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Ordinance No. 42471
AN ORDINANCE OF THE COUNTY OF BUTTE AMENDING CHAPTER 34A,
ENTITLED "MEDICAL MARIJUANA CULTIVATION REGULATION"
OF THE BUTTE COUNTY CODE
The Board of Supervisors of the County of Butte ordains as
follows:
Section 1. Chapter 34A of the Butte County Code is amended to
dread as follows:
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
Cannabis 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 cannabis 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
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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
patients and primary caregivers who collectively or
cooperatively cultivate cannabis 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 cannabis 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, cannabis. The
Federal Controlled Substances Act contains no exemption for the
cultivation, manufacture, distribution, dispensation, or
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possession of cannabis for medical purposes.
1(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 cannabis cultivation.
Outdoor cannabis 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 cannabis 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 to 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 cannabis plant cultivated
within the County can thus easily yield four thousand dollars
($4,000.00) or more in salable cannabis.
1(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
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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 cannabis
cultivation. The unregulated cultivation of cannabis 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
cannabis cultivation is proper and necessary to avoid the risks
of criminal activity, degradation of the natural environment,
malodorous smells, and indoor electrical fire hazards that may
result from unregulated cannabis cultivation, and that are
especially significant if the amount of cannabis cultivated on a
single premises is not regulated and substantial amounts of
cannabis are thereby allowed to be concentrated in one (1)
place.
(h) Cultivation of cannabis 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 cannabis 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 cannabis cultivation in such
locations poses heightened risks that juveniles will be involved
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or endangered, therefore, cultivation of any amount of cannabis
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 cannabis 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 cannabis cultivation season, the
overpowering unpleasant smell of cannabis resulted in their
inability to use their yards and required them to keep windows
and doors shut in the stifling summer heat. 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 cannabis being sucked into the residence. Adults and
children with respiratory problems were particularly affected.
Residents reported that cannabis grown in residential backyards
results in an invitation to criminal activity for persons who
would steal cannabis plants out of backyards. Some cannabis
growers would live in a tent in their backyard, carrying
firearms and utilizing guard dogs to protect their cannabis
plants. Residents reported they were uncomfortable allowing
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their children to play outside in their neighborhood due to such
dangerous activity. Cultivators of medical cannabis stated that
they would not grow medical cannabis at their own residence to
protect their children. For this reason, the growth of medical
cannabis 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 cannabis
in any 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 cannabis. The
Butte County Sheriff's Office has indicated that over one
hundred fifty (150) calls for service in the past year have
involved cannabis, 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 cannabis 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,
I.
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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 cannabis may be cultivated, including restrictions on
the amount of cannabis 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 cannabis 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 cannabis in the unincorporated area of Butte
County.
(m) The purpose of this chapter is to generally provide a structure
for a complaint -driven civil process to remedy nuisances related
to medical cannabis cultivation, while also allowing the County
to proactively enforce this chapter, without receiving a
complaint, at its discretion.
(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
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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 cannabis and those who are
adversely affected by its cultivation.
(o) Nothing in this chapter shall be construed to allow the use of
cannabis for non -medical purposes, or allow any activity
relating to the cultivation, distribution, or consumption of
cannabis 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.
I(p) County staff has reported discovering many cannabis gardens
without any person responsible for the property on site. Issues
arising from unattended cannabis gardens, such as illegal
camping associated with cultivation, abuse of experimental well
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 is no legal residence on the property. The Board
has repeatedly made very clear that it is their expectation and
requirement that all cultivation activities be conducted with
the upmost care, attention, oversight, protection and management
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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
control the harms caused by unregulated and non -compliant
cannabis cultivation, while still accommodating the needs of
medical patients 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
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things, established the Medical Cannabis 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 Cannabis Regulation and
Safety Act, an increasing number of individuals and businesses
began offering mobile delivery of cannabis 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 cannabis 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
cannabis, and the manufacturing of non -medical cannabis
products. However, AUMA authorizes local jurisdictions to
completely prohibit the establishment or operation of any non-
medical cannabis 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
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activities involving both medical and non -medical cannabis. The
unified structure repeals the collective/cooperative model, and
establishes a strict licensing scheme, whereby all commercial
cannabis 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 cannabis 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:
"Cannabis" has the same meaning as in California Health and
Safety Code section 11018.
"Cannabis plant" means any mature or immature cannabis plant, or
any cannabis seedling, unless otherwise specifically provided
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herein. A "mature" cannabis plant is one (1) whose sex can be
determined by visual inspection.
"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
cannabis or cannabis products.
"Cultivation" means the planting and growing of one (1) or more
cannabis 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 cannabis or cannabis
products to a customer twenty-one (21) years of age or older.
"Distribution" means the procurement, sale, and transport of
cannabis and cannabis 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 or
(her authorized deputies or designees, each of whom is independently
lauthorized 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 of Development Services for the purpose of enclosing
space or separating parcels of land. The term "fence" does not
include retaining walls.
"Harvest" means the drying, processing, or storage of cannabis
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 cannabis being
cultivated cannot be seen from any public right-of-way. Any
detached, fully -enclosed and secure structure used for the
cultivation of cannabis must have a ventilation and filtration
system installed that shall prevent cannabis 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
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fence at least six (6) feet in height. When this chapter requires
that cultivation of cannabis occur indoors, the harvest of such
cannabis 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 cannabis product.
"Medical cannabis 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 cannabis 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 with Chapter 26 of the Butte County Code and has also
met the requirements of Sections 34A-6 and 34A-7. Where contiguous
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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 cannabis or cannabis
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 or professional institution of higher
education, including a community or junior college, college or
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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
233, 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] cannabis or cannabis 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 and
commiercial activities.
(a) The cultivation of cannabis on any parcel that does not satisfy
the definition of a premises contained herein is hereby declared
to be a public nuisance that may be abated in accordance with
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this chapter.
(b) The cultivation of cannabis 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 (0.5) 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 cannabis 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 cannabis on the premises.
The cultivation area shall be measured from the outer edge
of the cannabis 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
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cultivation area no larger than one hundred (100) square
feet may be devoted to the cultivation of cannabis on the
premises. The cultivation area shall be measured from the
outer edge of the cannabis 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)If the premises is equal to or greater than ten (10) acres
in size, a single cultivation area no larger than one
hundred fifty (150) square feet may be devoted to the
cultivation of cannabis on the premises. The cultivation
area shall be measured from the outer edge of the cannabis
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
cannabis are the primary caregiver(s) for qualified patients or
that such persons(s) are collectively or cooperatively
cultivating cannabis. And further, all persons(s) cultivating
cannabis on the premises or participating directly or indirectly
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in the cultivation must be Butte County residents.
(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 cannabis or medical cannabis
products is prohibited in the unincorporated areas of the County
of Butte.
(f) Notwithstanding subsection (e), the mobile delivery of medical
cannabis or medical cannabis 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 and
enforcement of this chapter is generally complaint -driven.
Complaints are not required to enforce this chapter, however, as
directed by the Board of Supervisors.
34A-6. Residency requirements.
(a) Persons engaging in cultivation of medical cannabis shall meet
the following requirements:
(1)Such person shall have resided in Butte County for at least
one (1) year prior to cultivating medical cannabis in Butte
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County;
(2)As to the premises relating to the cultivation of medical
cannabis, such persons shall either:
(A) Own the premises; or
(B) Have entered into a written lease with the actual owner
of the premises.
(b) Persons who are members of a medical cannabis collective must
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(1)A Butte County resident; or
(2)An immediate family member or primary caregiver of a Butte
County resident. If a medical cannabis collective member is
directly involved in the cultivation of medical cannabis,
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 cannabis
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 cannabis takes
place shall either be hooked up to a municipalities' sewer
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system or have a Butte County inspected and permitted sewage
disposal system.
(c) Persons engaging in the cultivation and/or harvest of medical
cannabis 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 single
cultivation area in which the cannabis is cultivated shall be
set back from the boundaries of the premises as follows:
(1)If the premises is one-half (1-2) of an acre in size or less,
each detached structure shall be set back at least fifteen
(15) 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.
(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
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shall be measured from the outer edge of the cannabis 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 or 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 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)If the premises is equal to or greater than ten (10) acres
in 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
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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 cannabis is cultivated or if the
cannabis 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 cannabis, 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.
(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 cannabis plants are visible from
the public right-of-way or publicly traveled privately
maintained roads.
(5)In any location in the following zones:
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(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 cannabis 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 cannabis is cultivated indoors, from
the nearest exterior wall of the building in which the cannabis
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 distance in subsection (b)(2) shall be
measured from the fence required in Section 34A-10 to the
nearest exterior wall of the residential structure.
(d) No person owning, leasing, occupying, or having charge or
possession of any premises within the County shall cause, allow,
suffer, or permit such premises to be used for the outdoor or
indoor cultivation of cannabis plants in violation of this
chapter.
(e) Persons processing cannabis on the premises shall meet the
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following requirements:
(1)All processing of cannabis shall occur indoors;
(2)Persons may only process cannabis 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 cannabis.
34A-9 Permission of property owner.
If the person(s) cultivating and/or harvesting cannabis 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
and/or harvesting of cannabis on the parcel.
34A-10 Fencing.
All cannabis 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 cannabis from view, whichever
is higher, provided, however, that such fence shall not be required
for cannabis grown on premises of five (5) acres or more when such
cannabis 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 cannabis plant(s) grow higher
than the fence, either:
(1)The plants shall be cut so as to not extend higher than such
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fence; or
(2)The person growing cannabis plants shall install a fence
sufficient to conceal the cannabis 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 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 25845.
34A-13 Abatement procedures.
(a) Whenever a Code Enforcement Officer determines that a public
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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.
(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
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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 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,
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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
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
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I34A relating to Medical Cannabis Cultivation nuisance abatement
(hearings is enclosed to assist you in the preparation of your
1presentation.
jIf an initial showing sufficient to persuade the Hearing Officer
Ithat 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
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
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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: / /
BUTTE COUNTY DIRECTOR OF DEVELOPMENT SERVICES
By:
Enclosure: Butte County Code Chapter 34A
(c) All hearings conducted under this chapter shall be held before a
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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.
I(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.
I(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
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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 cannabis 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
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required by subsection (a), 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 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 and
set the matter for hearing and consideration regarding a
proposed lien to recover the Administrative Penalties and a
special assessment to recover the costs. The hearing shall
be held before a Hearing Officer as detailed in subsection
(c) above, and 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
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of the County's Abatement Costs, Administrative Costs, and
Administrative Penalties. At least fifteen (15) days prior
to said hearing, the Director of Development Services, or
his or her designee, shall give notice, with an affidavit
of service, of said hearing to all persons named in the
report and 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 amount of the proposed lien and special assessment. The
notice shall also contain a statement that the Hearing
Officer 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 Hearing Officer
shall hear and consider the proposed lien and special assessment
together with objections and protests thereto. At the conclusion
of the hearing, the Hearing Officer may make such modifications
and revisions to the proposed lien and special assessment as he
or she 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
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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.
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 may be recorded by the
Director of Development Services. In the event of such
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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 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
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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.
This chapter is cumulative to all other remedies now or
hereafter available to abate or otherwise regulate or prevent
public nuisances.
34A-16 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
Hearing is posted at the nearest accessible entry point to
the property, and shall continue to accrue at that rate for
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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 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
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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 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
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Compromise Agreement in a form approved by County Counsel.
134A-17 Summary abatement.
Notwithstanding any other provision of this chapter, when any
unlawful medical cannabis cultivation constitutes an immediate
threat to the public health or safety, and where the procedures set
forth in sections 34A-11 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
lenforcing 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 may nevertheless recover its costs
for abating that nuisance in the manner set forth in this chapter.
34A-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 Cannabis Cultivation, nor to abate any unlawful
cannabis cultivation, nor to take any other action with regard to
any unlawful cannabis cultivation, and neither the enforcing
officer nor the County shall be held liable for failure to issue an
order to abate any unlawful cannabis cultivation, nor for failure
to abate any unlawful cannabis cultivation, nor for failure to take
any other action with regard to any unlawful cannabis cultivation.
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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.
PASSED AND ADOPTED by the Board of Supervisors of the County of Butte,
State of California, on the 30th day of July, 2024, by the following
vote:
AYES: Supervisors Connelly, Durfee, Ritter, Teeter and
Chair Kimmelshue
NOES: None
ABSENT: None /� n
NOT VOTING: None / I/I
ATTEST:
Andy Pickett, Chief Administrative Officer
and Clerk of the Board
B ( . Lbu
Deputy
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