Butte County Municipal Code Art. II Seizure and Forfeiture of Nuisance Vehicles

a. The board of Supervisors finds that the problem of unlawful refuse dumping in the County is a significant, ongoing problem. It is impossible to drive along any County road for any appreciable length of time without encountering discarded rubbish. Usually, such a drive exposes one to not only significant amounts of litter, but also to the full range of large household items, such as mattresses, sofas and any number of kitchen and other appliances, abandoned automobiles and parts thereof, and numerous other types of discarded items alongside the road. The presence of roadside trash dumps impairs the charm of the diverse and beautiful lands of the County. The Board finds that this significant problem has continued, in spite of the Board's best efforts to discourage and abate it.

b. The Board has embarked upon an aggressive, multifaceted, integrated program designed to reduce incentives for unlawful dumping, protect public health, safety and welfare and the environment, and beautify the unincorporated areas of the county, which includes, but is not limited to, the following:

1. The establishment in 2002 of a vehicle abatement program, including an ordinance set forth in Article XII of Chapter 14 of the Butte County Code, and the formation of the Butte County Abandoned Vehicle Abatement Service Authority;

2. The establishment in 2002 of a comprehensive nuisance abatement program, including the adoption of an ordinance set forth in Chapter 32A of the Butte County Code and an administrative enforcement and nuisance abatement procedure;

3. The adoption of an ordinance in 2004 set forth in selected portions of Article II of Chapter 31 of the Butte County Code which specifically addresses the disposal of solid waste from multi-family dwellings and imposes a duty upon the owners of all multi-family dwellings in the unincorporated areas of the County to subscribe to a licensed waste hauling and disposal service;

4. The appropriation of sixty thousand dollars ($60,000.00) of County revenue in 2004 to enhance an ongoing public education program, including an elementary school education program designed to educate the public on proper waste disposal and promote recycling;

5. The establishment of a County-wide household hazardous waste disposal program in 1999, which includes a permanent household hazardous waste disposal facility and periodic mobile household hazardous waste events in more remote areas of the County;

6. Periodic tire disposal amnesty events, beginning in 1993, which allow the public to dispose of waste tires for free;

7. The establishment and continuation of an annual five thousand dollars ($5,000.00) per supervisorial district fund and community cleanup programs;

8. An ongoing County adopt-a-highway program, which allows individuals, community groups, businesses and organizations to adopt County highways for the purpose of maintaining a litter-free roadside environment within the County; and

9. Lowering the cost of disposal for County residents of computer monitors, televisions and refrigerators.

c. The Board finds that persons who unlawfully dump refuse pollute viewsheds and bring decay and environmental contamination to local neighborhoods where they dump such matter. Persons who unlawfully dump refuse harm the public welfare, both in terms of the temporary, yet palpable diminution of quality of life that many individuals experience when the observe roadside trash dumps, and also by imposing on law-abiding taxpayers the cost of abating adverse environmental impacts caused by such unlawful dumping.

d. The Board finds that the continued existence of the above referenced unlawful dumping problem, in spite of the Board's best efforts to discourage it, necessarily requires further strong legislative response. The Board is aware of its full range of options in this area. For example, one potential solution to such a problem would be to impose a property tax assessment which would be sufficient to pay for ongoing solid waste hauling services on every parcel of every real property owner in the County. Such an option would arguably remove the incentive of real property owners to dump refuse unlawfully, because they would already be required to fund the cost of legal refuse disposal. This option would, however, place almost the entire burden of eradicating the problem set forth above on law-abiding taxpayers. The Board finds such an option inequitable, overly broad and overly onerous, in terms of its disproportionate fiscal impact on law-abiding taxpayers.

e. The Board finds that those who unlawfully dump refuse should pay as much of the cost as is possible of eradicating the problem of unlawful dumping and cleaning up refuse unlawfully dumped. Correspondingly, law-abiding taxpayers should pay as little of such costs as possible. Further, costs should be kept as low as possible. In order to adopt an effective, low cost program which is as equitable as possible, the Board has recently elected to pursue an approach which imposes the limited burden (set forth in Article 1 of this Chapter) on every person in the unincorporated area of the County, of arranging for lawful disposal of their refuse.

f. Further, a portion of the approach the Board has recently elected to pursue through this chapter involves the implementation of the administrative enforcement program set forth in Article I of this Chapter. The Board finds that administrative enforcement is much more cost effective than law enforcement conducted through the courts, because it eliminates long periods in which County employees must wait through long court calendars for County Code cases to be called. Further, administrative enforcement is more streamlines, eliminating the need for multiple court appearances, while still providing adequate due process to safeguard the rights of the accused.

g. The Board finds that protection of the public welfare is best accomplished through preventing crime from occurring in the first instance. The Board finds that adequate deterrence is an essential element of the enforcement of laws against unlawful refuse dumping, because preventing a significant number of unlawful dumping violations would result in a more pleasant County roadside environment while significantly lowering the costs of law enforcement and cleanup.

h. Hence, the Board has elected to add the supplemental deterrent value of the vehicle seizure and forfeiture provisions set forth in this Article, in order to enhance the effectiveness of the unlawful dumping enforcement program. The Board finds it is likely that an enforcement program which encompasses the seizure and forfeiture of vehicles used to facilitate the unlawful dumping of refuse in the unincorporated areas of the County will provide preventative effects, as set forth below.

i. The Board finds that vehicles are an indispensable tool for those who engage in unlawful refuse dumping, and that removing such vehicles from the possession of said perpetrators could well render them, at least temporarily, unable to engage in such reprehensible conduct, thereby preventing such crimes from occurring. The Board also finds that revenue realized from the seizure and forfeiture of such vehicles will partially offset the high cost to Butte County taxpayers of the removal of the visual pollution caused by such unlawful dumping, as well as the cost of abating adverse environmental impacts.

j. The Board finds that vehicles are generally very important to most people's lives and livelihoods, particularly in the more rural unincorporated areas of the County, and that adopting an ordinance which calls for the seizure and forfeiture of vehicles used in the commission of unlawful refuse dumping violations represents an innovative legislative measure which may be criticized as overly severe. However, the Board also finds that it is often necessary to affect people's lives significantly in order to deter and/or prevent them from committing crimes. In this regard, the Board finds specifically that providing for the removal from perpetrators of the most essential instrumentality to the commission of the specific crime targeted is an eminently reasonable remedial measure. Further, in order to achieve the above expressed goals of the enforcement program the Board has elected to implement, the Board finds that this innovative measure is necessary to shift, to the maximum extent possible, the financial burden of cleanup and other costs from law-abiding taxpayers to perpetrators, in order to better conserve on expenditures of revenue generated by law-abiding taxpayers.

k. Hence, the Board declares the seizure and forfeiture of vehicles described in this Article to be remedial in nature, because, as set forth above, it is a necessary prophylactic measure intended to prevent the commission of unlawful refuse dumping violations from occurring in the first instance, through the preventative effects set forth above, as well as to offset the high costs of cleanup and other expenses.

(Ord. No. 3900, § 1, 1-25-05)

No person shall dump, deposit, place or bury in or upon any lot, land or public place, or in any water or waterway, any refuse, Solid Waste, as defined in Section 49-1, or any deleterious or offensive substance, or any substance condemned by the health officer of the County; provided, however, this section shall not apply to any land used by the County for a disposal or reclamation site. Any vehicle used to facilitate the illegal dumping of refuse in violation of this Section is declared a nuisance, and the vehicle shall be subject to seizure and forfeiture as provided in this Article. Any person or his or her servant, agent or employee who owns, leases, possesses, conducts, uses or maintains any vehicle (hereinafter referred to as the "Vehicle") used for any of the purposes or acts set forth in this section is guilty of a public nuisance.

(Ord. No. 3900, § 1, 1-25-05)

All right, title and interest in any Vehicle described in Section 49-21 shall vest in the County upon commission of the act giving rise to the nuisance under this Article.

(Ord. No. 3900, § 1, 1-25-05)

a. Vehicles subject to forfeiture under this Article may be seized by any peace officer upon process issued by any court having jurisdiction over the Vehicle. Under this Article, seizure without process may be made if any of the following situations exist:

1. The seizure is incident to an arrest or a search pursuant to a search warrant; or

2. There is probable cause to believe the Vehicle was used in violation of this Article.

(Ord. No. 3900, § 1, 1-25-05)

Receipts for vehicles seized pursuant to this Article shall be delivered to any person out of whose possession such vehicle was seized, in accordance with Section 1412 of the Penal Code.

(Ord. No. 3900, § 1, 1-25-05)

The District Attorney may institute and maintain criminal proceedings under this Chapter and/or pursuant to State law. Property seized pursuant to Section 49-23, where appropriate, may be held for evidentiary purposes with regard to any proceeding authorized pursuant to this Chapter. The District Attorney shall institute and maintain the civil forfeiture proceedings against any Vehicle subject to forfeiture as described in the Article.

(Ord. No. 3900, § 1, 1-25-05)

a. If the District Attorney determines the factual circumstances warrant forfeiture of a Vehicle described in Section 49-21, the District Attorney shall begin forfeiture proceedings as further described herein.

b. The District Attorney shall cause a notice of the seizure and of the intended forfeiture proceedings, as well as a notice stating that any interested party must file a verified Claim Opposing Forfeiture with the Superior Court in Butte County, said Notice and Claim Opposing Forfeiture to be served by personal delivery or by registered mail upon the person out of whose possession the vehicle was seized and any person who reasonably appears to have an interest in said Vehicle. Whenever a notice is delivered pursuant to this section, it shall be accompanied by a claim form as described in Section 49-28, along with directions for timely filing and service of an Endorsed Filed Claim Opposing Forfeiture upon the Office of the District Attorney. The Notice described herein shall also be published once a week for three (3) consecutive weeks, in a newspaper of general circulation in Butte County or in the county from which the vehicle was seized. The District Attorney shall provide notice of the proceedings under this subsection, including the following information:

1. A description of the Vehicle;

2. The date and place of seizure;

3. The violation of law alleged with respect to forfeiture of the Vehicle;

4. The instructions for filing a Claim in the Butte County Superior of Butte County and for serving an Endorsed Filed copy of the Claim on the District Attorney pursuant to Section 49-28 and time limits for filing and serving a timely claim; and

5. Instructions that a Proof of Service demonstrating timely service of an Endorsed Filed Claim Opposing Forfeiture was served on the District Attorney, which proof of service must be filed with the Superior Court within ten (10) days of the filing of the initial Claim Opposing Forfeiture in the Superior Court.

c. An investigation shall be made by the District Attorney as to any potential claimant to a Vehicle subject to forfeiture whose right, title, interest or lien is of record with the Department of Motor Vehicles or appropriate federal agency. If the District Attorney finds that any person, other than the registered owner, is the legal owner thereof, and such ownership did not arise subsequent to the date and time of arrest, notification of the forfeiture proceedings or seizure of the Vehicle, he or she shall forthwith send a Notice to the legal owner at his or her address appearing on the records of the Department of Motor Vehicles or appropriate federal agency, by registered mail along with a blank Claim Opposing Forfeiture.

d. All notices shall set forth the time within which a Claim Opposing Forfeiture of the Vehicle seized or subject to forfeiture is required to be filed in the Butte County Superior Court pursuant to Section 49-28.

e. With respect to a Vehicle described in Section 49-21 for which forfeiture is sought and as to which forfeiture is timely contested, the District Attorney shall have the burden of proving by preponderance of the evidence that the Vehicle was used to facilitate the illegal activity, as set forth in Section 49-21. Trial shall be before the court or jury.

f. Upon proof by a preponderance of the evidence that the Vehicle was used to facilitate any of the illegal purposes set forth in Section 49-21 of this Article, the court shall declare the Vehicle a public nuisance and subject to forfeiture, order the Vehicle seized, if not previously seized and held by the District Attorney, and order the Vehicle forfeited to the County of Butte, and include in such order that the forfeited Vehicle be sold with the proceeds distributed in accordance with this Article. A judgment of forfeiture does not require as a condition precedent thereto, that any person or criminal defendant be convicted of an offense which made the Vehicle subject to forfeiture, provided the facts giving rise to forfeiture occurred within five (5) years of the seizure of the Vehicle or within five (5) years of the notification of intention to seek forfeiture.

g. If no timely Claims Opposing Forfeiture are filed, and timely served on the District Attorney, the District Attorney shall prepare a written administrative Declaration of Forfeiture of the Vehicle as evidence of the title passing to the County. The written declaration of forfeiture signed by the District Attorney under this section shall be deemed to provide good and sufficient title to the forfeited Vehicle. The District Attorney ordering forfeiture pursuant to this section shall provide a copy of the Declaration of Forfeiture to any person who received notice of the forfeiture proceedings. Thereafter the District Attorney shall sell the forfeit vehicle and cause the proceeds from the sale to be distributed in accordance with this Article.

h. If a claim is timely filed and timely served on the District Attorney, the District Attorney shall file a Complaint for Forfeiture against the defendant Vehicle in the Superior Court within thirty (30) days of receipt of the Endorsed Filed copy of the Claim Opposing Forfeiture. Thereafter within thirty (30) days of the service of the Complaint for Forfeiture, a claimant shall file a verified Answer to the Complaint for Forfeiture unless for good cause shown prior to the thirty (30) day deadline, the court extends the time for the filing of the Answer.

i. A Complaint for Forfeiture under this subdivision shall be filed as soon as practicable, but in any case within one (1) year of the seizure of the Vehicle which is subject to forfeiture.

(Ord. No. 3900, § 1, 1-25-05)

Notwithstanding the provisions of this Article, the District Attorney shall return a seized Vehicle upon the timely filing and timely service of the Claim Opposing Forfeiture pursuant to Section 49-28 and upon a showing by the claimant that the facts in any of subsections a, b, c or d of this Section exist. As a condition to the return of said Vehicle the claimant shall pay to the County all of the costs of towing and storing said Vehicle as well as any release fee or charge. The foregoing fees can be waived if the Vehicle was seized without probable cause at a hearing to be requested by the claimant.

a. The Vehicle is owned by two (2) or more persons and there is a community property interest in the Vehicle by a person other than the person who used the Vehicle to facilitate illegal dumping of refuse, and the Vehicle is the sole vehicle available to the person's immediate family.

b. The Vehicle is owned by the employer of the person who used the Vehicle to facilitate illegal dumping of refuse and employer timely files and timely serves on the a copy of the Claim Opposing Forfeiture on the District Attorney, along with a declaration or affidavit under penalty of perjury that he or she had no knowledge of the illegal dumping, which a reasonable trier of fact would find is supported by the nature of the evidence, and the nature of the refuse or substances found to be dumped.

c. The Vehicle is owned by a rental car agency with a duly executed contract with the person who used the Vehicle to facilitate the illegal dumping of refuse.

d. The provisions of this Article relative to forfeiture of Vehicles shall not apply to a common carrier or to an employee acting within the scope of his employment in the enforcement of this Article.

(Ord. No. 3900, § 1, 1-25-05)

a. Any person claiming an interest in a Vehicle seized pursuant to this Article shall, at any time within ten (10) days from the date of actual notice of seizure or within thirty (30) days from the first date of the published Notice in the newspaper, whichever comes first, file with the Superior Court of Butte County a Claim Opposing Forfeiture, verified in accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the Vehicle.

b. An endorsed copy of the claim shall be served by the claimant on the District Attorney within ten (10) days of the filing of the Claim Opposing Forfeiture with the court.

c. Thereafter, Claimant shall file in the Superior Court a proof of service showing the timely service of the endorsed claim on the District Attorney.

d. The District Attorney shall develop a verified Claim Opposing Forfeiture form to be filed pursuant to this Section. The official claim forms shall be drafted in nontechnical language and shall be modeled after the Judicial Counsel approved Claim Opposing Forfeiture forms created for making a claim in state drug asset forfeiture cases under California Health & Safety Code Section 11469 et seq.

e. If a verified timely claim is filed, timely served and a timely proof of service is on file with the Superior Court, the forfeiture proceeding shall be set for hearing on a day not less than thirty (30) days therefrom, allowing for adequate Discovery to take place.

f. The hearing shall be before the court or jury.

g. The provisions of the Code of Civil Procedure shall apply to proceedings under this Article unless otherwise inconsistent with the provisions or procedures set forth in this Article; however, in proceedings under this Article, there shall be no joinder of actions or coordination of actions, except for forfeiture proceedings or cross-complaints, and the issues shall be limited strictly to the questions related to this Article.

(Ord. No. 3900, § 1, 1-25-05)

a. Any person or his or her servant, agent or employee who owns, leases, conducts, uses or maintains any vehicle to illegally dump refuse and whose vehicle has been seized in accordance with this Article may request to execute a voluntary settlement agreement with the County for the return of the Vehicle. Such request shall be made in writing or orally to the District Attorney.

b. The minimum amount of the settlement agreement shall be sufficient to cover all of the County's reasonable administrative costs, including towing, storage costs, attorney's fees and personnel time for the seizure and forfeiture action.

c. The Board of Supervisors delegates the actual amount of settlement to be set in the good faith, sound and binding discretion of the District Attorney.

d. The executed settlement agreement shall be accompanied by the appropriate settlement fee amount in the form of a money order, cash or cashier's check. All settlement funds shall be distributed as set forth in subsections a, b and c of Section 49-30.

(Ord. No. 3900, § 1, 1-25-05)

In all cases where a Vehicle seized pursuant to this Article is forfeited to the County, the Vehicle is prohibited from being placed into service with the County and shall be sold with the proceeds of the sale to be distributed and appropriated as follows:

a. To the bona fide or innocent purchaser, conditional vendor, mortgagee or secured lien holder of the Vehicle, if any, up to the amount of his or her secured interest in the Vehicle, when the court District Attorney declaring the forfeiture and sale of the Vehicle orders a distribution to that person.

b. To the County for all expenditures made or incurred by it in connection with the publication of the notices set forth in this Article and sale of the Vehicle, including expenditures for any necessary repairs, towing, storage or transportation of any Vehicle seized under this Article.

c. The remaining funds shall be placed in the General Fund, subject to appropriate accounting controls and financial audits for all deposits and expenditures.

d. All the funds distributed pursuant to subsection c of this Section should be placed in an isolated interest bearing trust fund and shall not be used to supplant any funds that would, in the absence of this subdivision, be made available to support the law enforcement and prosecutorial efforts of County departments. Said funds shall be subject to appropriate accounting controls and financial audits for all deposits and expenditures.

(Ord. No. 3900, § 1, 1-25-05)

This Article is not intended to be utilized as the exclusive enforcement mechanism for the unlawful dumping of refuse, because, as set forth in Section 49-20, this Article is not intended to be utilized to punish offenders. This Article is intended to be remedial in nature and to supplement and to be utilized in addition to other regulatory and enforcement codes, criminal and other statutes and ordinances heretofore or hereafter enacted by the County, the State or any other legal entity or agency having jurisdiction.

(Ord. No. 3900, § 1, 1-25-05)