Agenda Item

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CITY OF YUBA CITY STAFF REPORT
Date: To: From: Presentation By: Summary Subject: Adoption of an Interim Urgency Ordinance enacting development standards/restrictions f or medical marijuana cultivation. Adopt an Interim Urgency Ordinance that enacts development standards/restrictions for medical marijuana cultivation as show n on Exhibit A. The cost of regulating marijuana cultivation has not been determined; the cost of registration w ould be nominal and t he cost of enforcement w ould be dependent on the level of enforcement required. March 6, 2012 Honorable Mayor & Members of the City Council Administration Steven R. Jepsen, City Manager

Recommendation:

Fiscal Impact:

Purpose: To establish standards and restrictions for the cultivation of medical marijuana. Background: Currently, the City of Yuba City has no restrictions in place regarding the cultivation of marijuana w it hin the City limits. Legal restrictions on the grow ing and possession of marijuana have relaxed over the last few years. The number of plants allow able for cultivation has changed from 6 plants, to 12 plants, or any number of plants justifiable based on individual patient need. Courts have been very generous in t heir interpretation of this issue, often deferring to patient’ s rights/needs to grow any number of plants to be justified by personal consumption. Medical marijuana w as first approved by California voters in 1996 w it h the passage of t he Proposition 215, “ Compassionate Use Act” . To help clarify issues related to Proposition 215, the California Legislature passed Senate Bill 420 in 2004 to provide patients and caregivers, w ho collectively or cooperatively grow marijuana for medical purposes, defense limitations by establishing limits for cultivation and possession of marijuana. Although allow ed by California law , the cultivation, possession, use and/or sale of marijuana remains a crime under the Federal Law “ Controlled Substances Act” . The issue of marijuana cultivation w as brought before the City Council on August 16, 2011 by concerned residents of Yuba City. A petition w as presented at this meeting

Agenda Item

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requesting that the City Council develop an ordinance to “ ban” (prohibit) marijuana cultivation w ithin Yuba City limits. Stakeholder Meetings The City Council direct ed the City Manager to look into the issue of medical marijuana cultivation in some depth w ith the intent to meet w ith stakeholders, develop a range of alternatives consistent w ith other jurisdictional ordinances in Calif ornia, and return to the Council for further discussion and public input. Councilmember John Buckland w as assigned as liaison to the City Manager on this issue. Four Workshop meetings have been held w ith Medical Marijuana Cultivation stakeholders: 1) December 13, 2011 the first Public Workshop w as held in front of the City Council. 2) January 10, 2012 a Workshop meeting w as held focusing primarily on proponents. 3) January 12, 2012 a Workshop meeting w as held focusing primarily on opponents. 4) February 27, 2012 an additional Workshop w as held in front of the City Council to review and comment on staff recommendations and alternatives. Analysis: If the cultivation of Marijuana in Yuba City is going to be allow ed it needs to both ferret out the existing abuses and address the concerns of those w ho are negatively impacted. As such Proposition 215 and SB 420 do not supersede Federal law – rather they provide a process for the cultivation of marijuana for medical purposes. The law s and the courts allow local jurisdictions to adopt regulations that control the manner in w hich marijuana is grow n or to even ban the grow ing of marijuana as necessary to protect the safety and w elfare of the community. The cultivation of marijuana for individual use can be restricted by local law s w ith supportable findings. The enforcement of such law s w ould be either through normal law enforcement channels or through a compliant driven code enforcement /citation process. Although t here is an acknow ledge benefit to patients of need; the negative issues marijuana grow ing need to be addressed and mitigated. The identifiable and real issues continue to focus primarily on public safety and odor. The follow ing issues and alternatives w ere discussed and considered in the formation of the Medical Marijuana Ordinance for Yuba City. • Safety The value of the marijuana plants is such that extreme measures have been used to protect backyard crops. This in turn raises the potential for violent confrontation(s) and is a particular concern in the attractiveness of the crop for both recreational users and others looking to benefit from the cash value of t he plants.

Personal safety is also an issue as home invasions and robberies have increased in relationship to backyard marijuana grow th in the community. Increased police response is necessary to address safety and theft issues related to marijuana grow th in some Yuba City neighborhoods. The elimination of grow ing opportunities through prohibition w ould also eliminate the safety issues associated w ith cultivation. Other restrictions such as limiting the size, visibility and outdoor odor of marijuana crops w ould lessen enforcement issues. • Odor The smell of the mature marijuana plant is best described as a sw eet ‘ skunkish’ odor. Mature marijuana plants flow er for up to tw o months, producing an extremely strong odor. This odor is noted by many residents as offensive and detectable w ell beyond property boundaries of the cultivation’ s residence. The only w ay to effectively eliminate odor w ould be through the limit ing marijuana cultivation in Yuba City to indoor and/or greenhouse spaces w it h mechanical air ventilation/filtration. How ever, the use of indoor grow lights could pot entially create a secondary issue of fire safety w ithout limitations on electrical usage. • Diminished Property Values – The impact of marijuana cultivation related to t he issue of smell likely diminishes the value of adjacent property for sale next to a marijuana cultivation property or could potentially reduce the pool of buyers available to purchase the property if marijuana grow w as properly disclosed. Visibility The visibility of marijuana plants from the st reet raises the possibility of theft or related property crimes in the immediate vicinity. Obvious solutions w ould be those that eliminate the visibility of marijuana cultivat ion from the street. Plant Numbers Cooperative cultivation has, in many cases, placed a large number of plants on small parcels in the community. In other cases it appears that the number of plants likely exceeds the amount of medical marijuana that any one individual could consume either through smoking or oral consumption. Possible solutions w ould limit the number of mature plants and/or size of the cultivation area. Proximity Distance betw een budding marijuana plants and adjacent homes may exacerbate related issues noted above. Setback restrictions and limitations on distances betw een cultivations and adjacent homes w ill help minimally but w ill not eliminate the odor issues. In addition, the proximity of marijuana grow s to areas w ere youth congregate provide not only an attractive nuisance but also exposes youth unnecessarily to criminal impacts.

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Noise – The drying of plants to protect them from mold, mildew or other w eather conditions has been noted as a continuous noise problem w ith commercial fans operating 24 hours a day for extended periods of time. Restrictions on noises related to mechanical devises to dry, heat or circulate air w ould need to be addressed w ith either out door or greenhouse cultivation. Zoning – Consideration of marijuana cultivation only considers the use of residentially zoned properties for the purpose of this discussion. It is assumed that commercial level marijuana cultivation w ould remain prohibited in all zoning designations in Yuba City. If commercial or collective grow s are found acceptable by state or case law such grow s should be individually considered t hrough a conditional use process. Registration Marijuana cultivation registration should be required to assure local authorities know of cultivation locations in advance of response needs and to ensure proper verification of; Doctors authorization for procession, location and description of grow , property ow ners know ledge of grow , and right of entry for verification purposes.

The urgency ordinance process temporarily allow s the City to ensure that no new outdoor medical marijuana grow s are established and that all future grow s are done in accordance w ith the proposed standards and restrictions w hich are aimed at reducing t he conflicts associated w ith the cult ivation of medical marijuana. Urgency ordinances of this type are authorized by Government Code Section 65858 w hich allow s a city to adopt as an urgency measure, an interim ordinance prohibiting a use that may be in conflict w ith a general plan, specific plan, or zoning proposal that a city is considering. Ordinances of this type require a 4/5 vote and are initially valid for 45 days, but can be extended by another 4/5 vote by the Council. In accordance w ith Government Code Section 65858(f) the City Council can adopt a second interim ordinance for the same purpose if additional time is needed for the completion of t he permanent ordinance in order to continue to prot ect the public health, safety, and w elfare. Fiscal Impact: The cost of regulating marijuana cultivation has not been determined; the cost of registration w ould be nominal and the cost of enforcement w ould be dependent on the level of enforcement required. Alternatives: The City Council may take the following action(s): 1. Adopt the interim ordinance imposing restrictions on the cultivation of medical marijuana.

2. 3.

Decline to adopt the Interim Ordinance imposing restrictions on the cultivation of medical marijuana. Provide staff with further direction.

Recommendation: Adopt an Interim Urgency Ordinance that enacts development standards/restrictions for medical marijuana cultivation as show n on Exhibit A.

Prepared By:

/s/ Steven R. Jepsen
Steven R. Jepsen City Manager

Review ed By: Finance City Attorney Community Development _____________ TH AB

Exhibits A. Interim Urgency Ordinance

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Exhibit A ORDINANCE NO. _______ AN INTERIM URGENCY ORDINANCE OF THE CITY OF YUBA CITY ENACTING DEVELOPMENT STANDARDS/RESTRICTIONS FOR MEDICAL MARIJUANA CULTIVATION.

THE CITY COUNCIL OF THE CITY OF YUBA CITY DOES ORDAIN AS FOLLOWS: WHEREAS, California Government Code, Section 65850 (a) and (c) (4) provides the authority for the City of Yuba City to regulate, by ordinance, the uses of land and the intensity of land use; and WHEREAS, the City of Yuba City’s land use regulations in its Municipal Code do not currently permit the cultivation of marijuana for any purposes; and WHEREAS, the State of California approved Proposition 215 "The Compassionate Use Act of 1996" (Health and Safety Code Section 11362.5), which provided certain criminal defenses to the cultivation, possession and use of marijuana by persons who are in need of marijuana for medical purposes; and WHEREAS, the State also enacted SB 420 in 2004 (Health and Safety Code Section 11362.7 et seq.) to clarify the scope of The Compassionate Use Act to allow local governing bodies to adopt and enforce rules and regulations consistent with SB 420; and WHEREAS, under the Controlled Substances Act, the use, possession and cultivation of medicinal marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need; and WHEREAS, marijuana plants, as they begin to flower and for a period of two months or more during the growing season (August through October for outdoor cultivation), produce an extremely strong odor, offensive to many people, and detectable far beyond property boundaries; and WHEREAS, the City has continually received complaints of odor related to the growing of medicinal marijuana; and WHEREAS, in the case of multiple qualified patients who are in control of the same legal parcel, or parcels, of property, or in the case of a caregiver growing for numerous patients, a very large number of plants could be grown on the same legal parcel, or parcels, within the City of Yuba City; and WHEREAS, the possession and cultivation of large quantities of marijuana has resulted in the armed robberies of residents living in nearby communities and residential areas in Yuba City; and

WHEREAS, the strong smell of marijuana creates an attractive nuisance, alerting persons to the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery; and WHEREAS, it is the purpose and intent of this ordinance to implement state law by providing a means for regulating the cultivation of medicinal marijuana in a manner that is consistent with state law and balances the needs of medical patients and their caregivers and promotes the health, safety, morals and general welfare of the residents and businesses within the City of Yuba City. Nothing in this ordinance shall be constructed to allow the use of marijuana (cannabis) for non-medical purposes, or allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal; and WHEREAS, the potential adverse secondary effects of allowing the cultivation of medical marijuana presents a clear and present danger to the immediate preservation of the public peace, health, and safety of the community because currently the City has no rules or regulations governing the cultivation of medical marijuana; and WHEREAS, it is the purpose and intent of this ordinance is to ensure that marijuana grown for medical purposes remains secure and does not find its way to nonpatients or illicit markets; and WHEREAS, it is the purpose and intent of this ordinance to help law enforcement agencies perform their duties effectively and in accordance with California law; and WHEREAS, the cultivation of marijuana within a residence has potential adverse effects to the structural integrity of the residence and the use of high wattage grow lights within a residence increases the chances of a fire which presents a clear and present danger to the occupants; and WHEREAS, The indoor cultivation of substantial amounts of marijuana also requires excessive use of electricity, which often creates an unreasonable risk of fire from the electrical grow lighting systems used in indoor cultivation; and WHEREAS, Areas surrounding schools attract large numbers of juveniles and the cultivation of any amount of marijuana at locations or premises within 1,000 feet of a school makes the site 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; and WHEREAS, The Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use recognizes that 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.

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WHEREAS, pursuant to Section 65858 of the California Government Code, to protect the public safety, health, and welfare, a City Council may adopt as an urgency measure an interim ordinance prohibiting land uses that may be in conflict with a contemplated General Plan, Specific Plan, or Zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time; and, WHEREAS, the City Council of the City of Yuba City wishes to implement new development standards and restrictions for the cultivation of medical marijuana to ensure compatibility between this use and surrounding properties within the city so that the public health, safety, or welfare, is protected, and the market values and aesthetic and visual qualities of the city are protected from impairment. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF YUBA CITY DOES ORDAIN AS FOLLOWS: Section 1: Finding, Declaration of Urgency The City Council of the City of Yuba City hereby finds and declares that there is a need to enact an interim urgency ordinance establishing new definitions and development standards/restrictions for the cultivation of medical marijuana citywide. The potential adverse secondary effects of allowing the cultivation of medical marijuana presents a clear and present danger to the immediate preservation of the public peace, health, and safety of the community because currently the City has no rules or regulations governing the cultivation of medical marijuana. Without specific definitions and development standards/restrictions, the cultivation of medical marijuana could be grown without restriction which could have potential adverse effects on surrounding areas and result in potential public safety and nuisance impacts, and present a clear and immediate threat to the public health, safety, and welfare. Failure to enact this urgency ordinance may result in irreversible change to the welfare of the community. Based on the foregoing, the City Council does hereby declare this urgency ordinance is necessary to protect the public health, safety, and welfare while considering revisions to the Zoning Code.

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Section 2: Article 54, Chapter 5, Title 8 “Medical Marijuana Cultivation” is hereby added to the Yuba City Municipal Code to incorporate the following provisions: CHAPTER 5 TITLE 8 ARTICLE 54 MEDICAL MARIJUANA CULTIVATION Sections: 8-5.5405 8-5.5410 8-5.5415 8-5.5420 8-5.5425 8-5.5430 8-5.5435

Purpose and Intent Definitions Cultivation of Medical Marijuana Regulations Cultivation Registration Violation Enforcement Remedies and penalties not exclusive

8-5.5405 Purpose and Intent It is the purpose and intent of this Article to require that medical marijuana be cultivated only in appropriately secured, enclosed, and ventilated structures, so as not to be visible to the general public, to provide for the health, safety and welfare of the public, to prevent odor created by marijuana plants from impacting adjacent properties, and to ensure that marijuana grown for medical purposes remains secure and does not find its way to non-patients or illicit markets. Nothing in this chapter is intended to impair any viable legal defense available to a person using or in possession of medical marijuana pursuant to the Compassionate Use Act (Health and Safety Code Section 11362.5) or the Medical Marijuana Program Act (Health and Safety Code Section 11362.7 et. seq.) Nothing in this chapter is intended to authorize the cultivation, possession, or use of marijuana for non-medical purposes in violation of state or federal law. 8-5.5410 Definitions For the purposes of this Article, the following definitions shall apply, unless the context clearly indicates otherwise. If a word is not defined in this chapter, the common and ordinary meaning of the word shall apply. A. Reserved for future use. B. “B” Definitions. 1. “Bedroom:” A room inside a residential building being utilized by any person for sleeping purposes. C. “C” Definitions. 1. “Child Care Center:” Any licensed child care center, daycare center, or childcare home, or any preschool. 2. “Cultivation:” The planting, growing, harvesting, drying, or processing of marijuana plants or any part thereof for medical use consistent with the Compassionate Use Act (Health and Safety Code Section 11362.5) or the Medical Marijuana Program Act (Health and Safety Code Section 11362.7 et. seq.).

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D. “D” Definitions. 1. “Detached, fully-enclosed and secure structure:” A building completely detached from a residence that complies with the Yuba City Building/Zoning Code and has a complete roof enclosure supported by connecting walls extending from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments, is secure against unauthorized entry, and is accessible only through one or more lockable doors. E. Reserved for future use. F. Reserved for future use. G. Reserved for future use. H. Reserved for future use. I. “I” Definitions. 1. “Indoors:” Within a fully enclosed and secure building. J. Reserved for future use. K. Reserved for future use. L. “L” Definitions. 1. “Legal parcel:” Any parcel of real property that may be separately sold in compliance with the Subdivision Map Act (Gov’t Code §§ 66410 et. seq.). M. Reserved for future use. N. Reserved for future use. O. “O” Definitions. 1. “Outdoor:” Any location within the City that is not within a fully enclosed and secure structure. P. “P” Definitions. 1. “Premises:” A single, legal parcel of property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall constitute a single “premises” for purposes of this chapter. 2. “Primary caregiver:” A “primary caregiver” as defined in Health and Safety Code section 11362.7(d). Q. “Q” Definitions. 1. “Qualified patient:” A “qualified patient” as defined in Health and Safety Code section 11362.7(f). R. “R” Definitions. 1. “Rear yard:” The rear open space portion of any premises, whether fenced or unfenced. 2. “Residential structure:” Any building or portion thereof legally existing which contains living facilities, including provisions for sleeping, eating, cooking and sanitation on a premises or legal parcel located within a residential or agricultural-residential zoning district. S. “S” Definitions. 1. “School:” An institution of learning for persons under twenty-one (21) years of age, whether public or private, offering regular course of instruction including, without limitation, a kindergarten, elementary school, middle or junior high school, or senior high school. 2. “Solid fence:” A fence constructed of substantial material (such as wood) that prevents viewing the contents from one side to the other.

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T. Reserved for future use. U. Reserved for future use. V. Reserved for future use. W. Reserved for future use. X. Reserved for future use. Y. Reserved for future use. Z. Reserved for future use. 8-5.5415 Cultivation of Medical Marijuana Regulations The following regulations shall apply to the cultivation of medical marijuana within the City. A. No person other than a qualified patient or primary caregiver may engage in cultivation of medical marijuana. It is hereby declared to be unlawful and a public nuisance for any person or persons owning, leasing, occupying, or having charge or possession of any legal parcel or premises within any zoning district in the City to cultivate medical marijuana. B. Residency Requirement. Either a qualified patient or primary caregiver shall reside full-time on the premises where the marijuana cultivation occurs. C. Outdoor Cultivation. It is unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any legal parcel or premises within any zoning district in the City to cause or allow such parcel or premises to be used for the outdoor cultivation of marijuana plants. D. Residential Structure Cultivation. It is unlawful and a public nuisance for any person to cultivate medical marijuana inside any residential structure or building without registering with the city for medical marijuana cultivation; issued by the City Manager or his or her designee, as provided herein. E. Cultivation in Non-Residential Zones. Cultivation of medical marijuana is prohibited in all agricultural (except agricultural-residential), commercial, office, industrial, open space, special purpose, and overlay/combining zoning districts. F. Proximity to Schools, Child Care Centers, and Parks. It is unlawful and a public nuisance to cultivate medical marijuana on any legal parcel or premises within one thousand (1,000’ 00”) feet of any school, child care center, or public park. The one thousand (1,000’ 00”) feet shall be measured from the closest property line of the school, child care center, or park to the closest property line of the cultivation parcel. G. Indoor Cultivation in Residential Zones. The indoor cultivation of medical marijuana in a residential zone shall only be conducted within a detached, fullyenclosed and secure structure or within a residential structure conforming to the following minimum standards:

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1. The registration of any detached structure, regardless of square footage, constructed, altered or used for the cultivation of medical marijuana must be issued by the Community Development Director. 2. Indoor grow lights shall not exceed one thousand two hundred (1,200 W) watts and shall comply with the California Building, Electrical and Fire Codes as adopted by the City. Gas products (including, without limitation, CO2, butane, propane, and natural gas), or generators shall not be used within any detached structure used for the cultivation of medical marijuana. 3. Any detached, fully-enclosed and secure structure or residential structure used for the cultivation of medical marijuana must have a ventilation and filtration system installed that shall prevent marijuana plant odors from exiting the interior of the structure and that shall comply with the California Building Code Section 402.3 Mechanical Ventilation. The ventilation and filtration system must be approved by the Building Official and installed prior to commencing cultivation within the detached, fully-enclosed and secure structure or residential structure. 4. A detached, fully-enclosed and secure structure used for the cultivation of marijuana shall be located in the rear yard area of a legal parcel or premises, maintain a minimum ten (10’ 00”) foot setback from the rear yard property line and a side yard setback that is equal to the same side yard setback required for the residential lot on which the home sits, and the area surrounding the structure or back yard must be enclosed by a solid fence at least six (6’ 00”) feet in height. 5. Marijuana cultivation occurring within a residence and detached structure shall be in a cumulative area totaling no larger than fifty (50) square feet, regardless of how many qualified patients or primary caregivers are residing at the premises. 6. Cultivation of marijuana shall not inhibit the occupancy of the residence or take place in the kitchen or bathrooms of any building. 7. Cultivation of marijuana shall not take place on any carpeted surface. 8. Medical marijuana cultivation for sale is prohibited. 9. Medical marijuana cultivation may occur in a detached structure and/or inside a residence on the same parcel but shall not exceed a cumulative marijuana growing area of fifty (50) square feet total. 10. Medical marijuana cultivation areas, whether in a detached building or inside a residence, shall not be conducted by or be accessible to persons under eighteen (18) years of age. 11. From a public right of way, there shall be no exterior evidence of medical marijuana cultivation occurring at the property.

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H. Cultivation of marijuana in non-residential zones: Cultivation of medical marijuana on any parcel that is not zoned residential must obtain a conditional use permit approved by the Yuba City Planning Commission prior to the commencement of cultivation. 8-5.5420 Cultivation Registration A. Prior to commencing any medical marijuana cultivation the person(s) owning, leasing, occupying, or having charge or possession of any legal parcel or premises where medical marijuana cultivation is proposed to occur must be registered with the city for medical marijuana cultivation from the Community Development Director or his/her designee. The following information will be required with the initial registration application and subsequent extensions: 1. The owner of the property acknowledges the cultivation of marijuana at the premises on a form provided by the City. 2. The name of each person, owning, leasing, occupying, or having charge of any legal parcel or premises where medical marijuana will be cultivated. 3. The name of each qualified patient or primary caregiver who participates in the medical marijuana cultivation. 4. A copy of a current valid medical recommendation or county issued medical marijuana card (if available) 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. 5. The physical site address of where the marijuana will be cultivated and a description of the growing area(s). 6. A signed consent right to entry form, acceptable to the City, authorizing City staff, including the police/planning department, authority to conduct an inspection of the detached, fully enclosed and secure structure or area of the residence used for the cultivation of marijuana upon twenty-four (24) hours’ notice. B. The initial registration shall be valid for no more than two (2) years and may be extended in increments of two (2) years. C. To the extent permitted by law, any personal or medical information submitted for medical marijuana cultivation registration or extension shall be kept confidential and shall only be used for purposes of administering this chapter. D. The Community Development Director, or his/her designee, may, in his or her discretion deny any application for a medical marijuana cultivation registration, or extension thereof, where he or she finds, based on articulated facts, that the issuance of such registration, or extension thereof, would be detrimental to the public health, safety, or welfare. The Community Development Director shall deny the registration for a medical marijuana cultivation, or extension thereof, that does not demonstrate satisfaction of the minimum requirements of this Chapter. The denial of any registration, or extension, may within 10 days after such action, be appealed to the City Manager or his/her designee. Said appeal shall be filed with the City Clerk.

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E. The Finance Director may establish a fee or fees required to be paid upon filing of registration(s) as provided by this chapter, which fees shall not exceed the reasonable cost of administering this chapter. 8-5.5425 Violation Cultivation of marijuana that does not comply with this Article constitutes a violation of this Article and is subject to the civil penalties and enforcement as provided in this Article.

8-5.5430 Enforcement A. Public Nuisance. The violation of this Article is hereby declared to be a public nuisance. B. Abatement. A violation of this Article may be abated by the city attorney by the prosecution of a civil action for injunctive relief and by the summary abatement procedure set forth in subsection C of this section. C. Summary Abatement Procedure. 1. The enforcement official is hereby authorized to order the abatement of any violation of this Article by issuing a notice and order to abate which shall: a. Describe the location of and the specific conditions which represent a violation of this Article and the actions required to abate the violation. b. Describe the evidence relied upon to determine that a violation exists, provided that the enforcement official may withhold the identity of a witness to protect the witness from injury or harassment, if such action is reasonable under the circumstances. c. State the date and time by which the required abatement actions must be completed. d. State that to avoid the civil penalty provided in subsection C.4. of this section and further enforcement action, the enforcement official must receive consent to inspect the premises where the violation exists to verify that the violation has been abated by the established deadline. e. State that the owner or occupant of the property where the violation is located has a right to appeal the notice to abate by filing a written notice of appeal with the city clerk no later than five business days from the service of the notice. The notice of appeal must include an address, telephone number, fax number, if available, and e-mail address, if available. The city may rely on any of these for service or notice purposes. If an adequate written appeal is timely filed, the owner or occupant will be entitled to a hearing as provided in subsection C.3. of this section. f. State that the order to abate the violation becomes final if a timely appeal is not filed or upon the issuance of a written decision after the appeal hearing is conducted in accordance with subsection C.3 of this section.

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g. State that a final order of abatement may be enforced by application to the superior court for an inspection and/or abatement warrant or other court order. h. State that a final order to abate the nuisance will subject the property owner and the occupant to a civil penalty of five hundred dollars for each day that the violation continues after the date by which the violation must be abated as specified in the notice and order to abate. The penalty may be recovered through an ordinary civil action, or in connection with an application for an inspection or nuisance abatement warrant. 2. The notice described in subsection C.1 of this section shall be served in the same manner as a summons in a civil action in accordance with article 3 (commencing with section 415.10) of chapter 4 of title 5 of part 2 of the Code of Civil Procedure, or by certified mail, return receipt requested, at the option of the city. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of not less than ten days and publication thereof in a newspaper of general circulation pursuant to Government Code section 6062. 3. Not sooner than five business days after a notice of appeal is filed with the city clerk, a hearing shall be held before the city manager or a hearing officer designated by the city manager to hear such appeals. The appellant shall be given notice of the date, time and place of the hearing not less than five days in advance. The notice may be given by telephone, fax, e-mail, personal service or posting on the property. At the hearing, the enforcement official shall present evidence of the violation, which may include, but is not limited to, incident and police reports, witness statements, photographs, and the testimony of witnesses. The property owner and the occupant of the property where the violation is alleged to exist shall have the right to present evidence and argument in their behalf and to examine and cross examine witnesses. The property owner and property occupant are entitled at their own expense to representation of their choice. At the conclusion of the hearing, the city manager or hearing officer shall render a written decision which may be served by regular first class mail on the appellants. 4. A final notice and order to abate the nuisance will subject the property owner or owners and any occupant or occupants of the property who are cultivating marijuana in violation of this Article to a civil penalty of five hundred dollars for each day that the violation continues after the date by which the violation must be abated as specified in the final notice and order to abate. 5. The enforcement official or the city manager or hearing officer hearing an appeal pursuant to subsection C.3. of this section may reduce the daily rate of the civil penalty for good cause. The party subject to the civil penalty shall have the burden of establishing good cause, which may include, but is not limited to, a consideration of the nature and severity of the violation, whether it is a repeat offense, the public nuisance impacts caused by the violation, and the violator's ability to pay. The daily penalty shall continue until the violation is abated. The penalty may be recovered through an ordinary civil action, or in connection with an application for an inspection or nuisance abatement warrant.

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8-5.5430 Remedies and penalties not exclusive. The remedies and penalties provided herein are cumulative, alternative and nonexclusive. The use of one does not prevent the use of any other civil, or administrative remedy or penalty authorized by, or set forth in, the Yuba City Municipal Code. None of the penalties or remedies authorized by, or set forth in the Yuba City Municipal Code shall prevent the city from using any other penalty or remedy under state statute which may be available to enforce this Article or to abate a public nuisance. Section 5: Severability The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 6: CEQA The City Council hereby determines that this ordinance is exempt from environmental review under the California Environmental Quality Act because it can be seen with certainty it will not have a significant effect on the environment. (CEQA Guideline 15061(b)(3).) Section 7: Effective Date This Ordinance is hereby declared an urgency ordinance measure for the immediate preservation of the public health, safety and welfare and shall go into effect immediately at the time of adoption and within 15 (15) days of the adoption of this ordinance, a copy shall be published once in the Appeal Democrat, a newspaper of general circulation in the City of Yuba City. Section 8: Term of Ordinance This ordinance shall be in effect from the date of adoption for a period of fortyfive (45) days, unless it is extended pursuant to Section 65858(a) or other applicable law, as approved by the City Council.

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Pass and adopted this 6th day of March, 2012, by the following vote: AYES: NOES: ABSENT: ABSTAIN:

___________________ John Miller, Mayor

Attest:

____________________ Terrel Locke, City Clerk

Approved as to form:

____________________ Tim Hayes, City Attorney

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