Newark Municipal Code Ch. 7.04 Definitions

For purposes of this Title 7, certain words, terms, and phrases used in this title are defined as set forth in this chapter.

(Ord. 392 § 1 (part), 2003)

"Abate" or "abatement" or any variation thereof, means, but is not limited to, correction of a nuisance by any person or by the city or city-contracted agents, civil, criminal or administrative process, inspection or abatement warrants, imposition of fines or penalties, revocation or modification of permits or approvals, and any other method implemented by the city to correct a nuisance.

"Building" means any structure, including but not limited to, any house, garage, duplex, apartment, condominium, stock cooperative, mobilehome, or other residential buildings or associated accessory structure(s) and any commercial, industrial, or other establishment, warehouse, kiosk, or other structure affixed to or upon real property used as a dwelling or for the purpose of conducting a business, storage, or other activity.

"Compliance date" means the date requested for correction of the violation(s) prior to the imposition of any administrative fines or penalties.

"Enforcement officer" means the city manager, building official, public works director, fire marshal, finance director, or police chief, or any city employee or agent of the city with the authority to enforce any provision of this code, and for this purpose he/she shall have the authority to issue citations, and he/she may enter upon any premises in the city, except the interior of an occupied dwelling, without prior authorization or without a warrant, for the purpose of inspection and enforcement pursuant to law.

"Garbage" means putrescible animal, fish, fowl, fruit or vegetable refuse, or any portion thereof, resulting from the growing, preparation, processing, storage, handling, transporting, or consumption of foods.

"Graffiti" means the unauthorized letters, words, symbols, figures, and marks placed on buildings and objects on private property, public property, or the public right-of-way by using paint or marking with ink, chalk, crayon, dye, or other similar substances, or by cutting or scraping with any tool or instrument.

"Hearing officer" means the city manager or his/her designee authorized to conduct hearings pursuant to this chapter.

"Habitable" means that a building, premises, or property is suitable for occupancy per the standards set forth in the codes referenced in this chapter and/or those codes utilized by the city in the normal course of government operations.

"Habitable space" means space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space, and similar areas, are not considered habitable space.

"Industrial waste" means all liquid or solid waste substances, except sewage, from any production, manufacturing, processing, or packaging operation.

"Inoperative" means any vehicle that:

1. Cannot be immediately started and driven under its own power on the streets and highways;

2. Is in an unsafe condition; or

3. Is in any other condition specified in the California Vehicle Code which prohibits its placement and/or movement on the public streets or highways. This includes any vehicles, including trailers or vessels, not currently registered for operation on the public streets, highways, or waterways, and vehicles with current inoperative registrations.

"Lodging house" means any building or portion thereof containing not more than five guest rooms where rent is paid in money, goods, labor, or otherwise pursuant to previous arrangements but not open to the public or transients. For the purposes of this chapter a single-family dwelling unit may contain one or two guest rooms and not be classified as a lodging house provided such dwelling meets all of the following:

1. The dwelling contains only one kitchen;

2. No food preparation appliances, including stoves, ovens, hotplates, refrigerators or sinks, are installed or located in the guest rooms;

3. Doors to guest rooms do not contain dead bolt locks and such doors only open into the interior of the dwelling unit;

4. The parcel the dwelling is located on has only one address and one mail box;

5. All vehicles owned, operated, or controlled by occupants of the dwelling shall be capable of legally parking on the parcel.

"Occupiable space" means a room or enclosed space designed for human occupancy in which individuals congregate for amusement, educational or similar purposes, or in which occupants are engaged at labor, and which is equipped with means of egress, light and ventilation.

"Owner" means any person, his/her heirs, executors, administrators or assigns, agent, firm, partnership or corporation having or claiming any legal or equitable interest in the property in question as listed on the last available equalized tax assessment roll for Alameda County.

"Premises" means every house, dwelling, building, structure, enclosure, business establishment, lot, yard, location, place, alley, parkway, sidewalk, street, public way, and every vehicle.

"Property" means all residential, industrial, commercial, agricultural, open space, and other real property, including but not limited to, front yards, side yards, driveways, walkways, alleys, and sidewalks, and shall include any building or other structure, whether fixed or moveable, located on such property.

"Putrescible" means a substance that is or is liable to become putrid or rotten.

"Refuse" and "rubbish" means all putrescible and/or nonputrescible solid or liquid wastes, except sewage, whether combustible or noncombustible.

"Responsible party" means the owner, agent, manager, lessee, tenant, or any other person having control or possession of the property, whether for residential, industrial, commercial or other purpose.

"Sewage" means any liquid waste matter in suspension or containing animal or vegetable liquids in suspension or solution and may include contaminating chemicals in solution, including but not limited to waste matter which is required to be disposed of through or should pass through sanitary sewers and is composed of human or animal feces, urine, paper, and any other such waste materials.

(Ord. 392 § 1 (part), 2003)

(Ord. No. 466, § 3, 5-23-2013)

For the purposes of Title 7, "nuisance" and/or "nuisance condition" means any condition or use of premises which is detrimental to the property of others or which poses an immediate or potential health, safety, or fire hazard, or which violates the codes adopted by the city. This includes, but is not limited to, any of the following:

A. Storing, keeping or maintaining weeds, dry or dead vegetation, paper or paper products, wood or wood products, and other combustible and noncombustible refuse.

B. Storing, keeping or maintaining vehicle parts, scrap metal, bottles, cans, wire, firewood, boxes, containers, wood and building materials and abandoned, discarded or unused household furniture, appliances toys, personal or household items, tools, machinery, equipment or parts thereof.

C. Storing, keeping of or maintaining accumulations of rubbish, refuse, trash, junk, garbage, litter and other waste or discarded material.

D. Storing, parking, keeping or maintaining wrecked, dismantled, inoperative or abandoned vehicles or vessels, as described in Section 7.04.020(K), on private property which are in view from the public street or from normally occupied locations or neighboring properties. The mere covering of a vehicle with a tarpaulin or other temporary cover or structure does not constitute removal of the vehicle from view.

This subsection shall not apply to vehicle storage yards, automobile dismantling yards, wrecking yards, or approved vehicle repair facilities when such vehicles are actually in the process of being repaired and not being used as a source for parts.

E. The existence of any condition which constitutes a fire hazard as defined in the California Fire Code, and any condition related to fire protection as defined in the state of California Health and Safety Code.

F. The existence of any building or construction project which is abandoned, partially destroyed, or left in a state of partial construction for an unreasonable period of time. A "state of partial construction for an unreasonable period of time" exists if the project has been under construction for more than one year, its appearance from the public street or neighboring properties substantially detracts from the appearance of the immediate neighborhood, and there is no valid active building permit authorizing the construction work.

G. The city council hereby finds and declares that the existence of unoccupied and/or abandoned dwellings constitutes a serious health and safety hazard to persons and property. Both children and adults find such unoccupied dwellings an attractive location for vandalism, trespassing, unlawful camping and occupation, and criminal activity. Without the presence of lawful occupants, such structures pose an unacceptably high risk of fire. Lack of regular maintenance and care results in unhealthful and unaesthetic conditions that cause the diminution of neighboring property values. Therefore, the existence of any residence, dwelling, dwelling unit or lodging house which has been abandoned or unoccupied for a three hundred sixty-five day period or has not been used for its legal and intended purpose for a three hundred sixty-five day period are deemed nuisances subject to abatement pursuant to this title. Occupancy for less than thirty consecutive days and uses that occur within any three hundred sixty-five day period but are of duration of less than thirty days shall, for the purpose of this title, not qualify as meeting the use requirements of this section.

H. The existence of any dangerous building or structure upon the premises is deemed a nuisance subject to abatement pursuant to this title. A dangerous building or structure is defined as having any or all of the conditions or defects hereinafter described provided that such conditions or defects exist to the extent that the life, health, property, or safety of the public or its occupants are endangered:

1. Any door, aisle, passageway, stairway, or other means of exit is not of sufficient width or size or is not so arranged as to provide safe and adequate means of exit in case of fire or panic.

2. The walking surface of any aisle, passageway, stairway or other means of exit is so warped, worn, loose, torn or otherwise unsafe as to not provide safe and adequate means of exit in case of fire or panic.

3. Any portion thereof has been damaged by fire, earthquake, wind, flood or by any other cause, to such an extent that the structural strength or stability thereof is materially less than it was before such catastrophe and is less than the minimum requirements of the Building Code for new buildings of similar structure, purpose or location.

4. Any portion or member or appurtenance thereof is likely to fail, or to become detached or dislodged, or to collapse and thereby injure persons or damage property.

5. Any portion thereof has cracked, warped, buckled, or settled to such an extent that walls or other structural portions have materially less resistance to winds or earthquakes than is required in the case of similar new construction.

6. The building or structure, or any portion thereof, because of (i) dilapidation, deterioration or decay; (ii) faulty construction; (iii) the removal, movement, or instability of any portion of the ground necessary for the purpose of supporting such building; (iv) the deterioration, decay, or inadequacy of its foundation; or (v) any other cause, is likely to partially or completely collapse.

7. The building or structure, or any portion thereof, for any reason, is manifestly unsafe for the purpose for which it is being used.

8. The exterior walls or other vertical structural members list, lean, or buckle to such an extent that a plumb line passing through the center of gravity does not fall inside the middle one third of the base.

9. The building or structure has been so damaged by fire, wind, earthquake or flood, or has become so dilapidated or deteriorated as to become (i) an attractive nuisance to children; (ii) a harbor for vagrants, criminals, or immoral persons; or as to (iii) enable persons to resort thereto for the purpose of committing unlawful or immoral acts.

10. Any building or structure has been constructed, exists or is maintained in violation of any specific requirement or prohibition applicable to such building or structure provided by the building regulations of this jurisdiction, as specified in the California Building Code, Title 15 of the Newark Municipal Code, or of any law or ordinance of this state or jurisdiction relating to the condition, location, or structure of buildings.

11. A building or structure, used or intended to be used for dwelling purposes, because of inadequate maintenance, dilapidation, decay, damage, faulty construction or arrangement, inadequate light, air or sanitation facilities, or otherwise, is determined by the building official to be unsanitary, unfit for human habitation, or in such a condition that is likely to cause sickness or disease.

12. Any building or structure, because of obsolescence, dilapidated condition, deterioration, damage, inadequate exits, lack of sufficient fire-resistive construction, faulty electric wiring, gas connections or heating apparatus, or other cause, is determined by the building official or fire marshal to be a fire hazard.

13. Electrical wiring and/or equipment that was installed in violation of code requirements in effect at the time of installation or that has not been maintained in good condition or that is not being used in a safe manner.

14. Plumbing piping and/or fixtures that were installed in violation of code requirements in effect at the time of installation or that has not been maintained in good condition or that is not being used in a safe manner.

15. Mechanical equipment that was installed in violation of code requirements in effect at the time of installation or that has not been maintained in good condition or that is not being used in a safe manner.

16. The horizontal and/or vertical weather protection of a structure, because of obsolescence, dilapidated condition, deterioration, damage, lack of painted surfaces, faulty construction or other cause, allows moisture to enter the structure.

17. Any building or structure is in such a condition as to constitute a public nuisance known to the common law or in equity jurisprudence.

I. The existence of any building or portion thereof used as a dwelling, dwelling unit, apartment, guest room or lodging house defined as having any or all of the conditions or defects hereinafter described provided that such conditions or defects exist to the extent that the life, health, property, or safety of the public or its occupants are endangered:

1. Lack of or nonfunctioning water closet in a dwelling unit or lodging house.

2. Lack of or nonfunctioning kitchen sink, including lack of hot and cold running water to sink in a dwelling unit or lodging house.

3. Lack of or nonfunctioning bathtub or shower in a dwelling unit or lodging house, including lack of hot and cold running water to bathtub or shower.

4. Lack of or nonfunctioning lavatory in a dwelling unit or lodging house, including lack of hot and cold running water to lavatory.

5. Lack of or nonfunctioning heating system in a dwelling unit or lodging house capable of heating all habitable spaces to seventy degrees Fahrenheit at a point three feet above the floor.

6. Lack of or improper operation of habitable space ventilation equipment.

7. Lack of minimum amounts of ventilation in a dwelling unit or lodging house in bathrooms and habitable spaces. Minimums shall be those amounts required by the code under which the structure was built or current code if installation or modification occurred without permits or inspections.

8. Lack of minimum amounts of natural light in a dwelling unit or lodging house in habitable spaces. Minimums shall be those amounts required by the code under which the structure was built or current code if installation or modification occurred without permits or inspections.

9. Lack of or nonfunctioning permanent light fixture in a dwelling unit or lodging house in each bathroom, kitchen, and hall.

10. Lack of or nonfunctioning of a single electrical receptacle in a dwelling unit or lodging house in each bathroom, laundry room, and habitable space.

11. Infestation of insects, vermin, or rodents as determined by the health officer or building official.

12. General dilapidation or improper maintenance.

13. Lack of functioning connection to required sewage disposal system.

14. Any plumbing fixture which is cracked, chipped, or does not function.

15. Any plumbing drain pipe which leaks, is blocked, or does not convey sanitary waste to a required sewage disposal system.

16. Any potable water supply pipe which leaks, is blocked, or allows rust to enter the water supply.

17. Lack of or nonfunctioning cooking appliance in a dwelling unit. The meaning of "functioning" shall include, but not be limited to: all burners and heating elements operate correctly at all settings; all knobs and controls are present and operating; and all utility connections are in compliance with current codes.

18. Presence of a refrigerator or freezer with a door which cannot be opened from the inside.

19. Lack of a mounted and displayed, functioning and non-expired fire extinguisher in a commercial, industrial, hotel, motel, or apartment building (excluding the interior of individual dwelling units).

20. Lack of or nonfunctioning code required smoke and/or heat detectors.

21. Lack of or the nonfunctioning of at least one smoke detector in a dwelling unit or lodging house located in the hallway leading to the sleeping rooms.

22. Any window in a dwelling unit or lodging house which does not open and close completely when designed to do so, has missing or cracked glazing or has defective or missing security latches.

23. Any exterior door in a dwelling unit or lodging house which does not open and close properly, is missing locks or a locking device which does not function to secure the dwelling, or which lacks adequate weatherstripping.

24. Lack of or nonfunctioning water heater in a dwelling unit or lodging house. Nonfunctioning shall mean: does not heat water to one hundred ten degrees Fahrenheit, lacks or has a nonfunctioning temperature and pressure relief valve, leaks gas or water, or has insufficient combustion air.

25. Floor coverings in a dwelling unit or lodging house with holes, tears, rips, or which is not attached to the floor structure that pose a tripping hazard.

26. Interior walls in a dwelling unit or lodging house which have holes in drywall or loose wall materials.

27. Electrical fixtures, switches, or receptacles which are missing cover plates.

J. Any building, or a portion thereof, which is open or maintained for the use, storage, manufacture, or distribution of "controlled substances" as defined in the State of California Health and Safety Code.

K. Any vehicle or portion thereof and/or any equipment located on private or public property or in the public right-of-way, or any nonresidential building or structure and being used for living or sleeping purposes. Except that a house car, trailer coach, or fifth wheel trailer located on an agriculturally zoned parcel of land that is actually and exclusively being used for active farming shall not be considered a nuisance if used for living or sleeping purposes by the watchman or caretaker thereof. Any such vehicle, portion of vehicle, equipment or nonresidential building or structure that is connected to electrical, water or sewage utilities by any means whatsoever, including extension cords or hoses shall create a rebuttable presumption that it is being used for living or sleeping purposes.

L. Any condition dangerous to children or others, including but not limited to: unsecured structures; fences or portions of fences in disrepair, leaning and/or partially down; abandoned, broken, unprotected and/or unsecured equipment, machinery and household appliances; unprotected and/or unsecured pools, ponds, or excavations.

M. The existence of any body of stagnant water or other liquid in which mosquitoes or other insects may breed, or which may or does generate noxious or offensive gases or odors.

N. The existence of any improperly contained accumulation of manure, human or animal feces, or garbage which may serve as a breeding ground for flies, mosquitoes, rodents or other vermin, or which may or does generate noxious or offensive odors.

O. The existence of sewage, chemical, petroleum commercial or industrial product, process or waste which has the potential to leak into the groundwater or may or does generate noxious or offensive odors.

P. The existence of any barbed wire, razor ribbon, glass, nails or other sharp objects on, in, or affixed to any structure, fence, or wall, or any electric fences in or adjacent to a residential district.

Q. The existence of any advertising sign, banner, balloon, flags (other than those of the United States of America and the state of California), inflated advertising device, and/or the display of retail or manufactured products on private property or in the public right-of-way, which is not in compliance with the Newark Municipal Code.

R. The existence of graffiti on any building, fence, wall, equipment, motor vehicle, trailer, sign, or other object on private or public property or in the public right-of-way.

S. The existence of a use, business or activity in any zoning district that does not conform with the requirements or district regulations of the zoning district in which it is located as set forth in the Newark Municipal Code; or which does not conform with any discretionary permit or review approval or the conditions imposed upon such permit or approval by the planning commission and city council; or which does not conform with any law, ordinance or regulations adopted by the city applicable to the property.

T. The existence of smoke, fumes, gas, dust, soot, cinders, or other particulate matter in such quantities as to render the occupancy or use of property uncomfortable to a reasonable person or persons, or unreasonable amounts of which are deposited upon the real or personal property of another person or persons.

U. Storing, parking, keeping or maintaining of operative vehicles, boats, vessels, trailers, or camper shells on any portion of a required front yard area other than the driveway or immediately adjacent paved driveway extension as permitted in NMC 17.16.116.

V. Storing, keeping, or maintaining trash cans, refuse cans, recyclable containers, and/or other such containers in the front yard area or in any other area visible from the public right-of-way at times other than the day of collection or before six p.m. the day prior to the day of collection.

W. The existence of any building, or a portion thereof, used by members of a criminal street gang for the purpose of the commission of: robbery; unlawful homicide or manslaughter; the sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances; shooting at an inhabited dwelling or occupied motor vehicle; discharging or permitting the discharge of a firearm from a motor vehicle; arson; the intimidation of witnesses and victims; grand theft; burglary; rape; looting; money laundering; kidnapping; mayhem; aggravated mayhem; torture; felony extortion; felony vandalism; car jacking; sale, delivery, or transfer of a firearm. As used in this chapter "criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated above having a common name or common identifying sign or symbols, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

X. The existence of signs pertaining to enterprises or occupants that are no longer using a property that have not been removed within thirty days after the vacation of the premises by the enterprise or occupant. Any such sign, as well as temporary signs, permitted under NMC 17.52 not removed within the required time period.

Y. The existence of any condition or use which poses a threat to the public health or safety.

Z. Any condition or use existing on any property, building or structure that violates this code, provisions of state or federal law that may be enforced by the city, or any rules, regulations, permits or approvals issued by or applicable to the city, or which materially deviates from representations made in applications to the city for permits or approvals that induced, in part or in whole, the city to approve a permit or approval.

(Ord. 392 § 1 (part), 2003; Ord. No. 466, § 4, 5-23-2013)