Article 15 — Enforcement And Revocation

This article establishes enforcement and revocation procedures. The purpose of these provisions is to provide uniform enforcement procedures for the requirements of this title, and to provide a process for the revocation or modification for cause of any permit, including a variance, granted under this title, except a sidewalk cafe permit, which shall be subject to the revocation procedure at Section 9-5.1510.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

It shall be a violation of this Code for any person to violate any provision or to fail to comply with any requirement of this title. Any person violating any provision of this title shall be punishable as set forth in Chapter 7 of Title 1.

(Sec. 2, Ord. 23-003, eff. Nov. 16, 2023; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) The Director of Planning and Building or his or her designee is responsible for enforcing the provisions of this title, and shall investigate all violations and suspected violations and ascertain the nature of the violation and its location, the names of the parties to the violation, and the number of the section of this title that has been violated.

• (b) All departments, officials, and public employees of the City vested with the duty or authority to issue permits or licenses shall conform to the provisions of this title and shall issue no permit or license for uses, buildings or purposes in conflict with the provisions of this title. Any such permit or license issued in conflict with the provisions of this title shall be null and void.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Any structure set up, erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of this title; any use of any land, structure or premises established, conducted, operated or maintained contrary to the provisions of this title; and failure to comply with any of the conditions of a permit or variance granted under this title is hereby declared unlawful and a public nuisance. Public nuisance is as defined in California Civil Code Section 3480, and private nuisance is as defined in California Civil Code Section 3481. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The remedies provided for in this section shall be cumulative and not exclusive. Upon a finding of nuisance pursuant to this article, and after giving the property owner an opportunity to cure the nuisance and determining that the nuisance still exists, the Planning Commission or City Council may impose any remedy available at law or in equity, which shall include, but is not limited to, any of the following or combination thereof:

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City of Emeryville, CA

PLANNING REGULATIONS

9-7.1505

9-7.1506

• (a) Ordering the cessation of the use in whole or in part.

• (b) Imposing reasonable conditions upon any continued operation of the use, including those uses that constitute existing nonconforming uses.

• (c) Requiring continued compliance with any conditions so imposed.

• (d) Requiring the user to guarantee that such conditions shall in all respects be complied with.

• (e) Imposing additional conditions or ordering the cessation of the use in whole or in part upon a failure of the user to comply with any conditions so imposed.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Initiation. Proceedings under this section to terminate, modify or condition (hereinafter abate or, if context requires, abatement) any use, structure or building may be initiated by resolution of the Planning Commission or the City Council on its own motion or following recommendation by the Director of Planning and Building. The resolution shall identify the use, building, or structure being considered, identify the property involved, set forth the reason or reasons for the proposed abatement, and fix a time and place for a public hearing on the proposed abatement. In the case of proceedings initiated by the Council, the resolution shall refer the matter for a public hearing before the Commission. A resolution initiating abatement proceedings may be adopted without a public hearing.

• (b) Notice. Upon initiation of abatement proceedings, the Director shall give notice of a public hearing before the Commission as required by Article 2 of this chapter, Common Procedures.

• (c) Public Hearing. The Planning Commission shall hold a public hearing conducted as required by Article 2 of this chapter, Common Procedures, and shall provide for testimony by City staff and the owner of the use, structure, or property that is the subject of the proceeding. Any other interested person shall also be given an opportunity to provide testimony.

• (d) Action. The Planning Commission shall consider the staff report and the evidence, testimony, and facts presented at the hearing before taking action. If the Commission finds that the use, building, or structure constitutes a nuisance, it may impose any remedy as provided for in this title.

• (e) Decision and Notice. After the Commission takes abatement action, the Director shall issue a notice of action describing the Commission's action, with its findings. The Director shall mail the notice to the permit holder and to any person who has requested such notification by filing a written request with the Director, and shall file a copy of the notice of action with the City Clerk. The Clerk shall present the notice of action to the Council at its next regular meeting. A decision to abate a nuisance shall become effective at the end of the appeal period unless appealed.

• (f) Appeals. A decision to abate a nuisance may be appealed to the City Council pursuant to Article 14 of this chapter. Upon receiving an appeal, the City Clerk shall schedule and notice a hearing before the Council as required by Article 2 of this chapter, Common Procedures. Following the hearing the Council shall decide whether the use, structure or

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City of Emeryville, CA

EMERYVILLE CODE

9-7.1506

9-7.1508

building constitutes a nuisance as defined by this article. If the Council finds, based on the testimony, that the use, structure or building constitutes a nuisance, it may impose any remedy provided for in this title. If the Council finds that the use, structure or building is not a nuisance, it shall reverse the decision of the Commission.

• (g) City Attorney Action. The City Attorney shall, upon order of the City Council, or on his or her own initiative, immediately commence action or proceedings for the abatement and removal and enjoinment of said public nuisance in the manner prescribed by law, and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm, or corporation from setting up, erecting, building, maintaining, or using any such building contrary to the provisions of this chapter.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) If there is not compliance with an order to correct violations of this title within the time specified in the order, the City Manager may file for recording in the office of the Alameda County Recorder a notice of violation describing the property and certifying that:

  • (1) The property and/or structure is in violation of this title; and

  • (2) The owner has been so notified. The notice shall specifically describe the violations and a proof of service shall also be recorded with the notice of violation.

• (b) Whenever the ordered corrections have been completed, the City Manager shall file for recording in the office of the Alameda County Recorder a new statement certifying that all required corrections have been made so that the property and/or structure is no longer in violation of this title.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Grounds for Revocation or Modification. A permit may be revoked or modified pursuant to the provisions of this article upon a finding of any one (1) or more of the following grounds:

  • (1) The permit was obtained or extended by fraud;

  • (2) The permit holder has failed to comply with one (1) or more of the conditions upon which the permit was granted;

  • (3) The use, building, or structure has been substantially expanded beyond what is set forth in the permit or substantially changed in character; or

  • (4) The use or facility for which the permit was granted is being conducted or maintained as to be detrimental to the public health or safety, or as to be a nuisance.

• (b) Initiation of Action. An action to revoke or modify a permit may be initiated by order of the City Council or Planning Commission, whichever granted or modified the permit, on its own motion or on the request of any City officer; provided, however, that the City Council may initiate an action to revoke or modify any permit granted or modified by the Planning Commission. An action to revoke or modify a permit granted or modified by the

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City of Emeryville, CA

PLANNING REGULATIONS

9-7.1508

9-7.1508

Director of Planning and Building may be initiated by order of the City Council or Planning Commission on its own motion or on the request of any City officer. The order shall set forth grounds for revocation or modification.

• (c) Revocation Procedure. The Planning Commission shall hold an evidentiary hearing, in accordance with the provisions of Article 2 of this chapter, Common Procedures, regarding the order proposing the revocation or modification of a permit. The Commission shall conduct the hearing according to the following procedure:

  • (1) The Planning Commission shall hear and consider all relevant evidence, including but not limited to applicable staff reports, objections or protests relative to the existence of violations of required conditions, and recommendations proposed by staff. The Commission may by motion continue the public hearing to a fixed date, time and place or may continue the item to an undetermined date and provide notice of the continued hearing.

  • (2) The hearing shall be conducted in accordance with the following rules:

    • a. The hearing need not be conducted according to the technical rules of evidence.

    • b. Oral evidence shall be taken only on oath or affirmation.

    • c. Hearsay evidence may be used for the purpose of supplementing or explaining direct evidence, but hearsay evidence shall not be sufficient in itself to support a finding.

    • d. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.

    • e. Irrelevant or unduly repetitious evidence shall be excluded.

  • (3) The permit holder and staff members shall have the following rights among others as parties to the proceeding:

    • a. To call and question witnesses on any matter relevant to the hearing.

• b. To introduce documentary and physical evidence.

  - c. To question opposing witnesses on any matter relevant to the hearing. 
  
  - d. To impeach any witness, regardless of which party first called such witness to testify. 
  
  - e. To rebut the evidence against such parties. 
  
  - f. To represent himself or herself or to be represented by anyone of his or her choice who is lawfully permitted to do so. 
  

  • (4) In reaching a decision, official notice may be taken, before or after submission of the case for decision, of any fact, which may be noticed by the courts of this State, or official records of the City Council, City departments, City ordinance, and other rules and regulations adopted by the City Council.

  • (5) Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of

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City of Emeryville, CA

EMERYVILLE CODE

9-7.1508

9-7.1508

authority. The Commission may determine the manner of refutation.

• (d) Planning Commission Recommendation. At the conclusion of the public hearing, the Planning Commission may, on the basis of the evidence presented at the hearing, make a finding on any one (1) or more of the grounds listed in subsection (a) of this section and make a recommendation to the City Council to revoke or modify the permit.

• (e) City Council Action.

  • (1) Upon receipt of the transcript of the evidentiary hearing conducted by the Planning Commission, the Director shall transmit the recommendation to the City Council at its next regular meeting with a recommendation that the Council schedule a hearing on the matter. The hearing shall be scheduled within thirty (30) days of the date of the Council's receipt of the recommendation of the Planning Commission. A copy of the transcript of the evidentiary hearing shall accompany the staff report.

  • (2) At the regular meeting at which the City Council is scheduled to act on the recommendation of the Planning Commission, the Council shall hear brief arguments by the permittee and City staff and take action based upon the record of proceedings and the recommendation contained in the hearing transcript, the findings contained in the staff report, and the arguments presented to the Council and revoke, modify, or let stand the permit in question. A decision by the City Council to revoke or modify a permit shall be accompanied by a directive to the City Clerk to prepare a minute order setting forth that action.

• (f) Related Permits. In addition to the remedies provided above, any person violating a provision of this title or failing to comply with the mandatory requirements of this title shall be subject to having any other related permits and/or any related business license revoked by the issuing authority for said violation.

• (g) Automatic Revocation of Permit. If a permit is granted or modified subject to one (1) or more conditions, such permit shall cease to be valid, and all rights or privileges granted thereby shall lapse, notwithstanding any other provisions of this title to the contrary, whenever there becomes final any judgment of a court of competent jurisdiction declaring one (1) or more of such conditions to be void or ineffective, or enjoining or otherwise prohibiting the enforcement or operation of one (1) or more of such conditions.

• (Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

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City of Emeryville, CA