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CITY COUNCIL AGENDA ITEM NO. 14

Meeting Date: August 28, 2007

Subject/Title: 1. An ordinance amending Brentwood Municipal Code Chapter 1.08 related to penalties associated with Municipal Code violations; to define person/person; and clarify when notices of violation are required.

2. An ordinance amending in its entirety Chapter 8.00 of Title 8 of the Brentwood Municipal Code relating to nuisances and deleting in its entirety Chapter 8.28 (Trailer Coaches and Camp Cars).

Prepared by: Louis R. Kidwell, Chief Building Official

Submitted by: Howard Sword, Community Development Director
______________________________________________________________________
RECOMMENDATION
1. That the City Council introduce and waive the first reading of an ordinance amending Brentwood Municipal Code Chapter 1.08 to amend Section 1.08.010 (Designated –Continuing Offenses) related to penalties associated with Municipal Code violations; to add Section 1.08.035 (Person/Person responsible for violation defined); and to amend Section 1.08.040 (Administrative Citation), Subsection C related to written notices of violation.

2. That the City Council introduce and waive the first reading of an ordinance amending in its entirety Chapter 8.00 of Title 8 of the Brentwood Municipal Code relating to Nuisances and deleting in its entirety Chapter 8.28 (Trailer Coaches and Camp Cars).

PREVIOUS ACTION
None.

BACKGROUND
A. Penalty Ordinance

To provide Code Enforcement Officers with up-to-date enforcement tools, it is sometimes necessary to amend the Municipal Code. The revisions to Chapter 1.08 (General Penalty) are being proposed to allow for more consistent enforcement of violations and to clarify the penalty amounts that may be levied against violators.

By way of background, in some instances persons responsible for violations continue to violate the same sections of the Municipal Code despite repeated warnings. Currently the Municipal Code does not adequately address repeat offenders. The attached ordinance will allow Code Enforcement: 1) to issue a citation to the person responsible for the violation; 2) immediately issue a citation to the responsible person as long the person has been given prior oral or written warning or a citation for the same section of the Brentwood Municipal Code within one year of the date of the new violation.

In addition, the ordinance brings the Municipal Code into conformance with state law as it relates to criminal penalties (e.g. increasing the maximum misdemeanor penalty fines from $500 to $1,000); establishes infraction citation penalties; clarifies the definition of “person/persons responsible for a violation”; and allows the City Attorney to charge and prosecute misdemeanor violations as infraction violations.

B. Nuisance Abatement Ordinance

The City’s current nuisance abatement ordinance was adopted in 1998 and only provides for enforcement of six types of nuisances (primarily vectors, dangerous property conditions, and certain obstructions). The proposed ordinance expands this list to twenty-nine types of nuisances (the current list plus, among other nuisances, overgrown vegetation, dilapidated buildings, front yard storage, and general code violations). In addition, the ordinance clarifies the process of appealing a nuisance determination as well as the process for placing special assessments on properties that have been the subject of a City abatement action.

C. Neighborhood Improvement Committee

Both ordinances were considered by the Neighborhood Improvement Committee and staff was requested to bring them forward for full Council consideration. Subsequent to the most recent Neighborhood Improvement Committee meeting, staff made several clarifying changes to the Nuisance Abatement ordinance. Among other things, failure to secure a vacant property and “clotheslines visible from the public right-of-way” (and not located in a rear yard) were added to the list of potential nuisances. Also, it was determined that portions of the nuisance abatement ordinance as well as other sections of the Municipal Code effectively replace Chapter 8.28 (Trailer Coaches and Camp Cars) which was adopted in 1949. Given this, the ordinance repeals in its entirety Chapter 8.28.

FISCAL IMPACT
Code Enforcement activity required due to ordinance amendments are currently within the approved budget.

Attachments:
Ordinance amending Chapter 1.08 General Penalty
Ordinance amending Chapter 8.00 of Title 8 of the Brentwood Municipal Code relating
to Nuisances.

CITY COUNCIL ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING BRENTWOOD MUNICIPAL CODE CHAPTER 1.08 TO AMEND SECTION 1.08.010 (DESIGNATED—CONTINUING OFFENSES) RELATED TO PENALTIES ASSOCIATED WITH MUNICIPAL CODE VIOLATIONS; TO ADD SECTION 1.08.035 (PERSON/PERSON RESPONSIBLE FOR VIOLATION DEFINED); AND TO AMEND SECTION 1.08.040 (ADMINISTRATIVE CITATION), SUBSECTION C RELATED TO WRITTEN NOTICES OF VIOLATION

BE IT ORDAINED by the City Council of the City of Brentwood:

SECTION 1. That Section 1.08.010 Designated- Continuing Offenses of the Brentwood Municipal Code is hereby amended in its entirety to read as follows:

“1.08.010 Penalties for violations.

A. It is unlawful for any person to violate any provision or to fail to comply with any of the requirements or provisions of this code heretofore or hereafter enacted or the provisions of any code adopted by reference by this code. Any person violating any such provisions or failing to comply with any of the mandatory requirements of this code, shall be guilty of a misdemeanor, unless such violation or failure to comply is specifically declared to be an infraction by other provisions of this code. Notwithstanding any other provisions of this code, any such violation constituting a misdemeanor may, in the discretion of the city attorney, be charged and prosecuted as an infraction. Notwithstanding this section and as an alternative to criminal prosecution, all violations of this code are subject to the administrative code enforcement remedies set forth in this chapter 1.08 and any other administrative or civil proceeding now or hereafter authorized under this code.
B. Any person convicted of an infraction under the provisions of this code, or any code adopted by reference by this code, shall be punished by a fine not exceeding two hundred-fifty dollars ($250).
C. Any person convicted of a misdemeanor shall be punished by a fine of not more than one thousand dollars ($1,000), or by imprisonment in the county jail for a period not exceeding six (6) months, or by both such fine and imprisonment.
D. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of, or failure to comply with, any provision of this code, or the provisions of any code adopted by reference by this code, is committed, maintained, continued or permitted by such person and shall be punishable accordingly.
E. In addition to the penalties provided by this section or elsewhere in this code, or in any code adopted by reference by this code, any condition caused or permitted to exist in violation of any of the provisions of this code, or the provisions of any code adopted by reference by this code, shall be deemed a public nuisance and may be abated by the city, and each day such condition continues shall be regarded as a new and separate offense.
F. In any civil action commenced by the city to abate a nuisance, to enjoin a violation of any provision of this code or any provision of any code adopted by reference by this code, to collect a civil penalty imposed either by this code or by state or federal law, or to collect a civil debt owing to the city, the city shall, if it is the prevailing party, be entitled to recover from the defendant in any such action reasonable attorney's fees and costs of suit.
G. A violation of any section of this code which is punishable as an infraction shall be charged and prosecuted as an infraction, provided that for the second or any additional violation of said section within a one year period from the prior violation, the city attorney at his or her discretion may charge and prosecute the matter as a misdemeanor
H. Payment of a fine shall not excuse payment of any fee required by this code or any other city ordinance.
I. Nothing contained in this section shall preclude the city from enforcing the provisions of this code or any other ordinance through any other available methods.”

SECTION 2. That Chapter 1.08 (General Penalty), is hereby amended to add a new Section 1.08.035 (Person/Person Responsible for Violation) to read as follows:

“1.08.035 Person/person responsible for violation defined.

For the purposes of this Chapter, “person” or “person responsible for violation” means any person or persons in charge of the property or location or the person or persons responsible for the event or incident and shall include any of the following: (a) the person or persons who own the property where the violations exist; (b) the person or persons in charge of the property where the violation exists; (c) the person or persons using the property when the violation exists; (d) if any of the persons in subsections (a) through (c) are minors, the parent or guardian of such minor; and (e) if the person or persons is a business entity, the manager or on-site supervisor where the violation exists, the owner, partner, corporate officer or business entity itself.”

SECTION 3. That Section 1.08.040 (Administrative Citation), Subsection C of the Brentwood Municipal Code is hereby amended in its entirety to read as follows:

“C. Notwithstanding subsections (A) and (B), an enforcement officer shall have the authority to issue an administrative citation to any person responsible for a violation without providing the prior written notice required in subsection (A) or preparing the report required in subsection (B) when:
1. The violation requires immediate correction, due to an immediate danger to public health or safety; or
2. The person responsible for the violation has been given prior oral or written warning or a citation for a violation of the same section of the Brentwood Municipal Code within one (1) year of the date of the new violation.
In instances where an enforcement officer uses the authority provided in this subsection, the officer should prepare a report pursuant to subsection (B) within three (3) business days of issuing a citation.”

SECTION 4. This Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the Ordinance in accordance with that law. Further, the City Clerk is directed to cause Section 2 of this Ordinance to be entered in the City of Brentwood Municipal Code. This Ordinance shall take effect and be in force 30 days following its adoption.

SECTION 5. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, the holding shall not affect the validity or enforceability of the remaining provisions, and the council declares that it would have adopted each provision of this ordinance irrespective of the validity of any other provision.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 28th day of August 2007, by the following vote:

ORDINANCE NO. ___________

AN ORDINANCE OF THE CITY OF BRENTWOOD AMENDING IN ITS ENTIRETY CHAPTER 8.00 OF TITLE 8 OF THE CITY OF BRENTWOOD MUNICIPAL CODE RELATING TO NUISANCES AND DELETING IN ITS ENTIRETY CHAPTER 8.28 (TRAILER COACHES AND CAMP CARS) OF CHAPTER 8.

THE CITY COUNCIL OF THE CITY OF BRENTWOOD DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Chapter 8.00 of Title 8 of the City of Brentwood Municipal Code is hereby deleted in its entirety and replaced with the following:

“Chapter 8.00 NUISANCES
8.00.010 Purpose.

It is hereby declared to be in the public interest to promote the health, safety and welfare of the residents of the City of Brentwood by providing procedures for the abatement of nuisances, as declared by the City Council of the City of Brentwood, which abatement procedures are in addition to any other proceeding authorized by this code or by law.

8.00.020 Definitions.

For purposes of this chapter, the following words and phrases shall have the meanings set forth below:

“Building Official” means the City’s Chief Building Official or his or her designee.
“City” means the City of Brentwood.
“City Clerk” means the City Clerk or his or her designee.
“City Manager” means the City Manager or his or her designee.
“Code” means the Municipal Code of the City of Brentwood.
“Enforcement Officer” means any City employee or agent of the City with the authority to enforce any provision of this code.
“Final order” means the final order to abate ordered by the Hearing Officer in the event an appeal of the determination the existence of a nuisance is filed.
“Hearing Officer” means the individual appointed by the City Manager to hear the appeal on a determination of the existence of a nuisance.
“Notice and order” means the written notice and order to abate given by the Enforcement Officer in accordance with this chapter.
“Owner” means any person owning the property at issue as shown on the last equalized assessment roll, or the lessee, tenant or other person having control or possession of the property.
“Person” means any individual or entity, including but not limited to a corporation, partnership or trust.
“Property” means any property located within the City and any building located on such property.
“Responsible party” means any person or persons in charge of the property or location or the person or persons responsible for the event or incident and shall include any of the following: (a) the person or persons who own the property where the violations exist; (b) the person or persons in charge of the property where the violation exists; (c) the person or persons using the property when the violation exists; (d) if any of the persons in subsections (a) through (c) are minors, the parent or guardian of such minor; and (e) if the person or persons is a business entity, the manager or on-site supervisor where the violation exists.

8.00.030 Declaration of nuisances.

It is unlawful and is hereby declared a nuisance for any person owning, leasing, renting, occupying or having charge or possession of any property in the City to maintain such property or allow such property to be maintained in such a manner that any of the following conditions are found to exist thereon:

A. Broken or discarded furniture, household equipment and furnishings or shopping carts stored on the property so as to be visible from a public street;
B. Overgrown vegetation visible from a public street likely to harbor rats, vermin or other vectors;
C. Overgrown vegetation which obstructs the view of drivers from streets or driveways or impedes, obstructs or denies pedestrian or other lawful travel on sidewalks, walkways or other public rights of way;
D. Dead, decayed or diseased trees, weeds or other vegetation visible from a public street;
E. Weeds that exceed four inches in any yard or planter strip;
F. Packing boxes, cardboard boxes, lumber, junk, barrels, drums, salvage materials or other debris stored on the property and visible from a public street, except trash enclosed in a legal trash enclosure;
G. Attractive nuisances dangerous to children and other persons, including but not limited to abandoned, broken or neglected equipment, machinery, appliances, refrigerators and freezers, and unsecured or unmaintained pools, ponds and excavations;
H. Personal property, such as vehicles, boats, trailers or vehicle parts which are left in a state of partial repair in front yards, side yards, driveways, sidewalks or walkways, and visible from a public street;
I. Vehicles stored in the front yard of the property, unless they are entirely located on the designated paved driveway areas that provide direct access to the garage from the street, are parked perpendicular to the street, unless the driveway is curved;
J. Buildings which are abandoned, partially destroyed, left in an unreasonable state of partial construction or have been declared substandard or dangerous by the Building Official;
K. Buildings having dry rot or termite infestation;
L. Buildings where 20 percent or more of any painted surfaces of the building’s exterior observable from public view is peeling or buildings lacking weather protection due to lack or paint or other approved protective coating;
M. Buildings with windows containing broken glass or no glass at all, where the windows are of a type which normally contains glass;
N. Walls, fences, driveways or walkways adjacent to or visible from the public right-of-way, which are maintained in such condition as to become defective or a hazardous condition, including but not limited to lifting sidewalks or leaning fences;
O. Construction equipment or machinery of any type or description, including farm equipment, parked or stored on the property and visible from a public street, except (1) during excavation, construction or demolition operations covered by an active building permit which are in progress on the property or an adjacent property with permission of the adjacent property owner, (2) during active farming operations, or (3) when such machinery in agricultural or industrial zoning district is stored in accordance with the code;
P. The keeping, storing, depositing or accumulation for longer than 30 days with no ongoing construction activities of dirt, sand, gravel, concrete and other similar materials within public view, unless the owner has applied for and obtained a permit pursuant to the code;
Q. Materials, such as tarps or similar non-permanent articles, on roofs for more than 30 days;
R. Commercial vehicles having a manufacturer’s gross vehicle weight rating of 10,000 pounds or more that are parked or stored in any residential district for any length of time, except vehicles operating in the normal course of business;
S. Sleeping or living in any vehicle or portion thereof, except vehicles within an approved mobile home park or under an approved permit;
T. Any artificial alteration of property, excluding water, from its natural condition, resulting in it supporting the development, attraction, or harborage of vectors, with the presence of vectors in their developmental stages on property being prima facie evidence that the property is a public nuisance;
U. Any water that is a breeding place for vectors, with the presence of vectors in their developmental stages in the water being prima facie evidence that the water is a public nuisance;
V. Any activity that supports the development, attraction, or harborage of vectors, or that facilitates the introduction or spread of vectors;
W. Anything that unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, creek or basin, or any public park, square, street, trail, sidewalk or highway;
X. Unmounted campers or camper shells stored in front or in side or rear yards not behind a fence and visible from the public right-of-way;
Y. Any sewage disposal system improperly connected or which permits sewage seepage;
Z. Any violation of this code or any condition of property contrary to the public peace, health and safety;
AA. Any clotheslines or clothes hanging and visible from the public right-of-way, except for clotheslines or clothes in rear yards;
BB. Failure to secure all doorways, windows or other openings into a vacant structure, or provide fencing for the entire parcel containing the vacant structure to prevent persons from gaining unauthorized access; or
CC. Any act which declared to be a nuisance by the provisions of Title 1 of Part 3 of the Civil Code of the state of California, or by any other provisions of the laws of the state of California, or of this code.

8.00.040 Notice of public nuisance and order to abate.

Whenever an Enforcement Officer determines that any property is being maintained or kept in violation of this chapter, the Enforcement Officer will give written notice and order to abate to the owner and/or responsible party. The notice and order will contain the following, at a minimum:

A. A description of the property by reference to its address and assessor’s parcel number;
B. The sections of this chapter being violated;
C. A reasonable time limit for the responsible party to abate the condition, which will be no less than three calendar days and no more than 30 calendar days from the date of the notice;
D. If applicable, the suggested methods to reasonably abate the nuisance;
E. A statement that the owner and/or responsible party must abate the violation(s) or request an administrative hearing within the time specified; and
F. A statement that if the nuisance is abated by the City, the costs of such abatement will be assessed against the property and, if not paid, will constitute a lien against the property.

8.00.050 Manner of giving notice and order.

A copy of the notice and order will be posted on the property and a copy will be mailed, postage prepaid, to the owner at the address shown on the last equalized assessment roll and to the responsible party, if applicable.

8.00.060 Appeal and notice of hearing.

Within seven days from the date of the notice and order, the responsible party may file an appeal of the determination of the nuisance with the City Clerk. Such appeal must be in writing and identify the property subject to the notice and order. The City Clerk will cause the matter to be set for hearing before a Hearing Officer. Notice of the date, time and place of the hearing shall be given in writing to the responsible party. The date of the hearing will be no sooner than seven days from the date when notice of the hearing is given to the appellant and the Hearing Officer. Failure to appeal the determination of the nuisance shall be deemed a failure of the responsible party to exhaust their administrative remedies.

8.00.070 Administrative hearing.

A. At the hearing, the Hearing Officer will hear the testimony of all competent persons desiring to testify regarding the condition claimed to constitute a nuisance.
B. At the conclusion of the hearing, the Hearing Officer will determine whether or not a nuisance exists and if the Hearing Officer so concludes, he or she may declare the conditions to be a nuisance and order the condition abated within a specified number of days of service of the Hearing Officer’s order.
C. The decision of the Hearing Officer on the determination of a nuisance is final. Any appeal of the Hearing Officer’s decision is governed by California Code of Civil Procedure Section 1094.6, as may be amended from time to time.

8.00.080 Abatement by City.

If a nuisance is not abated by the responsible party within the time limits set forth in the notice and order or, if appealed, the time limits set forth in the final order, the City, by its employees or a hired contractor, may abate the nuisance or cause the nuisance to be abated.

8.00.090 Summary abatement.

Notwithstanding and in addition to any other remedy available under this chapter or other federal, state or local laws or regulations, if a nuisance as defined in this chapter exists and constitutes an immediate threat to public health or safety, the city may summarily and without notice or hearing abate such nuisance at the expense of the responsible party. The expense of abatement of the nuisance shall be a lien against the property on which it is maintained and a personal obligation against the owner, in accordance with Section 38773.1 or 38773.5 of the California Government Code and this chapter.

8.00.100 Attorneys’ fees.

In administrative abatement proceedings under this Chapter, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, but only if the city elects in writing, at the initiation of an individual abatement proceeding, to seek recovery of its own attorneys’ fees. In no event shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the city in the abatement proceedings. The city may recover its attorneys’ fees in the same manner as other costs of nuisance abatement pursuant to this Chapter.

8.00.110 Report of abatement costs.

The Enforcement Officer will cause a report of the action and an accurate account of the costs of abatement to be filed with the City Clerk. A copy of the report shall be served upon the owner and/or responsible party in accordance with the procedures set forth in 8.00.050 at least five days prior to submitting the report to the City Council as provided in 8.00.110 (B).

8.00.120 Council action on abatement costs.

A. If the Owner does not pay the cost of abating the nuisance within 30 calendar days after receiving the report of abatement costs, 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 confirmation 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 City Council shall adopt a resolution assessing such unpaid costs of abatement as liens upon the respective parcels of land as they are shown upon the last available assessment roll.

8.00.130 Imposition of special assessment lien and notice.

A. The City Clerk shall prepare and file with the County Assessor 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 8.00.110(B).
B. Notice of lien shall be mailed by certified mail to the owner, if the owner's identity can be determined from the County Assessor's or County Recorder's records. The notice of lien shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years for unpaid delinquent assessments. The power of sale shall not be affected by the failure of the property owner to receive notice.
C. The County Assessor 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.

8.00.140 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.

8.00.150 Recordation of notices.

The Building Official may cause to be recorded with the County Recorder notices or instruments relating to the abatement proceedings or special assessments described in this chapter.

8.00.160 Alternative remedies.

The procedures established in this chapter shall be in addition to criminal, civil, administrative or other legal or equitable remedies established by law which may be pursued to address violations of this Code or applicable state codes and the use of this chapter shall be at the sole discretion of the City, including but not limited to the ability to collect and assess administrative citation fines.”

SECTION 2. Chapter 8.28 (Trailer Coaches and Camp Cars) of Title 8 of the Brentwood Municipal Code is hereby deleted in its entirety.

SECTION 3. This Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the Ordinance in accordance with that law. Further, the City Clerk is directed to cause Section 2 of this Ordinance to be entered in the City of Brentwood Municipal Code. This Ordinance shall take effect and be in force 30 days following its adoption.

SECTION 4. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, the holding shall not affect the validity or enforceability of the remaining provisions, and the council declares that it would have adopted each provision of this ordinance irrespective of the validity of any other provision.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 28th day of August 2007, by the following vote:
 

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