Chapter 14.07 — ABATEMENT OF MARIJUANA

Editor's note— Ord. No. 2016-01, § 5, adopted Jan. 4, 2016, changed the title of Ch. 14.07 from "Abatement of Medical Marijuana" to read as herein set out.

This chapter may be utilized in the following nuisance circumstances: the cultivation of marijuana; the odor of marijuana detected by any member of the public; or marijuana, visible to any member of the public.

"Marijuana" shall be defined as set forth in Chapter 8.24 and shall include medical marijuana.

(Ord. No. 2012-03, § 5; Ord. No. 2016-01, § 5)

A.

The city, through a code enforcement officer or other designees, shall issue a declaration of public nuisance requiring abatement within forty-eight (48) hours after the posting of that declaration in a conspicuous place at the location of the nuisance. The declaration shall contain the following information:

(i)

The location of the premises.

(ii)

A description of the specific condition(s) which represent a code violation, and the evidence relied upon to determine the existence of a code violation, except that the city may withhold the identity of a witness if that person requests and if such action is reasonable under the circumstances.

(iii)

The date and time when abatement must be completed to avoid any further action from the city.

(iv)

A statement that, to avoid the imposition of a civil penalty under subsection (c) below, the offending condition(s) must be abated by the deadline set forth in the declaration.

(v)

A statement that, if the nuisance is not abated by the deadline set forth in the declaration, the city will issue a notice entitled, "NOTICE OF HEARING TO DETERMINE EXISTENCE OF PUBLIC NUISANCE AND TO ABATE IN WHOLE OR PART," at which time the city will present evidence of the listed code violations and request the mayor or, at the mayor's discretion, the city council, order the public nuisance be abated and impose a civil penalty of one thousand dollars ($1,000.00) per day for each day that the nuisance remains unabated.

(vi)

A statement that, in any administrative or court proceeding to enforce the abatement order the prevailing party is entitled to recover reasonable attorney fees from the other party or parties to the action, if the city elects, at the initiation of an individual action or proceeding, to seek recovery of its own attorney fees. In no action, administrative proceeding, or special proceeding shall an award of attorney fees to a prevailing party exceed the amount of reasonable attorney fees incurred by the city in the action or proceeding.

B.

Failure to Voluntarily Abate Nuisance. If after the expiration of the notice period the nuisance has not been abated, the city shall issue a notice, entitled, "NOTICE OF HEARING TO DETERMINE EXISTENCE OF PUBLIC NUISANCE." This notice shall be in the substantially the same form as the notice described in Section 14.07.20(vi) above. The hearing shall be before the mayor or, at the mayor's discretion, the city council, and shall be held not less than five days after service of the notice on the owner/occupier of the property. The hearing shall be public; however, if the owner/occupier believes that the hearing should not be public, the owner/occupier shall notify the mayor of the reason(s) therefore at least three days prior to the hearing. The request shall be considered.

C.

Service of Notice. The notice shall be served either personally, or by certified mail, the owner of the property and, if applicable, the occupier of the property. The notice shall also be posted on the subject property.

D.

Hearing on Notice. At the hearing, the city shall present evidence of unlawful cultivation of marijuana to the mayor/city council. The owner/occupier, if present, shall also be entitled to present evidence. Upon conclusion of the hearing, the mayor/city council shall prepare a written order, which shall include findings of fact and an order. If the mayor/city council finds a public nuisance exists, the officer shall direct the owner/occupier to abate the public nuisance by a date certain. The order shall also contain authorization for the city to abate the nuisance pursuant to this chapter, if in the mayor's/council's discretion, it finds that abatement by the city is warranted. The order shall set forth the times within which the work shall be commenced and completed and shall be mailed to the owner/occupier by certified mail.

E.

Abatement by City. If upon finding a violation of this section exists, the owner/occupier fails to abate the nuisance as ordered by the mayor/city council, the city shall take steps to obtain and execute an inspection/administrative abatement warrant pursuant to this chapter.

F.

Finding of No Public Nuisance. If the mayor/city council determines that the property owner is not responsible for the public nuisance, the city shall not assess removal and/or administration costs against the property owner.

(Ord. No. 2012-03, § 5)

A.

Civil Penalty. Fines in the amount of up to one thousand dollars ($1,000.00) per day shall be imposed upon the property owner/occupier as deemed in the above-described order for each day the property remains in

violation of this section upon expiration of the time for abatement set forth in a final order under Section

B.

Attorneys Fees. Attorneys fees shall be recoverable as set forth in Section 14.01.070.

(Ord. No. 2012-03, § 5)

Every person who, in violation of the provisions of Section 8.24.030 of the Orland Municipal Code, maintains, permits or allows marijuana to be grown upon his or her property or premises, and every person occupying, renting or leasing the property or premises of another who maintains, permits or allows marijuana to be grown thereon in violation of that section is guilty of an infraction punishable as set forth in Section 1.12.010 of the Orland Municipal Code. After written notice is provided to any such person of such violation, the continued existence of such violation for each and every day after the service of such notice shall be deemed a separate and distinct offense.

(Ord. No. 2012-03, § 5)

Every owner of property within the city is liable to the city for the total cost of abatement proceedings undertaken pursuant to this chapter on his or her property, accrued to the date of final resolution of the proceedings, including the recordation of special assessments and/or liens pursuant to this chapter, if any.

(Ord. No. 2012-03, § 5)

A.

Costs of Abatement Borne by Property Owner. In any action to determine the existence of and/or abate a public nuisance, the owner of the property declared to be a public nuisance shall be responsible for the city's costs incurred herein. Such costs shall constitute a lien on the subject property.

B.

Notice of Lien. The city shall provide notice prior to the recordation of the lien to the owner of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current.

C.

Service of Notice. The notice shall be served in the same manner as 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. 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 ten (10) days and

publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Section 6062 of the Government Code.

D.

Contents of Lien. A nuisance abatement lien authorized by this section shall specify the amount of the lien, the name of the agency on whose behalf the lien is imposed, the date of the abatement order, the street address, legal description and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.

E.

Recordation of Lien. A nuisance abatement lien shall be recorded in the county recorder's office in the county in which the parcel of land is located and from the date of recording shall have the force, effect, and priority of a judgment lien.

F.

Discharge of Lien. In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection D. of this section shall be recorded by the city. A nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.

G.

Foreclosure of Lien. A nuisance abatement lien may be foreclosed by an action brought by the city for a money judgment.

H.

Recovery of Costs of Recording. The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

I.

In any action, administrative proceeding or special proceeding to abate a nuisance in which the city elects, at the initiation of the action or proceeding, to seek recovery of its attorneys' fees, the prevailing party in the action or proceeding shall recover its attorneys' fees incurred in the action or proceeding. In no action, administrative proceeding or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding. "Prevailing party" shall not include a party who complies with a notice of violation issued by the city or an order in any action, administrative proceeding or special proceeding. Attorney fees shall include fees for the services of the city attorney or his or her assistant and deputies, calculated based on the effective hourly rate of such attorney.

(Ord. No. 2012-03, § 5)

To the fullest extent permitted by law, any actions taken under the provisions of this chapter by any public officer or employee of the city of Orland or city of Orland itself, shall not become a personal liability of such person or the liability of the city of Orland.

(Ord. No. 2012-03, § 5; Ord. No. 2016-01, § 5)

The remedies provided herein shall not be the exclusive means of enforcing the provisions of this chapter or the exclusive means available to the city to address problems associated with the cultivation of marijuana, whether for medical or other purposes. The city shall continue to have available to it the ability to pursue abatement of nuisances and other problems related to marijuana cultivation under California Penal Code Sections 372 and 373a and other applicable provisions of law. The city may also pursue the recovery of its abatement costs in the manner provided in Section 8.24 of the Orland Municipal Code.

(Ord. No. 2012-03, § 5)