The Actual Ordinance 4/20/16

BOARD OF SUPERVISORS COUNTY OF SIERRA STATE OF CALIFORNIA

ORDINANCE NO. _____

Amending Sections 8.01.030; 8.01.040; and 8.01.080 of the Sierra County Code; Repealing Section 8.01.250 of the Sierra County Code; and Adding Chapter 8.02 Pertaining to Administrative Penalties for Public Nuisances Created by Cultivation of Medical Marijuana in Violation of Chapter 8.01 of the Sierra County Code

THE BOARD OF SUPERVISORS OF THE COUNTY OF SIERRA ORDAINS as follows: Ordinance Section One:
Findings and Purpose:
In adopting this Ordinance the Board of Supervisors finds as follows:

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”). 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.”

B. In 2004, the Legislature enacted SB 420, codified as California Health and Safety Code section 11362.7 et seq., and referred to as “The Medical Marijuana Program Act” (hereinafter referred to as MMPA). As subsequently amended the MMPA, under California Health & Safety Code section 11362.83 the counties are expressly allowed to adopt and enforce ordinances that are consistent with the MMPA. In addition the courts in California have recognized and upheld the right of counties and cities to ban or to otherwise regulate the cultivation of marijuana – reference is to Browne v. County of Tehama, 213 Cal. App. 4th (2013); also see Maral v. City of Live Oak, 221 Cal.App.4th 975.

C. On October 9, 2015, the State of California enacted AB 243, AB 266, and SB 643, which bills regulate various activities pertaining to marijuana, including the cultivation and distribution of marijuana. Under these recently enacted State laws, counties are expressly allowed to ban or to regulate cultivation of marijuana within their jurisdiction

D. The County’s geographic and climatic conditions, which include densely 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 with high economic value because of the County’s favorable growing conditions.

E. The indoor cultivation of substantial amounts of marijuana within a residence presents potential health and safety risks to those living in the residence, especially to children, including but not limited to increased risk of fire from grow light systems and improper electrical wiring, exposure to fertilizers, pesticides, anti-fungus/mold agents, and exposure to potential property crimes targeting the residence.

F. Cities and counties throughout the State have reported adverse impacts from marijuana cultivation, including but not limited to increased risks of criminal activity, acts of violence in connection with attempts to protect or steal marijuana grows, degradation of the natural environment, unsanitary conditions, violations of building codes, disagreeable odors, and negative effects on physical, mental and community health. The creation of persistent strong odors as marijuana plants mature and flower is offensive to many people, results in complaints of respiratory problems, and creates an attractive nuisance, alerting persons to the location of valuable marijuana plants and creating an increased risk of crime. Accordingly, the Board of Supervisors finds that the unregulated cultivation of marijuana in the unincorporated area of Sierra County can adversely affect the health, safety, and well-being of the County and its residents.

G. It is the purpose and intent of this Ordinance to implement State law by regulating the cultivation of marijuana and related activities in a manner consistent with State law. It is also the intent of this Ordinance to balance the needs of medical patients and their caregivers and to promote the health, safety, and general welfare of the residents and businesses within the unincorporated territory of the County of Sierra. This Ordinance is intended to be consistent with Proposition 215 and Senate Bill 420 as well as the newly enacted State regulations embodied in AB 266, AB 243 and SB 643. The intent and purpose of this Ordinance is to establish reasonable regulations regarding the manner in which marijuana may be cultivated, including restrictions on the amount and location of marijuana that may be cultivated on any parcel, in order to protect the public’s health, safety, and welfare in Sierra County, and to address the adverse impacts previous local regulations have failed to curtail.

H. The Board of Supervisors finds that the regulations established by this Ordinance relating to marijuana cultivation and related activities is proper and necessary to address the risks and adverse impacts as stated herein, that are especially significant if the amount of marijuana cultivated on a single Parcel is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place.

I. Nothing in this Ordinance shall be construed to allow the use of marijuana for non- medical purposes, or allow any activity relating to the cultivation, distribution, processing, storage, transportation or consumption of marijuana that is otherwise illegal under State or Federal law. No provision of this Ordinance shall be deemed to be a defense or immunity to any action brought against any person in Sierra County by the Sierra County District Attorney, the Attorney General of the State of California, or the United States of America.

J. In Sierra 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 jurisdictions. The Board of Supervisors finds that if the regulations set forth in this Ordinance are not adopted then it is likely that Sierra County will continue to encounter increasing numbers of marijuana cultivation sites of increasing size, in locations which will result in public nuisances to the surrounding communities and their residents.

K. There is an immediate need to provide certainty and guidance to those who might choose to cultivate marijuana in Sierra County and to preserve the public peace, health and safety of Sierra County residents by regulating and addressing the public nuisances associated with marijuana cultivation. In addition, if marijuana cultivation is not immediately further regulated, large numbers of illegal marijuana cultivation sites may be introduced into the local market in the near term.

Ordinance Section Two:
Section 8.01.030 of the Sierra County Code is hereby amended to read: 8.01.030 Definitions
As used herein the following definitions shall apply:

A. “Accessory Structure” means a separate and legally permitted building or structure located on the same Legal Parcel as a Primary Place of Residence.

B. “Child Care Center” means any licensed child care center, daycare center, childcare home, or any preschool.

C. “Church” means a structure or leased portion of a structure, which is used primarily for religious worship and related religious activities.

D. “Cultivation” or “Cultivate” means the grading, planting, growing, harvesting, drying, curing, trimming, processing, testing or storage, or any combination of these activities, 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.

E. “Commercial Cannabis Activity” shall have the same meaning as set forth in Business & Professions Code section 19300.5(k) and shall include all commercial cannabis-related activities contemplated by or for which a license may be required as set forth in AB 266, AB 243, and SB 643 and (codified in the California Business & Professions Code, Government Code, Health and Safety Code, Labor Code and Revenue and Taxation Code) and shall include delivery of marijuana to any person or entity within Sierra County.

F. “Enforcement Officer” means the Sheriff, or his authorized deputies or designees, or any person employed by the County of Sierra and appointed to the position of code enforcement officer, each of whom is independently authorized to enforce this chapter.

G. “Fence” shall mean a wall or barrier connected by boards, masonry, rails, panels or any other materials for the purpose of enclosing space or separating parcels of land. For purposes of this Chapter, the term “Fence” does not include tarpaulins, cloth material, scrap material, bushes or hedgerows but must be such as to obstruct vision through the fence. Bushes or hedgerows may constitute a fence but must be such as to obstruct vision through the bushes or hedgerows if of adequate height to provide effective screening of the marijuana from outside of the Parcel.

H. “Hazardous Materials” means any substance that is “flammable, explosive, reactive, corrosive or toxic”, as further defined in California Health and Safety Code sections 25501 and 25503.5, as may be amended.

I. “Hearing Officer” means a person designated by the Board of Supervisors to conduct administrative hearings as provided in this Chapter.

J. “Identification Card” shall have the same definition as California Health and Safety Code section 11362.5 et seq., as may be amended.

K. “Indoor” or “Indoors” means within a fully enclosed and secure structure that complies with the California Building Code (Title 24, California Code of Regulations) for that specific occupancy type, as adopted by the County of Sierra. Indoors does not include structures that are exempt from the requirement to obtain a building permit under the Sierra County Code and Cultivation of Marijuana is prohibited in any such structure. Any structure used for Cultivation of Marijuana shall have 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. Exterior walls must be constructed with non-transparent material. Plastic sheeting, regardless of gauge, or similar products do not satisfy these requirements.

L. “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).

M. “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 Chapter shall not be considered an agricultural activity, operation or facility under Civil Code section 3482.5 or an Agricultural Product or an Agricultural Operation.

N. “Marijuana Plant” means any mature or immature marijuana plant, including without limitation, any marijuana seedling.

O. “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.

P. “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.

Q. “Outdoor” or “Outdoors” means any location that is not “Indoors” within a fully enclosed and secure structure as defined herein.

R. “Outdoor Cultivation” shall be deemed to include cultivation in a properly constructed greenhouse.

S. “Outdoor Living Area” means any patio, deck, barbecue, sitting area, dining area, pool, hot tub, enclosed yard or other outdoor space or amenity which is designed and/or used for outdoor living and entertainment.

  1. “Parcel” means a “Legal Parcel” as defined herein.
  2. “Primary Caregiver” (also sometime referred to as a “Qualified Caregiver”) shall have the definition set forth in Health and Safety Code section 11362.7(d), as may be amended and as interpreted by the California Supreme Court in the case of People v. Mentech 45 Cal. 4th 274.

V. “Primary Place of Residence” shall mean the Residence at which a Qualified Patient or Primary Caregiver resides, uses or otherwise occupies on a full-time, regular basis.

W. “Qualified Patient” shall have the definition as set forth in Health and Safety Code sections 11362.7(c) and (f), as may be amended.

X. “Residence” shall mean a fully enclosed permanent structure used, designed or intended for human occupancy that, in compliance with applicable building codes and other applicable statutes or ordinance, has been legally established, permitted, or certified as single-family or multi-family dwelling in accordance with the County Code. Recreational Vehicles (RVs), trailers, motorhomes, tents or other vehicles shall not constitute a Residence for purposes of this Chapter, irrespective of whether any such vehicle is otherwise permitted or allowed under the Sierra County Code for temporary occupancy.

Y. “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.

Z. “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.

AA. “Sheriff” or “Sheriff’s Office” means the Sierra County Sheriff’s Office or the authorized representatives thereof.

BB. “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.

Ordinance Section Two:

Section 8.01.040 of the Sierra County Code is hereby amended to read:

8.01.040 Nuisance Declared; Cultivation Restrictions

A. The Cultivation of Marijuana, either Indoors or Outdoors, on any Parcel 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 Chapter, or otherwise in a manner that violates any other provision of State law or the Sierra County Code, is hereby declared to be a public nuisance that may be abated by any means available by law. No person owning, leasing, occupying, or having charge or possession of any Parcel within the County shall cause, allow, suffer, or permit such Parcel to be used for the Cultivation of Marijuana in violation of the California Health and Safety Code or this Chapter. The provisions of Chapter 15.40 of the Sierra County Code regarding non- conforming uses shall not apply to the Cultivation of Marijuana.

B. Commercial Cannabis Activity of any nature and in any amount or quantity within the unincorporated territory of Sierra County is hereby prohibited.

C. Marijuana Cultivation is prohibited on any Parcel within the unincorporated territory of Sierra County except as an accessory use to a legally established Residence on a Legal Parcel.

D. Medical Marijuana Cultivation may be undertaken only by:

  1. A Qualified Patient who occupies a legal Residence on the Legal Parcel being used for Medical Marijuana Cultivation as his or her primary place of Residence.
  2. A Primary Caregiver on behalf of his or her Qualified Patient(s) but only on a Legal Parcel with a legal Residence which is occupied by the Qualified Patient or by the Primary Caregiver as his or her primary place of Residence.

  3. In conformance with all applicable State and local laws, including all regulations      and restrictions as set forth in this Chapter.

E. Indoor Medical Marijuana Cultivation is allowed only within a legal structure that meets the definition of Indoor as set forth in this Chapter, 8.01, and complies with all applicable provisions of the Sierra County Code. Structures that are exempt from the requirement to obtain a building permit under the Sierra County Code shall not be used for the Cultivation of Marijuana, provided however, that Cultivation in a greenhouse shall, pursuant to subsection (F), below, be allowed as Outdoor Cultivation, subject to the provisions and restrictions as otherwise set out in this Chapter, 8.01 of the Sierra County Code. Lights used indoors shall comply with all applicable laws, including without limitation, restrictions on the use of lights or lighting that interferes with the use of any radio or other communication device.

F. Outdoor Marijuana Cultivation may, subject to the other provisions and restriction established in this Chapter, 8.01, of the Sierra County Code, only occur on a Legal Parcel that is not less than two (2) acres in size. Cultivation within any detached greenhouse shall be considered Outdoor Cultivation.

1. All Marijuana grown outside of any building must be fully enclosed by an opaque fence at least six (6) feet in height if the Marijuana is visible from any location off of the property which contains the growing Marijuana. Bushes and hedgerows, may constitute an adequate fence under this subdivision if sufficient to prevent a view of the Marijuana.

  1. Any outdoor area in which the Marijuana is cultivated shall be set back at least thirty (30) feet from all boundaries of the Parcel. Such setback distance shall be measured in a straight line from the fence required by subdivision (F)(1), to the boundary line of the Parcel.
  2. No lights may be used outdoors as part of the growing of Marijuana, which prohibition shall also apply to greenhouses.

G. Notwithstanding any other provision of this Chapter (8.01) to the contrary, the following limitations apply to Cultivation of Marijuana, both as to Indoor and to Outdoor Cultivation on any property located within the unincorporated area of Sierra County. These limitations apply irrespective of the number of Qualified Patients or Primary Caregivers residing at the Parcel or participating directly or indirectly in the Marijuana Cultivation activity. These limitations also apply to any person Cultivating Medical Marijuana as a Primary Caregiver(s) for Qualified Patients.

1. Medical Marijuana Cultivation shall be limited to ten (10) Marijuana plants, whether mature or immature, which Cultivation shall not exceed a total area of one hundred (100) square feet. Plants may be grown in no more than ten (10) planting beds, the total aggregate of all ten beds not to exceed the maximum of one hundred (100) square feet and all plants to be within fifty (50) feet of each other.

  1. Notwithstanding the limits set out in subparagraph G.1, above, as to the number of plants allowed to be cultivated, any person growing Medical Marijuana shall be allowed to grow no more than twenty (20) starter plants within the area not to exceed the restrictions set out in subparagraph G.1, above. For the purpose of this section, starter plants shall mean a plant that is less than twenty-four (24) inches in vertical height. The provisions for growing of starter plants is not to be construed to be in addition to the plant count and area limits established in subsection G.1, above. On or after August 1st of each year, no Marijuana plant growing on any property shall be deemed to be a starter plant, irrespective of the size of the plant.

    These limits apply as to each Qualified Patient residing on the property or to each Primary Caregiver.

  2. Cultivation on any Parcel shall be for no more than two (2) individuals, whether as Qualified Patients and/or Primary Caregivers, such that no more than twenty (20) Marijuana plants within a square footprint not to exceed two hundred (200) square feet shall be allowed on any Parcel.
  3. No Marijuana plant shall exceed a height limit of ten (10) feet and cultivation of Marijuana on tiers or any basis for stacking plants within the allowed footprint is prohibited.

H. Cultivation of Marijuana is prohibited Outdoors on any Parcel located within the following areas:

  1. Upon any Parcel located within one hundred (100) feet of any School, 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 this Chapter to the nearest boundary line of the Parcel upon which the School, 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

I. All Cultivation areas shall comply with the following requirements:

  1. All Marijuana Cultivation shall be shielded from public view at all stages of growth. All Cultivation areas shall be adequately secure to prevent unauthorized entry, including 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 Cultivation from a public right-of-way or publicly traveled private road.
  3. 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 Cultivation of Marijuana shall not subject residents of neighboring parcels who are of normal sensitivity to reasonably objectionable odors.
  1. All new structures used or intended for use in Indoor Cultivation shall submit complete construction plans for review to the Building Department, obtain building permits, and obtain required building inspections and a final certificate of occupancy prior to the start of any Indoor Cultivation activities.
  2. All electrical, mechanical, and plumbing used for Indoor Cultivation of Marijuana shall be installed with valid electrical, mechanical, and plumbing permits issued and inspected by the Sierra County Building Department, which building permits shall only be issued to the legal owner of the Parcel.
  3. All structures used for Cultivation of Marijuana shall contain adequate ventilation, air filtration and odor control filters to prevent odor, mold and mildew in any area used for Cultivation or which is used as, designed or intended for human occupancy, or on adjacent Parcel.
  4. Indoor grow lights shall not exceed one thousand two hundred watts (1200W) and shall comply with the California Building, Electrical and any applicable Fire Codes. Gas products (including, without limitation, C02, butane, propane and natural gas), or generators shall not be used within any structure used for Indoor Cultivation. Grow light systems associated with 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. Lights used indoors shall not interfere with the use of any radio or other communication devices.
  5. Any lights used for the Cultivation of Marijuana shall be shielded or otherwise positioned in a manner that will not shine light outside of the structure in which the Cultivation occurs and shall comply with the requirements of the Sierra County Code and provisions of State law.
  6. The Cultivation of Marijuana shall not exceed the noise level standards as set forth in the County General Plan.
  7. 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 this Section must be displayed at or immediately adjacent to the Cultivation area, in such a manner as to allow law enforcement officers to easily see the recommendation or Affidavit. 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.
  1. 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/are 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 Parcel 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 forth in section 8.01.040 (G)(10) 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 Parcel at which Marijuana is being Cultivated and shall provide the original letter to the Enforcement Officer for review and copying upon request. The Sheriff may prescribe forms for such letters.
  2. The use of Hazardous Materials for and/or in association with the Cultivation of Marijuana, except for limited quantities of Hazardous Materials that are below State of California threshold, is prohibited. Any Hazardous Materials stored shall maintain a minimum setback distance of one hundred (100) feet from any private drinking water well, spring, water canal, creek or other surface water body, and two hundred (200) feet from any public water supply well or source. The production of any Hazardous Waste as part of the Cultivation process shall be prohibited.
  3. All Parcel used for the Cultivation of Marijuana shall have a legal and permitted water source on the Parcel and shall not engage in unlawful or unpermitted diversion or drawing of surface water or permit illegal discharges of water from the Parcel.

J. Accessory Structures used for the Cultivation of Marijuana shall meet all of the following criteria:

  1. The accessory structure, regardless of size, shall be legally constructed in accordance with all applicable development permits and entitlements including, but not limited to, grading, building, structural, electrical, mechanical and plumbing permits approved by applicable federal, state and local authorities prior to the commencement of any Cultivation activity. The conversion of any existing accessory structure, or portion thereof, for Cultivation shall be subject to these same permit requirements and must be inspected for compliance by the applicable federal, state and local authorities prior to commencement of any Cultivation activity.
  2. The accessory structure shall not be built or placed within any setback as required by the Sierra County Code or approved development permit or entitlement.
  3. The accessory structure shall be equipped with permanently installed and 10 permitted electricity, and shall not be served by temporary extension cords. Electrical wiring conductors shall be sized based on the current California Electrical Code with anticipated loads identified.
  1. The accessory structure shall be equipped with a permanently installed and permitted odor control filtration and ventilation system adequate to prevent any odor, humidity, or mold problem within the structure, on the Parcel, or on adjacent Parcels.
  2. If the accessory structure is a greenhouse, the panels shall be of glass or polycarbonate and should be opaque for security and visual screening purposes. Where the greenhouse panels are not obscure, the greenhouse shall be screened from view by a solid Fence.

K. Where the provisions of this Chapter are more restrictive than other provisions of the Sierra Code, the provisions of this Chapter shall govern.

L. Nothing herein shall limit the ability of the Chief Building Official or designee, Fire Marshall or designee, or any other state or local employees or agents from entering the property to conduct the inspections authorized by or necessary to ensure compliance with this Chapter, 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.

Ordinance Section Three:

Section 8.01.080 of the Sierra County Code is hereby amended to read:

8.01.080 Administrative Review

A. Any person upon whom a notice to abate unlawful Marijuana Cultivation has been served may appeal the determination of the Enforcement Officer that the conditions set forth in the notice constitute a public nuisance. A Hearing Officer assigned by the County Clerk, pursuant to the procedures set out in Chapter 8.02, shall hold an administrative appeal hearing to determine if a nuisance exists which should be abated in accordance with the provisions of this Chapter. Any such administrative review shall be commenced by filing a written request for a hearing with the County Clerk within ten (10) 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 Enforcement Officer contained in the notice shall become final and conclusive on the eleventh day following service of the notice.

B. Upon timely receipt of a written request for hearing which complies with the requirements of this section, the County Clerk shall assign a Hearing Officer who shall then set a hearing date not less than seven (7) days nor more than thirty (30) days from the date the request is filed. The Clerk shall send written notice of the hearing date to the requesting party, to any other parties upon whom the notice is served, and to the Enforcement Officer.

C. Any hearing conducted pursuant to this Chapter 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.

  1. The Hearing Officer may continue the administrative hearing from time to time.
  2. 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 which shall be mailed to, or personally served upon, the party requesting the hearing, any other parties upon whom the notice was served, and the Enforcement Officer.

F. The decision of the Hearing Officer shall be final and conclusive.

Ordinance Section Four:

Section 8.01.250 of the Sierra County Code, Regarding Misdemeanor Penalty, is hereby deleted.

Ordinance Section Five:

Chapter 8.02 Regarding Administrative Penalties for Public Nuisances Created by Cultivation of Medical Marijuana in Violation of Chapter 8.01 of the Sierra County Code, is hereby added to read:

Chapter 8.02 Administrative Penalties for Public Nuisances Created by Cultivation of Medical Marijuana in Violation of Chapter 8.01 of the Sierra County Code

8.02.010 Effect

The provisions of this Chapter are adopted pursuant to the authority contained in Government Code Section 53069.4 and are in addition to and shall take precedence over any other provisions of the Sierra County Code with respect to any violation of Chapter 8.01 regulating to Marijuana activities within the unincorporated territory of the County and nothing shall prevent the immediate issuance of a citation pursuant to this Chapter 8.02, with or without a notice of order of abatement upon confirmation of a violation of Chapter 8.01.

8.02.020 Purpose of Administrative Penalties on Public Nuisance

  1. This Chapter is adopted to achieve the following goals:
    1. To protect the public health, safety and welfare of the communities and citizens in the County of Sierra;
    2. To provide a method to penalize responsible parties who fail or refuse to comply with Medical Marijuana Cultivation provisions of the Sierra County Code (ordinances); and
    3. To minimize the expense and delay which may otherwise occur if the County pursues violations by responsible parties in the civil or criminal justice system.
  2. The procedures established in this Chapter shall be in addition to any applicable criminal, civil or other legal remedies established by law and available to address violations of State law and/or violations of the Sierra County Code (hereinafter, “County Code” or “Code”).

C. Notwithstanding any other provision of this Code, whenever an act, event or condition results in violation of Chapter 8.01 of this Code, the procedures set out in this Chapter may be used to impose an administrative penalty on violators.

8.02.030 Definitions

As used in this chapter:

A. “Citation” or “administrative citation” means a civil citation issued pursuant to this Chapter stating that there has been a violation of one or more provisions of Chapter 8.01 of this code and setting the amount of the administrative penalty to be paid by the responsible party.

  1. “Days” means calendar days.
  2. “Enforcement Officer” or “Official” means the Building Official, Code

Enforcement Officer, Sheriff or designee, or any other individual designated by the Board of Supervisors to enforce and administer the provisions of this Chapter and/or Chapter 8.01 of the Sierra County Code.

D. “Responsible Party” means an individual, association, co-partnership, political subdivision, government agency, municipality, industry. public or private corporation, firm, organization, partnership, joint venture or any other entity whatsoever whose action or actions caused or contributed to violations of codes specified in this chapter.

E. “Year” means three-hundred and sixty-five (365) days.

8.02.040 Administrative Penalty

A. Any Responsible Party violating any provision of Chapter 8.01 of this Code may be issued an administrative citation by a Enforcement Officer designated by the Board of

Supervisors in accordance the provisions established by this Chapter. The administrative citation shall impose a penalty/fine for each and every Marijuana Plant cultivated in violation of Chapter 8.01 shall be: (1) One Thousand Dollars ($1,000) per plant; plus (2) One Hundred Dollars ($100) per plant per day the plant remains unabated past the abatement deadline set forth in the notice of abatement order.

B. Each and every day a violation of the provisions of the code exists constitutes a separate and distinct offense and shall be subject to citation.

C. The Enforcement Officer may issue a citation for a violation not committed in the Official’s presence, if the Official has determined through investigation that the responsible party did commit or is otherwise responsible for the violation.

8.02.050 Procedures

  1. The administrative citation shall be issued on a form containing:
    1. The name and address of the property owner(s), as such persons’ names appear on the last equalized assessment roll, any lessees and responsible parties and the physical address of the property or location where the violation exists or occurred;
    2. A statement of the acts, events or conditions which resulted in a violation of the Code, including a reference to the appropriate title and chapter and the date of occurrence of the violation(s) included within the citation;
    3. The amount of the administrative penalty imposed by the citation;
    4. A statement explaining how, where, to whom, and within what number of days the penalty shall be paid;
    5. Identification of appeal rights, including the time within which the administrative citation may be contested and how to contest the citation; and
    6. The signature of the Official issuing the citation along with the date of issuance of the citation.
  2. The administrative citation shall be served upon the owner of the real property, the lessee

and any other responsible party. Failure of the Enforcement Officer to serve any party as required in this section shall not invalidate any provisions of this Chapter.

C. Service of an administrative citation may be made upon the parties either by personal delivery or by first class mail postage prepaid, return receipt requested, and shall be deemed completed when it is served to the address of record of the responsible party.

D. In lieu of personally serving the parties by personal delivery or first class mail postage prepaid, service of the administrative citation and any amended or supplemental citation may be made by substituted service, and may be accomplished as follows:

  1. By leaving a copy during usual business hours with the person who is apparently in charge at the recipient’s place of business, and by thereafter mailing by first class mail postage prepaid a copy to the recipient at the address where the copy was left, or
  2. By leaving a copy at the recipient’s dwelling or usual place of abode, in the presence of a competent member of the household, and thereafter mailing by first class mail postage prepaid a copy to the recipient at the address where the copy was left; or
  3. In the event the party cannot be served by first class mail postage prepaid, or cannot be personally served and has a property manager or rental agency overseeing the parcel, substituted service may be made as set forth above in subsection (1.) of this section upon the property manager or rental agency; or
  4. Substitute service may be effected by posting the property with the administrative citation and mailing .a copy of the citation by first class mail postage prepaid to the party in violation at the address of the property where the violation exists; or
  5. If the party cannot be located or service cannot be effected as set forth in this section, service may be made by publication in a newspaper of general circulation.

E. Failure of any party to receive such administrative citation shall not affect the validity of any proceedings taken under this section against any other party. Service by first class mail postage prepaid in the manner provide in this section shall be effective on the date of mailing.

8.02.060 Appeal of Citation

A. A person served with an administrative citation issued pursuant to this Division may file an appeal, with the Sierra County Clerk, within twenty (20) calendar days from the date of service of the administrative citation. The time requirement for filing an appeal with the County Clerk shall be deemed jurisdictional and may not be waived. If no timely appeal is filed, the administrative citation and fees set forth therein is final. The following provisions shall apply to the filing of any appeal:

  1. The appeal shall be made in writing on the form to be provided by and available from the County Clerk, and shall include both a mailing address at which the appellant agrees to accept service of notice as well as such other information as required by the form, including a brief statement as to the basis for the appeal. Failure to provide the information required by the appeal form shall constitute a waiver of the right to an appeal and a basis for summary denial of the appeal.
  2. Upon the filing of a proper appeal, payment of any fines shall be suspended pending the outcome of the appeal.
  3. Upon receipt of a timely and properly filed appeal, the County Clerk shall assign a Hearing Officer and set an appeal. The County Clerk shall appoint a Hearing Officer from a list of individuals, as established by the County, who are available to serve as Hearing Officers, and shall direct the scheduling of an appeal hearing before the selected Hearing Officer. Hearing Officers shall be current or former members of the California State Bar. It is the goal to have appeals heard in an expeditious manner within forty-five (45) days from the receipt of the appeal.

4. Written notice of the date, time and place of the hearing shall be served on the person appealing the administrative citation at least twenty (20) calendar days prior to the date of the hearing by personal service or by first class mail, postage prepaid, including a copy of the certificate of mailing. Service shall be deemed effective upon either personal service on the individual or entity or by depositing the notice in the mail, first class.

B. The appeal hearing shall be conducted pursuant to the following procedures:

  1. The Enforcement Officer issuing the administrative citation or the Appellant may request and shall be granted a continuance of the appeal hearing once without prejudice for a period not to exceed twenty-eight (28) days provided, however, that the request for such continuance shall only be effective if made no less than five (5) full days (120 hours) in advance of the appeal hearing. All requests shall be made in writing by facsimile or e-mail to the Hearing Officer, with a copy to the County Clerk, and the Hearing Officer shall immediately notify the parties to the appeal of the continuance and the rescheduled hearing date. Any additional continuance may be authorized by the Hearing Officer only upon a showing of good cause by the party requesting the continuance or due to Hearing Officer’s schedule.
  2. The appeal hearing shall be heard either at the Sierra County Courthouse, or at such other location directed by the Hearing Officer with the agreement of the parties.
  3. No person shall serve as a Hearing Officer if that person has a direct conflict of interest as defined in Government Code section 87100. If a Hearing Officer becomes aware of such a conflict after being so appointed, the Hearing Officer shall promptly notify the County Clerk in order to allow for the appointment of a new Hearing Officer.
  4. No party shall submit any evidence or written briefs prior to the hearing, nor shall there be any ex parte communication between the hearing officer and either the Appellant or the Enforcement Officer. The decision of the Hearing Officer shall be based solely on the evidence presented at the hearing.
  5. Prior to receiving any oral testimony, the Hearing Officer shall administer an oath, and all testimony shall be made under penalty of perjury.
  6. At the request of the appellant the testimony and oral presentation shall be preserved verbatim either by electronic or stenographic recording. The Appellant shall be responsible for the cost incurred by the County to make any such recording of the appeal and for any transcription that may thereafter be requested or required.
  1. All exhibits and other matter introduced and admitted at the appeal hearing shall be duly marked and upon issuance of a written decision the Hearing Officer shall thereafter promptly transmit same to the County Clerk as a part of the record of the hearing.
  2. The Hearing Officer shall set the order of presentation of evidence by the parties as well as time limits upon the presentation of evidence and argument. If no time limit is set, the time limit shall be thirty (30) minutes for Appellant, including Appellant’s witnesses and thirty (30) minutes for the Enforcement Officer, including any witnesses. If additional time is extended for either party, then equal time shall be extended to the other party. In addition to the presentation of any oral testimony, all parties shall be entitled to introduce relevant written documents into evidence.

C. At the conclusion of the hearing the Hearing Officer shall, based on the evidence submitted at the hearing determine whether the person receiving the administrative citation committed, maintained, or permitted a violation(s) of the Sierra County Code. The decision of the Hearing Officer and reasons therefore shall be set out in a brief written statement.

D. The decision of the Hearing Officer shall be subject to judicial review pursuant to the provisions of Section 53069.4 of the Government Code, if and only if an appeal is timely filed with the Sierra County Superior Court Clerk, together with the applicable appeal fee, within twenty (20) days after service of the decision of the hearing officer by first class mail, postage prepaid, including a copy of the affidavit or certificate of mailing. Any person filing an appeal shall serve a copy of the notice of appeal in person or by first class mail on the Board with a copy to the Sierra County Clerk. Within fifteen (15) days from a request from the Court, the County Clerk shall forward to the Court the file of the hearing, together with the notice of violation of the code, the notice of code violation hearing before a Hearing Officer, and the decision of the Hearing Officer. If an appeal is not timely filed in accordance with this subsection, all persons are barred from commencing or prosecuting any such action or proceeding or asserting any defense of invalidity or unreasonableness of such decision, proceedings, determinations or actions taken. The failure of a responsible party to appear at an appeal hearing shall constitute a failure to exhaust administrative remedies which may be asserted in any subsequent legal action contesting administrative citation and the levying of the administrative penalty.

E. Neither imposition nor payment of an administrative penalty shall relieve the responsible party from his/her obligation to correct the violation, nor shall it bar further enforcement action by the County.

8.02.080 Payment and Collection

A. In the event the responsible party fails to pay the administrative penalty when due, the County may take any actions permitted by law or ordinance to collect the unpaid penalty, which shall accrue interest at the legal rate of judgment interest in the State of California, commencing thirty (30) days after the administrative penalty becomes due and continuing until paid.

B. In the event a civil action is commenced to collect the administrative penalty, the County shall be entitled to recover all costs associated with the enforcement, investigation, establishment and collection of the penalty. Costs include, but are not limited to, staff time and costs incurred in the enforcement, investigation, establishment and the collection or processing of the penalty and those costs set forth in Code of Civil Procedures Sections 685.010 et seq. and as may otherwise authorized by this Code.

C. The amount of any unpaid administrative penalty, plus any other costs as provided in this Chapter, may be declared a lien on real property owned by the responsible party within the County as follows:

  1. Notice shall be given to the responsible party prior to the recordation of the lien, and shall be mailed first class mail postage prepaid to the last known address;
  2. When the Enforcement Officer records a lien listing delinquent unpaid administrative penalties with the County Recorder’s office, the lien shall specify the amount of the lien, the date of the code violations, the date of the final administrative decision, the street address, legal description, and assessor’s parcel number of the parcel on which the lien is imposed, and the name of the owner of the parcel according to the last equalized assessment roll; and
  3. In the event that the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge and release of the lien shall be prepared by the Enforcement Officer.

D. The amount of the unpaid administrative penalty, plus any other costs as provided by this Chapter, may be declared a special assessment against any real property owned by the responsible party and located within the County. The Board of Supervisors may impose the special assessment on one (1) or more parcels. The amount of the assessment shall not exceed the amount of administrative penalty imposed for the violation, plus any cost authorized by other chapters of this Code. The Enforcement Officer may present a resolution to the Board of Supervisors to declare a special assessment, and, upon passage and adoption thereof, shall cause a certified copy to be recorded with the Sierra County recorder’s office. The assessment may then be collected at the same time and in the same manner as ordinary taxes are collected, and shall be subjected to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary property taxes.

E. The County may withhold issuance of licenses, permits and other entitlement for any property whenever an administrative penalty resulting from a code violation on that property remains unpaid or the owner of the property has outstanding, unpaid administrative penalties for violations of the Code.

F. The County may take any action permitted for enforcement of a civil money judgment pursuant to the Enforcement of Law, California Code of Civil Procedure Section 680.010 et seq.”

Ordinance Section Six

Severability

If any section, subsection, sentence, clause, portion, or phrase of this Ordinance is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The Board of Supervisors hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause, portion, or phrase hereof, including the irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid or unconstitutional. (Ord. 1055, eff. 8/21/14)

Ordinance Section Seven

This ordinance shall take effect thirty (30) days after its passage. Before the expiration of fifteen (15) days after passage of this ordinance, it shall be published once with the names of the members of the Board of Supervisors, voting for and against the ordinance in The Mountain Messenger, a newspaper of general circulation published in the County of Sierra, State of California.

Introduced at a regular meeting of the Board of Supervisors held on the 5th day of April, 2016, and passed and adopted by the Board of Supervisors of the County of Sierra, State of California, on the 19th day of April, 2016, by the following roll call vote, to-wit:

AYES: Supervisor NOES: Supervisor ABSTAIN: ABSENT:

COUNTY OF SIERRA

LEE ADAMS
CHAIRMAN, BOARD OF SUPERVISORS

ATTEST:

HEATHER FOSTER CLERK OF THE BOARD

APPROVED AS TO FORM:

CHRISTIAN M. CURTIS DEPUTY COUNTY COUNSEL

3/23/2016