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HomeMy WebLinkAboutItem 6.3 GraffitiOrdinance 5.68 (2) .. . CITY CLERK File # om~-I~IQJ AGENDA STATEMENT CITY COUNCIL MEETING DATE: January 7, 1997 SUBJECT: PUBLIC HEARlNG New Ordinance 5.68 "Graffiti" (Report Prepared by: Dean A. lOMson, Assistant Planner) EXHIBITS ATTACHED: 1) Draft Ordinance RECOMMENDATION: A. Receive staff report B. Open public hearing r~C. Receive public testimony D. Close public hearing and deliberate E. Waive second reading and adopt ordinance (Exhibit 1) FINANCIAL STATEMENT: The cost associated with enforcement of the new ordinance were included in the adopted Fiscal Year 1996/97 budget. -". BACKGROUND: On December 17, 1996, the City Council introduced the Ordinance and continued the public hearing to January 7, 1997, for second reading. The proposed Ordinance declares the existence of graffiti to be a public nuisance. It addresses graffiti that is: 1) visible from public property, adjacent private property, or those areas generally accessible to the public and, 2) is not voluntarily removed by the owner or tenant. The ordinance requires property owners or tenants to remove graffiti within seven (7) days of being formally notified of its existence. Within the seven (7) day period, property owners or tenants may appeal on the grounds that their property does not contain graffiti, or that removing the graffiti will cause an undue hardship. If property owners or tenants fail to remove graffiti, a citation for an infraction, abatement by the City, or civil litigation could result. ORDINANCE ADMINISTRATION If adopted, the new Ordinance will be enforced on a proactive basis. Staffwill initiate the abatement process when it is learned that graffiti has not been removed voluntarily. A procedure has been developed whereby Police Services field personnel will notifY the Community Development Department . when they notic-=-graffiti'3Iso,~telephone "Graffiti Hot~ine"~33-6638) has been established and _ :- . .-" COPIES TO: In House Distribution ... ITEMNO.~ G :\pa#\ 1996\pa96048\as-graff.doc will be circulated to the public to report graffiti. When necessary, the Public Works Department will arrange for graffiti to be removed from private property. The necessary tools are already in place, as . ." they are used to remove graffiti in a timely manner from public property. Owners or tenants will be billed for the work through the process routinely used to recoup costs for repair of accidentally damaged City property. It is anticipated that this Ordinance will require minimal staff time to enforce. Currently, Police Services averages only three (3) calls a month from those victimized by graffiti. The Community Development Department has not received a complaint about a property owner or tenant failing to remove graffiti since June 29, 1995. RECOMMENDATION Staffhas reviewed the Ordinances of other agencies, and appropriate State codes. This Ordinance was prepared with input from the Community Development Director, the City Attorney, the Public Works Director, and the Police Chief; Staff recommends its adoption. e.. e. ..- . . . ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN ADDING CHAPTER 5.68 TO THE DUBLIN MUNICIPAL CODE ESTABLISHING A GRAFFITI ORDINANCE THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 5.68 is added to the Dublin Municipal Code to read as follows: Section 5.68.010 - Definitions. "City" means the City of Dublin. "City Manager" means the City Manager or his/her designee(s) "Graffiti" means any inscription, word, figure, marking or design that is marked, etched, scratched, drawn, or painted on any building, structure, fixture, or other improvement, whether permanent or temporary, whether public or private, without the consent of the owner of the property or the owner's authorized agent, that is viewable from any public right of way, any neighboring property, or any area generally accessible to the public. "Incidental Expenses" means and includes, but is not limited to, personnel costs, both direct and indirect, including attorney's fees; costs incurred in documenting the graffiti; 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. "Owner" means any person owning property, as shown on the last equalized assessment roll for City taxes. "Person" means any individual, partnership, corporation, association or other organization, however formed. "Tenant" means any person who is not the owner, who has control or possession of property. Section 5.68.020 - Purpose. The purpose of this ordinance is to provide for the prompt abatement of graffiti from public and private properties in the City, and to encourage citizens to report occurrences of graffiti vandalism within the City. EXHIBIT' t Section 5.68.030 - Service. A. For the purposes of this Chapter, service of required notices, orders, decisions, and other documents shall be made in the following manner: 1. By personal service; or, 2. By certified U.S. mail, return receipt requested, to the owner of the property at the address shown on the last equalized assessment roll, and to any known tenant at the address of the property. 3. Should the service by certified mail, return receipt be returned as "refused" or "unclaimed," service may be made by posting a copy of the Notice and Order to Abate prominently and conspicuously upon the property where the graffiti exists, and mailing a copy of the Notice by regular U.S. mail to the owner. B. The failure of any person to receive such notice shall not affect the validity of any proceeding. ." Section 5.68.040 - Graffiti on public property, removal required. Whenever the City Manager determines that graffiti exists upon property owned by the City, it shall be removed as soon as possible. When the property is owned by a public entity other than the City, the removal of the graffiti may be authorized by the City Manager and removal undertaken by the City only after securing written consent of the public entity having jurisdiction over the property. The cost, including incidental .. expenses, of abating graffiti shall be billed to the property owner and shall be due and payable thirty (30) days there after. Section 5.68.050 - Graffiti on private property, removal required; Declaration of Public Nuisance. A. Where graffiti exists on private property, it is the owner's duty, as well as the duty of any tenant on the property, to remove said graffiti promptly from the property and to restore said property to the condition it was in prior to such vandalism. B. Graffiti is a public nuisance. Section 5.68.060 - Notice and Order to Abate Graffiti. A. Upon the failure of a property owner and/or ,tenant to remove graffiti from his/her real or personal property, the City Manager shall serve on the owner andlor tenant a Notice and Order to Abate Graffiti in accordance with the provisions of Section 5.68.030. The Notice and Order to Abate Graffiti shall state: 1. A description and the location of the real or personal property on which the . graffiti has been placed; " " .:' 2. A brief description of the unlawful graffiti that must be removed; 2 . .: .;: 3. A statement that the graffiti constitutes a public nuisance; 4. A specific date by which the graffiti must be removed; 5. A statement that if the owner does not remove the graffiti within this time, the City may cause the graffiti to be removed and make the costs incurred in this work a personal debt of the property owner and/or tenant, or a special assessment against the property; 6. A statement that the owner and/or tenant may appeal the Notice and Order to Abate Graffiti to the City Manager, by complying with the procedures set forth in Section 5.68.120, and that if the property owner and/or tenant does not file a timely request for a hearing, helshe shall be deemed to have waived the right to any administrative hearing and appeal. B. It shall be the responsibility of the owner and/or tenant to commence removal of the graffiti described in the notice within seven (7) days of service of the notice, and to diligently and promptly pursue total removal of said graffiti. Section 5.68.070 - Violation. Any person who shall fail to comply with a Notice and Order to Abate Graffiti within the time specified in the Notice, having been properly served with a copy of the Notice and Order to Abate Graffiti shall be guilty of an infraction. The City Manager, may, however, in his/her discretion, elect not to treat the violation as an infraction, and seek enforcement pursuant to any of the remedies, alone or in combination, provided in this chapter. Section 5.68.080 - Remedy, criminal enforcement. If the owner and/or tenant fails to correct the violation(s) within the time specified in the Notice and Order to Abate Graffiti the City Manager may request the City Attorney, or his/her designee, to prosecute the matter as a criminal offense. Section 5.68.090 - Remedy, Abatement by the City. A. If graffiti 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 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 graffiti shall be billed to the owner and/or tenant and shall become due and payable thirty (30) days thereafter. B. A person shall not obstruct, impede, or interfere with the City Manager, or his/her representative, or with any person who owns, or holds any interest or estate in any 3 property in the performance of any necessary act, preliminary to or incidental to, carrying out an abatement order issued pursuant to the chapter. . Section 5.68.100 - Remedy, civil litigation. If the owner, or tenant, fails to correct the violation(s) within the time specified in the Notice and Order to Abate Graffiti the City Manager may request the City Attorney to apply to such court, or courts, as may have jurisdiction to grant such relief as will abate the public nuisance, or restrain and enjoin any person from creating, or maintaining a nUIsance. Section 5.68.110 - Alternative remedies. Nothing in this chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to abate graffiti 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. Section 5.68.120 - Appeal to City Manager. e, A. If, after receiving a Notice and Order to Abate Graffiti the owner and/or tenant believes: 1. That hislher property does not contain graffiti; or that, 2. Compliance with the Notice and Order to Abate will create an undue hardship, he/she may obtain a hearing before the City Manager to appeal the Notice and Order to Abate Graffiti by filing a written request for the hearing with the Community Development Department. B. The request shall be filed within the seven (7) days of service of the Notice and Order to Abate Graffiti and shall state: 1. The address and/or a brief description of the property; 2. The date of the Notice and Order to Abate Graffiti; 3. The grounds on which the Notice and Order is contested (no graffiti present, or undue hardship). C. The Community Development Department shall then set the matter for a hearing before the City Manager on a date which is no less then ten (10) calendar days and no more than thirty (30) calendar days after the receipt of the request for a hearing and shall give the property owner or other person requesting the hearing written notice of the date, time, and place of the hearing through the procedures set forth in Section 5.68.030. D. Unless otherwise continued for good cause, the hearing shall be held at the date, time, and place specified by the Community Development Department in the notice e. 4 . . -- served on the property owner. With the consent of both parties, the appeal hearing may be conducted by telephone. At the hearing, the property owner and/or tenant shall have the right to be represented by counsel and may present relevant evidence and arguments in favor of modifying or reversing the Notice and Order to Abate Graffiti. In lieu of appearing at the hearing, the property owner and/or tenant may also submit a written statement signed under penalty of perjury which states any evidence or arguments in favor of modifYing or reversing the Notice and Order to Abate Graffiti. E. In determining whether the request for waiver because of undue hardship will be granted, and subsequent assistance provided to the property owner to remove graffiti the City shall consider the following circumstances: 1. The cost of restoring the property to its original state prior to the imposition of the graffiti; 2. The relative value of the property, as indicated by the most recent appraisal by the County of Alameda; 3. The ability of the owner to pay for such removal or retrofit. F. Within ten (10) days after the conclusion of the hearing, the City Manager shall issue a written decision on the Notice and Order to Abate Graffiti which shall be served in accordance with Section 5.68.030. The decision shall state the following: 1. Whether the Order is upheld, reversed, or modified, along with specific factual findings upon which this decision is based; 2. The nature of any modifications to the Order; 3. Unless the Order is reversed, a specific date by which the graffiti must be removed and a brief description of the graffiti, including its location; G. The determination of the City Manager after the hearing shall be appealable only to the City Council. Section 5.68.130 - Appeal to City Council. A. The owner and/or tenant may appeal the City Manager's findings to the City 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. B. Upon receipt of a timely request for appeal to the City Council, the City Manager shall set the matter for hearing before the City Council within sixty (60) days. At the time set for the appeal hearing, the City Council shall either affirm, modify, or reverse the decision of the City Manager. The decision of the City Council shall be final. 5 Section 5.68.140 - Procedure for Hearing by City Council. The procedures governing an appeal hearing by the City Council shall be the same as those provided in Section 5.64.130. .,: Section 5.68.150 - Record of cost of abatement. The City Manager shall keep an account of the cost, including incidental expenses, of abating 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 or retrofitting, including the rehabilitation, demolition or repair of said property, including any salvage value relating thereto. A copy of the report and notice shall be served upon the owners of said property and/or tenants in accordance with the provisions of Section 5.68.030 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. Section 5.68.160 - Assessment lien. A. The total cost for abating graffiti, as so confirmed by the City Council, shall constitute a special assessment against the respective lot or parcel of land to which it . relates, and upon recordation in the office of the County Recorder of a Notice of Lien, as so made and confirmed, shall constitute a lien on said property for the amount of such assessment. B. After such confirmation and recordation, a certified copy of the council's decision shall be filed with the Alameda County Auditor-Controller on or before August 1 st of each year, whereupon it shall be the duty of the Auditor-Controller to add the amounts of the respective assessments to the next regular tax bills levied against said respective lots and parcels of land for municipal purposes and thereafter said amounts shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment. C. When the certified copy of the City Council's decision is filed with the Auditor-Controller, a notice shall be sent by certified mail to the property owner stating the following: (I) that a special assessment is being imposed on the property, (2) the amount of the special assessment, (3) that the special assessment will be collected in the same manner as the ordinary municipal taxes, and (4) that the property may be sold after three years by the tax collector if the special assessment is not paid. D. In the alternative, after such recordation, such lien may be foreclosed by . judicial or other sale in the manner and means provided by law.,. .. 6 . .-: e. .. . , .. Section 5.68.170 - 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 _' , cause graffiti on the property hereinafter described to be removed 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 , assess the cost of such graffiti removal 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 graffiti removal in the amount of said assessment, to wit: the sub 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 _'_' City Manager City of Dublin 7 SECTION 2. Effective date and posting of ordinance: The Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. 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 ofCalifomia. PASSED, APPROVED AND ADOPTED this by the following vote: day of ,1997 AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk 8 e, .' .. ..