HomeMy WebLinkAbout40511
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Ordinance No. 40511
AN ORDINANCE OF THE COUNTY OF BUTTS
ADDING ARTICLE I, ENTITLED "RESTRICTIONS ON CULTIVATION OF
MEDICAL MARIJUANA," OF CHAPTER 34A, ENTITLED "MEDICAL MARIJUANA
CULTIVATION,"
OF THE BUTTE COUNTY CODS
The Board of Supervisors of the County of Butte ordains as
follows:
Section 1. Chapter 34A is added to the Butte County Code as
(follows:
(CHAPTER 34A MEDICAL MARIJUANA CULTIVATION REGULATION
34A-1 Authority and Title. Pursuant to the authority granted
by Article XT, section 7 of the California Constitution, Health
and Safety Code sections 11362.83 anal 11362.768{f), and
Government Code section 25845, the Board of Supervisors does
enact this Chapter, which shall be known and may be cited as the
"Butte County Medical Marijuana Cultivation Ordinance."
34A-2 Findings and Purpose.
(a) In 1996, the voters of the State of California approved
Proposition 215 (codified as California Health and Safety Code
section 11362.5, and entitled "The Compassionate Use Act of
1996") .
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~ (b}
The intent of Proposition 215 was to enable persons who
are in need of marijuana for medical purposes to use it without
fear of criminal prosecution under limited, specified
circumstances. The Proposition further provides that "nothing
in this section shall be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers
others, or to condone the diversion of marijuana for non-medical
purposes." The ballot arguments supporting Proposition 2151
expressly acknowledged that "Proposition 215 does not allow
unlimited quantities of marijuana to be grown anywhere."
(c) In 2004, the Legislature enacted Senate Bill 420 (codified
as California Health and Safety Code sections 11362.7 et seq.)
to clarify the scope of Proposition 215, and to provide
qualifying patients and primary caregivers who collectively or
cooperatively cultivate marijuana for medical purposes with a
limited defense to certain specified State criminal statutes.
(d) Health and Safety Code section 11362.83 expressly allows
Cities and Counties to adopt and enforce ordinances that are
consistent with Senate Bill 420.
(e) The Federal Controlled Substances Act, 21 U.S.C. §~ 801 et
seq., classifies marijuana as a Schedule I Drug, which is
defined as a drug or other substance that has a high potential
for abuse, that has no currently accepted medical use in
treatment in the United States, and that has not been accepted
as safe for use under medical supervision. The Federal
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Controlled Substances Act makes it unlawful, under federal law,
for any person to cultivate, manufacture, distribute or
dispense, or possess with intent to manufacture, distribute or
dispense, marijuana. The Federal Controlled Substances Act,,
contains no exemption for the cultivation, manufacture,
distribution, dispensation, or possession of marijuana for
medical purposes.
(f) The County's geographic and climatic conditions, which
include dense forested areas receiving substantial
precipitation, along with the sparse population in many areas of
the County, provide conditions that are favorable to outdoor
marijuana cultivation. Outdoor marijuana growers can achieve a
high per-plant yield because of the County's favorable growing
conditions. The federal Drug Enforcement Administration reports
that various types of marijuana plants under various planting
conditions may yield averages of 236 grams, or about one-half
pound, to 846 grams, or nearly two pounds. Based on Butte
County Sheriff's seizures, yields in Butte County have tended to
be beyond this range with three to four pounds of dried "bud"
per plant being common. The "street value" of a single cannabis
plant is substantial. Pound prices for domestically produced
high-grade cannabis sold illegally within Northern California
can range between $1,500 to $3,000. A single marijuana plant
cultivated within the County can thus easily yield $4,000 or
more in salable marijuana.
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(g) Proposition 215 and Senate Bill 420 primarily address the
criminal law, providing qualifying patients and primary
caregivers with limited immunity from state criminal prosecution
under certain identified statutes. Neither Proposition 215 nor
Senate Bill 420, nor the Attorney General's August 2008
Guidelines for the Security and Non-Diversion of Marijuana Grown
for Medical Use adopted pursuant to Senate Bill 420, provides
comprehensive civil regulation of premises used for marijuana
cultivation. The unregulated cultivation of marijuana in the
unincorporated area of Butte County can adversely affect the
health, safety, and well-being of the County, its residents and
environment. Comprehensive civil regulation of premises used
for marijuana cultivation is proper and necessary to avoid the
risks of criminal activity, degradation of the natural
environment, malodorous smells, and indoor electrical fire
hazards that may result from unregulated marijuana cultivation,
and that are especially significant if the amount of marijuana
cultivated on a single premises is not regulated and substantial
amounts of marijuana are thereby allowed to be concentrated in
one place.
(h) Cultivation of marijuana at locations or premises within
six hundred {600} feet of school bus stops or one thousand
{1,000} feet of schools, school evacuation sites, churches,
parks, child care centers, or youth-oriented facilities creates
unique risks that the marijuana plants may be observed by
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Iljuveniles, and therefore be especially vulnerable to theft or
recreational consumption by juveniles. Further, the potential
for criminal activities associated with marijuana cultivation in
such locations poses heightened risks that juveniles will be
involved or endangered, therefore, cultivation of any amount of
marijuana in such locations or premises is especially hazardous
to public safety and welfare, and to the protection of children
and the persons} cultivating the marijuana plants.
(i) Public meetings regarding previous cultivation ordinances
lwere well-attended by hundreds of Butte County residents. The
majority of those present spoke out against the adoption of the
proposed ordinance, Ordinance 4029. However, many residents who
live on smaller parcels in more densely populated areas
indicated that during the marijuana cultivation season, the
overpowering unpleasant smell of marijuana resulted in their
inability to use their yards and required them to keep windows
and doors shut in the stifling summer heat. Residents stated
that they could not invite friends to their home to visit,'.
barbecue outdoors or even allow their children to play in the',
backyard. Other residents indicated that the use of a swamp''
cooler during the summer months would actually result in the'
stench of marijuana being sucked into the residence. Adults and'
children with respiratory problems were particularly affected.''
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Residents reported that marijuana grown in residential backyards
results in an invitation to criminal activity for persons who
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would steal marijuana plants out of backyards. Some marijuana
growers would live in a tent in their backyard, carrying
firearms and utilizing guard dogs to protect their marijuana
plants. Residents reported they were uncomfortable allowing
their children to play outside in their neighborhood due to such
dangerous activity. Cultivators of medical marijuana stated
that they would not grow medical marijuana at their own
residence to protect their children. For this reason, the
growth of medical marijuana on smaller parcels is especially
dangerous to the community, particularly children.
(j) As recognized by the Attorney General's August 2008
Gu.i.de.~ines for the Security and Non--Diversion of Marijuana Grown
for Medical Use, the cultivation or other concentration of
marijuana in any location or premises without adequate security
increases the risk that surrounding homes or businesses may be
negatively impacted by nuisance activity such as loitering or
crime. The Butte County District Attorney's Office has
indicated that there has been an increase in crime/felonies',
involving marijuana. The Butte County Sheriff's Office has
indicated that over 150 calls for service in the past year have
involved marijuana, including assaults and an attempted.
(homicide.
(k) Tt is the purpose and intent of this Chapter to implement
State law by providing a means for regulating the cultivation of
medical marijuana in a manner that is consistent with State law
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hand which balances the needs of medical patients and their
caregivers and promotes the health, safety, and welfare of the
residents and businesses within the unincorporated territory of
the County of Butte. This Chapter is intended to be consistent
with Proposition 215 and Senate Bill 420, and towards that end,
is not intended to prohibit persons from individually,
collectively, or cooperatively exercising any right otherwise
granted by State law. Rather, the intent and purpose of this
Chapter is to establish reasonable regulations upon the manner,
in which marijuana may be cultivated, including restrictions on'
the amount of marijuana that may be individually, collectively,
or cooperatively cultivated in any location or premises, in
order to protect the public health, safety, welfare and
environment in Butte County.
(1) The limited right of qualified patients and their primary
caregivers under State law to cultivate marijuana plants for
medical purposes does not confer the right to create or maintain
a public nuisance. By adopting the regulations contained in
this Chapter, the County will achieve a significant reduction in
the aforementioned harms caused or threatened by the unregulated
cultivation of marijuana in the unincorporated area of Butte
County.
(m) The purpase of this Ordinance is to provide a structure for
a complaint-driven civil process to remedy nuisances related to
medical marijuana cultivation.
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(n) The Board of Supervisors adopted Ordinance 4029 on May 24,
2011. A successful referendum campaign was conducted against
Ordinance 4029, which resulted in Ordinance 4029 being placed on
the ballot for the regular County election held on June 5, 2012.
At the election, Butte County voters failed to approve Ordinance
4029. By adopting this Chapter, the Board of Supervisors
intends to reach a compromise between the interests of qualified
patients who need access to medical marijuana and those who are
adversely affected by its cultivation.
(o) Nothing in this Chapter shall be construed to allow the use
of marijuana for non-medical purposes, or allow any activity
relating to the cultivation, distribution, or consumption of
marijuana that is otherwise illegal under State or federal law.
No provision of this Chapter shall be deemed a defense or
immunity to any action brought against any person by the Butte
County District Attorney, the Attorney General of State of
California, or the United States of America.
34A-3 Definitions.
Except where the context otherwise requires, the following
definitions shall govern the construction of this Chapter:
(a) "Child Care Center" means any licensed child care center,
daycare center, or childcare home, or any preschool.
(b) "Church" means a structure or leased portion of a structure,
which is used primarily for religious worship and related
religious activities.
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(c) "Code Enforcement Officer" means any person employed by the',
County of Butte and appointed to the position of code',
enforcement officer, as established by Butte County Ordinance
lNumber 2552.
(d) "Cultivation" means the planting and growing of one or more
marijuana plants or any part thereof in any location, indoor or
outdoor, including from within a fully enclosed and secure
building.
{e) "Enforcing Officer" means the Code Enforcement Officer ar
his or her authorized deputies or designees, each of wham is
independently authorized to enforce this Chapter.
(f) "Fence" means a wall or a barrier connected by boards,
masonry, rails, panels, wire or any other materials approved by
the Department of Development Services for the purpose of
enclosing space or separating parcels of land. The term "fence"
does not include retaining wa11s.
{g) "Harvest" means the drying, processing, or storage of
marijuana which may only occur in a fully enclosed and secure
building.
(h) "Indoors" means within one {1) fully enclosed and secure
detached structure that complies with the California Building
Standards Cade (Title 24 California Code of Regulations), as
adopted by the County of Butte. The detached structure must be
secure against unauthorized entry, accessible only through one
or more lockable doors and may be constructed of any approved
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building materials, including glass, as long as the marijuana
being cultivated cannot be seen from any public right-of-way.
Any detached, fully-enclosed and secure structure used for the
cultivation of marijuana must have a ventilation and filtration
system installed that shall prevent marijuana plant odors from
exiting the interior of the structure. Such structure shall be
located in the rear yard area of a legal parcel or premises,
maintain the setbacks set forth in section 34A-$ and the area
surrounding the structure or back yard must be enclosed by a
solid fence at least six {6) feet in height. When this Chapter
requires that cultivation of marijuana occur indoors, the
harvest of such marijuana shall also be accomplished indoors.
{i} "Legal parcel" means any parcel of real property that may be
separately sold in compliance with the Subdivision Map Act
{Division 2 {commencing with Section 66410} of Title 7 of the
Government Code).
{j) "Marijuana plant" means any mature or immature marijuana
plant, or any marijuana seedling, unless otherwise specifically
provided herein. A "mature" marijuana plant is one whose sex
can be determined by visual inspection.
{k) "Medical marijuana collective" means qualified patients,
persons with valid identification cards, and the designated
primary caregivers of qualified patients who associate by
agreement, or form a cooperative in accordance with Section
12300 of the Corporations Code within the unincorporated area of
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the County in order to collectively or cooperatively cultivate
marijuana for medical purposes, as provided in Health and Safety
Code Section 11362.775. The term collective shall include
"cooperative" unless the context clearly indicates otherwise.
(1) "Outdoors" means any location that is not "indoors" within a
fully enclosed and secure structure as defined herein.
(m) "Parcel" means a "legal parcel" as defined herein.
{n) °Premises" means a single, legal parcel of property. Where
contiguous legal parcels are under common control or ownership,
cultivation will only be permitted on parcels that have a legal
residence and have met the requirements of Section 34A-6 and
134A-7.
{o) "Primary caregiver" means a "primary caregiver" as defined
in Health and Safety Code Section 11362.7{d).
{p) "Qualified patient" means a "qualified patient" as defined
in Health and Safety Code Section 11362.7(f).
{q) "Residential treatment facility" means a facility providing
for treatment of drug and alcohol dependency, including any
"sober living facility" run by treatment providers for the
benefit of transitional living.
{r) "School" means an institution of learning for minors,
whether public or private, offering a regular course of
instruction required by the California Education Code, or any
child or day care facility. This definition includes a nursery
school, kindergarten, elementary school, middle or junior high
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school, senior high school, or any special institution of
education, but it does not include a vocational or professional
institution of higher education, including a community or junior
college, college or university.
(s) "Schaal Bus Stop" means any location designated in
accordance with California Cade of Regulations, Title 13,
section 1238, to receive school buses, as defined in California
Vehicle Code section 233, or school pupil activity buses, as
defined in Vehicle Code section 546.
{t) "School Evacuation Site" means any location designated by
formal action of the governing body, Superintendent, or
principal of any school as a location to which juveniles are to
be evacuated to, or are to assemble at, in the event of an
emergency or other incident at the school.
(u? "Youth--oriented facility" means elementary school, middle
school, junior high school, high school, public park, and any
establishment that advertises in a manner that identifies the
establishment as catering to or providing services primarily
intended for minors, or the individuals who regularly patronize,
congregate or assemble at the establishment are predominantly
minors. This shall nat include a day care or preschool facility.
34A-4 Nuisance Declared; Cultivation Restrictions.
(a) The cultivation of more than the following total number of
marijuana plants, on any premises is hereby declared to be
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unlawful and a public nuisance that may be abated in accordance)
with this Chapter:
(1) If the premises is one-half {0.5) of an acre in size or
less, plants may be cultivated on the premises indoors only in a
detached structure no larger than one hundred twenty (120)
square feet in size;
(2) If the premises is greater than one-half (O.S) of an
acre in size but less than one and a half (1.5) acres in size,
no more than six (6} mature marijuana plants or twelve (12)
immature plants shall be cultivated on the premises. If both
mature and immature marijuana plants are cultivated on the
premises, there shall be no more than six (6) mature marijuana
plants and no more than twelve (12) total marijuana plants.
Plants may be cultivated indoors, outdoors or a combination of
both;
(3) If the premises is equal to or greater than one and a
half (1.5) acres in size but less than three (3) acres in size,
no more than eighteen {18) mature marijuana plants or thirty-six
{36) immature marijuana plants shall be cultivated on the
premises. If both mature and immature marijuana plants are
cultivated on the premises, there shall be no mare than eighteen
(18) mature marijuana plants and no more than thirty-six (36}
total marijuana plants. Plants may be cultivated indoors,
outdoors or a combination of both;
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(4) If the premises is equal to ar greater than three (3)
nacres in size but less than five (5) acres in size, no more than
twenty-four (24) mature marijuana plants or forty-eight (48)
immature marijuana plants shall be cultivated on the premises.
If both mature and immature marijuana plants are cultivated on
the premises, there shall be no more than twenty-four (24)
mature marijuana plants and no more than forty-eight (48) total
marijuana plants. Plants may be cultivated indoors, outdoors or
a combination of both;
(5) Tf the premises is equal to or greater than five (5}
acres in size but less than ten {10) acres in size, no more than
forty-eight (48} mature marijuana plants ar ninety-six (96}
immature marijuana plants shall be cultivated on the premises.
If both mature and immature marijuana plants are cultivated on
the premises, there shall be no more than forty-eight (48)
mature marijuana plants and no more than ninety-six (96) total
marijuana plants. Plants may be cultivated indoors, outdoors or
a combination of both;
(6) If the premises is equal to or greater than ten (10}
acres in size but less than twenty (20) acres in size, no more
than sixty-six (56) mature marijuana plants or ninety-nine (99)
immature marijuana plants shall be cultivated on the premises.
If both mature and immature marijuana plants are cultivated on
the premises, there shall be no more than sixty-six (66) mature
marijuana plants and no more than ninety nine (99) total
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marijuana plants. Plants may be cultivated indoors, outdoors orb
~a combination of both;
(7) Tf the premises is equal to or greater than twenty (20)
acres in size but less than forty {40} acres in size, no more
than seventy-two {72} mature marijuana plants or ninety-niza.e
(99) immature marijuana plants shall be cultivated on the
premises. Tf both mature and immature marijuana plants are
cultivated on the premises, there shall be no more than seventy-
two {72) mature marijuana plants and no more than ninety-nine
{99) total marijuana plants. Plants may be cultivated indoors,
outdoors, or a combination of both;
{8) If the premises is equal to or greater than forty (40)
acres in size, no more than ninety-nine {99) plants, whether
mature or immature, may be cultivated on the premises. Plants
may be cultivated indoors, outdoors, or a combination of both.
{b} The limitations of section 34A-4 (a} shall be imposed
regardless of the number of qualified patients or primary
caregivers residing at the premises or participating directly or
indirectly in the cultivation. Further, such limitations shall
be imposed notwithstanding any assertion that the persons(s)
cultivating marijuana are the primary caregiver (s ) for qualified
patients or that such persons (s) are collectively or
cooperatively cultivating marijuana. And further, all person{s)
cultivating marijuana on the premises or participating directly
or indirectly in the cultivation must be Butte County residents.
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~34A-5. Complaints.
Any person making a complaint relating to this Chapter must (a}
provide their name and address and (b) reside within one
thousand five hundred (1,500} feet of the property that is the
subject of the complaint {which shall be established at any
hearing authorized by this ordinance and kept confidential by in
camera disclosure}. Exceptions to the residency requirement in
this section will be made for school administrators, church
pastors, public park administrators, business owners and',
landlords when a complaint relates to a facility under their
control.
34A-6. Residency requirements.
(a) Persons engaging in cultivation of medical marijuana shall
meet the following requirements:
(1) Such person shall have resided in Butte County for at least
one (1) year prior to cultivating medical marijuana in Butte
County;
(2) As to the premises relating to the cultivation of medical
marijuana, such persons shall either {A) own the premises or (B}
have entered into a written lease with the actual owner of the
premises.
(b) Persons who are members of a medical marijuana collective
must be:
{1) a Butte County resident; or
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(2) an immediate family member or primary caregiver of a Butte
County resident. If a medical marijuana collective member is
directly involved in the cultivation of medical marijuana, such
member must be a resident of Butte County or an immediate family
member or primary caregiver of a Butte County resident.
34A-7 $nvironmental requirements.
(a) All persons engaging in the cultivation of medical
marijuana shall {1) have a legal water source on the premises,',
(2) not engage in unlawful or unpermitted surface drawing of
water for such cultivation and (3) not permit illegal discharges
of water from the premises.
(b) The premises where the cultivation of medical marijuana
takes place shall either be hooked up to a municipalities' sewer
system or have a Butte County inspected and approved sewage
disposal system.
(c1 Persons engaging in the cultivation and/or harvest of
medical marijuana shall use, dispose and store chemicals used in
such cultivation and/or harvest pursuant to applicable laws.
34A-8. Setbacks; Other Restrictions.
(a} Each detached structure or outdoor area in which the
marijuana is cultivated shah. be set back from the boundaries of
the premises as follows:
(1) If the premises is one-half {0,5} of an acre in size or
less, each detached structure shall be set back at least fifteen
(15) feet from all boundaries of the premises.
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(2) If the premises is greater than ane-half (0.5) of an acre
in size but less than one and a half (1.5) acres in size, each
detached structure or outdoor area shall be set back at least''
fifteen {15) feet from all boundaries of the premises, unless
the Director of the Department of Development Services or his or
her designee reduces or waives this requirement based upon an
irregular lot shape making it difficult to comply with such.
setback requirements. Such cultivation area shall be measured
from the outer edge of the marijuana plant and not the stalk.'.
Owners of parcels adjacent to such premises shall be notified in
writing of any exercise of such discretion under this section.
(3) If the premises is equal to or greater than one and one
half (1.5} acres in size but less than three (3) acres in size,
each detached structure or outdoor area shall be set back at
least twenty (20) feet from all boundaries of the premises,
unless the Director of the Department of Development Services or
his or her designee reduces or waives this requirement based
upon an irregular lot shape making it difficult to comply with
such setback requirements. Owners of parcels adjacent to such
premises shall be notified in writing of any exercise of such
discretion under this section.
(4) If the premises is equal to or greater than three (3} acres
in size but less than five (5) acres in size, each detached
structure or outdoor area shall be set back at least twenty-five
(25} feet from all boundaries of the premises, unless the
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Director of the Department of Development Services or his or her
designee reduces or waives this requirement based upon an
irregular lot shape making it difficult to comply with such
setback requirements. Owners of parcels adjacent to such
premises shall be notified in writing of any exercise of such
discretion under this section.
(5} If the premises is equal to or greater than five (5} acres
in size but less than ten (10} acres in size, each detached
structure or outdoor area shall be set back at least fifty (50}
feet from all boundaries of the premises, unless the Director of
the Department of Development Services or his or her designee
reduces or waives this requirement based upon an irregular lot
shape making it difficult to comply with such setback
requirements. Owners of parcels adjacent to such premises shall
be notified in writing of any exercise of such discretion under
this section.
(6} If the premises is equal to or greater than ten (10) acres
in size but less than twenty (20} acres in size, each detached
structure ar outdoor area shall be set back at least seventy-
five (75} feet from all boundaries of the premises, unless the
Director of the Department of Development Services or his or her
designee reduces or waives this requirement based upon an
irregular lot shape making it difficult to comply with such
setback requirements. Owners of parcels adjacent to such
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premises shall be notified in writing of any exercise of such
discretion under this section.
{7) If the premises is equal to or greater than twenty {20}
acres in size but less than forty (40} acres in size, each
detached structure or outdoor area shall be set back at least~l!
done hundred (100} feet from all boundaries of the premises,
unless the Director of the Department of Development Services or
his or her designee reduces or waives this requirement based
upon an irregular lot shape making it difficult to comply with
such setback requirements. Owners of parcels adjacent to such
premises shall be notified in writing of any exercise of such
discretion under this section.
{8) If the premises is equal to or greater than forty {40)
acres in size, each detached structure or outdoor area shall be
set back at least one hundred (100) feet from all boundaries of
the premises, unless the Director of Development Services or his
or her designee reduces or waives this requirement based upon an
irregular lot shape making it difficult to comply with such
setback requirements. Owners of parcels adjacent to such
premises shall be notified in writing of any exercise of such
discretion under this section.
{9} With respect to subsections 34A-8{a){2-8), such setback
distance shall be measured in a straight line from the building
in which the marijuana is cultivated or if the marijuana is
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cultivated in an outdoor area, from the fence required by
section 34A-10, to the boundary line of the premises.
(b) Notwithstanding the requirements of subsection 34A-4 (a}
above, the cultivation of marijuana, whether grown collectively
or individually, in any amount or quantity, shall not be allowed
in the following areas:
(1) Within one thousand (1,000} feet of a youth-oriented
facility, a school, a park, or any church or residential
treatment facility as defined herein.
(2) Within six hundred (600) feet from a school bus stop.
(3} Outdoors within one hundred (100) feet of any occupied
residential structure located on a separate legal parcel,
provided, however, that any person cultivating no more than 6
mature or 12 immature marijuana plants (or 12 marijuana plants
total with no more than six {6} mature plants in such
combination) shall not grow outdoors within thirty (30} feet of
any occupied residential structure located on a separate legal
parcel.
{4) In any location where the marijuana plants are visible
from the public right of way or publicly traveled privately
maintained roads.
(5) In any location in the following zones:
{A) Commercial Zones {GC {General Commercial), NC
(Neighborhood Commercial), CC (Community Commercial), REC
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{Recreation Commercial}, SE (Sports and Entertainment), MU
{Mixed Use));
(B) Industrial Zones (LI (Limited Industrial), GI {General
Industrial), HI (Heavy Industrial)); and(C) Special Purpose
Zones (PB {Public}, AIR (Airport), RBP (Research/Business Park},
PD (Planned Development)).
(c} The distance between the above-listed uses in Section
(b)(1) and marijuana that is being cultivated shall be measured
in a straight line from the nearest paint of the fence required
in section 34A-10, or if the marijuana is cultivated indoors,
from the nearest exterior wall of the building in which the
marijuana is cultivated to the nearest boundary line of the
property on which the facility, building, or structure, or
portion of the facility, building, or structure in which the
above-listed use occurs is located. The distance in Section
(b)(2) shall be measured from the fence required in Section 34A-
10 to the nearest exterior wall of the residential structure.
(d) No person owning, leasing, occupying, or having charge or
possession of any premises within the County shall cause, allow,
suffer, or permit such premises to be used for the outdoor or
indoor cultivation of marijuana plants in violation of this
chapter.
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~34A-9 Permission of Property Owner.
If the persons} cultivating and/or harvesting marijuana on any
legal parcel is/are not the legal owners} of the parcel, such
person{s} shall obtain the written permission (including
notarized signatures} of the legal owner(s) consenting to the
cultivation and/or harvesting of marijuana on the parcel.
34A-10 Fencing.
All marijuana grown outside of any building must be fully
enclosed by a solid and opaque fence (of approved materials by
the Department of Development Services} at least six (6) feet in
height or a height sufficient to conceal the marijuana from'
view, whichever is higher, provided, however, that such fence
shall not be required for marijuana grown on premises of five
(5) acres or more when such marijuana is grown out of sight from
public view. The Director of the Department of Development
Services or his or her designee shall have discretion to
determine whether the plants are grown out of sight from public
view. Should the marijuana plant(s) grow higher than the fence,
either (1} the plants shall be cut so as to not extend higher
than such fence or (2} the person growing marijuana plants shall
install a fence sufficient to conceal the marijuana plants from
public view and comply with all applicable Butte County permit
requirements. The fence must be adequately secure to prevent
unauthorized entry. Bushes or hedgerows may constitute an
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~ adequate fence under this Chapter on parcels f ive ( 5 } acres and ~
above in size.
34A-11 Public Nuisance; Violations.
~A violation of any provision of this Chapter shall be deemed to
be a public nuisance and subject to the enforcement process as
set forth in sections 34A-12 through 34A-17 of this Chapter.
34A-12 Enforcement.
(a) The County may, in its discretion, abate the violation of
this Chapter by the prosecution of a civil action, including an
action for injunctive relief without first going through the
administrative procedures set forth herein. The remedy of
iz~.junctive relief may take the form of a court order,
enforceable through civil contempt proceedings, prohibiting the
maintenance of the violation of this Chapter or requiring
compliance with other terms.
(b) The County may also abate the violation of this Chapter
through the abatement process established by Government Code
Section 25845.
34A-13 Abatement procedures.
(a) Whenever the Director of Development Services, or his or
her designee determines that a public nuisance (as defined in
this Chapter) exists, he or she, or his or her designee, shall
request in writing that the public nuisance be abated within
seventy-two (72) hours. 1f the nuisance continues beyond that
seventy-two (72) hour period, the Director of Development
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Services, or his or her designee, may set the matter ford
shearing. If the matter is set for hearing, the Director of ~
Development Services or his or her designee, shall post the
property upon which the public nuisance exists and shall mail,
with a proof of service, notices to those persons known to be in
possession of the property, if any, and to persons shown on the
latest County tax roll to be the owners of the property at least
ten (10) days prior to the hearing, unless thirty (30) days or
other notice is required by Health and Safety Code section 17980
or other state law. Both the mailed and posted notice shall be
',din substantially the following form:
N4TTCS OF NU~SANCg AHAT}3MPNT HTsAR2NG
The owner(s) and occupant(s) of real property
described on the latest equalized Butte County tax
roll as A.P. No. and having a street
address of is (are) hereby notified to
appear before a Hearing Officer of the County of Butte
at on 20 at
the hour of o'clock m., to
show cause, if any there be, why the use of said real
property should not be found to be a public nuisance
and abated pursuant to the Butte County Code Chapter
34A. The Department of Development Services has
determined that conditions exist on the above property
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which constitute a public nuisance and violate Butte
County Code section(s) as follows:
. After hearing, if a violation is found
to exist, the cost of abating such violation,
including, but not limited to, the cost of the Hearing
Officer, the cost of prior time and expenses
associated with bringing the matter to hearing,
attorneys' fees, the cost associated with any appeals
from the decision of the Hearing Officer, the cost of
judicially abating the violation, the cost of labor
and material necessary to physically abate the
violation, and the cast of securing expert and other
witnesses may become a lien against the subject
property and may also be assessed against the property
in the same manner as taxes. If an abatement lien is
recorded, it will have the same force and effect as an
abstract of judgment which is recorded as a money
judgment obtained in a court of law. If you fail to
appear at the hearing or if you fail to raise any
defense or assert any relevant point at the time of
hearing, the County will assert, in later judicial
proceedings to enforce an order of abatement, that you
have waived all rights to assert such defenses or such
points.
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In preparing for such hearing, you should be aware
that if an initial showing is made by the County,
sufficient to persuade the Hearing Officer that a
public nuisance exists on your property, you will then
have the burden of proving that no public nuisance
exists on your property. Therefore, you should be
prepared to introduce oral and documentary evidence
proving why, in your opinion, your use of the property
is not a public nuisance as defined in this Chapter. A
copy of the Butte County Code Chapter 34A relating to
Medical Marijuana Cultivation nuisance abatement
hearings is enclosed to assist you in the preparation
of your presentation.
If an initial showing sufficient to persuade the
Hearing Officer that a public nuisance exists on your
property is made by the Code Enforcement Officer, your
failure to sustain the burden of showing that no
public nuisance exists on the property may result in
an administrative decision ordering the abatement of
uses or conditions on your property which are found to
be a public nuisance and may also result in a later
judicial order to the same effect.
Further, if the Hearing Officer finds that a public
nuisance exists on your property and you fail to abate
the nuisance promptly, the County may abate the
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nuisance. If the County abates the nuisance, you may
be responsible for the actual costs of the abatement,
including the costs to the County of the
administrative hearing and attorneys' fees, and such
costs may be specially assessed against your parcel by
the Auditor-Controller's Office and added to the your
tax bill as a special assessment. Such special
assessments have the same priority, for collection
purposes, as other county taxes and, if not paid, may
result in a forced sale of your property. You are also
hereby notified that the County will seek recovery of
attorneys' fees incurred in any abatement hearing and
that attorneys' fees may be recovered by the
prevailing party.
Finally, if the Hearing Officer finds that a public
nuisance exists an your property, a violation of the
Butte County Cade Chapter 34A, the County will contend
that you are bound by such finding at any subsequent
judicial action to enforce the Hearing Officer's
order.
IMPORTANT: READ THIS NOTICE CAREFULLY. FAILURE TO
APPEAR AND RESPOND AT THE TIME SET FORTH IN THIS
NOTICE WILL LIKELY RESULT IN ADMINSSTRATIVE AND/OR
JUDTCTAL ABATEMENT AND TERMINATION OF USES OF OR
CONDITIONS ON YOUR PROPERTY WHICH THE DIRECTOR OF
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DEVELOPMENT SERVICES CONTENDS ARE IN VIOLATION OF THE
BUTTE COUNTY CODE.
Dated: / /
BUTTE COUNTY DIRECTOR OF DEVELOPMENT SERVICES
By:
Enclosure: Butte County Code Chapter 34A
{b) All hearings conducted under this Chapter shall be held
before a Hearing Officer designated pursuant to the protocol set
forth in that document entitled the "Butte County Administrative
Hearing Officer Program." The Program is based upon an
alphabetical rotation through attorneys currently under contract
through the Program.
{c) At the time and place set for the hearing, the Hearing
Officer shall review the Director of Development Services'
decision ordering cessation of the alleged public nuisance to
determine whether such decision conforms to law and is supported
by substantial evidence. The Hearing Officer shall hear
testimony and receive written and/or documentary evidence
relating to the alleged violation. Additional procedural rules
may be adopted by resolution of the Board of Supervisors. The
Hearing Officer shall tape record the hearing or engage the
services of a certified court reporter to record the hearing and
shall preserve the record of the hearing and all photographs and
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demonstrative and documentary evidence introduced at the time of
the hearing for a period of three {3) years.
(d) Within five {5) days after the hearing is closed, the
Hearing Officer shall render his or her written decision
relating to the existence or nonexistence of the alleged public
nuisance. If a violation is found to exist, the decision shall
include a statement of the Abatement and Administrative Costs
incurred by the County or estimated costs to abate the violation
and shall also order that the owner of the property, or persons
known to be in possession of the property, abate the violation)
within a reasonable time, not to exceed twenty {20) days. The
decision shall contain findings of fact and conclusions of law.
A copy of the decision shall be mailed by certified mail, return
receipt requested, to the person or persons shown on the last
County tax roll to be the owners of the property which is the
subject of the hearing and the occupant of such parcel, if any.
All other persons noticed pursuant to this section shall be
mailed a copy of the decision by first class mail, postage
prepaid.
(e) The decision of the Hearing Officer shall be final and
conclusive on the date the certified mail set forth in
subsection {d) above, is deposited in the mail.
{f)(1) Notwithstanding any other provisions of this Cade, if a
final decision of the Hearing Officer finds that a violation
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exists and the public nuisance is not voluntarily abated within
twenty (20) days of said decision, the Director of Development
Services or his or her designee may abate the public nuisance
pursuant to a warrant issued by a court of competent
jurisdiction. The owner of the property shall be responsible for
paying all of the County's Abatement Costs and Administrative
Costs, including but not limited to, those cost items set forth
in the notice required by subsection (a) above. The Director of
Development Services or his or her designee shall keep an
accounting of the Abatement and Administrative Casts to perform
each abatement. Upon completion of the abatement, the Director
of Development Services or his or her designee shall post thel
property and send a bill to the owner, and any persons known to
be in possession of the property, requesting payment of the
County's Abatement and Administrative Costs. The bill shall also
state that failure to pay the Abatement and Administrative Costs
within fifteen {15) days from service of the bill may result in
the recording of a lien and the placement of a special
assessment against the property.
{2) If the County's Abatement and Administrative Costs are
not paid within fifteen {15) days from service of the bill, the
Director of Development Services shall render an itemized report
to the Clerk of the Board of Supervisors for submittal to the
Board of Supervisors for hearing and consideration regarding the
proposed lien and special assessment. The report shall include
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the names and addresses of the owner of record and any persons
known to be in possession of the property. The report shall also
include the date the abatement was ordered, the work performed,
the date the abatement was completed, a description of they
property subject to the lien and special assessment, and an
itemized account of the County's Abatement and Administrative
Costs. At least fifteen (15) days prior to said hearing, the
Clerk of the Board of Supervisors shall give notice, with an
affidavit of service, of said hearing to all persons named in
the Director of Development Services' report and the Director of
Development Services or his or her designee shall post the
property with a copy of the notice. The notice shall describe,
the property by assessor's parcel number and street number or
other description sufficient to enable identification of the
property and contain a statement of the amount of the proposed
lien and special assessment. The notice shall also contain a
statement that the Board will hear and consider objections and
protests to the proposed lien and special assessment at the
designated time and place.
(g) At the time and place fixed in the notice, the Board of
Supervisors shall hear and consider the proposed lien and
special assessment together with objections and protests
thereto. At the conclusion of the hearing, the Board of
Supervisors may make such modifications and revisions to the
proposed lien and special assessment as it deems just and may
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order that the proposed lien and special assessment be recorded
by the Director of Development Services and specially assessed
against the property by the Auditor-Controller's Office. The
lien shall have the same force, priority and effect as a
judgment lien and the special assessment shall have the same
priority as other County takes.
(hy The notice of abatement lien shall, at a minimum, identify
the record owner or possessor of the property, set forth the
date upon which abatement of the nuisance was ordered or deemed.,
ordered by the Board of Supervisors, describe the real property
subject to the lien, set forth the amount of the Abatement Costs
and Administrative Costs incurred to date and, if applicable,
the date upon which the abatement was completed. If the
abatement has not yet been completed, the notice shall so state
and shall also indicate that the lien is a partial lien and that
additional Abatement Costs will be incurred in the future.
It is the intent of the Board of Supervisors that Abatement
Costs and Administrative Costs incurred after the filing of the
notice of abatement lien relate back to the date upon which the
lien was recorded for purposes of priority; however, in order to
preserve its rights, after all Abatement Costs and
Administrative Costs have been incurred and the abatement is
:complete, the Department of Development Services shall cause a
supplemental notice of abatement lien to be recorded. The
supplemental notice shall contain all of the information
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required for the original notice and shall also refer to the
recordation date and the recorder's document number of the
original notice.
(i} The decision of the Hearing Officer or Board of Supervisors
may be recorded by the Director of Development Services. In the
event of such recordation and in the further event that they
violation is corrected, a notice of such correction shall bed
recorded. The Director of Development Services is authorized toy
prepare and record a notice of correction. Correction of the
violation shall not excuse the property owner's liability for'
costs incurred during the administrative abatement process
(Abatement Costs and Administrative Costs as defined in section
34A-14 of this Chapter}, If the property owner has not fully
compensated the County for costs incurred during the
administrative abatement process, a notice of correction shall
not be recorded unless the fee specified in section 41-9 of
Chapter 41 has been paid. Payment of the fee specified in
section 41-9 of Chapter 41 does not excuse the property owner's
liability for costs incurred during the administrative abatement
process {Abatement Costs and Administrative Costs as defined in
section 34A-14 of this chapter}.
34A-14 Abatement costs; Administrative costs.
{a) The term "Abatement Costs" means any costs or expenses
reasonably related to the abatement of conditions which violate
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the Butte County Code, and shall include, but not be limited to,
enforcement, investigation, attorneys' fees, collection and
administrative costs, and the casts associated with the removal
Ilor correction of the violation.
{b) The term "Administrative Costs," shall include the cost of
County staff time reasonably related to enforcement, for items
including, but not limited to, site inspections, travel time,
investigations, telephone contacts and time spent preparing
summaries, reports, notices, correspondence, warrants ands
hearing packets. The time expended by Development Services and
Auditor-Controller staff, to calculate the above costs and
prepare itemized invoices, may also be recovered.
(c) In any action, administrative proceeding, or special
proceeding to abate a nuisance, attorneys' fees may be recovered
by the prevailing party. Tn no action, administrative
proceeding, or special proceeding shall an award of attorneys'
fees to a prevailing party exceed the amount of reasonable
attorneys' fees incurred by the County in the action or
proceeding.
34A-15 Non-exclusi~re remedy.
This Chapter is cumulative to all other remedies now or
hereafter available to abate or otherwise regulate or prevent
public nuisances.
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134A-15 Administrative Civil Penalties.
Tn addition to any other remedies provided by County Code or
State Law, there is hereby imposed the following civil penalty
for each violation of this Chapter, as imposed by the Code
(Enforcement Officer:
(a) No less than twenty-five dollars ($25.00} per day and no
more than one hundred dollars ($100.00} per day for the first
violation; no less than one hundred dollars ($100.00} per day
and no more than two hundred dollars ($200.00} per day for a
second violation of this Chapter within one (1} year; and no
less than two hundred dollars {$2oa.aa} per day and no more than
five hundred dollars ($500.00} per day for each additionally
violation of this Chapter within one {1) year for each day that
the violation exists after the date of mailing of the notice of
violation through to its abatement by whatever means.
(b) The Code Enforcement Officer shall have the sole and
exclusive discretion to set the amount of civil penalties within
the ranges set forth in this Section. The Code Enforcement
Officer shall not impose a penalty greater than the minimum
amount in range of civil penalties set forth in this Section,
unless the Code Enforcement Officer's department has established
a written policy setting forth how civil penalties within the
ranges are determined. Such policy shall take into account the
facts and circumstances of the violation including, but not
limited to, whether or not the violation poses a threat to human
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health, safety or to the environment; the seriousness or gravity
Hof the violation; the length of time the violation has existed;
',the culpability of the person in violation or the willfulness of
j~the violation; the sophistication of the persons creating or
'i~causing the violation; the extent of the violation and its,
' effect on adjoining properties; attempts, if any, to comply with'',
'the applicable ordinances; and any other information which might
be relevant to the determination of penalty to be imposed by
this Section.
',~(c) If the penalty is imposed for violation of this Chapter
there shall be imposed a fine of two hundred fifty dollars
{$250.00), plus the actual costs of abatement.
(d} At the discretion of the Code Enforcement Officer, or his
~or her designee, or upon the appeal of the property owner, the
determination may be referred to a Hearing Officer of the
County, duly appointed to hear such matters as described in this
Chapter. The determination of the Hearing Officer as to the
amount of charges properly imposed under this Section shall be
final, subject only to judicial review.
{e} The charges imposed by this Section shall not apply if the
property owner establishes all of the following: (i) that, at
the time he or she acquired the property, a violation of this
code already existed on the property; {ii} the property owner
did not have actual or constructive notice of the existence of
that violation; and (iii) within thirty (30} days after the
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mailing of notice of the existence of that violation, the',
property owner initiates and pursues, with due diligence, good'
faith efforts, as determined solely by the Cade Enforcement
Officer, to meet the requirements of this code.
(f) Tn the event a property owner, in the opinion of the
relevant Department Head{s), abates the nuisance in a timely
manner after the Notice and Order to Abate has been issued, the
relevant Department Head(s) has {have) the authority to waive or
reduce the amount of penalties awed, if in his or her opinion
Isuch a reduction is warranted.
34A-17 Summary Abatement.
Notwithstanding any other provision of this Chapter, when any
unlawful medical marijuana cultivation constitutes an immediate
threat to the public health or safety, and where the procedures
set Earth in sections 34A-11 through 34A-14 would not result in
abatement of that nuisance within a short enough time period to
avoid that threat, the enforcing officer may direct any officer
or employee of the County to summarily abate the nuisance. The
enforcing officer shall make reasonable efforts to notify the
persons identified in Section 34A-13 but the formal notice and
hearing procedures set forth in this Chapter shall not apply. No
summary abatement shall occur prior to consultation with the
Office of County Counsel. The County may nevertheless recover
its costs for abating that nuisance in the manner set forth in
this Chapter.
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34A-18 No Duty to Enforce.
Nothing in this Chapter shall be construed as imposing on the
enforcing officer or the County of Butte any duty to issue a
Notice to Abate Unlawful Marijuana Cultivation, nor to abate any
unlawful marijuana cultivation, nor to take any other action
with regard to any unlawful marijuana cultivation, and neither
the enforcing officer nor the County shall be held liable for
failure to issue an order to abate any unlawful marijuana
cultivation, nor for failure to abate any unlawful marijuana
cultivation, nor for failure to take any other action with
regard to any unlawful marijuana cultivation.
34A-19 Use of Money Collected Under This Chapter.
All money collected for penalties far violations of this Chapter
and all money collected for recovery of costs of enforcement of
this Chapter shall be made available to the Department
responsible for the enforcement action for training and further
code enforcement actions.
Section 2. The County finds that this Chapter is not subject to
the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct
or reasonably foreseeable indirect physical change in the
environment) and 15051{b)(3) (there is no possibility the
activity in question may have a significant effect on the
environment). Tn addition to the foregoing general exemptions,
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the following categorical exemptions apply: Sections 15308
{actions taken as authorized by local ordinance to assure
protection of the environment) and 15321 {action by agency for
enforcement of a law, general rule, standard or objective
administered or adopted by the agency, including by direct
referral to the County Counsel as appropriate for judicial
enforcement) .
Section 3. If any provision of this Chapter or the application
thereof to any person or circumstance is held invalid, the
remainder of this Chapter, including the application of such
party or provision to other circumstances shall not be affected
thereby and shall continue in full force and effect. To this
end, provisions of this Chapter are severable. The Board of
Supervisors hereby declares that it would have passed each
section, subsection, subdivision, paragraph, sentence, clause,
or phrase hereof irrespective of the fact that any one {1) or
more sections, subsections, subdivisions, paragraphs, sentences,
clauses or phrases be held unconstitutional, invalid or
unenforceable.
~~Section 4. The Clerk of the Board will publish the Ordinance
--_
codified in this Chapter as required by law. The Ordinance
codified in this Chapter shall take effect thirty {30) days
after passage."
~a
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PASSED AND ADOPTED by the Board of Supervisors of the County of
Butte, State of California, on the 26th day of February, 2013,
by the following vote:
AYES: Supervisors Kirk, Lambert, Teeter, and Chair Connelly
NOES: Supervisor Wahl
ABSENT: None
NOT VOTING: None
,fi
BILL CONNELLY, Chair f the
Butte County Board of Supervisors
ATTEST:
Paul. Hahn,
Chief Administrative Officer and
Clerk of the Board
B ~ ~, I'Gt
Y~
41