Fremont Municipal Code Art. III Inspection and Enforcement

(a) Whenever necessary to make an inspection to enforce any of the provisions of this chapter, or whenever any authorized enforcement official has reasonable cause to believe that there exists in any building or upon any premises any condition which constitutes a violation of the provisions of this chapter, the authorized enforcement official may enter such building or premises at all reasonable times to inspect the same or perform any duty imposed upon the officer by this chapter; provided, that: (1) if such building or premises be occupied, he/she shall first present proper credentials and request entry; and (2) if such building or premises be unoccupied, he/she shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry.

(1) Inspection Warrant. Where the authorized enforcement official’s request to inspect is denied by the property owner or occupant, inspection may be made only upon issuance of an inspection warrant by a duly authorized magistrate except as permitted for emergency or open space inspections. The city staff shall obtain an inspection warrant as provided in Cal. Code of Civ. Proc. §§ 1822.50 et seq.

(b) Emergency Inspections. In any circumstance where there appears an immediate threat to the public health or safety, any authorized enforcement official may enter any structure or premises without the consent of any person or court process.

(c) Open Space Inspections. In any circumstances when it is necessary for the purposes of investigating or enforcing the provisions of this chapter, any authorized enforcement official may enter open space areas without forcing entry. Said officer may enter such premises at any time to inspect the same, or to perform any duty imposed by law.

(d) Routine or area inspections shall be based upon such reasonable selection processes consistent with general law as may be deemed necessary to carry out the objectives of this chapter, including but not limited to random sampling and/or sampling in areas with evidence of stormwater contamination, illicit discharges, discharge of nonstormwater to the stormwater system, or similar factors. (Ord. 01-2021 § 1, 2-2-21.)

(a) With the consent of the owner or occupant or pursuant to a warrant, any authorized enforcement official may establish on any property such devices as are necessary to conduct sampling or metering operations. During all inspections as provided herein, the officer may take any samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities on site.

(b) Emergency or open space inspections and samplings may be conducted by any authorized enforcement official without the consent of the owner or occupant and without a search warrant. (Ord. 01-2021 § 1, 2-2-21.)

(a) All persons in charge of a facility or responsible for emergency response for a facility have a personal responsibility to train facility personnel and maintain notification procedures to assure immediate notification is provided to city of any suspected, confirmed or unconfirmed release of material, pollutants or waste creating a risk of discharge into the city storm drain system.

(b) As soon as any person in charge of a facility or responsible for emergency response for a facility has knowledge, or reason to know, of any suspected, confirmed or unconfirmed release of materials, pollutants or waste which may result in pollutants or nonstormwater discharges entering the city storm drain system, such person shall immediately take all necessary steps to ensure the discovery, containment and cleanup of such release and shall immediately notify the city of the occurrence by telephoning (510) 494-4570 and confirming the notification by correspondence to City Manager, City of Fremont, 3300 Capitol Avenue, Fremont, CA 94538. (Ord. 01-2021 § 1, 2-2-21.)

(a) Whenever there is reasonable cause to believe that any facility is discharging pollutants or nonstormwater discharges into the city storm drain system, any authorized enforcement official is authorized to order testing or monitoring to confirm the unlawful discharge.

(b) Any authorized enforcement official may order any person engaged in any activity and/or owning or operating any facility which may cause or contribute to stormwater pollution or contamination, illicit discharges, and/or discharge of nonstormwater to the stormwater system, to undertake such monitoring activities and/or analyses and furnish such reports as the officer may specify. The burden, including costs, of these activities, analyses and reports shall bear a reasonable relationship to the need for the monitoring, analyses and reports and the benefits to be obtained. The recipient of such request shall undertake and provide the monitoring, analyses and/or reports ordered.

(c) In the event the owner or operator of a facility subject to a testing or monitoring order fails to conduct required monitoring, analyses and reports in the form required, the authorized enforcement official may cause such testing, monitoring and analyses to be performed and the cost therefor, including the reasonable additional administrative costs incurred by city, shall be the obligation of the owner or operator and may be recovered as provided in this chapter. (Ord. 01-2021 § 1, 2-2-21.)

Unless otherwise specified by ordinance, the violation of any provision of this chapter, or failure to comply with any of the mandatory requirements of this chapter, shall constitute a misdemeanor. Notwithstanding any other provisions of this chapter, any such violation constituting a misdemeanor under this chapter may, in the discretion of the authorized enforcement official, be charged and prosecuted as an infraction. (Ord. 01-2021 § 1, 2-2-21.)

(a) Violation of this chapter may be remedied by any means available to remedy a violation of this code.

(b) The remedies for violation of this chapter are nonexclusive and cumulative.

(c) Notwithstanding Section 1.20.080, the administrative penalties that may be imposed for the violation of any provision of this chapter or failure to comply with any of the mandatory requirements of this chapter are as follows:

(1) A person committing a violation is subject to a fine in the amount of:

(A) Three hundred fifty dollars for the first offense;

(B) Seven hundred fifty dollars for the second offense; and

(C) One thousand dollars for the third and subsequent offenses; or

(2) A person committing a violation either knowingly or with intent to violate any provision of this chapter is subject to a fine in the amount of $1,000 for each offense.

(d) Upon conviction of a misdemeanor, a person shall be subject to payment of a fine, or imprisonment, or both, not to exceed the limits set forth in Cal. Gov’t Code § 36901.

(e) Upon conviction of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in Cal. Gov’t Code § 36900. (Ord. 01-2021 § 1, 2-2-21.)

Unless otherwise provided, a person, firm, corporation, or organization shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this chapter is committed, continued or permitted by the person, firm, corporation, or organization and shall be punishable accordingly as herein provided. (Ord. 01-2021 § 1, 2-2-21.)

Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall constitute a violation of such provision. (Ord. 01-2021 § 1, 2-2-21.)

Any person who violates any provision of this chapter, any provision of any permit issued pursuant to this chapter, or who discharges waste or wastewater which causes pollution, or who violates any cease and desist order, prohibition, or effluent limitation, may also be in violation of the federal Clean Water Act and/or Porter-Cologne Act and may be subject to the sanctions of those acts including civil and criminal penalty. Any enforcement action authorized under this article should also include notice to the violator of such potential liability. (Ord. 01-2021 § 1, 2-2-21.)

In addition to the civil and criminal remedies and penalties provided herein, any condition caused or permitted to exist in violation of any of the provisions of this chapter or orders of the authorized enforcement official, is declared a threat to the public health, safety and welfare of the city of Fremont, and is declared and deemed a nuisance and may be abated by any authorized enforcement official using the administrative notice and hearing procedures and remedies provided in this chapter. (Ord. 01-2021 § 1, 2-2-21.)

Whenever the authorized enforcement official determines there exists in the city a nuisance in violation of this chapter, said authorized enforcement official will take corrective actions consistent with the city’s enforcement response plan:

(a) Send or hand deliver a written notice to abate the nuisance to the owner and operator in the manner and in the form as prescribed in this chapter.

(b) The notice shall state the proper street address and the assessor’s parcel number of the subject property.

(c) The owner shall be provided 30 calendar days to take corrective action to remedy the nuisance except in exigent circumstances and during the rainy season when a shorter notice may be prescribed by the authorized enforcement official. During the rainy season (October 1st through April 30th) owner shall be provided 10 calendar days to take corrective action but this time period may be shorter depending on the severity of the exigent circumstances.

(d) The notice shall specify the Fremont Municipal Code section or statute violated and state all the facts constituting the nuisance.

(e) The notice shall specify the corrective action required, including temporary corrective actions when appropriate.

(f) City may require structural controls (e.g., trash enclosure) in cases where there has been a sustained public nuisance.

(g) The notice shall advise the owner and operator that failure to appeal shall constitute a waiver of the right to administrative hearing to contest the existence of the nuisance. (Ord. 01-2021 § 1, 2-2-21.)

(a) Any nuisance which the authorized enforcement official determines is imminently dangerous to the life, limb, health, or safety of the occupants of the property or to the public in general may be summarily abated in accordance with the procedures set forth in subsection (d) of this section.

(b) Actions taken to abate imminently dangerous property nuisances may include but are not limited to correction or removal of the condition creating the danger and/or the restriction from use of the property on which the dangerous condition exists or any other abatement action determined by the authorized enforcement official to be necessary.

(c) Summary abatement actions taken by the authorized enforcement official shall be fully documented prior to or contemporaneously with abatement. Documentation shall include photographs and/or drawings of the condition and a written statement by the authorized enforcement official or other first-hand witnesses as to the circumstance, condition, or occurrence constituting the nuisance.

(d) Whenever the authorized enforcement official determines that summary abatement is justified by an imminently dangerous condition, circumstance, or occurrence, the authorized enforcement official shall give immediate written notice to the property owner and personal notice to the occupant of the premises as to the nuisance. If the property owner fails to take prompt appropriate action to abate the nuisance, the authorized enforcement official may proceed to take abatement action authorized in this chapter to the extent necessary to remedy the immediate danger without further notice or right to a prior hearing.

(e) Once summary abatement action has been completed, the property owner may contest the need for and cost of abatement action in the manner provided in Sections 18.210.480 and 18.210.490 within seven calendar days after service of the cost report. (Ord. 01-2021 § 1, 2-2-21.)

(a) In the event the property owner fails to abate within the prescribed time, and if no appeal has been filed with the city manager, the authorized enforcement official shall abate the nuisance.

(b) Abatement shall be pursued by city personnel or private contractor retained by the city. The authorized enforcement official or designee is hereby expressly authorized to enter upon said property for such purposes, to the extent permitted by law, and is authorized to obtain such court process as may be necessary to gain lawful entry.

(c) The actual costs of abatement, including administrative and incidental expenses, shall be the liability of the owner. “Incidental expenses” shall include but are not limited to personnel costs, both direct and indirect, costs incurred in inspecting the property, in documenting the nuisance, the actual expenses to the city in the preparation of notices, preparation of specification and contracts for abatement and inspection of the work, and the costs of printing and mailing required hereunder, and legal expenses as provided in Section 18.210.530. (Ord. 01-2021 § 1, 2-2-21.)

The property owner may appeal the nuisance determination of the authorized enforcement official to the city manager by filing an appeal with the city clerk within seven calendar days of the date of service of the notice to abate. The appeal shall identify the property and state the grounds for appeal together with all material facts in support thereof. (Ord. 01-2021 § 1, 2-2-21.)

(a) In the event the property owner appeals the nuisance determination, the city manager shall schedule an administrative hearing within five days of receiving said appeal before a hearing officer designated by the city manager.

(b) Notice of said hearing shall be served personally or by first-class mail, postage prepaid. Such notice shall be addressed to the person in possession of such property as shown in the records of the authorized enforcement official, and to the owner thereof at the last known address as the same appears on the last equalized-assessment roll of the county and shall specify the time and place when and where the designated hearing officer will hear and decide upon issues which may be raised by the owner. Such notice shall be served not less than five days, exclusive of Saturdays, Sundays, and holidays, prior to the time set for the hearing. Service shall be deemed complete at the time notice is personally served or deposited in the mail. (Ord. 01-2021 § 1, 2-2-21.)

Failure of the owner to appear at the hearing after notice has been served personally or by first-class mail, postage prepaid, addressed to said owner at the address shown on the appeal shall be deemed a waiver of the hearing and an admission by said owner of the nuisance charged. In the event of such failure to appear, the city manager may order that the nuisance be abated by the authorized enforcement official or his/her designee. (Ord. 01-2021 § 1, 2-2-21.)

(a) At the time and place set for hearing, the hearing officer designated by the city manager shall afford the appellant an opportunity for a hearing and shall consider all relevant evidence, and shall receive testimony from the authorized enforcement official or his/her designee and the property owner under oath relative to such alleged nuisance and the proposed abatement of such nuisance. Each party may examine the witnesses of other parties.

(b) Said hearing shall be tape recorded and may be continued from time to time at the discretion of the hearing officer.

(c) The hearing officer shall prepare a written decision based on the evidence received which shall be final and conclusive. The written decision shall contain a statement of decision relevant to the issues presented and set forth the time within which abatement shall be completed by the owner. In no event shall said abatement period be less than 30 days (except in exigent circumstances) nor more than 60 days, except with a showing of good cause.

(d) The hearing officer shall complete and deliver the written decision to the parties no later than 10 days after the close of the hearing and such decision shall be served in the same manner as the notice of hearing as prescribed in Section 18.210.420(b).

(e) The city manager shall compile and retain for 120 days the full record of the hearing under this chapter, including all exhibits and documents offered as evidence, whether or not admitted, and an audio tape recording of the proceeding. (Ord. 01-2021 § 1, 2-2-21.)

No administrative or incidental staff costs associated with the hearing or enforcement may be assessed against an owner who undertakes abatement action within 10 calendar days after service by the hearing officer of the written decision on the owner. The owner’s abatement action shall be in compliance with the orders of the hearing officer. (Ord. 01-2021 § 1, 2-2-21.)

Review of hearing officer decisions pursuant to this chapter shall be in accordance with Cal. Code of Civ. Proc. § 1094.5. (Ord. 01-2021 § 1, 2-2-21.)

After said hearing, if abatement of the nuisance has not been commenced and prosecuted to completion with due diligence as required by the written hearing decision, the city manager shall forthwith abate or cause to be abated the nuisance upon the premises and the cost thereof shall be billed to the property owner. Payment of the abatement cost shall be due within 30 calendar days of the date of mailing the bill. (Ord. 01-2021 § 1, 2-2-21.)

(a) After completion of the abatement, the authorized enforcement official shall file with the city manager a cost report specifying the work completed, the cost of abatement, including incidental expenses, and a description of the property subject to abatement. The cost report shall be filed within 10 calendar days of completion of the abatement.

(b) At the time of filing the cost report with the city manager, the authorized enforcement official shall cause notice of the cost report to be given in the manner specified in Section 18.210.420(b).

(c) The property owner may request a hearing to appear and be heard concerning the abatement cost report and the actual and incidental abatement costs. A request for a hearing shall be made to the city clerk within 15 calendar days after service of the cost report.

(d) When a request for hearing on the cost report is made, the city manager shall serve a notice of hearing on the property owner which shall specify the time and place when and where a city manager designated hearing officer shall hear and pass upon the abatement cost report of the city staff. The property owner may appear and be heard concerning the cost of abatement. (Ord. 01-2021 § 1, 2-2-21.)

(a) At the time and place fixed for the hearing of the cost report, the hearing officer shall conduct a fair hearing to hear and pass upon the abatement cost report in the manner provided in Section 18.210.440. The hearing officer shall receive objections and protests of the property owner liable to be assessed for such abatement costs and any other interested persons. The hearing officer may continue the hearing from time to time in his/her discretion.

(b) The hearing officer may make such revision, correction, or modification in the cost report as he/she may deem just, after which the cost report as revised or modified shall be confirmed in writing by the hearing officer. The hearing officer shall make a written statement of decision.

(c) The hearing officer shall serve the decision and confirmed cost report on the parties in the same manner as provided in Section 18.210.440 no later than 10 days after the close of the hearing. The hearing officer shall inform the property owner that the cost report will become a lien on the subject property unless paid within 30 days after confirmation by the hearing officer.

(d) If the hearing officer determines that the objections and protests support a finding that the nuisance was not created, or allowed to continue by the owner or a person or entity holding an estate under the owner, he/she shall make such finding and may revise, correct, or modify the cost report as justice may require.

(e) The decision on all protests and objections which may be made shall be final and conclusive and subject to judicial review pursuant to Cal. Code of Civ. Proc. § 1094.5.

(f) The city manager shall prepare and preserve a full record of the proceeding, including an audio tape, for 120 days after the close of the hearing. (Ord. 01-2021 § 1, 2-2-21.)

(a) The abatement cost shall be a debt owing to the city and may be enforced like any other debts owning to the city.

(b) As an alternative to subsection (a) of this section, the cost of abatement may be assessed by the city against the property upon which the nuisance was abated and such cost so assessed, if not paid within 30 days after its confirmation by the hearing officer, shall constitute a special assessment against the parcel of property and shall be a lien on such property for the amount thereof from the time of recordation of the notice of lien, which lien shall continue until the assessment is paid or until it is discharged of record. (Ord. 01-2021 § 1, 2-2-21.)

(a) From and after the date of the recording of the notice of lien, all persons shall be deemed to have notice of the contents thereof. The notice of lien shall be delivered by the city manager to the county auditor, who shall enter the amount thereof on the county assessment book opposite the description of the particular property. The amount of the lien shall be collected together with all other taxes thereon against the property.

(b) The notice of lien shall be delivered to the county auditor before the date fixed by law for the delivery of the assessment roll to the county board of equalization. Thereafter the amount of the lien shall be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and interest and to the same procedure under foreclosure and sale in the case of delinquency as provided for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of county taxes are hereby made applicable to such special assessment taxes. (Ord. 01-2021 § 1, 2-2-21.)

(a) Notwithstanding any other provision herein, whenever an owner of property constituting a nuisance is unable to abate the nuisance and is also unable to pay for the cost of abatement by the city, the city shall abate the nuisance. The cost of abatement shall become a lien against the property, which lien comes due and payable only upon the sale, transfer, or total or partial destruction of said property.

(b) This procedure shall be available as an alternative provision whenever the owner can prove to the satisfaction of the authorized enforcement official that said owner is unable to abate the nuisance or to pay for the cost of abatement due to the following circumstances:

(1) Continued unemployment, underemployment, or low income.

(2) Physical or mental disability, disease, handicap, or impairment rendering owner unable to meet its civic and financial obligations.

(3) Senior citizens subsisting on a limited, fixed, low income.

(c) The authorized enforcement official shall advise all property owners of the availability of this procedure at the time of giving notice of nuisance as provided in Section 18.210.380. (Ord. 01-2021 § 1, 2-2-21.)

In any administrative or civil proceeding under this chapter in which the city prevails, the city shall be awarded all costs of investigation, administrative overhead, out-of-pocket expenses, costs of administrative hearings, costs of suit, and reasonable attorneys’ fees. All such costs shall be deemed costs of nuisance abatement and shall be included in the cost report provided in this chapter. (Ord. 01-2021 § 1, 2-2-21.)

In addition to any other remedies provided in this section, any violation of this section may be enforced by civil action brought by the city. In any such action, the city may seek, and the court shall grant, as appropriate, any or all of the following remedies:

(a) A temporary and/or permanent injunction.

(b) Assessment against the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection.

(c) Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation.

(d) Compensatory damages for loss or destruction to water quality, wildlife, fish and aquatic life. Assessments under this subsection shall be paid to the city to be used exclusively for costs associated with monitoring and establishing stormwater discharge pollution control systems and/or implementing or enforcing the provisions of this chapter.

(e) An award of reasonable attorneys’ fees in any action in which the city prevails. (Ord. 01-2021 § 1, 2-2-21.)

In addition to the other enforcement powers and remedies established by this chapter, any authorized enforcement official has the authority to utilize the following administrative remedies:

(a) Cease and Desist Orders. When an authorized enforcement official finds that a discharge has taken place or is likely to take place in violation of this chapter, the official may issue an order to cease and desist such discharge, or practice, or operation likely to cause such discharge and direct that those persons not complying shall: (1) comply with the requirement, (2) comply with a time schedule for compliance, and/or (3) take appropriate remedial or preventive action to prevent the violation from recurring.

(b) Notice to Clean. Whenever an authorized enforcement official finds any oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or any other material of any kind, in or upon the sidewalk abutting or adjoining any parcel of land, or upon any parcel of land or grounds, which may result in an increase in pollutants entering the city storm sewer system or a nonstormwater discharge to the city storm drain system, he/she may give notice to remove such oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or other material. The recipient of such notice shall undertake the activities as described in the notice. (Ord. 01-2021 § 1, 2-2-21.)

All costs and attorneys’ fees imposed pursuant to the provisions of this chapter shall be deemed a debt to the city. At the discretion of the city manager, an action may be commenced in the name of the city in any court of competent jurisdiction for the amount of such debt. The time for commencement of any such action shall be within three years from the date of the award imposed pursuant to the provisions of this chapter. (Ord. 01-2021 § 1, 2-2-21.)

(a) Authorized enforcement officers shall have and are hereby vested with the authority to arrest or cite and release any person who violates any section of this chapter in the manner provided by the California Penal Code for the arrest or release on citation of misdemeanors or infractions.

(b) Such authorized enforcement officers may issue a citation and notice to appear in the manner prescribed by Cal. Penal Code §§ 853.5 and 853.6.

(c) It is the intent of the city council that the immunities prescribed in Cal. Penal Code § 836.5 be applicable to public officers or employees acting in the course and scope of employment pursuant to this chapter. (Ord. 01-2021 § 1, 2-2-21.)

Remedies under this article are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive. (Ord. 01-2021 § 1, 2-2-21.)

The degree of protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. The standards set forth herein are minimum standards and this chapter does not imply that compliance will ensure that there will be no unauthorized discharge of pollutants into the waters of the United States. This chapter shall not create liability on the part of the city, any officer or employee thereof, for any damages that result from reliance with this chapter or any administrative decision lawfully made thereunder. (Ord. 01-2021 § 1, 2-2-21.)