Proposed Nevada County cultivation ordinance

8/3/2019 Proposed Nevada County cultivation ordinance

1/18

NEVADA COUNTYSHERIFF'S OFFICE

KEITH ROYALSHERIFF/CORONER

PUBLIC ADMINISTRATOR

November 1,2011Honorable Board of SupervisorsEric Rood Administrative Center950 Maidu AvenueNevada City, CA 95959DATE OF MEETING: November 8, 2011SUBJECT: Discussion and Request for Direction Regarding Medical Marijuana CultivationOrdinanceRECOMMENDATION: Discuss and consider issuance of a Board Order directing CountyCounsel and other County departments to work with Sheriff's Office and other CountyDepartments to develop a medical marijuana cultivation ordinanceFUNDING: As part of the research required to prepare a proposed marijuana cultivationordinance, staff will develop information regarding the costs and funding sources associatedwith implementation and enforcement of the proposed ordinanceBACKGROUND: In 1996, voters approved Proposition 215 (codified as California Health andSafety Code Section 11362.5 and entitled "The Compassionate Use Act of 1996") and in 2004,the Legislature enacted SB 420 in 2004 (codified as California Health and Safety Code Section11362.7 et seq.) to clarify the scope of Proposition 215. The intent of these laws was to enablepersons who are in need of marijuana for medical purposes to use it without fear of criminalprosecution under limited, specified circumstances and to provide qualifying patients andprimary caregivers who collectively or cooperatively cultivate marijuana for medical purposeswith a limited defense to certain specified State criminal statutes. However, this legislation wasnot intended to supersede legislation that prohibits persons from engaging in conduct thatendangers others, to allow unlimited quantities of marijuana to be grown anywhere, or topreclude local agencies from adopting or enforcing local ordinances which are consistent withProposition 215 and SB 420. Moreover, local agencies are generally allowed the flexibility toregulate land uses and to address nuisance conditions to protect the health, safety and welfareof their constituents.On the other hand, the Federal Controlled Substances Act, 21 U.S.C. sections 801 ,et seq.,classifies marijuana as a Schedule I Drug, which is defined as a drug or other substance thathas a high potential for abuse, that has no currently accepted medical use in treatment in theUnited States, and that has not been accepted as safe for use under medical supervision.

ADMINISTRATION: 950 MAIDU AVENUE, NEVADA CITY, CA 95959 - (530) 265-1471ANIMAL CONTROL; 14647 MCCOURTNEY ROAD, GRASS VALLEY, CA 95949 (530) 2732179CORRECTIONS: P.O. BOX 928, NEVADA CITY, CA 95959-0928 - (530) 265-1291TRUCKEE: P.O. BOX 699, TRUCKEE, CA 96160 - (530) 582-7838KEITH. [email protected]

/I


2/18

Letter to the Board of SupervisorsNovember 2,2011Page 2Therefore it remains unlawful, under federal law, for any person to cultivate, manufacture,distribute or dispense, or possess with intent to manufacture, distribute or dispense, or possesswith intent to manufacture, distribute or dispense marijuana. The Federal ControlledSubstances Act contains no exemption for the cultivation, manufacture, distribution,dispensation, or possession of marijuana for medical purposes.Since the approval of Proposition 215 and the adoption of SB 420, Nevada County hasexperienced an exponential increase in marijuana cultivation, both individually and collectively,across all areas in the County. The County's unique geographic and climatic conditions, whichinclude dense forested areas receiving substantial precipitation, along with the sparsepopulation in many areas of the County, provide conditions that are favorable to marijuanacultivation. These marijuana grows range in size from a few plants to several hundred plants,and create increased risk of criminal activity, access to and recreational consumption by minors,degradation of the natural environment, strong pungent odors from maturing plants, excessivelight and noise, and other nuisances to surrounding property owners, and generally disrupt therural quality of life in Nevada County. The rapid expansion of these grows, both legal andillegal, and the lack of regulations to address the amount, location and manner in which thesegrows may be operated has resulted in numerous nuisance complaints from neighboringproperty owners. In addition, the large volume of marijuana gardens throughout the County hasplaced an enormous strain on the County's law enforcement and prosecutorial resources.To address the above issues, while respecting the continuing conflicts between state andfederal law, other local agencies have adopted local regulations designed to address andcontrol the negative impacts associated with marijuana cultivation. The most commonapproach in other rural counties, including Mendocino, Tehama, and Butte Counties has been toadopt regulations which require registration or permitting of marijuana gardens, limit the numberof plants that may be grown and/or the square footage of the growing area, establish fencingand setback requirements, establish minimum distance requirements from schools, parks andother youth-oriented uses, and other restrictions designed to reduce the various nuisanceactivities associated with marijuana gardens. These "bright line" rules have also been asignificant and valuable tool in law enforcement efforts to control illegal marijuana grows andreduce the number of unauthorized marijuana gardens.I am requesting that the Board consider adoption of medical marijuana cultivation regulations forNevada County and issue a Board Order directing County Counsel and other Countydepartments to work with my office to develop a proposed ordinance. To assist the Board in itsdiscussion of this issue and to demonstrate how these issues might be addressed, attached is asample marijuana cultivation ordinance based on examples from other rural communities.Respectfully submitted,

Keith Royal, SheriffSheriff/Coroner

2/


3/18

ORDINANCE No. -------OF THE BOARD OF SUPERVISORS OF THE COUNTY OF NEVADA

ANORDINANCE ADDING CHAPTER TO THENEVADA COUNTY GENERAL CODE PERTAINING TOMEDICAL MARIJUANA CULTIVATION

THE BOARD OF SUPERVISORS OF THE COUNTY OF NEVADA, STATE OFCALIFORNIA, ORDAINS AS FOLLOWS:SECTION I:

Chapter of the Nevada County General Code is hereby added to read asfollows:"Section. Authority and Title. Pursuant to the authority granted by Article XI,section 7 of the California Constitution, Health and Safety Code section 11362.83, andGovernment Code section 25845, the Board of Supervisors does enact this Chapter,which shall be known and may be cited as "Nevada County Cultivation Ordinance."Section Findings and Purpose(A) In 1996, the voters of the State of California approved Proposition 215 (codifiedas California Health and Safety Code Section 11362.5 and entitled 'TheCompassionate Use Act of 1996')(B) The intent of Proposition 215 was to enable persons who are in need ofmarijuana for medical purposes to use it without fear of criminal prosecutionunder limited, specified circumstances. Proposition 215 further provides that"nothing in this section shall be construed to supersede legislation prohibitingpersons from engaging in conduct that endangers others, or to condone thediversion of marijuana for non-medical purposes." The ballot argumentssupporting Proposition 215 expressly acknowledged that "Proposition 215 doesnot allow unlimited quantities of marijuana to be grown anywhere."(C) In 2004, the Legislature enacted S8 420 in 2004 (codified as California Healthand Safety Code Section 11362.7 et seq.) to clarify the scope of Proposition 215,and to provide qualifying patients and primary caregivers who collectively orcooperatively cultivate marijuana for medical purposes with a limited defense tocertain specified State criminal statutes.


4/18

(0)

(E)

(F)

(G)

(H)

California Health & Safety Code section 11362.83 expressly allows cities andcounties to adopt and enforce ordinances that are consistent with Senate Bill420.The Federal Controlled Substances Act, 21 U.S.C. sections 801, et seq.,classifies marijuana as a Schedule I Drug, which is defined as a drug or othersubstance that has a high potential for abuse, that has no currently acceptedmedical use in treatment in the United States, and that has not been accepted assafe for use under medical supervision. The Federal Controlled Substances Actmakes it unlawful, under federal law, for any person to cultivate, manufacture,distribute or dispense, or possess with intent to manufactere. distribute ordispense, or possess with intent to manufacture; distr-il;iute or dispensemarijuana. The Federal Controlled Substances Act.ceritalns no exemption forthe cultivation, manufacture, distribution, dispensation.or possession ofmarijuana for medical purposes.~/: .:"...'

/':'.",'."'~ 'f . " .. : . : ~ ' : . : ; : ' ,, ; ,The County's unique geographic and climatic .rconditions, w'hi.~hinclude denseforested areas receiving substantial preclpitation, along withtli$ vsparse. "population in many areas of the County,. provide conditions that~(.eJilvorable tomarijuana cultivation. Marijuana grow.ersG.a.nachieve a high per-plant yieldbecause of the County's favorable gFowing conditiohi:' The Federal DrugEnforcem ent Administratio n reports th at varlou types ~'6f,m~J.iNahapiants undervarious planting conditions may yield averaqesof 236 g'r~rr l$(about one-halfpound) to 846 grams (nearly two pounds) .;Based on law 'enforcement seizures,yields in Nevada County havetended to be at the higher end of this range. The"street value" of a single cannabis plant is substantial. Per pound prices fordomestically produced high-grad'E;!cannabis s 6 . 1 q .illegally within NorthernCalifornia can reacJ1...$.2,000o $5.0.00.'A'single'hj~rijuana plant cultivated withinthe County can thus Y i e . l " q $4,000Of.more:jh: ..saleable marijuana.Proposltion.z lf and Sen:ate Bi"II4.20pJ.imarii{address the criminal law, providingqualifying:~pi;lJi.~ntsnd primary caregiyers with limited immunity from statecrim j nal p r O i : \ . E 3 c U . t i Q f 1 under GItain identified statutes. Neithe r Propos ition 215nor Senate ~iJ.l420".8..qrthe Atfq.rney General's August 2.008 Guidelines for theS . e . . l : J r i t y and Non-Diversion of Marijuana Grown for Medical Use,adopted,:::ii 'fsti'a nt to Senate B1 1 1 4 2 . 0 ; - ,provides com prehensive clvi I regulation of premises~:;.:usedor marijuana .cultivatlori The unregulated cultivation of mar.ijuana in the'::PJljncorporated area of Nevada County can adversely affect the health, safety,ffiiq}~J~tl":I;).:E2jJJ9:.ofhe County and its residents. Comprehensive civil regulation ofpremise's'(is"e"CIJorriig.r:ljuana cultivation is proper and necessary to avoid therisks of crirninakactivity, degradation of the natural environment, malodoroussmells, and indqo.r electrical fire hazards that may result from unregulatedmarijuana G~.tti.v.~ition,nd that are especially significant if the amount ofmarijuana 6u(thlated on a single premises is not regulated and substantialamounts of marijuana are thereby allowed to be concentrated in one place.Cultivation of any amount of marijuana at locations or premises within 1,000 feetof schools, school bus stops, school evacuation sites, churches, parks, child carecenters, or youth-oriented facilities creates unique risks that the marijuana plantsmay be observed by juveniles, and therefore be.especially vulnerable to theft orrecreational consumption by juveniles. Further the potential for criminal activitiesassociated with marijuana cultivation in such locations poses heightened risksthat juveniles will be involved or endangered. Therefore, cultivation of any

2


5/18

(I)

(J)

(K)

(L)

amount of marijuana in such locations or premises is especially hazardous topublic safety and welfare, and to the protection of children and the person(s)cultivating the marijuana.As recognized by the Attorney General's August 2008 Guidelines for the Securityand Non-Diversion of Marijuana Grown for Medical Use, the cultivation or otherconcentration of marijuana in any location or premises without adequate securityincreases the risk that surrounding homes or businesses may be negativelyimpacted by nuisance activity such as loitering or crime.It is the purpose and intent of this Chapter to implement State law by providing ameans for regulating the cultivation of medical marijua-na in a manner that isconsistent with State law, which balances the needs 'qf medical patients and theircaregivers and which promotes the health. safety, and, general welfare of theresidents and businesses within the unincorporated territory of the County ofNevada. This Chapter is intended to be consistent with Proposition 215 andSenate 8il1420 and towards that end, is not intended to prohibit personsfromindividually, collectively, or cooperatively exercislnq any right otherwise grantedby State law. Rather, the intent an~:{:purpo.se of this Chapter is to establishreasonable regulations regarding'"t,9:e' manner jn which mariju~fla may becultivated, including restrictions on fhe amount of marijuana that may beindividually, collectively, or 9QJJ,p,erativeIY'9,ulthiated in any location or premises, inorder to protect the public h~'~'I(tl;,:$afety, and welfare in Nevada County .

' : : - ', I

The limited right of qualified p~ti~f1ts,.and their primary caregivers under State lawto cultivate marijl!~~,~jJ~}~nts for n):~dical.Pl,f.rposes:does not confer the right tocreate or maintain ;ap:Pbli9:Q!.ljsan0~" Byadoptinq the regulations contained inthis Chapter, the CoLihty.\Wjfr:~~hi~ve>~. signWicant reduction in theaforementioned harms oa.iJsed'8F;.th[,e.~tened by the unregulated cultivation ofmarijuani{I"Wth:~.'::PDincorp'6r:~ttF,d aretl':'o{ Nevada County .. . . - - , ' : i " : : : ~ :: : ' : . '~ :. , . . ' : " " ' : ~ ': ' : ' : ,Nqthing in thi$:~hapfEki~.b.?11 b~ ( .amstrued to allow the use of marijuana for non-:f:lledical purposes, or:J~JI.6W;:::.?r;tYctivity relating to the cultivation, distribution or'consumption ofrqqPij"ui:ma that/is otherwise illegal under State or Federal law, Noprovision of this C:b}ipter shall be deemed to be a defense or immunity to anyaction bFOl:l.9,ht-agciihst any person in Nevada County by the Nevada CountyDistrict AttorriEi":if:the~Attorney General of the State of California, or the UnitedStates of America;

..::::S..::::e..::::ct:::..:io::::..:n...:...__~:.:~D"-'=e=f'-'...in:.:..:it;:.::io=n.:..::s:..:..-.s used herein the following definitions shall apply:(a) "Child Care Center" means any licensed child care center, daycare center, orchildcare home, or any preschool.(b) "Church" means a structure or leased portion of a structure, which is usedprimarily for religious worship and related religious activities.(c) "Cultivation" means the planting, growing, harvesting, drying, processing orstorage of one or more marijuana plants or any part thereof in any location,indoor or outdoor, including from within a fully enclosed and secure building.

3


6/18

(d) "Enforcing Officer" means the Sheriff, or his authorized deputies or designees,who is authorized to enforce this Chapter.(e ) "Identification card" shall have the same definition as California Health and. Safety Code Section 11362.5 et seq., and as may be amended.(f ) "Indoors" means within a fully enclosed and secure structure that complies withthe California Building Code (CBC), as adopted by the County of Nevada, thathas a complete roof enclosure supported by connecting walls extending from theground to the roof, and a foundation, slab, or equivalentbase to which the floor issecurely attached. The structure must be secure ag:aiJ1i.stnauthorized entry,accessible only through one or more lockable door~:,;::~tldconstructed of solidmaterials that cannot easily be broken through, suchas 2" x 4" or thicker studsoverlain with 3/8" or thicker plywood or equivalent mat~rja.ls, .Plastic sheeting,regardless of gauge, or similar products do not satisfy thi~~\:Tequirement.(g) "Legal parcel" means any parcel of real property -,hat may be..~e.parate:l.ysold in

compliance with the Subdivision Map Act(Division 2 (commeriofn:g with Section66410) of Title 7 of the California Government Code), ' ... .' . _ ; ~ : ~ . , } _ J . - : v,(h) "Marijuana plant" means any matureor immature mariJ~ana.,pJa.r1t,or anymarijuana seedling, unless otherwise specifically provided'-lietein.

. .(i) "Outdoors" means any location that is not "indoors" within a fully enclosed andsecure structure as defined herein.0 ) "Premises" shall meana single, I~gal parcel of property .. Where contiguous legalparcels are undercoriimor, .owner~hip o " r ,q.o.ntrol,such contiguous legal parcelsshall be counted as a single "premises" for purposes of this Chapter.

. .. ..,(k) "Primary c~re.gjyer"shall have the meaningset forth in Proposition 215 andSenate BHlA20. :. .'(I) ",QuaJifiedpatient' shall have themeaninq set forth in Proposition 215 and,:senate Bill 420.: . ':.:

- - . . .(niYi'~S,heriff"or "Sheriff's Office" means the Sheriff's Office of the County of Nevadadi


7/18

Section

(p) "School Evacuation Site" means any location designated by formal action of thegoverning body, Superintendent, or principal of any school as a location to whichjuveniles are to be evacuated to, or are to assemble at, in the event of anyemergency or other incident at the school.(q) "Youth-oriented facility" means any facility that caters to or provides servicesprimarily intended for minors, or the individuals who regularly patronize,congregate or assemble at the establishment are predominantly minors.(r) "Zip-ties" means plastic ties with individualized numbers stamped on them,issued by the Nevada County Sheriff's Office for the purpose of identifying a legalmarijuana plant. ,.

Nuisance Declared.(A) The cultivation of more than the following number of marijuana plants, eitherindoors or outdoors, on any Premises is herb.ydeclared " t o be unlawful and apublic nuisance that may be abated in accordance with this Chapter.. '\:;\. -

(C)

.. .(1) If the Premises is located in a residential zone, no more than six (6) marijuanaplants, whether mature or immature, shall.be cultivated on t,MePremises,. . . . . . . . . .~ , ". . .." , ; ; " . - - _ " . ' : .:. ' . .(2) If the Premises islocated in..any other zone.mo more than 'twenty-five (25)marijuana plants, whether::rnature of'immature, shall be-cultivated on thePremI',S'e ' '5, "". ::."i :"'.:'. ':-:~.:,,~. - : - . : : : . , . .',.'

(8)

The foregoing limitations shall b , e ' , imposed regardless of the number of qualifiedpatients or primar:Y:.aregiversre'~J.9.ing'lthe premises or participating directly orindirectly in the cUlti.VaJ1Qm~,.,furthe:r;;,.~hese)imitations shall be imposednotwithstanding any;a"S~,ertiq:,n.,Jtrart@~erson'(s) cultivating the marijuana are theprimary careqiverts) fdr"lualffied:..p.?.H:.qtsr that such person(s) are collectivelyor coopeF~Ji,V.~~.u Itivatrng.::m~Jijuiiri~\;:)...,.. . " : - : : : : < " . ;. .. . . '~ . : : : . : : " : : : ' . . . . 2 : / ' : "The cultivatiq:8 ofij.i:9.r.Uua~a,';ih:;~:lI1ymo.u~t or quantity, either indoors oro~.t.goors,upq;@\.anyPr~.ff!J:~esOG~~~edI.thln ~me thousand (1 , o o q ) feet of any.school, sch.OdJ:.:.P,\.;IS~8f,':$:8.h5~.;Q1vacuation SIte, church, park, child c~re center,ror youth-onente~::t:fg;.GJl.ltyShe.~.ebydeclared to be unlawful and a public nuisancerh~tmay be abat$.~.Fiiiaccordance with this Chapter.(1'r. :$uch d'is_tarihe.;~hallbe measured In a straight line from the boundary ofthe Premises upon w.gich marijuana is cultivated to the boundary line of thePremises upon V/hichthe school, school bus stop, school evacuation site,church, park, G " Q . W ; 1 care center, or youth-oriented facility is located,

. -.v, ,.,\:_.......

(2) If th~tpre~jses is~. _. (_J acres or greater in size, then such distanceshall be measured in a straight line from the building in which the marijuana iscultivated, or, if the marijuana is cultivated in an outdoor area, from the fencerequired by subdivision __ , to the boundary line of the Premises upon whichthe school, school bus stop, school evacuation site, church, park, child carecenter, or youth-oriented facility is located.The cultivation of marijuana, in any 'amount or quantity, either indoors oroutdoors, upon any Premises located as follows is hereby declared to beunlawful and a public nuisance that may be abated in accordance with thisChapter.

5


8/18

(D)

(1) 0 utdoors with in oneh undred (100) feet of any occu pied legaI resid entia Istructure located on a separate legal parcel.(2) Outdoors in a mobile home park as defined in Health and Safety Code

Section 18214.1 within one hundred (100) feet of an occupied mobile homethat is under separate ownership.(3) In any location where the marijuana plants are visible from the public right ofway or publicly traveled private roads.(4) Outdoors within fifty (50) feet of a legal parcel under separate ownership.

'1

The distance between the above-listed uses in Sectio_f.1._~. and marijuana thatis being cultivated shall be measured in a straight linefrom thenearest point ofthe fence required in Section or ifthe marijuana iscultivated indoors,from the nearest exterior wall of the building in which the lri~rijuanais cultivatedto the nearest boundary line of the property o~."Y,hichthe faCility" buil.dir)g:"orstructure, or portion of the facility, buildinq, or structure in which::~h.e:apove-listeduse occurs is located. The distance in Sections ~. and ""~:.:' to anyresidential structure shall be measured from the fenc$:Jequiregjn Sectionto the nearest exterior wall of the r,esidentralstructu.re.____ . ~_~ : -,_ ,'_., '_ ;_ _ ,_,.~ .u :.-; .The cultivation of marijuana, in-any arnountor.quantity, e'it6'e"rndoors oroutdoors, upon any Premises' is he.reby declared to be unlawful and a publicnuisancethat may be abated ( 8 accordance with this Chapter, unless all of thefoHowing conditions are satisfied: . .(1 ) The pe rso n C s ) own i.ng, leasing oCCtJpyin 9 "or-having cha rge or possess lonof any Premises have. registered tnePremises with the Nevada County Sheriff'sOffice, and provided all ot the following current information and documentation tothe Sheriff's Office: .'..... ...

' - : ; ' - " - ' ..~: . . . . .. _, ,(a) l:~~:locaJion of the Premtses where the cultivation of medicalmarijuana w ill.o ccur .. . .. _- . < ~ : : : ~ .- . : . - . . . .,:..\/ (b) The name ofeaohperson owning, leasing, occupying or having charge

i ~ : : ? t possession of~~h~.Premises: x ' : . . : . . . . ( C ) , , : The.nameof each qualified patient or primary caregiver whoparticipates'in the cultivation, either directly or by providing reimbursement formarijuana or the' services provided in conjunction with the provision of thatmarijuana;

(d) A.copY-of the current valid medical recommendation or State-issuedmedical marijuana card for each qualified patient identified as required above,and for each qualified patient for whom any person identified as required aboveis the primary caregiver;

(e) The number of marijuana plants cultivated on the premises; and,(f) Signed statements from the owner(s) of the Premises and each personleasing, occupying or having charqe or possession of the Premisesacknowledging that registration does not confer upon such persons immunityfrom prosecution under Federal or State law.

6(


9/18

(g) If the person(s) cultivating marijuana on any legal parcel islare not thelegal owner(s) of the parcel, the person(s) who is cultivating marijuana on suchparcel shall (a) give written notice to the legal owner of the parcel prior tocommencing cultivation of marijuana on such parcel and (b) shall submit anotarized letter from the legal owner(s) consenting to the cultivation of marijuanaon the parcel. The Sheriff may prescribe forms for such letters.

(h) Signed statements from the owner(s) of the Premises and each personleasing occupying or having charge or possession of the Premises authorizingthe Sheriff, Fire District, and/or other appropriate County employees or agents ortheir designees, including building and fire inspectors, to enter the property onlyduring normal business hours for the purpose of examining the location toconfirm compliance with this Chapter. .(i) Such other information and documentation as.the Sheriff's Officedetermines is necessary to ensure compliance with State. law and this Chapter.

This information and documentation shall be received in confidence, and shall beused or disclosed only for the purposes of administration or enforcement of thisChapter or State law, or as otherwis~ requtrec by .Ia~, ..The Board of Supervisors may, by..'Resolution; establish, a fee for suchregistration in accordance wit~ all applicable leQal requirements.(2) The indoor or outdoor.cultlvetloh.o! rnarfjuana shall not subject residentsof neighboring parcels who ar:e,,ofl1o.rmalsensitivity to objectionable odors,(3) The use of light assistance fg~.J~.~utdoor cultivation of marijuana shallnot exceed a ma~i.I;t;Iu.r:nf six hunqredC6QO) watts of lighting capacity per onehundred (100) squ:ffr:$",f~t


10/18

(8) Each building or outdoor area in which the marijuana is cultivated shall be setback from the boundaries of the premises as follows:(a) If the Premises is twenty (20) acres in size or less, each cultivationbuilding or area shall be set back at least 100 feet from all boundaries

of the Premises.(b) If the Premises is greater than twenty (20) acres in size, eachcultivation building or area shall be set back at least 300 feet from allboundaries of the Premises.(c) Such setback distance shall be measured in"1straight line from thebuilding in which the marijuana is cultiva!~f!" or, if the marijuana iscultivated in an outdoor area, from the fence required by subdivision_, to the boundary line of the Premises,

(9) No person owning, leasing, occupying or having charqe.or possession of anyPremises within the County shall cause, allow.suffer or permH;such Premises tobe used for the outdoor or indoor cultivation of marijuana plants in yl.!,i::itionof thisChapter. --' - -;-;:::: . : c_ : 'Nothing herein shall limit the ability of Fire District ~/O.ther app'(9P';;~'teCountyemployees or agents from entering the property to cond4f.!ctfie:'inspectionsauthorized by or necessary.to ensure compliance with thls.Ohapter or the abilityof the Sheriff to make initial inspections or independent compliance checks. TheSheriff is authorized to determine the number and timing of inspections that maybe required. -, ,

Section "Zip-Tie" P.rovision(A ) For the conven ience ofthe property Owner .and to assist in the enforcement ofthis Ordinance, and to avoid urmeeessary confiscation and destruction of

medicinal;:tnarijuana plant's, rnarijuanaqrown for medicinal purposes inunincorpofajed.Nevada County. may have "zip-ties" issued by the Nevada CountySheriff's DepartmentsFor properidentification, such "zip-ties" should be securelyattached to the-base q,fj_ndividua!.-flowering marijuana plants .. .( : ; ~ : : : : : ; : } ~ ;, : . ; : ' : " ' '" , . ; . :5f':z'ip-Ties" can be obtained through the Nevada County Sheriff's Department. All


11/18

having charge or possession of the registered premises that such a use is beingproposed within (1,000) feet of the premises.Section Notice to Abate Unlawful Marijuana Cultivation. Whenever theEnforcing Officer determines that a public nuisance as described in this Chapter existson any premises within the unincorporated area of Nevada County, he or she isauthorized to notify the owner(s) and/or occupant(s) of the property, through issuance ofa "Notice to Abate Unlawful Marijuana Cultivation."Section Contents of NoticeThe Notice set forth in section __ shall be in writing and shall:

(A) Identify the owner(s) of the property upon which the-nuisance exists, as named inthe records of the County Assessor, and identify the oecapantrs), if other than theowner(s), and if known or reasonably identifiable.(8) Describe the location of such property by its commonly used street address,giving the name or number of the str~E?t'Toad or highway and the number, if any,of the property. ." .:'~: . : ' : . ' \ . ~ ,(C) Identify such property by reference'tothe Assessor's Parcel Number.

:':'.,. i(D) Contain a statement that unl.9:\:YfY.I.mariJ~allq"6ultivationexists on the premisesand that it has been determined I:w;J,QeEhfor;cing Officer to be a public nuisancedescribed in this Chapter. ' ~ ' . A \ " " ' ; ~ f ? . ,: .. . ' , ' , '-~-.(E) Describe the unlaWiu.l.[;J1wijUana':~.ltivatiof:1hat exists and the actions required to

abate it '::'''::'.::::;::;:.:~:~~:/:';/;': : ' \ : . ; : > , ' . : , , ' ; , ,(F) Contain a;.~tat~m~nt th~(.~bl~~~'~ef.::'8lpccupant is required to abate the unlawfulmarijuana clJltl\(.a~lonwlthH1~J9urteen'{1;4~calendar days after the date that saidNotice was ~erv~~fh';;" ";; '::,.~.:."(G)OQntain a stat~m~'~\:"fh~f::::tM..~~ : g ' ~ rr occupant may, within ten (10) calendardays after the date that-said Notice was served, make a request in writing to the.:Clerk of the Board".ol Supervisors for a hearing to appeal the determination of theenforcmq pmcer tf.!a.tthe conditions existing constitute a public nuisance, or toshdWotne"tcal;Jse W hy those conditions should not be abated in accordance withthe provisjons"qfl:t.his:.~Ghapter.(H) Contain a stat~~~nt that, unless the owner or occupant abates the unlawfulmarijuana cl:IltJya-tion,or requests a hearing before the Board of Supervisors,within the time prescribed in the Notice, the Enforcing Officer will abate thenuisance. It shall also state that the abatement costs, including administrativecosts, may be made a special assessment added to the County assessment rolland become a lien on the real property, or be placed on the unsecured tax roll.

Section Service of Notice to AbateThe Notice set forth in Section shall be served in the following manner:

(A) By delivering it personally to the owner and to the occupant, or by mailing it byregular United States mail, together with a certificate of mailing, to the occupant9


12/18

of the property at the address thereof, and to any non-occupying owner at his orher address as it appears on the last equalized assessment roll, except that:(a) If the records of the County Assessor show that the ownership haschanged since the last equalized assessment roll was completed, the

Notice shall also be mailed to the new owner at his or her address as itappears in said records, or(b) In the event that, after reasonable effort, the Enforcing Officer is unableto serve the Notice as set forth above, service shall be accomplishedby posting a copy of the Notice on the real property upon which thenuisance exists as follows: Copies of the Notlce shall be posted alongthe frontage of the subject property. and atsuch other locations on theproperty reasonably likely to provide notice; to the owner and anyperson known by the Enforcing Officer to bein po~s_~~sionof theproperty. In no event shall fewer than two (2)9.oples of the Notice beposted on a property pursuant to this section, -", ....

, , .".',

(B) The date of service is deemed to be the date of deposit in tt~~:';nail, personaldelivery, or posting, as applicable. " ,"_.:",Section Administrative Review. '.","-,. . . . .,.,'\ ..

(A) The Board of Supervisors delegates the responsibltity to -G:6h:ducta lien hearingin conformance with this Chapter to a Hearing Officer,(B) Any person upon whom a Notice, to Abate Unlawful Marijuana Cultivation hasbeen served may appeal the determination.of the Eriforcing Officer that theconditions set forth in the Notice constitute apublic nuisance to the Hearing Officer,or may show cause before the H~aring Officer why those conditions should not beabated in accordance with the, provisions. of this Chapter, Any such administrativereview shal(b~:-oQmm~ncedbYfiling a written request for a hearing with theSheriff's Office',Within ten ,( 1 0) calendar days after the date that said Notice wasserved.The written request shall intrude a statement of all facts supporting theapp:eaL The time Fequ_i.reni'enter filing such a written request shall be deemedjl}rX~ictional and may'~,notbe waived. In the absence of a timely filed written requestthat;.:9qmplj~~JuJ'ywith the requirements of this Section, the findings of theEnfo'h::lM'g'Offiter contained in the Notice shall become final and conclusive on theeleventh day followiog service of the Notice.. ~-.(C) Upon tjm~ly..re.ceipt of a written request for hearing which complies with therequirements of this Section, the Sheriff's Office shall set a hearing date not lessthan seven (7) days nor more than thirty (30) days from the date the request wasfiled. The Sheriff's Office shall send written notice of the hearing date to therequesting party, to any other parties upon whom the Notice was served, and tothe Enforcing Officer.(D) Any hearing conducted pursuant to this Chapter need not be conductedaccording to technical rules relating to evidence, witnesses and hearsay. Anyrelevant evidence shall be admitted if it is the sort of evidence on which

10


13/18

responsible persons are accustomed to rely in the conduct of serious affairsregardless of the existence of any common law or statutory rule which might makeimproper the admission of the evidence over objection in civil actions. TheHearing Officer has discretion to exclude evidence if its probative value issubstantially outweighed by the probability that its admission will necessitateundue consumption of time.(E) The Hearing Officer may continue the administrative hearing from time to time.(F) The Hearing Officer shall consider the matter de novo.rand may affirm, reverse.or modify the determinations contained in the Notice to Abate Unlawful MarijuanaCultivation. The Hearing Officer shall issue a written decision in the form of aresolution, which shall include findings relating to the existence o r nonexistence ofthe alleged unlawful marijuana cultivation, as well as findinqsconcerninp thepropriety and means of abatement of the conditions set forth in the Notice. Suchdecision shall be mailed to, or personallyserved upon, the party requesting thehearing, any other parties upon whomJh'e Notice was' served. and theenforclnqofficer. ,,:;'(G ) The decision of the Hearing :Officer sh?JJ be final and conclusive .

. . . . . ' : ; . '. ' : " : - ~ " : : : . : : : : '" '. '._ .. _ ' : . :Section Liability for Costs.

. ' : : . .~~ :. ~(A) In any enforcement a.ptio.n.p!ought ti1J(sual7l~o this Chapter, whether by'administrative proceedings;;judjOiSiI,.procee.ding$,.:0~summary abatement, each personwho causes, permits. suffers.io] maiqt~insJ~e unlaWful marijuana cultivation to existshall be liable foralt.costs incuf.f:.~~,by"the}.GQq!1ty,ncluding. but not limited to,administrative c6st~;'::a,.q9\.anyncf\?.!J~~ostsi}lctmedo undertake, or to cause orcompel any resporis:!ble,p~.rty.to und~rla.ke, any abatement action in compliance withthe requirements onhi~ Ctlapt~.r",\.'Vhefi1?rhose costs are incurred prior to, during, orfollow_ihff enactment oftj1iq.;'9:b~#)t~tt:. ,.. . -, ~ ~ :); ;% ~ ::.::.:.,:., " ,_ t

(8) In atw:actjqn.J~iy;theEpf9rcing Officer to abate unlawful marijuana cultivation underthis Chapter, whet~$(:~.yaOty!inistrative proceedings, judicial proceedings, or summaryabatement. the prevailtri'g party shall be entitled to a recovery of the reasonableattorney's fees incurred-Recovery of attorneys' fees under this subdivision shall belimited to those acti.9n.,s'orproceedings in which the County elects, at the initiation ofthat action or proceeding, to seek recovery of its own attorney's fees. In no action,administrative proceeding, or special proceeding shall an award of attorneys' fees to aprevailing party exceed the amount of reasonable attorneys' fees incurred by theCounty in the action or proceeding.Section Abatement by Owner or Occupant. Any owner or occupant may abatethe unlawful marijuana cultivation or cause it to be abated at any time prior tocommencement of abatement by. or at the direction of, the Enforcing Officer.

11


14/18

Section Enforcement.(A) Whenever the Enforcing Officer becomes aware that an owner or occupanthas failed to abate any unlawful marijuana cultivation within fourteen (14) days of thedate of service of the Notice to Unlawful Marijuana Cultivation, unless timely appealed,or of the date of the decision of the Hearing Officer requiring such abatement, theEnforcing Officer may take one or more of the following actions:

(1) Enter upon the property and abate the nuisance by County personnel, or byprivate contractor under the direction of the Enforcing Qfficer. The EnforcingOfficer may apply to a court of competent jurisdicti9.ri:J0r a warrant authorizingentry upon the property for purposes of undertaking th.e.work.jf.necessary. Ifany part of the work is to be accomplished by private cOhJracf, that contract shallbe submitted to and approved by the Board of Supervisors prior tocommencement of work. Nothing herein shallbe construedto.requlre that anyprivate contract under this Code be awarded thrdlJgh competitive. biddlhgprocedures where such procedures are not required by the gener:allaws of theState of California; and/or .. .:, .. . ..'. '., .. .

'::(2) Request that the CountyCounsel commencea civil action to redress,enjoin, and abate the public nuisance.(3) Issue administrative citations in accordance .:X".ithSection L-II 5.23, et seq.of the Nevada County Land Use and Development Code.

Section Accounting. The Enforcing Officer shall keep an account of the costof every abatement carried out-and shal] render a report in writing, itemized byparcel, to the H~:~d~g.Officer showing the cost of abatement and the administrative. : ! \ . , . , costs for each parcel. :. '.., ~?Sectioh'\, _ Notice of Hearing onAccounting; Waiver by Payment. Upon receiptof th~::[~ccount of the Enfoicing Officer, the Sheriff's Office shall deposit a copy of theaccohQ(~p~.~aining,to the property of each owner in the mail addressed to the ownerand induq~/:~herewith a notice informing the owner that, at a date and time not lessthan five (5) business days after the date of mailing of the notice, the Hearing Officerwill meet to review the account and that the owner may appear at said time and beheard. The ownermay-walve the hearing on the accounting by paying the cost ofabatement and the::Costof administration to the enforcing officer prior to the time set

for the hearing by the Hearing Officer. Unless otherwise expressly stated by theowner, payment of the cost of abatement and the cost of administration prior to saidhearing shall be deemed a waiver of the right thereto and an admission that saidaccounting is accurate and reasonable.Section Hearing on Accounting.

(A) At the time fixed, the Hearing Officer shall meet to review the report of12


15/18

the Enforcing Officer. An owner may appear at said time and be heardon the questions whether the accounting, so far as it pertains to the costof abating a nuisance upon the land of the owner is accurate and theamounts reported reasonable. The cost of administration shall also bereviewed.

(B) The report of the Enforcing Officer shall be admitted into evidence. Theowner shall bear the burden of proving that the accounting is notaccurate and reasonable.(C) The Hearing Officer shall also determine whether or not the owner(s)had actual knowledge of the unlawful marijuana cultivation, or couldhave acquired such knowledge through the exercise of reasonablediligence. If it is determined at the hearing that theowner(s) did nothave actual knowledge of the unlawtul marijuana cultivation, and couldnot have acquired such knowledge through the exercise of reasonablediligence, costs for the abatement-shall not be assessed against suchparcel or otherwise attempted t o be .~o.!lectedfrom 'the owner(s) of suchparcel.'- :.:./. . .:.. . : ; ~

Section Modifications. The_:.-~.e.aring6ffj.G"~r:..i."h"allake such modifications inthe accounting as it deems necess~r:.y??nqthereaf.t_ershall confirm the report byresolution.' .. ' . . :'. ' ..~"'. .~

Section Speciaf'Assessment a~d\Lieri"Th.e Board of Supervisors may orderthat the cost of abating nuj$,9Q:ce$.~.pqrsua:~.~o thls.Chapter and the administrativecosts as conflrmed by the Bd~'rgbe;;:pl~.c~:C:L~ponile County tax roll by the CountyAuditor as sped,(;a.?~ssment~l~Jpinstth;e~::t~spectiveparcels of land, or placed onthe unsecured ro"]l.;p'lTf:S.t;J.aJlto se-cii.o.n2584'tf"of the Government Code; provided,however, that the cost ol:ab:.~tmen'f::~h.ghe cost of administration as finally .dete~M"ireQ shall n6t"p.~ P~~9~lf):q~'. l refi ixoll if paid in full prior to entry of said costson thetax roll. The Bq.@rqJ5f'SupeNi"sorsmay also cause notices of abatement lien tobe recorded against th~':i~spective parcels of real property pursuant to section 25845of the Government Code.:::'

'.. ,. '- /; . . . . , . : ' : ' ; . : ~ . \Section ' Summary Abatement.Notwithstanding any. 9.1h~rprovision of this Chapter, when any unlawful marijuanacultivation constitutes-an immediate threat to the public health or safety, and where theprocedures set forth in Sections would not result in abatement of thatnuisance within a short enough time period to avoid that threat, the Enforcing Officermay direct any officer or employee of the County to summarily abate the nuisance. TheEnforcing Officer shall make reasonable efforts to notify the persons identified inSection but the formal notice and hearing procedures set forth in this Chaptershall not apply. No summary abatement shall occur prior to consultation with the Officeof County Counsel. The County may nevertheless recover its costs for abating thatnuisance in the manner set forth in Sections and --

13


16/18

Section No Duty to Enforce.Nothing in this Chapter shall be construed as imposing on the enforcing officer or theCounty of Nevada 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 regardto any unlawful marijuana cultivation, and neither the enforcing officer nor the Countyshall be held liable for failure to issue an order to abate any unlawful marijuanacultivation, nor for failure to abate any unlawful marijuana cultivation, nor for failure totake any other action with regard to any unlawful marijuana cultivation."SECTION II:

Compliance with CEQA. The County finds that this Chapter is not subject to theCalifornia Environmental Quality Act (CEQA) pursuant to Secfiqns1S'Q60(c)(2) (the

, '_ ,

activity will not result in a direct or reasonably foreseeable tndirectphysical change in. .. : : ; ' . . . . . . . '" " " : : - "the environment) and 15061 (b)(3) (there is.no posslbllity the activity in q~~stion may

have a significant effect on the environment). In addition to tb~ fc:>r~g..ojngeneralexemptions, the following categorical exemptions ap.p'ly: Sections'-15308 (actions takenas authorized by local ordinance to assureprotection 9t:~he environment) and 15321(action by agency for enforcement of a la~, qenera] rule, standard or objective. . , ._ . , . . . administered or ..?~opted by the-aqency, Jn91uding by direct referral to the County

' ~ ~ ~~~ ~ . ' ' - , , 0 : "

Counsel as approp(Ja-tefqr judicial enforcement)."; _ ., . . ,

' , " - r . : ~ " : " ': ': ': :: < : :' ;: 'SECTlbN III:';,.;" . ' ...-S~vera.bility..,;:Ifany provision of this Chapter or the application thereof to any

:--.;._;(:_'.:. ": ,..I ,

person or circumstance is held invalid, the remainder of this Chapter, including theapplication of sucb,pli'rty or provision to other circumstances shall not be affectedthereby and shall continue in full force and effect. To this end, provisions of thisChapter are severable. The Board of Supervisors hereby declares that it would havepassed each section, subsection, subdivision, paragraph, sentence, clause, or phrasehereof irrespective of the fact that anyone (1) or more sections, subsections,

14


17/18

subdivisions, paragraphs, sentences, clauses or phrases be held unconstitutional,invalid or unenforceable .

.. '

15


18/18

SECTION IV:This Ordinance shall take effect and be in force at the expiration of thirty (30)

days from and after its passage, and it shall become operative on the day of___________ ~, 20_, and. before the expiration of fifteen (15) daysafter its passage it shall be published once, with the names of the Supervisors voting forand against same in the , a newspaper of general circulation printedand published il l the County of Nevada.PASSED AND ADOPTED by the Board of Supervisors of the County fl\tevadaat a regularmeeting of said Board, held on the day of __ ---- __ -.---,.y the followingvote of said Board: Ayes: Supervisors ... ;.' ,

ATTEST: Absent:Donna R. LandiJ ntcrim Clerk of the Board of Supervisors

.Abstain:

By: _Chair

. DATE" - C OP IE S SE NT T O

16

Documents

Proposed Nevada County cultivation ordinance