Yuba County Municipal Code Art. 1 General Provisions

Pursuant to authority granted by Article XI Section 7 of the California Constitution, §§ 11362.2(b)(1) and 11362.83(c) of the California Health and Safety Code and § 25845 of the California Government Code, the Yuba County Board of Supervisors does hereby enact this Chapter.

(Ord. No. 1542; Ord. No. 1563)

The purpose and intent in adopting this Chapter is to acknowledge State law as it relates to the cultivation of marijuana for personal medical and non-medical use in order to reduce conditions that create public nuisances through enacting these regulations including without limitation, restrictions as to location of cultivation, the number of marijuana plants, and the use of screening and security structures, to more effectively control the adverse impacts associated with marijuana cultivation, while considering the desires of the general public, qualified patients, primary caregivers, and individuals who cultivate medical and non-medical marijuana, for personal use, in furtherance of the public necessity, health, safety, convenience, and general welfare within the Board's jurisdictional limits. Nothing in this Chapter shall be construed to authorize any use, possession, cultivation, manufacture, transportation, and/or distribution of marijuana in violation of state or federal law regulating such activities.

(Ord. No. 1542; Ord. No. 1563)

A. The Federal Controlled Substances Act, 21 U.S.C. §§ 801 et seq., classifies marijuana as a Schedule I Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision.

B. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, marijuana. The Federal Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution, dispensation, or possession of marijuana for medical purposes.

C. Division 10 of the California Health and Safety Code, Uniform Substance Control Act, makes it unlawful, under State law, for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, marijuana.

D. In 1996, the voters of the State of California approved Proposition 215, "The Compassionate Use Act," (codified as Health and Safety Code § 11362.5) which was intended to decriminalize cultivation and possession of medical marijuana by a seriously ill patient, or the patient's primary caregiver, for the patient's personal use, and to create a limited defense to the crimes of possessing or cultivating marijuana. The Act further provided that nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes.

E. The State enacted SB 420 in 2004 (known as the "Medical Marijuana Program Act," codified as Health and Safety Code § 11362.7 et seq.) to expand and clarify the scope of The Compassionate Use Act of 1996 by creating the Medical Marijuana Identification Card program, creating reasonable regulations for cultivating, processing, transporting and administering marijuana, as well as limiting the amount marijuana a qualified individual may possess. The Medical Marijuana Program Act defines a "primary caregiver" as an individual who is designated by a qualified patient or by a person with an identification card, and who has consistently assumed responsibility for the housing, health, or safety of that patient or person and is further defined in the California Supreme Court decision People v. Mentch (2008) 45 Cal.4 th 274.

F. In 2015 the State enacted AB243, AB266 and SB643 (known as the Medical Cannabis Regulation and Safety Act or "MCRSA"). The three bills created the Bureau of Medical Marijuana Regulation to oversee commercial activities related to the cultivation, testing, manufacturing, distribution and dispensing of medical marijuana in conjunction with the Department of Food and Agriculture and the Department of Public Health. The MCRSA also established the regulatory framework for licensing each activity associated with commercial medical marijuana, including authorizing local jurisdictions to also license and regulate commercial activities related to medical cannabis, while preserving a local jurisdiction's ability to further regulate personal use medicinal marijuana up to and including a complete ban.

G. In 2016, the voters of the State of California approved Proposition 64, The Adult Use of Marijuana Act (AUMA) which, among other things, legalizes marijuana cultivation, possession and use for those 21 years of age, and older, for personal non-medical use with some limitations. The Act further provides the regulatory framework to license, regulate, and tax non-medical cannabis for commercial activities through a variety of State Agencies with the ultimate oversight lying with the Bureau of Cannabis Regulation—formerly the Bureau of Medical Marijuana Regulation. The AUMA also authorizes local jurisdictions to further regulate, license and tax commercial cannabis activities, including allowing the reasonable regulation of personal use non-medical marijuana.

H. The County's geographic and climatic conditions, which include dense forested areas receiving substantial precipitation, provide conditions that are favorable to outdoor marijuana cultivation, thus growers can achieve a high per-plant yield. The Federal Drug Enforcement Administration reports that various types of marijuana plants under various planting conditions may yield averages of 236 grams, or about one-half pound, to 846 grams, or nearly two pounds.

I. The strong distinctive odor of marijuana plants creates an attractive nuisance, alerting persons to the location of the valuable plants, and has resulted in burglary, robbery and armed robbery.

J. The strong and distinctive odor of marijuana plants creates a need to ensure that smells that disrupt the use of adjacent properties are minimized, much in the same way that the County has ordinances currently in place to minimize the smells associated with raising livestock.

K. Children (minor under the age of 18) are particularly vulnerable to the effects of marijuana use and the presence of marijuana plants is an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children (including schools, parks, and other similar locations).

L. The unregulated cultivation of marijuana in the unincorporated area of Yuba County can adversely affect the health, safety, and well-being of the County, its residents and environment. Comprehensive civil regulation of premises used for marijuana cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated marijuana cultivation, and that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place.

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

N. Comprehensive restriction of premises used for marijuana cultivation is proper and necessary to address the risks and adverse impacts as stated herein, that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place.

O. Outdoor marijuana cultivation, especially within the foothills, is creating devastating impacts to California's surface and groundwater resources. The State Water Resources Control Board, the North Coast Regional Water Quality Control Board, the Central Valley Regional Water Quality Control Board and the Department of Fish and Wildlife have seen a dramatic increase in the number of marijuana gardens, and corresponding increases in impacts to water supply and water quality, including the discharge of sediments, pesticides, fertilizers, petroleum hydrocarbons, trash and human waste. The sources of these impacts result from unpermitted and unregulated timber clearing, road development, stream diversion for irrigation, land grading, erosion of disturbed surfaces and stream banks, and temporary human occupancy without proper sanitary facilities.

P. The immunities from certain prosecution provided to qualified patients and their primary caregivers under State law to cultivate medical marijuana plants for medical purposes, as well as the legalization to cultivate marijuana for recreational use 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 complaints of odor and the risks of fire, crime and pollution caused or threatened by the unregulated cultivation of marijuana in the unincorporated area of Yuba County.

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

R. In Browne v. County of Tehama, 213 Cal. App. 4 th 704 (2013), the California Court of Appeal stated that "Neither 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." Similarly, in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal. 4 th 729 (2013), 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…" Additionally, in Maral v. City of Live Oak (2013), 221 Cal. App. 4 th 975, 983, review denied 2014 Cal. LEXIS 2402 (March 26, 2014), the same Court of Appeal held that "there is no right—and certainly no constitutional right—to cultivate medical marijuana…" The Court in Live Oak affirmed the ability of a local governmental entity to prohibit the cultivation of marijuana under its land use authority.

S. State law authorizes a person 21 years, or older, to possess, process, transport, purchase, obtain, or give away, without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis and not more than eight grams of concentrated cannabis for personal medical and/or non-medical use.

T. State law authorizes a person 21 years, or older, to possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants.

U. State law exempts from licensure the cultivation of a limited number of marijuana plants for both medical and non-medical personal use and authorizes local jurisdictions to reasonably regulate cultivation through local land use and zoning laws.

(Ord. No. 1542; Ord. No. 1563)

The provisions of this Chapter shall apply generally to all marijuana cultivation throughout the unincorporated area of the County of Yuba.

(Ord. No. 1542; Ord. No. 1563)

The provisions contained in this Chapter shall supersede any previous regulations related to marijuana cultivation. No person, firm, corporation or entity shall have any vested right to cultivate marijuana in any manner that is contrary to or inconsistent with the provisions contained herein.

(Ord. No. 1563)

Editor's note— Ord. No. 1563, § 2, adopted April 4, 2017 renumbered §§ 7.40.140 and 7.40.150 as §§ 7.40.150 and 7.40.160.

A. Regardless of whether an owner is in actual possession of his or her real property, it is the duty of every owner of real property within the unincorporated area of Yuba County to prevent a public nuisance from arising on, or from existing upon, his or her real property.

B. No person or entity shall cause, permit, maintain, conduct or otherwise allow a public nuisance as defined in this Chapter to exist upon any property within their control and shall not cause a public nuisance to exist upon any other property within the unincorporated limits of the County of Yuba. 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 Yuba to remove, abate and prevent the reoccurrence of any public nuisance upon such land.

(Ord. No. 1542; Ord. No. 1563)

Editor's note— See editor's note, § 7.40.140.

Nothing contained in this Chapter shall be construed to prohibit the right of any person or public or private entity damaged by any violation of this Chapter to institute a civil proceeding for injunctive relief against such violation, for money damages, or for whatever other or additional relief the court deems appropriate. The remedies available under this Chapter shall be in addition to, and shall not in any way restrict other rights or remedies available under law.

(Ord. No. 1542; Ord. No. 1563)

Editor's note— See editor's note, § 7.40.140.