Montclair Municipal Code Ch. 7.02 Definitions

As used in this Title, the following definitions shall apply. For purposes of Chapter 7.24, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.

Abandoned shopping cart means any shopping cart that has been removed from the premises of the owner/business establishment without written permission of the owner of the shopping cart or business establishment, regardless of whether the shopping cart has been left on either private or public property. Written permission shall be valid for a period not to exceed 72 hours (other than shopping carts which have been removed with written permission for repair or maintenance).

Abandoned structure means real property, or any building or structure thereon, that is vacant and is maintained in an uninhabitable condition or a condition of disrepair or deterioration as evidenced by the existence of public nuisances therein; or that is vacant and under a current notice of default and/or notice of trustee's sale, pending tax assessor's lien sale; or that is vacant and has been the subject of a foreclosure sale where title was retained by the beneficiary of a deed of trust involved in the foreclosure. Factors that may also be considered in a determination of an abandoned structure include, without limitation: present operability and functional utility; the presence of nonfunctional, broken, or missing doors or windows, such that entry therein by unauthorized persons is not deterred; the existence of real property tax delinquencies for the land upon which the structure is located; age and degree of obsolescence of the structure; and the cost of rehabilitation or repair versus its market value.

Abandoned personal property means and refers to any item, object, thing, material or substance that, by its condition of damage, deterioration, disrepair, nonuse, obsolescence, or location on public real property or on private real property causes a reasonable person to conclude that the owner has permanently relinquished all right, title, claim and possession thereto or that the object, thing, material or substance cannot be used for its intended or designed purpose. Abandoned personal property may include junk and vehicles.

Abatement costs means all costs, fees, and expenses, incidental or otherwise, incurred by the City in investigating and abating a public nuisance.

Alcoholic beverage, when applied to alcohol/intoxication, means alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine or beer, and which contains one-half of 1 percent or more of alcohol by volume, and which is fit for beverage purposes, either alone or when diluted, mixed or combined with other substances.

Attractive nuisance means any condition, device, equipment, instrument, item, or machine that is unsafe, unprotected, and may prove detrimental to minors whether in a structure or in outdoor areas of developed or undeveloped real property. This includes, without limitation, any abandoned or open and accessible wells, shafts, basements, or excavations; any abandoned refrigerators and abandoned or inoperable motor vehicles; any structurally unsound fences or structures; or any lumber, trash, fences, debris, or vegetation that may prove hazardous or dangerous to inquisitive minors. An attractive nuisance shall also include pools, standing water, or excavations containing water that are unfenced or otherwise lack an adequate barrier, thereby creating a risk of drowning, or that are hazardous or unsafe because of the existence of any condition rendering such water to be clouded, unclear, or injurious to health because of, without limitation, any of the following: bacterial growth, infectious or toxic agents, algae, insect remains, animal remains, rubbish, refuse, debris, or waste of any kind.

Building means any structure designed, used, or maintained for the shelter or enclosure of persons, animals, chattels, equipment, or property of any kind and shall also include structures wherein things may be grown, made, produced, kept, handled, stored, or disposed of and all appendages, accessories, apparatus, appliances, and equipment installed as a part thereof.

City means the City of Montclair.

City Manager means the Montclair City Manager or designee thereof.

City personnel means any Montclair City employee, representative, agent, or contractor designated by the City Manager to abate a public nuisance.

Code, Codes, and Montclair Municipal Code means the Montclair Municipal Code and any code, law, or regulation incorporated therein by reference and any adopted and uncodified ordinances.

Code Enforcement fees means fees imposed by the City to defray its costs of Code Enforcement actions including, but not limited to, the time and other resources of public officials expended by them in identifying, inspecting, investigating, seeking, or causing the abatement of a violation at a residential structure or property. These include, but are not limited to, site inspections; drafting reports; taking photographs; procuring other evidence; engaging in meetings, conferences, and communications with responsible persons, their agents, or representatives concerning a violation as well as with attorneys for the City at any time; and appearances before judicial officers or reviewing authorities during the pendency of a judicial proceeding and other appearances at such judicial or administrative hearings. The time and resources that public officials further expend to confirm that a residential structure remains free of public nuisances while a responsible person is on probation to a court or when a matter concerning a residential structure remains pending before a reviewing authority in an administrative action shall also constitute Code Enforcement actions. For purposes of this definition:

1. Residential structure and property shall mean and include all structures and premises that are regulated by the California State Housing Law (California Health and Safety Code Division 13, Part 1.5, Section 17910 et seq.) and any future amendments thereto, as well as any property within a residential zone as designated by the Montclair Zoning Ordinance. These include, but are not limited to, apartment houses, hotels, motels, and dwellings and residential buildings and structures thereto.

2. Violation shall mean and include a public nuisance as described in this chapter or any condition, activity, or use that is caused, allowed to exist, or maintained (because of an affirmative act, inaction, or omission) by a responsible person in violation of any other provision, regulation, or requirement of this Code or any applicable county, state, or federal laws or regulations.

Code Enforcement Officer means any individual employed by the City with primary enforcement authority for City Codes, or his or her duly authorized representative(s).

Commercial vehicle means any vehicle of a type required to be registered under the State of California Vehicle Code used or maintained for the transportation of persons for hire, compensation, or profit or designed, used, or maintained primarily for the transportation of property. Passenger vehicles that are not used for the transportation of persons for hire, compensation, or profit, house cars (motor homes), and vanpool vehicles are not commercial vehicles.

Compliance period means the period of time and/or required schedule set forth in a notice of abatement and/or an order of abatement within which all nuisance abatement actions referenced in such notice of abatement and/or order of abatement must be completed.

Controlled substances means any substance that is declared by state or federal law to be a controlled substance.

Diligently prosecute means the exercise of reasonable efforts to legally effectuate the vacation of the rented premises. Failure to succeed in causing the premises to be vacated shall not constitute a failure to diligently prosecute, provided the landlord exercised reasonable effort in such prosecution.

Drug-related nuisance means any activity related to the possession, sale, use, or manufacture of a controlled substance that creates an unreasonable interference with the comfortable enjoyment of life, property, and/or safety of residents of the premises or within a 1000-foot radius from the boundary line of the premises. These activities include, but are not limited to, any activity commonly associated with illegal drug dealing, such as noise; steady traffic, day and night, to a particular unit or portion of the premises; barricaded units; possession and/or display of weapons; drug loitering as defined in Health and Safety Code Section 11532; or other drug-related activities.

Electronic communication shall have the same meaning as defined in Subsection 12 of Section 2510 of Title 18 of the United States Code, except that electronic communication, for purposes of this definition, shall not be limited to electronic communication that affects interstate or foreign commerce.

Emergency, when applied to curfew and loitering, means unforeseen circumstances or a situation that calls for immediate action that includes, but is not limited to, providing aid to those injured, preventing injury or loss of property, reporting these circumstances to authorities, and in enlisting the assistance of others for these purposes.

Fire hazard shall include, but shall not be limited to, any device, equipment, waste, vegetation, condition, thing, or act that is in such a condition that it increases or could cause an increase of the hazard or menace of fire to a greater degree than that customarily recognized as normal by persons in the public service regularly engaged in preventing, suppressing, or extinguishing fire or that otherwise provides a ready fuel to augment the spread and intensity of fire or explosion arising from any cause or any device, equipment, waste, vegetation, condition, thing, or act that could obstruct, delay, hinder, or interfere with or may become the cause of obstruction, delay, or hindrance of, the operations of the Fire Department or other emergency service personnel or the egress of the occupants in the event of fire.

Gang-related crime means any crime motivated by gang membership in which the perpetrator, victim, or intended victim is a known member of a gang including, but not limited to, those crimes committed with the intent to publicize a criminal street gang's dominance over certain territory in order to intimidate nonmembers of the gang from entering, remaining in, or using the territory or adjacent area.

Guardian, when applied to curfew and loitering, means a person who, under court order, is the guardian of a minor; or a public or private agency with whom a minor has been placed by the court.

Hazardous materials means any material or substance of any kind that is declared by any federal, state, or local law, ordinance, or regulation to be composed of hazardous material.

Hearing Officer means the city employee or representative appointed by the City Manager, or a designee thereof, to hear all timely appeals from a notice of abatement.

Illegal drug activity means a violation of any of the provisions of Chapter 6 (commencing with Section 11350) or Chapter 6.5 (commencing with Section 11400) of the Health and Safety Code or any successor provisions thereto and include any individual, partnership of any kind, corporation, limited liability company, association, joint venture, or other organization, however formed, as well as trustees, heirs, executors, administrators, or assigns or any combination of such persons. "Person" also includes any public entity or agency that acts as an owner in the City.

Immediate family means any spouse, whether by marriage or not, parent, child, any person related by consanguinity of affinity within the second degree, or any property that is not real property, and includes, without limitation, any appliance, article, device, equipment, item, material, product, substance, or vehicle.

Incidental expenses shall include, but shall not be limited to, the actual expenses and costs of the City, such as preparation of notices, specifications, and contracts; inspection of work; costs of printing and mailings required hereunder; costs of any filing and/or recordation with the County Recorder's Office or other governmental agency; and the costs of administration and legal services.

Inoperable vehicle means and include, without limitation, any vehicle that is incapable of being lawfully driven on a highway. Factors that may be used to determine this condition include, without limitation, vehicles that have a "planned non-operational" status with the California Department of Motor Vehicles, vehicles lacking a current registration, a working engine, transmission, wheels, inflated tires, doors, windshield or any other part or equipment necessary for its legal and safe operation on a highway or any other public right-of-way.

Junk means and include, but is not limited to, any cast off, damaged, discarded, junked, obsolete, salvaged, scrapped, unusable, worn out, or wrecked appliance, device, equipment, furniture, fixture, furnishing, object, material, substance, tire, or thing of any kind or composition. Junk may include abandoned personal property as well as any form of debris, refuse, rubbish, trash, or waste. Factors that may be considered in a determination that personal property is junk include, without limitation, its:

1. Condition of damage, deterioration, disrepair, or nonuse;

2. Approximate age and degree of obsolescence;

3. Location;

4. Present operability, functional utility, and status of registration or licensing, where applicable;

5. Cost of rehabilitation or repair versus its market value.

Junkyard means real property of any zoning classification on which junk is kept, maintained, placed, or stored to such a degree that it constitutes a principal use or condition on said premises. The existence of a junkyard is not a nuisance when it is an expressly permitted use in the applicable zone and it is in full compliance with all provisions of the Montclair Zoning Ordinance and all other applicable provisions of the Montclair Municipal Code as well as all future amendments and additions thereto.

Landlord means any owner of record, lessor, or sublessor (including any person, firm, corporation, partnership, or other entity) who leases a rental unit for a specified term or permits a periodic tenancy, a tenancy at will, or a tenancy at sufferance or who otherwise receives or is entitled to receive rent for the use of any rental property or the agent, representative, or successor of any of the foregoing.

Notice of abatement means a "Notice of Public Nuisance and Intention to Abate with City personnel," as described in Section 7.24.060 of this chapter.

Order of abatement means an order issued by a Hearing Officer following an appeal of a notice of abatement.

Owner means and include any person having legal title to, or who leases, rents, occupies, or has charge, control, or possession of any real property in the City including all persons shown as owners on the last equalized assessment roll of the San Bernardino County Assessor's Office. Owners include persons with powers of attorney, executors of estates, trustees, or who are court-appointed administrators, conservators, guardians, or receivers. An owner of personal property shall be any person who has legal title, charge, control, or possession of such property.

Parent, when applied to curfew and loitering, means a person who is a natural parent, adoptive parent, or step-parent of a minor.

Person means and include any individual, partnership of any kind, corporation, limited liability company, association, joint venture, or other organization, however formed, as well as trustees, heirs, executors, administrators, or assigns or any combination of such persons. "Person" also includes any public entity or agency that acts as an owner in the City.

Personal property means property that is not real property and includes, without limitation, any appliance, article, device, equipment, item, material, product, substance, or vehicle.

Premises means any rental unit and the land on which it and other buildings of the complex are located and common areas including, but not limited to, parking facilities, streets, alleyways, stairwells, and elevators.

Public nuisance means anything that is, or likely to become, injurious or detrimental to health, safety, or welfare or is offensive to the senses or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property or unlawfully obstructs the free passage or use, in the customary manner, of any sidewalk, public park, square, street, or highway. All conditions hereafter enumerated in this chapter, or that otherwise violate or are contrary to any provision of the Montclair Municipal Code, are public nuisances by definition and declaration; and said enumerated conditions shall not, in any manner, be construed to be exclusive or exhaustive. A public nuisance shall also exist when a person fails to comply with any condition of a City approval, entitlement, license, or permit or when an activity on, or use of, real property violates, or is contrary to, any provision or requirement of the Montclair Municipal Code.

Public park, street, alley, highway, or other public place, when applied to alcohol/intoxication means and refers to only those public parks, streets, alleys, highways, or other public places within the corporate limits of the City.

Public place or place open to the public, when applied to curfew and loitering, means any place to which the public or a substantial group of the public has access, and includes, but is not limited to, streets, highways, parks, restaurants, arcades, theaters, and the common areas of schools, hospitals, apartment houses, office buildings, malls and shops.

Real property or premises means any real property owned by any person and/or any building, structure, or other improvement thereon or portions thereof. "Real Property" or "premises" includes any parkway or unimproved public easement abutting or adjacent to such real property, whether or not owned by the City of Montclair.

Remain, when applied to curfew and loitering, means to (1) linger, stay, or be present; or (2) fail to leave when requested to do so by a peace officer, owner, operator, or other person in control of the public place or place open to the public.

Rental unit means any dwelling unit, efficiency unit, guest room, and/or suites as defined in the Montclair Zoning Ordinance including, but not limited to, any single and multifamily residence, duplex, and/or condominium in the City of Montclair. This term shall also include any mobile home, whether rent is paid for the mobile home, the land upon which the mobile home is located, or both. It shall also mean any recreational vehicle, as defined in California Civil Code Section 799.29, if located in a mobile home park or recreational vehicle park, whether rent is paid for the recreational vehicle and the land upon which it is located or rent is paid for the land alone.

Responsible adult, when applied to curfew and loitering, means a person at least 18 years of age and authorized by a parent or guardian to have the care and custody of a minor.

Responsible person means any person, whether as an owner as defined in this chapter or otherwise, that allows, causes, creates, maintains, suffers, or permits a public nuisance, or any violation of the Montclair Municipal Code or county or state law or regulation thereof, to exist or continue by any act or the omission of any act or duty. A responsible person shall also include employees, principals, joint venturers, officers, agents, and/or other persons acting in concert with, or at the direction of and/or with the knowledge and/or consent of, the owner and/or occupant of the lot, building, or structure on, or in which, a public nuisance or violation exists or existed.

The actions or inactions of a responsible person's agent, employee, representative, or contractor may be attributed to that responsible person.

Shopping cart means a basket that is mounted on wheels or a similar device provided by a business establishment for use by a customer for the purpose of transporting goods of any kind, including, but not limited to, grocery store shopping carts.

Structure means that which is built or constructed, an edifice, wall, fence, or building of any kind or any piece of work artificially built up or composed of parts joined together in some definite manner.

Tenant means any tenant, subtenant, lessee, sublessee, any person entitled to use or occupancy of a rental unit, or any other person residing in a rental unit.

Threat of violent crime means any statement made by a tenant or at his or her request by his or her agent to any person who is on the premises or within a 1000-foot radius from the boundary line of the premises, or to the owner of the premises or his or her agent, threatening commission of a crime that will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, when, on its face and under the circumstances in which it is made, it is so unequivocal, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat and, thereby, causes that person reasonably to be in sustained fear for his or her own safety or for his or that of his or her immediate family. Such a threat includes any statement made verbally, in writing, or by means of an electronic communication device and regarding which a police report has been completed. A threat of violent crime under this chapter shall not include a crime that is committed against a person who is residing in the same rental unit as the person making the threat.

Vacant means real property or any building or structure thereon that is not legally occupied. Factors that may be used, either alone or in combination, to determine whether real property, or building or structures thereon, is vacant include, but shall not be limited to, overgrown and/or dead vegetation; accumulation of newspapers, circulars, fliers, and/or mail; past due utility notices and/or disconnected utilities; accumulation of trash, junk, and/or other debris; the absence of window coverings such as curtains, blinds, and/or shutters; the absence of furnishings and/or personal items consistent with residential and/or commercial furnishings consistent with the permitted uses within the zone of the real property; and statements by neighbors, passersby, delivery agents, government employees that the property is vacant. However, the existence of such factors, either alone or in combination, may not, in and of themselves, be conclusive as to the occupation or vacancy status of such real property.

Vehicle means any device by which any person or property may be propelled, moved, or drawn upon a highway or other public right-of-way and includes all vehicles as defined by the California Vehicle Code and all future amendments thereto. "Vehicle" does not include devices (i) that are propelled exclusively by human power, such as bicycles and wheelchairs; or (ii) those that are used exclusively upon stationary rails or tracks.

Violent crime means any crime involving a gun, a deadly weapon, or serious bodily injury and for which a police report has been completed. A violent crime under this Section shall not include a crime that is committed against a person residing in the same rental unit as the person committing the crime.

(Ord. 99-791 Exh. A (part): prior code §§ 4-5.01, 5-2.601)

(Ord. No. 09-907, § 1, 3-2-09; Ord. No. 09-911, § 2, 1-4-10; Ord. No. 17-963, § 1, 2-6-17)