HomeMy WebLinkAbout6.5 MuniCode Prop Maint
CITY CLERK
File # D[2]~[!2]-~~
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: June 17, 2008
SUBJECT:
ATTACHMENTS:
RECOMMENDATIO~
FINANCIAL STATEMENT:
DESCRIPTION:
PUBLIC HEARING: Amendment of Dublin Municipal Code
Chapter 5.64 (Property Maintenance)
Report Prepared by Elizabeth H Silver, Assistant City Attorney and
Stephen Muzio, Associate Attorney
1.
Ordinance Amending Dublin Municipal Code Chapter 5.64
relating to Property Maintenance.
Clean copy of ordinance.
2.
1.
2.
3.
4.
5.
Receive Staff presentation;
Open public hearing;
Receive public testimony;
Close public hearing and deliberate;
Waive reading and INTRODUCE the Ordinance Amending
Chapter 5.64 of the Dublin Municipal Code relating to
Property Maintenance (Attachment 1).
None.
At its March 22,2006 Goals and Objectives meeting, the City Council reviewed and approved with high
priority the comprehensive update to certain chapters of the Dublin Municipal Code (DMC). One chapter
proposed for review is DMC Chapter 5.64, which declares that maintaining certain conditions such as
accumulated dirt or trash, overgrown vegetation and discarded furniture on residential or nonresidential
property shall constitute a nuisance. The Chapter requires that property owners whose property has been
deemed a nuisance by the City Manager abate the conditions giving rise to this determination. In the
event that the owner neglects to do so, the City may abate the conditions and seek reimbursement from the
owner to recoup the City's expenses. In the event of nonpayment of the City's expenses, the City has the
additional remedy of imposing a special assessment on the property, which will then cause the owner to be
assessed the amount owed in his or her annual property tax bill, levied by the Alameda County Auditor-
Controller.
Staff has reviewed the Chapter and recommends that, in addition to minor changes intended to improve
the Chapter's clarity and ensure that it is consistent with the rest of the Dublin Municipal Code,
COpy TO:
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Page 1 of2
b.5
ITEM NO.
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substantive changes be made to this Chapter to ensure the Dublin Municipal Code contains uniform
procedures for the collection of costs incurred by the City in the abatement of nuisances.
Attorneys' Fees. Government Code (GC) Section 38773.5(b) states that "[i]fthe ordinance provides for
the recovery of attorneys' fees, it shall provide for recovery of attorneys' fees by the prevailing party,
rather than limiting recovery of attorneys' fees to the city if it prevails." Section 1.04.062, adopted in
1999, was drafted in accordance with the GC statute, which allows the City, at the onset of any individual
action or proceeding to abate a nuisance, to determine whether it will seek attorneys' fees. However,
Section 5.64.170 of this Chapter includes "attorneys' fees" in the definition of "incidental expenses."
This could be understood to be inconsistent with Section 1.04.062. For this reason, we recommend
deleting the reference to attorneys' fees here, and the insertion of a new section, 5.64.210, which clearly
states that the recovery of attorneys' fees shall be governed by the provisions of Section 1.04.062. In the
event that the City elects to do so, it would be exposed to the risk of paying attorneys' fees if it did not
prevail. However, the amount of such fees may not exceed the reasonable attorneys' fees incurred by the
City in that proceeding. This will allow the City to make a determination, on a case-by-case basis, to seek
attorneys' fees based on an assessment of both the likelihood of success in a given proceeding. The
amount of money at stake should the other party prevail would be limited by the City's own legal
expenses.
Assessment procedure. Cities are authorized by GC sections 38773 and 38773.5 to engage in these
abatement and assessment activities. When a city levies an assessment against property, it should comply
with the requirements ofGC S 38773.5. We recommend the Council amend the provisions of this chapter
to incorporate proposed new section 1.04.061 which will provide uniform procedures for recovery of the
City's costs of abating nuisances. Accordingly, Section 5.64.210 has been deleted and a new section
inserted, which refers to the provisions of the new Section 1.04.061. As amended, the Chapter would
provide that once the Council has established, by resolution, the costs to the City of abating the nuisance,
the provisions in Section 1.04.061 shall take effect. This new Section describes the steps the City
Administrative Services Director shall take following the resolution of the City Council. The Director
will record a Notice of Lien with the County Recorder, provide notice to the property owner by certified
mail, and file a certified copy of the Council's resolution confirming the costs of abatement with the
County Auditor-Controller prior to August 1.
Section 5.64.210(C) permits the City to forego collecting the assessment through the collection of regular
property tax bills and, instead, foreclose on the property "by judicial or other sale in the manner and
means provided by law." GC Section 38773.5 provides that the notice sent to the property owner "shall
specify that the property may be sold after three years by the tax collector for unpaid delinquent
assessments." In place of the current Section 5.64.210(C), the provisions of proposed new Section
1.04.061(B), drafted in accordance with the Government Code, would apply.
Administrative Hearing and Appeal. In order to ensure consistency with Chapter 5.68 (Graffiti), which
contains similar administrative hearing and appeal provisions, Section 5.64.120 has been amended.
City Planning and Code Enforcement Staff have reviewed this ordinance and concur with the suggested
changes.
RECOMMENDATION
Staff recommends that the City Council: 1) receive Staff presentation; 2) open public hearing; 3) receive
public testimony; 4) close public hearing and deliberate; 5) waive reading and INTRODUCE the
Ordinance Amending Chapter 5.64 of the Dublin Municipal Code relating to Property Maintenance
(Attachment 1).
Page 2 of2
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
AMENDING CHAPTER 5.64 OF THE DUBLIN MUNICIPAL CODE
RELATING TO PROPERTY MAINTENANCE
WHEREAS, pursuant to California Government Code Sections 38773 and 38773.5, the
City of Dublin may adopt procedures by which nuisances may be summarily abated at the
expense of persons maintaining them, and by which such expenses may also be imposed as a
special assessment on that parcel of land on which the nuisance is abated; and
WHEREAS, the City of Dublin Municipal Code Chapter 5.64 declares the existence of
certain conditions on residential and nonresidential properties to be a nuisance and provides
procedures for the abatement of any such nuisance, secured by a special assessment on the parcel
of land on which the nuisance is abated; and
WHEREAS, the City Council has enacted a new Chapter 1.04.061 ofthe Dublin
Municipal Code which establishes uniform procedures for the collection of costs incurred by the
City in the abatement of nuisances; and
WHEREAS, the City Council further wishes to clarify the provisions and procedures
contained in the City of Dublin Municipal Code Chapter 5.64.
NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows:
Section 1. Chapter 5.64 of the Dublin Municipal Code is revised as follows, with
deletions indicated in strikethrough and additions indicated in underline:
Article I. General Provisions
5.64.010 Definitions.
"Back yard" means that portion of property between a building and the back property line.
"Building" means any house, garage, duplex, apartment, condominium, stock cooperative, and
other residential and nonresidential structures.
"City" means the eCity of Dublin.
"City Manager" means the City Manager or his designees.
"Front yard" means that portion of property between the street and a building.
"Owner" means any person owning property, as shown on the last equalized assessment roll
for eCity taxes or the lessee, tenant or other person having control or possession of the property.
"Person" means any individual, partnership, corporation, association or other organization,
however formed.
"Property" means (a) all nonresidential zoned real property and any building structure located
on such property, referred to herein as nonresidential property; and (b) front yards, the unfenced
portions of side yards, the unfenced portion of back yards of corner lots, driveways, walkways,
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ATTACHMENT 1 l
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and sidewalks of all residential real property and shall include any building located on such
property, referred to herein as residential property.
"Side yard" means that portion of property between the principal structurea building and the
side property line.
5.64.020 Enforcement authority designated-Civil actions available.
Nothing in this chapter shall be deemed to prevent the Council from ordering the
commencement of a civil proceeding to abate a public nuisance pursuant to applicable law or
from pursuing any other remedy available under applicable law. Violation of the provisions of
this chapter constitutes an infraction. The City Manager is designated as the enforcement
authority .
5.64.030 Violation-Penalty.
A. Any person, firm, or corporation violating or causing, or permitting to be violated any of
the provisions of this chapter shall be deemed guilty of an infraction.
B. Any person, firm, or corporation convicted of an infraction under the provisions of this
chapter shall be punishable as provided in Government Code Section 36900. Any violation
beyond the third conviction within a one-year period may be charged by the District Attorney as
a misdemeanor and the penalty for conviction of the same shall be subjeet to a fine or
imprisonment or both not to exceed the limits set forth in California Penal Code Section 19.
C. Each person, firm, or corporation shall be guilty of a separate offense for each and every
day during any portion of which any violation of any provision of this chapter is committed,
continued or permitted by such person and shall be punishable accordingly.
D. The City Manager shall have the power to designate by written order that particular
officers or employees shall be authorized to enforce particular provisions of this chapter. Officers
or employees so designated shall have the authority to arrest persons who violate any of said
proVISIOns.
Article II. Nuisances
5.64.040 Residential property.
It is unlawful for any person owning, leasing, renting, occupying or having charge or
possession of any residential property in the eCity to maintain or to allow to be maintained such
property in such manner that any of the following conditions are found to exist thereon, for an
unreasonable period of time and which are visible from a public street, except as may be allowed
by any other provision of law; including provisions of eCity ordinances:
A. The accumulation of dirt, litter or debris;
B. Clotheslines or clothes hanging in front yards;
C. Boxes, bins, containers, fire wood, lumber, junk, trash, recvclables, salvage materials,
building: materials, landscaping: materials or other similar materials;
D. Attractive nuisances dangerous to children including abandoned, broken, or neglected
equipment, machinery, tools, refrigerators and freezers, hazardous pools, ponds, and excavations;
E. Broken or discarded furniture, household equipment, electronic equipment and furnishings
or shopping carts;
F. Overgrown vegetation likely to harbor rats, vermin and other nuisances dangerous to public
health, safety, and welfare, or obstructing a necessary view of drivers on public streets or private
driveways;
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G. Weeds, dead, decayed, diseased or hazardous trees, fallen leaves and other vegetation
constituting an unsightly appearance or .!l.dangerffi:tS to public health, safety and welfare;
H. Graffiti on the exterior of any building, fence. wall. automobile or other structure;
1. Vehicle parts or other articles of personal property which are abandoned or left in a state of
partial construction or repair;
J. Mobile homes, recreational vehicles, utility trailers, unmounted campertops, boats, cars,
trucks, or other vehicles, that are parked or stored in violation of the zoning provisions; aBdfef
K. Fences and walls which have become dilapidated or are in a state of disrepair;
L. Automobiles parked or stored on property other than on a driveway or other impervious
surface;
KM. Buildings which are abandoned, boarded up, partially destroyed, or left in a state of
partial construction; and/or
N.aae _sueh bllildingsStructures which are unpainted or where the paint on the building
exterior is chipping. peeling. cracked or mostly worn off.
5.64.050 Nonresidential property.
It is unlawful for any person owning, leasing, renting, occupying or having charge or
possession of any nonresidential property in the eCity to maintain or to allow to be maintained
such property in such manner that any of the following conditions are found to exist thereon for
an unreasonable period of time and are visible from a public street, except as may be allowed by
any other provision of law including provisions of eCity ordinances:
A. The accumulation of dirt, litter, or debris;
B. Boxes, bins, containers, fire wood, lumber, junk, trash, recvclables. salvage materials,
building materials. landscaping materials or other similar materials;
C. Attractive nuisances dangerous to children including abandoned, broken, or neglected
equipment, machinery, tools. refrigerators and freezers, hazardous pools, ponds, and excavations;
D. Broken or discarded furniture, household equipment. electronic equipment and furnishings
or shopping carts;
E. Overgrown vegetation likely to harbor rats, vermin and other nuisances dangerous to
public health, safety, and welfare, or obstructing a necessary view of drivers on public streets or
private driveways;
F. Weeds, dead, decayed, diseased or hazardous trees, fallen leaves and other vegetation
constituting an unsightly appearance or dangerous to public health, safety and welfare;
G. Vehicle parts or other articles of personal property which are abandoned or left in a state of
partial construction or repair;
H. Mobile homes, recreational vehicles, utility trailers, unmounted campertops, boats, cars,
trucks, or other vehicles, that are parked or stored in violation of the zoning provisions;
1. Graffiti on the exterior of any building, fence. wall. automobile or other structure;
J. Fences and walls which have become dilapidated or are in a state of disrepair;
JK. Buildings which are abandoned, boarded up, partially destroyed, or left in a state of
partial construction;..and
~such buildingsStructures which are unpainted or where the paint on the building exterior is
chipping. peeling. cracked or mostly worn off.
5.64.060 Declaration of public nuisance.
Any property found to be maintained in violation of Sections 5.64.040 or 5.64.050 is declared
to be a public nuisance and shall be abated by rehabilitation, removal, demolition, or repair
pursuant to the procedures set forth herein. The procedures for abatement set forth herein shall
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not be exclusive and shall not in any manner limit or restrict the City from enforcing other eCity
ordinances or abating public nuisances in any other manner provided by law.
Article III. Abatement Procedure
5.64.070 Notification of nuisance.
Whenever the City Manager determines that any property within the eCity is being maintained
contrary to one or more ofthe provisions of Sections 5.64.040 and 5.64.050, he shall give written
notice, "Notice to Abate", to the owner of the property stating the section(s) being violated. Such
notice shall set forth a reasonable time limit, in no event less than seven (7) calendar days, for
correcting the violation(s) and may also set forth suggested methods of correcting the same. Such
notice shall be served upon the owner in accordance with provisions of Section 5.64.090
covering service in person or by mail.
5.64.080 Administrative hearing-Generally.
In the event the owner shall fail, neglect or refuse to comply with the "Notice to Abate," the
City Manager shall conduct an administrative hearing to ascertain whether the violation
constitutes a public nuisance.
5.64.090 Notice of hearing.
Notice of said hearing shall be served upon the owner not less than seven (7) calendar days
before the time fixed for hearing. Notice of hearing shall be served in person, and by first:class
mail, postage prepaid or by eertified m.ail to the owner's last known address. Service shall be
deemed complete at the time notice is personally served or deposited in the mail. Failure of any
person to receive notice shall not affect the validity of any proceedings hereunder. Notice shall
be substantially in the format set forth below:
NOTICE OF ADMINISTRATIVE HEARING ON ABATEMENT OF NUISANCE
This is a notice of hearing before the City Manager (or his/her designees) to ascertain
whether certain property situated in the City of Dublin, State of California, known and
designated as (street address), in said City, and more particularly described as (assessor's
parcel number) constitutes a public nuisance subject to abatement by the rehabilitation of such
property or by the repair or demolition of buildings situated thereon. If said property, in whole
or part, is found to constitute a public nuisance as defined in this Ordinance and if the same is
not promptly abated by the owner, such nuisance may be abated by municipal authorities, in
which case the cost of such rehabilitation, repair or demolition will be assessed upon such
property and such costs, together with interest thereon, will constitute a lien upon such
property until paid; in addition, you may be cited for violation of the provisions of the City
ordinances and subject to a fine.
Said alleged conditions consist of the following:
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The methods of abatement are:
All persons having an interest in said matters may attend the hearing and their testimony
and evidence will be heard and given due consideration.
Dated this _ day of , +9~.
City Manager
Time and Date of Hearing:
Location of Hearing:
5.64.100 Administrative hearing-Procedure.
A. At the time stated in the notice, the City Manager shall hear and consider all relevant
evidence, objections or protests, and shall receive testimony under oath relative to such alleged
public nuisance and to proposed rehabilitation, repair, removal or demolition of such property.
The hearing may be continued from time to time.
B. If the City Manager finds that such public nuisance does exist and that there is sufficient
cause to rehabilitate, demolish, remove or repair the same, the City Manager shall prepare
findings and an order, which shall specify the nature of the nuisance, the methode s) of abatement
and the time within which the work shall be commenced and completed. The order shall include
reference to the right to appeal set forth in Section 5.64.120. A copy of the findings and order
shall be served on all owners of the subject property in accordance with the provisions of Section
5.64.090. In addition, a copy of the findings and order shall be forthwith conspicuously posted
on or near the property.
5.64.110 Nuisance finding-Procedure when no appeal.
In the absence of any appeal, the property shall be rehabilitated, repaired, removed or
demolished in the manner and means specifically set forth in the findings and order. In the event
the owner fails to abate the nuisance as ordered the City Manager shall cause the same to be
abated by City employees or private contract. The costs shall be billed to the owner, as specified
in Section 5.64.170. Absent consent to enter the subject property for the purpose of nuisance
abatement, the City Manager shall direct the City Attorney to obtain the necessary judicial
authority for entry and abatement purposes.
5.64.120 Appeal procedure.
A. The owner may appeal the City Manager's findings and order to the City Council
("Council").. Any appeal to the City Council must be in writing. and must be made within fifteen
(15) dayS from the date of service of the decision of the City Manager. The request for an appeal
to the City Council shall be addressed to the City Manager and shall be deemed served only
when received by the City. Failure to properly serve the request for appeal to the City Council
within the fifteen (15) day period shall be deemed a waiver of the right to appeal the matter to
the City Council and the decision of the City Manager shall become final.
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by filing an appeal 'Nith the City Clerk ,...ithin se'/en (7) calendar days of the date of serviee of
the City Manager's deeision. The appeal shall contain:
1. A specific identification of the subj ect property;
2. The names and addresses of all appellants;
3. A statement of appellant's legal interest in the subject property;
4. A statement in ordinary and concise language of the specific order or action protested and
the grounds for appeal, together with all material facts in support thereof;
5. The date and signatures of all appellants; and
6. The verification of at least one (1) appellant as to the truth of the matters stated in the
appeal.
B. As soon as practicable after receiving the appeal, the City Clerk shall set a date for the
Council to hear the appeal which date shall be not less than seven (7) calendar days nor more
than thirty (30) calendar days from the date the appeal was filed. The City Clerk shall give each
appellant written notice of the time and the place of the hearing at least five (5) calendar days
prior to the date of the hearing, either by causing a copy of such notice to be delivered to the
appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at
his address shown on the appeal. Continuances of the hearing may be granted by the Council on
request of the owner for good cause shown, or on the Council's own motion.
5.64.130 Appeal hearing procedure.
A. All hearings shall be tape recorded.
B. Hearings need not be conducted according to the technical rules of evidence.
C. Hearsay evidence may be used for the purpose of supplementing or explaining any direct
evidence, but shall not be sufficient in itself to support a finding unless it would be admissible
over objection in civil actions in courts of competent jurisdiction in this state. Any relevant
evidence shall be admitted if it is the type of evidence on which reasonable 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 such evidence over objection
in civil actions in courts of competent jurisdiction in this state.
D. Oral evidence shall be taken only on oath or affirmation.
E. Irrelevant and unduly repetitious evidence shall be excluded.
5.64.140 Decision by City Council.
Upon the conclusion of the hearing, the Council shall determine whether the property or any
part thereof, as maintained, constitutes a public nuisance. If the Council so finds, the Council
shall adopt a resolution declaring such property to be a public nuisance, setting forth its findings
and ordering the abatement of the same by having such property rehabilitated, repaired, removed
or demolished in the manner and means specifically set forth in the resolution. The resolution
shall set forth the time within which such work shall be completed by the owner, in no event less
than thirty (30) days. The decision and order of the Council shall be final.
5.64.150 Service of order to abate.
A copy of the resolution of the Council ordering the abatement of said nuisance shall be
served upon the owner(s) of the property in accordance with the provisions of Section 5.64.090.
Upon abatement In full by the owner, the proceedings hereunder shall terminate.
5.64.160 Filing appeal of City Council's decision-Time limit.
Any action appealing the Council's decision and order shall be commenced within thirty (30)
calendar days of the date of service of the decision.
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5.64.170 Abatement by eCity.
A. If such nuisance is not abated as ordered within the abatement period, the City Manager
shall cause the same to be abated by eCity employees or private contract. Absent consent to enter
the subject property for the purpose of nuisance abatement, the City Manager shall direct the
City Attorney to obtain the necessary judicial authority for entry and abatement purposes. The
cost, including incidental expenses, of abating the nuisance shall be billed to the owner and shall
become due and payable thirty (30) days thereafter. The term "incidental expenses" means and
includes, but is not limited to, personnel costs, both direct and indirect, ine1l:lding attorney's f-ees;
costs incurred in documenting the nuisance; the actual expenses and costs of the City in the
preparation of notices, specifications and contracts, and in inspecting the work; and the costs of
printing and mailing required hereunder.
B. A person shall not obstruct, impede, or interfere with the City Manager, or his
representative, or with any person who owns, or holds any interest or estate in any property in
the performance of any necessary act, preliminary to or incidental, carrying out an abatement
order issued pursuant to Sections 5.64.100 and 5.64.140 of this chapter.
5.64.180 Demolition restrictions.
No property shall be found to be a public nuisance under Sections 5.64.040 K or 5.64.050 J
and ordered demolished unless the order is based on competent sworn testimony and it is found
that in fairness and in justice there is no way other than demolition reasonably to correct such
nuisance.
5.64.190 Notice of intent to demolish.
A copy of any order or resolution requiring abatement by demolition under Sections 5.64.100
or 5.64.150 shall be forthwith recorded with the Alameda County Recorder.
Article IV. bieB-Assessment Procedure
5.64.200 Record of cost of abatement.
The City Manager shall keep an account of the cost, including incidental expenses, of abating
such nuisance on each separate lot or parcel of land where the work is done by the eCity and
shall render an itemized report in writing to the City Council showing the cost of abatement,
including the rehabilitation, demolition or repair of said property, including any salvage value
relating thereto; provided that before the report is submitted to the City Council, a copy of the
same shall be posted for at least five (5) days upon or in front of such property, together with a
notice of the time when said report shall be heard by the City Council for confirmation. A copy
of the report and notice shall be served upon the owners of said property in accordance with the
provisions of Section 5.64.090 at least five (5) calendar days prior to submitting the same to the
City Council. Proof of the posting and service shall be made by affidavit filed with the City
Clerk. The Council may make such modifications to the report as it may deem necessary. after
which such report shall be confirmed by resolution.
5.64.210 Attornev's fees.
The rules governing the recovery of attorneys' fees for nUIsance abatement actions or
proceedings shall be those provided in Section 1.04.062.
5.64.2Il0 ,A..ssessmeBt lieBRecoverv of abatement expenses.
The procedures governing the recovery of the City's costs of abating nuisances shall be those
provided in Section 1.04.061.
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A. The total cost for abating such nuisance, as so confirmed by the City Council, shall
constitute a speeial assessment against the respective lot or parcel of land to which it relates, and
upon recordation in the office of the County Reeorder of a Notice of Lien, as so made and
eonfirmed, shall constitute a lien on said property for the amount of such assessment.
B. .^..fter such confirmation and recordation, a certified eopy of the cOlHleil's decision shall be
filed with the Alameda County f..l:lditor Controller on or before f..ugl:lst 1 st of each year,
whereupon it shall be the duty of the ,'\uditor Controller to add the amooots of the respective
assessments to the next regulBi" tax bills levied against said respeetb:e lots and pBi"cels of land for
munieipal purposes and thereafter said amounts shall be eolleeted at the same time and in the
same manner as ordinBi"Y munieipal twces Bi"e eolleeted, and shall be sl:lbjeet to the same penalties
and the same proeedme and sale in ease of deliaql:leney as provided for ordinBi"Y ml:lnieipal taxes.
f..lllaws applieaale to too levy, eolleetion and enforcement ofmooicipal taxes shall be applicable
to SHea speeial assessment.
C. In the altematiye, after sueh reeordation, sl:lch lien may be foreclosed by jl:ldicial or other
sale in the mar.ner and means provided by lav/.
5.64.2~~0 Notice of lien.
The&ieh notice of lien for recordation shall be in form substantially as follows:
NOTICE OF LIEN
(Claim of City of Dublin)
Pursuant to the authority vested by the provisions of Section of Dublin Ordinance
No. , the City Manager of the City of Dublin did on or about the day of
+9~, cause the property hereinafter described to be rehabilitated or the building or
structure on the property hereinafter described, to be repaired or demolished in order to abate a
public nuisance on said real property; and the City Council of the City of Dublin did on the
day of , +9~, assess the cost of such rehabilitation, repair or demolition
upon the real property hereinafter described; and the same has not been paid nor any part
thereof; and that said City of Dublin does hereby claim a lien on such rehabilitation, repair, or
demolition in the amount of said assessment, to wit: the sum of $ : and the same, shall
be a lien upon said real property until the same has been paid in full and discharged of record.
The real property hereinabove mentioned, and upon which a lien is claimed, is that certain
parcel of land lying and being in the City of Dublin, County of Alameda, State of California,
and particularly described as follows:
(description)
Dated this
day of
,+9~.
City Manager
City of Dublin
Section 2. Severability. The provisions of this Ordinance are severable and if any
provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or
inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or
inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences,
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sections, words or parts thereof of the ordinance or their applicability to other persons or
circumstances.
Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty
(30) days following its adoption.
Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance
to be posted in at least three (3) public places in the City of Dublin in accordance with Section
36933 of the Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this _ day of
,2008.
AYES:
NOES:
ABSENT:
ABSTAIN:
Janet Lockhart, Mayor
ATTEST:
Carolyn Parkinson, Interim City Clerk
11032332.4
10 ~. /8
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
**********
AMENDING CHAPTER 5.64 OF THE DUBLIN MUNICIPAL CODE
RELATING TO PROPERTY MAINTENANCE
WHEREAS, pursuant to California Government Code Sections 38773 and 38773.5, the City of
Dublin may adopt procedures by which nuisances may be summarily abated at the expense of persons
maintaining them, and by which such expenses may also be imposed as a special assessment on that
parcel of land on which the nuisance is abated; and
WHEREAS, the City of Dublin Municipal Code Chapter 5.64 declares the existence of certain
conditions on residential and nonresidential properties to be a nuisance and provides procedures for the
abatement of any such nuisance, secured by a special assessment on the parcel of land on which the
nuisance is abated; and
WHEREAS, the City Council has enacted a new Chapter 1.04.061 of the Dublin Municipal Code
which establishes uniform procedures for the collection of costs incurred by the City in the abatement of
nuisances; and
WHEREAS, the. City Council further wishes to clarify the provisions and procedures contained in
the City of Dublin Municipal Code Chapter 5.64.
NOW, THEREFORE, the City Council ofthe City of Dublin does hereby ordain as follows:
Section 1. Chapter 5.64 of the Dublin Municipal Code is revised as follows:
Article I. General Provisions
5.64.010 Definitions.
"Back yard" means that portion of property between a building and the back property line.
"Building" means any house, garage, duplex, apartment, condominium, stock cooperative, and other
residential and nonresidential structures.
"City" means the City of Dublin.
"City Manager" means the City Manager or his designees.
"Front yard" means that portion of property between the street and a building.
"Owner" means any person owning property, as shown on the last equalized assessment roll for City
taxes or the lessee, tenant or other person having control or possession of the property.
"Person" means any individual, partnership, corporation, association or other organization, however
formed.
"Property" means (a) all nonresidential zoned real property and any structure located on such property,
referred to herein as nonresidential property; and (b) front yards, the unfenced portions of side yards, the
unfenced portion of back yards of corner lots, driveways, walkways, and sidewalks of all residential real
property and shall include any building located on such property, referred to herein as residential
property.
"Side yard" means that portion of property between the principal structure and the side property line.
ATTACHMENT 2
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5.64.020 Enforcement authority designated-Civil actions available.
Nothing in this chapter shall be deemed to prevent the Council from ordering the commencement of a
civil proceeding to abate a public nuisance pursuant to applicable law or from pursuing any other remedy
available under applicable law. Violation of the provisions of this chapter constitutes an infraction. The
City Manager is designated as the enforcement authority.
5.64.030 Violation-Penalty.
A. Any person, firm, or corporation violating or causing, or permitting to be violated any of the
provisions of this chapter shall be deemed guilty of an infraction.
B. Any person, firm, or corporation convicted of an infraction under the provisions of this chapter shall
be punishable as provided in Government Code Section 36900. Any violation beyond the third conviction
within a one-year period may be charged by the District Attorney as a misdemeanor and the penalty for
conviction of the same shall be a fine or imprisonment or both not to exceed the limits set forth in
California Penal Code Section 19.
C. Each person, firm, or corporation shall be guilty of a separate offense for each and every day during
any portion of which any violation of any provision of this chapter is committed, continued or permitted
by such person and shall be punishable accordingly.
D. The City Manager shall have the power to designate by written order that particular officers or
employees shall be authorized to enforce particular provisions of this chapter. Officers or employees so
designated shall have the authority to arrest persons who violate any of said provisions.
Article II. Nuisances
5.64.040 Residential property.
It is unlawful for any person owning, leasing, renting, occupying or having charge or possession of any
residential property in the City to maintain or to allow to be maintained such property in such manner that
any of the following conditions are found to exist thereon for an unreasonable period of time and which
are visible from a public street, except as may be allowed by any other provision of law; including
provisions of City ordinances:
A. The accumulation of dirt, litter or debris;
B. Clotheslines or clothes hanging in front yards;
C. Boxes, bins, containers, fire wood, lumber, junk, trash, recyclables, salvage materials, building
materials, landscaping materials or other similar materials;
D. Attractive nuisances dangerous to children including abandoned, broken, or neglected equipment,
machinery, tools, refrigerators and freezers, hazardous pools, ponds, and excavations;
E. Broken or discarded furniture, household equipment, electronic equipment and furnishings or
shopping carts;
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F. Overgrown vegetation likely to harbor rats, vermin and other nuisances dangerous to public health,
safety, and welfare, or obstructing a necessary view of drivers on public streets or private driveways;
G . Weeds, dead, decayed, diseased or hazardous trees, fallen leaves and other vegetation constituting
an unsightly appearance or a danger to public health, safety and welfare;
H. Graffiti on the exterior of any building, fence, wall, automobile or other structure;
1. Vehicle parts or other articles of personal property which are abandoned or left in a state of partial
construction or repair;
1. Mobile homes, recreational vehicles, utility trailers, unmounted campertops, boats, cars, trucks, or
other vehicles, that are parked or stored in violation of the zoning provisions;
K. Fences and walls which have become dilapidated or are in a state of disrepair;
L. Automobiles parked or stored on property other than on a driveway or other impervious surface;
M. Buildings which are abandoned, boarded up, partially destroyed, or left in a state of partial
construction; and/or
N. Structures which are unpainted or where the paint on the building exterior is chipping, peeling,
cracked or mostly worn off.
5.64.050 Nonresidential property.
It is unlawful for any person owning, leasing, renting, occupying or having charge or possession of any
nonresidential property in the City to maintain or to allow to be maintained such property in such manner
that any of the following conditions are found to exist thereon for an unreasonable period of time and are
visible from a public street, except as may be allowed by any other provision of law including provisions
of City ordinances:
A. The accumulation of dirt, litter, or debris;
B. Boxes, bins, containers, fire wood, lumber, junk, trash, recyclables, salvage materials, building
materials, landscaping materials or other similar materials;
C. Attractive nuisances dangerous to children including abandoned, broken, or neglected equipment,
machinery, tools, refrigerators and freezers, hazardous pools, ponds, and excavations;
D. Broken or discarded furniture, household equipment, electronic equipment and furnishings or
shopping carts;
E. Overgrown vegetation likely to harbor rats, vermin and other nuisances dangerous to public health,
safety, and welfare, or obstructing a necessary view of drivers on public streets or private driveways;
F . Weeds, dead, decayed, diseased or hazardous trees, fallen leaves and other vegetation constituting
an unsightly appearance or dangerous to public health, safety and welfare;
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G. Vehicle parts or other articles of personal property which are abandoned or left in a state of partial
construction or repair;
H. Mobile homes, recreational vehicles, utility trailers, unmounted campertops, boats, cars, trucks, or
other vehicles, that are parked or stored in violation of the zoning provisions;
1. Graffiti on the exterior of any building, fence, wall, automobile or other structure;
J. Fences and walls which have become dilapidated or are in a state of disrepair;
K. Buildings which are abandoned, boarded up, partially destroyed, or left III a state of partial
construction; and
L. Structures which are unpainted or where the paint on the building exterior is chipping, peeling,
cracked or mostly worn off.
5.64.060 Declaration of public nuisance.
Any property found to be maintained in violation of Sections 5.64.040 or 5.64.050 is declared to be a
public nuisance and shall be abated by rehabilitation, removal, demolition, or repair pursuant to the
procedures set forth herein. The procedures for abatement set forth herein shall not be exclusive and shall
not in any manner limit or restrict the City from enforcing other City ordinances or abating public
nuisances in any other manner provided by law.
Article III. Abatement Procedure
5.64.070 Notification of nuisance.
Whenever the City Manager determines that any property within the City is being maintained contrary
to one or more of the provisions of Sections 5.64.040 and 5.64.050, he shall give written notice, "Notice
to Abate", to the owner of the property stating the section(s) being violated. Such notice shall set forth a
reasonable time limit, in no event less than seven (7) calendar days, for correcting the violation(s) and
may also set forth suggested methods of correcting the same. Such notice shall be served upon the owner
in accordance with provisions of Section 5.64.090 covering service in person or by mail.
5.64.080 Administrative hearing-Generally.
In the event the owner shall fail, neglect or refuse to comply with the "Notice to Abate," the City
Manager shall conduct an administrative hearing to ascertain whether the violation constitutes a public
nUIsance.
5.64.090 Notice of hearing.
Notice of said hearing shall be served upon the owner not less than seven (7) calendar days before the
time fixed for hearing. Notice of hearing shall be served in person and by first-class mail, postage prepaid
to the owner's last known address. Service shall be deemed complete at the time notice is personally
served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any
proceedings hereunder. Notice shall be substantially in the format set forth below:
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NOTICE OF ADMINISTRATIVE HEARING ON ABATEMENT OF NUISANCE
This is a notice of hearing before the City Manager (or his/her designees) to ascertain whether
certain property situated in the City of Dublin, State of California, known and designated as (street
address), in said City, and more particularly described as (assessor's parcel number) constitutes a
public nuisance subject to abatement by the rehabilitation of such property or by the repair or
demolition of buildings situated thereon. If said property, in whole or part, is found to constitute a
public nuisance as defined in this Ordinance and if the same is not promptly abated by the owner, such
nuisance may be abated by municipal authorities, in which case the cost of such rehabilitation, repair or
demolition will be assessed upon such property and such costs, together with interest thereon, will
constitute a lien upon such property until paid; in addition, you may be cited for violation of the
provisions of the City ordinances and subject to a fine.
Said alleged conditions consist of the following:
The methods of abatement are:
All persons having an interest in said matters may attend the hearing and their testimony and
evidence will be heard and given due consideration. Dated this _ day of , 20_.
City Manager
Time and Date of Hearing:
Location of Hearing:
5.64.100 Administrative hearing-Procedure.
A. At the time stated in the notice, the City Manager shall hear and consider all relevant evidence,
objections or protests, and shall receive testimony under oath relative to such alleged public nuisance and
to proposed rehabilitation, repair, removal or demolition of such property. The hearing may be continued
from time to time.
B. If the City Manager finds that such public nuisance does exist and that there is sufficient cause to
rehabilitate, demolish, remove or repair the same, the City Manager shall prepare findings and an order,
which shall specify the nature of the nuisance, the methode s) of abatement and the time within which the
work shall be commenced and completed. The order shall include reference to the right to appeal set forth
in Section 5.64.120. A copy of the findings and order shall be served on all owners of the subject property
in accordance with the provisions of Section 5.64.090. In addition, a copy of the findings and order shall
be forthwith conspicuously posted on or near the property.
5.64.110 Nuisance finding-Procedure when no appeal.
In the absence of any appeal, the property shall be rehabilitated, repaired, removed or demolished in the
manner and means specifically set forth in the findings and order. In the event the owner fails to abate the
nuisance as ordered the City Manager shall cause the same to be abated by City employees or private
contract. The costs shall be billed to the owner, as specified in Section 5.64.170. Absent consent to enter
the subject property for the purpose of nuisance abatement, the City Manager shall direct the City
Attorney to obtain the necessary judicial authority for entry and abatement purposes.
5.64.120 Appeal procedure.
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A. The owner may appeal the City Manager's findings and order to the City Council ("Council"). Any
appeal to the City Council must be in writing, and must be made within fifteen (15) days from the date of
service of the decision of the City Manager. The request for an appeal to the City Council shall be
addressed to the City Manager and shall be deemed served only when received by the City. Failure to
properly serve the request for appeal to the City Council within the fifteen (15) day period shall be
deemed a waiver of the right to appeal the matter to the City Council and the decision of the City Manager
shall become final.
The appeal shall contain:
1. A specific identification of the subject property;
2. The names and addresses of all appellants;
3. A statement of appellant's legal interest in the subject property;
4. A statement in ordinary and concise language of the specific order or action protested and the
grounds for appeal, together with all material facts in support thereof;
5. The date and signatures of all appellants; and
6. The verification of at least one (1) appellant as to the truth of the matters stated in the appeal.
B. As soon as practicable after receiving the appeal, the City Clerk shall set a date for the Council to
hear the appeal which date shall be not less than seven (7) calendar days nor more than thirty (30)
calendar days from the date the appeal was filed. The City Clerk shall give each appellant written notice
of the time and the place of the hearing at least five (5) calendar days prior to the date of the hearing,
either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy
thereof, postage prepaid, addressed to the appellant at his address shown on the appeal. Continuances of
the hearing may be granted by the Council on request of the owner for good cause shown, or on the
Council's own motion.
5.64.130 Appeal hearing procedure.
A. All hearings shall be tape recorded.
B. Hearings need not be conducted according to the technical rules of evidence.
C. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence,
but shall not be sufficient in itself to support a finding unless it would be admissible over objection in
civil actions in courts of competent jurisdiction in this state. Any relevant evidence shall be admitted if it
is the type of evidence on which reasonable 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 such evidence over objection in civil actions in courts of competent jurisdiction in this state.
D. Oral evidence shall be taken only on oath or affirmation.
E. Irrelevant and unduly repetitious evidence shall be excluded.
5.64.140 Decision by City Council.
Upon the conclusion of the hearing, the Council shall determine whether the property or any part
thereof, as maintained, constitutes a public nuisance. If the Council so finds, the Council shall adopt a
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resolution declaring such property to be a public nuisance, setting forth its findings and ordering the
abatement of the same by having such property rehabilitated, repaired, removed or demolished in the
manner and means specifically set forth in the resolution. The resolution shall set forth the time within
which such work shall be completed by the owner, in no event less than thirty (30) days. The decision and
order of the Council shall be final.
5.64.150 Service of order to abate.
A copy of the resolution of the Council ordering the abatement of said nuisance shall be served upon
the owner(s) of the property in accordance with the provisions of Section 5.64.090. Upon abatement in
full by the owner, the proceedings hereunder shall terminate.
5.64.160 Filing appeal of City Council's decision-Time limit.
Any action appealing the Council's decision and order shall be commenced within thirty (30) calendar
days of the date of service of the decision.
5.64.170 Abatement by City.
A. If such nuisance is not abated as ordered within the abatement period, the City Manager shall cause
the same to be abated by City employees or private contract. Absent consent to enter the subject property
for the purpose of nuisance abatement, the City Manager shall direct the City Attorney to obtain the
necessary judicial authority for entry and abatement purposes. The cost, including incidental expenses, of
abating the nuisance shall be billed to the owner and shall become due and payable thirty (30) days
thereafter. The term "incidental expenses" means and includes, but is not limited to, personnel costs, both
direct and indirect; costs incurred in documenting the nuisance; the actual expenses and costs of the City
in the preparation of notices, specifications and contracts, and in inspecting the work; and the costs of
printing and mailing required hereunder.
B. A person shall not obstruct, impede, or interfere with the City Manager, or his representative, or
with any person who owns, or holds any interest or estate in any property in the performance of any
necessary act, preliminary to or incidental, carrying out an abatement order issued pursuant to Sections
5.64.100 and 5.64.140 ofthis chapter.
5.64.180 Demolition restrictions.
No property shall be found to be a public nuisance under Sections 5.64.040 K or 5.64.050 J and ordered
demolished unless the order is based on competent sworn testimony and it is found that in fairness and in
justice there is no way other than demolition reasonably to correct such nuisance.
5.64.190 Notice of intent to demolish.
A copy of any order or resolution requiring abatement by demolition under Sections 5.64.100 or
5.64.150 shall be forthwith recorded with the Alameda County Recorder.
Article IV. Assessment Procedure
5.64.200 Record of cost of abatement.
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The City Manager shall keep an account of the cost, including incidental expenses, of abating such
nuisance on each separate lot or parcel of land where the work is done by the City and shall render an
itemized report in writing to the City Council showing the cost of abatement, including the rehabilitation,
demolition or repair of said property, including any salvage value relating thereto; provided that before
the report is submitted to the City Council, a copy of the same shall be posted for at least five (5) days
upon or in front of such property, together with a notice of the time when said report shall be heard by the
City Council for confirmation. A copy of the report and notice shall be served upon the owners of said
property in accordance with the provisions of Section 5.64.090 at least five (5) calendar days prior to
submitting the same to the City Council. Proof of the posting and service shall be made by affidavit filed
with the City Clerk. The Council may make such modifications to the report as it may deem necessary,
after which such report shall be confirmed by resolution.
5.64.210 Attorney's fees.
The rules governing the recovery of attorneys' fees for nuisance abatement actions or proceedings shall
be those provided in Section 1.04.062.
5.64.220 Recovery of abatement expenses.
The procedures governing the recovery of the City's costs of abating nuisances shall be those provided
in Section 1.04.061.
5.64.230 Notice of lien.
The notice of lien for recordation shall be in form substantially as follows:
NOTICE OF LIEN
(Claim of City of Dublin)
Pursuant to the authority vested by the provisions of Section of Dublin Ordinance
No. , the City Manager of the City of Dublin did on or about the day of , 20_,
cause the property hereinafter described to be rehabilitated or the building or structure on the property
hereinafter described, to be repaired or demolished in order to abate a public nuisance on said real
property; and the City Council of the City of Dublin did on the day of , 20_, assess
the cost of such rehabilitation, repair or demolition upon the real property hereinafter described; and the
same has not been paid nor any part thereof; and that said City of Dublin does hereby claim a lien on
such rehabilitation, repair, or demolition in the amount of said assessment, to wit: the sum of $
and the same, shall be a lien upon said real property until the same has been paid in full and discharged
of record. The real property hereinabove mentioned, and upon which a lien is claimed, is that certain
parcel of land lying and being in the City of Dublin, County of Alameda, State of California, and
particularly described as follows:
(description)
Dated this
day of
,20_
City Manager
City of Dublin
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Section 2. Severability. The provisions of this Ordinance are severable and if any provision,
clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any
person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect
or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the
ordinance or their applicability to other persons or circumstances.
Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days
following its adoption.
Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be
posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the
Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this _ day of
, 2008.
AYES:
NOES:
ABSENT:
ABSTAIN:
Janet Lockhart, Mayor
ATTEST:
City Clerk