A. Administrative remedies.
1. Notice of noncompliance. The Authorized Inspector may deliver to the owner or occupant of any property, or to any person responsible for an illicit connection or prohibited discharge a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with § 13.32.050.A.5.
a. The notice of noncompliance shall identify the provision(s) of this chapter or the applicable permit which has been violated. The notice of noncompliance shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and/or person.
b. The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and/or person; provided, however, that the compliance date may not exceed ninety (90) days unless the Authorized Inspector extends the compliance deadline an additional ninety (90) days where good cause exists for the extension.
2. Administrative compliance orders.
a. The Authorized Inspector may issue an administrative compliance order. The administrative compliance order shall be delivered in accordance with § 13.32.050.A.5. The administrative compliance order may be issued to:
(1) The owner or occupant of any property requiring abatement of conditions on the property that cause or may cause a prohibited discharge or an illicit connection in violation of this chapter;
(2) The owner of property subject to terms, conditions or requirements imposed on a project in accordance with § 13.32.050.A.1 to ensure adherence to those terms, conditions and requirements.
(3) A permittee subject to the requirements of any permit issued pursuant to § 13.32.060 hereof to ensure compliance with the terms, conditions and requirements of the permit.
(4) Any person responsible for an illicit connection or prohibited discharge.
b. The administrative compliance order may include the following terms and requirements:
(1) Specific steps and time schedules for compliance as reasonably necessary to prevent the imminent threat of a prohibited discharge, including but not limited to a prohibited discharge from any pond, pit, well, surface impoundment, holding or storage area;
(2) Specific steps and time schedules for compliance as reasonably necessary to discontinue any illicit connection;
(3) Specific requirements for containment, cleanup, removal, storage, installation of overhead covering, or proper disposal of any pollutant having the potential to contact storm water runoff;
(4) Any other terms or requirements reasonably calculated to prevent the imminent threat of or continuing violations of this chapter, including, but not limited to requirements for compliance with best management practices guidance documents promulgated by any federal, State of California or regional agency;
(5) Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions and requirements of any permit issued pursuant hereto.
3. Cease and desist orders.
a. The Authorized Inspector may issue a cease and desist order. A cease and desist order shall be delivered in accordance with § 13.32.050.A.5. A cease and desist order may direct the owner or occupant of any property and/or other person responsible for a violation of this chapter to:
(1) Immediately discontinue any illicit connection or prohibited discharge to the storm water drainage system;
(2) Immediately contain or divert any flow of water off the property, where the flow is occurring in violation of any provision of this chapter;
(3) Immediately discontinue any other violation of this chapter;
(4) Clean up the area affected by the violation.
b. The Authorized Inspector may direct by cease and desist order that the owner of any property or any permittee under any permit issued pursuant to § 13.32.060 hereof:
(1) Immediately cease any activity not in compliance with the terms, conditions and requirements of the applicable permit.
4. Recovery of costs. The Authorized Inspector may deliver to the owner or occupant of any property, any permittee or any other person who becomes subject to a notice of noncompliance or administrative order, an invoice for costs. An invoice for costs shall be delivered in accordance with § 13.323.050.A.5. An invoice for costs shall be immediately due and payable to the city for the actual costs incurred by the city in issuing and enforcing any notice or order.
a. If any owner or occupant, permittee or any other person subject to an invoice for costs fails to either pay the invoice for costs or appeal successfully the invoice for costs in accordance with § 13.32.050.A.6, then the Enforcing Attorney may institute collection proceedings.
5. Delivery of notice. Any notice of noncompliance, administrative compliance order, cease and desist order or invoice of costs to be delivered pursuant to the requirements of this chapter shall be subject to the following:
a. The notice shall state that the recipient has a right to appeal the matter as set forth in § 13.32.050.A.6 through A.10 hereof.
b. Delivery shall be deemed complete upon (1) personal service to the recipient; (2) deposit in the U.S. mail, postage pre-paid for first class delivery; or (3) facsimile service with confirmation of receipt.
c. Where the recipient of notice is the owner of the property, the address for notice shall be the address from the most recently issued equalized assessment roll.
d. Where the owner or occupant of any property cannot be located after the reasonable efforts of the Authorized Inspector, a notice of noncompliance or cease and desist order shall be deemed delivered after posting on the property for a period often (10) business days.
6. Administrative hearing for notices of noncompliance administrative compliance orders, invoices for costs and adverse determinations. Except as set forth in § 13.32.050.A.8, below, any person receiving a notice of noncompliance, administrative compliance order, a notice of legal nonconforming connection, an invoice for costs, or any person who is subject to any adverse determination made pursuant to this chapter, may appeal the matter by requesting an administrative hearing. Notwithstanding the foregoing, these administrative appeal procedures shall not apply to criminal proceedings initiated to enforce this chapter.
7. Request for administrative hearing. Any person appealing a notice of noncompliance, an administrative compliance order, a notice of legal nonconforming connection, an invoice for costs or an adverse determination shall, within thirty (30) days of receipt thereof, file a written request for an administrative hearing, accompanied by an administrative hearing fee as established by separate resolution, with the Office of the City Clerk, with a copy of the request for administrative hearing mailed on the date of filing to the Director. Thereafter, a hearing on the matter shall be held before the Hearing Officer within forty-five (45) business days of the date of filing of the written request unless, in the reasonable discretion of the Hearing Officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.
8. Administrative hearing for cease and desist orders and emergency abatement actions. An administrative hearing on the issuance of a cease and desist order or following an emergency abatement action shall be held within five (5) business days following the issuance of the order or the action of abatement, unless the hearing (or the time requirement for the hearing) is waived in writing by the party subject to the cease and desist order or the emergency abatement. A request for an administrative hearing shall not be required from the person subject to the cease and desist order or the emergency abatement action.
9. Hearing proceedings. The Authorized Inspector shall appear in support of the notice, order, determination, invoice for costs or emergency abatement action, and the appealing party shall appear in support of withdrawal of the notice, order, determination, invoice for costs, or in opposition to the emergency abatement action. The city shall have the burden of supporting any enforcement or other action by a preponderance of the evidence. Each party shall have the right to present testimony and other documentary evidence as necessary for explanation of the case.
10. Final decision and appeal. The final decision of the Hearing Officer shall issue within ten (10) business days of the conclusion of the hearing and shall be delivered by first-class mail, postage prepaid, to the appealing party. The final decision shall include notice that any legal challenge to the final decision shall be made pursuant to the provisions of California Code of Civil Procedure § 1094.5 and § 1094.6 and shall be commenced within ninety (90) days following issuance of the final decision.
Notwithstanding this subparagraph 10., the final decision of the Hearing Officer in any preceding determining the validity of a cease and desist order or following an emergency abatement action shall be mailed within five (5) business days following the conclusion of the hearing.
11. City abatement. In the event the owner of property, the operator of a facility, a permittee or any other person fails to comply with any provision of a compliance schedule issued to such owner, operator, permittee or person pursuant to this chapter, the Authorized Inspector may request the Enforcing Attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to § 13.32.050.B.4.
B. Nuisance. Any condition in violation of the prohibitions of this chapter, including but not limited to the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to California Government Code § 38771.
1. Court order to enjoin or abatement. At the request of the Director, the Enforcing Attorney may seek a court order to enjoin and/or abate the nuisance.
2. Notice to owner and occupant. Prior to seeking any court order to enjoin or abate a nuisance or threatened nuisance, the Director shall provide notice of the proposed injunction or abatement to the owner and occupant, if any, of the property where the nuisance or threatened nuisance is occurring.
3. Emergency abatement. In the event the nuisance constitutes an imminent danger to public safety or the environment, the Director of Public Works may enter the property from which the nuisance emanates, abate the nuisance and restore any property affected by the nuisance. To the extent reasonably practicable, informal notice shall be provided to the owner or occupant prior to abatement. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.
a. An imminent danger shall include, but is not limited to, exigent circumstances created by the dispersal of pollutants, where the same presents a significant and immediate threat to the public safety or the environment.
b. Notwithstanding the authority of the city to conduct an emergency abatement action, an administrative hearing pursuant to § 13.32.050.A.8 shall follow the abatement action.
4. Reimbursement of costs. All costs incurred by the city in responding to any nuisance, all administrative expenses and all other expenses recoverable under state law, shall be recoverable from the person(s) creating, causing, committing, permitting or maintaining the nuisance.
5. Nuisance lien. All costs shall become a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof in accordance with California Government Code § 38773.1 and § 38773.5. The owner of record of the property subject to any lien shall be given notice of the lien prior to recording as required by California Government Code § 38773.1.
a. At the direction of the Director, the Enforcing Attorney is authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgment or by delivery to the County Assessor of a special assessment against the property in accord with the conditions and requirements of California Government Code § 38773.5.
(Ord. 997, passed 8-19-97)