COUNTY OF LAKE - File #: 25-10

• File #: 25-10
• Version: 1
• Type: Action Item
• Status: Agenda Ready
• File created: 12/31/2024
• In control: BOARD OF SUPERVISORS
• On agenda: 1/14/2025
• Title: 9:15 A.M. - Consideration of Appeal (AB 24-02) of Planning Commission’s Approval of Major Use Permit (UP 20-96), Highland Farms, LP/Autumn Karcey as applicant and Tom Lajcik, Margaux Kambara and Associates, as appellant; location: 7408, 7522, 7527, 7634, & 7746 Highland Springs Road and 7257 & 7357 Amber Ridge Road in Lakeport, CA. (APNs 007-006-27, 34, 35, 40, 41, and 007-057-01, 02)
• Sponsors: Community Development

Date	Ver.	Action By	Action	Result
1/14/2025	1	BOARD OF SUPERVISORS

MEMORANDUM

TO:                                          Lake County Board of Supervisors

FROM:                     Mireya Turner, Community Development Director

Mary Claybon, Senior Planner

DATE:                     January 14, 2025

SUBJECT:                     9:15 A.M. - Consideration of Appeal (AB 24-02) of Planning Commission’s Approval of Major Use Permit (UP 20-96), Highland Farms, LP/Autumn Karcey as applicant and Tom Lajcik, Margaux Kambara and Associates, as appellant; location: 7408, 7522, 7527, 7634, & 7746 Highland Springs Road and 7257 & 7357 Amber Ridge Road in Lakeport, CA. (APNs 007-006-27, 34, 35, 40, 41, and 007-057-01, 02)

Exhibits:

A.                     May 23, 2024, Planning Commission Staff Report with the following attachments:

1.                     Project Site Plans by Lake Co. Development (11/10/2023)

2.                     Draft Conditions of Approval (5/23/2024)

3.                     Farm Management Plan (amended 11/26/2023)

4.                     Draft Initial Study/Mitigated Negative Declaration (IS 20-116)

5.                     Hydrology Report by Summit Engineering, Inc. (11/12/2021)

6.                     Drought Management Plan

7.                     Water Availability Analysis by Summit Engineering, Inc. (1/20/2022)

8.                     Commercial Electric Service Calculation Analysis by Summit Engineering, Inc. (4/12/2021)

9.                     Combined Road Work and Culvert Volumes by Delve Engineering and Consulting (5/22/2021)

10.                     Geotechnical Report by Bauer Assoc, Inc. (12/10/2021)

11.                     Biological Assessment

12.                     Air Quality and GHG Models

13.                     Agency Comments

14.                     Tribal Comments

15.                     Public Comment

B.                     Planning Commission Minutes from May 23, 2024, Public Hearing

C.                     Appeal Application (AB 24-02)

D.                     Appellant Comments Submitted by Somach Simons & Dunn (7/26/24)

E.                     Applicant (Highland Farms, LP) Comments Submitted by Rutan & Tucker, LLP (7/19/2024)

F.                     Ordinance 3096; Public Lands

G.                     New Public Comments (including materials submitted on 10/11/2024 by the Applicant and Appellant)

H.                     New Agency Comments

I.                     Board of Supervisors Memorandum  for 8/13/2024 hearing (incorrectly dated 8/20/2024) and public comment received

J.                     Board of Supervisors Memorandum for 10/22/2024 hearing and public comment received

K.                     Revised Project Materials Submitted by Applicant on 11/12/2024

1.                     Project Site Plans

2.                     Farm Management Plan

3.                     Biological and Botanical Assessments

4.                     Hydrological Analysis

5.                     (1) and 5(2) Water Availability Technical Review and Analysis

6.                     Drought Management Plan

7.                     Commercial Electric Service Calculation Analysis

8.                     Geotechnical Report

9.                     (1) and 9(2) Dust Mitigation Letter and Primary Access Road Plans and Dust Mitigation  Control Measures

10.                     Air Quality and GHG Models

11.                     Wetland Delineation Report

I.                     EXECUTIVE SUMMARY

Below provides a summary of past actions taken by the Planning Commission and the Board of Supervisors related to Appeal (AB 24-02).

•                     On May 23, 2024, the Lake County Planning Commission adopted Mitigated Negative Declaration (IS 20-116) and approved a Major Use Permit (UP 20-96) for commercial cannabis cultivation of nineteen (19) A-Type 3 “Medium outdoor” licenses consisting of nineteen (19) acres of outdoor commercial cannabis canopy, two (2) A-Type 3B “Mixed-light” commercial cannabis canopy consisting of 34,404 square feet (sf), Type 4 Nursery, and a Type 13 B and C Distribution located at 7408, 7522, 7527, 7634, & 7746 Highland Springs Road and 7257 & 7357 Amber Ridge Road in Lakeport, CA. (APNs 007-006-27, 34, 35, 40, 41, and 007-057-01, 02). The May 23, 2024, Planning Commission Staff Report is included in Exhibit A and the meeting may be viewed online at: 

<https://lakecounty.granicus.com/player/clip/722?view_id=1&redirect=true>.

•                     On May 28, 2024, the appellants and Tom Lajcik, Margaux Kambara and Associates, filed an appeal (AB 24-02) of the Planning Commission’s May 23, 2024, decision to the Board of Supervisors In accordance with County of Lake Zoning Code Section 58.31. The appeal hearing was scheduled for August 13, 2024. The Appeal application is included in Exhibit C.

•                     On August 13, 2024, the Board of Supervisors granted Staff’s request for a continuance of the appeal hearing to allow further review of additional materials submitted by the appellant on July 26, 2024, and to allow further review of the project and environmental analysis related to issues raised within the materials received. The Board heard public comment related to the continuance of the item only and granted a continuance of the hearing to October 22, 2024. The August 13, 2024, Board memo (inadvertently incorrectly dated August 20) and public comment received is included in Exhibit I. The meeting may be viewed online at:

                      <https://lakecounty.granicus.com/player/clip/737?view_id=1&redirect=true>.

•                     On October 11, 2024, the appellant and the applicant submitted additional materials for the October 22, 2024, hearing. Materials submitted by the applicant (Exhibit E and G) included revised site plans and scope/phasing of the project, plans for road improvements, an updated biological memorandum, and an updated hydrological analysis. Materials submitted by the appellant (Exhibits D and G) included additional questions and points raised related to the project and CEQA analysis.

•                     On October 22, 2024, the Board of Supervisors granted Staff’s request for an additional continuance to review the aforementioned materials received on October 11, 2024, and to determine the appropriate procedural next steps for the project and related environmental analysis.  The Oct 22 Board Memo and public comment received is included in Exhibit J. The meeting may be viewed online at: <https://lakecounty.granicus.com/player/clip/747?view_id=1&redirect=true>. 

Since the October 22, 2024, hearing, Staff has received further clarification regarding access for the project; the California State Water Resource Quality Control Board has identified a shift in the waterways on-site; and Staff has received further clarification from County Counsel regarding the setback requirement from public lands, deeming the project inconsistent with the County’s Zoning Ordinance.

Additionally, substantive project related revisions and project documents were submitted on November 12, 2024 (included in Exhibit K) that necessitate the need for revision and recirculation under the California Environmental Quality Act (CEQA). As such, Staff recommends the project be remanded back to the Planning Commission for a determination of Major Use Permit (UP 20-96) following a recirculation of the revised project’s draft Initial Study (IS 20-116).

II.                     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 24-02) of the May 23, 2024, Planning Commission decision was filed by the appellants in a timely manner on May 28, 2024. In their application for Appeal (Exhibit C), the appellants provided specific areas on concern for the project stating, “CEQA and other legal violations. Additional comments submitted by the Appellant (Exhibit C) reiterate and expand upon these points. Points raised by the Appellant, as well as Staff’s responses to the issues are analyzed in detail within the August 13, 2024, Board memo included in Exhibit I.  For brevity, the below only includes discussion and analysis of new or clarified information since the October 22, 2024, Board memo was published.

1.                     Serpentine soils, other environmental violations.

Staff Response:

In the May 23, 2024, Planning Commission staff report and the August 13, 2024, Board memo, there was an inadvertent error in the identification of an access easement on APNs 007-043-01 and 007-043-04. This designation is incorrect; the area in question is, in fact, an unrestricted access road designated for public use within the Highland Springs Recreation Area. The project parcels benefit from unrestricted public access via the existing roadway on APNs 007-043-01 and 007-043-04, which is classified as Open Land and is owned by the County of Lake. The access point has been utilized to service the existing residence on project parcels (APNs 007-006-40 and 41) for a period of no less than thirty years, as stated by the applicant.

The Department of Public Works has submitted a new comment for the record regarding an additional condition of approval. Autumn Karcey/Highland Farms, LP is required to enter into a license agreement to construct and maintain the road extending through 3600 E Highland Springs Road and 7303 Highland Springs Road (APNs 007-043-01 and 007-043-04). This agreement must be satisfactory to the County of Lake and finalized prior to the issuance of a building permit. The Department of Water Resources and County Counsel will be responsible for drafting the licensing agreement.

A section of the access road leading to Highland Springs Road includes mapped serpentine soils for approximately 460 feet (see Figure 1 below). While improvements to the interior roadways of the project parcels are necessary to comply with Public Resource Code Sections 4290 and 4291, Road Standards, the applicant is not required to maintain the offsite unrestricted public access roadway. The applicant proposes enhancements to this section of the unrestricted public access roadway with serpentine soils, in line with the recommendations from the Department of Public Works that call for driveway upgrades in accordance with the standards outlined in Road Standards Std. No. 231-D to facilitate commercial access from Highland Springs Road to the unrestricted public access road. (Exhibit #A13).

The Lake County Air Quality Management District (LCAQMD) requires a Serpentine Dust Control Plan / Asbestos Dust Mitigation Plan for construction within an area that contains serpentine soil, in this case on the unrestricted access road, due to the commercial driveway upgrade. In compliance with these requirements, the applicant has submitted a Serpentine Dust Control Plan / Asbestos Dust Mitigation Plan (see Exhibit G). Recirculation of the CEQA Draft Initial Study/Mitigated Negative Declaration will be required to address this section of the unrestricted public access roadway with serpentine soils, in line with the recommendations from the Department of Public Works and requirements from Lake County Air Quality Management District.

2.                     Traffic cumulative effect on Highland Springs Road.

Staff Response:

The project properties are accessed from Highland Springs Road via an unrestricted public access roadway. The proposed project is anticipated to generate a maximum of 52 trips per day. The assessment of vehicle miles traveled (VMT) for the project was conducted in accordance with the guidelines set forth by the California Office of Planning and Research (OPR) in the Transportation Impacts (SB 743) CEQA Guidelines Update and Technical Advisory, 2018.

The OPR Technical Advisory establishes guidelines for identifying projects that are unlikely to have a significant impact on Vehicle Miles Traveled (VMT) and may be exempt from additional analysis. One criterion for exemption includes projects classified as small, which are defined as those generating fewer than 110 new vehicle trips per day on average. The OPR indicates that VMT calculations should be conducted based on a typical weekday and averaged over the course of the year to account for seasonal fluctuations. Given the proposed project is projected to generate less than the 110-trip screening threshold for VMT impacts as outlined in the OPR Technical Advisory, it can be concluded that the project will have a minimal transportation impact in relation to vehicle miles traveled.

During the Planning Commission hearing on May 23, 2024, Director Turner inquired about the condition and status of Highland Springs Road from the Department of Public Works. The response provided to the Planning Commission indicated that Highland Springs Road is a county-maintained road up to the county line. While there are narrow sections, it is not classified as a single-lane road. There are some areas with limited visibility, and caution is advised, especially on narrow, unpaved mountainous roads. The Department of Public Works is not aware of a high rate of accidents on this road. Additionally, comments from the Department of Public Works, Roads Division (refer to Exhibit A13), require the project to improve the driveway to meet commercial standards. Improvements are also necessary for the project parcels in accordance with the requirements outlined in Public Resource Code 4290 and 4291 Road Standards, as requested by the Fire Marshal.

Emergency access is available for project parcels 007-057-01, 007-057-02, and 007-006-27 via deeded public utility and access easement through Amber Ridge Court to Vernal Drive to Ridge Road, to Highland Springs Road (see Figure 2 below). However, this access point was not taken into account in the original project proposal’s Draft Initial Study and Mitigated Negative Declaration. Incorporating this access point also necessitated a revised biological assessment, a revised archaeological assessment, revised site plans, and all other relevant application documentation. Recirculation of the CEQA Draft Initial Study/Mitigated Negative Declaration will be required to address site access from Amber Ridge Court to Vernal Drive to Ridge Road, to Highland Springs Road.

3.                     Insufficient Hydrology and Biology Report

Staff Response:

A summary of the documents and analyses prepared by qualified professionals for the project is outlined below.

Hydrological Report: The applicant has submitted a Water Use Analysis (Analysis) conducted by Sumit Engineering, considering the size of the cultivation areas. The Analysis (Exhibit A7) assesses the proposed use based on the cultivation areas with rows and aisles, rather than the actual plant canopy. As per the Analysis, the total estimated water demand for the Facility is 22.7 acre-feet per year, which accounts for 36% of the conservatively estimated 62.5 acre-feet per year of groundwater recharge potential for the project site. The water demand of the Facility does not exceed its estimated precipitation recharge capability.

Biological Assessments and Site Surveys: The applicant had provided a collection of five Biological Assessments for the project site. As analyzed in the circulated Initial Study, the project could result in impacts to sensitive plant and animal species if not properly mitigated. The biological surveys include several protective measures that have been incorporated into the Initial Study/Mitigated Negative Declaration (Exhibit A4) as Biological Resources Mitigation Measures BIO-1 through BIO-3. These mitigations are reiterated within the project’s Conditions of Approval (Exhibit A2). Since the May 23, 2024, Planning Commission hearing, two additional surveys have been conducted for the section of the unrestricted public access roadway containing serpentine soils on APNs 007-043-01 and 007-043-04 as well as the public utility and access easement on APN 007-057-01 to Amber Ridge Court.

The California State Water Resources Quality Control Board (WRQCB) has identified a shift in the waterways from the time of application submission to current, requiring a revision to the project’s site plans to which the applicant has provided (Exhibit H). The WRQCB has jurisdiction over ephemeral drainages and isolated wetlands. The site does contain drainages and a wetland. The applicant has provided new site plans for the project to increases setbacks from the cultivation area to watercourses on site. The project’s revised site plans have not been analyzed in the CEQA Initial Study. Mitigation Measure BIO-1 identifies protective measures for seasonal wetlands, including a survey of the seasonal wetlands and watercourses with setbacks and buffers identified with high-visibility fencing or flagging. SWRQCB has provided Agency Comments (Exhibit A13) on the project and a California Department of Fish and Wildlife (CDFW) Lake/Streambed Alteration Agreement (LSAA) was applied for by the applicant.

4.                     Proximity to Public Lands

Staff Response: The Highland Springs Recreation Area is adjacent to the project site. At the Planning Commission hearing, trail maps available online for Highland Springs were reviewed by staff and staff confirmed the closest mapped trail, Quarry Trail listed as number 10 on the trail map was over 1,000 feet from the cultivation site. When Ordinance 3096 was adopted by the Lake County Board of Supervisors, discussion of the item was specific to actively used areas on public lands, i.e. actively used trails however, Ordinance 3096 (Exhibit E) states commercial cannabis cultivation is prohibited within 1,000 feet of the following areas or uses:

“v. Commercial Cannabis Cultivation Exclusion Areas Commercial cannabis cultivation is prohibited within 1000 feet of the following areas or uses ... c. Public lands, where, because of development or other actions, it is clear that the public is invited to use such locations as places of recreation and other destination activities, including but not limited to, hiking, bird-watching, equestrian activities, and camping. Additionally, all State and County parks are public lands."

Highland springs is owned by the Watershed Protection District as a Recreational Area. The entire property or properties together are owned, developed, and designed, for the public to use as a recreational space. The public may use it in its entirety for recreation including equestrian activities, camping, hiking, bird watching, frisbee golf, hunting, or other uses. While the Board may have had discussion with intent, County Counsel has interpreted the Ordinance as it reads. Not all of these uses are connected to a specific trail, and most can occur at any place of the property. This would require the project to have a 1000’ setback from the property line, not from the active trail as identified within the Figure 3 below.

The applicant has proposed increasing the setbacks from the property line, which would require an additional revision to the project’s site plans, hydrological analysis, and other documentation or potentially applying for a variance for reduced setbacks based on direction by the Board of Supervisors. Recirculation of the CEQA Draft Initial Study/Mitigated Negative Declaration will be required to address the revised project documentation including the potential for a variance proposal within the Land Use Section of the Initial Study.

III.                     RECOMMENDATION

Staff must analyze projects for conformance with existing federal, state, and local regulations. As summarized above, after further discussion with County Counsel, it has been determined that the project as approved on May 23, 2024, Planning Commission hearing did not meet all required regulations related to development. At the October 22, 2024, hearing, the Board of Supervisors provided direction for staff to review the multiple revised project documentation submissions. As a result of the substantial changes submitted by the applicant and the clarifications received from County Counsel deeming the project inconsistent with the County Zoning Code, Staff recommends the project be remanded back to the Planning Commission for a determination of Major Use Permit (UP 20-96) following a recirculation of the revised project’s draft Initial Study (IS 20-116). Findings for approval are not available at this time.

Staff recommends that the Board of Supervisors:

Staff recommends the Board of Supervisors remand the project back to the Planning Commission for reconsideration of Major Use Permit (UP 20-96), following a recirculation of the revised project’s draft Initial Study (IS 20-116).

FIGURE 1 - Mapped Serpentine Soils

Source: Lake County GIS

FIGURE 2 - Proposed (yellow) and Alternate (blue) Emergency Access

Source: Lake County GIS

Figure 3- Highland Springs Dedicated Trails for Public Use

Source: Highland Springs Trail Volunteers Group

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Recommendation: Remand the project back to the Planning Commission for reconsideration of Major Use Permit (UP 20-96), following a recirculation of the revised project’s draft Initial Study (IS 20-116).