Fairfax Municipal Code Ch. 8.28 Watercourses

For the purpose of this chapter, the following definition shall apply unless the context clearly indicates or requires a different meaning.

CREEK. San Anselmo Creek, all its tributaries, Fairfax Creek, or any other creek, channel or watercourse wherein, during the rainy season of the year or any other time, water runs in a defined channel.

(Prior Code, § 8.24.010)

It is declared that each creek in the town and the free and unobstructed flow thereof is essential to the proper drainage of the town and to the protection of life and property in the town. Any weeds, trees, debris, rubbish, rank growth or thing whatsoever in any creek which at any time interferes with the free and unobstructed flow of water in the creek constitutes a public nuisance and is subject to summary abatement as provided by law or as provided in this chapter.

(Prior Code, § 8.24.020)

It is unlawful for any person to throw, deposit or place any rubbish, debris, garbage or other personal property in any creek, or to in any way obstruct the free flow of water, in any creek at any time.

(Prior Code, § 8.24.030)

Every owner of property in the town shall, at all times, keep free and clear of weeds, trees, debris, rubbish or any other obstruction all creeks or portions thereof which flow upon, over or across the property of the owner, and the failure to do so shall constitute a misdemeanor.

(Prior Code, § 8.24.040)

(A) The Public Works Director shall ascertain whether any creek is being obstructed and may remove any such obstructions to creeks, and for that purpose may enter upon any private property in the town.

(B) The Director of Public Works may widen, straighten and deepen the channel in any creek in the town to such an extent as to provide a channel that will carry all water normally flowing in the creek during seasonal rains.

(Prior Code, § 8.24.050)

In addition to the provision for summary abatement in § 8.28.050 of any obstruction to a creek as a nuisance, and as a supplementary method of removal of same, the Town Council may, by resolution, declare any weeds, trees, dirt, debris, rubbish, rank growths or any other thing found in any creek to be a public nuisance. The resolution shall refer to the nature of the public nuisance and describe the property upon which the nuisance exists by giving the lot and block number or other description of the same, according to the official maps of the town, or the description on the assessment roll of the town used for describing property on tax bills. No other description shall be required.

(Prior Code, § 8.24.060)

(A) (1) After the adoption of any such resolution as provided in § 8.28.060, the Director of Public Works shall prepare three copies of a notice entitled “NOTICE TO ABATE NUISANCE,” which notice shall describe with reasonable certainty the nature, description and location of the nuisance, and shall contain a time and date when the owner of the property upon which the nuisance exists may appear

before the Town Council and show reason why such condition does not constitute a nuisance and is not an obstruction to any creek.

(2) Two of the notices shall be posted on the property described therein, and a third copy shall be mailed by registered mail, postage prepaid, to the person appearing upon the records of the Town Assessor as the owner of the property, at his or her last known address as shown by the records.

(3) The mailing and posting shall be done at least five days before the hearing.

(B) At the time and place stated in the notice, the Town Council shall hear all persons interested in the matter and consider all objections to the removal of any such nuisance or obstruction. Upon the conclusion of the hearing, the Town Council, by resolution, shall allow or overrule any or all objections, whereupon the Town Council shall be deemed to have acquired jurisdiction to proceed to order the removal of any such obstruction or the widening, deepening or straightening of any channel of any creek in the town. The decision of the Town Council on the matter shall be deemed final and conclusive.

(Prior Code, § 8.24.070)

After the hearing provided for in § 8.28.070, the Town Council may, by resolution, order the Director of Public Works to abate any such nuisance and remove any obstruction referred to in the proceedings, and the Director of Public Works and his or her deputies are expressly authorized to enter upon private property for that purpose. Any property owner shall have the right to have any such obstruction or nuisance removed at his or her own expense, providing the same is done prior to the date set forth for the removal by the Director of Public Works or his or her representative.

(Prior Code, § 8.24.080)

The Director of Public Works shall keep an accurate account of the cost of abating the nuisance and the removal of any such obstruction, and shall render an itemized report in writing to the Town Council, showing the cost of the removal and abatement; provided that, before the report is submitted to the Town Council, a copy of same shall be posted for at least three days prior thereto on the property from which the obstruction was removed or nuisance abated, together with a notice of the time when the report shall be submitted to the Town Council for confirmation.

(Prior Code, § 8.24.090)

(A) At the time fixed for receiving and confirming the report of the Director of Public Works, the Town Council shall hear the same, together with any objection which may be raised by any property owner liable to be assessed for the work of abating the nuisance or removal of the obstruction, and the Town Council shall thereupon make the modification in the report as they may deem necessary, after which, by resolution, the report shall be confirmed.

(B) The amounts of the cost for abating the nuisance or removal of the obstruction from any property mentioned in the report shall constitute a special assessment against the parcel of land, and after thus made and confirmed, shall constitute a lien on the property for the amount of the assessment. After confirmation of the report, a copy thereof shall be turned over to the Assessor and the Tax Collector, whereupon it shall be the duty of the officers to add the amounts of the assessment to the next regular bill for taxes levied against the lot or parcel for municipal purposes, and the lien shall be collected in the same manner as other general municipal taxes. The amount of costs for removal hereinabove mentioned shall be and constitute the personal obligation of the owner of the property, and the Town Council may enforce the obligation by suit at law.

(Prior Code, § 8.24.100)

It is unlawful to build, construct or reconstruct any retaining wall, crib wall, bulkhead, bridge or other structure in, over, across or upon any creek, or to remove any tree within the flood level of any creek in the town, without first securing a permit.

(Prior Code, § 8.24.110) (Ord. 496, passed - -1982; Am. Ord. 499, passed - -1982)

(A) Any person who desires to build, construct or maintain any structure described in § 8.28.110 shall apply for a permit therefor to the Building Inspector. The application shall be accompanied by:

(1) An affidavit in writing by the applicant, stating the following:

(a) The structure to be built shall not intrude into the creek beyond the point of any structure which it replaces or beyond the creekbed’s previous bank; and

(b) The applicant/owner agrees to hold the town harmless from the claims of any and all persons who may assert any damage by reason of the placement of the structure.

(2) An affidavit in writing by the project engineer stating that, in the opinion of the engineer,

the structure will not significantly change the course of the creek in a manner which creates a hydraulic impact on other property according to accepted engineering standards.

(B) An application for a tree removal permit shall be made pursuant to Chapter 12.44 of this code.

(Prior Code, § 8.24.120) (Ord. 496, passed - -1982; Am. Ord. 499, passed - -1982; Am. Ord. 511, passed - -1983)

Forthwith, the Building Inspector shall refer each application to a designated staff member who will check the project for compliance with design criteria adopted from time to time by resolution of the Town Council. These design criteria may impose reasonable restrictions, such as requiring textured treatment of exposed concrete and suitable landscaping of fill and excavation made in the construction of the structures, including, but not limited to redwood timbers.

(Prior Code, § 8.24.130) (Ord. 496, passed - -1982; Am. Ord. 499, passed - -1982)

If the Building Inspector finds and determines that the proposed structure will not, in any way, impede and/or improperly divert the passage of water within the creek, he or she shall approve the plans and issue the permit subject to such conditions as he or she believes necessary to ensure the continued flow of water and including conditions imposed by the adopted design criteria. Any person dissatisfied with any action of the Building Inspector in this connection may appeal the same to the Planning Commission in writing within ten days after notification of the action of the Building Inspector. The Planning Commission shall conduct a hearing on the appeal, and its decision shall be final.

(Prior Code, § 8.24.140) (Ord. 496, passed - -1982; Am. Ord. 499, passed - -1982)

Should the Building Inspector determine that the construction proposed does not require any special skill or knowledge, and that the structure is of such a small nature as to make expensive design impracticable, the Building Inspector may waive the requirement that plans and specifications are to be prepared by a duly licensed civil engineer, and may accept plans prepared by the applicant or his or her agents.

(Prior Code, § 8.24.150) (Ord. 496, passed - -1982; Am. Ord. 499, passed - -1982)