Ordinance 3024CITY OF ALAMEDA ORDINANCE NO. 3024
New Series
AMENDING THE ALAMEDA MUNICIPAL CODE BY ADDING
SUBSECTION 23 -8 (ENCROACHMENTS ON PUBLIC
PROPERTY PROHIBITED)
BE IT ORDAINED by the Council of the City of Alameda that:
Section 1. The Alameda Municipal Code is hereby amended by
adding section 23 -8 (Encroachments on Public Property Prohibited) to Chapter
XXIII (Parks, Recreation Areas and Public Property) thereof to read as follows:
23 -8 Encroachments on Public Property Prohibited.
23-8.1 Authority.
This ordinance is enacted pursuant to sections 38771 and 38775 of the
California Government Code.
23 -8.2 Definitions.
As used in this section:
Encroachment shalt mean any solid material, or structure, to include
without limitation, any human directed alteration of the land and the lantir
p g,
cultivation or maintenance of any vegetation, located on public property without
an encroachment permit.
Owner shall mean the legal owner of real property abutting public property
in the City of Alameda or his or her successor(s) in interest. Owner shall include
an individual, firm, partnerships of any type, joint venture, association
corporation, estate, trust, receiver, syndicate, or any other group or combination
acting as a unit, and the lessees, trustees, agents, employees, servants and
employees,
of same, and the plural as well as the singular number.
Public Property shall mean any City -owned property.
Public Works Director shall mean the Public Works Director of the City of
Alameda or his or her designee.
23 -8.3 Encroachments on Public Property Prohibited /Declaration of Nuisance.
Encroachments constructed, placed, maintained or otherwise located on
public property without an Encroachment Permit shalt be deemed illegal and
are hereby declared to be a public nuisance and may be abated in conformance
with the provisions of this section.
In addition to other remedies provided by law, all direct and indirect costs,
including legal expenses, incurred by the City of Alameda in abating such
nuisance shall become a lien on the abutting property and a personal obligation
of the owner thereof or his or her successor(s)-in-interest, and shall be a special
assessment against said property to be collected as ordinary municipal taxes,
pursuant to the procedure set forth in subsection 23 -8.7.
23 -8.4 Exceptions.
The provisions of this Chapter shall not apply to:
1. Encroachments that have been constructed, installed or maintained
with the receipt of an Encroachment Permit and which are in conformity
thereto;
2. City employees engaging in City - related activities; or
3. Public utilities operating under a valid franchise agreement, provided
all requirements imposed through the franchise agreement, applicable
state law or regulation have been complied with and provided the Public
Utility has notified and gained prior authorization from the City's Public
Works Director.
23 -8.5 Removal of Encroachment(s).
Upon the discovery of any unpermitted encroachment located on public
property, the Public Works Director or his or her designee shall notif y the owner
of the abutting private property of his /her responsibility to immediately remove
the encroachment and to repair any damage resultin g therefrom to the
satisfaction of the Public Works Director. If there is no response by the owner
or owners within thirty days of notification, the City will have the right to remove
the illegal encroachment at the owner's expense.
23 -8.6 Appeal Procedure -- Administrative Hearing.
The owner may appeal the nuisance determination to the City by filing an
appeal within 15 calendar days of the date of mailing of the notice to abate. The
appeal shall identify the property and state the objections together with all
g
material facts in support thereof.
23 -8.7 Service of Notice of Hearing.
A. In the event the owner appeals the nuisance determination, the City
shall schedule an administrative hearing before a hearing officer designated by
the City.
B. Notice of hearing shall be served personally or by first class mail,
postage prepaid. The notice shall specify the time and place when and where
the designated hearing officer will hear and decide upon the objections raised
by the owner. Such notice shall be served not Tess than five days, exclusive of
Saturdays, Sundays, and holidays, prior to the time set for the hearing. Service
shall be deemed complete at the time notice is personally served or deposited
in the mail.
23 -8.8 Waiver of Hearing.
Failure of the owner to appear at the hearing after notice has been
served shall be deemed a waiver of the hearing and an admission b y said
owner of the nuisance charge. In the event of such failure to appear, the City
may order that the nuisance be abated immediately thereafter.
23 -8.9 Hearing on Objections.
The hearing officer shall hear and rule on objections to abatement of the
nuisance. The owner may appear at the hearing by counsel. The formal rules of
evidence shall not apply. All witnesses shall be sworn and each art shall have
p y
the right to cross - examine adverse witnesses. The hearing ma y be continued
from time to time The ruling shall either allow or overrule the objections, or
make such other determinations as are consistent with this chapter and shall be
final.
23-8.10 Notice of Decision.
The hearing officer shall notify the owner of his or her determination in
writing, and may direct the owner to abate the nuisance at his or her expense
within a specified time period to the extent the nuisance has been found to
exist.
23 -8.11 City to Perform Abatement After Hearing Decision.
If the nuisance is not abated within the time specified in the notice of
decision, the City shall have the power to abate such nuisance without further
notice, including the power to condemn, destroy, or demolish any property
y p p y
constituting the nuisance if the nuisance cannot feasibly be abated without
destruction of such property.
23 -8.12 Cost of Abatement; Recovery of Costs.
a. Cost of Abatement.
1. if City work crews or City contractors perform the abatement, the Public
Works Director shall keep an account of the costs and expenses of abating
such nuisance and shall render a statement of such costs to the owner. The
owner shall be individually liable to the City for any and all costs and expenses
to the City involved in abating the nuisance.
2. Costs and expenses as referred to in this section shalt include, but are
not limited to, any and all direct costs related to personnel salaries and benefits,
operational overhead, rent, interest, fees for experts, consultants or contractors,
legal costs or expenses including attorney's fees, claims against the City arising
g
as a consequence of the nuisance or violation, and procedures associated with
collecting moneys due hereunder.
b. Report of Costs Transmitted to Council; Hearing.
1. The Public Works Director shall present to the City Council for
consideration a report of costs for abating the nuisance. The Council shall fix a
time, date and place for hearing the report, and any protests or objections
yp 1
thereto. The City Clerk shall cause notice of hearing to be served on the owner
and on any mortgagee or beneficiary under any deed of trust in the same
manner as set forth in subsection 23- 8.7(B). Such notices shall be g iven at least
ten (10) days prior to the date set for hearing and shall specif y ]� the day , hour
and place when the City Council will hear and pass upon the report of the
Public Works Director containing the proposed charge for abatement, and any
objections or protests which may have been filed by any person interested in or
affected thereby.
2. The cost and expenses of abatement of an y action taken hereunder shall
be assessed against the subject property upon which the building or structure is
located as a lien, special assessment or made a personal obligation of the
owner; except, that in the event the courts shalt decide the action taken under
this Article was improper, no recovery of costs shall be allowed.
c. Recovery of Costs and Expenses of Abatement Costs b y Special
ecial
Assessment.
1. if the City Council orders that the abatement costs shall be charged
against the property, the City Manager, or his or her designee, shall prepare a
Notice of Special Assessment.
2. The City Manager, or his or her designee, shall deliver the Notice of
Special Assessment to the County Auditor who shall place it on the County
y
Assessment Roll pursuant to California Government Code section 38773.5.
3. The Notice of Special Assessment shall include a co py of the Council's
confirmation of costs and shall summarize the abatement action. The City
Manager may record a copy of this Special Assessment Notice to inform any
subsequent purchasers or owners about the abatement action and costs.
4. The City Manager, or his or her designee, shall file a withdrawal of this
Notice with the County Recorder when either: (1) the owner pays ys in full the
abatement costs; or (2) the County Auditor or Tax Collector p osts a lien on the
property pursuant to California Government Code section 38773.5.
d. Collection of Assessment; Penalties and Foreclosure. Pursuant to the
provisions of California Government Code section 38773.5, the Count y Tax
Collector may collect the amount of the assessment at the same time and in the
same manner as ordinary municipal taxes and impose the same p enalties and
procedures, including the sale of the property, in the case of delinquency, as
provided for ordinary municipal taxes. All laws applicable to the levy,
collection
and enforcement of property taxes shall be applicable to the special
assessment.
Section 2. Severability. Should any provision of this Ordinance, or its
application to any person or circumstance, be determined b y a court of
competent jurisdiction to be unlawful, unenforceable or otherwise void, that
determination shall have no effect on any other p rovision of this Ordinance or
the application of this Ordinance to any other person or circumstance and
to
that end, the provisions hereof are severable.
Section 3. This Ordinance shall be in full force and effect from and after the
expiration of thirty (30) days from the date of its final passage.
Attest:
Lara Weisiger, City
City of Alameda
Presiding the City Council
1, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the City Council of the City of Alameda in a Regular
Meeting of the Alameda City Council on the 3rd day of November, 2010 by the following
vote to wit:
AYES: Councilmembers deHaan, Gilmore, Matarrese, Tam
and Mayor Johnson — 5.
NOES: None.
ABSENT: None,
ABSTENTIONS: None.
IN WITNESS, WHEREOF, 1 have hereunto set my hand and affixed the official seal of
said City this 4th day of November, 2010.
Lara Weisiger, City rk
City of Alameda