HomeMy WebLinkAboutOrd 02-09 Prop Maint Urgency OrdORDINANCE N0.2-09
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
AN URGENCY ORDINANCE 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 severe downturn in the housing market and the tightening credit market has made it
difficult for developers to obtain construction financing for residential and nonresidential projects and to find
qualified buyers or renters for such projects; and
WHEREAS, as a result of these difficulties, some developers have suspended construction of projects
within the City and the City is concerned other developers may do so in the future; and
WHEREAS, the partially constructed projects detract from the appearance of the immediate
neighborhood and/or are detrimental to the public health, safety or welfare; and
WHEREAS, Chapter 5.64 declares that partially constructed buildings constitute a nuisance but does
not define the term; and
WHEREAS, the City Council wishes to revise the provisions in Chapter 5.64 of the City of Dublin
Municipal Code regarding partially constructed buildings to ensure that the City has sufficient authority to
immediately address property maintenance issues arising from suspended or abandoned residential or
commercial projects.
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 City of Dublin.
"City Manager" means the City Manager or his designees.
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"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 (1) all nonresidential zoned real property and any structure located on such property,
referred to herein as nonresidential property; and (2) 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.
"State of partial construction" means, since commencement of construction, construction has been suspended
or abandoned for an unreasonable period of time, and the appearance of the building substantially detracts from
the appearance of the immediate neighborhood or the condition of the building is detrimental to the public
health, safety or welfare.
"Side yard" means that portion of property between the principal structure 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 riuisance 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 (1) year period maybe 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, firewood, 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;
I. 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;
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, firewood, 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;
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;
I. 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 in 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 Section 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.
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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
(1) or more of the provisions of Sections 5.64.040 and 5.64.050, the City Manager 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:
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:
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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 maybe 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 method(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.
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.
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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.
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, to carrying out an abatement order issued pursuant to Sections 5.64.100 and
5.64.140.
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 Section 5.64.100 or 5.64.150 shall
be forthwith recorded with the Alameda County Recorder.
Article IV. Lien 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 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
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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.
Such 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
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 is adopted as an emergency ordinance pursuant to Government
Code Section 36937 to take effect immediately, and is for the immediate preservation of the public peace,
health and welfare. The facts constituting the urgency are the following: There has been a severe downturn in
the housing market and the tightening credit market, which has made it difficult for developers to obtain
construction financing for residential and nonresidential projects and to find qualified buyers or renters for such
projects. As a result of these difficulties, some developers have suspended construction of residential and
commercial projects within the City, and the City is concerned that other developers may similarly suspend
construction of either residential or commercial projects. Partially constructed projects are detrimental to the
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public health, safety or welfare because the construction sites contain or may contain sharp objects protruding
from the ground, such as stakes, poles and other similar objects, which are or may be easily accessible to
children and other members of the public because the construction sites are not fenced off. In addition, partially
constructed buildings detract from the appearance of the immediate neighborhood, thereby reducing nearby
property values. While Sections 5.64.040 and 5.64.050 currently provide that buildings "left in a state of partial
construction" constitute a nuisance that may be abated by the City, Chapter 5.64 is silent as to what the phrase
means. This urgency ordinance defines the term "partially constructed building" in order to clarify the City's
authority to abate nuisances arising from suspended or abandoned residential or commercial projects. The City
may rely on the ordinance to abate partially constructed buildings regardless of whether the developer has a
valid building permit for the project. Absent the adoption of this urgency ordinance, the City may be unable to
immediately order the abatement of partially constructed buildings. Therefore, as a result of the immediate,
significant threat which partially constructed buildings pose to the public health, safety and welfare, it is
necessary to adopt an urgency ordinance clarifying the City's authority to abate partially constructed buildings.
Section 4: Posting. The City Clerk 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 17th day of March, 2009, by the following vote
AYES: Councilmembers Biddle, Hart, Hildenbrand, and Mayor Sbranti
NOES: None
ABSENT: Councilmember Scholz
ABSTAIN: None
~~~.
Mayor
ATTEST:
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1~Tw i ~ City Clerk
Ord 2-09, Adopted 3-17-09, Item 6.3 Page 8 of 8