning of Rural Lands - Agriculture - Floodway Fringe Combining - Floodway Combining - Scenic Combining - Waterway Combining. The property is not located within an Exclusion Area and is in an area that is characterized by agricultural uses, animal grazing and rural residential development. The project has been strategically developed to ensure that the ancillary structures for cannabis cultivation are situated outside of the Scenic Corridor within the Scenic Combing District. In alignment with this requirement, a setback of 500 feet from the roadway has been established. The project meets all setbacks and development standards related to compatible uses. Therefore, the project would not be considered a non-compatible use. 2. Impacts to St. Helena Creek Staff Response: The County Code requires a 150-foot setback from Class I water courses and a 100-foot setback from Class II and III watercourses. The Biological Assessment by Pinecrest Engineering (2/2/2020) states there are several unnamed and one named watercourse on site. A Class I perennial reach of St. Helena Creek and riparian corridor divides the parcel, flowing north through the middle of the property. The riparian corridor is well developed and stable. The unnamed seasonal Class II watercourse flows north through the western part of the parcel. Several Class III watercourses are also identified. On the western portion of the parcel there are two existing stock ponds that are connected by a vegetative swale. There is some wetland vegetation surrounding the stock ponds and swale. One hundred foot setbacks have been identified in the site plans (Exhibit A1). Activities are largely proposed to be limited to existing disturbed areas and will observe all required setbacks from jurisdictional watercourses. There are no vernal pools or serpentine outcrops that possess a high likelihood of containing special-status plant species in the proposed cultivation areas. While the bridge crossing on Saint Helena Creek provides access to the eastern side of the parcel, the project is accessed via Shady Grove Road and not accessed by the bridge. 3. Potential Code Enforcement issues on separate parcel (held under identical ownership) Staff Response: Land use is site-specific. Code Enforcement records for this site have been addressed. Concerns brought forward by neighbors were for an adjacent parcel, not the project parcel. Neighbors stated California Department of Fish and Wildlife (CDFW) had investigated the site, however no documentation has been provided to support the claim. Additionally, CDFW was notified of this project during Agency Review and no adverse commentary was received. The project was applied for on February 5, 2020. Staff visited the site on December 15, 2023. At that time several items for demolition and site cleanup were identified. The Planning Division and Build Safety Division staff worked closely with the applicant and project consultant for a demolition permit identified as BLD24-00488 for removal of an out-of-service hot tub, proper removal of electrical installation serving the hot tub, removal of two trailers by a waste hauling company, and clearing of garbage and rubbish. The building permit was finaled by a Building Safety Division Building Inspector on July 15, 2024, following verification of site maintenance. Please refer to figures within the December 12, 2024, Planning Commission Staff Report. Conclusion. Community Development Department staff must analyze projects for conformance with existing Lake County Code requirements and regulations. As summarized above and discussed in detail throughout the December 12, 2024, Planning Commission Staff Report (and associated documents), the project meets all required regulations related to development and siting, and is also consistent with the Lake County General Plan and Middletown Area Plan. Staff recommends the Board of Supervisors uphold the appeal, reversing the Planning Commission's denial of the project, and approve Use Permit (UP 20-14) and Initial Study (IS 20-16). Findings for approval are provided below, and conditions of approval are included in Exhibit A2. V. MAJOR USE PERMIT FINDINGS FOR APPROVAL The Review Authority shall only approve or conditionally approve a Major Use Permit (LCZO Section 51.4, Major Use Permits) if all of the following findings are made: 1. That the establishment, maintenance, or operation of the use applied for will not under the circumstances of the particular case, be detrimental to the health, safety, morals, comfort and general welfare of the persons residing or working in the neighborhood of such proposed use or be detrimental to property and improvements in the neighborhood or the general welfare of the County. Commercial cannabis cultivation is a permitted use in the "AG" Agricultural and "RL" Rural Lands zoning upon issuance of a Major Use Permit pursuant to Article 27, Sec. 21-27, Sec. 27.11 Table B of the Lake County Zoning Ordinance. The project scope complies with the minimum regulatory requirements set by the local ordinances to address the health, safety, morals, comforts, and general welfare of those working or residing near the proposed use. Prior to constructing any type of structure(s), the applicant shall obtain the necessary permits and licenses from the appropriate federal, state, and/or local government agencies. Additionally, the CDD would conduct annual compliance monitoring inspections during the cultivation season to ensure compliance with the County's ordinances, the approved Property Management Plan, mitigation measures, and conditions of approval. 2. That the site for the project is adequate in size, shape, location, and physical characteristics to accommodate the type of use and level of development proposed. The proposal includes 37,446 sf of outdoor canopy area located within 48,529 sf cultivation area. The location and size of the project site comply with the local ordinance requirements for use and setbacks. The Lake County Zoning Ordinance allows type 1, 2, 3, and 4 cultivation operations on Agricultural- and Rural Lands-zoned land, and the subject parcel is approximately 44 acres in size, large enough to enable the cultivation area proposed. 3. That the streets, highways and pedestrian facilities are reasonably adequate to safely accommodate the specific proposed use. The site is served by a private driveway which is accessed off Shady Grove Road. Additionally, per the Public Resource Codes (PRC) Sections 4290 and 4291 Road Standards, the project will need to meet the CALFIRE road standards. The applicant must comply with Lake County Code, Ch. 22 and California Building Code prior to construction of any structures. Therefore, the project has adequate access to accommodate the specific use and will be required to maintain and improve the access to be compliant with PRC 4290 and 4291. 4. That there are adequate public or private services, including but not limited to fire protection, water supply, sewage disposal, and police protection to serve the project. The project site will utilize onsite groundwater well. Additionally, the project parcel has adequate emergency service protection through the Lake County Sheriff's Office, and the Lake County Protection District. The applicant is required to adhere to all applicable local, state, and federal regulations, mitigation measures, and conditions of approval intended to ensure adequate services and maintain safety at the site. This application was routed to all of the affected public and private service providers (including Special Districts, Environmental Health, PG&E, and all area Tribal Agencies), and there are adequate public utilities and services available to the site. 5. That the project is in conformance with the applicable provisions and policies of this Code, the General Plan and any approved zoning or land use plan. The cultivation of commercial cannabis is a permitted use within the Agricultural and Rural Lands zoning district upon securing a Major Use Permit according to Article 27 of the Lake County Zoning Ordinance. Additionally, the Lake County General Plan does not have any provisions specifically for commercial cannabis, but both the General Plan and the Middletown Area Plan have provisions for economic development, water resources, agricultural resources, and land use compatibility. Additionally, the subject property complies with the minimum setbacks and development standards. 6. That no violation of Chapters 5, 17, 21, 23 or 26 of the Lake County Code currently exists on the property, unless the purpose of the permit is to correct the violation, or the permit relates to a portion of the property which is sufficiently separate and apart from the portion of the property in violation so as not to be affected by the violation from a public health, safety or general welfare basis. There are no violations of Chapters 5, 7, 34, 35, 36, or 37 of the Lake County Code on this property. The project was applied for on February 5, 2020. Staff visited the site on December 15, 2023. At that time several items for demolition and site cleanup were identified. The Planning Division and Build Safety Division staff worked closely with the applicant and project consultant for a demolition permit (BLD24-00488) for removal of an out of service above ground hot tub, proper removal of electrical installation serving the hot tub, removal of trailer structures by a waste hauling company, and clearing of garbage and rubbish. No violations of the County Code exist on site. 7. The proposed use complies with all development standards described in Chapter 21, Article 27, Section 1.i. The proposed use complies with all development standards described in Chapter 21, Article 27, Section 1.i, including minimum lot size, setbacks from property lines and off-site residences, and fence height. 8. The applicant is qualified to make the application described in Chapter 21, Article 27, Section 1.ii.(g). The applicant is qualified to make the application described in Chapter 21, Article 27, Section 1.ii.(g), as the applicant complies with background clearance requirements. 9. The application complies with the qualifications for a permit described in Chapter 21, Article 27, Section 1.ii.(i). The application documentation complies with the qualifications for a permit described in Chapter 21, Article 27, Section 1.ii.(i). VI. RECOMMENDATION Staff recommends that the Board of Supervisors: Approve the Appeal (AB 24-05), overturning the Planning Commission's denial of Major Use Permit (UP 20-14) and approve Initial Study (IS 20-16), subject to the findings in the Memorandum dated March 25, 2025, and Conditions of Approval in Exhibit A2. Sample Motions: Initial Study (IS 20-16) Approval I move that the Board of Supervisors find that the proposed Major Use Permit (UP 20-14) for Nina Star Farms (Nina Star LLC) for the property located at 23180 Shady Grove Road, Middletown, APN: 014-006-16 would not have a significant impact on the environment and adopt Mitigated Negative Declaration (IS 20-16), determining that all impacts can be mitigated to 'less than significant' through the implementation of the mitigation measures within the Mitigated Negative Declaration (IS 20-16), subject to the findings in the Memorandum dated March 25, 2025, and Conditions of Approval in Exhibit A2. Appeal Approval (AB 24-05) I move that the Board of Supervisors grant Appeal AB 24-05, in concept, and direct Staff to prepare Draft Findings of Fact.