The MENDOCINO COUNTRY Independent
8/29/09
COUNTY UPDATING NUISANCE ABATEMENT
    As property tax revenues to the treasurer, and permit fees to the building department fell off last year, Mendocino County supervisors began a rewrite the Uniform Abatement Procedure as a way of encouraging more compliance and beefing up the county coffers.
    Chapter 8.75 of county ordinances is the nuisance law  authorized by the "police powers" in state Government Code section 25845.  It was designed in the first place to deal with garbage, piled up vehicles, building code violations and similar low level threats to public health and safety.
    But now, parts of the Medical Marijuana Regulation Ordinance 9.31 are based on ordinance 8.75 and derives its overall authority from the same county police powers granted in state law. That ordinance, originally passed in February 2008, limits grows to 25 plants per parcel, but  is now in the process of being liberalized to provide for collectives and cooperatives growing up to 99 plants.
    Specifically, section 9.31.130, Enforcement (B) provides the county may seek abatement of marijuana grows as nuisances under 8.75. Abatement of a marijuana nuisance would begin with an initial visit by deputies responding to complaints and issuing citations. Any subsequent inspections would be conducted by building department officials, according to county counsel Nadel.
    Alternatively. abatement of a marijuana nuisance could be accomplished by a court order for injunctive relief.

    County Counsel Jeanine Nadel, RJ foto
nadel.jpgStiff Fines                                                                                                                                    
    Ordinance No. 4183 provides for the assessment of civil penalties for failure to abate public nuisances, leading ultimately to recordation of tax liens against the title to property for those who fail to abate public nuisances.
    That current version of County ordinance 8.75 provides for fines of up to $100 a day for the first offense, up to $200 per day for the second offense, and to $500 per day for a third offense.
    An  authorized Enforcement Officer would only enter private property upon receipt of a complaint. If they determine there is a violation, they can cite you and return without your permission to inspect to see if you have abated the condition.

Costly, Risky Appeal Process
    There is an appeal process, but only to an administrative judge hired by the building department. The appeal costs a nonrefundable fee of $1,100 or more.
    The appeal stays the fines and abatement order. But if you lose the appeal, the fines resume until you or the county abates the nuisance. The county then would compute all associated costs including administrative and attorney fees which are then recorded as a tax lien on your property.
    The state revenue and taxation code provides that if your property taxes are not paid in 5 years from when due, the property can default to the county and be sold at auction
    However, instead of stonewalling or appealing you abate the nuisance yourself , you can then pay your fines directly to the Enforcement Officer to remove the violation.

Summary Abatement
    There is a procedure for "summary abatement" in which the Enforcement Officer can take matters into his own hands or command resources to abate a nuisance without going through the citation procedure, but only in cases when in their judgment "immediate action is necessary to protect the public health or safety."

Revenue Source?
     In October of 2008, Mr. Frank Lynch, Interim Director, Planning and Building Services, and Mr. Jim McCleary, Code Enforcement Officer said the backlog of cases was substantial as it has been over 10 years that the County has not had effective sanctions in place to abate violations -- or collect fines.
     McCleary claimed that approximately 68 nuisance abatement orders were in effect at that time, and that staff were receiving approximately 40 cases per month and issuing notices accordingly.     The officials proposed a process to review nuisance cases every 90 days, treating the second 90 days after the first as second offense with the $200 per day fine, and any after 180 days as a third offense with the $500 per day fines as provided in the ordinance as revised at that time.
    They said the same cases would come before the Board over and over again every 90 days with increasing penalties until the fees and taxes are paid or the property defaulted and sold at auction.
    McCleary said he would approach the Board with requests for liens; and will return before the Board every 90 days. But this did not happen.
       In December of 2009, the county Building Department released a list of 59 nuisance violations to MENDOCINO COUNTRY pursuant to the state Public Records Act and the Freedom of Information Act. We wanted to know if the nuisance laws were being abused to target back to the land owner builders or marijuana gardens in violation of the mmj nuisance ordinance limit of 25 plants.    
       However, the list contained only 51 cases and many of them were closed. Of the open cases five years or older, there were only five. None dealt with marijuana.

This Year's Update:
    On August 18, 2009, county counsel Nadel proposed amendments to the ordinance to clarify the method of assessing fines, providing for a board-appointed panel to hear appeals, and instituting an appeal process for those cases moving to the lien phase.
    Instead of the BOS hearing individual cases, another administrative Hearing Officer would impose liens. Once liens are placed on property, they continue until they are paid off by the offender or the property defaulted.
    Remaining constant in the 2009 version is section 8.75.125. Failure of the owner to abate after being cited or ordered by a Hearing Officer after the first 90 days is treated as a second offense, and after 180 days as a third offense. Soon we are talking hundreds of thousands of dollars per year.
    On August 18 at a BOS meeting in Fort Bragg, supervisors agreed 3-2 with Pinches and Colfax dissenting to move the amended ordinance to the September 1 meeting for final approval with a modification that refusal to allow a county official authorized to enforce the ordinance onto property to inspect or abate a cited violation would be a misdemeanor except in marijuana cases.
    At the meeting, Mendocino Medical Marijuana Advisory Board members attacked the nuisance ordinance with emotional rhetoric equating it with a violation of their civil liberties, fearing summary abatement by warrantless deputies and building inspectors. Supervisors Colfax and Pinches bought into that rhetoric in voting against the amended ordinance, signalling that ordinance 9.31 with its permit for 99 plant gardens was in serious risk of being shot down at the board level when it eventually comes up for a vote.
    Cannabis consumers are not being well represented by MMMAB and deserve better spokespeople if the county's collective and cooperative provisions are ever to see the light of day.