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HomeMy WebLinkAbout7-26-11 Mackenzie Land LawMACKENZIE LAND LAW RD[3L•RT W. MncK~N2~~, Esp. Board of Supervisors of the County of Butte ~~L ~ ~ ~~~~ CIO Paul Hahn, CAO and Clerk of the Board 25 County Center Drive, Suite 200 DROVII.I.~, ~~®~ Oroville, Ca 95965 RE: Attached Draft Cultivation Ordinance for Your Board's Consideration at Your Board's Meeting of August 9, 2Q11 Dear honorable members of the Board of Supervisors and CAO Hahn: This letter summarizes an ordinance I have drafted for your consideration, which is similar to the ordinance your Board adopted on May 24, 2011, but it is also different in several important respects. The District Attorney and Sheriff have implied that medical marijuana growers are, for the mast part, criminals who grow a dangerous drug with no medical benefits, who are simply masquerading as medical providers. Finally, the introductory presentation also implied that the County is presently in the grip of a crime wave being perpetrated by those who grow marijuana, and that immediate action is required by the Board. As I have indicated, my clients and I do not believe that the current situation is dire. My clients have instructed me to draft an ordinance which regulates medical marijuana from a common sense perspective, without several of the features of the ordinance your Board adopted on May 24 {hereinafter Ordinance 4029). The reality is that marijuana provides undeniable medical benefits to a large number of people. Further, in a county where there presently is a two-year moratorium in effect on the operation of dispensaries, medical marijuana gatients only have limited options: grow your own, have a caregiver grow it for you, or join a collective. If the County prohibits the cultivation of medical marijuana on parcels of 0.5 acres and less, and if the County elects to regulate cultivation of medical marijuana on larger parcels in an overly restrictive manner, as in Ordinance 4029, this would put medical marijuana patients in a Catch-22 situation, forcing them to buy medicine on the black market. Below I have summarized bath the similarities and the differences of the two ordinances. The Similarities of the Two Ordinances Ordinance 4029 sets forth a policy on any parcel or contiguous group i plants, out of respect for the articulated. T attached ordi nce ~/ ~ ~~ ,:.; ~ ~~~ ~~~ ~. Tel 530.895.990.Z~ 3uly 26, 201 I ~ ..:.~, ~~F~ SilpERVfSORS w~ri'ch allows a maximum number of mature plants parcels under the same ownership or control of 94 eral government policy which Mr. Ramsey has sets forth that same policy. ~yf , ~~, Fax 530.899.1102 330 Wa!! SCreet, Suite 40 Chico, CA 95928 rwmC~mackezielandlaw.com Board of Supervisors of the County of Butte and CAO Paul Hahn rely z6, 2011 Page 2 Tn addition, Ordinance 4029 is a nuisance ordinance, any violation of which is deemed to be a public nuisance and is subject an administrative enforcement procedure, characterized by a notice which is set forth in the ordinance that triggers a hearing in front of a hearing officer selected by the County from a pool of attorneys on retainer as administrative hearing officers, which the County rotates through. The attached ordinance also provides that any violation of its requirements is a public nuisance and utilizes the same administrative enforcement procedure, using the same notice set Earth Ordinance 4029. The attached ordinance also has an summary abatement provision, which provides that the nuisance can be abated immediately, without notice to the land owner or tenant, when any unlawful marijuana cultivation constitutes an immediate threat to the public health or safety, and where the notice and hearing procedures set forth in the attached ordinance would not result in abatement of that nuisance within a short enough time period to avoid that threat. (See section 34A-16 on p. 36-7.} The attached ordinance also preserves section 34A-11, which provides that the County has the option, in its discretion, to abate the violations of the attached ordinance through the prosecution of a civil action, rather than going through the administrative hearing procedure (See pp. 22-23.). Finally, the attached ordinance also preserves the provisions in Ordinance 4029 which allow the County to collect administrative and abatement costs, including attorneys fees, after a hearing has been held and the County obtains a favorable ruling from the hearing officer {See section 34A-13(j)(1), on p. 32 and section 34A-14, on p. 36. The attached ordinance also preserves section 34A-6(b)(3}, which prohibits cultivation of medical marijuana in any location where the marijuana plants are visible from a public right of way or publicly traveled private roads. (See p. 19.) The Differences Between the Two Qrdinances The attached ordinance is also different from Ordinance 4029 in several important respects. Record Keeping and Verification of Compliance with State Medical Marijuana Laws The attached ordinance greatly simplifies County regulation of medical marijuana, in comparison with Ordinance 4029. For example, the attached ordinance avoids the requirement that the Department of Development Services (DDS} become a custodian of records for the Sheriffs department, which is set forth in section 34A-5 of Ordinance 4029 on pp. 14-15. As a practical matter, DDS should not be taslGed with the burden of monitoring compliance with State medical marijuana laws. Hence, DDS should not be collecting and storing medical marijuana patient recommendations. HIPAA compliance and the sheer volume of the information are two reasons why your Board should avoid requiring that DDS become a repository for records that the Sheriff and the District Attorney would use to monitor compliance with State medical marijuana laws. This Board of Supervisors of the County of Butte and CAO Paul Hahn July 26, 201 i Page 3 ordinance should be a land use ordinance, not a vehicle far helping law enforcement agencies fulfill their responsibilities of enforcing State of California criminal laws, by requiring DDS to collect and store voluminous medical records. Accordingly, the attached ordinance deletes Ordinance 4029's requirement that DDS maintain annually renewed lists of all qualified patients/primary caregivers and copies of medical marijuana recommendationslState-issued medical marijuana cards for all qualified patients. Instead, the registration provision of the attached ordinance simply requires that DDS annually collect and maintain for each "premises" a declaration, under penalty of perjury, sworn and executed by the person(s) owning, leasing, occupying, or having charge or possession of the premises, that the cultivation of medical marijuana on the premises is intended to comply with, complies with and shall remain in compliance with, all applicable State medical marijuana laws. (See section 34A-5, on pp. 10-11.) Definitions The attached ordinance defines "cultivation" as the planting, growing, harvesting, drying or processing of one or more marijuana plants or any part thereof in any location. The attached ordinance removes "storage" from the definition of "cultivation." (See section 34A-3(d) on p. 5.) The attached ordinance def nes "enforcement officer" as the Code Enforcement Officer or the authorized designees of the Code Enforcement Officer. The attached ordinance removes Sheriff, or the authorized deputies or designees thereof from the def nition of "enforcement officer." (See section 34A-3{e) on p. 5.) The attached ordinance defines "fence" as a barrier for the purpose of enclosing space or separating parcels of land. The attached ordinance removes "connected by boards, masonry, rails, panels, wire or any other materials approved by the Department of Development Services "from the definition of "fence." (See section 34A-3(f) on p. 5.) The attached ordinance defines "indoors" as within a greenhouse or other similar structure which contains plant odors. The attached ordinance removes "a fully enclosed and secure structure that complies with the California Building Standards Code (Title 24 California Code of Regulations), as adopted by the County of Butte, that has a complete roof enclosure supported by connecting walls extending from the ground to the roof, and a foundation, slab, or equivalent base to which the floor is securely attached. The structure must be secure against unauthorized entry, accessible only through one or more Iockable doors, and constructed of solid materials that cannot easily be broken through, such as 2" x 4" ar thicker studs overlain with 318" or thicker plywood or equivalent materials" from the definition of "indoors." (See section 34A-3(g) on g. 5.) Board of Supervisors of the County of Butte and CAO Paul Hahn July 26, 2011 Page 4 The attached ordinance defines "mature marijuana plant" as one which has reached the flowering stage. The attached ordinance removes "one whose sex can be determined by visual inspection" from the definition of "mature marijuana plant." (See section 34A-3(h} on p. 5.) The attached ordinance defines "outdoors" as any location that is not "indoors" as defined in the attached ordinance. The attached ordinance removes "within a fully enclosed and secure structure" from the definition of "mature marijuana plant." {See .section 34A-3{d} on p. 5.) The attached ordinance removes the forced parcel aggregation provision set forth in Ordinance 4029, which applies to contiguous legal parcels are under common ownership or control, from the definition of "premises." The attached ordinance defines "premises" as follows: Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall be counted as a single "premises" for purposes of this Chapter, when: 1. the aggregate number of mature plants on contiguous legal parcels under common ownership or control is, will be, or is intended to be (ninety-nine (99); and/or 2. solely at the option of the person{s) owning, leasing, occupying, or having charge or possession of the contiguous legal parcels. (See section 34A-3(m) on p. 6.) Maximum Allowable Number of Mature Plants The attached ordinance sets forth eight (8) parcel size groups: 0.5 acre or less, greater than 0.5 acre to 1.5 acres, greater than 1.5 to 5 acres, greater than 5 acres to 10 acres, greater than 10 acres to 20 acres, greater than 20 acres to 40 acres, greater than 40 acres to 80 acres, and greater than 80 acres. Tn those parcel size groups, the number of mature plants allowed are 6 (indoors only), 12, 24, 36, 48, 60, 72 and 99, respectively. (See 34A-4 on pp. 8- Y 0.} The following table sets forth parcel size categories, maximum allowable number of mature plants, required setback distances and whether one-year variances and or setback exemptions apply. Board of Supervisors of the County of Butte and CAO Paul Hahn July 26, 2011 Page 5 Parcel Size Max No. Of Set Back Exemption 1-Yr. Mature Plants Req. Variance Indoor Outdoor s s 0.5 acres or 6 No 15 feet from No No less occupied structure <0.5 acres to 12 15 feet No Na 1.5 acres <1.5 acres to 24 50 feet No No 5 acres <5 acres to 36 100 feet Yes Yes 10 acres <l0 acres to 48 200 feet Yes Yes 20 acres ~0 acres to 60 300 feet Yes Yes 40 acres <40 acres to 7'2 400 feet Yes Yes 80 acres <80 acres 99 500 feet Yes Yes The attached ordinance also sets forth a summary procedure wherein upon registration, the person(s) owning, leasing, occupying, or having charge or possession of any premises greater than five (5) acres in size may apply, on an annual basis, for an administrative permit for none-year variance from the applicable maximum number of plants allowed, by submitting an application setting forth the desired number of plants to be cultivated, over and above the applicable plant limit, accompanied by a variance processing fee. (See 34A-SD on pp. 11-12.) Administrative permits for aone-year plant limit variance may be approved and issued by the planning manager, pursuant to a ministerial review, subject to the procedure set forth in Butte County Code section 24-40. Administrative permits shall be issued to all applicants who comply fully with the procedure and meet all four of the standard requirements set forth in the attached ordinance. Board of Supervisors of the County of Butte and CAO Paul Hahn July 26, 2011 Page 6 Those requirements are as follows: (1) The applicant shall tender a variance processing fee. (2) ~ The desired number of plants can belare cultivated on a location or locations on the subject property, such that all plants cultivated are in compliance with the setback requirements set forth in section 34A-6. (3) No neighboring property owner or resident residing within one hundred (I00) feet of the property line and/or comer of premises upon which the variance is proposed, if the premises upon which the variance is proposed is less than twenty (20) acres in size, or within three hundred {300) feet of a property line and/or corner of premises upon which the variance is proposed, if the premises upon which the variance is proposed is greater than twenty (20} acres in size, objects to the proposed variance from the maximum number of plants allowed in this section 34A-5, prior to the determination on the variance by the planning manager. {4) The desired number of plants/the number of plants actually cultivated does not exceed ninety-nine {99}. (See 34A-SD on pp. 11-12.) Setbacks The attached ordinance requires that medical marijuana can be cultivated at least 600 feet from ayouth-oriented facility, a school, a park, or any church or residential treatment facility, rather than 1,004 feet, as Ordinance 4029 requires. (See attached ordinance, section 34A-6(b)(1) on p. 19.) As set forth above, the attached ordinance sets forth eight (8) parcel size groups: 0.5 acre or less, greater than 0.5 acre to l .5 acres, greater than 1.5 to S acres, greater than 5 acres to 10 acres, greater than I0 acres to 20 acres, greater than 20 acres to 40 acres, greater than 40 acres to 80 acres, and greater than 80 acres. In those pazcel size groups, the required setback from the property line are 1 S feet back from any occupied residential structure located on a separate legal parcel {indoors only), 15 feet from all boundaries of the premises, 50 feet from all boundaries of the premises, 100 feet from all boundaries of the premises, 200 feet from all boundaries of the premises, 300 feet from all boundaries of the premises, 400 feet from all boundaries of the premises, and 500 feet from all boundaries of the premises, respectively. {See section 34A-6{a) on pp. 13-17). There are exemptions to the setback requirements, through which the Director of DDS and/or your Board may reduce or waive the required setback, as follows: 0.5 acre or less: no exemption, greater than 0.5 acre to 1.5 acres: no exemption; greater than 1.5 to 5 acres: an irregular lot shape making it difficult to comply with such setback requirements; greater than 5 acres to 10 acres; greater than 10 acres to 20 acres; greater than 20 acres to 40 acres; greater than 40 acres to 80 acres, and greater than 80 acres: the shape of the premises, topography, the presence of a creek or other body of water or water (irrigation) source limits cultivation location, Iimited vehicular access options, Board of Supervisors of the County of Butte and CAO Paul Hahn July 26, 2011 Page 7 dense vegetation, another natural feature, the location of existing structure{s) on the premises or any combination of these features renders the setback prohibitive, by .reducing the usable area on the parcel to the paint where it is impractical to cultivate less than 100% of the maximum number of plants allowed in section 34A-5. {See section 34A-6{a} on pp.l3-l7). The attached ordinance also sets forth a summary procedure wherein upon registration, the person(s) owning, leasing, occupying, ar having charge or possession of any premises greater than five {5} acres in size may apply, on an annual basis, for an administrative permit for aone-year setback variance from the applicable setback requirement, by submitting an application setting forth the desired number of plants to be cultivated, over and above the applicable plant limit, accompanied by a variance processing fee. (See section 34A-6(b) on pp. 17-18.) Administrative permits for aone-year setback variance may be approved and issued by the planning manager, pursuant to a ministerial review, subject to the procedure set forth in Butte County Code section 24-40. Administrative permits shall be issued to all applicants who comply fully with the procedure and meet all three of the standard requirements set forth in the attached ordinance. Those requirements are as follows: {l) The applicant has tendered a variance processing fee. (2) The maximum number of plants which can belare cultivated on the premises does not exceed the applicable maximum number of plants allowed in section 34A-5 . {3) No neighboring property owner or resident residing within one hundred (100) feet of the property line and/or corner of premises upon which the variance is proposed, if the premises upon which the variance is proposed is less than twenty (20) acres in size, or within three hundred (300) feet of a property line and/or corner of premises upon which the variance is proposed, if the premises upon which the variance is proposed is greater than twenty (20) acres in size, objects to the proposed setback variance, prior to the determination on the variance by the planning manager. Enforcement Provisions Enforcement of the attached ordinance can only be undertaken after a complaint has been made concerning an undesirable impact allegedly proximately caused by the cultivation of medical marijuana by a neighboring property owner ar resident living within 300 feet of a property line and/or corner of premises upon which cultivation of medical marijuana is taking place.(See section 34A-11, on p. 22). The notice required by the attached ordinance before enforcement action can be taken is ten (10) days, rather than 72 hours (see section 34A-12, on p. 23). Board of Supervisors of the County of Butte and CAO Paul Hahn July 26, 2011 Page 8 The attached ordinance has a provision clearly requiring that if the landowner obtains a favorable ruling from the hearing officer, the County shall be responsible for paying the landowner's costs and attorneys' fees, which are reasonably related to the administrative hearing (See section 34A-12 (e}, on p.3D). In this regard, the attached ardznance corrects what my clients and l believe was an oversight in Ordinance 4029. The notice set forth in Ordinance 4029 provides that "attorneys' fees may be recovered by the prevailing party," however, Ordinance 4029 itself does not clearly provide that a prevailing landowner can recover costs and attorneys fees from the County. (See section 34A-12{e), p. 30.) Factual Findings The attached ordinance deletes the findings in Ordinance 4029, which are based upon federal law. It is irrelevant that marijuana is in Category One under the federal controlled substance law, because the American Medical Association has formally recognized that marijuana has medical uses and has requested that Congress remove marijuana from Category One, for that reason. Further, while it is true that medical marijuana can be regulated by Congress, pursuant to the Commerce Clause of the U.S. Constitution, federal courts have traditionally left decisions such as whether or not to legalize limited use of narcotics such as marijuana for medicinal use to the states. In City of Garden Grove v. Superior Court, 157 Cal.App.4th 355, 373; 68 CaI. Rptr. 3d 656 (2007), a defendant's medical marijuana had been confiscated during a routine traffc stop. After it was determined that his possession of that marijuana was lawful based upon Defendant's full compliance with Proposition 215, Defendant sought the return of his medicine from the Garden Grove Police Department. The Police Department refused to return Defendant's property citing the prohibition under Federal law. The trial court, ordered that the property be returned and the City of Gazden Grove brought an appeal, ultimately to na avail. The court held that, " ...the CUA [Compassionate Use Act of 1996] `renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver.' {citation omitted} The possession and cultivation became just as lawful as `the possession and acquisition of any prescription drug.' {citation omitted). The court then addressed the seeming conflict between the federal and state laws pertaining to use of medical marijuana. The issue of preemption was addressed: "The fact is, ` "the structure and limitations of federalism ... allow the States ` "great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." ' [Citation.] (Gonzales v. Qregan (2006) 546 U.S. 243, 270 [163 L. Ed. 2d 748, 126 S. Ct. 904j [striking down a federal rule aimed at undermining Oregon's physician-assisted suicide law].} This includes the power to decide what is criminal and what is nat. (Gonzales v. Raich, supra, 545 U.S. [ 1 ] at p. 42 {dis. opn. of O'Connor, J.}.) Affording the states broad authority on these matters ` "promotes innovation by allowing for the possibility that `a single Boazd of Supervisors of the County of Butte and CAO Paul Hahn rely 26, 2011 Page 9 courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.' "'(Ibid.; accord, United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. [483] at p. 502 (conc. opn. of Stevens, 3.).) Therefore, any ` " ` "[c]onsideration of issues arising under the Supremacy Clause `start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the cleaz and manifest purpose of Congress.' " ' " '{Jevne v. Superior Court (2005) 35 Ca1.4th 935, 949 [28 Cal. Rptr. 3d 685, 111 P.3d 954], italics added, quoting Cipollone v. Liggett Group, .Inc. {1992) 545 U.S. 504, 516 [120 L. Ed. 2d 407, 112 S. Ct. 2648].)" City of Garden Grove v. Superior Court, supra,157 Ca1.App.4th at p. 382. Accordingly, since the attached ordinance follows the federal government policy, allowing a maximum number of mature plants on any parcel or contiguous group of parcels under the same ownership or control of 99 plants, federal laws are irrelevant. I wish to emphasize again what I indicated to your Board at your Board's meeting of 2122111: My clients and I do not object to reasonable regulation of medical marijuana cultivation through a County ordinance, we simply object to Ordinance 4029, because it is overly restrictive and impractical. My clients and 1 sincerely hope that your Board will consider and vote to adopt the attached ordinance which addresses the concerns set forth above. We understand perfectly that your Board must hold at least blic hearing, before doing so. Thank you very much in advance for your considera io , of the attached ordinance. Yours ly, ~' --~~ ,~ R Bert acKenzie cc: Tim Snellings, Director of Development Services Bruce Alpert, County Counsel Mike Ramsey, District Attorney Terry Smith, Sheriff 1 2 3 4 5 6 7 8 9'I ~. a ~ 11 12 13 14 15 16 17 18- 19 20 21 22 23 24 25 Ordinance No. AN ORDINANCE OF THE COUNTY OF BUTTE ADDING ARTICLE I, ENTITLED "MEDICAL MARIJUANA CULTIVATION," OF CHAPTER 34A, ENTITLED "MEDICAL MARIJUANA CULTIVATION," OF THE BUTTE COUNTY CODE The Board of Supervisors of the County of Butte ordaa.ns 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 XI, section 7 of the California Constitution, Health and Safety Code sections 11362.83 and 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." 3~A-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"). (b) The intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to use it without 1 1 2 3 4 5 6 7 8 9 10 11 12 13 I 14' 15 I 16' 17 I 18 '' 19 20 2 ~. 22 23 24 25 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 215 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 11352.7 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. (h} Cultivation of marijuana at locations or premises within six hundred (600} feet of schools, school bus stops, school evacuation sites, churches, parks, child care centers, or yauth- oriented facilities creates unique risks that the marijuana plants may be observed by juveniles, 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 2 1 2 3 4 5 6 7 91 10' 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 that juveniles will be involved or endangered, therefore, cultivation of any amount of marijuana in such locations orb premises is especially hazardous to public safety and welfare, and to the protection of children and the person(s) cultivating fthe marijuana plants. (k) It 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 and which balances the needs of medical patients and their) caregivers and promotes the health, safety, and welfare of the 1, 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 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1$ 19 20 21 22 23 24 25 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) Nothing in this Chapter shall be construed to allow the use of marijuana for non-medical purposes, or allow any activity l,, 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. 3~4A-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. (c) " Code Enforcement Officer" means any person employed by the County of Butte and appointed to the position of code 4 1 2 3 4 5 6 7 8 9 10 11 1.2 13 14 15 16 17 18 19 20 21 22 23 24 25 enforcement officer, as established by Butte County Ordinance 1Number 2652. (d) "Cultivation" means the planting, growing, harvesting, drying or processing 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 or the authorized designees of the Code Enforcement Officer, whom is authorized to enforce this Chapter. (f) "Fence" means a barrier for the purpose of enclosing space or separating parcels of land. The term "fence" does not include retaining walls. (g) "Indoors" means within a greenhouse or other similar structure which contains plant odors. (h) "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 6641.0) of Title 7 of the Government Code). (i) "Marijuana plant" means any mature or immature marijuana plant, or any marijuana seedling, unless otherwise specifically provided herein. A "mature" marijuana plant is one which has reached the flowering stage. (j) "Medical marijuana collective" means qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients who associate by 5 1 2 3 4 5 6 7 8 9~~I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 written agreement, or form a cooperative in accordance with Section 12300 of the Corporations Code within the unincorporated area of the County in order to collectively or cooperatively cultivate marijuana for medical purposes, as provided in Health and Safety Code Section 7.1362.775. The term collective shall include "cooperative" unless the context clearly indicates otherwise. (k} "Outdoors" means any location that is not "indoors" as defined herein. (1) "Parcel" means a "legal parcel" as defined herein. (m} "Premises" means a single, legal parcel of property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall be counted as a single,, "premises" for purposes of this Chapter, when: ', 1. the aggregate number of mature plants on contiguous' legal parcels under common ownership or control is, will be, or is intended to be (ninety-nine (99); and/or 2. solely at the option of the person(s) owning, leasing, occupying, or having charge or possession of the contiguous legal parcels. (n) "Primary caregiver" means a "primary caregiver" as defined in Health and Safety Cade Section 11362.7 (d}. (o) "Qualified patient" means a "qualified patient" as defined in Health and Safety Code Section 11362.7 (f}. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ~. 5 16 17 1$ 19 20 21 ~i 22 23 24 25 (p} "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. (q} "School" means an institution of learning for. minors, whether public or private, offering a regular course ofi 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 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. (r} "School Bus Stop" means any location designated in accordance with California Code of Regulations, Title 13, section 123$, to receive school buses, as defined in California Vehicle Code section 233, or school pupil activity buses, as defined in Vehicle Code section 546. (s} "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 j uveniles are to be evacuated to, ar are .to assemble at, in the event of an emergency or other incident at the school. (t} "Sheriff" or "Sheriff's Office" means the Butte County Sheriff's~Office or the authorized representatives thereof. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (u) "Youth-oriented facility" means elementary school, middle 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 far minors, or the individuals who regularly patronize, congregate or assemble at the establishment are predominantly minors. This shall not include a day care or preschool facility. 3~A-~ Nuisance Declared; Cultivation Restrictions. (a) The cultivation of mare than the following total number of '', marijuana plants, either indoors, outdoors, or combined an any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Chapter: (1} If the premises is one-half (0.5) acre in size or less, no plants may be cultivated on the premises, unless such plants are cultivated indoors, as defined in this Chapter 34A. No more than six (6) mature marijuana plants or twelve (12} immature plants may be cultivated indoors on parcels of one-half (0.5) acre in size or less; (2) If the premises is greater than one half {0.5} acre to one and a half (1.5} acres in size, no more than twelve (12) mature marijuana plants or twenty-four (24) immature plants. (3) If the premises is greater than one and a half (1.5) acres in size to five (5) acres in size, no more than twentyT four (24) mature marijuana plants or forty eight (48) immature marijuana plants shall be cultivated an the premises. 8 1 2 3 4 5 6 7 8 9 10 11 12' 13 14 15 16 17 18 19 20 21 22 23 24 25 (4) If the premises is greater than five (5} acres in size, to ten (10) acres in size, no more than thirty-six (36) mature marijuana plants or seventy-two (72) immature marijuana plants shall be cultivated on the premises. (5) If the premises is greater than ten (10) acres in size, to twenty (20} acres in size, no more than forty-eight (48) mature marijuana plants or ninety-six (96) immature marijuana plants shall be cultivated on the premises. (6} If the premises is greater than twenty (20) acres in size, to forty (40} acres in size, no more than sixty(60) 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(60) mature marijuana plants and no more than ninety-nine (99} total marijuana plants. (7} If the premises is greater than forty (40} acres in size, to (80) acres in size, no more than seventy-two (~1~) mature marijuana plants oz 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 seventy-two (72) mature marijuana plants and no more than ninety-nine {99} total marijuana plants. (8} If the premises is (80} acres in size or greaten, there shall be no more than ninety--nine (99} marijuana plants, whether mature or immature, shall be cultivated on the premises. 9 1 2 3 4 5 6 7 8 9 10 1,1 12 13 14 15 16 I ~. 7 1.$ 19 20 21 22 23 24 25 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. 3~4A-5. Registration; Cultivation Requirements. The cultivation of marijuana, in any amount or quantity, either indoors or outdoors, upon any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Chapter, unless all of the following conditions are satisfied: (a) The persons owning, leasing, occupying, or having charge or possession of any premises greater than one-half (.5) acres in size have registered the premises with the Butte County Department of Development Services on an annual basis and provided all of the following current information and documentation to the office: (1) The name and current address of each person, owning, leasing, occupying, or having charge or possession of the premises; (2) the number of marijuana plants cultivated on the ~~premises; and 10 1 2 3 4 5 6 7 8' 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (3) a declaration, under penalty of perjury, sworn and executed by the person(s) awning, leasing, occupying, or having charge or possession of the premises, that the cultivation of medical marijuana on the premises is intended to comply with, complies. with and shall remain in compliance with, all applicable State medical marijuana laws; and (4) The person(s) owning, leasing, occupying, or having charge or possession of the premises shall pay an annual X285.00 registration fee. Department of Development Services shall develop a form for a waiver of the registration fee, for, individuals, whom shall qualify for a waiver, it sasa individuals' income falls below the federal poverty level. Such registration with the Department of Development Services shall be renewed by the applicant on an annual basis. (b) Persons cultivating no more than (1) six (6) mature marijuana plants or (2) twelve (12) immature marijuana plants or (3) twelve (12) total mature and immature marijuana plants (with no more than six (6} mature plants in such combination) are not required to meet the requirements of section 34A-5(a), notwithstanding the size of the premises. (c) Administrative Permit for One-Year Plant Limit Variance: Upon registration, the person(s) owning, leasing, occupying, or having charge or possession of any premises greater than five ', (5) acres in size may apply, on an annual basis, for an ldministrative permit for a one-year variance from the 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 '~ 16' 17 18 13 20 21 22 23 24 25 applicable maximum number of plants allowed in this section 34A- 5, by submitting an application setting forth the desired number of plants to be cultivated, over and above the applicable plant limit set forth above in this section 34A-5. The application shall be accompanied by a variance processing fee adopted' pursuant to Government Code section 66016, et seq. Administrative permits may be approved and issued by the planning manager, pursuant to a ministerial review, subject to the procedure set forth in Butte County Code section 24-40. No public hearing or notice to adjacent land owners shall be required. The planning manager shall issue an administrative permit for a one-year variance from the maximum number of plants allowed in this section 34A-5 to all applicants who comply fully with the procedure set forth in this section 34A-5 and meet the standard requirements set forth below in Subparagraph (d}. (d} Standard Requirements: (1} The applicant has tendered a variance processing fee. (2} The desired number of plants can be/are cultivated on a location or locations on the subject property, such that all plants cultivated are' in compliance with the setback requirements set forth in section 34A-6 below. (3} No neighboring property owner or resident residing .within one hundred (100} feet of the property line and/or corner of premises upon which the variance is proposed, if the premises upon which the variance is proposed is less than twenty 12 1 2 3 4 5 6 7 9 10 11 1.2 13 14 15 16 17 18 19 20 2 ~. 22 23 24 25 (20) acres in size, or within three hundred (300) feet of a property line and/or corner of premises upon which the variance is proposed, if the premises upon which the variance is proposed is greater than twenty (20} acres in size, objects to the proposed variance from the maximum number of plants allowed) in this section 34A-5, prior to the determination an they', variance by the planning manager. (4) The desired number of plants/the number of plants', actually cultivated does not exceed ninety-nine (99). 134A-6. Setbacks. (a) Each indoor or outdoor area in which the marijuana is cultivated shall be set back from the boundaries of the premises 'as follows: (1) If the premises is one-half (0.5) acre in size or Mess, no plants may be cultivated on the premises, unless such plants are cultivated indoors, as defined in this Chapter 34A. Further, no plants shall be cultivated indoors within fifteen (15) feet of any occupied residential structure located on a separate legal parcel. (2) If the premises is greater than one half (0.5) acre in size to one and a half (1.5) acres in size, each cultivation: building or area shall be set back at least fifteen (15) feet from all boundaries of the premises. Such cultivation area 13 1 2 3 4 5 6 7 8 9 ~0 11 3.2 1.3 14 15 16 17 18 19 20 21 22 23 I 2 4 '~ 25 shall be measured from the outer edge of the marijuana plant and not the stalk. (3) zf the premises is greater than one and a half (1.5) acres in size, to five (5} acres in size, each indoor or outdoor cultivation 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 or the Board of Supervisors reduces or waives this requirement based upon an irregular lot shape making it difficult to comply with such setback requirements. ~' (4) If the premises is greater than five (5} acres in size, to ten (10) acres in size, each cultivation building'or area shall be set back at least one hundred (100} feet from all boundaries of the premises, unless the Director of the Department of Development Services or his or her designee or the Board of Supervisors reduces or waives this requirement based upon the shape of the premises, topography, .the presence of a creek or other body of water or water (irrigation} source limits cultivation location, limited vehicular access options, dense vegetation, another natural feature, the location of existing structure (s} an the premises or any combination of these features renders the setback prohibitive, by reducing the usable area on the parcel to the point where it is impractical to cultivate less than 1000 of the maximum number of plants allowed in section 34A-5. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ~. 6 17 ~. S 19 20 21 22. 23 24 25 (5) If the premises is greater than ten (10) acres in size, to twenty (20) acres in size, each cultivation building or area shall be set back at least two hundred (200 ) feet from all boundaries of the premises, unless the Director of the Department of Development Services or his or her designee or the Board of Supervisors reduces or waives this requirement based upon the shape of the premises, topography, the presence of a creek or other body of water or water (irrigation) source limits cultivation location, limited vehicular access options, dense,, vegetation, another natural feature, the location of existing structure(s) on the premises or any combination of these features renders the setback prohibitive, by reducing the usable area on the parcel to the point where it is impractical to cultivate less than 100% of the maximum number of plants allowed in section 34A-5. (6) If the premises is greater than twenty (20) acres in size, to forty (40) acres in size, each cultivation building or area shall be set back at least three hundred (300) feet from all boundaries of the premises, unless the Director of the Department of Development Services or his or her designee or the Board of Supervisors reduces or waives .this requirement based upon the shape of the premises, topography, the presence of a creek or other body of water or water (irrigation) source limits cultivation location, limited vehicular access options, dense (vegetation, another natural feature, the location of existing 15 1 2 3 4 5 6 71 81 9 7.0 7.1 12 13 14 15 7.6 17 7.8 19 20 21 22 23 24 25 structure(s) on the premises or any combination of these features renders the setback prohibitive, by reducing the usable area on the parcel to the point where it is impractical to cultivate less than 100% of the maximum number of plants allowed lin section 34A-5. (7) If the premises is greater than forty {40) acres in size, to eighty (80) acres in size, each indoor or outdoor cultivation area sha11 be set back at least four hundred (400) feet from all boundaries of the premises, unless the Director of the Department of Development Services or his or her designee or the Board of Supervisors reduces or waives this requirement based upon the shape of the premises, topography, the presence of a creek or other body of water or water (irrigation) source limits cultivation location, limited vehicular access options, dense vegetation, another natural feature, the location of existing structure(s) on the premises or any combination of these features renders the setback prohibitive, by reducing the usable area on the parcel to the point where it is impractical to cultivate less than 1000 of the maximum number of plants allowed in section 34A-5. (8) If the premises is greater than eighty (80) acres in size, each indoor or outdoor cultivation area shall be set back at least five hundred (500) feet from all boundaries of the 'premises, unless the Director of the Department of Development Services or his or her designee or the Board of Supervisors 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ~. 6 17 18 19 20 21 22 23 24 25 reduces or waives this requirement based upon the shape of the premises, topography, the presence of a creek or other body of water or water (irrigation) source limits cultivation location, limited vehicular access options, dense vegetation, another natural feature, the location of existing structure(s) on the premises or any combination of these features renders the setback prohibitive, by reducing the usable area on the parcel to the point where it is impractical to cultivate less than 100% of the maximum number of plants allowed in section 34A-5. ~~, {9) With respect to subsections 34A-6(a){2-4), such' setback distance shall be measured in a straight line from the indoor or outdoor area in which the marijuana is cultivated from the fence required by section 34A-8, to the boundary line of the premises. (b) Administrative Permit for One-Rear Setback Variance: Upon registration, the person(s) owning, leasing, occupying, or having charge or possession of any premises greater than five (5) acres in size may apply, on an annual basis, for an administrative permit for a one-year variance from the applicable setback required by subparagraph 34A-6(a}, by submitting an application setting forth the desired distance which plants are to be set back from the property line, as subtracted from the applicable setback requirement set forth above in subparagraph 34A-6(a). The application shall be accompanied by a variance processing fee adapted pursuant to 17 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 Government Code section 6501, et seq, Administrative permits may be approved and issued by the planning manager, pursuant to a ministerial review, subject to the procedure set forth in Butte County Code section 24--40. No public hearing or notice to adjacent land owners shall be required. The planning manager shall issue an administrative permit for a one-year variance from the applicable setback requirement allowed in this section 34A-5 to all applicants who comply fully with the procedure set forth in this subparagraph 34A-6(b} and meet the standard requirements set forth below in Subparagraph (c). (c) Standard Requirements: (1) The applicant has tendered a variance processing fee. (2) The maximum number of plants which can be/are cultivated on the premises does not exceed the applicable maximum number of plants allowed in section 34A-5 above. (3) No neighboring. property owner or resident residing within one hundred (100) fleet of the property line and/or corner of premises upon which the variance is proposed, if the premises upon which the variance is proposed is less than twenty (20) acres in size, or within three hundred (300} feet of a property line and/or corner of premises upon which the variance is proposed, if the premises upon which the variance is proposed is greater than twenty (20) acres in size, objects to the proposed setback variance, prior to the determination on the variance by the planning manager. 18 1 2 3 4 5 5 7 81, 9 10 11 12 13 14 15 16 17 1$ 19 20 21 22 23 24 25 (b) Notwithstanding the requirements of subsection 34A-6(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 six hundred (600) feet of a youth-oriented facility, a school, a park, or any church or residential treatment facility as defined herein. (2) Outdoors within fifty (50) feet of any occupied residential structure located on a separate legal parcel, provided, however, that any person cultivating no mare than 6 mature ox 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. Person(s) owning, leasing, occupying, or having charge or possession of any premises, to whom the Planning manager has, issued an administrative permit for a one-year variance from the applicable setback requirement allowed in this section 34A-6, may be excused from the 50~foot setback requirement of this section 34A-6(b), provided that the one-year variance permit issued allows cultivation of medical marijuana within fifty (50) feet of all occupied residential structures within said f~proximity. (3) In any location where the marijuana plants are visible from a public right of way or publicly traveled private roads. 19 1 2 3 4 5 6i 7 8 9 7.4 11 12 13 14 15 1.6 ~. 7 18 19 20 21 22 23 24 25 (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 point of the fence required in section 34A-8, 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 they 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- 8 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. 34A-7 Permission of Property Owner. If the person(s) cultivating marijuana on any legal parcel is/are not the legal owner(s) of the parcel, such person(s) shall submit a notarized letter from the legal owner(s) consenting to the cultivation of marijuana on the parcel. This letter shall be examined by the Department of Development Services and shall then be returned to the submitter. The Department of Development Services shall prescribe forms for Isuch letters. 20 7. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18' 19 20 21 22 23 24 25 34A-8 Fencing. All marijuana grown outside of any building must be fully enclosed by a fence at least six (6) feet in height, provided, however, that such fence shall not be required for marijuana grown on premises of twenty (20) acres or more when such marijuana is not grown in any location where the marijuana plants are visible from a public right of way or publicly traveled private roads. _ 34A-9 Notice Regarding Change in Land Use. The County shall encourage any person proposing to construct or, operate a new or relocated school., school bus stop, school evacuation site, church, park, child care center, or youth- oriented facility to consider whether the proposed location of such use is within the required setback near a registered premises upon which marijuana is cultivated. Notwithstanding the requirements of section 34A-5, upon request, the Butte County Department of Development Services shall inform any person proposing to construct or operate a new or relocated school, school bus stop, school evacuation site, church, park, child care center, or youth--oriented facility regarding whether there is a registered premises upon which marijuana is cultivated within the required setback near the proposed location of such use, and, if so,~shall also inform the person, owning, leasing, occupying, or having charge or possession of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the registered premises that such a use is being proposed within the required setback. 34A-10 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-11 through 34A-17 of this Chapter. 134A-~.1 Enforcement. (a) Enforcement of this Chapter can only be undertaken after a complaint has been received by the Department of Development Services concerning an undesirable impact allegedly proximately caused by the cultivation of the medical marijuana in question, by a neighboring property owner or resident living within 300 feet of a property line and/or corner of premises upon which cultivation of medical marijuana is taking place. Said complaint and the identity of the complainant sha11 not be released to any person, pursuant to a California Public Records Act request, nor pursuant to any other request. Said complaint and the identity of the complainant shall only be released and/or reviewed in camez~a by a court, pursuant to a lawfully issued order of a court of competent jurisdiction. (b) The County may, in its discretion, abate the violation or 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 injunctive relief may take the form of a court order, 22 1 2 3 4 5 6 7 91 to 11 12 13 14 15 1fi 17 18 19 20 21 22 23 24 25 enforceable through civil contempt proceedings, prohibiting the maintenance of the violation of this Chapter or requiring compliance with other terms. (c) The County may also abate the violation of this Chapter through the abatement process established by Government Code Section 25845 as set forth in Sections 34A--12 through 34A-17 beginning with the service of a Notice of Nuisance Abatement Hearing. 34A-12 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 ten (10} days. If the condition{s) continue beyond that within ten (7.0) day period, the Director of Development Services, or his or her designee, may set the matter for hearing. 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 23 1 2 3 4 5 6 7 8 9 10 11 12 13' 14 15 1.6 1.7 18 19 20 21 22 23 24 25 :the mailed and posted notice shall be in substantially the following form: NOTICE OF NUISANCE ABATEMENT HEARING 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 which constitute a public nuisance and violate Butte County Code sections} 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, 24 1 2 3 4 5 6~~ 7' 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 cost 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. 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 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2~ 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 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 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 all reasonable costs and attorneys' fees may be recovered by the prevailing party. Finally, if the Hearing Officer finds that a public nuisance eX15t5 on your property, a violation of the Butte County Code Chapter 3~A, 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 ADMINISTRATIVE AND/OR JUDICIAL ABATEMENT AND TERMINATION OF USES OF OR CONDITIONS ON YOUR PROPERTY WHICH THE DIRECTOR OF 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 27 1 2 3 4 5 6 7 8 9 10 1 ~. 12 13 14 15 16 17 I~I 18 !, 7.9 20 21 22 23 24 25 (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 demonstrative and documentary evidence introduced at the time of the hearing for a period of three (3) years. (d) Within ten (10)~ 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. 1f a violation is found to exist, the decision shall include a statement of the Abatement and Administrative Costs incurred by the County or estimated casts to abate the violation 2$ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15- 16 17 18 19 20 21 ~'~ 22 23 24 25 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 ten (10) 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 sha11 be final on the date the certified mail set forth in subsection (d) above, is deposited in the mail. The Hearing Officer shall notify the Clerk of the Board of Supervisors of his or her decision, the date upon which the decision became final and the last date upon which an appeal may be made. If the Board of Supervisors does not receive an appeal within ten (10} days of the date the Hearing Officer's decision becomes final, the Board shall be deemed to have ratified and adopted the Hearing Officer's decision. If it is the decision of the Hearing Officer that a public nuisance exists, 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. 29 1 2 3 4 5 5 7 8 9 10 11 12 13 14 ~, 15 '' 15 17 18 19 20 21 22 23 24 25 Tf it is the decision of the Hearing Officer that a public nuisance does not exist, the County shall be responsible for paying and shall pay within ninety (90} days all costs and attorneys' fees incurred by the owner of the property, which costs are reasonably related to the administrative hearing, including all costs incurred in correspondence with County representatives relating to the alleged public nuisance in question and all costs incurred in calculating such costs. (f) Within the ten (10} day period referred to in subsection (e) ', above, the owner or occupant of the property, the Director of Development Services, or any other interested person may appeal the decision of the Hearing Officer to the Board of Supervisors of the County of Butte if such individual or entity does all of the following: (1) Delivers a written appeal to the Clerk of the Board of Supervisors within the ten (10) day appeal period; and (2) Delivers to the Clerk of the Board of Supervisors within the ten (10) day appeal period the appeal fee in the sum of Fifty Dollars ($50.00). (g) Within ten (10} days of being notified by the Clerk of the Board of Supervisors, the appellant shall deposit with the Clerk of the Board an amount of money equal to the estimated cost of transcribing the oral proceedings before the Hearing Officer and the cost of duplicating seven (7) copies of the administrative. 30 1 2 3 4 5 6 7 '', 8' 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record, including all exhibits introduced at the hearing. The appellant sha11 be responsible for the cost of the appeal and record; provided, however, if the Board upholds the appeal and finds that no violation exists then the costs of the appeal shall be borne by the County. (h) In the event of an appeal to the Board of Supervisors, they Board shall decide the appeal based solely on the administrative record and transcript of the hearing. The Board shall review the record, transcript and evidence and then adopt, reject or modify the decision of the Hearing Officer. (i) In the event of an appeal to the Board of Supervisors, the Board shall decide the appeal within thirty (30) days after receipt of the administrative record. Notice of the Board's decision shall be mailed to the property owner, the Director of Development Services, the Hearing Officer and those persons receiving notice pursuant to this section, (j) (1) Notwithstanding any other provisions of this Code, if a final decision of the Hearing Officer or the Board of Supervisors finds that a violation exists and the public nuisance is not voluntarily abated within the time prescribed, 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 31 1 2 3 4 5 6~ 7' 8' 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and Administrative Costs, including but not limited to, those cost items set forth in the notice required by subsection (a) i above. The Director of Development Services or his or her' designee shall keep an accounting of the Abatement and Administrative Costs to perform each abatement. Upon completion of the abatement, the Director of Development Services or his or her designee shall post the 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 two (2) years 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 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 the property subject to the lien and special assessment, and an 32 1 2 3 4 5 6 7 8 9 10 11 12 13' 14 15 16 17 18 19 20 21 22 23 24 25 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 they 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. {k} At the time aid 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 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 33 1 2 3 4 5 6 7 8 9 10 1.1 12 13 14 15 15 17 18 19 2Q 21 22 23 24 I 25 judgment lien and the special assessment shall have the same priority as other County taxes. (1) 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 Casts 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 required for the original notice and shall also refer to the recordation date and the recorder's document number of the original notice. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gy(m) 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 the 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-13 Alternative hearing procedure. If all Hearing Officers are unavailable to conduct hearings for Many reason, the Board of Supervisors shall conduct nuisance abatement hearings. Should the Board of Supervisors conduct said hearings all notice provisions and hearing procedures set forth herein shall apply. The decision of the Board of Supervisors Ishall be final. 35 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 2a 21 I 22 23 24 25 34A-14 Abatement costs; Administrative costs. (a} The term "Abatement Costs" means any costs or expenses' directly related to the abatement of conditions which violate the Butte County Code, and shall include, attorneys' fees, collection and administrative costs, and the costs associated with the removal or correction of the violation. (b) The term "Administrative Costs," shall include the cost of County staff time directly related to enforcement, for items including, but site inspections, and time spent preparing summaries, reports, notices, correspondence, warrants and hearing packets. (c} In any action, administrative proceeding, or special proceeding to abate a nuisance, attorneys' fees may be recovered by the prevailing party. In 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 Nan-exclusive remedy. This Chapter is cumulative to all other remedies now or hereafter available to abate or otherwise regulate or prevent public nuisances. 34A-16 Szammary Abatement. 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 7.8 19 24 21 22 23 24 25 Notwithstanding any other provision of this Chapter, when any unlawful marijuana cultivation constitutes an immediate threat Ito the public health or safety, and where the procedures sett forth in sections 34A-11 through 34A-15 would not result in~ abatement of that nuisance within a short enough time period toy avoid that threat, the enforcing officer may direct any officer or employee of the County to summarily abate the nuisance. They enforcing officer shall make reasonable efforts to notify the persons identified in Section 34A-12 but the formal notice and hearing procedures set forth in this Chapter shall not apply. Nod 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 Sections 34A-12. 34A-17 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. 37 1 2 3 4 5 6 7 8 9 10 11 12 1.3 1~ 15 16 17 18 19 20 21 22 23 24 25 34A-18 Use of Money Collected Under This Chapter. All money collected for penalties for 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 furthe r code enforcement actions. Section 2. The County finds that this Chapter is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 1506Q(c)(2) (the activity wi11 not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15061(b)(3) .(there is no possibility the activity in question may have a significant effect on the environment). In addition to the foregoing general exemptions, the following categorical exemptions apply: Sections 15308 (actions taken as authorized by local ordinance to assure protection of the enviranment) 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 38 1 2 3 4 5 6 7 8 9 ~. 0 11 12 13 14 15 7.6 ~. 7 ~. $ 19 20 21 22 23 24 25 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." PASSED AND ADOPTED by the Board of~Supervisors of the County of Butte, State of California, on the day of 2011, by the following vote: AYES: NOES: ABSENT: NOT VOTING: STEVE LAMBERT, Chair of the Butte County Board of Supervisors 39 1 2 3 4 5 6 7 8 9 10 13. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ATTEST: Paul Hahn, Chief Administrative Officer and Cleric of the Board By: Deputy 4a