HomeMy WebLinkAbout4124 1 Ordinance No. 4124
2 AN ORDINANCE OF THE COUNTY OF BUTTE ADDING ARTICLE I, ENTITLED
3 "NONMEDICAL MARIJUANA ORDINANCE" OF CHAPTER 34C ENTITLED
4 "NONMEDICAL MARIJUANA ORDINANCE," OF THE BUTTE COUNTY CODE
5 The Board of Supervisors of the County of Butte ordains as follows:
6 Section 1 . Chapter 34C is added to the Butte County Code as
7 follows:
CHAPTER 34C NONMEDICAL MARIJUANA ORDINANCE
8
9 34C-1 Authority and Title. Pursuant to the authority granted by
Article XI, section 7 of the California Constitution, Health and
10
Safety Code section 11362 . 2, and Government Code section 25845, the
11
Board of Supervisors does enact this Chapter, which shall be known
12
and may be cited as the "Butte County Nonmedical Marijuana
13
Ordinance. "
14
34C-2 Findings and Purpose.
15
(a) In 2016, voters of the State of California approved
16
Proposition 64, entitled The Control, Regulate and Tax Adult Use of
17
Marijuana Act (the "Adult Use of Marijuana Act" or the "AUMA") .
18 (b) The stated purpose of the AUMA is to establish a
19 comprehensive system to legalize, control and regulate the
20 cultivation, processing, manufacture, distribution, testing, and sale
21 of nonmedical marijuana, including marijuana products, for use by
22 adults 21 years and older, and to tax the commercial growth and retail
23 sale of marijuana.
24 (c) The AVMA creates a licensing scheme whereby the State will
25 issue licenses to businesses authorizing them to cultivate,
1
I distribute, transport, store, manufacture, process, and sell
2 nonmedical marijuana and marijuana products for adults 21 years of
3 age and older, with such licenses expected to be issued by January
4 1, 2018 .
5 (d) The AVMA states that nothing in it shall be interpreted to
6 supersede or Limit the authority of a local jurisdiction to adopt and
7 enforce local ordinances to regulate businesses licensed under the
8 AUMA. The AUMA allows local governments to ban nonmedical marijuana
9 businesses, and mandates that the State licensing authorities shall
not approve an application for a State license if approval of the
10
State license will violate the provisions of any local ordinance or
11
regulation adopted in accordance with the requirements of the AVMA.
12
(e) The AUMA provides that it shall be lawful under state and
13
local law for persons 21 years of age and older to plant, cultivate,
14
harvest, dry, or possess not more than six marijuana plants, and
15
possess the marijuana produced by the plants, subject to the following
16
restrictions : 1) A person shall plant, cultivate, harvest, dry or
17
possess plants in accordance with local ordinances; 2) the plants and
18 any marijuana produced by the plants in excess of 28 . 5 grams are kept
19 within the person' s private residence, or upon the grounds of a
20 private residence, in a locked space, and not visible by normal
21 unaided vision from a public place; and 3) not more than six plants
22 may be planted, cultivated, harvested, dried, or processed within a
23 single private residence, or upon the grounds of a private residence,
24 at any one time.
25
2
1 (f) The AVMA allows a county to enact and enforce "reasonable
2 regulations" to regulate the possession, planting, cultivation,
3 harvesting, drying, or processing of the six marijuana plants, as
4 well as the possession of the marijuana produced by the plants.
5 (g) The Federal Controlled Substances Act, 21 U. S .C. §§ 801 et
6 seq. , classifies marijuana as a Schedule I Drug, which is defined as
7 a drug or other substance that has a high potential for abuse, has
8 no currently accepted medical use in treatment in the United States,
9 and has not been accepted as safe for use under medical supervision.
The Federal Controlled Substances Act makes it unlawful, under federal
10
law, for any person to cultivate, manufacture, distribute or dispense,
11
or possess with intent to manufacture, distribute or dispense,
12
marijuana. The Federal Controlled Substances Act contains no
13
exemption for the cultivation, manufacture, distribution,
14
dispensation, or possession of marijuana for medical or nonmedical
15
purposes .
16
(h) In a series of memoranda issued in October 2009, June 2011,
17
and August 2013, the U. S. Department of Justice provided guidance to
18 federal prosecutors concerning marijuana enforcement under the
19 Controlled Substances Act, and generally advised that it is not likely
20 an efficient use of federal resources to prosecute those persons or
21 entities acting in compliance with a strong and effective state
22 regulatory system for the cultivation and distribution of marijuana.
23 These guidelines are understood to allow states to legalize marijuana
24 so long as the state laws adequately address the following goals of
25 preventing: (1) distribution of marijuana to minors; (2) revenue from
3
1 the sale of marijuana going to criminal enterprises; (3) diversion
2 of marijuana from states where it is legal under state law to other
3 states; (4) state authorized marijuana activity from being used as a
4 cover for the trafficking of other illegal drugs; (5) violence and
5 the use of firearms in the cultivation and distribution of marijuana
6 (6) drugged driving and the exacerbation of other adverse public
7 health consequences associated with marijuana use; (7) growing of
8 marijuana on public lands and the attendant public safety
9 environmental dangers; and (8) possession or use of marijuana on
federal property.
10
(i) The County' s geographic and climatic conditions, which
11
include dense forested areas that receive substantial precipitation,
12
along with sparse population in many areas of the County, provide
13
conditions that are favorable to outdoor marijuana cultivation.
14
Outdoor marijuana growers can achieve a high per-plant yield because
15
of the County' s favorable growing conditions .
16
(j ) The County has a compelling interest in protecting the
17
public health, safety, and welfare of its residents and businesses,
18 and preserving the peace and integrity of the unincorporated areas
19 in the County. In the past, significant concerns have been raised
20 regarding the land use impacts that the possession, planting,
21 cultivation, harvesting, drying, processing, distributing,
22 transporting, storing, manufacturing, and sale of marijuana will have
23 on the public health, safety, and welfare of the residents of Butte
24 County, and the environment. Comprehensive civil regulation of
25 premises used for marijuana cultivation is proper and necessary to
4
1 avoid the risks of criminal activity, degradation of the natural
2 environment, malodorous smells, and indoor electrical fire hazards
3 that may result from unregulated marijuana cultivation.
4 (k) Cultivation of marijuana at locations or premises within
5 six hundred (600) feet of school bus stops or one thousand (1, 000)
6 feet of schools, school evacuation sites, churches, parks, child care
7 centers, or youth-oriented facilities creates unique risks that the
8 marijuana plants may be observed by juveniles, and therefore be
9 especially vulnerable to theft or recreational consumption by
juveniles . Further, the potential for criminal activities associated
10
with marijuana cultivation in such locations poses heightened risks
11
that juveniles will be involved or endangered, and therefore,
12
cultivation of any amount of marijuana in such locations or premises
13
is especially hazardous to public safety and welfare, and to the
14
protection of children and the person (s) cultivating the marijuana
15
plants .
16
(1) It is the purpose and intent of this Chapter to implement
17
State law by providing a means for regulating the cultivation of
18 nonmedical marijuana in a manner that is consistent with State law,
19 and in a manner that promotes the health, safety, and welfare of the
20 residents and businesses within the unincorporated territory of the
21 County of Butte.
22 (m) It is also the purpose and intent of this Chapter to provide
23 a complaint-driven civil process to remedy nuisances related to
24 nonmedical marijuana cultivation.
25 34C-3 Definitions.
5
1 Except where the context otherwise requires, the following
2 definitions shall govern the construction of this Chapter:
3 (a) "Accessory structure" means a fully enclosed structure that
4 is located on the grounds of a "private residence, " and is detached
5 from the "private residence, " as that term is defined herein.
6 (b) "Child Care Center" means any licensed child care center,
7 daycare center, or childcare home, or any preschool .
8 (c) "Church" means a structure or leased portion of a structure,
9 which is used primarily for religious worship and related religious
activities .
10
(d) "Code Enforcement Officer" means any person employed by the
11
County of Butte and appointed to the position of code enforcement
12
officer.
13
(e) "Cultivation" means any activity involving the planting,
14
growing, harvesting, drying, curing, grading, or trimming of
15
marijuana.
16
(f) "Enforcing Officer" means the Code Enforcement Officer or
17
his or her authorized deputies or designees, each of whom is
18 independently authorized to enforce this Chapter.
19 (g) "Fence" means a wall or a barrier connected by boards,
20 masonry, rails, panels, wire or any other materials approved by the
21 Department of Development Services for the purpose of enclosing space
22 or separating parcels of land. The term "fence" does not include
23 retaining walls.
24 (h) "Indoors" means entirely within a "private residence" or
25 "accessory structure" as defined herein.
6
1 (i) "Legal parcel" means any parcel of real property that may
2 be separately sold in compliance with the Subdivision Map Act
3 (Division 2 (commencing with Section 66410) of Title 7 of the
4 Government Code) .
5 (j ) "Marijuana" has the same meaning as in Section. 11018 of the
6 California Health & Safety Code.
7 (k) "Outdoors" means any location that is not "indoors" as
defined herein.
8
9 (1) "Parcel" means a "legal parcel" as defined herein.
(m) "Premises" means a single, legal parcel of property that
10
includes an occupied legal residence that is a dwelling in compliance
11
with Chapter 26 of the Butte County Code and has also met the
12
requirements of Sections 34C-6 and 34C-7 .
13
(n) "Private residence" means a house, apartment unit, mobile
14
home, or other similar dwelling.
15
(o) "Residential treatment facility" means a facility providing
16
for treatment of drug and alcohol dependency, including any "sober
17
living facility" run by treatment providers for the benefit of
18 transitional living.
19 (p) "School" means an institution of learning for minors,
20 whether public or private, offering a regular course of instruction
21 required by the California Education Code, or any child or day care
22 facility. This definition includes a nursery school, kindergarten,
23 elementary school, middle or junior high school, senior high school,
24 or any special institution of education, but it does not include a
25
7
1 vocational or professional institution of higher education, including
2 a community or junior college, college or university.
3 (q) "School Bus Stop" means any location designated in
4 accordance with California Code of Regulations, Title 13, section
5 1238, to receive school buses, as defined in California Vehicle Code
6 section 233, or school pupil activity buses, as defined in Vehicle
7 Code section 546.
8 (r) "School Evacuation Site" means any location designated by
9 formal action of the governing body, Superintendent, or principal of
any school as a location to which juveniles are to be evacuated to,
10
or are to assemble at, in the event of an emergency or other incident
11
at the school .
12
(s) "Youth-oriented facility" means elementary school, middle
13
school, junior high school, high school, public park, and any
14
establishment that advertises in a manner that identifies the
15
establishment as catering to or providing services primarily intended
16
for minors, or the individuals who regularly patronize, congregate
17
or assemble at the establishment are predominantly minors . This shall
18 not include a day care or preschool facility.
19 34C-4 Nuisance Declared; Cultivation Restrictions.
20 (a) The cultivation of marijuana that is not in compliance with
21 the requirements scat out in this Chapter is hereby declared to be
22 unlawful, and a public nuisance, which may be abated in accordance
23 with this Chapter.
24
25
8
1 (1) Not more than six marijuana plants may be cultivated
2 indoors, or in an outdoor garden located upon the grounds of a private
3 residence, at any one time.
4 (2) If the premises is less than five (5) acres in size, the
5 cultivation of not more than six marijuana plants, and the possession
6 of the marijuana produced by the plants, shall only take place
7 indoors, and in one contiguous space.
8 (3) If the premises is five (5) acres in size or greater, the
9 cultivation of not more than six marijuana plants, and the possession
of the marijuana produced by the plants, may take place either
10
indoors, or in an outdoor garden located on the grounds of a private
11
residence. The entire cultivation must take place in one contiguous
12
space.
13
(b) For cultivation to be permissible inside an accessory
14
structure, the accessory structure must: 1) comply with the California
15
Building Standards Code (Title 24 California Code of Regulations) ,
16
as adopted by the County of Butte; 2) be secure against unauthorized
17 entry; 3) be accessible only through one (1) or more lockable doors;
18 4) be constructed of approved building materials, including glass,
19 so as long as the: marijuana being cultivated cannot be seen from any
20 public right-of-way, including neighboring parcels; 5) contain a
21 ventilation and filtration system that prevents marijuana plant odors
22 from exiting the interior of the structure; 6) be located in the rear
23 yard area of a legal parcel or premises; and 7) maintain the setbacks
24 set forth in section 34C-8 .
25
9
1 (c) The installation of electrical fixtures, plumbing, or
2 ventilation/filtration systems, for the purpose of modifying an
3 existing structure to meet the requirements of an accessory structure,
4 shall require a Building Permit.
5 34C-5. Complaints.
6 Any person may make a complaint relating to this Chapter.
7 34C-6. Residency requirements.
8 Persons engaging in the cultivation of marijuana shall either
9 own the premises, or have entered into a written lease with the owner
of the premises.
10
34C-7 Environmental requirements.
11
(a) Any parcel where the cultivation of marijuana takes place
12
shall: (1) have a permitted permanent water well or connection to a
13
municipal water source on the premises; (2) not engage in unlawful
14
or unpermitted surface drawing of water for such cultivation; and (3)
15
not permit illegal discharges of water from the premises .
16
(b) The premises where the cultivation of marijuana takes place
17
shall either be hooked up to a municipalities' sewer system, or have
18 a Butte County inspected and permitted sewage disposal system.
19 (c) Persons engaging in the cultivation of marijuana shall use,
20 dispose and store chemicals in accordance with all applicable laws .
21 34C-8. Setbacks; Other Restrictions.
22 (a) Each accessory structure or outdoor garden area that
23 constitutes the single cultivation area where marijuana is cultivated
24 shall be set back from the boundaries of the premises as follows:
25
10
1 (1) If the premises is less than five (5) acres, and the
2 marijuana cultivation takes place inside an accessory structure, the
3 accessory structure shall be set back at least fifteen (15) feet from
4 all boundaries of the premises, and at least seventy-five (75) feet
5 from any occupied residential structure located on a separate legal
6 parcel, unless the Director of the Department of Development Services
7 or his or her designee reduces or waives one or both of these
8 requirements based upon a finding of unusual hardship for that
9 particular parcel to comply with such setback requirements . Owners
of parcels adjacent to such premises shall be notified in writing of
10
any exercise of such discretion under this section.
11
(2) If the premises is equal to or greater than five (5) acres
12
but less than ten (10) acres in size, the accessory structure or
13
outdoor garden area constituting the single cultivation area shall
14
be set back at least seventy-five (75) feet from all boundaries of
15
the premises, and at least one hundred and fifty (150) feet from any
16
occupied residential structure located on a separate legal parcel,
17
unless the Director of the Department of Development Services or his
18 or her designee reduces or waives one or both of these requirements
19 based upon a finding of unusual hardship for that particular parcel
20 to comply with such setback requirements . Owners of parcels adjacent
21 to such premises shall be notified in writing of any exercise of such
22 discretion under this section.
23 (3) If the premises is greater than ten (10) acres in size, the
24 accessory structure or outdoor garden area constituting the single
25 cultivation area shall be set back at least one hundred and fifty
11
1 (150) feet from all boundaries of the premises, and at least one
2 hundred and fifty (150) feet from any occupied residential structure
3 located on a separate legal parcel, unless the Director of the
4 Department of Development Services or his or her designee reduces or
5 waives one or both of these requirements based upon a finding of
6 unusual hardship for that particular parcel to comply with such
7 setback requirements. Owners of parcels adjacent to such premises
8 shall be notified in writing of any exercise of such discretion under
this section.
9
(4) For cultivation taking place in an accessory structure,
10
such setback distance shall be measured in a straight line from the
11
accessory structure to the boundary line of the premises . For
12
cultivation taking place in an outdoor garden area, the cultivation
13
area shall be measured from the outer edge of the canopy of the
14
marijuana plants, and not from the stalk, to the boundary line of the
15
premises.
16
(b) Notwithstanding the requirements of subsection 34C-4 (a)
17
above, the cultivation of marijuana, in any amount or quantity, shall
18 not be allowed in the following areas :
19
(1) Within one thousand (1, 000) feet of a youth-oriented
20 facility, a school, a park, or any church or residential treatment
21 facility as defined herein.
22 (2) Within six hundred (600) feet from a school bus stop.
23 (3) In any location where the marijuana plants are visible from
24 the public right of way or publicly traveled privately maintained
25 roads.
12
1 (4) In any location in the following zones :
2 (A) Commercial Zones (GC (General Commercial) , NC (Neighborhood
3 Commercial) , CC (Community Commercial) , REC (Recreation Commercial) ,
4 SE (Sports and Entertainment) , MU (Mixed Use) ) ;
5 (B) Industrial Zones (LI (Limited Industrial) , GI (General
6 Industrial) , HI (Heavy Industrial) ) ; and
7 (C) Special Purpose Zones (PB (Public) , AIR (Airport) , RBP
8 (Research/Business Park) , PD (Planned Development) ) .
(c) The distance between the above-listed uses in Section
9
(b) (1) and marijuana that is being cultivated shall be measured in a
10
straight line from the nearest point of the fence required in section
11
34C-10, or if the marijuana is cultivated indoors, from the nearest
12
exterior wall of the building in which the marijuana is cultivated,
13
to the nearest boundary line of the property on which the facility,
14
building, or structure, or portion of the facility, building, or
15
structure in which the above-listed use occurs, is located. The
16
distance in Section (b) (2) shall be measured from the fence required
17
in Section 34C-10 to the nearest exterior wall of the residential
18 structure.
19 (d) No person owning, leasing, occupying, or having charge or
20 possession of any premises within the County shall cause, allow,
21 suffer, or permit such premises to be used for the outdoor or indoor
22 cultivation of marijuana plants in violation of this chapter.
23 34C-9 Permission of Property Owner.
24 If the person (s) cultivating on any legal parcel is/are not the legal
25 owner (s) of the parcel, such person (s) shall obtain the written
13
1 permission (including notarized signatures) of the legal owner (s)
2 consenting to the cultivation of marijuana on the parcel .
3 34C-10 Fencing.
4 All marijuana grown outside of any building must be fully enclosed
5 by a solid and opaque fence (of approved materials by the Department
6 of Development Services) at least six (6) feet in height or a height
7 sufficient to conceal the marijuana from view, whichever is higher,
8 provided, however, that such fence shall not be required for marijuana
9 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
10
of Development Services or his or her designee shall have discretion
11
to determine whether the plants are grown out of sight from public
12
view. Should the marijuana plant (s) grow higher than the fence,
13
either (1) the plants shall be cut so as to not extend higher than
14
such fence or (2) the person growing marijuana plants shall install
15
a fence sufficient to conceal the marijuana plants from public view
16
and comply with all applicable Butte County permit requirements. The
17
fence must be adequately secure to prevent unauthorized entry. Bushes
18 or hedgerows may constitute an adequate fence under this Chapter on
19 parcels five (5) acres and above in size.
20 34C-11 Public Nuisance; Violations.
21 A violation of any provision of this Chapter shall be deemed to be a
22 public nuisance and subject to the enforcement process as set forth
23 in sections 34C-12 through 34C-17 of this Chapter.
24 34C-12 Enforcement.
25
14
1 (a) The County may, in its discretion, abate a violation of
2 this Chapter by the prosecution of a civil action, including an action
3 for injunctive relief, without first going through the administrative
4 procedures set forth herein. The remedy of injunctive relief may take
5 the form of a court order, enforceable through civil contempt
6 proceedings, prohibiting the maintenance of a violation of this
7 Chapter, or requiring compliance with other terms.
8 (b) The County may also abate a violation of this Chapter
9 through the abatement process established by Government Code Section
25845.
10
34C-1.3 Abatement procedures.
11
(a) Whenever a Code Enforcement Officer determines that a
12
public nuisance (as defined in this Chapter) exists, he or she shall
13
post a 72-Hour Notice to Abate on the property where the public
14
nuisance exists, and mail a copy of the same to those persons shown
15
on the latest County tax roll to be the owners of the property. The
16
72--Hour Notice to Abate shall inform the owner and/or tenants of the
17
basis for the violation, and that an Administrative Penalty of $500
18 per day will accrue for each day that the violation continues to
19 exist; explain that if the violation is not corrected, the matter
20 will be set for a Nuisance Abatement Hearing, at which time the
21 Administrative Penalty will increase to $1, 000 per day; and explain
22 that to prevent the accrual of additional penalties and costs, the
23 owner or tenant must contact the Code Enforcement Office and arrange
24 a time for a Code Enforcement Officer to inspect the property, and
25 confirm that the violation (s) have been corrected.
15
1 (b) If the nuisance continues to exist after the expiration of
2 the seventy-two (72) hour period, a Code Enforcement Officer may set
3 the matter for hearing by issuing a Notice of Nuisance Abatement
4 Hearing. If the matter is set for hearing, the Code Enforcement
5 Officer shall post the property upon which the public nuisance exists
6 and shall mail, with a proof of service, notices to those persons
7 known to be in possession of the property, if any, and to persons
8 shown on the latest County tax roll to be the owners of the property
9 at least ten (10) days prior to the hearing. The Administrative
Penalty shall increase to $1, 000 per day from the date the Notice of
10
Nuisance Abatement Hearing is posted on the property, and shall
11
continue to accrue at that rate for each day that the violation
12
continues to exist. Both the mailed and posted notice shall be in
13
substantially the following form:
14
NOTICE OF NUISANCE ABATEMENT HEARING
15
The owner (s) and occupant (s) of real property
16
described on the latest equalized Butte County
17
tax roll as A. P. No. and having a
18
street address of is (are) hereby
19
notified to appear before a Hearing Officer of
20 the County of Butte at on
21
20 at the hour of
22 o' clock m. , to show
23 cause, if any there be, why the use of said real
24 property should not be found to be a public
25 nuisance and abated pursuant to the Butte County
16
1 Code Chapter 34C. The Department of Development
2 Services has determined that conditions exist on
3 the above property which constitute a public
4 nuisance and violate Butte County Code
5 section(s) , as follows:
6 . After hearing, if a violation is
7 found to have existed at the time the Notice of
8 Nuisance Abatement Hearing was posted on the
9 property, the Administrative Costs incurred in
prosecuting the violation, including, but not
10
limited to, the cost of the Hearing Officer, the
11
cost of prior time and expenses associated with
12
bringing the matter to hearing, attorneys' fees,
13
the cost associated with any appeals from the
14
decision of the Hearing Officer, the cost of
15
judicially abating the violation, the cost of
16
labor and material necessary to physically abate
17
the violation, the cost of securing expert and
18 other witnesses, and the accrual of any
19 Administrative Penalties, may become a lien
20 against the subject property and may also be
21 assessed against the property in the same manner
22 as taxes. If a lien is recorded, it will have
23 the same force and effect as an abstract of
24 judgment which is recorded as a money judgment
25 obtained in a court of law. If you fail to appear
17
1 at the hearing or if you fail to raise any
2 defense or assert any relevant point at the time
3 of hearing, the County will assert, in later
4 judicial proceedings to enforce an order of
5 abatement, that you have waived all rights to
6 assert such defenses or such points .
7 In preparing for such hearing, you should be
8 aware that if an initial showing is made by the
9 County, sufficient to persuade the Hearing
10 Officer that a public nuisance existed on your
11 property at the time the Notice of Nuisance
Abatement Hearing was posted, you will then have
12
the burden of proving that no public nuisance
13
existed on your property. Therefore, you should
14
be prepared to introduce oral and documentary
15
evidence proving why, in your opinion, your use
16
of the property is not a public nuisance as
17
defined in this Chapter. A copy of the Butte
18
County Code Chapter 34C relating to Marijuana
19
Cultivation nuisance abatement hearings is
20 enclosed to assist you in the preparation of
21 your presentation.
22
If an initial showing sufficient to persuade the
23 Hearing Officer that a public nuisance existed
24 on your property is made by the Code Enforcement
25 Officer, your failure to sustain the burden of
18
1 showing that no public nuisance existed on the
2 property may result in a decision by the Hearing
3 Officer that a public nuisance did exist, and
4 that the County is entitled to recover its
5 Administrative Costs, and all Administrative
6 Penalties that accrued up to the time that the
7 nuisance was abated.
8 Further, if the Hearing Officer finds that a
9 public nuisance continues to exist on your
10 property, and you fail to abate the nuisance
11 promptly, the County may abate the nuisance. If
the County abates the nuisance, in addition to
12
being able to recover its Administrative Costs
13
and Penalties, you may be responsible for the
14
actual costs of the abatement . In either
15
circumstance, all Administrative and Abatement
16
Costs may be specially assessed against your
17
parcel by the Auditor-Controller' s Office and
18
added to your tax bill as a special assessment,
19
and all Administrative Penalties may be recorded
20
against your property as a judgment lien.
21 Special assessments have the same priority, for
22 collection purposes, as other county taxes and,
23 if not paid, may result in a forced sale of your
24 property. You are also hereby notified that the
25 County will seek recovery of attorneys ' fees
19
1 incurred in any hearing and that attorneys ' fees
2 may be recovered by the prevailing party.
3 Finally, if the Hearing Officer finds that a
4 public nuisance exists on your property, in
5 violation of the Butte County Code Chapter 34C,
6 the County will contend that you are bound by
7 such finding at any subsequent judicial action
8 to enforce the Hearing Officer' s order.
9 IMPORTANT: READ THIS NOTICE CAREFULLY.
10 IN ADDITION TO ANY ADMINISTRATIVE CIVIL
11 PENALTIES THAT HAVE ALREADY ACCRUED, AN
12 ADMINISTRATIVE CIVIL PENALTY OF $1, 000 PER DAY
13 IS HEREBY IMPOSED FROM THE DATE THIS NOTICE WAS
14 POSTED ON YOUR PROPERTY, AND WILL CONTINUE TO
ACCRUE AT THAT RATE UNTIL THE NUISANCE IS
15
ABATED. IN ORDER TO PREVENT THE ACCRUAL, OF
16
ONGOING PENALTIES AND COSTS, YOU MUST CONTACT
17
THE CODE ENFORCEMENT OFFICE, AND ARRANGE A TIME
18
FOR A CODE ENFORCEMENT OFFICER TO INSPECT YOUR
19
PROPERTY, AND CONFIRM THAT THE VIOLATIONS) HAVE
20
BEEN CORRECTED.
21
FAILURE TO APPEAR AND RESPOND AT THE TIME SET
22
FORTH IN THIS NOTICE WILL LIKELY RESULT IN
23
ADMINISTRATIVE AND/OR JUDICIAL ABATEMENT AND
24
TERMINATION OF USES OF OR CONDITIONS ON YOUR
25
20
1 PROPERTY WHICH THE DIRECTOR OF DEVELOPMENT
2 SERVICES CONTENDS ARE IN VIOLATION OF THE BUTTE
3 COUNTY CODE.
4 Dated:
5 BUTTE COUNTY DIRECTOR OF DEVELOPMENT SERVICES
6 By:
7 Enclosure: Butte County Code Chapter 34C
8
9 (c) All hearings conducted under this Chapter shall be held
10 before a Hearing Officer designated pursuant to the protocol set
11 forth in that document entitled the "Butte County Administrative
12 Hearing Officer Program. " The Program is based upon an alphabetical
rotation through attorneys currently under contract through the
13
Program.
14
(d) At the time and place set for the hearing, the Hearing
15
Officer shall hear testimony and receive written and/or documentary
16
evidence relating to the alleged violation. Additional procedural
17
rules may be adopted by resolution of the Board of Supervisors. The
18
Director of Development Services, or his or her designee, shall tape
19
record the hearing, and provide a copy of the recording to the Hearing
20
Officer following the conclusion of the hearing. The Hearing Officer
21
shall preserve the record of the hearing, and all photographs and
22
demonstrative and documentary evidence introduced at the time of the
23 hearing, for a period of three (3) years .
24 (e) Within five (5) days after the hearing is closed, the Hearing
25 Officer shall render his or her written decision relating to the
21
1 existence or nonexistence of the alleged public nuisance. If a
2 violation is found to have existed at the time the Notice of Nuisance
3 Abatement Hearing was posted, the decision shall include a statement
4 that the County is entitled to recover its Administrative Costs and
5 Administrative Penalties. If the Hearing Officer determines that the
6 violation continues to exist, the decision shall also order that the
7 owner of the property, or persons known to be in possession of the
8 property, abate the violation within a reasonable time, not to exceed
9 ten (10) days from the date the decision is placed in the mail.. The
decision shall contain findings of fact and conclusions of law. A
10
copy of the decision shall be mailed by certified mail, return receipt
11
requested, to the person or persons shown on the last County tax roll
12
to be the owners of the property which is the subject of the hearing
13
and the occupant of such parcel, if any. All other persons noticed
14
pursuant to this section shall be mailed a copy of the decision by
15
first class mail, postage prepaid.
16
(f) The decision of the Hearing Officer shall be final and
17
conclusive on the date the certified mail set forth in subsection (e)
18
above, is deposited in the mail .
19
(g) (1) Notwithstanding any other provisions of this Code, if a
20 final decision of the Hearing Officer finds that a violation exists
21 and the public nuisance is not voluntarily abated within ten (10)
22 days of said decision being placed in the mail by the Hearing Officer,
23 the Director of Development Services or his or her designee may abate
24 the public nuisance by cutting and/or removing all marijuana plants
25 from the property, pursuant to a warrant issued by a court of
22
1 competent jurisdiction. The owner of the property shall be responsible
2 for paying all of the County' s Abatement Costs and Administrative
3 Costs, including but not limited to, those cost items set forth in
4 the notice required by subsection (a) above, and Administrative
5 Penalties. The Director of Development Services or his or her designee
6 shall keep an accounting of the Abatement and Administrative Costs
7 for each case. Upon completion of the abatement of the nuisance,
8 whether by the Director of Development Services or his or her
9 designee, or the owner or tenant, the Director of Development Services
or his or her designee shall post the property and send a bill to the
10
owner, and any persons known to be in possession of the property,
11
requesting payment of the County' s Abatement and Administrative
12
Costs, as well as all Administrative Penalties. The bill shall also
13
state that failure to pay the Costs and Penalties within fifteen (15)
14
days from service of the bill may result in the recording of a lien
15
and the placement of a special assessment against the property.
16
(2) If the County' s Costs and Penalties are not paid within
17
fifteen (15) days from service of the bill, the Director of
18
Development Services shall render an itemized report to the Clerk of
19
the Board of Supervisors for submittal to the Board of Supervisors
20 for hearing and consideration regarding the proposed lien and special
21 assessment . The report shall include the names and addresses of the
22 owner of record and any persons known to be in possession of the
23 property, and an itemized account of the County' s Abatement Costs,
24 Administrative Costs, and Administrative Penalties . At least fifteen
25 (15) days prior to said hearing, the Clerk of the Board of Supervisors
23
1 shall give notice, with an affidavit of service, of said hearing to
2 all persons named in the Director of Development Services ' report and
3 the Director of Development Services or his or her designee shall
4 post the property with a copy of the notice. The notice shall describe
5 the property by assessor' s parcel number and street number or other
6 description sufficient to enable identification of the property and
7 contain a statement of the amount of the proposed lien and special
assessment. The notice shall also contain a statement that the Board
8
9 will hear and consider objections and protests to the proposed lien
and special assessment at the designated time and place.
10
(h) At the time and place fixed in the notice, the Board of
11
Supervisors shall hear and consider the proposed lien and special
12
assessment together with objections and protests thereto. At the
13
conclusion of the hearing, the Board of Supervisors may make such
14
modifications and revisions to the proposed lien and special
15
assessment as it deems just and may order that the proposed lien and
16
special assessment be recorded by the Director of Development Services
17
and specially assessed against the property by the Auditor-
1s Controller' s Office. The lien shall have the same force, priority and
19 effect as a judgment lien and the special assessment shall have the
20 same priority as other County taxes .
21 (i) The notice of lien shall, at a minimum, identify the record
22 owner or possessor of the property, set forth the date upon which the
23 decision of the Hearing Officer was issued, describe the real property
24 subject to the lien, set forth the amount of the Costs and Penalties
25 incurred to date and, if applicable, the date upon which the abatement
24
1 was completed. If the abatement has not yet been completed, the notice
2 shall so state and shall also indicate that the lien is a partial
3 lien and that additional Abatement Costs will be incurred in the
4 future.
5 It is the intent of the Board of Supervisors that Abatement
6 Costs, Administrative Costs, and Administrative Penalties incurred
7 after the filing of the notice of abatement lien relate back to the
8 date upon which the lien was recorded for purposes of priority;
9 however, in order to preserve its rights, after all Abatement Costs,
10 Administrative Costs, and Administrative Penalties have been incurred
11 and the abatement is complete, the Department of Development Services
shall cause a supplemental notice of abatement lien to be recorded.
12
The supplemental notice shall contain all of the information required
13
for the original notice and shall also refer to the recordation date
14
and the recorder' s document number of the original notice.
15
(j ) The decision of the Hearing Officer or Board of Supervisors
16
may be recorded by the Director of Development Services . In the event
17
of such recordation, and in the further event that the violation is
18
corrected and all Costs and Penalties are paid, a notice of such
19
correction shall be recorded. The Director of Development Services
20 is authorized to prepare and record a notice of correction. Correction
21 of the violation shall not excuse the property owner' s liability for
22 costs incurred during the administrative abatement process (Abatement
23 Costs, Administrative Costs, and Administrative Penalties as defined
24 in sections 34C-14 and 34C-16 of this Chapter) . In any action to
25
25
1 foreclose on a lien issued pursuant to this Chapter, the County shall
2 be entitled to an award of attorney' s fees .
3 34C-14 Abatement costs; Administrative costs.
4 (a) The term "Abatement Costs" means any costs or expenses
5 reasonably related to the abatement of conditions which violate the
6 Butte County Code, and shall include, but not be limited to,
7 enforcement, investigation, attorneys' fees, collection and
8 administrative costs, and the costs associated with the removal or
correction of the violation.
9
(b) The term "Administrative Costs, " shall include the cost of
10
County staff time reasonably related to enforcement, for items
11
including, but not limited to, site inspections, travel time,
12
investigations, telephone contacts and time spent preparing
13
summaries, reports, notices, correspondence, warrants and hearing
14
packets. The time expended by Development Services and Auditor-
15
Controller staff, to calculate the above costs and prepare itemized
16
invoices, may also be recovered.
17
(c) In any action, administrative proceeding, or special
18 proceeding to abate a nuisance, attorneys ' fees may be recovered by
19 the prevailing party. In no action, administrative proceeding, or
20 special proceeding shall an award of attorneys ' fees to a prevailing
21 party exceed the amount of reasonable attorneys ' fees incurred by the
22 County in the action or proceeding.
23 34C-15 Non-exclusive remedy.
24 This Chapter is cumulative to all other remedies now or hereafter
25 available to abate or otherwise regulate or prevent public nuisances.
26
1 34C-16 Administrative Civil Penalties.
2 In addition to any other remedies provided by County Code or State
3 Law, there is hereby imposed the following civil penalty for each
4 violation of this Chapter:
5 (a) Five hundred dollars ($500. 00) per day from the day the 72-
6 Hour Notice is posted on the property, and continuing for each day
7 that the violation continues to exist; however, if a Notice of
8 Nuisance Abatement Hearing is issued, the penalty shall increase to
9 one thousand dollars ($1, 000. 00) per day from the date the Notice of
Nuisance Abatement Hearing is posted on the property, and shall
10
continue to accrue at that rate for each day that the violation
11
continues to exist, until the violation is abated by whatever means.
12
(b) At the Nuisance Abatement Hearing, the Hearing Officer shall
13
determine the total amount of Administrative Penalties that have
14
accrued at the time of the hearing, and that amount shall be reflected
15
in the decision and awarded to the County. If at the time of the
16
hearing the nuisance has yet to be abated, the decision shall state
17
that Administrative Penalties shall continue to accrue at $1, 000 per
18 day until the nuisance is abated. The decision of the Hearing Officer
19 shall be final and conclusive on the date the decision is deposited
20 in the mail.
21 (c) Administrative Penalties shall not be awarded if the
22 property owner establishes all of the following: (i) that, at the
23 time he or she acquired the property, a violation of this code already
24 existed on the property; (ii) the property owner did not have actual
25 or constructive notice of the existence of that violation; and (iii)
27
1 within thirty (30) days after the mailing of notice of the existence
2 of that violation, the property owner initiates and pursues, with due
3 diligence, good faith efforts, to meet the requirements of this code.
4 (d) In the event a tenant or property owner contacts a Code
5 Enforcement Officer and demonstrates that all violations have been
6 corrected in a timely manner prior to a hearing being conducted
7 pursuant to this Chapter, the Director of Development Services, or
8 his or her designee, has the authority to waive or reduce the amount
9 of penalties owed, and cancel the scheduled hearing, if in his or her
opinion such a reduction and hearing cancellation is warranted.
10
(e) Following the issuance of a Hearing Officer' s decision, the
11
Director of Development Services, or his or her designee, may
12
compromise the amount of any administrative penalty imposed by the
13
Hearing Officer. When determining whether to compromise any penalty
14
amount, the Director, or his or her designee, shall take into
15
consideration the nature, circumstances, and gravity of the
16
violation (s) , any prior history of violations, the degree of
17
culpability, the financial burden to the person (s) upon whom the
18 penalty has been imposed, the degree to which the proposed compromise
19 will facilitate collection of the penalties without the need for
20 further legal action, and any other matters justice may require. The
21 compromise shall be subject to any terms and conditions prescribed
22 by the Director, or his or her designee, which may include, without
23 limitation, a condition requiring that the subject legal property and
24 all responsible parties remain free of any additional violations for
25 a specified period of time . Any person accepting a compromise penalty
28
1 hereunder shall be required to execute a Compromise Agreement in a
2 form approved by County Counsel.
3 34C-17 Summary Abatement.
4 Notwithstanding any other provision of this Chapter, when any unlawful
5 marijuana cultivation constitutes an immediate threat to the public
6 health or safety, and where the procedures set forth in sections 34C-
7 11 through 34C-14 would not result in abatement of that nuisance
8 within a short enough time period to avoid that threat, the enforcing
9 officer may direct any officer or employee of the County to summarily
abate the nuisance. The enforcing officer shall make reasonable
10
efforts to notify the persons identified in Section 34C-13 but the
11
formal notice and hearing procedures set forth in this Chapter shall
12
not apply. No summary abatement shall occur prior to consultation
13
with the office of County Counsel. The County may nevertheless recover
14
its costs for abating that nuisance in the manner set forth in this
15
Chapter.
16
34C-1$ No Duty to Enforce.
17
Nothing in this Chapter shall be construed as imposing on the
18 enforcing officer or the County of Butte any duty to issue a Notice
19 to Abate Unlawful Marijuana Cultivation, nor to abate any unlawful
20 marijuana cultivation, nor to take any other action with regard to
21 any unlawful marijuana cultivation, and neither the enforcing officer
22 nor the County shall be held liable for failure to issue an order to
23 abate any unlawful marijuana cultivation, nor for failure to abate
24 any unlawful marijuana cultivation, nor for failure to take any other
25 action with regard to any unlawful marijuana cultivation.
29
1 34C-19 Use of Money Collected Under This Chapter.
2 All money collected for penalties for violations of this Chapter and
3 all money collected for recovery of costs of enforcement of this
4 Chapter shall be made available: to the Departments, who are involved
5 in the enforcement of this Chapter.
6 Section 2 . (CEQA) . The County finds that this Chapter is not subject
7 to the California Environmental Quality Act (CEQA) pursuant to
Sections 15060 (c) (2) (the activity will result in a direct or
9 reasonably foreseeable indirect physical change in the environment)
and 15061 (b) (3) (there is no possibility the activity in question may
10
have a significant effect on the environment) . In addition to the
11
foregoing general exemptions, the following categorical exemptions
12
apply: Sections 15308 (actions taken as authorized by local ordinance
13
to assure protection of the environment) and 15321 (action by agency
14
for enforcement of a law, general rule, standard or objective
15
administered or adopted by the agency, including by direct referral
16
to the County Counsel as appropriate for judicial enforcement) .
17
Section 3 . Severability. If any provision of this Chapter or the
18 application thereof to any person or circumstance is held invalid,
19 the remainder of this Chapter, including the application of such
20 party or provision to other circumstances shall not be affected
21 thereby and shall continue in full force and effect. To this end,
22 provisions of this Chapter are severable. The Board of Supervisors
23 hereby declares that it would have passed each section, subsections,
24 subdivisions, paragraphs, sentences, clauses or phrases be held
25 unconstitutional, invalid or unenforceable.
30
1 Section 4 . Effective Date and Publication. The Clerk of the Board
2 will publish the Ordinance codified in this Chapter as required by
3 law. The Ordinance codified in this Chapter shall take effect thirty
4 (30) days after final passage .
5 PASSED AND ADOPTED by the Board of Supervisors of the County of Butte,
6 State of California, on the 14th day of March, 2017 by the following
7 vote :
AYES: Supervisors Kirk, Teeter, and Chair Connelly
9
NOES: Supervisors Wahl and Lambert
10
ABSENT: None
11
NOT VOTING: None
12
13 BILL, CONNELLY, Chair X
Butte County Board of Survisors
14
is ATTEST:
16 PAUL HAHN, Chief Administrative Officer
and Clerk of the Board
17
18 By:
Uepu7-y
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