Loading...
HomeMy WebLinkAbout6.1 Property Maintenance Ordinance CITY OF DUBLIN AGENDA STATEMENT CITY COUNCIL MEETING DATE: April 11, 1988 SUBJECT Property Maintenance Ordinance EXHIBITS ATTACHED o Property Maintenance Ordinance Development o Sample Enforcement Timeframe o Property Maintenance Ordinance Questions & Answers i RECOMMENDATION o Open Public Hearing �*0 Receive Staff Report • Receive Public Testimony • Close Public Hearing • Deliberate • Provide Direction to Staff FINANCIAL STATEMENT: Not applicable DESCRIPTION At the regular meeting on March 28, 1988, the City Council directed Staff to prepare a report - on the newly enacted Property Maintenance Ordinance. To assist with the discussion, Staff has prepared several documents which outline the various issues in depth, and they are attached as part of the report . Why the Ordinance was Developed In addition to responding to public requests , the intent of the Ordinance was to provide a mechanism in which nuisances can be eliminated. The Ordinance establishes an abatement procedure which means that after going through an extensive process , the City can take the necessary action to correct the problem. This type of mechanism can often be a more effective tool to actually obtain the rehabilitation of property than the citation or misdemeanor process . Most of the City' s ordinances provide sanctions for violations ; however, the abatement process allows a mechanism to solve the problem. How the Ordinance was Developed The attachment entitled Property Maintenance Ordinance Development describes in detail the process the City Council used to develop the Ordinance. The issue was originally proposed by the Planning Commission in 1985 . The Council favored an attempt to obtain the voluntary compliance of property owners . Several efforts were attempted, including newsletter articles about home assistance programs and other efforts to beautify our City. Given the lack of Citywide compliance on a voluntary basis , the project was next identified as a City Council goal in 1987 . In August of 1987 , a member of the audience also urged the Council to develop a property maintenance ordinance . The Council conducted 3 public hearings on the proposed ordinance. A discussion of the changes made during the public hearing process is contained in the attachment. Time Given to Comply Many inquiries have arisen regarding the time which a resident will be given to correct a violation. Some residents have incorrectly assumed that the compliance must occur immediately. Staff has prepared a sample timeframe based on a scenario in which discarded and broken furniture is left in a front yard and is visible from a public street. The scenario identifies that a total of at least 83 days would elapse before the correction could be abated or a citation written. It should be noted that Staff believes that this represents a best case scenario, and in most cases would exceed 83 days . --------------------------------------------------------------------------- COPIES TO: ITEM N0. 60, It is important to note that every opportunity is being made to provide the resident with an opportunity to correct the-violation. The City Attorney ' s Office has also discussed with Staff the need to apply a "reasonable person" standard in determining the time a resident will need to comply. This is the same standard used by our judicial system. It is also important that flexibility exists to determine what may be a reasonable time to correct a violation. For example, an attractive nuisance to children may demand a faster compliance than other items. In any case, the minimum timeframes in the Ordinance must always be adhered to. Staff believes that the current language in the Ordinance would allow adequate time for a response by the property owner. The ordinance also allows the opportunity to grant additional time. Enforcement The issue of enforcement has been discussed a great deal. At the Council meeting on February 8, 1988, the Council inquired whether the Ordinance would be enforced on a complaint basis. Staff indicated that this would be the case and that initial investigations would be conducted by the Zoning Investigator. This is consistent with the enforcement policy adopted by City Council Resolution on other zoning matters. In July of 1984, the City Council adopted Resolution No. 75-84, which establishes a procedure for the enforcement of Zoning, Building and- Housing Violations . Staff could prepare an amendment to the Resolution to include the Property Maintenance Ordinance. This would help avoid an inconsistent application of the Property Maintenance Ordinance and confirm that Staff actions are in accordance with the policy desired by the City Council . Ambiguities Staff has outlined several items in a Question & Answer format. It appears from questions received at City Offices that many individuals are not aware of all provisions of the Ordinance and that some have read sections out of context . City Staff and the Assistant City Attorney have met and discussed the Ordinance in detail. As with any written document , it is possible that additions can be made to clarify the City Council ' s intent. Within the Question & Answer section, there are some issues raised which may be different from the City Council ' s intent. The first policy issue is with the exclusion of all non-residential buildings . This may be appropriate for some of the specified nuisances , while inappropriate for others . For example, graffiti on a commercial building visible from a public street may constitute a nuisance, however, this Ordinance would not be applicable. The second section which may be a candidate for revision would be the inclusion of the word backyard in the definition of property. It was Staff ' s understanding that the intent of the City Council was to only apply backyards to attractive nuisances contained in Section 2. 1(e) . The majority of backyards would not be visible from public streets and this would provide for consistent treatment of all property owners. The City Council may have other examples of unclear language which can be addressed. Process Staff would recommend that the City Council receive the Staff Report and additional public testimony. Pursuant to direction by the City Council, Staff would be willing to prepare clarifications or other modifications which the Councilmembers feel would be appropriate. City Staff will also prepare an amended Enforcement Procedures Policy Resolution which would add the Property Maintenance Ordinance to the existing policy, for presentation at the next Council meeting. PROPERTY MAINTENANCE ORDINANCE DEVELOPMENT City Council Direction/Public Input The City Council first considered the issue of a Property Maintenance Ordinance at their meeting on May 13, 1985. The matter was brought to the City Council by the Planning Commission, which recommended the adoption of an . ordinance. The City Council discussed the mandatory approach to obtaining the clean-up of residential property. The City Councilmembers believed that it was appropriate to allow residents to voluntarily clean their properties to encourage residents to improve their surroundings . The consensus of the City Council was not to proceed with an ordinance at that time. The approach used to encourage residents was strictly voluntary. Councilmember Snyder was instrumental in extending the concept of a "Dublin Pride Week" to encourage residents to improve and clean-up their' property. The City has also arranged for special Saturday trash pick-ups which occur 4 times a year for residential customers of Dublin-Livermore Disposal . The next community clean-up day is scheduled for Saturday, April 23, 1988. Two ot these pick-ups are paid tor through t e asic rate structure. The remaining 2 pick-ups are paid for through special funds obtained from the City' s garbage disposal company. The City also publicized the low-income home improvement program in the Community Newsletter along with other projects intended to beautify our community. Given that the voluntary approach was not producing results throughout the community, the City Council requested that Staff report on the development of a property maintenance ordinance as part of their 1987 Goals & Objectives. This was identified as a high priority for the Building & Safety Department at the public meeting on February 12 , 1987 . The City Council also had a resident speak at their meeting on August 10, 1987 requesting that this type of ordinance be pursued. The City Attorney indicated to the Council that his office could assist with the development of an ordinance. Public Hearing #1 The Ordinance was first presented to the City Council at a public hearing on February 8, 1988. This Ordinance was based on a similar ordinance in the City of San Leandro. Draft copies had been submitted to four known Homeowners ' Associations and the Alameda County Board of Realtors . The City Council questioned whether clotheslines in back yards were illegal under this ordinance if they were visible from the public street . Staff explained that Section 2 . 1 (b) does not include backyards. (This Section has been misinterpreted by some recent media reports which showed clotheslines in backyards . ) At the first public hearing, there was also a discussion of whether special circumstances would be considered. Staff explained that the appeal process allows the owner to present circumstances which may impact the time allowed to correct the violation. This was discussed at the hearing. Page 1 The Council also discussed the inclusion of wording regarding " . . .detrimental to neighboring properties or property values. " This occurred in Sections 2. 1(g) and 2. 1(h) . The Council amended the language to refer to conditions which were ". . .dangerous to the public health, safety and welfare". The revised wording would provide the City with the necessary ability to act on detrimental situations. Two members of the audience addressed the City Council. One was a resident who supported the ordinance and he described possible violations which he had observed. The City Council also received testimony from a representative of the Southern Alameda County Board of Realtors . The focus of her comments related to the ability of inspectors to enforce other violations -- when inspecting a property and a question related to City liability. The representative also indicated that they felt some phrases were ambiguous . The Realtors expressed their appreciation for the ability to comment during the drafting stages and also reported that- their understanding was that the San Leandro Ordinance had been successful . During the City Council discussion, the question was raised as to why commercial buildings were not included. Staff indicated that the original intent was to address residential property only. The Zoning Ordinance would cover most non-residential properties , with the exception of an undeveloped parcel. The City Council requested that the definition of property be amended to include "unimproved non-residentially zoned property." Public Hearing #2 On February 22 , 1988, the City Council conducted its second public hearing. Two members of the audience addressed the City Council . One inquiry related to previous City Council discussion on whether improved commercial property was included. Staff indicated that the Ordinance in its current form only referred to unimproved property. The resident was concerned with the ability to abate tall grass and weeds from improved commercial properties along San Ramon Road. The resident requested that the City Council consider adding this category since weeds on improved commercial property may also harbor rats . The City Council responded to the public testimony by amending the definition of property to include all non-residential properties . Due to the nature of the change , the City Council did not adopt the Ordinance at this hearing. Instead, they introduced the Ordinance as amended. Public Hearing #3 On March 1 , 1988, the City Council conducted another public hearing on the Ordinance. No comments were made by members of public. The public hearing .was closed and the Ordinance was adopted. A chamber of Commerce representative arrived at the meeting after the adoption of the Ordinance. It was suggested that it would be appropriate for any comments to be submitted in writing, since the Ordinance had already been acted upon. Page 2 Request to Place Item on Agenda At the regular meeting of March 28, .1988, several residents discussed the Ordinance under the oral communications section of the agenda. In order to fully address the issue, the Mayor suggested that a report on the Ordinance be placed on the next agenda. State Law requires public agencies to post an agenda indicating topics to be discussed and acted upon at least 72 hours in advance of a meeting. Since the Property Maintenance Law was not included on the March 28, 1988 agenda , the Council was restricted from taking any action on the matter. The purpose of this law is to provide interested residents with an opportunity to identify the topics of discussion prior to the particular meeting. Page 3 SAMPLE ENFORCEMENT TIMEFRAME PROPERTY MAINTENANCE ORDINANCE Typicdl Enforcement Timeframe For Situations Requiring Abatement to Obtain Compliance: The following outline is intended to describe in general terms , the amount of ' time required to bring a complaint to a final conclusion. The description relies upon the minimum steps which would be required to uphold the abatement of a nuisance. Schedules , the severity of the complaint, and general workloads will impact the actual timeframes . This is intended to be an example for discussion purposes of how the Staff intends to enforce the ordinance. The outline attempts to look- at the shortest possible period before the City could abate the nuisance. As discussed above , actual staffing may require additional time to process a complaint to conclusion. March 31 Complaint - The City receives a complaint regarding a possible violation ot the Ordinance. In many cases , the actual investigation may not occur on the same day. However, this scenario will assume that the complaint is investigated on the day in which it is received. Investigation - The subject property would be observed to determine whether conditions which violate the Ordinance exist. If the Ordinance was not being violated, the party initiating the complaint would be contacted. An explanation would be provided. If a violation did exist , the investigator would attempt to make contact with the owner or resident. Opportunity to Comply - The purpose of contacting the person in control of t e property is to explain the Ordinance and determine whether voluntary compliance can be achieved. The investigator needs to provide the owner with a reasonable opportunity to comply with the Ordinance. April 1 - Written Notice Requesting Compliance - The investigator would provide a written notice to the property owner as a follow-up to the personal contact. If personal contact had not been made, the letter will also serve to notify the owner of the problem. Reasonable Time to Respond - Each type of condition will need to be evaluated. For example, it may be unreasonable to allow an abandoned refrigerator to remain for a week; whereas , allowing one week for other conditions probably would be reasonable. For purposes of this discussion, we will assume that the complaint involved broken and discarded furniture. The sample timeframe will assume that the owner could remove the items from the view of a public street within 7 days. April 8 - Follow-Up Investigation - As noted above , the owner was granted a reasonable amount ot time to comply with the Ordinance. On April 8, the investigator would view the property to determine whether the owner had voluntarily complied with the request . If the owner has removed the items , the case is closed. If the owner has not removed the items , the owner will be officially notified of the nuisance and presented with a "Notice to Abate" . The Notice shall provide no less than 7 calendar days for correcting the violations . Page 1 April 18 - Follow-Up Investigation - Assuming that the owner was given the day to correct the violation, the time to comply would officially end on Friday, April 15 , 1988. Since City Offices are closed on weekends , a follow-up investigation could not be made until Monday, April 18. The investigator would once again observe the property to determine whether the correction was made. If the owner has not complied with the Notice to Abate, the City Manager shall conduct an administrative hearing. Again, the Ordinance requires 7 days notice of the hearing. April 26 - Administrative Hearin - A hearing would be conducted to allow the presentation ot evidence , objections , protests , and other pertinent testimony. April 26 represents the earliest date in which a hearing could be conducted. April 26 - Preparation of Order and Findings - Again, general workload may impact the speed in which Staff can prepare the findings if, as a result of the Administrative Hearing, the City Manager finds that a nuisance does exist and that there is sufficient cause to order correction. The order will need to specify the nature of the nuisance, method(s ) of abatement, time within which work must be commenced and completed, and reference to the right of appeal. The order must also be posted on the property. April 27 - Post the final order and advise the property owner of the ruling. The al procedure allows the owner 7 calendar days to appeal the findings and order to the City Council. Therefore, an order could not require the completion of the work in less than 7 days. Note that the Ordinance states that the appeal can be filed within 7 calendar days of the date of service. For purposes of discussion, we will assume that the owner was personally served on April 27 . May 44 - This would be the last day for an appeal to be filed with the City Cle Provided the City Clerk received the appeal and it contained the information required by the Ordinance, it would then be scheduled for a City Council meeting. The Ordinance requires that the appeal hearing shall be not less than 7 days. The next regular City Council meeting would be May 9 , which would only provide 5 days notice. Therefore, the item would be scheduled for the second regular meeting in May, which is May 23. If an appeal was not received and the condition was not corrected, the City could proceed with either the abatement procedures or the citation process . May 23 - Hearing Before City Council - A public hearing would be conducted by the City Council to determine whether the condition constitutes a public nuisance. If the Council upholds the determination that a nuisance exists, a Resolution must be adopted. The Resolution will set forth findings and order the abatement including specifying the manner and means for the abatement. The Resolution must also set forth the time in which such work must be complete, and in no event shall this date be less than 30 days . The munimum requirement on the property owner would be to complete the work by June 22 . The property owner also has the opportunity during this period to appeal the City Council action by filing a judicial action. Page 2 June 23 - Inspection to Determine Compliance with Resolution - Assuming the minimum number ot days were allowed, on June 23, an inspection would be made to determine whether compliance had been obtained. If the condition still exists , the City could proceed with the abatement and remove the items in violation of the ordinance. As an alternative to the abatement process , the City Council could direct Staff to proceed with the citation process . This also assumes that the owner did not file a judicial action to appeal the City Council findings . June 23 - Removal - Assuming that the broken and discarded furniture could be removed by t e City' s Public Works Contractor and that the quantity would allow the work to be completed in 1 day, the violation reported March 31 , could be corrected on June 23. This also assumes that the City did not choose to -enforce the action by issuing a citation. All costs to this point have been incurred by the City. Preparation of Lien The Ordinance contains a provision for recovering City costs through a lien procedure. The property owner would still have the opportunity to . appeal the assessment against their property. The property must be posted for S days before presentation to the City Council of the cost of abatement. The owner must also be provided S days notice. The earliest date the City Council could receive the report would be their regular meeting on July 11. This assumes that all costs and billings from any contractors were received in time to meet the public notice requirements. The hearing allows the opportunity for the City Council to receive additional testimony before ruling on whether to assess the property. The costs are only assessed against the property if the City Council confirms the action. This action is conducted at a public meeting. Page 3 PROPERTY MAINTENANCE ORDINANCE QUESTIONS & ANSWERS Staff has received several inquiries on the application of specific sections of the Ordinance. The purpose of this document is to provide direct answers to questions received by the City, or examples used in various press reports which may have been misleading to the public. QUESTION: Definition of Building: Does the Ordinance only apply to residential buildings? ANSWER: Yes , as currently worded, those nuisance conditions related to an actual building would only apply to residential buildings. This would restrict the City from abating conditions under Section 2. 1( i) and 2. 1( 1) if a non-residential ( i .e. , commercial or industrial) building is involved. These sections apply to graffiti and abandoned or boarded up facilities . QUESTION: Property: Does the definition include all property? ANSWER: Yes , as the Ordinance chronology indicates , the Ordinance was specifically amended to include non-residential real property. QUESTION: Backyards : The Ordinance appears to include backyards. Why is this included since in most cases , the violations appear to only exist if it is visible from a public street? ANSWER: The term backyard was included to address the items contained in Section 2. 1(e) . This section includes refrigerators , freezers , hazardous pools , ponds and excavations which may be an attractive nuisance and dangerous to children. You are correct that the other conditions are required to be visible from a public street. QUESTION: Delivery of Dirt : If I have top soil delivered for a home improvement project , am I in violation of the Ordinance? ANSWER: Section 2 . 1(a) refers to an accumulation of dirt, litter or debris . As with any ordinance , care will be given to determine whether the condition is reasonable. You would not be in violation of the Ordinance if the dirt was being used as described. However, if the dirt delivered remains for an unreasonable period of time , and it continues to accumulate, and is visible from a public street , there would be a violation. QUESTION: Clotheslines : Are all clotheslines now illegal? ANSWER: No. The Ordinance would not affect clotheslines hanging in the backyard. This Ordinance does not include clotheslines in backyards , regardless of whether or not they can be seen from a public street. Page 1 QUESTION: Trash Cans : Do I need to keep my trash can in the back yard on collection days? ANSWER: No. The Ordinance references the City' s Solid Waste Ordinance which allows a household trash can to be in public view for 24 hours after collection. The Solid Waste Ordinance also contains separate provisions for the large trash bins . QUESTION: Peeling Paint : If my house paint is peeling, am I in violation of the Ordinance ANSWER: No. Most occupied homes would not violate the Ordinance. Section 2. 1( 1) only applies to buildings which are- abandoned, boarded up, partially destroyed, or left in a state of partial construction. This is the only place in the Ordinance where unpainted or worn paint on buildings is discussed. Therefore , the Ordinance would not allow the City to require you to paint your home unless it was in one of the specific conditions described above. QUESTION: Due Process : Is it true that the City can come on my property and do work wit T out allowing me due process? ANSWER: No. The Ordinance provides for an extensive noticing and appeal process . An example is contained in a separate document describing the typical timeframe. The example identifies a minimum 83 day timeframe if all appeals were exercised, before the City could actually abate the nuisance. QUESTION: Special Circumstances : What if I have a special circumstance such as a financial situation which does not allow me to act in a short timeframe? ANSWER: The purpose of the appeal process is to provide testimony and discuss how the problem will be taken care of. The Ordinance only establishes the minimum amount of time which can be given to correct the condition. If special conditions are pertinent , the owner can be given any length of time beyond the 7 day minimum to correct the situation. QUESTION: Reasonable Time to Comply: Will an inspector provide me with ample time to clear items trom my tront yard which are in violation of the Ordinance? ANSWER: Each situation will need to be evaluated. City Staff recognizes that some situations may require arrangements to have a special trash bin delivered. City Staff is familiar with the enforcement of laws and regulations . For the most part , our courts have used a "reasonable person" standard. For example , they would look at a situation to determine whether a reasonable person would feel that you were given adequate time to correct the violation. To assure that the City ' s actions could be upheld, every effort would be made to provide a reasonable amount of time to comply. Page 2 QUESTION: Costs/Lien: Is it true that I am automatically forced to pay all costs and it is added to my tax bill? ANSWER: No. If the City went through the entire ,process and after the City Council hearing you did not make the correction within the required timeframe, the City would then have the authority to do work. If the City chose to incur the costs of abating the nuisance, the City Manager would maintain records of all costs . A report would then be prepared for the City Council and you would be provided with a notice of the meeting. The City Council would need to confirm the costs as an assessment at a public meeting. You would have an opportunity to speak at the meeting and if the assessment was not confirmed by the City Council , it could not be placed on your tax bill. QUESTION: Citations : Can I receive a citation if the investigator finds a violation w i e investigating the initial complaint and before I have . a chance to appeal? ANSWER: No. A violation of the Ordinance has only occurred after you have exhausted your entire appeal process . Also, the infraction or citation is noted only as an alternative to the abatement process . QUESTION: Who Issues Fines : Does the City Council or City Manager have the authority to fine me iT I am issued a citation? ANSWER: No. As discussed above, the Ordinance contains an alternative to the abatement procedure which would allow the City to issue a citation. The California Government Code describes the penalties for infractions. The City' s Ordinance has restated the fines as they are currently listed in the Government Code. The actual fine would only occur after a judge had issued a conviction based on the facts of the case. QUESTION: $100 Fine Automatically: Is the judge required to make me pay a $100 fine iF I am convicted? ANSWER: No. The Government Code reads that it shall be a fine of not more than $100 upon a first conviction. The actual amount a person would—be fined is determined by the judge hearing the case. The judge would have the ability to set the fine at anywhere from $1 .00 up to the $100 limit. He or she could also choose to dismiss the entire fine even if you were convicted. With other laws , City Staff has found that the judges tend to utilize their latitude in making a final determination. QUESTION: Arrest : Under what situations can a person be arrested under this Ordinance? Page 3 ANSWER: An arrest can only occur when a person has violated an ordinance which is a misdemeanor. Section 2. 5(a) of the Ordinance identifies that the violation of the Ordinance is an infraction instead of a misdemeanor. However, Section 2. 5(b) does provide that if a person violates the Ordinance and has been convicted on 3 occasions during a 1-year period, the next violation can be considered a misdemeanor. In accordance with the California Government Code , ordinances adopted by the City Council are misdemeanors unless they are specifically designated as an infraction. The actual arrest of a person who violates sections of the Municipal Code is usually quite rare, and occurs only if it is absolutely necessary. In addition, the citation process would only be commenced as an alternative to the abatement of the problem by the City, after the hearing process described above. Page 4