HomeMy WebLinkAbout42041
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Ordinance No. 4203
CHAPTER 34C
NONMEDICAL MARIJUANA ORDINANCE
34C-1 Authority and title.
Pursuant to the authority granted by Article XI, section 7 of
the California Constitution, Health and Safety Code section 11362.2,
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 Nonmedical Marijuana Ordinance."
34C-2 Findings and purpose.
(a) In 2016, voters of the State of California approved
Proposition 64, entitled The Control, Regulate and Tax Adult Use of
Marijuana Act (the "Adult Use of Marijuana Act" or the "AVMA").
(b) The stated purpose of the AVMA is to establish a
comprehensive system to legalize, control and regulate the
cultivation, processing, manufacture, distribution, testing, and sale
of nonmedical marijuana, including marijuana products, for use by
adults twenty-one (21) years and older, and to tax the commercial
growth and retail sale of marijuana.
(c) The AVMA creates a licensing scheme whereby the State will
issue licenses to businesses authorizing them to cultivate,
distribute, transport, store, manufacture, process, and sell
nonmedical marijuana and marijuana products for adults twenty-one
(21) years of age and older, with such licenses expected to be issued
by January 1, 2018.
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(d) The AUMA states that nothing in it shall be interpreted to
supersede or limit the authority of a local jurisdiction to adopt and
enforce local ordinances to regulate businesses licensed under the
AUMA. The AUMA allows local governments to ban nonmedical marijuana
businesses, and mandates that the State licensing authorities shall
not approve an application for a State license if approval of the
State license will violate the provisions of any local ordinance or
regulation adopted in accordance with the requirements of the AUMA.
(e) The AUMA provides that it shall be lawful under state and
local law for persons twenty-one (21) years of age and older to plant,
cultivate, harvest, dry, or possess not more than six (6) marijuana
plants, and possess the marijuana produced by the plants, subject to
the following restrictions: 1) A person shall plant, cultivate,
harvest, dry or possess plants in accordance with local ordinances;
2) the plants and any marijuana produced by the plants in excess of
28.5 grams are kept within the person's private residence, or upon
the grounds of a private residence, in a locked space, and not visible
by normal unaided vision from a public place; and 3) not more than
six (6) plants may be planted, cultivated, harvested, dried, or
processed within a single private residence, or upon the grounds of
a private residence, at any one (1) time.
(f) The AUMA allows a county to enact and enforce "reasonable
regulations" to regulate the possession, planting, cultivation,
harvesting, drying, or processing of the six (6) marijuana plants,
as well as the possession of the marijuana produced by the plants.
VA
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(g) The Federal Controlled Substances Act, 21 U.S.C. §§ 801 et
sect., classifies marijuana as a schedule I drug, which is defined as
a drug or other substance that has a high potential for abuse, has',
IIno currently accepted medical use in treatment in the United States,
and 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 or nonmedical
purposes.
(h) In a series of memoranda issued in October 2009, June 2011,
and August 2013, the U.S. Department of Justice provided guidance to
federal prosecutors concerning marijuana enforcement under the
Controlled Substances Act, and generally advised that it is not likely
an efficient use of federal resources to prosecute those persons or
entities acting in compliance with a strong and effective state
regulatory system for the cultivation and distribution of marijuana.
These guidelines are understood to allow states to legalize marijuana
so long as the state laws adequately address the following goals of
preventing: (1) distribution of marijuana to minors; (2) revenue from
the sale of marijuana going to criminal enterprises; (3) diversion
of marijuana from states where it is legal under state law to other
states; (4) state authorized marijuana activity from being used as a
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11cover for the trafficking of other illegal drugs; (5) violence and
Ilthe use of firearms in the cultivation and distribution of marijuana
(6) drugged driving and the exacerbation of other adverse public
health consequences associated with marijuana use; (7) growing of
marijuana on public lands and the attendant public safety
environmental dangers; and (8) possession or use of marijuana on
federal property.
(i) The County's geographic and climatic conditions, which
include dense forested areas that receive substantial precipitation,
along with 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.
(j) The County has a compelling interest in protecting the
public health, safety, and welfare of its residents and businesses,
and preserving the peace and integrity of the unincorporated areas
in the County. In the past, significant concerns have been raised
regarding the land use impacts that the possession, planting,
cultivation, harvesting, drying, processing, distributing,
transporting, storing, manufacturing, and sale of marijuana will have
on the public health, safety, and welfare of the residents of Butte
County, and the environment. Comprehensive civil regulation of
premises used for marijuana cultivation is proper and necessary to
avoid the risks of criminal activity, degradation of the natural
environment, malodorous smells, and indoor electrical fire hazards
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that may result from unregulated marijuana cultivation.
(k) Cultivation of marijuana at locations or premises within
six hundred (600) feet of school bus stops or one thousand (1,000)
Meet of schools, school evacuation sites, churches, parks, child care)
icenters, 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, and 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.
(1) It is the purpose and intent of this Chapter to implement
State law by providing a means for regulating the cultivation of
nonmedical marijuana in a manner that is consistent with State law,
and in a manner that promotes the health, safety, and welfare of the
residents and businesses within the unincorporated territory of the
County of Butte.
(m) It is also the purpose and intent of this Chapter to provide
a complaint -driven civil process to remedy nuisances related to
nonmedical marijuana cultivation.
(n) In 2015, the California legislature enacted the Medical
Marijuana Regulation and Safety Act ("MMRSA"), which set forth a new
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11structure for licensing and enforcement of medical marijuana
cultivation, product manufacturing, testing, transportation, and
distribution. Following the passage of the MMRSA, 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.
(o) 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 establishes a strict licensing scheme whereby all
commercial marijuana activities, including retail sales and
deliveries, are required to be conducted by licensees.
(p) 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.
(q) It is also the purpose and intent of this Chapter to
regulate commercial activities involving nonmedical marijuana in a
manner that is consistent with state law, and that promotes the
health, safety, and general welfare of the residents and businesses
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located within the unincorporated areas of Butte County.
34C-3 Definitions.
Except where the context otherwise requires, the following
definitions shall govern the construction of this Chapter:
(a) "Accessory structure" means a fully enclosed structure that
is located on the grounds of a "private residence," and is detached
from the "private residence," as that term is defined herein.
(b) "Child Care Center" means any licensed child care center,
daycare center, or childcare home, or any preschool.
(c) "Church" means a structure or leased portion of a
structure, which is used primarily for religious worship and related
religious activities.
(d) "Code Enforcement Officer" means any person employed by
the County of Butte and appointed to the position of code enforcement
officer.
(e) "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.
(f) "Cultivation" means any activity involving the planting,
growing, harvesting, drying, curing, grading, or trimming of
marijuana.
(g) "Delivery" means the commercial transfer of marijuana or
marijuana products to a customer twenty-one (21) years of age or
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older.
(h) "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.
(i) "Enforcing Officer" means the Code Enforcement Officer or
his or her authorized deputies or designees, each of whom is
independently authorized to enforce this Chapter.
(j) "Fence" means a wall or a barrier connected by boards,
masonry, rails, panels, wire or any other materials approved by the
Department of Development Services for the purpose of enclosing space
or separating parcels of land. The term "fence" does not include
retaining walls.
(k) "Indoors" means entirely within a "private residence" or
"accessory structure" as defined herein.
(1) "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).
(m) "Manufacture" means to compound, blend, extract, infuse,
or otherwise make or prepare a marijuana product.
(n) "Marijuana" has the same meaning as in Section 11018 of
the California Heath & Safety Code.
(o) "Outdoors" means any location that is not "indoors" as
defined herein.
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(p) "Parcel" means a "legal parcel" as defined herein.
(q) "Premises" means a single, legal parcel of property that
includes an occupied legal residence that is a dwelling in compliance
with Chapter 26 of the Butte County Code and has also met the
requirements of Sections 34C-6 and 34C-7.
(r) "Private residence" means a house, apartment unit, mobile l
home, or other similar dwelling.
(s) "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
lof transitional living.
(t) "Retailer" means a person or business who obtains a state)
license for the retail sale and delivery of marijuana or marijuana)
products to customers.
(u) "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 or professional institution of higher education, including
a community or junior college, college or university.
(v) "School Bus Stop" means any location designated in
accordance with California Code of Regulations, Title 13, section
1.238, to receive school buses, as defined in California Vehicle Code
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section 233, or school pupil activity buses, as defined in Vehicle
Code section 546.
(w) "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.
(x) "Testing Laboratory" means a facility, entity, or site that
offers or performs tests [on] marijuana or marijuana products.
(y) "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.
34C-4 Nuisance declared; restrictions on personal cultivation
and commercial activities.
(a) The cultivation of marijuana that is not in compliance with
the requirements set out in this Chapter is hereby declared to be
unlawful, and a public nuisance, which may be abated in accordance
with this Chapter.
(1) Not more than six (6) marijuana plants may be cultivated
indoors, or in an outdoor garden located upon the grounds of a private
residence, at any one (1.) time.
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(2) If the premises is less than five (5) acres in size, the
cultivation of not more than six (6) marijuana plants, and the
possession of the marijuana produced by the plants, shall only take
place indoors, and in one (1) contiguous space.
(3) If the premises is five (5) acres in size or greater, the
cultivation of not more than six (6) marijuana plants, and the
possession of the marijuana produced by the plants, may take place
either indoors, or in an outdoor garden located on the grounds of a
(private residence. The entire cultivation must take place in one (1)
contiguous space.
(b) For cultivation to be permissible inside an accessory
structure, the accessory structure must: 1) comply with the California
Building Standards Code (Title 24 California Code of Regulations),
as adopted by the County of Butte; 2) be secure against unauthorized
entry; 3) be accessible only through one (1) or more lockable doors;
4) be constructed of approved building materials, including glass,
so as long as the marijuana being cultivated cannot be seen from any
public right-of-way, including neighboring parcels; 5) contain a
ventilation and filtration system that prevents marijuana plant odors
from exiting the interior of the structure; 6) be located in the rear
yard area of a legal parcel or premises; and 7) maintain the setbacks
set forth in section 34C-8.
(c) The installation of electrical fixtures, plumbing, or
ventilation/filtration systems, for the purpose of modifying an
existing structure to meet the requirements of an accessory structure,
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shall require a building permit.
(d) 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 nonmedical marijuana or nonmedical marijuana products is
prohibited in the unincorporated areas of the County of Butte.
(e) notwithstanding subsection (d), the mobile delivery of
nonmedical marijuana or nonmedical marijuana products originating
from a licensed retailer, to a customer located in an unincorporated
area of Butte County, is not prohibited.
34C-5 Complaints.
Any person may make a complaint relating to this Chapter.
34C-6 Residency requirements.
Persons engaging in the cultivation of marijuana shall either
own the premises, or have entered into a written lease with the owner
of the premises.
34C-7 Environmental requirements.
(a) Any parcel where the cultivation of marijuana takes place
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.
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(b) The premises where the cultivation of marijuana takes place
shall either be hooked up to a municipality's sewer system, or have
a Butte County inspected and permitted sewage disposal system.
(c) Persons engaging in the cultivation of marijuana shall use,
dispose and store chemicals in accordance with all applicable laws.
34C-8 Setbacks; other restrictions.
(a) Each accessory structure or outdoor garden area that
constitutes the single cultivation area where marijuana is cultivated
shall be set back from the boundaries of the premises as follows;
(1) If the premises is less than five (5) acres, and the
Ilmarijuana cultivation takes place inside an accessory structure, the
accessory structure shall be set back at least fifteen (15) feet from
all boundaries of the premises, and at least seventy-five (75) feet
from any occupied residential structure located on a separate legal
parcel, unless the Director of the Department of Development Services
or his or her designee reduces or waives one (1) or both of these
requirements 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.
(2) If the premises is equal to or greater than five (5) acres
but less than ten (10) acres in size, the accessory structure or
outdoor garden area constituting the single cultivation area shall
be set back at least seventy-five (75) feet from all boundaries of
the premises, and at least one hundred and fifty (150) feet from any
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11occupied residential structure located on a separate legal parcel,
11unless the Director of the Department of Development services or his
11or her designee reduces or waives one (1) or both of these'
11requirements 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.
(3) If the premises is greater than ten (10) acres in size,
the accessory structure or outdoor garden area constituting the single
cultivation area shall be set back at least one hundred and fifty
(150) feet from all boundaries of the premises, and at least one
hundred and fifty (150) feet from any occupied residential structure
located on a separate legal parcel, unless the Director of the
Department of Development Services or his or her designee reduces or
waives one (1) or both of these requirements 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.
(4) For cultivation taking place in an accessory structure,
such setback distance shall be measured in a straight line from the
accessory structure to the boundary line of the premises. For
cultivation taking place in an outdoor garden area, the cultivation
area shall be measured from the outer edge of the canopy of the
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marijuana plants, and not from the stalk, to the boundary line of the
premises.
(b) Notwithstanding the requirements of subsection 34C -4(a)
above, the cultivation of marijuana, in any amount or quantity, shall
not be allowed in the following areas:
(1) Within one thousand (1,000) feet of a youth -oriented',
facility, a school, a park, or any church or residential treatment
facility as defined herein.
(2) Within six hundred (600) feet from a school bus stop.
(3) In any location where the marijuana plants are visible from
the public right of way or publicly traveled privately maintained
roads.
(4) 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 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
34C-10, or if the marijuana is cultivated indoors, from the nearest
exterior wall of the building in which the marijuana is cultivated,
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Ito the nearest boundary line of the property on which the facility,
building,
or structure,
or portion
of the facility,
building,
or
structure
in which the
above -listed
use occurs, is
located.
The
distance in Section (b)(2) shall be measured from the fence required
lin Section 34c-10 to the nearest exterior wall of the residential
Istructure.
(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.
34C-9 Permission of property owner.
If the person(s) cultivating on any legal parcel is/are not the
legal owner(s) of the parcel, such person(s) shall obtain the written
permission (including notarized signatures) of the legal owner(s)
consenting to the cultivation of marijuana on the parcel.
34C-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
for a height sufficient to conceal the marijuana from view, whichever
is higher, provided, however, that such fence shall not be required
for marijuana grown on premises of five (5) acres or more when such
marijuana is grown out of sight from public view. The Director of the
Department of Development Services or his or her designee shall have
discretion to determine whether the plants are grown out of sight
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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.
34C-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 34C-12 through 34C-17 of this Chapter.
34C-12 Enforcement.
(a) The County may, in its discretion, abate a 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
proceedings, prohibiting the maintenance of a violation of this
Chapter, or requiring compliance with other terms.
(b) The County may also abate a violation of this Chapter
through the abatement process established by Government Code Section
25845.
34C-13 Abatement procedures.
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(a) Whenever a Code Enforcement Officer determines that a
1public nuisance (as defined in this Chapter) exists, he or she shall
post a 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 72 -hour notice to abate shall inform
the owner and/or tenants of the basis for the violation, and that and
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.
(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
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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 34C. The Department of
Development Services has 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
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Ilfrom the decision of the Hearing Officer, the cost of judicially
11abating the violation, the cost of labor and material necessary to
11physically abate the violation, the cost of securing expert and other
11witnesses, and the accrual of any administrative penalties, may become
Ila 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
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 34C relating to marijuana
cultivation nuisance abatement hearings is enclosed to assist you in
the preparation of your presentation.
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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 and abatement costs may be specially assessed against
your parcel by the Auditor -Controller's Office and added to your tax
bill as a special assessment, and all Administrative Penalties may
be recorded against your property as a judgment lien. Special
assessments have the same priority, for collection purposes, as other
county taxes and, if not paid, may result in a forced sale of your
property. You are also hereby notified that the County will seek
recovery of attorneys' fees incurred in any 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, in violation of the Butte County Code Chapter
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34C, 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:
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
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Il rotation through attorneys currently under contract through the
IlProgram.
(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 andel
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
violation continues to exist, the decision 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 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 I
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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)
above, 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 nearing 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) above, and administrative
penalties. 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
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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
Inas 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
all persons named in the Director of Development Services' report and
the Director of Development Services or his or her designee shall
post a copy of the notice at the nearest accessible entry point to
the property. 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
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amount of the proposed lien and special assessment. The notice shall
also contain a statement that the Board will hear and consider
lJobjections 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 1,
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
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.
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It is the intent of the Board of Supervisors that abatement
11costs, administrative costs, and administrative penalties incurred
11after 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,
11 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
11for 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
in sections 34C-14 and 34C-16 of this Chapter). 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.
34C-14 Abatement costs; administrative costs.
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(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.
34C-15 Non-exclusive remedy.
This Chapter is cumulative to all other remedies now or hereafter
available to abate or otherwise regulate or prevent public nuisances.
34C-16 Administrative civil penalties.
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In addition to any other remedies provided by County Code orgy
(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
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 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, 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.
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
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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) In 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
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
compromise shall be subject to any terms and conditions prescribed
by the Director, or his or her designee, which may include, without
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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
Ilhereunder shall be required to execute a compromise agreement in a
form approved by County Counsel.
34C-17 Summary abatement.
Notwithstanding any other provision of this Chapter, when any
unlawful marijuana cultivation constitutes an immediate threat to the
public health or safety, and where the procedures set forth in
sections 34C-11 through 34C-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 34C-
13 but the formal notice and hearing procedures set forth in this
Chapter shall not apply. No summary abatement shall occur prior to
consultation with the Office of County Counsel. The County may
nevertheless recover its costs for abating that nuisance in the manner
set forth in this Chapter.
34C-18 No duty to enforce.
Nothing in this Chapter shall be construed as imposing on the
enforcing officer or the County of Butte any duty to issue a notice
to abate unlawful marijuana cultivation, nor to abate any unlawful
marijuana cultivation, nor to take any other action with regard to
any unlawful marijuana cultivation, and neither the enforcing officer
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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.
34C-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 Lutero, Ritter, Kimmelshue, Teeter and Chair
Connelly
NOES: None
ABSENT: None
ABSTAIN: None
Bill Connelly, Ciair
Butte County Board of Supervisors
ATTEST:
Andy Pickett, Chief Administrative Officer
and Clerk of the Board
By: 0AJ IALke.'
beFutr
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