OF THE BOARD OF SUPERVISORS OF THE COUNTY OF NEVADA
AN ORDINANCE ADDING ARTICLE 5 TO CHAPTER IV OF THE NEVADA COUNTY GENERAL CODE REGARDING MEDICAL MARIJUANA CULTIVATION
THE BOARD OF SUPERVISORS OF THE COUNTY OF NEVADA, STATE OF CALIFORNIA, ORDAINS AS FOLLOWS
Article 5 of Chapter IV of the Nevada County General Code is hereby added to read as shown in Exhibit A attached hereto and incorporated herein by this reference.
The County finds that this Article is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15061(b)(3) (there is no possibility the activity in question may have a significant effect on the environment). In addition to the foregoing general exemptions, the following categorical exemptions apply: Sections 15308 (actions taken as authorized by local ordinance to assure protection of the environment) and 15321 (action by agency for enforcement of a law, general rule, standard or objective administered or adopted by the agency, including by direct referral to the County Counsel as appropriate for judicial enforcement).
Severability. If any provision of this Article or the application thereof to any person or circumstance is held invalid, the remainder of this Article, including the application of such part or provision to other circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Article are severable. The Board of Supervisors hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one (1) or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be held unconstitutional, invalid or unenforceable.
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) days after its passage it shall be published once, with the names of the Supervisors voting for and against same in the _______________, a newspaper of general circulation printed and published in the County of Nevada.
PASSED AND ADOPTED by the Board of Supervisors of the County of Nevada at a regular meeting of said Board, held on the day of _____________, _____, by the following vote of said Board:
MEDICAL MARIJUANA CULTIVATION
Section G-IV 5.1 Authority and Title.
Pursuant to the authority granted by Article XI, section 7 of the California Constitution, Health and Safety Code section 11362.83, and Government Code section 25845, the Board of Supervisors does enact this Article.
Section G-IV 5.2 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) Proposition 215 was intended to enable persons who are in need of marijuana for medical purposes to use it without fear of criminal prosecution under limited, specified circumstances. Proposition 215 further provides that “nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes.” The ballot arguments supporting Proposition 215 expressly acknowledged that “Proposition 215 does not allow unlimited quantities of marijuana to be grown anywhere.”
(C) In 2004, the Legislature enacted SB 420 (codified as California Health and Safety Code Section 11362.7 et seq.) to clarify the scope of Proposition 215, and to provide qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes with a limited defense to certain specified State criminal statutes.
(D) California Health & 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. sections 801, et seq., classifies marijuana as a Schedule I Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense marijuana. The Federal Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution, dispensation, or possession of marijuana for medical purposes.
(F) The County’s unique 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 marijuana cultivation. Marijuana growers can achieve a high per-plant yield because of the County’s favorable growing conditions. The Federal Drug Enforcement Administration reports that various types of marijuana plants under various planting conditions may yield averages of 236 grams (about one-half
pound) to 846 grams (nearly two pounds). Based on law enforcement seizures, yields in Nevada County have tended to be at the higher end of this range. The “street value” of a single cannabis plant is substantial. As of 2012, per pound prices for domestically produced high-grade cannabis sold illegally within Northern California can reach $2,000 to $5000. A single marijuana plant cultivated within the County can thus yield $4,000 or more in saleable marijuana.
(G) Proposition 215 and Senate Bill 420 primarily address the criminal law, providing qualifying patients and primary caregivers with limited immunity from state criminal prosecution under certain identified statutes. Neither Proposition 215 nor Senate Bill 420, nor the Attorney General’s August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use adopted pursuant to Senate Bill 420, provides comprehensive civil regulation of premises used for marijuana cultivation. The unregulated cultivation of marijuana in the unincorporated area of Nevada County can adversely affect the health, safety, and well-being of the County and its residents. Comprehensive civil regulation of premises used for marijuana cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated marijuana cultivation. These risks are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place.
(H) Cultivation of any amount of marijuana at locations or premises within 61000 feet of schools, school bus stops, school evacuation sites, churches, parks, child care centers, or youth-oriented facilities creates unique risks that the marijuana plants may be observed by juveniles, and therefore be especially vulnerable to theft or recreational consumption by juveniles. Further, the potential for criminal activities associated with marijuana cultivation in such locations poses heightened risks that juveniles will be involved or endangered. Therefore, cultivation of any amount of marijuana in such locations or premises is especially hazardous to public safety and welfare, and to the protection of children and the person(s) cultivating the marijuana.
(I) As recognized by the Attorney General’s August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, the cultivation or other concentration of marijuana in 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. In addition, the Indoor Cultivation of Marijuana without compliance with basic building code requirements creates increased risks of electrical fire, mold, mildew, plumbing issues and other damage to persons and property.
(J) It is the purpose and intent of this Article to implement State law by regulating the cultivation of medical marijuana in a manner consistent with State law. It is also the intent of this Article to balance the needs of medical patients and their caregivers and which promotes the health, safety, and general welfare of the residents and businesses within the unincorporated territory of the County of Nevada. This Article is intended to be consistent with Proposition 215 and Senate Bill 420 and towards that end, it 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 Article is to establish
reasonable regulations regarding the manner in which marijuana may be cultivated, including restrictions on the amount of marijuana that may be individually, collectively, or cooperatively cultivated in any location or premises, in order to protect the public health, safety, and welfare in Nevada County.
(K) The limited right of qualified patients and their primary caregivers under State law to cultivate marijuana plants for medical purposes does not confer the right to create or maintain a public nuisance. By adopting the regulations contained in this Article, the County will achieve a significant reduction in the aforementioned harms caused or threatened by the unregulated cultivation of marijuana in the unincorporated area of Nevada County.
(L) Nothing in this Article shall be construed to allow the use of marijuana for non-medical purposes, or allow any activity relating to the cultivation, distribution or consumption of marijuana that is otherwise illegal under State or Federal law. No provision of this Article shall be deemed to be a defense or immunity to any action brought against any person in Nevada County by the Nevada County District Attorney, the Attorney General of the State of California, or the United States of America.
(M) According to the Nevada County Sheriff, the amount of Marijuana cultivated in Nevada County increases significantly with each growing season and is increasingly occurring in residential areas, in close proximity to residences, and on vacant, unsupervised and unsecured properties. In 2011, Nevada County has experienced a dramatic increase in citizen complaints regarding the odor, threats to public safety and other nuisances that unregulated Cultivation sites can create.
(N) Cultivation sites have been the subject of serious criminal activity and associated violence including armed robberies, assault, battery, home invasion robberies and burglaries. An increasing number of sites are very visible to, and easily accessible by, the public, including children and youth. To protect the Marijuana, some of these Cultivation sites use aggressive and vicious dogs, booby-trap devices and persons with weapons that threaten severe bodily harm or death to those who attempt to access the site. Left unregulated, Cultivation sites also result in loitering, increased traffic, noise, environmental health issues, unreasonable odors and other public nuisances that are harmful to the public health, safety and welfare of the surrounding community and its residents.
(O) In Nevada County, the typical growing season for Marijuana is approximately April through September of each year. Surrounding counties have adopted restrictions and, in some cases, bans on the Cultivation of Marijuana in their jurisdications. If left unregulated for another growing season, it is likely that Nevada County will encounter increasing numbers of Marijuana Cultivation sites of increasing sizes, in locations which conflict with the provisions of this Ordinance and operated in manners which creates public nuisance to the surrounding community and its residents. Due to the start of the current Marijuana grow season there is an immediate need to provide certainty and guidance to those who might choose to Cultivate Marijuana in Nevada County
and preserve the public peace, health and safety of Nevada County residents by regulating and addressing the public nuisances associated with Medical Marijuana Cultivation. In addition, if Medical Marijuana cultivation is not immediately regulated, large quantities of illegal Marijuana cultivation sites will be introduced into the local market in the near term.
Section G-IV 5.3 Definitions. As used herein the following definitions shall apply:
(A) “Child Care Center” means any licensed child care center, daycare center, or childcare home, or any preschool.
(B) “Church” means a structure or leased portion of a structure, which is used primarily for religious worship and related religious activities.
(C) “Cultivation” or “Cultivate” means the planting, growing, harvesting, drying, processing or storage 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.
(D) “Enforcing Officer” means the Sheriff, or his authorized deputies or designees, who is authorized to enforce this Article.
(E) “Fence” is defined in Section L-II 4.2.6 of the Nevada County Land Use and Development Code and Section G-IV 5.4(I)(1) of this Article, and is further defined as a wall or barrier connected by boards, masonry, rails, panels or any other materials approved by the Planning Director for the purpose of enclosing space or separating parcels of land. For purposes of this Article, the term “Fence” does not include walls, tarpaulins, scrap material, bushes or hedgerows.
(F) “Hazardous Materials” means any substance that is “flammable, reactive, corrosive or toxic”, as further defined in California Health and Safety Code Sections 25501 and 25503.5, as may be amended.
(E)(G) “Hearing Officer” means a person designated by the Board of Supervisors to conduct administrative lien hearings as provided in Section G-IV 5.9 of this Article.
(F)(H) “Identification card” shall have the same definition as California Health and Safety Code Section 11362.5 et seq., and as may be amended.
(G)(I) “Indoor” or “Indoors” means within a fully enclosed and secure structure that complies with the California Building Code (CBC), as adopted by the County of Nevada, that has a complete roof enclosure supported by connecting walls extending from the ground to the roof, and a foundation, slab, or equivalent base to which the floor is securely attached. The structure must be secure against unauthorized entry, accessible only through one or more lockable doors, and constructed of solid materials that cannot easily be broken through, such as 2” x 4” or thicker studs overlain with 3/8” or thicker plywood or equivalent materials. . requirement.
(H)(J) “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 California Government Code).
(I)(K) “Marijuana” shall have the same meaning as that set forth in Health and Safety Code section 11018, as may be amended. Marijuana, Medical Marijuana, and the Cultivation thereof, as defined in this Article shall not be considered an agricultural activity, operation or facility under Civil Code section 3482.5 or an Agricultural Product as defined in Section L-II 3.3 of the Nevada County Land Use and Development Code, or an Agricultural Operation as defined in Sections L-II 3.3, L-II 6.1 and L-XIV 1.1 of the Nevada County Land Use and Development Code.
(J)(L) “Medical Marijuana” shall mean Marijuana recommended by a licensed physician, in accordance with California Health and Safety Code sections 11362.5 through 11362.83, commonly referred to as the Compassionate Use Act and the Medical Marijuana Program Act.
(K)(M) “Medical Marijuana Collective” means Qualified Patients and/or designated Primary Caregivers of Qualified Patients, who associate, or form a cooperative in accordance with Section 12300 of the Corporations Code, within the unincorporated area of the County in order to collectively or cooperatively cultivate Marijuana for medical purposes, as provided in Health and Safety Code Section 11362.775, as may be amended. The term collective shall include “cooperative” unless the context clearly indicates otherwise.
(N) “Outdoor” or “Outdoors” means any location that is not “indoors” within a fully enclosed and secure structure as defined herein.
(L)(O) “Outdoor Living Area” means any patio, deck, barbecue, sitting area, dining area, walkway, landscape area, pool, hot tub, enclosed yard or other outdoor space or amenity which is designed and/or used for outdoor living and entertainment.
(M)(P) “Parcel” means a “Legal Parcel” as defined herein.
(N)(Q) “Premises” means a single, Legal Parcel of property. Where contiguous Legal Parcels are under common ownership or control, such contiguous Legal Parcels shall be counted as a single “Premises” for purposes of this Article.
(O)(R) “Primary Caregiver” shall have the definition as Health and Safety Code Section 11362.7(d), as may be amended.
(P)(S) “Qualified Patient” shall have the definition as Health and Safety Code Sections 11362.7(c) and (f), as may be amended.
(Q)(T) “Residence” shall mean a fully enclosed structure used for human occupancy and shall have the same meaning as “domicile.”
(R)(U) “School” means an institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college or university.
(S)(V) “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.
(T)(W) “School Evacuation Site” means any location designated by formal action of the governing body, Superintendent, or principal of any school as a location to which juveniles are to be evacuated to, or are to assemble at, in the event of any emergency or other incident at the school.
(U)(X) “Sheriff” or “Sheriff’s Office” means the Nevada County Sheriff’s Office or the authorized representatives thereof.
(V)(Y) “Youth-oriented facility” means any facility that caters to or provides services primarily intended for minors, or the individuals who regularly patronize, congregate or assemble at the establishment are predominantly minors.
Section G-IV 5.4 Nuisance Declared; Cultivation Restrictions.
(A) The Cultivation of Marijuana, either Indoors or Outdoors, on any Parcel or Premises in an area or in a quantity greater than as provided herein, or in any other way not in conformance with or in violation of the provisions of this Article, is hereby declared to be a public nuisance that may be abated in accordance with this Article, and by any other means available by law. The provisions of Section L-II 5.19 (Nonconforming Uses and Structures) of the Nevada County Land Use and Development Code shall not apply to the Cultivation of Marijuana hereby declared to be a public nuisance.
(B) Medical Marijuana Cultivation is prohibited on any Parcel or Premises within the unincorporated territory of Nevada County except as an accessory use to a legally established Residence on a Legal Parcel.
(C) Except as provided in Section 5.4(D) of this Article, Medical Marijuana Cultivation may be undertaken only by a Qualified Patient who occupies a legal Residence on a Legal Parcel or Premises proposed for Cultivation as his or her primary place of residence.
(D) A Primary Caregiver may cultivate Medical Marijuana on behalf of his or her Qualified Patient(s), but only at the Qualified Patient’s primary Residence and/or at the Primary Caregiver’s primary Residence, and only in conformance with all applicable State and local regulations and all limitations set forth in this Article.
(E) Cultivation within a Residence or any other structure lawfully used or intended for human occupancy is prohibited. Indoor Cultivation may occur only within a detachedlegal structure that meets the definition of Indoor and complies with all applicable provisions of the County’s Land Use and Development Code, and that is accessory to and located on the same Premises as the Residence. Any accessory structure used for Cultivation of Marijuana shall be ventilated with odor control filters, and shall not create an odor, humidity or mold problem on the Premises or on adajacent Premises. Cultivation within any detached accessory structure that does not meet the definition of Indoor shall be considered Outdoor Cultivation.
(F) All electrical and plumbing used for Indoor Cultivation of Marijuana shall be installed with valid electrical and plumbing permits issued and inspected by the Nevada County Building Department, which building permits shall only be issued to the legal owner of the Premises. The collective draw from all electrical appliances on the Premises shall not exceed the maximum rating of the approved electrical panel for the primary legal Residence on the Parcel. The maximum rating shall be as established in the manufacturer specifications for the approved electrical panel.
(GF) The following limitations apply to Cultivation of Medical Marijuana on each Premises located within the unincorporated area of Nevada County, regardless of the number of Qualified Patients or Primary Caregivers residing at the Premises or participating directly or indirectly in the Medical Marijuana Cultivation activity. These limitations shall be imposed notwithstanding any assertion that the person(s) Cultivating the Marijuana are the Primary Caregiver(s) for Qualified Patients or that such person(s) are collectively or cooperatively Cultivating Marijuana.
(1) Premises located within any area zoned primarily for residential uses (e.g., R-1, R-2, R-3 or R-A), shall be limited to the following:
a. Premises with a gross area of less than two acres shall be limited to 100 contiguous square feet of Indoor Cultivation area.
b. Premises with a gross area of more than two acres shall be limited
a. 75 contiguous square feet of Outdoor Cultivation area; or
b. Outdoor Cultivation of up to six (6) mature or immature Marijuana plants if grown in grow bags or pots which are 25-gallons or smaller; or
a.c. 100 contiguous square feet of Indoor Cultivation area of up to six mature or immature Marijuana plants.
(2) Premises located within any area zoned primarily for rural uses (e.g., AG, AE, FR, or TPZ) shall be limited to the following:.
a. Premises with a gross area of less than two acres shall be limited to 10075 contiguous square feet of Indoor Cultivation area or 100 contiguous square feet of Outdoor Cultivation area or Indoor Cultivation of up to six mature or immature Marijuana plants.
b. Premises with a gross area of two acres but less than fiveten acres shall be limited to 150 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation area of up to six mature or immature Marijuana plants.
b.c. Premises with a gross area of five acres but less than ten acres shall be limited to 300 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation area.
c.d. Premises with a gross area of ten acres but less than twenty acres shall be limited to 500250 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation areaof up to six mature or immature Marijuana plants.
d.e. Premises with a gross area of 20 acres or more shall be limited to 1000400 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation areaof up to six mature or immature Marijuana plants.
(3) The Indoor or Outdoor Cultivation of Marijuana, in any amount or quantity, on property located in any other zoning district is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Article.
(HG) The following setbacks shall apply to all Indoor and Outdoor Cultivation areas and shall be measured in a straight line from the nearest point of the Fence or other enclosure required by Section G-IV 5.4(I)(1) to the nearest boundary line of the Parcel on which the Cultivation area is located and the nearest exterior wall of a residential structure on a Legal Parcel under separate ownership.
(1) One hundred (100) feet from any legal Residence located on a separate Legal Parcel.
(1) Fifty (50) feet from the nearest boundary line oOn Parcels located within any area zoned primarily for residential uses (e.g., R-1, R-2, R-3 or R-A):
a. One hundred (100) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel, on Parcels less than two gross acres..
b. Two hundred (200) feet from any legal Residence or Outdoor Living
Area located on an adjacent separate Legal Parcel, on Parcels with a gross area of two or more acres.
(2) On Parcels located within any area zoned primarily for rural uses (e.g., AG, AE, FR, TPZ):
a. One hundred (100) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel, Fifty (50) feet from the nearest boundary line on Parcels less than two gross acres.
b. One hundred fifty (15000) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcelfrom the nearest boundary line on Parcels with a gross area of at least two acres but less than fiveten acres.
b.c. Two hundred (200) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel, on Parcels with a gross area of at least five but less than ten acres.
c.d. Two hundred-fifty (2500) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel the nearest boundary line on Parcels with a gross area of at least ten acres but less than twenty acres.
d.e. Threewo hundred-fifty (25300) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel the
nearest boundary line on Parcels with a gross area of 20 acres or more.
(3) In a mobile home park as defined in Health and Safety Code Section 18214.1, one hundred (100) feet from a mobile home that is under separate ownership.
(IH) Cultivation of Marijuana is prohibited on any Parcel or Premises located within the following areas:
(1) Upon any Premises located within one thousandsix hundred (61000) feet of any School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or Youth-Oriented Facility Such distance shall be measured in a straight line from the Fence or other enclosure required by Section G-IV(I)(1) to the nearest boundary line of the Premises upon which the School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or Youth-Oriented Facility is located.
(2) In any location where the Marijuana would be visible from the public right of way or publicly traveled private roads at any stage of growth.
(3) Within any setback area required by Section G-IV 5.4(G).
(JI) All Cultivation areas shall comply with the following requirements:
(1) All Marijuana Cultivated Outdoors must be fully enclosed within an opaque, solid, sight obscuring Fence of at least six (6) but not more than eight (8) feet in height that fully encloses the immediate garden area. The Marijuana shall be shielded from public view at all stages of growth. Should the Marijuana plant(s) grow higher than the Fence, the plants shall be cut so as to not extend higher than such Fence. All Fences shall comply with Section L-II 4.2.6 of the Nevada County Land Use and Development Code and shall be sufficient to conceal the Marijuana from public view. The Fence must be adequately secure to prevent unauthorized entry and include a locking gate that shall remain locked at all times when a Qualified Patient or Primary Caregiver is not present within the Cultivation area. Said Fence shall not violate any other ordinance, code section or provision of law regarding height and location restrictions and shall not be constructed or covered with plastic or cloth except shade cloth may be used on the inside of the fence. Bushes or hedgerows shall not constitute an adequate Ffence under this subsection. All Indoor Cultivation areas shall be adequately secure to prevent unauthorized entry include a secure locking mechanism that shall remain locked at all times when a Qualified Patient or Primary Caregiver is not present within the Cultivation area.
(2) There shall be no exterior evidence of Indoor or Outdoor Cultivation from a public right-of-way or publicly traveled private road.
(3) Outdoor Cultivation areas shall be on a single plane and shall be clearly staked or marked as an Outdoor Cultivation area for purposes of determining compliance with the square footage requirements set forth in Section G-IV 5.4(F). No portion of any Marijuana plant, including any portion of the plant’s canopy, shall extend outside of the Outdoor Cultivation area.
(4) Marijuana Cultivation shall not adversely affect the health, safety, or general welfare of persons at the Cultivation site or at any nearby residence by creating dust, glare, heat noise, noxious gasses, odor, smoke, traffic, or vibration, by the use or storage of hazardous materials, processes, products or wastes, or by any other way. The Indoor or Outdoor Cultivation of Marijuana shall not subject residents of neighboring parcels who are of normal sensitivity to reasonably objectionable odors.
(5) No person owning, leasing, occupying, or having charge or possession of any Parcel or Premises within the County shall cause, allow, suffer, or permit such Premises to be used for the Outdoor or Indoor Cultivation of Medical Marijuana in violation of the Health and Safety Code or this Article.
(6) The use of light assistance for the Outdoor Cultivation of Marijuana shall not exceed a maximum of four hundred (400) watts of lighting capacity per one hundred (100) square feet of Cultivation area.
(7) All lights used for the Indoor or Outdoor Cultivation of Marijuana shall be shielded and downcast or otherwise positioned in a manner that will not shine light or allow light glare to exceed the boundaries of the Parcel upon which they are placed, and shall comply with the requirements of Section L-II 4.2.8.D. of the Nevada County Land Use and Development Code. Grow light systems associated with Indoor Cultivation shall be shielded to confine light and glare to the interior of the structure and shall conform to all applicable building and electrical codes. Grow light systems shall not be allowed for Outdoor Cultivation.
(8) The Indoor or Outdoor Cultivation of Marijuana shall not exceed the noise level standards as set forth in the County General Plan.
(9) Wherever Medical Marijuana is grown, a copy of a current and valid, State-issued Medical Marijuana identification card, physician recommendation or Affidavit as set forth in Section 5.4(J)(4)in this Section must be displayed in such a manner as to allow law enforcement officers to easily see the recommendation or Affidavit card without having to enter any building of any type. If a Qualified Patient has a verbal medical recommendation, then the Qualified Patient shall provide an Affidavit setting forth the name and contact information of the physician making the recommendation, the date of the recommendation and amount(s) of Marijuana recommended by the physician. The Affidavit shall be signed under penalty of perjury under the laws of the State of California.
(10) If the person(s) Cultivating Marijuana on any Legal Parcel is/are not the legal owner(s) of the parcel, the person(s) who is Cultivating Marijuana on such Parcel shall (a) give written notice to the legal owner(s) of the Parcel prior to commencing Cultivation of Marijuana on such Parcel, and (b) shall obtain a signed and notarized letter from the legal owner(s) consenting to the Cultivation of Marijuana on the Parcel. The person(s) Cultivating Marijuana shall obtain this written letter of consent from the legal owner prior to Cultivating Marijuana on the Premises and at least annually thereafter. A copy of the most current letter of consent shall be displayed in the same immediate area as the recommendations set for the in section G-IV 5.4(J)(9), in such a manner as to allow law enforcement officers to easily see the letter of consent without having to enter any building of any type. The person(s) Cultivating Marijuana shall maintain the original letter of consent on the Premises at which Marijuana is being Cultivated
and shall provide the original letter to the Enforcing Officer for review and copying upon request. The Sheriff may prescribe forms for such letters.
(11) The use of Hazardous Materials shall be prohibited in the Cultivation of Marijuana except for limited quantities of Hazardous Materials that are below State of California threshold levels of 55 gallons of liquid, 500 pounds of solid, or 200 cubic feet of compressed gas. Any Hazardous Materials stored shall maintain a minimum setback distance of 100-feet from any private drinking water well, spring, water canal, creek or other surface water body, and 200-feet from any public water supply well. The production of any Hazardous Waste as part of the Cultivation process shall be prohibited.
(J) The person(s) owning or having charge or possession of any Cultivation area shall register the Premises with the Nevada County Sheriff’s Office annually, and shall provide all of the following current information and documentation to the Sheriff’s Office:
(1) The location of the Premises where the Cultivation of Medical Marijuana will occur.
(2) The name of each person owning, leasing, occupying or having charge or possession of the Premises;
(3) The name of each Qualified Patient or Primary Caregiver who participates in the Cultivation, either directly or by providing reimbursement for Marijuana or the services provided in conjunction with the provision of that Marijuana;
(4) A copy of the current valid medical recommendation or State-issued Medical Marijuana card, or Affidavit as set forth in this subsection for each Qualified Patient identified as required above, and for each Qualified Patient for whom any person identified as required above is the Primary Caregiver. If a Qualified Patient has a verbal medical recommendation, then the Qualified patient shall provide an Affidavit setting forth the name and contact information of the physician making the recommendation, the date of the recommendation and amount(s) recommended. The Affidavit shall be signed under penalty of perjury;
(5) The square footage and location of the Indoor or Outdoor Marijuana Cultivation area on the Premises; and,
(6) If the person(s) Cultivating Marijuana on any Legal Parcel is/are not the legal owner(s) of the parcel, the person(s) who is Cultivating Marijuana on such Parcel shall (a) give written notice to the legal owner(s) of the Parcel prior to commencing Cultivation of Marijuana on such Parcel and (b) shall submit a signed and notarized letter from the legal owner(s) consenting to the Cultivation of Marijuana on the Parcel. The Sheriff may prescribe forms for such letters.
(7) Signed statements from the owner(s) of the Premises and each person leasing, occupying or having charge or possession of the Premises authorizing the Sheriff, Fire District, and/or other appropriate County employees or agents or their designees, including building and fire inspectors, to enter the property only during normal business hours for the purpose of examining the location to confirm compliance with this Article.
(8) Such other information and documentation as the Sheriff’s Office determines is necessary to ensure compliance with State law and this Article.
(9) All information and documentation provided pursuant to this Section G-IV 5.4(J) shall be received in confidence, and shall be used or disclosed only for the purposes of administration or enforcement of this Article or State law, or as otherwise required by law.
(10) The Board of Supervisors may, by Resolution, establish a fee for such registration in accordance with all applicable legal requirements.
(K) Nothing herein shall limit the ability of Fire District or other appropriate County employees or agents from entering the property to conduct the inspections authorized by or necessary to ensure compliance with this Article or the ability of the Sheriff to make initial inspections or independent compliance checks. The Sheriff is authorized to determine the number and timing of inspections that may be required.
Section G-IV 5.5 Change in Land Use.
The County shall encourage any person proposing to construct or operate a new or relocated School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or Youth-Oriented Facility to consider whether the proposed location of such use is within one thousandsix hundred (61000) feet of a registered Premises upon which Marijuana is cultivated. Upon request, the Sheriff’s Office shall inform any person proposing to construct or operate a new or relocated School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or Youth-Oriented Facility regarding whether there is a registered Premises upon which Marijuana is Cultivated within one thousandsix hundred (61000) feet of the proposed location of such use, and, if so, shall also inform the person, owning, leasing, occupying, or having charge or possession of the registered Premises that such a use is being proposed within one thousandsix hundred (61000) feet of the Premises.
Section G-IV 5.6 Notice to Abate Unlawful Marijuana Cultivation.
Whenever the Enforcing Officer determines that a public nuisance as described in this Article exists on any Premises within the unincorporated area of Nevada County, he or she is authorized to notify the owner(s) and/or occupant(s) of the Premises, through issuance of a “Notice to Abate Unlawful Marijuana Cultivation;” provided, however, that nothing in this Article shall affect or preclude the provided, however, that nothing contained in this Article shall preclude the Sheriff from immediate abatement without notice of any Marijuana which is Cultivated, possessed, or distributed in violation of state or federal law.
Section G-IV 5.7 Contents of Notice
The Notice set forth in Section G-IV 5.6 shall be in writing and shall:
(A) Identify the owner(s) of the Parcel upon which the nuisance exists, as named in the records of the County Assessor, and identify the occupant(s), if other than the owner(s), and if known or reasonably identifiable.
(B) Describe the location of such Parcel by its commonly used street address, giving the name or number of the street, road or highway and the number, if any, of the property.
(C) Identify such Parcel by reference to the Assessor’s Parcel Number.
(D) Contain a statement that unlawful Marijuana Cultivation exists on the Parcel and that it has been determined by the Enforcing Officer to be a public nuisance as described in this Article.
(E) Describe the unlawful Marijuana Cultivation that exists and the actions required to abate it.
(F) Contain a statement that the legal owner or occupant is required to abate the unlawful Marijuana Cultivation within five (5) calendar days after the date that said Notice was served.
(G) Contain a statement that the legal owner or occupant may, within five (5) calendar days after the date that said Notice was served, make a request in writing to the Clerk of the Board of Supervisors for a hearing to appeal the determination of the Enforcing Officer that the conditions existing constitute a public nuisance, or to show other cause why those conditions should not be abated in accordance with the Notice and the provisions of this Article.
(H) Contain a statement that, unless the legal owner or occupant abates the unlawful Marijuana Cultivation, or requests a hearing before the Board of Supervisors or designee, within the time prescribed in the Notice, the Enforcing Officer will abate the nuisance at the legal owner and/or occupant’s expense. It shall also state that the abatement costs, including administrative costs, may be made a special assessment added to the County assessment roll and become a lien on the real property, or be placed on the unsecured tax roll.
Section G-IV 5.8 Service of Notice to Abate
The Notice set forth in Sections G-IV 5.6 and G-IV 5.7 shall be served in the following manner:
(A) By delivering it personally to the legal owner of the Parcel and to the occupant, or by mailing it by regular United States mail, together with a certificate of mailing, to the occupant of the Parcel at the address thereof, and to any non-occupying legal owner at his or her address as it appears on the last equalized assessment roll, except that:
(1) If the records of the County Assessor show that the ownership has changed since the last equalized assessment roll was completed, the Notice shall also be mailed to the new owner at his or her address as it appears in said records, or
(2) In the event that, after reasonable effort, the Enforcing Officer is unable to serve the Notice as set forth above, service shall be accomplished by posting a copy of the Notice on the Parcel upon which the nuisance exists as follows: Copies of the Notice shall be posted along the frontage of the subject Parcel, and at such other locations on the Parcel reasonably likely to provide notice to the owner and any person known by the Enforcing Officer to be in possession of the Parcel. In no event shall fewer than two (2) copies of the Notice be posted on a Parcel pursuant to this section.
(B) The date of service is deemed to be the date of personal delivery or posting, or
three (3) days after deposit in the U.S. Mail.
Section G-IV 5.9 Administrative Review.
(A) The Board of Supervisors delegates the responsibility to conduct a lien hearing in conformance with this Article to a Hearing Officer.
(B) Any person upon whom a Notice to Abate Unlawful Marijuana Cultivation has been served may appeal the determination of the Enforcing Officer that the conditions set forth in the Notice constitute a public nuisance to the Hearing Officer, or may show cause before the Hearing Officer why those conditions should not be abated in accordance with the provisions of this Article. Any such administrative review shall be commenced by filing a written request for a hearing with the Sheriff’s Office within five (5) calendar days after the date that said Notice was served. The written request shall include a statement of all facts supporting the appeal. The time requirement for filing such a written request shall be deemed jurisdictional and may not be waived. In the absence of a timely filed written request that complies fully with the requirements of this Section, the findings of the Enforcing Officer contained in the Notice shall become final and conclusive on the sixth day following service of the Notice.
(C) Upon timely receipt of a written request for hearing which complies with the requirements of this Section, the Sheriff’s Office shall set a hearing date not less than five (5) days or more than thirty (30) days from the date the request was filed. The Sheriff’s Office shall send written notice of the hearing date to the requesting party, to any other parties upon whom the Notice was served, and to the Enforcing Officer.
(D) Any hearing conducted pursuant to this Article need not be conducted according to technical rules relating to evidence, witnesses and hearsay. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. The Hearing Officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue 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, and may affirm, reverse, or modify the determinations contained in the Notice to Abate Unlawful Marijuana Cultivation. The Hearing Officer shall issue a written decision in the form of a resolution, which shall include findings relating to the existence or nonexistence of the alleged unlawful Marijuana Cultivation, as well as findings concerning the propriety and means of abatement of the conditions set forth in the Notice. Such decision shall be mailed to, or personally served upon, the party requesting the
hearing, any other parties upon whom the Notice was served, and the Enforcing Officer.
(G) The decision of the Hearing Officer shall be final and conclusive.
Section G-IV 5.10 Liability for Costs.
(A) In any enforcement action brought pursuant to this Article, whether by administrative proceedings, judicial proceedings, or summary abatement, each person who causes, permits, suffers, or maintains the unlawful Marijuana Cultivation to exist shall be liable for all costs incurred by the County, including, but not limited to, administrative costs, and any and all costs incurred to undertake, or to cause or compel any responsible party to undertake, any abatement action in compliance with the requirements of this Article, whether those costs are incurred prior to, during, or following enactment of this Article;
(B) In any action by the Enforcing Officer to abate unlawful marijuana cultivation under this Article, whether by administrative proceedings, judicial proceedings, or summary abatement, the prevailing party shall be entitled to a recovery of the reasonable attorneys’ fees incurred. Recovery of attorneys’ fees under this subdivision shall be limited to those actions or proceedings in which the County elects, at the initiation of that action or proceeding, to seek recovery of its own attorneys’ fees. 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.
Section G-IV 5.11 Abatement by Owner or Occupant.
Any owner or occupant may abate the unlawful Marijuana Cultivation or cause it to be abated at any time prior to commencement of abatement by, or at the direction of, the Enforcing Officer.
Section G-IV 5.12 Enforcement.
(A) Whenever the Enforcing Officer becomes aware that an owner or occupant
has failed to abate any unlawful Marijuana Cultivation within five (5) days of the date of service of the Notice to Unlawful Marijuana Cultivation, unless timely appealed, or as of the date of the decision of the Hearing Officer requiring such abatement, the Enforcing Officer may take one or more of the following actions:
(1) Enter upon the property and abate the nuisance by County personnel, or by private contractor under the direction of the Enforcing Officer. The Enforcing Officer may apply to a court of competent jurisdiction for a warrant authorizing entry upon the property for purposes of undertaking the work, if necessary. If any part of the work is to be accomplished by private contract, that contract shall be submitted to and approved by the Board of Supervisors prior to
commencement of work. Nothing herein shall be construed to require that any private contract under this Code be awarded through competitive bidding procedures where such procedures are not required by the general laws of the State of California; and/or
(2) Request that the County Counsel commence a civil action to redress, enjoin, and abate the public nuisance; and/or
(3) Issue administrative citations in accordance with Section L-II 5.23, et seq., of the Nevada County Land Use and Development Code; and/or
(4) Take any other legal action as may be authorized under State or local law to abate and/or enforce the provisions of this Article.
Section G-IV 5.13 Accounting.
The Enforcing Officer shall keep an account of the cost of every abatement carried out and shall render a report in writing, itemized by parcel, to the Hearing Officer showing the cost of abatement and the administrative costs for each parcel.
Section G-IV 5.14 Notice of Hearing on Accounting; Waiver by Payment.
Upon receipt of the account of the Enforcing Officer, the Sheriff’s Office shall deposit a copy of the account pertaining to the property of each owner in the mail addressed to the owner and include therewith a notice informing the owner that, at a date and time not less than five (5) business days after the date of mailing of the notice, the Hearing Officer will meet to review the account and that the owner may appear at said time and be heard. The owner may waive the hearing on the accounting by paying the cost of abatement and the cost of administration to the Enforcing Officer prior to the time set for the hearing by the Hearing Officer. Unless otherwise expressly stated by the owner, payment of the cost of abatement and the cost of administration prior to said hearing shall be deemed a waiver of the right thereto and an admission that said accounting is accurate and reasonable.
Section G-IV 5.15 Hearing on Accounting.
(A) At the time fixed, the Hearing Officer shall meet to review the report of the Enforcing Officer. An owner may appear at said time and be heard on the questions whether the accounting, so far as it pertains to the cost of abating a nuisance upon the land of the owner is accurate and the amounts reported reasonable. The cost of administration shall also be reviewed.
(B) The report of the Enforcing Officer shall be admitted into evidence. The owner shall bear the burden of proving that the accounting is not accurate and reasonable.
(C) The Hearing Officer shall also determine whether or not the owner(s) had actual knowledge of the unlawful Marijuana Cultivation, or could have acquired such knowledge through the exercise of reasonable diligence. If it is determined at the hearing that the owner(s) did not have actual knowledge of the unlawful Marijuana Cultivation, and could not have acquired such knowledge through the exercise of reasonable diligence, costs for the abatement shall not be assessed against such Parcel or otherwise attempted to be collected from the owner(s) of such Parcel.
Section G-IV 5.16 Modifications.
The Hearing Officer shall make such modifications in the accounting as it deems necessary and thereafter shall confirm the report by resolution.
Section G-IV 5.17 Special Assessments and Lien.
The Board of Supervisors may order that the cost of abating nuisances pursuant to this Article and the administrative costs as confirmed by the Board be placed upon the County tax roll by the County Auditor as special assessments against the respective parcels of land, or placed on the unsecured roll, pursuant to section 25845 of the Government Code; provided, however, that the cost of abatement and the cost of administration as finally determined shall not be placed on the tax roll if paid in full prior to entry of said costs on the tax roll. The Board of Supervisors may also cause notices of abatement lien to be recorded against the respective parcels of real property pursuant to section 25845 of the Government Code.
Section G-IV 5.18 Summary Abatement.
Notwithstanding any other provision of this Article, when any unlawful Marijuana Cultivation constitutes an immediate threat to the public health or safety, and where the procedures set forth in Sections G-IV 5.6 through G-IV 5.12 would not result in abatement of that nuisance within a short enough time period to avoid that threat, the Enforcing Officer may direct any officer or employee of the County to summarily abate the nuisance. The Enforcing Officer shall make reasonable efforts to notify the persons identified in Section G-IV 5.7 but the formal notice and hearing procedures set forth in this Article shall not apply. The County may nevertheless recover its costs for abating that nuisance in the manner set forth in Sections G-IV 5.13 through G-IV 5.17.
Section G-IV 5.19 No Duty to Enforce.
Nothing in this Article shall be construed as imposing on the Enforcing Officer or the County 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 regard to any unlawful Marijuana Cultivation, and neither the Enforcing Officer nor the County shall be held liable for failure to issue an order to abate any unlawful Marijuana Cultivation, nor for failure to abate any unlawful Marijuana Cultivation, nor for failure to take any other action with regard to any unlawful Marijuana Cultivation.