Chapter 11.15 — PERSONAL CULTIVATION OF

CANNABIS

Section

• 11.15.010 Authority and title
• 11.15.020 Findings and purpose
• 11.15.030 Definitions
• 11.15.040 Nuisance declared; prohibition on cultivation
• 11.15.050 Nuisance Abatement Authority
• 11.15.060 No duty to enforce
• 11.15.070 Duty of owners and occupants; no unlawful activity permitted
• 11.15.080 Other nuisance
• 11.15.090 Administrative civil penalties
• 11.15.095 Notices
• 11.15.100 Service of notices
• 11.15.105 Recordation of notices
• 11.15.110 Administrative hearing
• 11.15.115 Enforcement of abatement order
• 11.15.120 Liability for abatement costs and/or administrative penalties; interest
• 11.15.125 Lien hearing; alternative lien hearing procedure
• 11.15.130 No vested or non-conforming rights
• 11.15.140 Severability
• 11.15.145 Fees
• 11.15.150 Enforcement by civil action
• 11.15.160 Summary abatement
• 11.15.170 Remedies cumulative
• 11.15.180 No criminal penalty

Pursuant to the authority granted by Article XI, Section 7 of the California Constitution, Cal. Health and Safety Code §§ 11362.2(b), 11362.777(g), and 11362.83, and Cal. Gov’t Code §§ 25845 and 53069.4, the Board of Supervisors does enact this Chapter, which shall be known and may be cited as the “San Benito County Personal Cultivation of Cannabis Ordinance.” (Ord. 949, § 2(part), 2016; Ord. 959, § 3, 2017)

(A) California's medicinal cannabis laws, the Compassionate Use Act (Cal. Health and Safety Code § 11362.5), the Medical Marijuana Program (Cal. Health and Safety Code §§ 11362.7 et seq.), and the Medical and Adult-Use Cannabis Regulation and Safety Act (Cal. Business and Professions Code §§ 26000 et seq.), each recognize and preserve the authority of cities and counties under § 7 of Article XI of the California Constitution to enact and enforce reasonable regulations for the cultivation of medicinal cannabis and non-medicinal cannabis (sometimes referred to as "recreational marijuana" or "recreational cannabis"). (B) The county's unique geographic and climatic conditions, which include areas of prime agricultural land, along with a minimal population in many areas of the county, provide conditions that are favorable to cannabis cultivation. There have been multiple cannabis grows located within the county within the last year. (C) The limited immunity from specified state cannabis laws provided by the Compassionate Use Act and Medical Marijuana Program 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 cannabis in the unincorporated area of San Benito County. (D) (1) Local cannabis cultivation regulations have been upheld in other parts of the state, including by the California Court of Appeal in Browne v. County of Tehama (2013) 213 Cal. App. 4th 704. In that case, the Court specifically held that " [n]either the Compassionate Use Act nor the Medical Marijuana Program grants . . . anyone . . . an unfettered right to

cultivate marijuana for medical purposes. Accordingly, the regulation of cultivation of medical marijuana does not conflict with either statute." (2) Similarly, in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729, the California Supreme Court concurred that nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land. (E) The unregulated cultivation of medicinal or non-medicinal cannabis in the unincorporated area of San Benito County can adversely affect the health, safety, and well-being of the county and its residents. Comprehensive regulation of premises used for cannabis 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 cannabis cultivation, and that are especially significant if the cultivation occurs outdoors, or if the amount of cannabis cultivated on a single premises is not regulated and substantial amounts of cannabis are thereby allowed to be concentrated in one place. (F) Cultivation of cannabis has been associated with serious harmful effects in the areas where cultivation sites are located, to owners of property in such areas, and to people living, visiting, conducting business or otherwise present in the area, as reported by numerous other California counties and cities. Harmful effects at both outdoor and indoor cultivation operations have included an increase in criminal activity because of the high monetary value of the cannabis plants, adverse environmental impacts, noise pollution from generators, interference with farming practices, fire danger from grow light systems and cannabis oil extraction operations, excessive energy consumption, and strong offensive odors. (G) The cultivation of cannabis outdoors, where it is often readily observable by neighbors and the general public, increases the risk of trespassing and burglary, and acts of violence in connection with the commission of such crimes or the occupants' attempts to prevent such crimes. Outdoor cultivation further makes the premises more prone to act as an attractive nuisance for children, and increases the likelihood of offensive odors traveling off the premises. Additionally, experience in San Benito County and elsewhere demonstrates that outdoor cultivation of cannabis is often associated with violations of local, state, and federal environmental laws and pesticide regulations, threatening harm to local waterways and groundwater quality, and endangering the public health and safety. To adequately protect the public health, safety, and welfare, it is proper and necessary to limit the outdoor cultivation of cannabis within the unincorporated area of San Benito County. (H) The previous provisions of Chapter 11.15, which allowed limited outdoor cultivation of cannabis, did not fully mitigate these adverse effects. Prohibiting the personal cultivation of cannabis outdoors is proper and necessary to avoid the aforementioned harms, and to protect the health, safety, and welfare of the residents and businesses within the unincorporated territory of the county. (I) The indoor cultivation of cannabis within a residence or other structure used or intended for human occupancy presents potential health and safety risks to those living in the residence or otherwise occupying the structure, especially to children, including but not limited to, increased risk of fire from grow light systems, exposure to fertilizers, pesticides, anti- fungus/mold agents, and exposure to potential property crimes. One goal of this chapter is to reduce or mitigate these risks by limiting the number of plants which may be cultivated indoors at any one location. (J) Cannabis that is grown indoors may require excessive use of electricity, which often is obtained or connected illegally, and which may overload standard electrical systems creating an unreasonable risk of fire. If indoor grow lighting systems are powered by diesel generators, improper maintenance of the generators and fuel lines and the improper storage and disposal of diesel fuel and waste oil may create an unreasonable risk of fire and pollution. (K) Cultivation of any amount of cannabis at locations or premises within 1,000 feet of schools, school bus stops, school evacuation sites, churches, parks, child care centers, or youth-oriented facilities creates unique risks that the cannabis 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 cannabis cultivation in such locations poses heightened risks that juveniles will be involved or endangered. Therefore, cultivation of any amount of cannabis in such locations or premises is especially hazardous to public health, safety, and welfare, and to the protection of children and the person(s) cultivating the cannabis plants. To adequately address these risks, it is proper and necessary that requests to cultivate cannabis in such locations be considered on a case-by-case basis through a waiver process administered by the San Benito County Resources Management Agency. (L) The cultivation or other concentration of cannabis 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. (M) The cultivation of cannabis upon vacant lots (i.e., premises without a permitted residential use) presents a heightened risk of the harms that Chapter 11.15 was designed to prevent, including criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards, due to the absence of an onsite caretaker e

ance activity such as loitering or crime. (M) The cultivation of cannabis upon vacant lots (i.e., premises without a permitted residential use) presents a heightened risk of the harms that Chapter 11.15 was designed to prevent, including criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards, due to the absence of an onsite caretaker eligible to cultivate cannabis in accordance with state law. Cannabis cultivation upon vacant lots is more likely to violate the registration, setback, plant limit, security, and location requirements of this chapter than cannabis cultivated accessory to a permitted residential use, is more likely to be diverted to unlawful use, and is less likely to serve the legitimate needs of persons cultivating cannabis in accordance with state law. Limiting the cultivation of cannabis to premises that contain a permitted residential use is proper and necessary to avoid the aforementioned harms, and to protect the health, safety, and welfare of the residents and businesses within the unincorporated area of the county. (N) It is the purpose and intent of this chapter to implement state law by providing a means for regulating the cultivation of cannabis in a manner that is consistent with state law and which balances the interests of persons choosing to cultivate and

use cannabis and promotes the health, safety, and welfare of the residents and businesses within the unincorporated area of the county. This chapter is intended to be consistent with California's cannabis laws, including the Medicinal and Adult-Use Cannabis Regulation and Safety Act, and towards that end, is not intended to prohibit persons from individually or jointly 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 cannabis may be cultivated, including restrictions on the amount of cannabis that may be individually or jointly cultivated in any location or premises, in order to protect the public health, safety, and welfare in San Benito County. (O) In order to ensure compliance with the regulations set forth in the personal cultivation of cannabis chapter, facilitate enforcement in the event of noncompliance, and reduce hazards to emergency and other public agency personnel responding to premises where cannabis is cultivated, it is reasonable, proper, and necessary to require that all premises where cannabis is cultivated register annually with the San Benito County Resources Management Agency. (P) Neither California's medicinal cannabis laws nor the non-medicinal cannabis laws 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 cannabis in the unincorporated area of San Benito County. (Q) Nothing in this chapter shall be construed to allow the cultivation or use of cannabis for commercial or business purposes, or allow any activity relating to the cultivation, distribution, or consumption of cannabis 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 San Benito County District Attorney, the Attorney General of State of California, or the United States of America. (Ord. 959, § 4, 2017; Ord. 963, § 2, 2017)

Except where the context otherwise requires, the following definitions shall govern the construction of this chapter: CANNABIS. Has the meaning set forth in the Cal. Business and Professions Code § 26001, subdivision (f), the Medicinal and Adult-Use Cannabis Regulation and Safety Act. This definition includes medicinal cannabis or non-medicinal cannabis. CANNABIS PLANT. Any mature or immature cannabis plant, or any cannabis seedling. CHILD CARE CENTER. Any licensed child care center, day care center, or childcare home, or any preschool. CHURCH. A structure or leased portion of a structure, which is used primarily for religious worship and related religious activities. CONTIGUOUS. Any two parcels of real property which share a mutual boundary. Parcels shall be considered as contiguous units, even if it is separated by roads, streets, utility easements or railroad rights-of-way. DAY CARE CENTER. Has the meaning set forth in the Cal. Health and Safety Code § 1596.76. COUNTY HEARING OFFICER. A person designated by the Board of Supervisors and appointed to the position of Hearing Officer, as established by San Benito County Code Chapter 1.07, and who is independently authorized to conduct administrative hearings and issue decisions and orders pursuant to and as authorized by the San Benito County Code. CULTIVATION. Any activity involving the propagation, planting, growing, harvesting, drying, curing, grading, processing, trimming, or storage of one or more cannabis plants, or any part thereof in any location, indoor or outdoor, including from within a fully enclosed and secure building. CULTIVATION SITE. A location where cannabis is cultivated. ENFORCING OFFICER or CODE ENFORCEMENT OFFICER. Means the San Benito County Resources Management Agency Director, Building Official, Building Inspector, Health Officer, Sheriff, Agricultural Commissioner, or their authorized deputies or designee(s), and any person employed by the county and appointed to the position of code enforcement officer, as established by San Benito County Res. No. 90-27 and Ordinances 567 and 625, each of whom is independently authorized to enforce this chapter. FENCE. A wall or a barrier connected by boards, masonry, rails, panels, wire or any other materials for the purpose of enclosing space or separating parcels of land. The term FENCE does not include retaining walls, plastic, tarp, bamboo coverings, corrugated metal, or other materials not designed or manufactured for use as a fence. IMMATURE PLANT. A cannabis plant that has not begun to bloom or flower. INDOOR CULTIVATION. Cultivation that is conducted within a fully enclosed, permitted building or structure, accessible only through one or more locking doors, which is secure against unauthorized entry. INDOOR CULTIVATION includes cultivation within a greenhouse or similar structure. LEGAL PARCEL. Any parcel of real property for which one legal title exists that may be separately sold in compliance with the Subdivision Map Act (Div. 2 (commencing with Section 66410) of Title 7 of the Cal. Gov’t Code). Where contiguous legal parcels are under common ownership or control, such legal parcels shall be counted as a single "premises" for purposes of this chapter.

MATURE PLANT. A cannabis plant that has begun to bloom or flower; or that contains one or more blooms, flowers, or buds. OUTDOOR CULTIVATION. Cultivation that is not conducted within a fully enclosed, permitted building, accessible only through one or more locking doors, which is secure against unauthorized entry. OUTDOOR CULTIVATION includes, without limitation, cultivation of cannabis within a "hoop house" or similar structure. PREMISES. A single, legal parcel of real property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall be counted as a single PREMISES for purposes of this chapter. RESIDENCE or RESIDENTIAL STRUCTURE. Any structure designed, approved, and maintained for permanent human habitation pursuant to Title 24 or Title 25 of the Cal. Code of Regulations or constructed prior to the adoption of the California Building Standards Code by the county. RESIDENCE or RESIDENTIAL STRUCTURE does not include a structure that has been deemed substandard by the county Building Official or his/her authorized agents. SCHOOL. An institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code, or any licensed child or day care facility. 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. SCHOOL BUS STOP. Any location designated in accordance with Cal. Code of Regulations, Title 13, § 1238, to receive school buses, as defined in Cal. Vehicle Code § 233, or school pupil activity buses, as defined in Cal. Vehicle Code § 546. SCHOOL EVACUATION SITE. 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 an emergency or other incident at the school. YOUTH-ORIENTED FACILITY. Elementary school, middle school, high school, public park, any establishment that advertises in a manner that identifies the establishment as catering to or providing services primarily intended for minors, or the individuals who regularly patronize, congregate or assemble at the establishment are predominately minors. This shall not include a day care or preschool facility. (Ord. 949, § 2(part), 2016; Ord. 959, § 7, 2017; Ord. 963, § 5, 2017)

The following regulations shall apply to premises used for cannabis cultivation in the unincorporated area of San Benito County, and shall be imposed regardless of the number of persons residing at the premises or participating directly or indirectly in the cultivation, and shall further be imposed notwithstanding any assertion that the person(s) cultivating the cannabis are qualified patients or the primary caregiver(s) for qualified patients or that such person(s) are collectively or cooperatively cultivating cannabis: (A) The outdoor cultivation of cannabis, in any amount or quantity, is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter. This subdivision shall not apply to those cannabis cultivation sites that commenced cultivation prior to November 21, 2017, in full compliance with the provisions of Chapter 11.15 of the San Benito County Code as it read prior to the adoption of the chapter enacting this subdivision. Cannabis cultivation described in this subdivision shall be required to comply with the provisions of this section as it read prior to the adoption of the chapter enacting this subdivision pertaining to outdoor cannabis cultivation until March 1, 2018. (B) The cultivation of more than six cannabis plants on any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter. (C) Except as provided in a waiver granted in accordance with subdivision (D), the cultivation of cannabis, in any amount or quantity, upon any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter, unless all of the following conditions are satisfied: (1) The person(s) owning, leasing, occupying, or having charge or possession of any premises have submitted the required annual registration for the premises and provided all of the following current information and documentation to the San Benito County Resources Management Agency: (a) The name of each person, owning, leasing, occupying, or having charge or possession of the premises; (b) The name of each person who participates in the cultivation, either directly or by providing reimbursement for cannabis or the services provided in conjunction with the provision of that cannabis; (c) A description of the cultivation site and number of cannabis plants; (d) The number of cannabis plants to be cultivated on the premises; and (e) If the person(s) cultivating cannabis on any legal parcel is/are not the legal owner(s) of the parcel, such person(s) shall submit a notarized letter from the legal owner(s) acknowledging and consenting to permit the cultivation of cannabis to be conducted on the parcel by the registrant. This letter shall be examined by the Resources Management Agency and may then be returned. The Resources Management Agency may prescribe forms for such letter.

(f) Such other information and documentation as the San Benito County Resources Management Agency determines is necessary to ensure compliance with state law and this chapter. (2) The information and documentation required by this section shall be received in confidence, and shall be used or disclosed only for purposes of administration or enforcement of this chapter or state law, or as otherwise required by law. (3) The San Benito Resources Management Agency may refuse to accept a registration for any premises upon which cannabis cultivation is being conducted, or is proposed to be conducted, in violation of this chapter. The acceptance of a registration pursuant to this chapter shall not be deemed or construed to be a permit for or approval of any violation of this chapter. The acceptance of a registration shall not prevent the enforcing officer from thereafter requiring correction of violations or from preventing cannabis cultivation being carried out thereunder when in violation of this chapter. (4) The Board of Supervisors may, by resolution, establish a fee for such annual registration in accordance with all applicable legal requirements, including, but not limited to a late registration penalty equal to 50% of the applicable registration fee. (5) Every registration under this chapter shall be valid for no more than one calendar year and shall expire on December 31 of that year. An expired registration shall be renewed in the same manner as an initial registration hereunder. In the event that the registration of any premises for any calendar year is submitted after March 1 of that year, the registration shall be deemed late. The Director of the Resources Management Agency may waive the late registration penalty if the failure to timely register was due to reasonable cause and not due to willful neglect. (6) The cultivation of cannabis must be conducted indoors, within a fully enclosed and permitted structure which must comply with the following standards: (a) The structure shall comply with all applicable state and local laws, codes and regulations, including without limit, the Cal. Building Code, Electrical and Fire Codes as adopted by San Benito County. The structure shall be equipped with permanently installed and permitted electricity, and shall not be served by temporary extension cords. (b) Windows shall have adequate coverings to prevent cannabis plants from being visible from any location not part of the premises, including the public right-of-way and/or neighboring properties. Such window coverings shall not restrict emergency egress from the structure. (c) The structure, or room in which the cultivation occurs, shall have locking doors and shall be secured to prevent access by minors and/or unauthorized persons. (d) Structures used for cultivation shall be equipped with an odor control filtration and ventilation system adequate to prevent an odor, humidity or mold problem within the structure, on the parcel, or on adjacent parcels. (e) Structures that are exempt from building permits shall not be used for the cultivation of cannabis. (7) The premises must contain a permitted residential use. For purposes of this subdivision, PERMITTED RESIDENTIAL USE shall mean actual residential use of the premises that is conducted in a residential structure or manufactured home on a permanent foundation for which a final certificate of occupancy has been issued in accordance with Titles 19, 21, and 25 of the San Benito County Code. (8) The premises upon which the cannabis is cultivated is located at least 1,000 feet away from any school, school bus stop, school evacuation site, church, park, child care center, or youth-oriented facility ("Sensitive Use Setback"). Such distance shall be measured in a straight line from the boundary line of the premises upon which the school, school bus stop, school evacuation site, church, park, child care center, or youth-oriented facility is located to the nearest exterior wall of the building or structure within which cannabis is cultivated. (9) The cultivation site shall be set back at least 100 feet from all boundaries of the premises ("Boundary Line Setback"). Such distance shall be measured in a straight line from the boundary line of the premises to the nearest exterior wall of the building or structure within which cannabis is cultivated. (D) Prior to cultivation, the owner or occupant of the premises may submit a written request that the Director of the Resources Management Agency waive the application of the “Sensitive Use Setback” and/or “Boundary Line Setback” provision(s) of subdivision (C) based upon a finding of unusual hardship or other good cause. Waiver requests shall not be unreasonably denied. In the event that the California Attorney General issues a determination under Cal. Health and Safety Code § 11362.2(b)(4). The Director of the Resources Management Agency shall grant or deny each waiver request in writing, and may impose reasonable conditions upon any waiver granted. If granted, the waiver shall remain valid until expiration of the registration, at which time the waiver shall also expire. Renewal of any such waiver may be requested at the same time as renewal of registration. If the waiver request is denied or conditioned, the owner or occupant may submit a written appeal to the Clerk of the Board of Supervisors within ten calendar days. If the Hearing Officer has been appointed, as established by Chapter 1.07 of the San Benito County Code, the appeal shall be heard by the Hearing Officer; otherwise the appeal shall be heard by the Board of Supervisors. The Board of Supervisors or the County Hearing Officer, as applicable, shall consider the matter de novo, and may affirm, reverse, or modify the determination of the Director of the Resources Management Agency. The decision of the Board of Supervisors o

of the San Benito County Code, the appeal shall be heard by the Hearing Officer; otherwise the appeal shall be heard by the Board of Supervisors. The Board of Supervisors or the County Hearing Officer, as applicable, shall consider the matter de novo, and may affirm, reverse, or modify the determination of the Director of the Resources Management Agency. The decision of the Board of Supervisors or Hearing Officer, as applicable, shall be final and conclusive. (E) The cultivation of cannabis, in any amount or quantity upon any premises, in connection with any cannabis business as defined in Chapter 7.02 of the San Benito County Code, or "commercial cannabis activity," as defined in the Medicinal and Adult-Use Cannabis Regulation and Safety Act, or by any permittee, licensee, or person required to obtain a license

from the state, is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter, except as expressly provided in Chapter 7.02 of the San Benito County Code. (F) No person owning, leasing, occupying, or having charge or possession of any premises within the county shall cause, allow, suffer, or permit such premises to be used for the cultivation of cannabis plants in violation of this chapter. (G) The extraction and refinement of chemical compounds from cannabis by way of a solvent-based method utilizing compressed flammable gases or alcohol in violation of state law is prohibited. (H) Acts, omissions, or conditions in violation of this chapter that continue, exist, or occur on more than one calendar day constitute separate violations on each day. Violations continuing, existing, or occurring on the service date, the effective date, and each day between the service date and the effective date are separate violations. (Ord. 949, § 2(part), 2016; Ord. 959, § 7, 2017; Ord. 963, § 7, 2017)

(A) Whenever necessary to investigate and ascertain, and/or to abate any violation of the provisions of this chapter, or whenever there is reasonable cause to believe that there exists a violation of this chapter, the enforcing officer may enter onto any premises or into any building upon presentation of proper credentials to the owner and/or the occupant thereof. Notwithstanding the foregoing, the enforcing officer may enter onto any premises or into any building under authority of warrant issues pursuant to Cal. Code of Civil Procedure §§ 1822.50 et seq. All costs incurred by the county in seeking and obtaining an administrative warrant may be recoverable as abatement costs. (B) Whenever the enforcing officer determines that a public nuisance as described in this chapter exists on any premises within the unincorporated area of San Benito County, he or she is authorized to do any one or more of the following: (1) Create a cause of action for civil penalty and/or abatement pursuant to Chapters 1.03, 1.04, and/or 1.06 of the San Benito County Code, or any other action authorized by law; (2) Abate the nuisance in accordance the procedures of §§ 11.15.095 through and including 11.15.115; (3) Determine and collect an administrative civil penalty in accordance with the procedures provided in §§ 11.15.090 through and including 11.15.115; or (4) Seek relief from any court to abate the nuisance and/or collect civil penalties through the Office of the County Counsel, without first going through the administrative procedures set forth in this chapter. (5) Notwithstanding any other provision of this chapter, when any unlawful cannabis cultivation constitutes an immediate threat to public health or safety, the enforcing officer may summarily abate the nuisance in accordance with the procedures provided in § 11.15.160. (Ord. 959, § 11, 2017; Ord. 963, § 9, 2017)

Nothing in this chapter shall be construed as imposing on the enforcing officer or the County of San Benito any duty to issue any notice hereunder, nor to abate any unlawful cannabis cultivation, nor to take any other action with regard to any unlawful cannabis cultivation, and neither the enforcing officer nor the County of San Benito shall be held liable for failure to issue any noice hereunder, nor for failure to abate any unlawful cannabs cultivation, nor for failure to take any other action with regard to any unlawful cannabis cultivation. (Ord. 949, § 2(part), 2016; Ord. 959, § 13, 2017)

No person or entity owning, leasing, occupying or having charge or possession of any premises within the unincorporated area of the County of San Benito shall cause, permit, maintain, conduct or otherwise suffer or allow a public nuisance as defined in this chapter to exist. It shall be the duty of every owner, occupant, and person that controls any land or interest therein within the unincorporated area of the County of San Benito to remove, abate, and prevent the reoccurrence of the public nuisance upon such land. Such duty of an owner shall exist regardless of whether the owner is in actual possession of his or her real property, and may include an obligation to take action to evict or otherwise remove an occupier who creates a public nuisance upon the owner's property. Nothing in this chapter shall be deemed to authorize or permit any activity that violates any provision of state or Federal law. (Ord. 949, § 2(part), 2016; Ord. 959, § 13, 2017)

Nothing in this chapter shall be construed as a limitation on the county's authority to abate any nuisance which may otherwise exist from the cultivation of cannabis plants or any part thereof from any location, indoor or outdoor, including from within a fully enclosed and secure building or structure.

(Ord. 949, § 2(part), 2016; Ord. 959, § 13, 2017)

(A) In addition to any other remedy or penalty prescribed in this chapter, any nuisance as described in this chapter may be subject to an administrative penalty of up to $1,000 per day. (B) In determining the amount of the administrative penalty, the enforcing officer, or the court if the violation requires court enforcement without an administrative process, shall take into consideration the nature, circumstances, extent, and gravity of the violation or violations, any prior history of violations, the degree of culpability, economic savings if any resulting from the violation and any other matters justice may require. (C) The administrative penalty may be imposed via the administrative process set forth in §§ 11.15.095 through and including 11.15.115, as provided in Cal. Gov’t Code § 53069.4, or may be imposed by the court if the violation requires court enforcement without an administrative process. (D) The enforcing officer may commence the administrative process by issuing an NOV in accordance with §§ 11.15.095 and 11.15.100. In the case of a continuing violation, if the violation does not create an immediate danger to health or safety, the enforcing officer or the court shall provide for a reasonable period of time, not to exceed six calendar days, for the person responsible for the violation to correct or otherwise remedy the violation prior to the imposition of administrative penalties. (Ord. 959, § 19, 2017; Ord. 963, § 11, 2017)

Whenever the enforcing officer determines that a public nuisances as described in this chapter exists on any real property within the unincorporated area of San Benito County, he or she is authorized to issue notices pursuant to Chapters 1.03, 1.04, and/or 1.06 of the San Benito County Code, except that the violator shall be provided with six calendar days, from issuance of the notices provided in Ch. 1.06, to abate the nuisance before the imposition of any civil administrative penalty under this chapter. Furthermore, the violator shall be provided with ten calendar days, from issuance of an NOV provided in Ch. 1.06, to submit a written request for hearing to the Resources Management Agency. (Ord. 959, § 20, 2017)

(A) Any notice issued by the enforcing officer in accordance with this chapter shall be served in the following manner: (1) By either: (a) Delivering it personally to the owner and to the occupant. Service shall be deemed to have been completed upon personal delivery; or (b) By overnight mail, addressed to: 1. The owner at the address shown on the last equalized assessment roll or as otherwise known to the enforcing officer; and 2. To anyone known to the enforcing officer to be in possession of the property at the street address of the property subject to the notice, if the property is capable of receiving mail. Service shall be deemed to have been completed upon the deposit of said notice, postage prepaid, in the United States mail; and (2) In the event that, after reasonable effort, the enforcing officer is unable to serve the notice as set forth above, service shall be accomplished by posting a copy of such notice conspicuously along the frontage of the real property subject to the notice, or if the property has no frontage, upon any street, highway, or road then upon the portion of the property nearest to a street, highway, or road, or most likely to give actual notice to the owner and any person known by the enforcing officer to be in possession of the property. Service shall be deemed to have been completed upon posting. (B) The failure to serve any person described in this subsection shall not affect the validity of service or the validity of any administrative penalties imposed pursuant to this chapter upon any other person. The failure of any owner or occupant to receive such notice shall not affect the validity of the proceedings. (Ord. 959, § 20, 2017)

Whenever the enforcing officer determines that a public nuisance as described in this chapter exists on any real property within the unincorporated area of San Benito County, he or she is authorized to record notices pursuant to § 1.06.100 of San Benito County Code. (Ord. 959, § 23, 2017) § 11 15 110 ADMINISTRATIVE HEARING

(A) If the enforcing officer determines that all violations have been timely corrected, the enforcing officer shall not be required to clear the notice. Timely abatement of a violation under this chapter shall not prohibit the enforcing officer from seeking a determination of existence of such violation from the County Hearing Officer. (B) The Board of Supervisors may delegate its authority to conduct the administrative proceedings set forth in this Section to the County Hearing Officer appointed by the Board of Supervisors pursuant to Chapter 1.07 of the San Benito County Code and Cal. Gov’t Code § 27720, as amended. The hearing officer shall have full authority and duty to preside over hearings in the manner set forth in Chapter 1.07 of San Benito County Code. (C) Administrative hearing and decision or order: (1) Pursuant to Cal. Gov’t Code §§ 25845(i) and 27721(a), the county hearing officer shall hold an administrative hearing as follows: (a) If the enforcing officer issued a notice and order, the hearing shall be held no less than six calendar days after service of the notice and order. The county hearing officer shall determine whether: 1. The conditions existing on the property subject to the notice and order constitute a nuisance under this chapter; and 2. There is any other good cause why those conditions should not be abated; (b) If the enforcing officer issued a NOV, the hearing shall be held within ten days from receipt of the written request for hearing. The county hearing officer shall determine whether: 1. The conditions existing on the property subject to the NOV constitute a nuisance under this chapter; 2. To impose, modify, or disapprove, in whole or in part, the proposed penalty set forth in the NOV; and 3. The enforcing officer may record the NOV. (c) If the enforcing officer combined a notice and order with an NOV, the hearing shall be held no less than six calendar days after service of the notice. The county hearing officer shall determine whether: 1. The conditions existing on the property subject to the notice constitute a nuisance under this chapter; 2. There is any other good cause why those conditions should not be abated; and 3. To impose, modify, or disapprove, in whole or in part, by its own order, the proposed penalty set forth in the notice. (2) The owner(s) and/or occupant(s) of the property shall be given an opportunity at the hearing to present and elicit testimony and other evidence regarding whether the conditions existing on the property constitute a nuisance under this chapter and whether there is any other good cause why those conditions should not be abated, and/or to contest the proposed amount of administrative penalty. Failure of the owner(s) and/or occupant(s) to appear and present evidence at the hearing shall be deemed a withdrawal of the request for hearing or a waiver of the right to be personally present at the hearing, and shall constitute a failure to exhaust administrative remedies. (3) In the event owner(s) and/or occupant(s) do not appear and present evidence at the hearing, the county hearing officer may base its decision and order solely upon the evidence submitted by the enforcing officer. (4) 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 county 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. (5) The standard of proof shall be by a preponderance of the evidence and the burden of proof to establish the existence of the nuisance shall be borne by the enforcing official. The burden of proof that the nuisance has been abated shall be borne by the owner(s) and/or occupant(s). (6) The county hearing officer may continue the administrative hearing from time to time. Prior to a scheduled hearing, the enforcing officer or the owner(s) and/or occupant(s) may submit a written request for continuance to the county hearing officer within two calendar days following the time the party discovered or reasonably should have discovered the event or occurrence which establishes the good cause for the continuance. The county hearing officer shall issue his or her determination by any means likely to provide notice to the parties at the soonest time possible. In the event the request for continuance is granted, the county hearing officer shall also provide the date and time for the rescheduled hearing. (7) The county hearing officer shall consider the matter de novo. (8) After the hearing, the county hearing officer shall issue its decision in the form of an order which shall be served by first class mail, postage prepaid, to, or personally served upon, all parties appearing at the hearing and any other parties upon whom the notice was served. The decision shall include the following:

(a) If the enforcing officer issued a notice and order: 1. Whether the determinations contained in the notice and order are affirmed, modified, or reversed; and 2. Findings related to the existence or non-existence of the alleged nuisance, as well as findings concerning the propriety and means of abatement of the conditions set forth in the notice and order. (b) If the enforcing officer issued an NOV, whether the proposed penalty set forth in the NOV is imposed, modified, or disapproved, in whole or in part. (c) If the enforcing officer combined a notice and order with an NOV, a decision which shall include the contents of the decision set forth in division (A)(8)(i) and division (A)(8)(h). (9) The county hearing officer's decision shall be final and conclusive when signed by the county hearing officer and served as provided herein. Service shall be deemed to have been completed upon personal service and/or the deposit of said decision, postage prepaid, in the United States mail. Payment of an administrative penalty specified in the county hearing officer's decision shall be made to the county within 20 calendar days of service of the decision, unless timely appealed to the Superior Court in accordance with Cal. Gov’t Code § 53069.4(b). (Ord. 959, § 25, 2017)

(A) Any owner or occupant may abate the nuisance or cause it to be abated at any time prior to commencement of abatement by, or at the direction of, the enforcing officer. An owner or occupant abating unlawful cannabis cultivation hereunder shall notify the enforcing officer upon completion of abatement. Abatement shall not be deemed completed until the unlawful cannabis cultivation has been completely removed from the premises and notification has been provided as set forth in this section. Such abatement by any owner or occupant shall not impair the enforcing officer's ability to impose any administrative penalty accrued prior to such abatement. (B) Notwithstanding the foregoing, whenever the enforcing officer becomes aware that an owner or occupant has failed to abate any unlawful cannabis cultivation within two calendar days of the date of service of the decision of the County Hearing Officer under this chapter requiring such abatement, the enforcing officer may enter upon the property and abate the nuisance by county personnel, or by private contractor under the direction of the enforcing officer. The enforcing officer may apply to a court of competent jurisdiction for a warrant authorizing entry upon the property for purposes of undertaking the work, if necessary. If any part of the work is to be accomplished by private contract, that contract shall be submitted to and approved by the Board of Supervisors prior to commencement of work. Nothing herein shall be construed to require that any private contract under this code be awarded through competitive bidding procedures where such procedures are not required by the general laws of the State of California. (C) The costs of abatement and administrative costs for every abatement carried out under this section may be recovered in accordance with §§ 11.15.120 through 11.15.125. (Ord. 959, § 26, 2017; Ord. 963, § 12, 2017)

(A) In any enforcement action brought pursuant to this chapter, whether by administrative proceedings, judicial proceedings, or summary abatement, each person who causes, permits, suffers, or maintains the unlawful cannabis cultivation to exist shall be liable for: (1) All costs incurred by the county, including, but not limited to, abatement costs, including administrative costs, and any and all costs incurred to undertake, or to cause or compel any responsible party to undertake, any abatement action in compliance with the requirements of this chapter, whether those costs are incurred prior to, during, or following enactment of this chapter. In addition, the prevailing party shall be entitled to a recovery of the reasonable attorneys' fees incurred. Recovery of attorneys' fees under this subdivision shall be limited to those actions or proceedings in which the county elects, at the initiation of that action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the county in the action or proceeding. (2) Any administrative penalty imposed pursuant to this chapter. In the event that an administrative penalty is imposed pursuant to §§ 11.15.090 through and including 11.15.115 on two or more persons for the same violation, all such persons shall be jointly and severally liable for the full amount of the administrative penalty imposed. Payment of administrative penalties imposed pursuant to §§ 11.15.090 through and including 11.15.115 does not excuse or discharge any continuation or repeated occurrence of the violation that is the subject of the NOV. Payment of the administrative penalty does not bar the county from taking any other enforcement action regarding a violation that is not corrected. (B) Interest shall accrue on all amounts due under this chapter, from the effective date of the Board of Supervisors' decision, as set forth in § 11.15.110, to the date paid pursuant to the laws applicable to civil money judgments. (C) At such time as the information becomes known, the enforcing officer shall make a demand for abatement costs and/or accrued administrative penalty by issuing an invoice in accordance with § 1.06.080 of the San Benito County Code to the owner(s) and/or occupant(s) of the premises subject to enforcement action.

(D) Whenever the amount of abatement costs, including administrative costs incurred by the county to abate the nuisance, or the amount of any administrative penalty imposed pursuant to this chapter has not been satisfied in full within 90 calendar days after service of the invoice set forth in Chapter 1.06, and/or has not been timely appealed to the Superior Court in accordance with Cal. Gov’t Code § 53069.4(b), or if appealed, such appeal has been dismissed or denied, all or any part of, this obligation may constitute a lien against the real property on which the violation occurred in accordance with the procedures set forth in §§ 11.15.120 through 11.15.125. (E) In addition to any other legal remedy, the county may prosecute a civil action through the Office of the County Counsel to collect any costs incurred to abate the nuisance and/or any administrative penalty imposed pursuant to this chapter. (Ord. 959, § 28, 2017; Ord. 963, § 15, 2017)

At such time as abatement costs and/or administrative penalties due and owing have no timely been paid, the enforcing officer shall follow the lien hearing and/or alternative lien hearing procedures set forth in §§ 1.06.140 and 1.06.150 of the San Benito County Code, except that in the event that the Board of Supervisors sets the matter for de novo hearing, such hearing shall be held in accordance with the provisions of § 11.15.110. (Ord. 959, § 29, 2017)

Neither this chapter, nor any other provision of this code or action, failure to act, statement, representation, certificate, approval, or permit issued by the county or its departments, or their respective representatives, agents, employees, attorneys or assigns, shall create, confer, or convey any vested or nonconforming right or benefit regarding any cannabis cultivation. (Ord. 949, § 2(part), 2016; Ord. 959, § 31, 2017; Ord. 963, § 17, 2017)

If any section, subsection, sentence, clause, portion, or phrase of this chapter 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 chapter and each section, subsection, sentence, clause, portion, or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid or unconstitutional. (Ord. 949, § 2(part), 2016; Ord. 963, § 19, 2017)

The Board of Supervisors may establish fees related this chapter by ordinance or resolution. (Ord. 949, § 2(part), 2016; Ord. 963, § 21, 2017)

As an alternative to the procedures set forth in §§ 11.15.090 through and including 11.15.115, the county may abate the violation of this chapter by the prosecution of a civil action through the Office of the County Counsel, including an action for injunctive relief. The remedy of injunctive relief may take the form of a court order, enforceable through civil contempt proceedings, prohibiting the maintenance of the violation of this chapter or requiring compliance with other terms. (Ord. 959, § 32, 2017; Ord. 963, § 23, 2017)

Notwithstanding any other provision of this chapter, when any unlawful cannabis cultivation constitutes an immediate threat to public health or safety, and when the procedures set forth in §§ 11.15.090 through and including 11.15.115 would not result in abatement of that nuisance within a short enough time period to avoid that threat, the enforcing officer may direct any officer or employee of the county to summarily abate the nuisance. The enforcing officer shall make reasonable efforts to notify the persons identified in § 11.15.090, but the formal notice and hearing procedures set forth in this chapter shall not apply. The county may nevertheless recover its costs for abating that nuisance in the manner set forth in §§ 11.15.120 through and including 11.15.125. (Ord. 959, § 33, 2017; Ord. 963, § 25, 2017)

All remedies provided for herein are cumulative and not exclusive, and are in addition to any other remedy or penalty

provided by law. (Ord. 959, § 34, 2017)

Notwithstanding any other provision of this code, violation of this chapter shall not be an infraction or a misdemeanor. (Ord. 959, § 35, 2017)