Butte County Municipal Code Ch. 49 Unlawful Dumping

For the purposes of this Article, the following words and phrases are defined and shall be construed as hereinafter set out, unless it shall be apparent from the context that they have a different meaning:

a. "Container" means any can, tank, receptacle or box used or intended to be used for the purpose of holding solid waste.

b. "Enforcement Officer" means the director of the Department of Development Services, the director of the Department of Public Works, health officer or their designees.

c. "Hearing Officer" means the director of the Department of Development Services, the director of the Department of Public Works, health officer or their designees.

d. "Household medical waste" means any home generated waste that was used in the treatment of human beings or animals and is either biohazardous or sharp (hypodermic needles, etc.) as defined in the Health and Safety Code.

e. "Person" means an individual, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, firm, organization, partnership, joint venture or any other entity whatsoever.

f. "Premises" includes the property, easements abutting sidewalks, alleyways and the untraveled portion of an abutting public street.

g. "Permitted solid waste hauler" means any person who engages in the business of collecting and removing garbage and refuse and who has been issued a solid waste hauler permit by the Division of Environmental Health, pursuant to the provisions of Chapter 31 of this code.

h. "Public Official" means the director of the Department of Development Services, the director of the Department of Public Works or the health officer.

i. "Residential property" means any real property improved with a home, abode or place where an individual or family is residing and that is not rental property.

j. "Solid waste" means any and all putrescible and nonputrescible liquid, solid and/or semi-solid waste, whether hazardous or nonhazardous, and/or discarded property and items, including, but not limited to, refuse, garbage, rubbish, paper, ashes, industrial wastes, demolition and construction wastes, nuisance vehicles, dismantled vehicles or abandoned vehicles and/or parts thereof, discarded home and industrial appliances, vegetable or animal solid and semi-solid wastes and other discarded liquid, solid and/or semi-solid wastes. For purposes of this chapter, "solid waste" shall include materials brought to a county waste facility that may ultimately be diverted, reused or recycled by the county.

k. "Waste facility" means:

1. A permitted facility used to receive, temporarily store, separate, convert or otherwise process the materials in solid waste or transfer solid waste directly from smaller to larger vehicles for transport;

2. A permitted solid waste disposal site which is a Class III Disposal Site in accordance with the meaning prescribed by Article 2, Subchapter 15, Chapter 3, Title 23 of the California Code of Regulations (commencing with Section 2510) as amended from time to time;

3. A permitted household hazardous waste collection facility authorized to operate under permit by rule status pursuant to Title 22, California Code of Regulations, Section 66270.60;

4. A permitted Class II Disposal Site;

5. A permitted waste processor;

6. A mono-fill waste disposal site; and

7. An exempt disposal facility or reclamation site.

(Ord. No. 3900, § 1, 1-25-05)

a. Any person who:

1. Fails to arrange for the lawful disposal of solid waste generated on property which that person owns, occupies or is the person responsible for day-to-day operations thereof, for example, an owner of Residential Rental Property, as defined in section 31-11.445, who fails to comply with Butte County Code section 31-50(c), by failing to maintain a continuous subscription for regular refuse removal by a licensed refuse hauler when said property is occupied;

2. Causes, maintains or permits solid waste to be deposited within the county in any manner that violates the provisions of this chapter;

3. Causes or permits the deposit of solid waste on the right-of-way of any public highway, street, easement or thoroughfare, or upon any camping place or public grounds, or on any premises, or in any container, without the permission of the owner thereof, or into any stream or dry watercourse, within the county of Butte, State of California, and outside of the incorporated cities; or

4. Causes, maintains or permits the accumulation of solid waste which creates an unsanitary condition or permits or encourages the accumulation or breeding of vectors, or causes, maintains or permits solid waste to be placed in a container other than provided in this chapter; is guilty of a misdemeanor and may be punished as provided in Section 1-7, Subsection (a) of this code. Such person is also subject to the administrative/abatement procedures set forth in this Article, as well as any other remedy provided by law.

b. Any Condition which is a direct result of any of the acts/omissions set forth in subsection a of this section is hereby deemed to be a public nuisance subject to the administrative/abatement procedures set forth in this Article, as well as any other remedy provided by law.

c. In a criminal proceeding alleging a violation of subsection a of this section, upon a prima facie showing by the prosecution that a person's items, solid waste or property have been found in any location where it is unlawful to dispose of solid waste, under circumstances which would lead a reasonable trier of fact to conclude that the items had previously been discarded in that location, shall constitute a permissible inference that the person is guilty of a violation of Subsection a of this Section. The mental state required for conviction of a violation of Subsection a of this Section is strict liability, without regard to any element of mens rea, fault, negligence or other wrongdoing.

d. In the event of a conviction of a violation of Subsection a of this Section and under appropriate circumstances, the court shall order the defendant to pay restitution to any public entity and/or private party which and/or whom has incurred out-of-pocket expenses as a result of cleaning up an unlawful dump site, as a rehabilitative measure, in addition to any penalty imposed.

(Ord. No. 3900, § 1, 1-25-05; Ord. No. 3914, § 5, 10-13-05)

a. It is unlawful for any person to place, deposit or dump or cause to be placed, deposited or dumped any material at any waste facility:

1. Without first paying the fees prescribed by the board of supervisors; or

2. In violation of the rules and regulations prescribed by the board of supervisors for the operation of the waste facility. A copy of the fee schedule and the rules and regulations governing the waste facility shall be on file at the Department of Public Works and the clerk of the board and shall be open to inspection by the public.

b. Any Condition which is a direct result of any of the acts/omissions set forth in subsection a of this Section is hereby deemed to be a "public nuisance" subject to the administrative/abatement procedures set forth in this Article, as well as any other remedy provided by law.

(Ord. No. 3900, § 1, 1-25-05)

a. Whenever he or she becomes aware that any act/omission constituting a violation of this Article has occurred, the Enforcement Officer may:

1. Issue an administrative order finding that a person or persons is/are responsible for a violation of this Article and directing such responsible person to pay an administrative penalty in the applicable amount set forth in Section 49-8;

2. Issue an administrative order directing any responsible person to undertake partial or comprehensive actions, so as to provide adequate protection of the public health, welfare, the environment or natural resources, by abating a nuisance resulting from a violation of this Article;

3. If, in the opinion of the Enforcement Officer, the nuisance constitutes an immediate threat to public health or safety, summarily abate the nuisance; and/or

4. Request that the District Attorney or County Counsel immediately seek relief as may be necessary or appropriate from a court of competent jurisdiction. Said court, upon finding that there is, or that the conditions complained of may present an endangerment to the public health, welfare, the environment or natural resources arising out of or resulting from such nuisance, in whole or in part, shall grant relief to abate the nuisance as is consistent with the relevant requirements of this Chapter and the public interest to secure adequate protection of the public health, welfare, the environment or natural resources.

b. At his discretion, the Enforcement Officer may both issue administrative order(s) and request that the district attorney or county counsel seek such relief as may be necessary or appropriate from a court of competent jurisdiction pursuant to this section.

c. Any such administrative order shall be served by personal service, registered mail or certified mail with return receipt requested addressed to the person subject to the order.

d. The administrative order(s) issued by the Enforcement Officer pursuant to this section shall include a statement of the factual and legal grounds upon which the order is issued, a schedule for completion of specific actions ordered and specify the amount(s) of the administrative penalties applicable, both for violating this Article and for failure to comply with specific actions ordered. Such order shall also specifically advise the person(s) to whom it is issued of the right to contest the order and request a hearing as provided for in Section 49-5. Such order shall also conspicuously advise the person(s) to whom it is directed that failure to request the hearing within the time and in the manner provided in Section 49-5 will result in the order becoming final and binding.

e. The administrative order issued by the Enforcement Officer pursuant to this section shall become final and binding on the eighth (8th) day following service of the Enforcement Officer's order, unless the person who has been named in the order files a timely objection which complies in all respects with the requirements of Section 49-5.

(Ord. No. 3900, § 1, 1-25-05)

a. Administrative Review. Any person who has been named in an order issued by the Enforcement Officer pursuant to this chapter may file an objection to such an order. An objection must be in writing and filed with the Enforcement Officer on or before the seventh (7th) day following service of the Enforcement Officer's order. An objection must state both the legal and factual bases in support thereof, and must include at a minimum the requested modification(s), if any, of the order together with a summary of the issues, facts and legal authorities to be raised at the hearing. The time requirement for filing an objection shall be deemed jurisdictional and may not be waived. In the absence of a timely filed objection which complies fully with the requirements of this Section, the findings of the Enforcement Officer contained in the administrative order shall be deemed true and correct.

b. Upon timely receipt of an objection which complies with the requirements of this Section, the Enforcement Officer shall refer the matter to a Hearing Officer to conduct a hearing. The Hearing Officer shall be selected pursuant to the protocol set forth in that document entitled the "Butte County Administrative Hearing Officer Program." The Program is based upon an alphabetical rotation through attorneys currently under contract through the Program. Notice of the hearing shall be sent by first class mail postage prepaid to the persons filing the request. The notice shall state the date, time and place of the hearing (which in no event shall be sooner than seven (7) days from the date of the mailing, unless otherwise agreed to by the responsible party and the Enforcement Officer).

c. The Hearing Officer shall issue a written decision which shall include findings to support the decision. Written notice of the decision shall be given by mail within seven (7) calendar days after the date of the decision to the person subject to the order and any person filing a written request for notice of the decision.

d. Judicial Review. Pursuant to Section 1085 of the Code of Civil Procedure, any person who has been named in an order issued by the Enforcement Officer pursuant to this chapter may, following exhaustion of administrative remedies, seek judicial review of the order by filing a petition for writ of mandate within ninety (90) days after the order becomes final and binding pursuant to this chapter. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, any person who contests a final administrative order issued under this Article regarding the imposition, enforcement or collection of the administrative penalties imposed, may seek judicial review of the order by filing an appeal with the superior court within twenty (20) days after service of the order in accordance with Section 53069.4 of the Government Code. Any other person who has the right to seek judicial review of the order by filing a petition for writ of mandate pursuant to Section 1085 of the Code of Civil Procedure shall do so within one hundred eighty (180) days after the order has become final and binding pursuant to this chapter. The filing of a petition for writ of mandate to review the order shall not stay any action specified in the order.

(Ord. No. 3900, § 1, 1-25-05; Ord. No. 3944, § 6, 11-21-06)

a. Any administrative hearing conducted under Section 49-5 need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. The Hearing Officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.

b. For purposes of conducting any administrative hearing under this Article, the presence of at least two (2) pieces of addressed mail or other identifying information in the dumped material shall be deemed to create a rebuttable presumption that the person so identified is responsible for the dumped material and is subject to the penalties and remedies provided for in this chapter.

(Ord. No. 3900, § 1, 1-25-05)

a. In any enforcement action brought pursuant to this Article, whether by administrative proceedings, judicial proceedings or summary abatement, the person who creates or has created the nuisance, either directly or indirectly, for example, an owner of Residential Rental Property, as defined in Section 31-11.445, who has failed to comply with Butte County Code section 31-50(c), by failing to maintain a continuous subscription for regular refuse removal by a licensed refuse hauler when said property is occupied; shall be liable for all costs set forth in Chapter 3, Article XVI (beginning with Section 3-150) of this code incurred by the county, including, but not limited to, administrative costs and any and all cost incurred to undertake, or to cause or compel any responsible party to undertake any abatement action in compliance with the requirements of this Chapter, whether those costs are incurred prior to, during or following enactment of this chapter.

b. In any action by the County to abate a nuisance under this chapter, whether by administrative proceedings, judicial proceedings or summary abatement, the prevailing party shall be entitled to a recovery of the reasonable attorneys' fees incurred. Recovery of attorneys' fees under this section shall be limited to those actions or proceedings in which the County elects, at the initiation of that 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 County in the action or proceeding.

c. Unless otherwise expressly indicated, the standard of liability imposed by this Article is strict liability, without regard to any element of mens rea, fault, negligence or other wrongdoing.

d. The scope of liability in this chapter is joint and several for any person who has caused, created or contributed to a violation and/or a nuisance as defined in this Article, is joint and several. Any person seeking to apportion the harm must demonstrate by clear and convincing evidence that the component of harm which is sought to be apportioned is scientifically and technologically susceptible to apportionment, that there is a reasonable and practicable basis for apportioning the harm, and that the separate abatement activity proposed for that harm is a practicable, safe, efficient, reliable and cost-effective in providing the degree of protection of the public health, welfare and the environment as the abatement activity or activities, if any, proposed by the Enforcement Officer.

(Ord. No. 3900, § 1, 1-25-05; Ord. No. 3914, § 6, 10-13-05)

a. In addition to the costs of administrative enforcement as provided in Section 49-7, any person who violates section 49-2 and/or 49-3 is liable to the County for administrative penalties in the amount of one hundred dollars ($100.00) for each violation set forth in the administrative order.

b. If a second violation of this is caused by a responsible party whom has already been determined to be liable of a violation of this Article within one (1) year of the date of the first violation, the administrative penalty shall be two hundred dollars ($200.00).

c. If a third or subsequent violation of this code is caused by the same responsible party whom has already been determined to be liable of a violation of this Article within one (1) year of the date of the first violation, the administrative penalty shall be five hundred dollars ($500.00).

d. Liability under this Article may be imposed in a civil action or liability may be imposed administratively pursuant to this section. Any such civil action may be joined with an action for any other remedy, including injunctive relief, available pursuant to State law or pursuant to this code. Nothing in this Section in any way limits, conditions or affects liability of any responsible party to the County for administrative failure to abate penalties, abatement action costs or for any other legal or equitable remedy.

e. Neither the imposition nor the payment of an administrative penalty for violating this Section shall relieve the responsible party from his or her obligation to abate any public nuisance resulting from the violation, nor shall it bar further enforcement action by the Enforcement Officer. Nothing in this Section shall affect or modify in any way the obligations or liabilities of any person under any other provision of State, federal or local law, including common law, for damages, injury, loss or for liability for nuisance abatement and nuisance abatement costs incurred by the County which results from a nuisance in the County.

(Ord. No. 3900, § 1, 1-25-05)

a. In addition to the costs of administrative enforcement set forth in Section 49-7 and the administrative penalty set forth in Section 49-8, if a responsible party fails to abate a public nuisance resulting from a first-time violation, in violation of any final order issued pursuant to this Article, within three (3) days after the notice and order is served under Section 49-5, the administrative penalty established by the order shall become effective. The administrative penalty shall not exceed one hundred dollars ($100.00).

b. The administrative penalty, or any portion thereof, for failure to abate a public nuisance resulting from a first-time violation which has become effective following the three (3) day corrective period may be waived by the Public Official in his sole discretion only if the responsible party corrects the violation in accordance with all conditions established by the Public Official.

c. If a second violation of this Article is caused by the same responsible party within one (1) year of the first violation, and the same responsible party fails to abate a public nuisance resulting from the second violation within three (3) days, the administrative penalty shall be two hundred dollars ($200.00).

d. If a third or subsequent violation of this code is caused by the same responsible party within one (1) year of the first violation, and the same responsible party fails to abate a public nuisance resulting from the third violation within three (3) days, the administrative penalty shall be five hundred dollars ($500.00).

e. Neither the imposition nor the payment of an administrative penalty for violating this Article in Section 49-8 nor the payment of an administrative penalty for failure to abate a nuisance pursuant to this Section shall relieve the responsible party from his or her obligation to abate any public nuisance resulting from the violation, nor shall it bar further enforcement action by the Enforcement Officer.

f. Nothing in Section 49-8 nor this Section shall affect or modify in any way the obligations or liabilities of any person under any other provision of State, federal or local law, including common law, for damages, injury, loss or for liability for nuisance abatement and nuisance abatement costs incurred by the County which results from a nuisance in the County.

(Ord. No. 3900, § 1, 1-25-05)

a. The written decision of the Hearing Officer required by Section 49-5 shall become final on the date it is deposited in the mail. The Hearing Officer shall notify the Clerk of the Board of Supervisors of his or her decision, the date upon which the decision became final and the last date upon which an appeal may be made. If the Board of Supervisors does not receive an appeal within twelve (12) days of the date the Hearing Officer's decision becomes final, the Board shall be deemed to have ratified and adopted the Hearing Officer's decision. If it is the decision of the Hearing Officer that a public nuisance exists, the owner of the property shall be responsible for paying all of the County's Abatement costs and Administrative costs, including, but not limited to, those cost items set forth in the notice required by subsection (a) of Section 49-9.

b. Within the twelve (12) day period referred to in subsection (e) of Section 49-9, the responsible party, the Enforcement Officer or any other interested person may appeal the decision of the Hearing Officer to the Board of Supervisors of the County of Butte if such individual or entity does all of the following:

1. Delivers a written appeal to the Clerk of the Board of Supervisors within the twelve (12) day appeal period; and

2. Delivers to the Clerk of the Board of Supervisors within the twelve (12) day appeal period an appeal fee in the amount set forth in Section 3-43 of this Code.

c. Within fifteen (15) days of being notified by the Clerk of the Board of Supervisors, the appellant shall deposit with the Clerk of the Board an amount of money equal to the estimated cost of transcribing the oral proceedings before the Hearing Officer and the cost of duplicating seven (7) copies of the administrative record, including all exhibits introduced at the hearing. The appellant shall be responsible for the cost of the appeal and record; provided, however, if the Board upholds the appeal and finds that no violation exists, then the costs of the appeal shall be borne by the County.

d. In the event of an appeal to the Board of Supervisors, the Board shall decide the appeal based solely on the administrative record and transcript of the hearing. The Board shall review the record, transcript and evidence and then adopt, reject or modify the decision of the Hearing Officer.

e. In the event of an appeal to the Board of Supervisors, the Board shall decide the appeal within ninety (90) days after receipt of the administrative record. Notice of the Board's decision shall be mailed to the property owner, the Director of Development Services, the Hearing Officer and those persons receiving notice pursuant to Section 49-5.

(Ord. No. 3900, § 1, 1-25-05)

a. In the event the person who is the subject of a final administrative enforcement order fails to pay the costs of administrative enforcement upon demand by the County, the County may:

1. Proceed under the authority of Section 25845 and/or 54988 of the Government Code to have the costs specially assessed against any parcel of property owned by the responsible party; or

2. Commence a civil action to recover such costs from any responsible party.

b. Any civil action for the recovery of the costs of abatement and civil penalties may be joined with an action for any other relief, including mandatory or prohibitory injunctive relief or for damages to which the county may be entitled.

(Ord. No. 3900, § 1, 1-25-05)

a. Any responsible party against whom an administrative penalty has been imposed shall pay the administrative penalty immediately upon the order becoming final.

b. In the event the responsible party fails to pay the administrative penalty when due, the County may take any actions permitted by law or ordinance to collect the unpaid penalty, which shall accrue interest at a rate of ten (10) percent per year.

c. In the event a civil action is commenced to collect the administrative penalty, the county shall be entitled to recover all costs set forth in Chapter 3, Article XVI (beginning with Section 3-150) of this code incurred by the county, associated with the enforcement, investigation, establishment and collection of the penalty. Costs include, but are not limited to, staff time and costs incurred in the enforcement, investigation, establishment and the collection of the penalty and those costs set forth in Code of Civil Procedure Sections 685.010 et seq. and 1033.5.

d. The amount of any unpaid administrative penalty, plus any other costs as provided in this Chapter, may be declared a lien on real property owned by the responsible party within the county as follows:

1. Notice shall be given to the responsible party prior to the recordation of the lien and shall be mailed first class mail postage prepaid to the last known address;

2. When the Public Official records a lien listing delinquent unpaid administrative penalties with the county recorder's office, the lien shall specify the amount of the lien, the date of the code violations, the date of the final administrative decisions, the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed, and the name of the owner of the parcel according to the last equalized assessment roll; and

3. In the event that the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge and release of the lien shall be prepared by the Public Official.

e. The amount of the unpaid administrative penalty, plus any other costs as provided by this Chapter, may be declared a special assessment against any real property owned by the responsible party and located within the County. The board of supervisors may impose the special assessment on one (1) or more parcels. The amount of the assessment shall not exceed the amount of administrative penalty imposed for the violation, plus the amount of administrative penalty imposed for a failure to abate a public nuisance as directed, plus any cost authorized by other chapters of this code. The Public Official may present a resolution to the board of supervisors to declare a special assessment, and, upon passage and adoption thereof, shall cause a certified copy to be recorded with the Butte County recorder's office. The assessment may then be collected at the same time and in the same manner as ordinary taxes are collected, and shall be subjected to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary property taxes.

f. The County may withhold issuance of licenses, permits and other entitlements for any property whenever an administrative penalty resulting from a code violation on that property remains unpaid.

g. The county may take any action permitted for enforcement of a civil money judgment pursuant to the Enforcement of Judgement Law, California Code of Civil Procedure Section 680.010 et seq.

(Ord. No. 3900, § 1, 1-25-05)

This Article does not exclusively regulate, enforce and/or penalize refuse disposal, unlawful dumping of refuse and the other, lesser included violations set forth above. It supplements and is in addition to other regulatory and enforcement codes, statutes and ordinances heretofore or hereafter enacted by the County, the State and/or any other legal entity or agency having jurisdiction.

(Ord. No. 3900, § 1, 1-25-05)