HomeMy WebLinkAbout4107 1 Ordinance No. 4107
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3 AN ORDINANCE OF THE COUNTY OF BUTTE AMENDING SECTIONS 34A-2 ,
4 34A-3, 34A-4, 34A-13, 34A-16, AND 34A-19 OF CHAPTER 34A OF THE
5 BUTTE COUNTY CODE ENTITLED "RESTRICTIONS ON CULTIVATION OF MEDICAL
6 MARIJUANA. "
7 34A-2 Findings and Purpose.
8 (s) In 2015, the California Legislature enacted Senate Bill
9 643, along with Assembly Bills 243 and 266, which, among other
10 things, established the Medical Marijuana Regulation and Safety
11 Act (codified as California Business and Professions Code sections
12 19300 et seq. ) . Business and Professions Code section 19315 (a)
13 provides that "Nothing in this Chapter shall be interpreted to
14 supersede or limit existing local authority for law enforcement
15 activity, enforcement of local zoning requirements or local
16 ordinances, or enforcement of local permit or licensing
17 requirements . "
18
19 34A-3 Definitions.
20 (c) "Code Enforcement Officer" means any person employed by
21 the County of Butte and appointed to the position of code
22 enforcement officer.
23 (n) "Premises" means a single, legal parcel of property that
24 includes an occupied legal residence that is a dwelling in
25 compliance with Chapter 26 of the Butte County Code and has also
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1 met the requirements of Sections 34A-6 and 34A-7 . Where contiguous
2 legal parcels are under common control or ownership, such
3 contiguous legal parcels shall be counted as a single "premises"
4 for purposes of this Chapter.
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6 34A-4 Nuisance Declared; Cultivation Restrictions .
7 (a) The cultivation of marijuana on any parcel that does not
8 satisfy the definition of a premises contained herein is hereby
9 declared to be a public nuisance that may be abated in accordance
10 with this Chapter.
11 (b) The cultivation of marijuana plants exceeding the
12 following square footage limitations, on any premises is hereby
13 declared to be unlawful and a public nuisance that may be abated
14 in accordance with this Chapter:
15 (1) If the premises is one-half (0 . 5) of an acre in size
16 or less, plants may be cultivated in a single cultivation area no
17 larger than fifty (50) square feet . The cultivation area shall be
18 measured from the outer edge of the marijuana plant canopy and not
19 the stalk. The cultivation area shall have one (1) or more
20 recommendations associated with the plants . The cultivation area
21 must be located inside a detached structure that is no larger than
22 one hundred twenty (120) square feet in size;
23 (2) If the premises is greater than one-half (0 . 5) of an
24 acre in size but less than five (5) acres in size, a single
25 cultivation area no larger than fifty (50) square feet may be
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1 devoted to the cultivation of marijuana on the premises . The
2 cultivation area shall be measured from the outer edge of the
3 marijuana plant canopy and not the stalk. The cultivation area
4 shall have one (1) or more recommendations associated with the
5 plants . The cultivation area may be either indoors or outdoors;
6 (3) If the premises is equal to or greater than five (5)
7 acres in size but less than ten (10) acres in size, a single
8 cultivation area no larger than one hundred (100) square feet may
9 be devoted to the cultivation of marijuana on the premises . The
10 cultivation area shall be measured from the outer edge of the
11 marijuana plant canopy and not the stalk. The cultivation area
12 shall have at least one (1) recommendation for every fifty (50)
13 square feet of plants . The cultivation area may be either indoors
14 or outdoors;
15 (4) If the premises is equal to or greater than ten (10)
16 acres in size, a single cultivation area no larger than one hundred
17 fifty (150) square feet may be devoted to the cultivation of
18 marijuana on the premises . The cultivation area shall be measured
19 from the outer edge of the marijuana plant canopy and not the
20 stalk. The cultivation area shall have at least one (1)
21 recommendation for every fifty (50) square feet of plants . The
22 cultivation area may be either indoors or outdoors .
23 (c) The limitations of section 34A-4 (b) shall be imposed
24 regardless of the number of qualified patients or primary
25 caregivers residing at the premises or participating directly or
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1 indirectly in the cultivation. Further, such limitations shall be
2 imposed notwithstanding any assertion that the persons (s)
3 cultivating marijuana are the primary caregiver (s) for qualified
4 patients or that such persons (s) are collectively or cooperatively
5 cultivating marijuana. And further, all persons (s) cultivating
6 marijuana on the premises or participating directly or indirectly
7 in the cultivation must be Butte County residents .
8 (d) The single cultivation area shall consist of one
9 contiguous space . The length and width of the single cultivation
10 area shall not exceed a ratio of 2 : 1 .
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12 34A-13 Abatement procedures .
13 (a) Whenever a Code Enforcement Officer determines that a
14 public nuisance (as defined in this Chapter) exists, he or she
15 shall post a 72-Hour Notice to Abate on the property where the
16 public nuisance exists, and mail a copy of the same to those
17 persons shown on the latest County tax roll to be the owners of
18 the property. The 72-Hour Notice to Abate shall inform the owner
19 and/or tenants of the basis for the violation, and that an
20 Administrative Penalty of $500 per day will accrue for each day
21 that the violation continues to exist; explain that if the
22 violation is not corrected, the matter will be set for a Nuisance
23 Abatement Hearing, at which time the Administrative Penalty will
24 increase to $1, 000 per day; and explain that to prevent the accrual
25 of additional penalties and costs, the owner or tenant must contact
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1 the Code Enforcement Office and arrange a time for a Code
2 Enforcement Officer to inspect the property, and confirm that the
3 violation (s) have been corrected.
4 (b) If the nuisance continues to exist after the expiration
5 of the seventy-two (72) hour period, a Code Enforcement Officer
6 may set the matter for hearing by issuing a Notice of Nuisance
7 Abatement Hearing. If the matter is set for hearing, the Code
8 Enforcement Officer shall post the property upon which the public
9 nuisance exists and shall mail, with a proof of service, notices
10 to those persons known to be in possession of the property, if
11 any, and to persons shown on the latest County tax roll to be the
12 owners of the property at least ten (10) days prior to the hearing.
13 The Administrative Penalty shall increase to $1, 000 per day from
14 the date the Notice of Nuisance Abatement Hearing is posted on the
15 property, and shall continue to accrue at that rate for each day
16 that the violation continues to exist . Both the mailed and posted
17 notice shall be in substantially the following form:
18 NOTICE OF NUISANCE ABATEMENT HEARING
19 The owner (s) and occupant (s) of real property
20 described on the latest equalized Butte
21 County tax roll as A. P. No. and
22 having a street address of is
23 (are) hereby notified to appear before a
24 Hearing Officer of the County of Butte at
25 on , 20 ,
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1 at the hour of o ' clock
2 m. , to show cause, if any there
3 be, why the use of said real property should
4 not be found to be a public nuisance and abated
5 pursuant to the Butte County Code Chapter 34A.
6 The Department of Development Services has
7 determined that conditions exist on the above
8 property which constitute a public nuisance
9 and violate Butte County Code section (s)
10 , as follows : . After
11 hearing, if a violation is found to have
12 existed at the time the Notice of Nuisance
13 Abatement Hearing was posted on the property,
14 the Administrative Costs incurred in
15 prosecuting the violation, including, but not
16 limited to, the cost of the Hearing Officer,
17 the cost of prior time and expenses associated
18 with bringing the matter to hearing,
19 attorneys ' fees, the cost associated with any
20 appeals from the decision of the Hearing
21 Officer, the cost of judicially abating the
22 violation, the cost of labor and material
23 necessary to physically abate the violation,
24 the cost of securing expert and other
25 witnesses, and the accrual of any
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1 Administrative Penalties, may become a lien
2 against the subject property and may also be
3 assessed against the property in the same
4 manner as taxes . If a lien is recorded, it
5 will have the same force and effect as an
6 abstract of judgment which is recorded as a
7 money judgment obtained in a court of law. If
8 you fail to appear at the hearing or if you
9 fail to raise any defense or assert any
10 relevant point at the time of hearing, the
11 County will assert, in later judicial
12 proceedings to enforce an order of abatement,
13 that you have waived all rights to assert such
14 defenses or such points .
15 In preparing for such hearing, you should be
16 aware that if an initial showing is made by
17 the County, sufficient to persuade the Hearing
18 Officer that a public nuisance existed on your
19 property at the time the Notice of Nuisance
20 Abatement Hearing was posted, you will then
21 have the burden of proving that no public
22 nuisance existed on your property. Therefore,
23 you should be prepared to introduce oral and
24 documentary evidence proving why, in your
25 opinion, your use of the property is not a
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1 public nuisance as defined in this Chapter. A
2 copy of the Butte County Code Chapter 34A
3 relating to Medical Marijuana Cultivation
4 nuisance abatement hearings is enclosed to
5 assist you in the preparation of your
6 presentation.
7 If an initial showing sufficient to persuade
8 the Hearing Officer that a public nuisance
9 existed on your property is made by the Code
10 Enforcement Officer, your failure to sustain
11 the burden of showing that no public nuisance
12 existed on the property may result in a
13 decision by the Hearing Officer that a public
14 nuisance did exist, and that the County is
15 entitled to recover its Administrative Costs,
16 and all Administrative Penalties that accrued
17 up to the time that the nuisance was abated.
18 Further, if the Hearing Officer finds that a
19 public nuisance continues to exists on your
20 property, and you fail to abate the nuisance
21 promptly, the County may abate the nuisance.
22 If the County abates the nuisance, in addition
23 to being able to recover its Administrative
24 Costs and Penalties, you may be responsible
25 for the actual costs of the abatement . In
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1 either circumstance, all Administrative
2 Costs, Abatement Costs, and Administrative
3 Penalties may be specially assessed against
4 your parcel by the Auditor-Controller ' s Office
5 and added to the your tax bill as a special
6 assessment . Such special assessments have the
7 same priority, for collection purposes, as
8 other county taxes and, if not paid, may
9 result in a forced sale of your property. You
10 are also hereby notified that the County will
11 seek recovery of attorneys ' fees incurred in
12 any hearing and that attorneys ' fees may be
13 recovered by the prevailing party.
14 Finally, if the Hearing Officer finds that a
15 public nuisance exists on your property, a
16 violation of the Butte County Code Chapter
17 34A, the County will contend that you are
18 bound by such finding at any subsequent
19 judicial action to enforce the Hearing
20 Officer ' s order.
21 IMPORTANT: READ THIS NOTICE CAREFULLY.
22 IN ADDITION TO ANY ADMINISTRATIVE CIVIL
23 PENALTIES THAT HAVE ALREADY ACCRUED, AN
24 ADMINISTRATIVE CIVIL PENALTY OF $1, 000 PER DAY
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1 IS HEREBY IMPOSED FROM THE DATE THIS NOTICE
2 WAS POSTED ON YOUR PROPERTY, AND WILL CONTINUE
3 TO ACCRUE AT THAT RATE UNTIL THE NUISANCE IS
4 ABATED. IN ORDER TO PREVENT THE ACCRUAL OF
5 ONGOING PENALTIES AND COSTS, YOU MUST CONTACT
6 THE CODE ENFORCEMENT OFFICE, AND ARRANGE A
7 TIME FOR A CODE ENFORCEMENT OFFICER TO INSPECT
8 YOUR PROPERTY, AND CONFIRM THAT THE
9 VIOLATION (S) HAVE BEEN CORRECTED.
10 FAILURE TO APPEAR AND RESPOND AT THE TIME SET
11 FORTH IN THIS NOTICE WILL LIKELY RESULT IN
12 ADMINISTRATIVE AND/OR JUDICIAL ABATEMENT AND
13 TERMINATION OF USES OF OR CONDITIONS ON YOUR
14 PROPERTY WHICH THE DIRECTOR OF DEVELOPMENT
15 SERVICES CONTENDS ARE IN VIOLATION OF THE
16 BUTTE COUNTY CODE.
17 Dated: / /
18 BUTTE COUNTY DIRECTOR OF DEVELOPMENT SERVICES
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By:
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Enclosure : Butte County Code Chapter 34A
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(c) All hearings conducted under this Chapter shall be held
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before a Hearing Officer designated pursuant to the protocol set
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forth in that document entitled the "Butte County Administrative
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Hearing Officer Program. " The Program is based upon an alphabetical
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1 rotation through attorneys currently under contract through the
2 Program.
3 (d) At the time and place set for the hearing, the Hearing
4 Officer shall hear testimony and receive written and/or
5 documentary evidence relating to the alleged violation. Additional
6 procedural rules may be adopted by resolution of the Board of
7 Supervisors . The Director of Development Services, or his or her
8 designee, shall tape record the hearing, and provide a copy of the
9 recording to the Hearing Officer following the conclusion of the
10 hearing. The Hearing Officer shall preserve the record of the
11 hearing, and all photographs and demonstrative and documentary
12 evidence introduced at the time of the hearing, for a period of
13 three (3) years .
14 (e) Within five (5) days after the hearing is closed, the
15 Hearing Officer shall render his or her written decision relating
16 to the existence or nonexistence of the alleged public nuisance.
17 If a violation is found to have existed at the time the Notice of
18 Nuisance Abatement Hearing was posted, the decision shall include
19 a statement that the County is entitled to recover its
20 Administrative Costs and Administrative Penalties . If the Hearing
21 Officer determines that the violation continues to exist, the
22 decision shall also order that the owner of the property, or
23 persons known to be in possession of the property, abate the
24 violation within a reasonable time, not to exceed ten (10) days
25 from the date the decision is placed in the mail . The decision
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1 shall contain findings of fact and conclusions of law. A copy of
2 the decision shall be mailed by certified mail, return receipt
3 requested, to the person or persons shown on the last County tax
4 roll to be the owners of the property which is the subject of the
5 hearing and the occupant of such parcel, if any. All other persons
6 noticed pursuant to this section shall be mailed a copy of the
7 decision by first class mail, postage prepaid.
8 (f) The decision of the Hearing Officer shall be final and
9 conclusive on the date the certified mail set forth in subsection
10 (e) above, is deposited in the mail .
11 (g) (1) Notwithstanding any other provisions of this Code, if
12 a final decision of the Hearing Officer finds that a violation
13 exists and the public nuisance is not voluntarily abated within
14 ten (10) days of said decision being placed in the mail by the
15 Hearing Officer, the Director of Development Services or his or
16 her designee may abate the public nuisance by cutting and/or
17 removing all marijuana plants from the property, pursuant to a
18 warrant issued by a court of competent jurisdiction. The owner of
19 the property shall be responsible for paying all of the County' s
20 Abatement Costs and Administrative Costs, including but not
21 limited to, those cost items set forth in the notice required by
22 subsection (a) above, and Administrative Penalties . The Director
23 of Development Services or his or her designee shall keep an
24 accounting of the Abatement and Administrative Costs for each case .
25 Upon completion of the abatement of the nuisance, whether by the
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1 Director of Development Services or his or her designee, or the
2 owner or tenant, the Director of Development Services or his or
3 her designee shall post the property and send a bill to the owner,
4 and any persons known to be in possession of the property,
5 requesting payment of the County' s Abatement and Administrative
6 Costs, as well as all Administrative Penalties . The bill shall
7 also state that failure to pay the Costs and Penalties within
8 fifteen (15) days from service of the bill may result in the
9 recording of a lien and the placement of a special assessment
10 against the property.
11 (2) If the County' s Costs and Penalties are not paid within
12 fifteen (15) days from service of the bill, the Director of
13 Development Services shall render an itemized report to the Clerk
14 of the Board of Supervisors for submittal to the Board of
15 Supervisors for hearing and consideration regarding the proposed
16 lien and special assessment . The report shall include the names
17 and addresses of the owner of record and any persons known to be
18 in possession of the property, and an itemized account of the
19 County' s Abatement Costs, Administrative Costs, and Administrative
20 Penalties . At least fifteen (15) days prior to said hearing, the
21 Clerk of the Board of Supervisors shall give notice, with an
22 affidavit of service, of said hearing to all persons named in the
23 Director of Development Services ' report and the Director of
24 Development Services or his or her designee shall post the property
25 with a copy of the notice . The notice shall describe the property
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1 by assessor ' s parcel number and street number or other description
2 sufficient to enable identification of the property and contain a
3 statement of the amount of the proposed lien and special
4 assessment . The notice shall also contain a statement that the
5 Board will hear and consider objections and protests to the
6 proposed lien and special assessment at the designated time and
7 place .
8 (h) At the time and place fixed in the notice, the Board of
9 Supervisors shall hear and consider the proposed lien and special
10 assessment together with objections and protests thereto. At the
11 conclusion of the hearing, the Board of Supervisors may make such
12 modifications and revisions to the proposed lien and special
13 assessment as it deems just and may order that the proposed lien
14 and special assessment be recorded by the Director of Development
15 Services and specially assessed against the property by the
16 Auditor-Controller' s Office . The lien shall have the same force,
17 priority and effect as a judgment lien and the special assessment
18 shall have the same priority as other County taxes .
19 (i) The notice of lien shall, at a minimum, identify the
20 record owner or possessor of the property, set forth the date upon
21 which the decision of the Hearing Officer was issued, describe the
22 real property subject to the lien, set forth the amount of the
23 Costs and Penalties incurred to date and, if applicable, the date
24 upon which the abatement was completed. If the abatement has not
25 yet been completed, the notice shall so state and shall also
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1 indicate that the lien is a partial lien and that additional
2 Abatement Costs will be incurred in the future .
3 It is the intent of the Board of Supervisors that Abatement
4 Costs, Administrative Costs, and Administrative Penalties incurred
5 after the filing of the notice of abatement lien relate back to
6 the date upon which the lien was recorded for purposes of priority;
7 however, in order to preserve its rights, after all Abatement
8 Costs, Administrative Costs, and Administrative Penalties have
9 been incurred and the abatement is complete, the Department of
10 Development Services shall cause a supplemental notice of
11 abatement lien to be recorded. The supplemental notice shall
12 contain all of the information required for the original notice
13 and shall also refer to the recordation date and the recorder' s
14 document number of the original notice.
15 (j ) The decision of the Hearing Officer or Board of
16 Supervisors may be recorded by the Director of Development
17 Services . In the event of such recordation, and in the further
18 event that the violation is corrected and all Costs and Penalties
19 are paid, a notice of such correction shall be recorded. The
20 Director of Development Services is authorized to prepare and
21 record a notice of correction. Correction of the violation shall
22 not excuse the property owner ' s liability for costs incurred during
23 the administrative abatement process (Abatement Costs,
24 Administrative Costs, and Administrative Penalties as defined in
25 sections 34A-14 and 34A-16 of this Chapter) . In any action to
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1 foreclose on a lien issued pursuant to this Chapter, the County
2 shall be entitled to an award of attorney' s fees .
3
4 34A-16 Administrative Civil Penalties .
5 In addition to any other remedies provided by County Code or State
6 Law, there is hereby imposed the following civil penalty for each
7 violation of this Chapter:
8 (a) Five hundred dollars ($500 . 00) per day from the day the
9 72-Hour Notice is posted on the property, and continuing for each
10 day that the violation continues to exist; however, if a Notice of
11 Nuisance Abatement Hearing is issued, the penalty shall increase
12 to one thousand dollars ($1, 000 . 00) per day from the date the
13 Notice of Nuisance Abatement Hearing is posted on the property,
14 and shall continue to accrue at that rate for each day that the
15 violation continues to exist, until the violation is abated by
16 whatever means .
17 (b) At the Nuisance Abatement Hearing, the Hearing Officer
18 shall determine the total amount of Administrative Penalties that
19 have accrued at the time of the hearing, and that amount shall be
20 reflected in the decision and awarded to the County. If at the
21 time of the hearing the nuisance has yet to be abated, the decision
22 shall state that Administrative Penalties shall continue to accrue
23 at $1, 000 per day until the nuisance is abated. The decision of
24 the Hearing Officer shall be final and conclusive on the date the
25 decision is deposited in the mail .
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1 (c) Administrative Penalties shall not be awarded if the
2 property owner establishes all of the following: (i) that, at the
3 time he or she acquired the property, a violation of this code
4 already existed on the property; (ii) the property owner did not
5 have actual or constructive notice of the existence of that
6 violation; and (iii) within thirty (30) days after the mailing of
7 notice of the existence of that violation, the property owner
8 initiates and pursues, with due diligence, good faith efforts, to
9 meet the requirements of this code .
10 (d) In the event a tenant or property owner contacts a Code
11 Enforcement Officer and demonstrates that all violations have been
12 corrected in a timely manner prior to a hearing being conducted
13 pursuant to this Chapter, the Director of Development Services, or
14 his or her designee, has the authority to waive or reduce the
15 amount of penalties owed, and cancel the scheduled hearing, if in
16 his or her opinion such a reduction and hearing cancellation is
17 warranted.
18 (e) Following the issuance of a Hearing Officer' s decision,
19 the Director of Development Services, or his or her designee, may
20 compromise the amount of any administrative penalty imposed by the
21 Hearing Officer. When determining whether to compromise any
22 penalty amount, the Director, or his or her designee, shall take
23 into consideration the nature, circumstances, and gravity of the
24 violation (s) , any prior history of violations, the degree of
25 culpability, the financial burden to the person (s) upon whom the
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1 penalty has been imposed, the degree to which the proposed
2 compromise will facilitate collection of the penalties without the
3 need for further legal action, and any other matters justice may
4 require. The compromise shall be subject to any terms and
5 conditions prescribed by the Director, or his or her designee,
6 which may include, without limitation, a condition requiring that
7 the subject legal property and all responsible parties remain free
8 of any additional violations for a specified period of time . Any
9 person accepting a compromise penalty hereunder shall be required
10 to execute a Compromise Agreement in a form approved by County
11 Counsel .
12
13 34A-19 Use of Money Collected Under This Chapter.
14 All money collected for penalties for violations of this
15 Chapter and ail money collected for recovery of costs of
16 enforcement of this Chapter shall be made available to the
17 Departments, who are involved in the enforcement of this Chapter.
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19 Section 7 . The County finds that this Chapter is not subject to
20 the California Environmental Quality Act (CEQA) pursuant to
21 Sections 15060 (c) (2) (the activity will not result in a direct or
22 reasonably foreseeable indirect physical change in the
23 environment) and 15061 (b) (3) (there is no possibility the activity
24 in question may have a significant effect on the environment) . In
25 addition to the foregoing general exemptions, the following
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1 categorical exemptions apply: Sections 15308 (actions taken as
2 authorized by local ordinance to assure protection of the
3 environment) and 15321 (action by agency for enforcement of a law,
4 general rule, standard or objective administered or adopted by the
5 agency, including by direct referral to the County Counsel as
6 appropriate for judicial enforcement) .
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8 Section 8 . Severability. If any provision of this Chapter or the
9 application thereof to any person or circumstance is for any reason
10 held to be invalid by a court of competent jurisdiction, such
11 provision shall be deemed severable, and the invalidity thereof
12 shall not affect the remaining provisions or other applications of
13 the Chapter which can be given effect without the invalid
14 provisions or application thereof.
15
16 Section 9. Effective Date and Publication. This Ordinance shall
17 take effect thirty (30) days after the date of its passage. The
18 Clerk of the Board of Supervisors is authorized and directed to
19 publish this ordinance before the expiration of fifteen (15) days
20 after its passage. This Ordinance shall be published once, with
21 the names of the members of the Board of Supervisors voting for
22 and against it, in the Chico Enterprise Record, a newspaper of
23 general circulation published in the County of Butte, State of
24 California .
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1 I PASSED AND ADOPTED by the Board of Supervisors of the County of
2 Butte, State of California, on the 26th day of January 2016, by
3 the following vote :
4 AYES : Supervisors Connelly, Wahl, Kirk, Lambert and Teeter
NOES : None
5 ABSENT : None
NOT VOTING: None
6
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8 Bill Connelly, Chair of the
Butte County Board of Supervisors
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ATTEST :
10 Paul Hahn,
Chief Administrative Officer and
11 Clerk of the7d
12 // //
13 By:
D031"'
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