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HomeMy WebLinkAboutMC-14491 2 3 4 5 6 7 8 9 10 11, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE NO. MC -1449 ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AMENDING CHAPTER 8.18 (ACCUMULATION OF COMBUSTIBLE AND NONCOMBUSTIBLE MATERIALS) OF THE CITY OF SAN BERNARDINO MUNICIPAL CODE. WHEREAS, on July 1, 2016, the San Bernardino County Fire Protection District (the "District") began providing fire services to the City of San Bernardino through an annexation into the District; and WHEREAS, one of the services the District provides is weed abatement services within the City; and WHEREAS, the District and the City desire to have an active weed abatement program with joint enforcement powers. NOW THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. The Mayor and City Council find the above -stated Recitals are true and hereby adopt and incorporate them herein. SECTION 2. San Bernardino Municipal Code Chapter 8.18 (Accumulation of Combustible and Noncombustible Materials) is hereby amended to read as shown in the attached Exhibit "A." SECTION 3. The City has determined that the amendment to San Bernardino Municipal Code Chapter 8.18 (Accumulation of Combustible and Noncombustible Materials) is exempt from further environmental review under provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061 (b)(3), which provides that CEQA applies only to projects that have the potential for causing a significant effect on the environmental. The City has further determined that it can be seen with certainty that there is no possibility that the activity in question will have a significant effect on the environment. SECTION 4. Severability: If any section, subsection, subdivision, sentence, or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The Mayor and City Council hereby declares that it would have adopted each section irrespective 1 1 2 3 4 5 6 7 8, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective. 2 1 2 3 4 5 6 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AMENDING CHAPTER 8.18 (ACCUMULATION OF COMBUSTIBLE AND NONCOMBUSTIBLE MATERIALS) OF THE CITY OF SAN BERNARDINO MUNICIPAL CODE. I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and City Council of the City of San Bernardino at a joint regular meeting thereof, held on the 1St day of November 2017, by the following vote, to wit: Council Members: MARQUEZ BARRIOS VALDIVIA SHORETT NICKEL RICHARD MULVIHILL AYES NAYS x x XM X(S) x x x ABSTAIN ABSENT Georgea,54 Hanna, C. ; City Clerk The foregoing Ordinance is hereby approved this 1" day of November 2017. i-azel�G�" , ( R. Carey Davi/, Mayor City of San rnardino Approved as to form: Gary D. Saenz, City Attorney By: (A A -('J-, C- 3 Exhibit "A" Sections: 8.18.010 Nuisance determined - Right of entry 8.18.020 Definitions 8.18.030 Notice to property owner - Refusal of owner to comply - Violation a misdemeanor or an infraction 8.18.040 Contents of notice 8.18.050 Abatement of nuisance 8.18.060 Cost of abatement -Lien on parcel 8.18.070 Inventory of salvageable matter 8.18.080 Urgent public nuisance -Notice to property owner 8.18.082 Summary abatement of nuisance per se without notice 8.18.090 Penalty for violation 8.18.010 Nuisance determined - Right of entry A. The accumulation of any of the following in any yard, lot, or upon any premises within the City except within buildings or in containers or receptacles designed for such storage and accumulation, is unlawful and a public nuisance and dangerous to public health and safety of the inhabitants of the City: rubbish, refuse, debris, waste material and other matter including but not limited to rocks, bricks, scrap metal and other pieces of metal, ferrous and nonferrous, furniture or parts thereof, vegetation, cans, boxes, barrels, bottles, stores of commercial supplies, and other matter whether usable or not, straw, shavings, sacks, bags, litter, weeds, dry grass, dead trees or shrubs or branches thereof, used lumber or wood, combustible waste, fragments of any nature or kind, sawdust, excelsior, printed matter, paper, pasteboard, cardboard, cardboard boxes or crockery. No person, firm or corporation shall allow or permit the aforesaid matter to accumulate or be upon her, his or its premises or upon premises controlled by them except within buildings or in appropriate containers or receptacles. B. The Fire Chief or his authorized representative, hereinafter called "Fire Chief', or the Community Development Director and his authorized representative, hereinafter called "Director", shall have the right to enter upon private property to determine whether such a public nuisance exists. 8.18.020 Definitions Whenever in this Chapter the following terms are used they shall mean as follows: A. "Neglected or abandoned orchard" means an orchard, or part thereof, where trees, or a substantial portion thereof, are in such a condition that the limbs are moribund, with the leaves or branches of the limbs being dead, and where the individual in charge of the orchard is not taking such ordinary care of the orchard as is required for a harvested orchard and is not or has not been watering, discing or spraying such trees for a period of at least six months. The six-month period of time need not be continuous. Neglected or abandoned orchards in the City are places where the trees constitute a fire hazard, or where vagrants or dissolute persons can dwell, and which constitute ugly and unsightly conditions which adversely affect the neighboring properties, and Exhibit "A" are places from which agricultural pests develop and spread. Such orchards are public nuisances and dangerous to public health and safety, and shall be abated as a public nuisance utilizing the methods and procedures hereinafter set forth in this Chapter. B. "Orchard" means any ten or more trees that are of the type that bear stone fruits, citrus fruits or pome fruits, situated together in a grove. C. "Fire Chief' means the Fire Chief of the San Bernardino County Fire Protection District and his or her designated representatives within the San Bernardino County Fire Protection District. D. "Director" means the Community Development Director and his or her designated representatives. 8.18.030 Notice to property owner - Refusal of owner to comply — Violation a misdemeanor or an infraction A. The Fire Chief or Director shall notify the owner, occupant or agent thereof, or person in charge or control of the property, each hereinafter referred to as "owner", personally or by certified mail of such accumulation and shall conspicuously post such notice in writing on any lot or premises upon which the Fire Chief or Director determines after investigation that such public nuisance exists. Such notice shall bear a title with the words "Notice To Clean Premises" in letters not less than one inch in height, and it shall direct the abatement of the nuisance and refer to this Chapter for particulars. Such notice shall require the owner to commence the abatement within five days and to complete such abatement within ten days from the date of the notice. Notices which are served by certified mail shall be addressed to the owner of the property at the address ascertained from title company records or as otherwise known. Service by certified snail shall be deemed complete upon deposit in a public receptacle for United States mail. The notices shall specify that a failure to comply with the notice is a misdemeanor or an infraction. B. Any firm, corporation, owner, agent, occupant, or person in charge or control of real property who refuses or neglects to remove and abate any accumulation of matter described in Section 8.18.010 within the ten-day period set forth in any "Notice To Clean Premises" served upon them shall be guilty of a misdemeanor or an infraction. Each succeeding day that a person, firm or corporation refuses or neglects to remove and abate the matters determined to be a nuisance shall constitute a separate misdemeanor or infraction under this section. In the case of an appeal filed pursuant to Section 8.18.040, the time period for required removal and abatement shall be extended as set forth in Section 8.18.040. C. The Fire Chief or Director shall enforce the provisions of this Chapter and are authorized to make arrests and issue notices pursuant to Chapter 5C of Part 2 Title 3 of the Penal Code of the State of California. D. Any person, fire or corporation violating any provision of this Chapter is guilty of a misdemeanor or an infraction, which upon conviction thereof is punishable in accordance with the provisions of Section 1. 12.010 of this Code. Exhibit "A" E. The conviction of a misdemeanor or an infraction under this Chapter shall have no effect on any abatement process or procedure followed by the City. 8.18.040 Contents of notice — Appeal A. Any notice issued by the Director (i.e., City) shall state that any time within ten days from the date of posting and service of such notice any person may appeal the decision of the Director by filing written objections thereto with the City Clerk. The Director shall then cause the matter to be set for hearing before a Hearing Officer contracted by the City to hear such matters. B. Notice of the date of hearing shall be given in writing. The date of the hearing shall be no sooner than fifteen days from the date when notice of the hearing is given to the appellant and to the Director. C. At the time fixed in the notice, the Administrative Hearing Officer shall hear the testimony of all competent persons desiring to testify respecting the condition constituting the nuisance. D. At the conclusion of the hearing, the Hearing Officer shall detennine whether or not a nuisance exists, and if the Hearing Officer so concludes, he or she may declare the conditions existing to be a nuisance and direct the person owning the property upon which the nuisance exists to abate it within ten days after the date of posting on the premises a notice of the Hearing Officer's order. The Hearing Officer may amend time to abate the nuisance, if in his or her opinion, there exists good cause for the amendment of time to abate. E. The decision of the Hearing Officer on the determination of nuisance is final. Any appeal of the Hearing Officer's decision shall be governed by California Code of Civil Procedure Section 1094.6 or such section as may be amended from time to time. F. Any notice issued by the Fire Chief (i.e., County) shall be appealable pursuant to the Appeal Procedure set forth under Section 23.310 of the San Bernardino County, California Code of Ordinances. 8.18.050 Abatement of nuisance In the event the nuisance is not abated by the owner, the Fire Chief or Director is authorized to cause such nuisance to be abated by removing the rubbish, refuse, debris, waste material, and other matter including but not limited to rocks, bricks, scrap metal and other pieces of metal, both ferrous and nonferrous, furniture or parts thereof, vegetation, cans, boxes, barrels, bottles, stores of commercial supplies, and other matter, whether usable or not, straw, shavings, sacks, bags, litter, weeds, dry grass, dead trees or shrubs or branches thereof, used lumber or wood, combustible waste, fragments of any nature or kind, sawdust, excelsior, printed matter, paper, pasteboard, cardboard, cardboard boxes or crockery. The Fire Chief or Director and any Exhibit "A" contractor hired by the City for such purpose shall have the right to enter upon private property to abate the public nuisance. 8.18.060 Report of abatement costs A. The Fire Chief or Director shall thereafter cause a report of the action and an accurate account of the costs to be filed with the City Clerk of the City of San Bernardino. B. The statement shall be accompanied by a notice to the owner that the cost of abatement may be protested as set forth in Section 8.18.063. 8.18.061 Recovery of attorneys' fees and report of attorneys' fees In any action, administrative proceeding, or special proceeding to abate a nuisance, the prevailing party shall be entitled to recovery of attorneys' fees. The recovery of attorneys' fees by the prevailing party shall be limited to those individual actions or proceedings in which the City elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding. The City Attorney's Office shall thereafter cause a report of the action and an accurate account of costs to be filed with the City Clerk of the City of San Bernardino. 8.18.062 Treble damages Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a condition that may be abated in accordance with this ordinance, except for conditions abated pursuant to Section 17980 of the Health and Safety Code, related to substandard buildings, the court may order the owner to pay treble the costs of the abatement. 8.18.063 Protest of abatement costs A. The property owner may protest the cost of abatement by filing a written request for a hearing on the abatement costs with the Fire Chief or Director, whoever caused the nuisance to be abated, and the Fire Chief or Director shall cause a hearing to be set before the Administrative Hearing Officer. At the time fixed for the hearing on the statement of abatement costs, the Administrative Hearing Officer shall consider the statement and protests or objections raised by the person liable to be assessed for the cost of the abatement. Exhibit "A" B. The Hearing Officer may revise, correct or modify the statement as the Hearing Officer considers just and thereafter shall confirin the cost. C. The decision of the Hearing Officer shall be in writing and shall be served by mail. The decision of the Hearing Officer on the abatement costs shall be final. D. Any appeal of the Hearing Officer's decision shall be governed by California Code of Civil Procedure Section 1094.6 or such section as may be amended from time to time. 8.18.065 Council action A: If the property owner does not pay the cost of abating the nuisance within thirty calendar days after the cost becomes final or the hearing officer confirms the costs of abatement, the cost shall become a special assessment against the real property upon which the nuisance was abated. The assessment shall continue until it is paid, together with interest at the legal maximum rate computed from the date of confinnation of the statement until payment. The assessment may 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. B. The Director shall notify the property owner in writing of the property owner's right to be publicly heard by City Council prior to City Council adopting a resolution assessing such unpaid costs of abatement as liens upon the respective parcels of land. The notice shall include the date, tune, and location of the public hearing. C. The City Council shall adopt.a resolution at a public hearing assessing such unpaid costs of abatement as liens upon the respective parcels of land as they are shown upon the last available assessment roll. 8.18.066 Imposition of special assessment lien and notice A. The City Clerk shall prepare and file with the County Auditor a certified copy of the resolution of the City Council assessing the costs of abatement as a lien on the land, adopted pursuant to the preceding section. B. Notice of lien shall be mailed by certified mail to the property owner, if the property owner's identity can be determined from the County Assessor's or County Recorder's records. The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the Tax Collector for unpaid delinquent assessments. The Tax Collector's power of sale shall not be affected by Exhibit "A" the failure of the property owner to receive notice. C. The County Auditor shall enter each assessment on the County tax roll upon the parcel of land. The assessment 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 procedure and sale in case of delinquency as is provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection. The tax collector's power of sale shall not be affected by the failure of the property owner to receive notice. 8.18.067 Record of nuisance abatement lien As an additional remedy, the Director may cause a nuisance abatement lien for costs related to abatements, other than dangerous building abatements, to be recorded with the San Bernardino County Recorder's Officer, pursuant to the provisions of Government Code Section 38773.1. 8. 18.068 Collection of costs and attorney's fees prior to hearing The City may accept payment of any amount due at any time prior to the filing of a certified copy of the City Council resolution assessing the abatement costs with the County Auditor. 8.18.070 Inventory of salvageable matter A. When any of the matter referred to in Section 8.18.010 or other materials have been removed from the yard, lot or premises pursuant to the abatement procedures set forth in Sections 8.18.050 and 8.18.060 and have been determined by the Director to be salvageable, the matter and materials shall be inventoried and held and retained by the Director for a period of at least thirty days after written notice that the matter and materials are being held at a specified place for delivery to the owner thereof and a copy of the inventory has been served, by certified mail, to the last address of record, postage prepaid, or by personal delivery, upon the owner. B. In the event the owner does not take possession of and remove at his own expense the matter and materials from the place where stored by the Director within thirty days after the service upon hien, the City shall have a lien against the matter and materials for storage charges for the thirty day period, and the matter and materials shall thereafter be appropriated for the use of the City or disposed of or sold at public auction as follows: Exhibit "A" 1. Notice of such sale describing the matter and material in sufficient detail for its identification shall be published once by the Director at least five days before the time fixed for the sale in a regularly published newspaper of general circulation in the City. 2. The matter and materials offered for sale shall be sold to the highest bidder for cash, provided that the Director may, at his discretion, fix a minimum sale price and may refuse to sell unless the minimum price is offered. 3. Proceeds of the auction sale or sales shall be applied towards the cost of abatement of the nuisance and the remainder, if any, shall be deposited with the Finance Department, to be placed in the general fund thereof; provided, that in the event the costs of conducting the auction sale or sales and the storage charges, combined with the costs of abatement, are less than the proceeds, then the balance or difference between the costs and the total proceeds shall be refunded to the owner. 8.18.080 Urgent public nuisance - Notice to property owner If the Fire Chief or Director detennines that a nuisance consisting of any or all matter referred to in Section 8.18.010 constitutes an urgent public nuisance, he shall notify the owner or occupant of the lot or premises to abate the same, and if the nuisance is not abated within forty- eight hours after service or posting of notice and no appeal to the Fire Chief or Director is pending, then the Fire Chief or Director shall cause the lot or premises to be cleared of all such matter and the nuisance to be abated, and the expense of such clearing shall be a lien on the lot. The notice given shall state that the finding of an urgent nuisance may be appealed to the City Clerk within forty-eight hours of receipt. If abatement is ordered upon appeal to the Fire Chief or Director, the abatement shall be completed within forty-eight hours of the decision. In any case, the Fire Chief or Director may extend the time within which the nuisance is to be abated if abatement cannot be completed within forty-eight hours. The notice required under this section shall be in writing and shall be delivered to the owner at the address appearing in records of a title company or as may be known, except if the owner cannot be located after a reasonable, good faith effort, then notice may be delivered to the occupant of the premises or conspicuously posted on such lot or premises. If the owner does not reside within the City of San Bernardino, the notice of nuisance may be sent by special delivery mail, and shall be effective twenty-four hours after mailing. Actual notice by telephone, supplemented by mailing, shall be effective as of the time of the telephoned notice. The procedures to be followed with respect to the assessment of the expenses of abatement shall be the same as those set forth in Section 8. 18.060 and Chapter 8.30. "Urgent public nuisance" as employed in this section means a condition of property which is a menace to public health or safety or constitutes a fire hazard under conditions which would be judicially determined to be a nuisance per se or a nuisance in fact, or where the destruction or removal of the objectionable items is reasonably necessary under the circumstances to prevent immediate harm to the public. Exhibit "A" 8.18.082 Summary abatement of nuisance per se without notice In cases where the Fire Chief of the Director finds the existence of a public emergency or threatening public calamity or where immediate action is essential, he may order the abatement of any or all matter referred to in Section 8.18.010 without notice or hearing, and the expense of such abatement shall be a lien on the lot. The matter referred to in Section 8. 18.010 which may be abated pursuant to this section shall be those things which are by the common or statute law declared to be nuisances per se, or which are in their very nature palpably and indisputably such. The procedures to be followed with respect to the assessment of the expense of abatement shall be the same as those set forth in Section 8.18.060 and Chapter 8.30. 8.18.090 Penalty for violation Any person, partnership, firm or corporation, whether as principal, agent, employee, or otherwise, interfering, obstructing or preventing or causing the interference, obstruction or prevention, of or with, the enforcement or performance of any of the provisions of this Chapter by the Fire Chief, Director, or other authorized person is guilty of a misdemeanor or an infraction, which upon conviction thereof is punishable in accordance with the provisions of Section 1.12.010 of this Code.