A resolution to approve sweeping changes to the County’s ordinance enforcement rules for ALL LAND USE violations was quietly placed on the Board of Supervisors’ agenda for Tuesday. It is critical to note the County is now treating cannabis enforcement in the same manner as non-cannabis enforcement. But, rather than reduce the already strict cultivation enforcement procedures, the County is proposing to vastly increase their power over unregulated cannabis cultivation and, at the same time, subject enforcement for non-cannabis building and related code violations to these sweeping changes as well.
Here’s a rundown of the proposed changes:
REASONABLE CAUSE REMOVED
Currently, the Code requires “reasonable cause” to issue a citation. Under the proposed changes, a Notice of Violation, Abatement Order, or administrative citation may be issued, “[w]henever an Enforcement Officer determines that a Code Violation exists,” leaving the standard for citation (and massive fines) entirely up to the code officer’s discretion, rather than tethered to any verifiable standard of law.
Perhaps worse than reducing the standard for issuance of a citation, these violations can be enforced against far more people, as the changes drastically expand the definition of who is responsible for code violations. While the “responsible party” is defined in such a sweeping manner that I am doubtful it would withstand legal challenge in all instances, here are the people who may now be held financially liable for the land use violations under the County’s proposed changes:
- The parent or guardian of a minor or “incompetent” person who gets an administrative citation from the County. If your minor or ward gets a ticket, you are financially responsible for their land use violations, even if you do not live on site or own the property.
- Any “independent contractor” who by their inaction maintains a code violation. By its terms, this includes contractors, engineers, architects, environmental consultants a landowner or tenant contracts with to bring a property into compliance, and subjects them to financial liability for simply doing nothing about a code violation when they come onsite, in some cases to cure a code violation.
- An “on-site manager” who regularly works on real property and is responsible for the business or other activities on that property.
- Owners, majority stockholders, corporate officers, trustees, general partners, or anyone else with the authority to act for a legal entity that is a responsible person. This means that anyone who owns any shares of an entity that owns the property, or the entity that owns a company that is running a business on that property, no matter how far removed they are from the operations.
- The new definition of “responsible party” includes a broad catchall that can rope in almost anyone: Any other individual, association, co-partnership, political subdivision, public entity, municipality, industry, public or private corporation, firm, organization, partnership, joint venture or any other person or entity whatsoever whose act or omission caused or contributed to a violation of this Code.”
JOINT AND SEVERAL LIABILITY FOR LANDLORDS
Land owners who rent their properties will become liable “jointly and severally” with their tenants. So if the tenant skips out, the landowner is liable for the debts of their tenant, regardless of whether you had knowledge or not.
Notably, this rule conflicts with a state statute, so again it is not likely the County’s proposed change would withstand legal challenge in instances where (1) there was a tenant, (2) whose written lease prohibited cannabis cultivation, and (3) the land owner did not have actual notice of the cultivation activity.
GROUNDS TO DENY A PERMIT
Folks who receive a Notice of Violation, Abatement Order, or administrative citation should know that the County may now consider these alleged violations as grounds to deny or revoke future permits, even where they are unrelated. Moreover, the County would have authority to suspend any and all permit applications until the purported code violations are cured, effectively halting forward progress and perhaps even denying pending permits, even after the code violations have been resolved successfully.
ADDITIONAL ISSUES OF CONCERN
- Appeals of the County’s administrative hearing decisions will now be “limited civil actions,” rather than the “writ of administrative mandate,” as in the past. This may increase delay and legal costs for appealing the County’s decisions.
- Folks who want to appeal their Notice of Violation, Abatement Order, or administrative citation must pay ALL OF THE PENALTIES IN ADVANCE, just to be eligible for the hearing! (*This is true of the current ordinance as well, but now would apply to all land use violations, not just cultivation.)
- The inspection procedures for obtaining consent and inspection warrants is phrased in such a way to confuse a reasonable person about their ability to decline a request for an inspection.
WHAT YOU CAN DO
If you have issues with the County enacting an ordinance to expand their authority to enforce land use issues to such a sweeping extent, you’re welcome to speak out at the Board of Supervisors’ meeting tomorrow, September 24, 2019, at 9:30 a.m. at the Rood Center at 950 Maidu Avenue, Nevada City, CA 95959.
We’ll see you there.
Heather Burke and Sarah Smale
Origin Group Law LLP