§ 34A-2. Findings and purpose.
(a)
In 1996, the voters of the State of California approved Proposition 215 (codified as California Health and Safety Code section 11362.5, and entitled "The Compassionate Use Act of 1996").
(b)
The intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to use it without fear of criminal prosecution under limited, specified circumstances. The Proposition further provides that "nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes." The ballot arguments supporting Proposition 215 expressly acknowledged that "Proposition 215 does not allow unlimited quantities of marijuana to be grown anywhere."
(c)
In 2004, the Legislature enacted Senate Bill 420 (codified as California Health and Safety Code sections 11362.7 et seq.) to clarify the scope of Proposition 215, and to provide qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes with a limited defense to certain specified State criminal statutes.
(d)
Health and Safety Code section 11362.83 expressly allows Cities and Counties to adopt and enforce ordinances that are consistent with Senate Bill 420.
(e)
The Federal Controlled Substances Act, 21 U.S.C. §§ 801 et seq., classifies 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, 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 geographic and climatic conditions, which include dense forested areas receiving substantial precipitation, along with the sparse population in many areas of the County, provide conditions that are favorable to outdoor marijuana cultivation. Outdoor 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 two hundred thirty-six (236) grams, or about one-half (0.5) pound, to eight hundred forty-six (846) grams, or nearly two (2) pounds. Based on Butte County Sheriff's seizures, yields in Butte County have tended to be beyond this range with three (3) to four (4) pounds of dried "bud" per plant being common. The "street value" of a single cannabis plant is substantial. Pound prices for domestically produced high-grade cannabis sold illegally within Northern California can range between one thousand five hundred dollars($1,500.00) to three thousand dollars ($3,000.00). A single marijuana plant cultivated within the County can thus easily yield four thousand dollars ($4,000.00) or more in salable 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 Butte County can adversely affect the health, safety, and well-being of the County, its residents and environment. Comprehensive civil regulation of premises used for 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, and that 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 (1) place.
(h)
Cultivation of marijuana at locations or premises within six hundred (600) feet of school bus stops or one thousand (1,000) feet of schools, school evacuation sites, churches, parks, child care centers, or youth-oriented facilities creates unique risks that the 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 plants.
(i)
Public meetings regarding previous cultivation ordinances were well-attended by hundreds of Butte County residents. The majority of those present spoke out against the adoption of the proposed ordinance, Ordinance 4029. However, many residents who live on smaller parcels in more densely populated areas indicated that during the marijuana cultivation season, the overpowering unpleasant smell of marijuana resulted in their inability to use their yards and required them to keep windows and doors shut in the stifling summer heat. Residents stated that they could not invite friends to their home to visit, barbecue outdoors or even allow their children to play in the backyard. Other residents indicated that the use of a swamp cooler during the summer months would actually result in the stench of marijuana being sucked into the residence. Adults and children with respiratory problems were particularly affected. Residents reported that marijuana grown in residential backyards results in an invitation to criminal activity for persons who would steal marijuana plants out of backyards. Some marijuana growers would live in a tent in their backyard, carrying firearms and utilizing guard dogs to protect their marijuana plants. Residents reported they were uncomfortable allowing their children to play outside in their neighborhood due to such dangerous activity. Cultivators of medical marijuana stated that they would not grow medical marijuana at their own residence to protect their children. For this reason, the growth of medical marijuana on smaller parcels is especially dangerous to the community, particularly children.
(j)
As recognized by the Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, the cultivation or other concentration of 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. The Butte County District Attorney's Office has indicated that there has been an increase in crime/felonies involving marijuana. The Butte County Sheriff's Office has indicated that over one hundred fifty (150) calls for service in the past year have involved marijuana, including assaults and an attempted homicide.
(k)
It is the purpose and intent of this Chapter to implement State law by providing a means for regulating the cultivation of medical marijuana in a manner that is consistent with State law and which balances the needs of medical patients and their caregivers and promotes the health, safety, and welfare of the residents and businesses within the unincorporated territory of the County of Butte. This Chapter is intended to be consistent with Proposition 215 and Senate Bill 420, and towards that end, is not intended to prohibit persons from individually, collectively, or cooperatively exercising any right otherwise granted by State law. Rather, the intent and purpose of this Chapter is to establish reasonable regulations upon the manner in which 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, welfare and environment in Butte County.
(l)
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 Chapter, 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 Butte County.
(m)
The purpose of this Chapter is to provide a structure for a complaint-driven civil process to remedy nuisances related to medical marijuana cultivation.
(n)
The Board of Supervisors adopted Ordinance 4029 on May 24, 2011. A successful referendum campaign was conducted against Ordinance 4029, which resulted in Ordinance 4029 being placed on the ballot for the regular County election held on June 5, 2012. At the election, Butte County voters failed to approve Ordinance 4029. By adopting this Chapter, the Board of Supervisors intends to reach a compromise between the interests of qualified patients who need access to medical marijuana and those who are adversely affected by its cultivation.
(o)
Nothing in this Chapter 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 Chapter shall be deemed a defense or immunity to any action brought against any person by the Butte County District Attorney, the Attorney General of State of California, or the United States of America.
(p)
County staff has reported discovering many marijuana gardens without any person responsible for the property on site. Issues arising from unattended marijuana gardens, such as illegal camping associated with cultivation, abuse of experimental well permits and interim or non-permitted sewage disposal systems have been reported by County staff. Thirteen (13) lawsuits involving illegal grading have been filed by the County and in each case there is no legal residence on the property. The Board has repeatedly made very clear that it is their expectation and requirement that all cultivation activities be conducted with the upmost care, attention, oversight, protection and management possible. Requiring cultivation to take place in conjunction with the patient/caregiver/co-op grower's residence, in all circumstances, is a reasonable means by which to ensure cultivation is being done in line with those expectations and legal requirements throughout the growing season. Requiring cultivation in conjunction with a residence also supports the fundamental principle that cultivation in Butte County is to be done by, and for, Butte County residents, and is not meant for temporary or transient cultivation activities.
(q)
The original enforcement provisions, which were limited to nuisance abatement and relatively low civil penalties, are not adequate deterrents to violation. After a certain point in the growing season, the current fine amounts are insufficient to properly incentivize compliance. If the ultimate value of non-compliance exceeds the value of compliance, the choice will generally be to continue non-compliance. Higher penalty amounts could result in a reassessment of that choice.
(r)
The revised provisions contained in this chapter are intended to address the aforementioned concerns, and more effectively control the harms caused by unregulated and noncompliant marijuana cultivation, while still accommodating the needs of medical patients and their caregivers to the greatest extent practicable.
(s)
In 2015, the California Legislature enacted Senate Bill 643, along with Assembly Bills 243 and 266, which, among other things, established the Medical Marijuana Regulation and Safety Act (codified as California Business and Professions Code sections 19300 et seq.). Business and Professions Code section 19315(a) provides that "Nothing in this chapter shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements."
(t)
Following the passage of the Medical Marijuana Regulation and Safety Act, an increasing number of individuals and businesses began offering mobile delivery of marijuana to customers in the unincorporated areas of Butte County, as evidenced by advertisements online and in local publications, such as the Chico News & Review.
(u)
On November 8, 2016 Californians voted to legalize the non-medical use of marijuana via Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act ("AUMA"). AUMA creates a state regulatory and licensing system that governs the commercial cultivation, testing and distribution of non-medical marijuana, and the manufacturing of non-medical marijuana products. However, AUMA authorizes local jurisdictions to completely prohibit the establishment or operation of any non-medical marijuana business within its jurisdiction.
(v)
On June 27, 2017 Governor Brown signed into law Senate Bill 94, which provides a single regulatory structure for commercial activities involving both medical and non-medical marijuana. The unified structure repeals the collective/cooperative model, and establishes a strict licensing scheme, whereby all commercial marijuana activities, including retail sales and deliveries, are required to be conducted between licensees.
(w)
In January of 2018 the State of California will begin issuing licenses for various commercial activities, including cultivation, nurseries, manufacturing, testing, and retail sales and deliveries. However, SB 94 allows local jurisdictions to adopt and enforce ordinances that either regulate those commercial businesses to be licensed by the state, or completely prohibit the establishment or operation of any or all commercial activities within their local jurisdictions.
(x)
It is also the purpose and intent of this Chapter to regulate commercial activities involving medical marijuana in a manner that is consistent with state law, and that promotes the health, safety, and general welfare of the residents and businesses located within the unincorporated areas of Butte County.
(Ord. No. 4051, § 1, 2-26-13; Ord. No. 4073, § 1, 120-10-13; Ord. No. 4107, 1-26-16 ; Ord. No. 4136 , § 2, 10-24-17)