§ 32A-2. Condition creating public nuisance.

(a)

Public Nuisance. A public nuisance shall be deemed to exist when any of the following conditions or circumstances are present:

(1)

Anything which is injurious to health, poses a significant potential to cause economic and/or physical injury or damage to persons or property, or constitutes a significant detriment to the prevention or suppression of fire, or significantly interferes with the provision of emergency services to the public.

(2)

Anything which is indecent or offensive to the senses, or an obstruction to the free use of property so as to unreasonably interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use in the customary manner of any navigable lake, river, bay, stream, canal, or basin or of any public park, square, street or highway and at the same time affects an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals and/or property may be unequal.

(b)

Exclusion of Legitimate Agricultural Operations:

(1)

It is the declared policy of this county to conserve and protect and encourage extensive as well as intensive agricultural production. Where nonagricultural land uses extend into agricultural areas or exist side by side, agricultural operations often become the subject of nuisance complaints. As a result, agricultural operations are sometimes forced to cease operations, and many others are discouraged from making investments in farm improvements. It is the purpose and intent of this section to reduce the loss to the county of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be in violation of the Butte County Code or any county resolution or regulation. This section is not to be construed as to any way modify or abridge the state law set out in the California Civil Code relative to nuisances but rather is only to be utilized in the interpretation and enforcement of the provisions of this Code and county regulations and practices.

(2)

No agricultural activity, operation, or facility, or appurtenances thereof, conducted or maintained in a manner consistent with proper and accepted customs and standards, as established and followed by similar agricultural operations in the same locality, shall be or become a nuisance, private or public, due to any changed condition in or about the locality, after the same has lawfully been in continuous operation for more than three (3) years, if it was not a nuisance at' the time it began.

(3)

Subsection (b)(2), above, shall not apply if the agricultural activity, operation, or facility, or appurtenances thereof obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal, or basin, or any public park, square, street, or highway.

(4)

This subsection (b) shall not invalidate any provision contained in the California Health and Safety Code, Fish and Game Code, Food and Agricultural Code, or Division 7 (commencing with section 13000) of the Water Code, if the agricultural activity, operation, or facility, or appurtenances thereof, constitute a nuisance, public or private, as specifically defined or described in any such provision.

(5)

For purposes of this section, the term "agricultural activity, operation or facility, or appurtenances thereof" shall include but not be limited to the cultivation and tillage of the soil; dairying; the production, cultivation, growing and harvesting of any agricultural commodity, including preparation for market, delivery to storage or to market; or to carriers for transportation to market.

(c)

Other Exclusions:

(1)

Lawfully stored personal property kept for a lawful business purpose on the premises of a junk dealer holding a current, valid license issued pursuant to the provisions of Chapter 11 of this Code, and enclosed by a fence of a type and height recommended by the Planning Commission and included in their instructions to applicant, as provided in section 11-13, and as finally determined by the Board of Supervisors; and

(2)

Lawfully stored personal property, the total amount of which covers not more than one hundred (100) square feet of the area of any parcel.

(d)

Burden of Proof of Public Nuisance: Where a condition or circumstance exists that is deemed to be a public nuisance the burden of proof shall rest with the official or agency making the allegation or determination and shall be based on a preponderance of the evidence as follows:

(1)

Evidence supporting an allegation of the existence of a public nuisance as defined in subsection (a)(1), above, as related to health and safety issues, shall demonstrate that the condition or circumstance poses a threat or detriment to surrounding property, or that reasonable measures have not been instituted to prevent injury to persons through the physical containment or restriction of access to the condition or circumstance, or that it could significantly contribute to the breeding of vectors or the spread of disease, or that it poses a significant fire hazard, or that access to residences, businesses, public buildings or any other place where emergency services may be required has been impaired.

(2)

Evidence supporting an allegation of the existence of a public nuisance, as defined in subsection (a)(2), above, shall demonstrate that a reasonable person would consider the condition or circumstance to be indecent or offensive to the senses or otherwise detrimental and that the alleged nuisance is, in fact, public in nature as it relates to the community, neighborhood or location where the condition or circumstance exists. In addition, the existence of a condition or circumstance that is not a health or safety hazard as defined in subsection (a)(1), above, and that is otherwise screened from public view, and does not emit offensive odors or sound (except as would reasonably occur from agricultural operations excluded in subsection (b) (2), above, or from activity occurring upon any property in the County zoned "S/E," Sports and Entertainment Zone, as described in Butte County Code Section 24-223, where all county, state and federal laws have been complied with, so that such activity occurring on property zoned "S/E" has been conducted in a lawful manner) beyond the property boundaries, shall not be considered to be a public nuisance.

(e)

Abatement of Public Nuisance: Abatement of a condition or circumstance that is alleged to be a public nuisance shall be encouraged to be on a voluntary basis on the part of the violator or, when necessary, performed by official action. Where the condition or circumstance poses a serious and immediate threat to health or safety as defined in subsection (a)(1), above, summary abatement shall be permitted. Otherwise, abatement by official action shall only be carried out after a determination has been made, through the prescribed hearing process, that a public nuisance exists and the determination has not been appealed within the specified period of time. Policy regarding mandatory abatement shall provide the accused with an opportunity to effect the abatement after being so ordered at the hearing, and prior to any official action to abate.

(Ord. No. 3824, § 5, 7-23-2002)