Calabasas Municipal Code Ch. 8.34 Graffiti Abatement

This chapter may be referred to as the city's "Graffiti Abatement Ordinance."

(Ord. No. 2009-256, § 2, 6-10-2009)

The city council finds and declares as follows:

A. Graffiti on public or private property is a condition of blight that not only detracts from the value of property on which it is located, but also detracts from the value of surrounding properties so as to negatively affect the entire community.

B. California Government Code section 38771 authorizes the city to declare what constitutes a nuisance. Section 53069.3 of that code further authorizes the city to provide for the removal of graffiti and other inscribed materials from private as well as public property, under certain circumstances. The city council finds and determines that graffiti is obnoxious and a public nuisance and, unless the city causes it to be removed from public and private property, it tends to remain. Other properties may then become the target of graffiti with the result that entire neighborhoods are affected and become less desirable places in which to live and work.

C. It is the purpose and intent of this chapter, to provide city staff additional enforcement tools to protect the public from vandalism and defacement, including the application of graffiti to public and private property, walls, and other structures, as well as on vehicles and other personal property. It is the further intent of this chapter, to provide notice to all of those who disregard the property rights of others, that law enforcement, all city departments, the city attorney and city prosecutor, and the district attorney's office, are directed or requested to strictly enforce the law and vigorously prosecute persons who deface public or private properties.

(Ord. No. 2009-256, § 2, 6-10-2009)

Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application.

"Adhesive label" means any so-called "bumper sticker," sheet of paper, fabric, plastic, or other material with an adhesive backing.

"Aerosol paint container" means any aerosol paint container, regardless of the material from which it is made, which is adapted or made for the purpose of spray painting, undercoating, spray insulation, or applying another substance capable of defacing property.

"City" means the City of Calabasas.

"Costs" means and include, but is not limited to, court costs, attorneys' fees, costs of removal of the graffiti or other inscribed material, costs of repair and replacement of defaced property, and law enforcement costs incurred by the city in identifying and apprehending persons who create, cause, or commit the graffiti in violation of this chapter.

"Director" means the community development director.

"Enforcement officer" means any city official, agent or contractor authorized to enforce the provisions of this chapter, including, but not limited to, those from the community development department and the public works department.

"Graffiti" means any inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, glued or painted on or otherwise posted or affixed to or on any surface without the prior consent of the owner of the property on which the surface is located, regardless of the nature of the material.

"Graffiti-attracting surface" means the existence of any surface of any structure, tree, shrub, vehicle, personal or real property in the city that has been defaced with graffiti after removal more than three times in any twelve-month-period.

"Notice" means a notice to abate graffiti with city employees and contract agents provided for in Section 8.34.050 of this chapter.

"Property owner" means any person who owns, possesses, occupies, or otherwise has responsibility for the repair or maintenance of real property.

"Responsible person" has the meaning set forth in Chapter 1.17 of this Code.

"Retrofit" means and includes, without limitation, to restore, modify or alter real property to remove graffiti, to prevent or inhibit the recurrence of graffiti, or to return the real property to an acceptable, usable, unblemished, unblighted, or original state or condition.

"Structures" means any structure as defined in Title 15 or Title 17 of this Code, and shall include, but not be limited to, buildings, walls, fences, poles, signs, posts, railings, benches, tables, waste containers, sidewalks, streets, cubs, and cargo/shipping containers.

"Vehicle" means a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails. A vehicle shall include, but not be limited to, a trailer.

(Ord. No. 2009-256, § 2, 6-10-2009)

A. Notwithstanding any other provision of this Code, it shall be unlawful and a misdemeanor for any person to cause or permit any graffiti to be visible from any real property or the public right-of-way provided, as to a person other than one who inscribed or otherwise created the graffiti, that the person is a responsible person with respect to the real property or personal property on which the graffiti is located.

B. Neither the city prosecutor nor the city attorney shall criminally prosecute a person other than one who inscribed or otherwise created the graffiti for a violation of this section, unless one or more responsible persons has been issued three notices of violation in accordance with Section 1.17.040 of this Code for graffiti at any location on his, her or its property in a twelve-month period. This condition precedent shall not apply to instances in which the city prosecutor or city attorney alleges violations of other provisions of this Code are present in connection with that property. In such cases, the criminal remedy may be exercised at any time.

(Ord. No. 2009-256, § 2, 6-10-2009)

A. Declaration of Nuisance. Pursuant to California Government Code Section 38771, the city council hereby declares the following conditions to constitute public nuisances:

1. Graffiti on any structure, tree, shrub, sidewalk, vehicle, personal or real property in the city that is visible from any other real property whether privately or publicly owned or from a public right-of-way.

2. Graffiti-attracting surfaces.

B. Abatement of Nuisance. The city council hereby declares that the maintenance of the nuisance conditions listed in subsection (A) of this section is subject to abatement as set forth herein.

C. Notice to Abate. Notwithstanding any other nuisance abatement notice procedures in this Code or authorized by applicable law, whenever any enforcement officer determines the existence of a nuisance as set forth in subsection (A) of this section, the enforcement officer may issue a notice to abate graffiti to the owner of the affected property, or to any other responsible person known to the enforcement officer, requiring the abatement of the nuisance within seventy-two hours of service of the notice. The enforcement officer may provide additional time to abate a violation of this chapter; provided that, he or she determines the violation is a graffiti attracting surface requiring abatement in the manner set forth in subsections (D)(1) through (D)(4) of this section.

1. Contents of Notice. A notice shall contain the following provisions:

a. The address of the real property on which the nuisance exists;

b. A brief description of the nuisance;

c. A reference to this chapter or other law prohibiting the graffiti or other nuisance;

d. A brief description of the actions required to abate the nuisance;

e. A deadline by which to abate the nuisance;

f. The time by and manner in which a responsible person may contest the notice pursuant to this chapter; and,

g. A statement that, if the notice is not timely appealed and the violations are not abated within the time specified, the right to contest the notice is waived and the city may abate the nuisance with city employees or agents at the expense of the responsible person(s). The notice shall further state that abatement costs may be assessed against the property owner and all other responsible persons, as a lien or special assessment in accordance with the provisions of chapter 8.20 or in any other manner provided by law.

2. Service of Notice to Abate Graffiti. Any notice shall be served upon the responsible persons by either personal delivery or by first class mail and shall be deemed served when mailed or personally served. If served by mail, the date of service shall be the date the city places the notice in a U.S. Postal Service mail receptacle. Failure of any responsible person to receive a notice shall not invalidate any action or proceeding pursuant to this chapter provided the notice is mailed to the address of record of the property owner and any other responsible person to be charged by the notice.

D. Method of Abatement. When graffiti is abated by repainting, the property owner shall use paint that matches the color of the remaining portions of the structure unless otherwise approved by the director. A notice may require, without limitation, one or more of the following modifications:

1. Retrofitting of a surface or structure;

2. Application of anti-graffiti materials (such as anti-etching films or anti-graffiti paints) approved by the director;

3. Installation of landscaping approved by the director; and,

4. Installation of additional lighting approved by the director.

E. The city council authorizes the appropriation and use of public funds (i) to remove graffiti from any real or personal property in the city; (ii) to repair, restore, replace, or retrofit real or personal property in the city that has been defaced with graffiti that cannot be cost effectively removed; or (iii) to otherwise abate graffiti-attracting surfaces.

F. Property Owner Consent. If a property owner consents to the abatement of graffiti or graffiti-attracting surfaces by city employees or agents, the city shall have the right, but not the obligation, to abate the nuisance. The director may authorize graffiti abatement under this subsection.

G. Appeal of Notice to Abate Graffiti.

1. Right of Appeal from a Notice to Abate Graffiti.

a. A responsible person may contest a notice by filing a written appeal with the city clerk and paying an appeal fee as may established from time to time by resolution of the city council within three days of the date of service of the notice. An appeal shall contain the following information:

i. Name, address, and telephone number of each responsible person appealing the notice, as well as a description of each appellant's interest in or other relationship to the identified property in the notice;

ii. Address and description of property identified in the notice;

iii. Date of the notice;

iv. Grounds for appeal in sufficient detail to enable the hearing officer to understand the nature of the controversy; and,

v. The signature of at least one appellant.

b. Failure of the city clerk to receive a timely request for an appeal and payment of the appeal fee constitutes a waiver of the right to contest a notice. Unless an appeal is filed and fee paid, a notice becomes final and unappealable seventy-two (72) hours after service.

c. This chapter shall only apply to instances where the city has elected to establish the right, but not the obligation, to abate graffiti with city employees or contract agents. This chapter does not limit the right of city officials to issue alternative written or oral notices of code violations for maintaining graffiti on real or personal property to responsible persons, or to cause the abatement of graffiti nuisances in a different manner, including, without limitation, by court orders arising from the city's exercise of its criminal or civil remedies

2. Appeal Hearing before City Manager.

a. Within thirty (30) days of the filing date of an appeal, the city manager shall conduct a hearing on the appeal. The city manager shall, by first class mail, give each appellant at least five days' notice of the date, time, and location of the hearing at the address(es) specified on the appeal. The failure of any appellant to receive a properly addressed notice of hearing shall not invalidate any action or proceeding by the city pursuant to this chapter.

b. Appeal hearings are informal, and formal rules of evidence and discovery do not apply. The city bears the burden of proof to establish a nuisance by a preponderance of the evidence. The notice, reports, and photographs submitted by the enforcement officer shall constitute prima facie evidence of the facts contained in those documents and such enforcement officer is not required to participate in the hearing. Subject to the reasonable discretion of the city manager to ensure an efficient and effective hearing, the appellant and the city may present testimony, witnesses, and evidence pertaining to the alleged nuisance or the ground(s) of appeal, as well as to cross-examine any witnesses testifying at the hearing.

c. The failure of any appellant to appear at the hearing without such cause as the city manager may deem sufficient to justify a continuance shall constitute a default and the notice shall thereupon be final and unappealable.

d. The city manager may continue the hearing on his/her own motion.

3. Notice of Decision; Order to Abate.

a. Within ten (10) days after conclusion of the hearing, the city manager shall make any one or more of the following determinations in writing:

i. A finding and description of each nuisance at the subject property or that no nuisance exists. If the city manager determines no nuisance exists, he or she shall cancel the notice.

ii. The name of each person responsible for a nuisance at the subject property, as well as the name of any appellant who lacks responsibility therefor.

iii. The required corrective actions for each unabated graffiti nuisance and the date by which each must be abated; and,

iv. Any other finding, determination, or requirement relevant to the appeal.

b. The decision of the city manager is final and binding. A decision determining the existence of a nuisance shall substantively state the following: "This is a final administrative decision of the City; judicial review of this decision is subject to the time limits set forth in California Code of Civil Procedure Sections 1094.6 et seq."

c. A copy of the decision shall be served on all responsible parties by first class mail at the address(es) stated on the appeal or, for responsible persons not party to the appeal, to their addresses of record or addresses otherwise known to the city. Failure of a responsible person to receive a properly addressed and mailed decision shall not invalidate any action or proceeding pursuant to this chapter.

H. Scope of Abatement. Whenever the city authorizes the use of public funds for the abatement of graffiti or graffiti-attracting surfaces, the city shall not authorize or undertake to repaint or repair of any area more extensive than that covered by graffiti, unless the director, determines in writing that a more extensive area should be repainted or repaired to avoid blight, or a responsible person agrees in writing to pay for the costs of repainting or repairing a more extensive area.

I. Costs of Abatement. The costs of abatement by city employees or contract agents shall constitute a joint and several obligations of all responsible persons and may be assessed in any, or all, of the following manners:

1. Special assessment or nuisance abatement lien in accordance with the provisions of chapter 8.20 of this Code;

2. Graffiti abatement lien against any property owned by a minor or other person (or the parent or guardian of any minor) creating, causing, or committing a graffiti nuisance, as authorized by section 38772 of the California Government Code;

3. Pursuant to an order of restitution by a court of competent jurisdiction in accordance with California Penal Code Section 1202.4, California Government Code section 38772, or any other applicable state or federal law; and,

4. Any other manner provided or authorized by law.

(Ord. No. 2009-256, § 2, 6-10-2009)

A. In approving subdivision maps, conditional use permits, variances, or other land use entitlements, the city shall consider imposing conditions reasonably related to the control of graffiti and/or the mitigation of the impacts of graffiti. Such conditions may include, without limitation:

1. Installation and maintenance of anti-graffiti materials approved by the director on likely graffiti-attracting surfaces;

2. Installation and maintenance of landscaping to protect likely graffiti-attracting surfaces;

3. Installation and maintenance of lighting to protect likely graffiti-attracting surfaces;

4. Immediate removal of graffiti;

5. Authorizing right of access by city employees or contract agents to remove graffiti; and,

6. Supplying the city at its request with paint and/or other materials acceptable to the director to abate graffiti.

B. The review authority, as defined in Title 17, shall require applicants for any subdivision maps, conditional use permits, variances, or other land use entitlements to record against the property any conditions of approval relating to graffiti control or prevention. The applicant shall record those conditions of approval, in a form satisfactory to the city attorney, with the Los Angeles County Recorder, and such conditions of approval shall run with the land and bind all future owners of the property and any and all successors in interest of the property.

(Ord. No. 2009-256, § 2, 6-10-2009)

The remedies specified in this chapter shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation.

(Ord. No. 2009-256, § 2, 6-10-2009)