Martinez Municipal Code Ch. 8.14 Drainage

This division is adopted to provide for the implementation of drainage improvements, recreational uses, protection of riparian vegetation, permit control of projects that may change the hydraulic characteristics of watercourses and drainage facilities, control erosion and sedimentation, prevent the placement or discharge of polluting matter into watercourses or the Contra Costa Canal, and require adequate watercourse drainage facilities.

(Ord. 1187 C.S. § I, 1992)

A. Findings. The City Council finds and declares that the unregulated obstruction, modification and use of watercourses creates conditions tending to reduce the value of private property, to promote blight and deterioration of property, to cause flooding and drainage losses, and to be injurious to the public health, safety and general welfare.

B. Nuisance. Violations of this division and the resulting watercourse conditions constitute public nuisances which may be abated as such in accordance with the provisions of this Chapter and code.

(Ord. 1187 C.S. § I, 1992)

No person, firm, corporation, or public district shall allow on its property or commit or cause to be committed any of the acts hereinafter described, unless a written permit has first been obtained from the enforcing officer or his duly appointed representative:

A. Impair or impede the natural flow of storm waters, or other water, running in a defined channel, natural or man-made;

B. Deposit any material in such channel;

C. Excavate, grade or otherwise alter the surface of land so as to reduce the capacity of such channel;

D. Destroy or significantly alter riparian or bank stabilizing vegetation, including without limitation the use of herbicides or pesticides, cutting, clearing, grubbing, burning, removing, excavating or grading;

E. Plant any shrub, vine or tree within a riparian corridor;

F. Construct, alter, or repair any storm water drainage structure, facility, or channel;

G. Commit any act within any easement dedicated for drainage purposes that will impair the use of such easement for such purposes;

H. Install or construct any new non-drainage structures, improvements thereto or expansion thereof including, but not limited to, buildings, swimming pools, patios, paving, fences, poles, retaining walls, rip-rap and similar improvements, within watercourses;

I. Commit any act, within the defined drainage corridor, which will reduce aesthetic values;

J. Make any alterations that will adversely impact any adjacent properties, private or public. (eddying, bank scouring, etc.)

(Ord. 1187 C.S. § I, 1992)

This Chapter shall not prevent any person or the enforcing officer from performing emergency maintenance or work within, on, over, under, or through any watercourse, channel, ditch, conduit, or natural drainageway, as necessary and proper for the preservation of life or property when an urgent necessity arises. The person performing the emergency work shall notify the enforcing officer and the State Department of Fish and Game within the next working day and apply for a written permit within five calendar days of the beginning of work.

(Ord. 1187 C.S. § I, 1992)

The fees for permits and inspections of the performance of acts or works under this Chapter and appeals shall be those recommended by the enforcing officer and established and adopted by the City Council from time to time by resolution.

(Ord. 1187 C.S. § I, 1992)

The Community Development Department is charged with the responsibility for the administration of the provisions of this Chapter. Pursuant to this code, the Community Development Director may appoint or delegate authority to qualified persons or deputies for the purpose of the administration of this division.

(Ord. 1187 C.S. § I, 1992)

Whenever any watercourse work or related activity is being done contrary to this Chapter, the enforcing officer may order the work or activity stopped by notice in writing and posted served on any persons engaged in the doing or causing of the work or activity; and these persons shall stop immediately until authorized by valid permit or the enforcing officer to proceed with the work or activity.

(Ord. 1187 C.S. § I, 1992)

A. Generally. Unless otherwise specifically provided, or required by the context, the following terms have the meanings set forth in this Chapter for the purposes of this Chapter.

B.

"Defined channels,"

natural or man-made, means any of the following:

Intermittent stream.

Any watercourse which has been verified by field investigation to:

a.

Have a significant water flow at anytime within 30 days after the last significant storm; or

b.

Have a well-defined channel; or

c.

Be a watercourse designated by a broken line symbol on the largest scale USGS Map most recently published.

Perennial stream.

Any watercourse which is either:

a.

A watercourse which has been verified by field investigation as a stream which normally flows throughout the year; or

b.

A watercourse designated by a solid line symbol on the largest scale USGS Map most recently published.

C.

"Defined drainage corridor"

shall include the defined channel and the defined riparian corridor, plus any special setbacks or drainage easements.

D.

"Drainage easement"

means an easement provided for the installation, preservation or maintenance of drainage facilities, including conduits or channels.

E.

"Emergency"

means a sudden, unexpected occurrence which presents a clear and imminent danger to life, health, property, or essential public services which requires immediate action to mitigate.

F.

"Enforcing officer"

means the Community Development Director.

G.

"Erosion"

means the detachment and movement of soil or rock fragments by water, wind, ice or gravity.

H.

"Improved channel"

means a watercourse which has been modified through man-made construction including but not limited to increasing its width and/or depth, straightening its alignment, or stabilizing its banks through grading, concrete, rip-rap or other means.

I.

"Riparian corridor"

means an area of watercourse riparian vegetation which may be identified through field investigations in conformance with State Department of Fish and Game guidelines. The boundary shall be defined as the outer limit of the occurrence of riparian vegetation.

J.

"Riparian vegetation"

means vegetation associated with the banks, edges, or terrestrial limits of watercourses requiring or tolerating soil moisture levels in excess of that available in adjacent uplands as defined in State Department of Fish and Game guidelines.

K.

"Runoff"

means the surface water flow or rate of flow following precipitation.

L.

"Sedimentation"

means the process by which mineral or organic matter is removed from its site of origin, transported, and deposited by water, wind, or gravity.

M.

"Structure setback area"

is as provided in Chapter 29 of the City's Building Code. Setbacks from dedicated easements will control, but in no case may structures encroach within ten feet of the upper bank. The property owner is responsible for his/her entire creek area and is responsible to assure stability of the upper bank.

N.

"Watercourse"

means any natural or man-made channel for transporting water, including the streambed and the banks, whether continuously flowing or intermittent.

O.

"Acts and works"

means clearing or thinning of natural growth or any construction in the defined drainage corridor.

(Ord. 1187 C.S. § I, 1992)

A. Issuance. The written permits required by this Chapter shall be issued by the enforcing officer for any lawful use, subject to conditions set forth in this division, the permit and as required by law. The terms of the permit shall require the property owner and permittee to be responsible for all work done and to hold harmless and defend the City, and their officers, employees and agents against any damage claims. The issuance of a permit shall in no manner whatsoever imply or impute a responsibility or liability to the City of Martinez, or their officers, employees or agents, for injuries resulting from any act or condition regulated by this Chapter.

B. Application form.

1. The enforcing officer shall prescribe and provide a standard form of application for a permit required by this division.

2. The application form shall state the property owner's and permittee's name, if different, together with such details which in the opinion of the enforcing officer are necessary to establish the purpose of the act or work to be performed, the location, dimensions, estimated total cost, and the dates for commencement and for completion of the act or work; except that at the enforcing officer's discretion, a completion date may be specified.

3. The application form shall include a right to enter to abate a nuisance created by acts or works authorized by the permit with five working days notice.

4. The permit form shall include right for immediate access to abate an emergency situation.

5. To be complete, the application shall be executed by the property owner or the owner's duly appointed agent, be accompanied with the required fee or fees, and deposited with the enforcing officer.

C. Exhibits and conditions. The applicant shall attach to the application:

1. A copy of a State Department of Fish and Game permit or letter of exemption, and of any other agency permits required.

2. An exhibit as the enforcing officer may prescribe, on which shall be plainly shown any and all information necessary to locate, illustrate, and substantiate the right and necessity of the applicant to perform the act or work.

3. The enforcing officer may require to be submitted such soil investigation, tests of materials, biological reports, environmental documents, engineering plans and investigations, technical reports and other permits as the officer deems necessary and proper.

4. If a soils report is required, second party review will also be required.

5. Necessary changes, corrections, and notes may be made on any such exhibit and/or conditions inserted on the permit and these items shall become an integral part of the permit when attested to by the enforcing officer.

6. The applicant shall enclose with, attach, or add to the application for a permit the written consent and waiver of liability given by any and all persons political agencies having jurisdiction or any interest in the property where work is to be performed, who of themselves or their property would be affected in any manner by the acts or works to be performed.

The granting of a permit pursuant to this Chapter shall not be construed as permission or license to enter on, occupy or otherwise utilize private, City, or property without the express consent of the owner or agent in possession thereof.

D. Types of permits. Written permits required by this Chapter shall be one of the following types, depending on the decision of the enforcing officer:

1. "Regular permits" to do work under the provisions of this division shall be issued for the performance of those acts or works permitted by this Chapter. Regular permit include any pre-approved procedures, or mail-in permits which may be established by procedures.

2. "Conditional permits" shall be issued when such conditions or circumstances exist or will foreseeably occur which could in any manner be adverse to the performance of the proposed acts or works or be adverse to the purpose for which the proposed acts or works are to be performed. Such conditions or circumstances shall be attached hereto and shall be considered incorporated in the permit.

3. "Emergency permits" shall be issued for reasons necessitating emergency action as set out in Sections 8.14.014.

4. Permit must comply with CEQA requirements.

5. A State Fish and Game Streambed Alteration Agreement may be required.

(Ord. 1187 C.S. § I, 1992)

A. Appeals and exceptions. Any person aggrieved by the refusal or the terms of a permit required by this Chapter may appeal to the zoning administrator.

1. Notification of adjacent property owners will be made after acceptance of the application. Properties 300 feet upstream and downstream and effected agencies will be notified.

2. The applicant and or effected property owner may appeal within 10 days of receipt of notice.

B. Exceptions. If, in following the procedural provisions of 8.14.100 the Zoning Administrator is satisfied that all of the following are true, the permit shall be granted:

1. That there are unusual circumstances or conditions affecting the property;

2. That the applicant will be substantially damaged by the refusal to grant the permit;

3. That the exception is necessary for the preservation and enjoyment of a substantial property right of the applicant or necessary for the proper design and function of an existing activity on the property;

4. That no other reasonable method of obtaining the desired results is available except as proposed by the applicant;

5. That the granting of the permit will not be materially detrimental to the public interest, safety, health, and welfare, or injurious to other property;

6. That the granting of the exception will not unreasonably reduce or adversely impact the riparian corridor, and there is no feasible, less environmentally damaging alternative; and

7. That the granting of the exception will not adversely affect the purposes of this division and the policy and goals of the general plan;

8. That the project meets all building code and engineering standards and specifications;

9. That the design is aesthetically acceptable.

C. Term and beginning work. The permittee shall begin the act or work authorized by a permit issued pursuant to this Chapter within thirty calendar days from date of issuance, unless another date is specifically indicated in the permit. The permittee shall notify the enforcing officer at least two working days prior to beginning work. Should the act or work not be commenced on or before the date indicated in the permit, the permit shall become void unless, prior to the date of expiration, the permittee presents good and sufficient reason for an extension of time and the date is extended by the enforcing officer in writing. A permit which has become void by reason of non-commencement of work prior to the stipulated date may be renewed at the discretion of the enforcing officer and upon payment of a renewal fee as provided for in the schedule of fees adopted by the City Council.

D. Inspection during and at completion of work.

1. The permittee shall notify City inspectors 24 hours prior to commencement of work.

2. The permittee shall complete the act or work authorized by a permit issued pursuant to this division within the time and before the date stipulated in the permit.

3. The permittee shall notify the enforcing officer in writing upon completion of any act or work; and no work shall be deemed to have been completed until such written notification has been received and a final inspection of the work has been made by a representative of the enforcing officer, unless such inspection is waived in writing by the enforcing officer. No permittee shall be deemed to have complied with this Chapter until such inspection has been performed and the enforcing officer is satisfied that everything required to be done has been completed.

4. Any work or act performed without a permit or not covered by an issued permit may be acknowledged as complete by the enforcing officer, provided that such work or act complies with the requirements of this division and is otherwise acceptable to the enforcing officer, and provided that all permit fees are paid.

5. In the event the work or act is unacceptable the enforcing officer may exercise any available remedies, including without limitation the procedure prescribed in Sections 8.14.100.

E. Performance security. Prior to the issuance of a permit, the applicant shall deposit with the enforcing officer cash or check for payment to the City of Martinez in an amount deemed adequate by the enforcing officer but not exceeding the estimated total cost, including all labor and materials, of the work to be performed. In lieu of a cash deposit, the applicant may file an approved surety bond issued by a company or corporation authorized to engage in general surety business in the State of California or an acceptable instrument of credit meeting subdivision security standards. The conditions of any cash deposit or surety bond made pursuant to this Section shall be that the permittee will diligently and in good faith comply with all provisions of this Chapter with all terms and conditions contained in the issued permit, and will pursue the work to completion without undue delay except for reasonable cause. Upon satisfactory and acceptable completion of the work as set forth in Sections 8.14.100 C., the cash deposit shall be refunded to the permittee. The permittee shall be exonerated from the surety bond or the instrument of credit released by the enforcing officer in writing upon the expiration of ninety days. The enforcing officer shall not be responsible to ascertain whether there exist unsatisfied liens against the premises upon which the work was performed.

F. Liability insurance. In addition to the other requirements of this division, satisfactory proof by certificate of insurance is required that the permittee has in force a valid public liability insurance policy which includes the City of Martinez, its officers, employees and agents as additional insureds. Unless such insurance coverage is waived by the enforcing officer, it shall be in an amount the officer deems sufficient to adequately protect the additional insureds from liability for damages to person(s) or property(s) arising from the activities related to the permit.

G. Changes. No changes shall be made in the location, dimensions, materials, or character of the work authorized in a permit, except upon written authorization to do so by the enforcing officer.

H. Non-transferable. A permit issued pursuant to this division shall not be transferable by, for, or on behalf of the permittee, his or her heirs, assigns, or successors.

I. Unsatisfactory permit work. If the enforcing officer determines that the performance of the work described in a permit is unsatisfactory or unacceptable, or both, the permittee shall reconstruct the work to the satisfaction of the enforcing officer.

If the enforcing officer determines that delay in pursuit or completion of the act or work is due to lack of diligence or willful act on the part of the permittee, or that the work is unsatisfactory or unacceptable, or both, if essential to the health, safety, or welfare of the public, the enforcing officer may request the City Council for authorization to perform or contract with any licensed general contractor to complete, erect, install, reconstruct, or alter all structures or work in conformance with the permit, or to remove all structures and obliterate all work not completed. The costs (including administrative and overhead expenses) incurred thereby shall be repaid to the City from the cash, instrument of credit or surety bond deposited by the permittee with the City for the performance of the work provided that any and all costs incurred by the City which exceed the cash deposit, instrument of credit or surety bond's penalty sum shall be paid by the permittee to the City.

(Ord. 1187 C.S. § I, 1992)

A. Abatement. The enforcing officer may have nuisances, created after the effective date of the ordinance, abated and/or removed in accordance with the procedure prescribed in this Chapter.

B. Notice. In the event of a violation of this Chapter constituting a public nuisance, and in addition to other remedies and penalties provided in this code, the enforcing officer may deliver or mail, by registered or certified mail, to the owner of the property on which the violation occurred (or is occurring) and to any involved permittee, a ten-day notice of intention to abate the nuisance unless the owner does so within ten days after the notice is received. Notice shall be provided at the address of the owner as it appears on the last equalized assessment roll.

C. Content. The notice shall contain:

1. A statement of the nature of the nuisance;

2. That the owner and any involved permittee must abate the nuisance within ten days; or if they fail to do so, the nuisance may be abated by the enforcing officer and the owner and any involved permittee shall be liable to the City for the costs thereof.

3. An estimate of the cost of abatement (including overhead and administrative costs).

4. A statement that this cost may be levied as a special assessment on the owner's land.

5. A statement of the property owner and any involved permittee's hearing rights and notice to them that they may appear in person at a hearing or by sworn written statement in lieu of appearing.

(Ord. 1187 C.S. § I, 1992)

A. Hearing requests.

1. Request. Within ten days after the mailing, delivery and receipt date(s), whichever is later, of the notice of intention to abate and remove, the property owner or possessor of the property and any involved permittee may request the Zoning Administrator for a public hearing on the question of abatement and the estimated cost thereof.

2. Notice. The Zoning Administrator shall immediately notify the enforcing officer of any such request.

B. No hearing. If no request for hearing is received within the ten-day period, the enforcing officer or any person the enforcing officer authorizes may abate the nuisance. Thereafter, the costs of abatement shall be collected pursuant to Sections 8.14.140.

C. Hearing notice. When a hearing is requested, the Zoning Administrator shall mail notice of the hearing at least ten calendar days before the hearing date to the enforcing officer, the property owner, any known possessor of the property, and any involved permittee.

D. Hearings. All hearing(s) under this Chapter shall be held before the Zoning Administrator who shall receive all evidence related to the condition of the property, the circumstances of the nuisance and the location and the estimated cost of the abatement. The Zoning Administrator shall not be limited by the technical rules of evidence. The property owner, any known possessor of the property or involved permittee or affected property owner or agency may appear in person or present a sworn written statement in time for consideration at the hearing.

E. Decisions. The Zoning Administrator may impose such conditions and take other such action as the Zoning Administrator deems appropriate under the circumstances to carry out the purpose of this Chapter. The Zoning Administrator may delay the time for removal of the nuisance if, in the Zoning Administrator's opinion, the circumstances justify it. At the conclusion of the public hearing, if the Zoning Administrator finds that there is a nuisance, the Zoning Administrator may order it abated and/or removed as a public nuisance as hereinafter provided and determine the cost of abatement to be charged against the landowner. The order requiring abatement shall include a description of the nuisance.

F. Notice of decision. If an interested party makes a written presentation to the Zoning Administrator but does not appear, such interested party shall be notified in writing of the decision.

G. Appeals.

1. The enforcing officer, the property owner, any known possessor of the parcel, or any involved permittee may appeal the Zoning Administrator's decision by filing with the Zoning Administrator a written notice of appeal, accompanied with any required fee, within ten calendar days after the Zoning Administrator's decision. The Zoning Administrator shall promptly transmit the proceedings to the City Council of the City of Martinez.

2. The City Clerk or designee shall promptly give written notice of the time and place of the hearing to the appellant and those persons specified in Sections 8.14.120 C.

3. The Council shall promptly hear such appeal, and may affirm, amend, or reverse the order, or take other action it deems appropriate. It shall not be limited by the technical rules of evidence.

(Ord. 1187 C.S. § I, 1992)

A. Action. This Chapter's nuisances may be abated when:

1. Releases authorizing abatement and property cost collection have been signed by the involved property's owner(s); or

2. There is no reply to the notice of intent to abate by the end of the ten-day waiting period; or

3. The Zoning Administrator decides the nuisance is to be abated and no appeal is made to the board; or

4. After an appeal has been decided in favor of abatement.

B. Cost record. The enforcing officer shall prepare an itemized written account of all expenses, including administration and overhead, incurred to abate the nuisance, plus any attorneys' fees the City seeks to recover in connection with the proceeding.

(Ord. 1187 C.S. § I, 1992; Ord. 1258 C.S. § 1, 1998)

A. Submittal to council. The enforcing officer shall forward the itemized written account to the City Council for consideration and action.

B. Notice to property owner. Before the itemized written account is submitted to the City Council, a copy shall be posted for at least three days on the bulletin board of the City Hall, with a notice of the time when the account will be considered by the City Council for confirmation. A copy of the account and notice shall also be mailed to the owner of the property, at the address shown on the last tax roll, at least ten days prior to its consideration by the City Council.

C. Hearing. At the time fixed for receiving and considering the written account, the City Council shall hear it and any objections by the property owners liable to be assessed for the work of abatement. Thereupon, the City Council may make such modifications in the report as it deems necessary; after which, by order of resolution, the report shall be confirmed; and if the City has requested payment of its attorney's fees, attorney's fees shall be awarded to the prevailing party.

D. Special assessment. The cost of such abatement, as determined by the City Council, shall become a special assessment and lien against the aforesaid property, which assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment.

E. Assessment notice. The enforcing officer shall send notice by certified mail to the property owner if the property owner's identity can be determined from the County Assessor's or County Recorder's records. The notice shall be given at the time of imposing the assessment and shall state that the property may be sold after three years by the tax collector for unpaid delinquent assessments.

(Ord. 1258 C.S. § 2, 1998)