HomeMy WebLinkAbout42021
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Ordinance No.4202
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 sections 25845 and 53069. 4, the
Board of Supervisors does enact this Chapter, which shall be known
and may be cited as the "Butte County Medical Marijuana Ordinance."
34A-2 Findings and purpose.
(a) In 1996, the voters of the State of California approved
Proposition 215 (codified as California Health and Safety Code section
11362.5, and entitled "The Compassionate Use Act of 1996").
(b) The intent of Proposition 215 was to enable persons who
are in need of marijuana for medical purposes to use it without fear
of criminal prosecution under limited, specified circumstances. The
Proposition further provides that "nothing in this section shall be
construed to supersede legislation prohibiting persons from engaging
in conduct that endangers others, or to condone the diversion of
marijuana for non-medical purposes." The ballot arguments supporting
Proposition 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 11362.7 et seq.) to
clarify the scope of Proposition 215, and to provide qualifying
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patients and primary caregivers who collectively or cooperatively
cultivate marijuana for medical purposes with a limited defense to
certain specified State criminal statutes.
(d) Health and Safety Code section 11362.83 expressly allows
Cities and Counties to adopt and enforce ordinances that are
consistent with Senate Bill 420.
(e) The Federal Controlled Substances Act, 21 U.S.C. §§ 801 et
seq., classifies marijuana as a Schedule I Drug, which is defined as
a drug or other substance that has a high potential for abuse, that
has no currently accepted medical use in treatment in the United
States, and that has not been accepted as safe for use under medical
supervision. The Federal Controlled Substances Act makes it unlawful,
under federal law, for any person to cultivate, manufacture,
distribute or dispense, or possess with intent to manufacture,
distribute or dispense, marijuana. The Federal Controlled Substances
Act contains no exemption for the cultivation, manufacture,
distribution, dispensation, or possession of marijuana for medical
purposes.
(f) The County's geographic and climatic conditions, which
include dense forested areas receiving substantial precipitation,
along with the sparse population in many areas of the County, provide
conditions that are favorable to outdoor marijuana cultivation.
Outdoor marijuana growers can achieve a high per -plant yield because
of the County's favorable growing conditions. The federal Drug
Enforcement Administration reports that various types of marijuana
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plants under various planting conditions may yield averages of two
hundred thirty-six (236) grams, or about one-half (0.5) pound, to
eight hundred forty-six (846) grams, or nearly two (2) pounds. Based
on Butte County Sheriff's seizures, yields in Butte County have tended
Ito be beyond this range with three ( 3 ) to four ( 4 ) pounds of dried
"bud" per plant being common. The "street value" of a single cannabis
plant is substantial. Pound prices for domestically produced high-
grade cannabis sold illegally within Northern California can range
between one thousand five hundred dollars($1,500.00) to three
thousand dollars ($3,000.00). A single marijuana plant cultivated
within the County can thus easily yield four thousand dollars
($4,000.00) or more in salable marijuana.
(g) Proposition 215 and Senate Bill 420 primarily address the
criminal law, providing qualifying patients and primary caregivers
with limited immunity from state criminal prosecution under certain
identified statutes. Neither Proposition 215 nor Senate Bill 420, nor
the Attorney General's August 2008 Guidelines for the Security and
Non -Diversion of Marijuana Grown for Medical Use adopted pursuant to
Senate Bill 420, provides comprehensive civil regulation of premises
used for marijuana cultivation. The unregulated cultivation of
marijuana in the unincorporated area of Butte County can adversely
affect the health, safety, and well-being of the County, its residents
and environment. Comprehensive civil regulation of premises used for
marijuana cultivation is proper and necessary to avoid the risks of
criminal activity, degradation of the natural environment, malodorous
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smells, and indoor electrical fire hazards that may result from
unregulated marijuana cultivation, and that are especially
significant if the amount of marijuana cultivated on a single premises
is not regulated and substantial amounts of marijuana are thereby
lallowed to be concentrated in one (1) place.
(h) Cultivation of marijuana at locations or premises within
six hundred (600) feet of school bus stops or one thousand (1,000)
feet of schools, school evacuation sites, churches, parks, child care
centers, or youth -oriented facilities creates unique risks that the
marijuana plants may be observed by 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
that juveniles will be involved or endangered, therefore, cultivation
of any amount of marijuana in such locations or premises is especially
hazardous to public safety and welfare, and to the protection of
children and the person(s) cultivating the marijuana plants.
(i) Public meetings regarding previous cultivation ordinances
were well -attended by hundreds of Butte County residents. The majority
of those present spoke out against the adoption of the proposed
ordinance, Ordinance 4029. However, many residents who live on smaller
parcels in more densely populated areas indicated that during the
marijuana cultivation season, the overpowering unpleasant smell of
marijuana resulted in their inability to use their yards and required
them to keep windows and doors shut in the stifling summer heat.
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Residents stated that they could not invite friends to their home to
visit, barbecue outdoors or even allow their children to play in the
backyard. Other residents indicated that the use of a swamp cooler
during the summer months would actually result in the stench of
marijuana being sucked into the residence. Adults and children with
respiratory problems were particularly affected. Residents reported
that marijuana grown in residential backyards results in an invitation
to criminal activity for persons who would steal marijuana plants out
of backyards. Some marijuana growers would live in a tent in their
backyard, carrying firearms and utilizing guard dogs to protect their
marijuana plants. Residents reported they were uncomfortable allowing
their children to play outside in their neighborhood due to such
dangerous activity. Cultivators of medical marijuana stated that they
would not grow medical marijuana at their own residence to protect
their children. For this reason, the growth of medical marijuana on
smaller parcels is especially dangerous to the community,
particularly children.
(j) As recognized by the Attorney General's August 2008
Guidelines for the Security and Non --Diversion of Marijuana Grown for
Medical Use, the cultivation or other concentration of marijuana in
Jany location or premises without adequate security increases the risk
that surrounding homes or businesses may be negatively impacted by
nuisance activity such as loitering or crime. The Butte County
District Attorney's Office has indicated that there has been an
increase in crime/felonies involving marijuana. The Butte County
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Sheriff's Office has indicated that over one hundred fifty (150)
calls for service in the past year have involved marijuana, including
assaults and an attempted homicide.
(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 residents and
businesses within the unincorporated territory of the County of Butte.
This Chapter is intended to be consistent with Proposition 215 and
Senate Bill 420, and towards that end, is not intended to prohibit
persons from individually, collectively, or cooperatively exercising
any right otherwise granted by State law. Rather, the intent and
purpose of this Chapter is to establish reasonable regulations upon
the manner in which marijuana may be cultivated, including
(restrictions on the amount of marijuana that may be individually,
collectively, or cooperatively cultivated in any location or
premises, in order to protect the public health, safety, welfare and
environment in Butte County.
(1) The limited right of qualified patients and their primary
caregivers under State law to cultivate marijuana plants for medical
purposes does not confer the right to create or maintain a public
nuisance. By adopting the regulations contained in this Chapter, the
County will achieve a significant reduction in the aforementioned
harms caused or threatened by the unregulated cultivation of marijuana
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lin the unincorporated area of Butte County.
(m) The purpose of this Chapter is to provide a structure for
a complaint -driven civil process to remedy nuisances related to
medical marijuana cultivation.
(n) The Board of Supervisors adopted Ordinance 4029 on May 24,
2011. A successful referendum campaign was conducted against
Ordinance 4029, which resulted in Ordinance 4029 being placed on the
ballot for the regular County election held on June 5, 2012. At the
election, Butte County voters failed to approve Ordinance 4029. By
adopting this Chapter, the Board of Supervisors intends to reach a
compromise between the interests of qualified patients who need access
to medical marijuana and those who are adversely affected by its
cultivation.
(o) Nothing in this Chapter shall be construed to allow the
use of marijuana for non-medical purposes, or allow any activity
relating to the cultivation, distribution, or consumption of
marijuana that is otherwise illegal under State or federal law. No
provision of this Chapter shall be deemed a defense or immunity to
any action brought against any person by the Butte County District
Attorney, the Attorney General of State of California, or the United
States of America.
(p) County staff has reported discovering many marijuana
gardens without any person responsible for the property on site.
Issues arising from unattended marijuana gardens, such as illegal
camping associated with cultivation, abuse of experimental well
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permits and interim or non -permitted sewage disposal systems have
been reported by County staff. Thirteen (13) lawsuits involving
illegal grading have been filed by the County and in each case there
lis no legal residence on the property. The Board has repeatedly made)
very clear that it is their expectation and requirement that all 1,
cultivation activities be conducted with the upmost care, attention,
oversight, protection and management possible. Requiring cultivation
to take place in conjunction with the patient/caregiver/co-op
grower's residence, in all circumstances, is a reasonable means by
which to ensure cultivation is being done in line with those
expectations and legal requirements throughout the growing season.
Requiring cultivation in conjunction with a residence also supports
the fundamental principle that cultivation in Butte County is to be
done by, and for, Butte County residents, and is not meant for
temporary or transient cultivation activities.
(q) The original enforcement provisions, which were limited to
nuisance abatement and relatively low civil penalties, are not
adequate deterrents to violation. After a certain point in the growing
season, the current fine amounts are insufficient to properly
incentivize compliance. If the ultimate value of non-compliance
exceeds the value of compliance, the choice will generally be to
continue non-compliance. Higher penalty amounts could result in a
reassessment of that choice.
(r) The revised provisions contained in this chapter are
intended to address the aforementioned concerns, and more effectively
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control the harms caused by unregulated and noncompliant marijuana
cultivation, while still accommodating the needs of medical patients i
and their caregivers to the greatest extent practicable.
(s) In 2015, the California Legislature enacted Senate Bill
643, along with Assembly Bills 243 and 266, which, among other things,
established the Medical Marijuana Regulation and Safety Act (codified
as California Business and Professions Code sections 19300 et seq.).
Business and Professions Code section 19315(a) provides that "Nothing
in this chapter shall be interpreted to supersede or limit existing
local authority for law enforcement activity, enforcement of local
zoning requirements or local ordinances, or enforcement of local
permit or licensing requirements."
(t) Following the passage of the Medical Marijuana Regulation
and Safety Act, an increasing number of individuals and businesses
began offering mobile delivery of marijuana to customers in the
unincorporated areas of Butte County, as evidenced by advertisements
online and in local publications, such as the Chico News & Review.
(u) On November 8, 2016 Californians voted to legalize the non-
medical use of marijuana via Proposition 64, the Control, Regulate,
and Tax Adult Use of Marijuana Act ("AUMA"). AUMA creates a state
regulatory and licensing system that governs the commercial
cultivation, testing and distribution of non-medical marijuana, and
the manufacturing of non-medical marijuana products. However, AUMA
authorizes local jurisdictions to completely prohibit the
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establishment or operation of any non-medical marijuana business
within its jurisdiction.
(v) On June 27, 2017 Governor Brown signed into law Senate Bill
94, which provides a single regulatory structure for commercial
activities involving both medical and non-medical marijuana. The
unified structure repeals the collective/cooperative model, and
establishes a strict licensing scheme, whereby all commercial
marijuana activities, including retail sales and deliveries, are
required to be conducted between licensees.
(w) In January of 2018 the State of California will begin
issuing licenses for various commercial activities, including
cultivation, nurseries, manufacturing, testing, and retail sales and
deliveries. However, SB 94 allows local jurisdictions to adopt and
enforce ordinances that either regulate those commercial businesses
to be licensed by the state, or completely prohibit the establishment
or operation of any or all commercial activities within their local
jurisdictions.
(x) It is also the purpose and intent of this Chapter to
regulate commercial activities involving medical marijuana in a
manner that is consistent with state law, and that promotes the
health, safety, and general welfare of the residents and businesses
located within the unincorporated areas of Butte County.
34A-3 Definitions.
Except where the context otherwise requires, the following
definitions shall govern the construction of this Chapter:
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"Child Care Center" means any licensed child care center,
daycare center, or childcare home, or any preschool.
"Church" means a structure or leased portion of a structure,
which is used primarily for religious worship and related religious
activities.
"Code Enforcement Officer" means any person employed by the
County of Butte and appointed to the position of code enforcement
officer.
"Commercial activity" means any enterprise or activity, whether
or not for profit, concerning the cultivation, production, storage,
processing, manufacture, dispensing, delivery, distribution,
laboratory testing, labeling, transportation, provision, or sale of
marijuana or marijuana products.
"Cultivation" means the planting and growing of one (1) or more
marijuana plants or any part thereof in any location, indoor or
outdoor, including from within a fully enclosed and secure building.
"Delivery" means the commercial transfer of marijuana or
marijuana products to a customer twenty-one (21) years of age or
older.
"Distribution" means the procurement, sale, and transport of
marijuana and marijuana products between licensed entities.
Distribution does not include such transactions if done directly to
an individual end-user.
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"Enforcing Officer" means the Code Enforcement Officer or his
Ior her authorized deputies or designees, each of whom is independently
)authorized to enforce this Chapter.
"Fence" means a wall or a barrier connected by boards, masonry,
rails, panels, wire or any other materials approved by the Department
Iof Development Services for the purpose of enclosing space or I
separating parcels of land. The term "fence" does not include
retaining walls.
"Harvest" means the drying, processing, or storage of marijuana)
which may only occur in a fully enclosed and secure building.
"Indoors" means within one (1) fully enclosed and secure
detached structure that complies with the California Building
Standards Code (Title 24 California Code of Regulations), as adopted
by the County of Butte. The detached structure must be secure against
unauthorized entry, accessible only through one (1) or more lockable
doors and may be constructed of any approved building materials,
including glass, as long as the marijuana being cultivated cannot be
seen from any public right-of-way. Any detached, fully -enclosed and
secure structure used for the cultivation of marijuana must have a
ventilation and filtration system installed that shall prevent
marijuana plant odors from exiting the interior of the structure.
Such structure shall be located in the rear yard area of a legal
parcel or premises, maintain the setbacks set forth in section 34A-8
and the area surrounding the structure or back yard must be enclosed
by a solid fence at least six (6) feet in height. When this Chapter
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requires that cultivation of marijuana occur indoors, the harvest of
such marijuana shall also be accomplished indoors.
"Legal parcel" means any parcel of real property that may be
separately sold in compliance with the Subdivision Map Act (Division
2 (commencing with Section 66410) of Title 7 of the Government Code).
"Manufacture" means to compound, blend, extract, infuse, or
otherwise make or prepare a marijuana product.
"Marijuana plant" means any mature or immature marijuana plant,
or any marijuana seedling, unless otherwise specifically provided
herein. A "mature" marijuana plant is one (1) whose sex can be
determined by visual inspection.
"Medical marijuana collective" means qualified patients, persons
with valid identification cards, and the designated primary
caregivers of qualified patients who associate by agreement, or form
a cooperative in accordance with Section 12300 of the Corporations
:Code within the unincorporated area of the County in order to
collectively or cooperatively cultivate marijuana for medical
purposes, as provided in Health and Safety Code Section 11362.775.
The term collective shall include "cooperative" unless the context
clearly indicates otherwise.
"Outdoors" means any location that is not "indoors" within a
fully enclosed and secure structure as defined herein.
"Parcel" means a "legal parcel" as defined herein.
"Premises" means a single, legal parcel of property that
includes an occupied legal residence that is a dwelling in compliance
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with Chapter 26 of the Butte County Code and has also met the
requirements of Sections 34A-6 and 34A-7. Where contiguous legal
parcels are under common control or ownership, such contiguous legal
parcels shall be counted as a single "premises" for purposes of this
Chapter.
"Primary caregiver"" means a "primary caregiver" as defined in
Health and Safety Code Section 11362.7(d).
"Qualified patient" means a "qualified patient" as defined in
Health and Safety Code Section 11362.7(f).
"Recommendation" means a written current recommendation signed
by a licensed California physician pursuant to Health and Safety Code
sections 11362.5 and 11352.7.
"Retailer" means a person or business who obtains a state license
for the retail sale and delivery of marijuana or marijuana products
to customers.
"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.
"School" means an institution of learning for minors, whether
public or private, offering a regular course of instruction required
by the California Education Code, or any child or day care facility.
This definition includes a nursery school, kindergarten, elementary
school, middle or junior high school, senior high school, or any
special institution of education, but it does not include a vocational
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for professional institution of higher education, including al
community or junior college, college or university.
"School Bus Stop" means any location designated in accordance
with California Code of Regulations, Title 13, section 1238, to
receive school buses, as defined in California Vehicle Code section
1233, or school pupil activity buses, as defined in Vehicle Code
section 546.
"School Evacuation Site" means any location designated by formal)
action of the governing body, Superintendent, or principal of any
school as a location to which juveniles are to be evacuated to, or
are to assemble at, in the event of an emergency or other incident
at the school.
"Testing Laboratory" means a facility, entity, or site that
offers or performs tests [on] marijuana or marijuana products.
"Youth -oriented facility" means elementary school, middle
school, junior high school, high school, public park, and any
establishment that advertises in a manner that identifies the
establishment as catering to or providing services primarily intended
for minors, or the individuals who regularly patronize, congregate
or assemble at the establishment are predominantly minors. This shall
not include a day care or preschool facility.
34A-4 Nuisance declared; restrictions on personal cultivation
land commercial activities.
(a) The cultivation of marijuana on any parcel that does not
satisfy the definition of a premises contained herein is hereby
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declared to be a public nuisance that may be abated in accordance
with this chapter.
(b) The cultivation of marijuana plants exceeding the following
square footage limitations, on 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 (0.5y of an acre in size or
less, plants may be cultivated in a single cultivation area no larger
than fifty (50) square feet. The cultivation area shall be measured
from the outer edge of the marijuana plant canopy and not the stalk.
The cultivation area shall have one (1) or more recommendations
associated with the plants. The cultivation area must be located
inside a detached structure that is no larger than one hundred twenty
(120) square feet in size;
(2) If the premises is greater than one-half (0.5) of an acre
in size but less than five (5) acres in size, a single cultivation
area no larger than fifty (50) square feet may be devoted to the
cultivation of marijuana on the premises. The cultivation area shall
be measured from the outer edge of the marijuana plant canopy and not
the stalk. The cultivation area shall have one (1) or more
recommendations associated with the plants. The cultivation area may
be either indoors or outdoors;
(3) If the premises is equal to or greater than five (5) acres
in size but less than ten (10) acres in size, a single cultivation
area no larger than one hundred (100) square feet may be devoted to
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the cultivation of marijuana on the premises. The cultivation area
shall be measured from the outer edge of the marijuana plant canopy
and not the stalk. The cultivation area shall have at least one (1)
recommendation for every fifty (50) square feet of plants. The
cultivation area may be either indoors or outdoors;
(4) 1f the premises is equal to or greater than ten (10) acres)
lin size, a single cultivation area no larger than one hundred fifty)
(150) square feet may be devoted to the cultivation of marijuana onI
the premises. The cultivation area shall be measured from the outer
edge of the marijuana plant canopy and not the stalk. The cultivation
area shall have at least one (1) recommendation for every fifty (50)
square feet of plants. The cultivation area may be either indoors or
outdoors.
(c) The limitations of Section 34A -4(b) shall be imposed
regardless of the number of qualified patients or primary caregivers
residing at the premises or participating directly or indirectly in
the cultivation. Further, such limitations shall be imposed
notwithstanding any assertion that the persons(s) cultivating
.marijuana are the primary caregiver(s) for qualified patients or that
such persons(s) are collectively or cooperatively cultivating
marijuana. And further, all persons(s) cultivating marijuana on the
premises or participating directly or indirectly in the cultivation
must be Butte County residents.
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(d) The single cultivation area shall consist of one (1)
contiguous space. The length and width of the single cultivation area
shall not exceed a ratio of two (2) to one (1).
(e) Except as otherwise authorized in this Chapter, any
commercial activity, including but not limited to the cultivation,
production, storage, processing, manufacturing, dispensing,
distributing, laboratory testing, labeling, transportation, provision
or sale of medical marijuana or medical marijuana products is
prohibited in the unincorporated areas of the County of Butte.
(f) Notwithstanding subsection (e), the mobile delivery of
medical marijuana or medical marijuana products originating from a
licensed retailer, to a customer located in an unincorporated area
of Butte County, is not prohibited.
34A-5. Complaints.
Any person may make a complaint relating to this chapter.
34A-5. Residency requirements.
(a) Persons engaging in cultivation of medical marijuana shall
meet the following requirements:
(1) Such person shall have resided in Butte County for at least
one (1) year prior to cultivating medical marijuana in Butte County;
(2) As to the premises relating to the cultivation of medical
marijuana, such persons shall either:
(A) Own the premises, or
(B) Have entered into a written lease with the actual owner of
the premises.
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(b) Persons who are members of a medical marijuana collective l
must be:
(1) A Butte County resident; or
(2) An immediate family member or primary caregiver of a Butte
County resident. If a medical marijuana collective member is directly
involved in the cultivation of medical marijuana, such member must
be a resident of Butte County or an immediate family member or primary
caregiver of a Butte County resident.
34A-7 Environmental requirements.
(a) All persons engaging in the cultivation of medical
marijuana shall:
(1) Have a permitted permanent water well or connection to a
municipal water source on the premises,
(2) Not engage in unlawful or unpermitted surface drawing of
water for such cultivation and
(3) Not permit illegal discharges of water from the premises.
(b) The premises where the cultivation of medical marijuana
takes place shall either be hooked up to a municipalities' sewer
system or have a Butte County inspected and permitted sewage disposal
system.
(c) Persons engaging in the cultivation and/or harvest of
medical marijuana shall use, dispose and store chemicals used in such
cultivation and/or harvest pursuant to applicable laws.
34A-8 Setbacks; other restrictions.
(a) Each detached structure or outdoor area constituting the
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single cultivation 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 ('-) of an acre in size or less,
leach detached structure shall be set back at least fifteen (15) feet l
from all boundaries of the premises, unless the Director of the
Department of Development Services or his or her designee reduces or
waives this requirement based upon a finding of unusual hardship for
that particular parcel to comply with such setback requirements.
(2) If the premises is greater than one-half ('-�) of an acre in
size but less than five (5) acre in size, each detached structure or
outdoor area constituting the single 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 reduces or waives this requirement based upon a
finding of unusual hardship for that particular parcel to comply with
such setback requirements. Such cultivation area shall be measured
:from the outer edge of the marijuana plan canopy and not the stalk.
Owners of parcels adjacent to such premises shall be notified in
writing of any exercise of such discretion under this section.
(3) If the premises is equal to or greater than five (5) acres
in size but less than ten (10) acres in size, each detached structure
for outdoor area constituting the single cultivation area shall be set
back at least seventy-five (75) feet from all boundaries of the
premises, unless the Director of the Department of Development
Services or his or her designee reduces or waives this requirement
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based upon a finding of unusual hardship for that particular parcel
to comply with such setback requirements. Owners of parcels adjacent
to such premises shall be notified in writing of any exercise of such
Idiscretion under this section.
(4) If the premises is equal to or greater than ten (10) acres
lin size, each detached structure or outdoor area shall be set back
at least one hundred fifty (150) feet from all boundaries of the
premises,
unless
the
Director
of the
Department
of
Development
Services
or his or
her
designee
reduces
or waives
this
requirement
based upon a finding of unusual hardship for that particular parcel
to comply with such setback requirements. Owners of parcels adjacent
to such premises shall be notified in writing of any exercise of such
discretion under this section.
(5) With respect to subsections (a)(2)—(4), such setback
distance shall be measured in a straight line from the building in
which the marijuana is cultivated or if the marijuana is cultivated
in an outdoor area, from the fence required by Section 34A-10, to the
boundary line of the premises.
(b) Notwithstanding the requirements of subsection (a), the
cultivation of marijuana, whether grown collectively or individually,
in any amount or quantity, shall not be allowed in the following
areas:
(1) Within one thousand (1,000) feet of a youth -oriented
facility, a school, a park, or any church or residential treatment
facility as defined herein.
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(2) Within six hundred (600) feet from a school bus stop.
(3) Outdoors within one hundred (100) feet of any occupied
residential structure located on a separate legal parcel, provided,
however, that any person cultivating pursuant to subsection (a)(2)
shall not grow outdoors within fifty (50) feet of any occupied
residential structure located on a separate legal parcel.
(4) In any location where the marijuana plants are visible from
the public right of way or publicly traveled privately maintained',
roads.
(5) In any location in the following zones:
(A) Commercial Zones (GC (General Commercial), NC
(Neighborhood Commercial), CC (Community Commercial), REC (Recreation
Commercial), SE (Sports and Entertainment), MU (Mixed Use));
(B) Industrial Zones (LI (Limited Industrial), GI (General
Industrial), HI (Heavy Industrial)); and
(C) Special Purpose Zones (PB (Public), AIR (Airport), RBP
(Research/Business Park), PD (Planned Development)).
(c) The distance between the above -listed uses in subsection
(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-10, or if the marijuana is cultivated indoors, from the nearest
exterior wall of the building in which the marijuana is cultivated
to the nearest boundary line of the property on which the facility,
building, or structure, or portion of the facility, building, or
structure in which the above -listed use occurs is located. The
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distance in subsection (b)(2) shall be measured from the fence
required in Section 34A-10 to the nearest exterior wall of the
Iresidential 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.
(e) Persons processing marijuana on the premises shall meet
the following requirements:
(1) All processing of marijuana shall occur Indoors;
(2) Persons may only process marijuana that they themselves
have cultivated pursuant to this chapter; and
(3) The setback requirements set out in subsection (a) for
cultivation shall also apply to processing of marijuana.
34A-9 Permission of property owner.
If the person(s) cultivating and/or harvesting marijuana on any
legal parcel is/are not the legal owners) of the parcel, such
person(s) shall obtain the written permission (including notarized
signatures) of the legal owner(s) consenting to the cultivation and/or
harvesting of marijuana on the parcel.
34A-10 Fencing.
All marijuana grown outside of any building must be fully
enclosed by a solid and opaque fence (of approved materials by the
Department of Development Services) at least six (6) feet in height
or a height sufficient to conceal the marijuana from view, whichever
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lis higher, provided, however, that such fence shall not be required)
for marijuana grown on premises of five (5) acres or more when such
marijuana is grown out of sight from public view. The Director of the
Department of Development Services or his or her designee shall have
discretion to determine whether the plants are grown out of sight
from public view. Should the marijuana plant(s) grow higher than the
fence, either:
(1) The plants shall be cut so as to not extend higher than
such fence, or
(2) The person growing marijuana plants shall install a fence)
sufficient to conceal the marijuana plants from public view and comply
with all applicable Butte County permit requirements.
The fence must be adequately secure to prevent unauthorized
entry. Bushes or hedgerows may constitute an adequate fence under
this Chapter on parcels five (5) acres and above in size.
34A-11 Public nuisance; violations.
A violation of any provision of this Chapter shall be deemed to
be a public nuisance and subject to the enforcement process as set
forth in sections 34A-12 through 34A-17 of this Chapter.
34A-12 Enforcement.
(a) The County may, in its discretion, abate the violation of
this Chapter by the prosecution of a civil action, including an action
for injunctive relief without first going through the administrative
procedures set forth herein. The remedy of injunctive relief may take
;the form of a court order, enforceable through civil contempt
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proceedings, prohibiting the maintenance of the violation of this
Chapter or requiring compliance with other terms.
(b) The County may also abate the violation of this Chapter
through the abatement process established by Government Code Section
125845.
34A-13 Abatement procedures.
(a) whenever a Code Enforcement Officer determines that a
public nuisance (as defined in this chapter) exists, he or she shall
post a seventy-two (72) hour Notice to Abate at the nearest accessible
entry point to the property where the public nuisance exists, and
mail a copy of the same to those persons shown on the latest County
tax roll to be the owners of the property. The seventy-two (72) hour
Notice to Abate shall inform the owner and/or tenants of the basis
for the violation, and that an Administrative Penalty of five hundred
dollars ($500.00) per day will accrue for each day that the violation
continues to exist; explain that if the violation is not corrected,
the matter will be set for a Nuisance Abatement Hearing, at which
time the Administrative Penalty will increase to one thousand dollars
($1,000.00) per day; and explain that to prevent the accrual of
additional penalties and costs, the owner or tenant must contact the
Code Enforcement Office and arrange a time for a Code Enforcement
Officer to inspect the property, and confirm that the violation(s)
have been corrected.
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(b) If the nuisance continues to exist after the expiration of
the seventy-two (72) hour period, a Code Enforcement Officer may set
the matter for hearing by issuing a Notice of Nuisance Abatement
Hearing. If the matter is set for hearing, the Code Enforcement
Officer shall post the Notice of Nuisance Abatement Hearing at the
nearest accessible entry point to 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. The
Administrative Penalty shall increase to one thousand dollars,
($1,000.00) per day from the date the Notice of Nuisance Abatement
Hearing is posted at the nearest accessible entry point to the
property, and shall continue to accrue at that rate for each day that
the violation continues to exist. Both 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
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determined that conditions exist on the above property which
constitute a public nuisance and violate Butte County Code section (s)
, as follows: . After hearing, if a violation is found
to have existed at the time the Notice of Nuisance Abatement Hearing
was posted on the property, the Administrative Costs incurred in
prosecuting the violation, including, but not limited to, the cost
of the Hearing Officer, the cost of prior time and expenses associated
with bringing the matter to hearing, attorneys' fees, the cost
associated with any appeals from the decision of the Hearing Officer,
the cost of judicially abating the violation, the cost of labor and
material necessary to physically abate the violation, the cost of
securing expert and other witnesses, and the accrual of any
Administrative Penalties, may become a lien against the subject
property, and the costs may also be specially assessed against the
property in the same manner as taxes. If a 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 existed on your property at
the time the Notice of Nuisance Abatement Hearing was posted, you
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(will then have the burden of proving that no public nuisance existed
on your property. Therefore, you should be prepared to introduce oral
and documentary evidence proving why, in your opinion, your use of
the property is not a public nuisance as defined in this chapter. A
copy of the Butte County Code Chapter 34A relating to Medical
Marijuana Cultivation nuisance abatement hearings is enclosed to
assist you in the preparation of your presentation.
If an initial showing sufficient to persuade the Hearing Officer
that a public nuisance existed on your property is made by the Code'
Enforcement Officer, your failure to sustain the burden of showing
that no public nuisance existed on the property may result in a
decision by the Hearing Officer that a public nuisance did exist, and
that the County is entitled to recover its Administrative Costs, and
all Administrative Penalties that accrued up to the time that the
nuisance was abated.
Further, if the Hearing Officer finds that a public nuisance
continues to exist on your property, and you fail to abate the
nuisance promptly, the County may abate the nuisance. If the County
abates the nuisance, in addition to being able to recover its
Administrative Costs and Penalties, you may be responsible for the
actual costs of the abatement. In either circumstance, all
Administrative Costs, Abatement Costs, and Administrative Penalties
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
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collection purposes, as other county taxes and, if not paid, may
result in a forced sale of your property. You are also hereby notified
that the County will seek recovery of attorneys' fees incurred in any
hearing and that attorneys' fees may be recovered by the prevailing
party.
Finally, if the Hearing Officer finds that a public nuisance
exists on your property, a violation of the Butte County Code Chapter
34A, the County will contend that you are bound by such finding at
any subsequent judicial action to enforce the Hearing Officer's order.
IMPORTANT: READ THIS NOTICE CAREFULLY.
IN ADDITION TO ANY ADMINISTRATIVE CIVIL PENALTIES THAT HAVE
ALREADY ACCRUED, AN ADMINISTRATIVE CIVIL PENALTY OF $1,000 PER DAY
IS HEREBY IMPOSED FROM THE DATE THIS NOTICE WAS POSTED AT THE NEAREST
ACCESSIBLE ENTRY POINT TO YOUR PROPERTY, AND WILL CONTINUE TO ACCRUE
AT THAT RATE UNTIL THE NUISANCE IS ABATED. IN ORDER TO PREVENT THE
ACCRUAL OF ONGOING PENALTIES AND COSTS, YOU MUST CONTACT THE CODE
ENFORCEMENT OFFICE, AND ARRANGE A TIME FOR A CODE ENFORCEMENT OFFICER
TO INSPECT YOUR PROPERTY, AND CONFIRM THAT THE VIOLATION(S) HAVE BEEN
CORRECTED.
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:
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BUTTE COUNTY DIRECTOR OF DEVELOPMENT SERVICES
By:
(c) 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.
(d) At the time and place set for the hearing, 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
Director of Development Services, or his or her designee, shall tape
record the hearing, and provide a copy of the recording to the Hearing
Officer following the conclusion of the hearing. The Hearing Officer
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.
(e) Within five (5) days after the hearing is closed, the
Hearing Officer shall render his or her written decision relating to
the existence or nonexistence of the alleged public nuisance. If a
violation is found to have existed at the time the Notice of Nuisance
Abatement Hearing was posted, the decision shall include a statement
that the County is entitled to recover its Administrative Costs and
Administrative Penalties. If the Hearing Officer determines that the
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jviolation continues to exist, the decision shall also order that thel
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 from the date the decision is placed in the mail. 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.
(f) The decision of the Hearing Officer shall be final and
conclusive on the date the certified mail set forth in subsection
(e), is deposited in the mail.
(g) (1) Notwithstanding any other provisions of this Code, if a
final decision of the Hearing Officer finds that a violation exists
and the public nuisance is not voluntarily abated within ten (10)
days of said decision being placed in the mail by the Hearing Officer,
the Director of Development Services or his or her designee may abate
the public nuisance by cutting and/or removing all marijuana plants
from the property, pursuant to a warrant issued by a court of
competent jurisdiction. The owner of the property shall be responsible
for paying all of the County's Abatement Costs and Administrative
Costs, including but not limited to, those cost items set forth in
the notice required by subsection (a), and Administrative Penalties.
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The Director of Development Services or his or her designee shall
keep an accounting of the Abatement and Administrative Costs for each
case. Upon completion of the abatement of the nuisance, whether by
the Director of Development Services or his or her designee, or the
owner or tenant, the Director of Development Services or his or her
designee shall post a bill at the nearest accessible entry point to
the property, and shall 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, as well as all
Administrative Penalties. The bill shall also state that failure to
pay the Costs and Penalties 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 Costs and Penalties are not paid within
fifteen (15) days from service of the bill, the Director of
Development Services shall render an itemized report to the Clerk of
the Board of Supervisors for submittal to the Board of Supervisors
for hearing and consideration regarding a proposed lien to recover
the Administrative penalties and a special assessment to recover the
costs. The report shall include the names and addresses of the owner
of record and any persons known to be in possession of the property,
and an itemized account of the County's Abatement Costs,
Administrative Costs, and Administrative Penalties. 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
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all persons named in the Director of Development Services' report and
the Director of Development Services or his or her designee shall
1post a copy of the notice at the nearest accessible entry point to I
the property. The notice shall describe the property by assessor's j
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.
(h) At the time and place fixed in the notice, the Board of
Supervisors shall hear and consider the proposed lien and special
assessment together with objections and protests thereto. At the
conclusion of the hearing, the Board of Supervisors may make such
modifications and revisions to the proposed lien and special
assessment as it deems just, and may order that the penalties be
recorded as a lien against the property by the Director of Development
Services, and that the costs be specially assessed against the
property by the Auditor -Controller's Office. The lien shall have the
same force, priority and effect as a judgment lien and the special
assessment shall have the same priority as other County taxes.
(i) The notice of lien shall, at a minimum, identify the record
owner or possessor of the property, set forth the date upon which the
decision of the Hearing Officer was issued, describe the real property
subject to the lien, set forth the amount of the Costs and Penalties
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I1 incurred to date and, if applicable, the date upon which the abatement j
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
Ilien and that additional Abatement Costs will be incurred in the I
Ifuture.
It is the intent of the Board of Supervisors that Abatement)
)Costs, Administrative Costs, and Administrative Penalties 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,
Administrative Costs, and Administrative Penalties 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.
(j) 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 and all Costs and Penalties are paid, a notice of such
correction shall be recorded. The Director of Development Services
is authorized to 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, Administrative Costs, and Administrative Penalties as defined
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in Sections 34A-14 and 34A-16). In any action to foreclose on a lien
issued pursuant to this chapter, the County shall be entitled to an
award of attorney's fees.
34A-14 Abatement costs; administrative costs.
(a) The term "Abatement Costs" means any costs or expenses
reasonably related to the abatement of conditions which violate the
Butte County Code, and shall include, but not be: limited to,
enforcement, investigation, 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 reasonably related to enforcement, for items'
including, but not limited to, site inspections, travel time,
investigations, telephone contacts and time spent preparing
summaries, reports, notices, correspondence, warrants and hearing
packets. The time expended by Development Services and Auditor -
Controller staff, to calculate the above costs and prepare itemized
invoices, may also be recovered.
(c) In any action, administrative proceeding, or special
proceeding to abate a nuisance, attorneys' fees may be recovered by
the prevailing party. 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 Non-exclusive remedy.
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This Chapter is cumulative to all other remedies now or hereafter
available to abate or otherwise regulate or prevent public nuisances.
34A-1.6 Administrative civil penalties.
In addition to any other remedies provided by County Code or
State Law, and in accordance with Government Code section 53069.4,
there is hereby imposed the following civil penalty for each violation
of this chapter:
(a) Five hundred dollars ($500.00) per day from the day the
seventy-two (72) hour Notice is posted at the nearest accessible
entry point to the property, and continuing for each day that the
violation continues to exist; however, if a Notice of Nuisance
Abatement Hearing is issued, the penalty shall increase to one
thousand dollars ($1,000.00) per day from the date the Notice of
Nuisance Abatement Nearing is posted at the nearest accessible entry
point to the property , and shall continue to accrue at that rate for
each day that the violation continues to exist, until the violation
is abated by whatever means.
(b) At the Nuisance Abatement Hearing, the Hearing Officer
shall determine the total amount of Administrative Penalties that
have accrued at the time of the hearing, and that amount shall be
reflected in the decision and awarded to the County. If at the time
of the hearing the nuisance has yet to be abated, the decision shall
state that Administrative Penalties shall continue to accrue at one
thousand dollars ($1,000.00) per day until the nuisance is abated.
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The decision of the Hearing Officer shall be final and conclusive on
the date the decision is deposited in the mail.
(c) Administrative Penalties shall not be awarded if the
property owner establishes all of the following:
(i) That, at the time he or she acquired the property, a
violation of this code already existed on the property;
(ii) The property owner did not have actual or constructive
notice of the existence of that violation; and
(iii)Within thirty (30) days after the mailing of notice of the
existence of that violation, the property owner initiates and pursues,
with due diligence, good faith efforts, to meet the requirements of
this Code.
(d) 1n the event a tenant or property owner contacts a Code
Enforcement Officer and demonstrates that all violations have been
corrected in a timely manner prior to a hearing being conducted
pursuant to this chapter, the Director of Development Services, or
his or her designee, has the authority to waive or reduce the amount
of penalties owed, and cancel the scheduled hearing, if in his or her
opinion such a reduction and hearing cancellation is warranted.
(e) Following the issuance of a Hearing Officer's decision,
the Director of Development Services, or his or her designee, may
compromise the amount of any administrative penalty imposed by the
Hearing Officer. when determining whether to compromise any penalty
amount, the Director, or his or her designee, shall take into
consideration the nature, circumstances, and gravity of the
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violation(s), any prior history of violations, the degree of
culpability, the financial burden to the person(s) upon whom the
penalty has been imposed, the degree to which the proposed compromise
will facilitate collection of the penalties without the need for
further legal action, and any other matters justice may require. The l
compromise shall be subject to any terms and conditions prescribed
by the Director, or his or her designee, which may include, without
limitation, a condition requiring that the subject legal property and
all responsible parties remain free of any additional violations for
a specified period of time. Any person accepting a compromise penalty'
hereunder shall be required to execute a Compromise Agreement in a
form approved by County Counsel.
34A-17 Summary abatement.
Notwithstanding any other provision of this Chapter, when any
unlawful medical marijuana cultivation constitutes an immediate
threat to the public health or safety, and where the procedures set
forth in sections 34A -W11 through 34A-14 would not result in abatement
of that nuisance within a short enough time period to avoid that
threat, the enforcing officer may direct any officer or employee of
the County to summarily abate the nuisance. The enforcing officer
shall make reasonable efforts to notify the persons identified in
Section 34A-13 but the formal notice and hearing procedures set forth
in this Chapter shall not apply. No summary abatement shall occur
prior to consultation with the Office of County Counsel. The County
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may nevertheless recover its costs for abating that nuisance in the
manner set forth in this Chapter.
34A-1$ No duty to enforce.
Nothing in this Chapter shall be construed as imposing on the
enforcing officer or the County of Butte any duty to issue a Notice
to Abate Unlawful Marijuana Cultivation, nor to abate any unlawful
marijuana cultivation, nor to take any other action with regard to
any unlawful marijuana cultivation, and neither the enforcing officer
nor the County shall be held liable for failure to issue an order to
abate any unlawful marijuana cultivation, nor for failure to abate
any unlawful marijuana cultivation, nor for failure to take any other
action with regard to any unlawful marijuana cultivation.
34A-19 Use of money collected under this chapter.
All money collected for penalties for violations of this chapter
and all money collected for recovery of costs of enforcement of this
chapter shall be made available to the Departments, who are involved
in the enforcement of this chapter.
AYES: Supervisors Lucero, Ritter, Kimmelshue, Teeter and Chair
Connelly
NOES: None
ASSENT: None
ABSTAIN: None
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Bill Connelly, -Cha'
Butte County Board of Supervisors,
ATTEST:
Andy Pickett, Chief Administrative Officer
and Clerk of the Bcard
By: N-
0- p) u"q y
BE