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HomeMy WebLinkAboutItem 4.05 Muni Code Prop Maint CITY CLERK File # D[3J~~-~[Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: July 15, 2008 SUBJECT: Adoption of Ordinance Amending Dublin Municipal Code Chapter 5.64 (Property Maintenance) Report Prepared by Elizabeth H Silver, Assistant City Attorney and Stephen Muzio, Associate Attorney ATTACHMENTS: 1. Ordinance Amending Dublin Municipal Code Chapter 5.64 relating to Property Maintenance. Clean copy of ordinance. 2. RECOMMENDATION~ 1. Waive reading and ADOPT the Ordinance Amending Chapter 5.64 ofthe Dublin Municipal Code relating to Property Maintenance (Attachment 1). FINANCIAL STATEMENT: None. DESCRIPTION: At its March 22, 2006 Goals and Objectives meeting, the City Council reviewed and approved with high priority the comprehensive update to certain chapters ofthe 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, 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 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 COPY TO: Page 1 of2 ITEM NO. 'I: S- 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 5.64.21O(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 5.64.21 O( 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. On June 17,2008, the City Council held a public hearing regarding the proposed ordinance. Following the public hearing the City Council waived the reading and introduced the ordinance. RECOMMENDATION Staff recommends that the City Council: 1) waive reading and ADOPT the Ordinance Amending Chapter 5.64 of the Dublin Municipal Code relating to Property Maintenance (Attachment 1). 1076714.4 Page 2 of2 11 (8 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 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 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, 1=1 eYrl-p?j' 5" 7 / ~ loe /'/11 ATTACHMENT 1 ' ~ a:r rg 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 sl:1bjeet 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; O~Jg G. Weeds, dead, decayed, diseased or hazardous trees, fallen leaves and other vegetation constituting an unsightly appearance or ~dangere-as 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; aft€ifef 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: K:M. Buildings which are abandoned, boarded up, partially destroyed, or left in a state of partial construction: and/or N . and _suoh b\:1ildiBgsStructures 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, 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; 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 buildiBgsStructures 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 1-( ~ I g 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 Elf by eertified mail 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: 6O;f/S 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 methodes) 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. o ~}g by filiag an appeal with the City Clerk ',yithia seven (7) calendar days of the date of serviee of the City Manager's deeisioa. 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 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. tt2jlS 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, iBell:1aiBg attorney's fees; 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. lJeB-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. 5.64.21l0 Assessment lienRecoverv 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. Q 47/ 10 o l' c A. The total eost for abatiag sueh nuisanee, as so confirmed by the City COl:11'leil, shall eOBstitme a speaial assessment against the respeeti';e lot or pareel of land to '.vnieh it relates, and upoa reeoraatiEla ia the offiee of the County Reeorder of a N otiee of Liea, as so made and eonfirmed, shall eOBstitute a lien on said f:>rElf:>erty for the amount of sl:1eh assessment. It .^..fter saah aElafirmatioa and reeordation, a aertifiea eopy of the eouneil's deeision shall be filed with the .^Jameaa County Al:lditor Controller oa or before :\l:lgl:1st I st of eaah year, \vherel:lJ'oa it shall Be the amy of the Al:lditor Controller to add the arRElwRS of the respeetive assessmems to the aent regl:1lar ta..}{ Bills levied against said respeetive IElts aHa pareels of land for mooieipal purposes and thereafter said amoUllts shall be eolleeted at the same time and ia the same maBller as ordinary mooieipal taxes are eolleeted, and shaH be subjeet to the same penalties and the same proeea\if'e ana sale in ease of delinqueney as provided for ordiaary munieipal taxes. .\llla'Ns applieable to the levy, eolle0tion and eaforeement ofmunieipal taxes shall be applieable to stleh speoial assessment. C. In the alternative, after such reoordation, sueh lien may be foreclosed by judieial or other sale in the mar..ner and means provided by law. 5.64.2~~0 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 +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, q O;f 12 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, 11ayor ATTEST: Carolyn Parkinson, Interim City Clerk 11032332.4 10 f )g 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 of the City of Dublin does hereby ordain as follows: Section 1. Chapter 5.64 ofthe 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 ( / c;f I(~? 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; b!~ 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; f 3 a;f /2 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 ofthe zoning provisions; 1. Graffiti on the exterior of any building, fence, wall, automobile or other structure; 1. 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 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: 14 'f )~ 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 ofthe 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 ",f /'2, 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 obj ection 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 I G C:P I~ I' i 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 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. Assessment Procedure \1~l8 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 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 suni 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) day of ,20_. Dated this City Manager City of Dublin Jg 1 /8 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