Chapter 17.152 — ENFORCEMENT

The provisions of this Chapter shall be known as the Enforcement Regulations. The purpose of these regulations is to ensure compliance with the zoning regulations. These provisions shall apply to the enforcement of the zoning regulations, but shall not be deemed exclusive.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9900)

All officials, departments, and employees of the city vested with the authority to issue permits, certificates, or licenses shall adhere to, and require conformance with, the zoning regulations.

(Prior planning code § 9901)

A.

Infractions. Any person who violates or causes or permits another person to violate any provision of the zoning regulations is guilty of an infraction unless otherwise provided.

B.

Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the zoning regulations is committed, continued, permitted, or caused by such violator and shall be punishable accordingly.

C.

Any Violation a Public Nuisance. In addition to the penalties provided in this Section, any use or condition caused or permitted to exist in violation of any of the provisions of the zoning regulations shall be and is declared to be a public nuisance and may be summarily abated as such by the city.

D.

Injunction as Additional Remedy. Any violation of any provision of the zoning regulations shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.

E.

Penalties. Any person convicted of an infraction under the provisions of this Section shall be punishable by a fine to the maximum permitted under state law. Any violation beyond the third conviction within a one- year period may be charged by the City Attorney or District Attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under state law.

F.

Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction, abatement, and prosecution of the violation. Reinspection fees to ascertain code compliance of previously noticed or cited violations shall be charged against the property. Fees shall be in the amount described in the master fee schedule for charged reinspection by the Housing Conservation Division of the Office of Community Development. The Housing Division Official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property in the manner as set forth by Section 15.08.130 of the Oakland Housing Code.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9902)

Pursuant to Section 836.5 of the California Penal Code, the Planning Investigator and the supervising Housing Representatives of the Housing Conservation Division of the Office of Community Development or their authorized agents are authorized to enforce the provisions of the zoning regulations and arrest violators thereof.

(Prior planning code § 9903)

Whenever they shall have cause to suspect a violation of any provision of the zoning regulations, or whenever necessary to the investigation of an application for or revocation of any zoning approval under any of the procedures prescribed in the zoning regulations, the officials responsible for enforcement of the zoning regulations, or their duly authorized representatives, may enter on any site or into any structure for the purpose of investigation, provided they shall do so in a reasonable manner. No secured building shall be entered without the consent of the owner or occupant. An owner or occupant or agent thereof who refuses to permit such entry and investigation shall be guilty of violating the zoning regulations and subject to the penalties prescribed in Section 17.152.030.

(Prior planning code § 9904)

The provisions of Sections 17.152.060 through 17.152.230 shall outline the process by which zoning revocation hearings are required to be conducted.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12233 § 3 (part), 2000)

A.

Any member of the public, city official, including any City Councilmember, City Planning Commissioner or city employee, may file a complaint with the City Planning and Building Department and request that revocation proceedings be commenced under this Chapter to revoke or amend any land use-related approval granted, or land use permit held or issued, including subdivisions. However, this Chapter shall not apply to Deemed Approved Alcoholic Beverage Sales Regulations (Chapter 17.156) and Deemed Approved Hotel and Rooming House Regulations (Chapter 17.157) as those Chapters have specific revocation procedures.

B.

All revocation complaints shall identify the property that is the subject of the complaint and shall state facts and circumstances which justify commencement of revocation proceedings.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

Upon receiving a revocation complaint from the public, city official, or city employee that a violation of the zoning regulations, any prescribed condition of approval or public nuisance exists on or is emanating from any property that is the subject of a zoning permit issued pursuant to one of the sections of the Zoning Regulations listed in Section 17.152.070, the City Planning Director shall cause said complaint to be reviewed by the City Attorney and investigated by a City Planner. The City Planning Director, within ten (10) days of receiving any such complaint, shall send a copy of the complaint to the property owner and permit holder, if the latter is different from the property owner. The City Planner, with advice from the City Attorney, shall determine in writing whether sufficient evidence exists to set a revocation hearing. Sufficient evidence exists if there is substantial evidence that a violation of the zoning regulations, any prescribed condition of

approval or public nuisance exists on, or is emanating from any property that is the subject of a Zoning permit issued pursuant to one of the sections of the Zoning Regulations listed in Section 17.152.070. Copies of the determination shall be sent to the complainant, the property owner, permit holder, if the latter is different from the property owner, any affected neighborhood group(s) and any other person who has requested notice of any action on that complaint or that address and, as soon as the same becomes technologically feasible, posted on the city's web site.

Revocation complaints shall be reviewed, investigated and a determination regarding setting a hearing shall be made by the City Planner within twenty (20) days of the date the revocation complaint is received by the Planning and Building Department. If no decision regarding setting a public hearing is made within the required twenty (20) day period, the complainant, within ten (10) days of the date the city's determination was required to be made, may make a written demand to the City Planning Director that a hearing be set. Upon receipt of any such demand, the City Planning Director immediately shall set the matter for hearing before a Hearing Officer at the next available date. The matter shall then be heard and decided by the Hearing Officer in the same manner and time that appeals are heard.

If a determination is made that sufficient evidence does not exist to set a revocation hearing, the complainant, within ten (10) days of the date of the City's determination, may appeal the City Planner's determination to a City Hearing Officer. If no proper appeal is made, the City Planner's decision shall be final. Upon receipt of any such appeal, the matter shall be scheduled before the Hearing Officer at the next available date and the Hearing Officer shall determine whether sufficient evidence exists to set a revocation hearing and may grant or deny the appeal. The Hearing Officer in making his/her decision on the appeal shall not be required to hear witnesses or accept new evidence not considered by the City Planner.

of any such appeal, the matter shall be scheduled before the Hearing Officer at the next available date and the Hearing Officer shall determine whether sufficient evidence exists to set a revocation hearing and may grant or deny the appeal. The Hearing Officer in making his/her decision on the appeal shall not be required to hear witnesses or accept new evidence not considered by the City Planner.

In all cases the Hearing Officer's decision on the appeal shall be made within twenty (20) days of the date of the appeal and shall be final. If the appeal is granted, the matter shall be returned to the City Planning Director for public hearing scheduling before a different hearing officer. The City Planning Director shall set the matter for hearing at the next available hearing date. If the appeal is denied, or the City Planner's determination is sustained, the Hearing Officer's decision shall be final and not appealable. In each instance, the Hearing Officer's determination shall be in writing and shall be supported by findings.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

If the City Planner or the Hearing Officer determines that sufficient evidence exists to set a revocation hearing, the City Planner, with assistance from the City Attorney, immediately shall prepare a revocation administrative record. The revocation administrative record shall include a clear statement of each alleged violation and/or the nature of any public nuisance that is occurring on or emanating from the property that is the subject of the revocation proceedings. The revocation administrative record also shall include a general summary of the evidence that will be used by the city at the revocation hearing to prosecute the alleged violations. At the discretion of the Hearing Officer, and upon a good cause request by the city, the revocation administrative record may be amended.

(Ord. 12233 § 3 (part), 2000)

Not less than seventeen (17) days prior to the revocation hearing, written notice shall be given to the complainant, property owner, and permit holder, if the latter is different from the property owner, of the date, time and place of the revocation hearing. The time and place of the revocation hearing shall be set, if at all possible, between 7:00 p.m. and 10:00 p.m. during the week. Notice also shall be given to other interested individuals, entities and neighborhood organizations that have requested notification, and to similar individuals and groups, as the Zoning Manager deems necessary. The revocation administrative record shall be mailed with the notice to the property owner and permit holder. Notices also shall be appropriately posted on the property that is the subject of the revocation proceedings. All posted and mailed notices to individuals and entities other than the owner and permit holder shall indicate the availability of the revocation administrative record. Notice by mail is deemed given on the date it is properly addressed and placed in the U.S. mail system. At the discretion of the Hearing Officer, and upon a good cause request by the city, the revocation administrative record may be amended.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

The City Planning Director shall appoint an administrative Hearing Officer to conduct the revocation proceedings. The administrative Hearing Officer who conducts the revocation proceedings shall not be any individual who reviewed or investigated the complaint, determined the sufficiency of the evidence to set the hearing, prepared the revocation administrative record, or gave notice of the revocation proceedings. A Deputy City Attorney shall be appointed by the City Attorney to advise the administrative Hearing Officer. The Advisor to the Hearing Officer shall not be the same attorney who assists the City Planner, or who presents the city's case to the Hearing Officer.

(Ord. 12233 § 3 (part), 2000)

The revocation hearing shall be conducted by the Hearing Officer appointed by the Planning Director. Formal rules of evidence shall not apply to the conduct of the hearing. Witnesses may be sworn at the discretion of the Hearing Officer. The Hearing Officer, for good cause, shall have the authority and discretion to permit examination of witnesses. The city's case shall be presented to the Hearing Officer by a Deputy City Attorney and a City Planner. The property owner, permit holder and other interested individuals or entities may be represented by counsel at the hearing.

The revocation hearing shall be public and members of the public shall be given a reasonable opportunity to testify and present evidence. Evidence may be submitted in writing to the Hearing Officer by any interested individual or entity. Copies of written evidence submitted to the Hearing Officer shall be provided to any individual or entity requesting copies. The hearing may be continued from time-to-time. The continued hearing time, if at all possible, also shall be set between 7:00 p.m. and 10:00 p.m. during the week.

(Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

The decision of the Hearing Officer shall be in writing and shall be supported by findings. The Hearing Officer's decision shall be made within thirty (30) days of the date the hearing is opened by the Hearing Officer, unless an extension is granted in writing by the complainant, property owner and permit holder. If a decision is not made by the Hearing Officer within thirty (30) days, any interested individual or entity, within ten (10) days of the date the Hearing Officer was required to make a decision, may lodge a letter of complaint with the City Planning Commission. There shall be no fee for this letter complaint. The Commission shall, upon receipt of the Complaint, order the hearing to be completed and a written decision rendered within ten (10) days of the date of the Commission's order. Copies of the decision shall be sent to the complainant, the property owner, permit holder, if the latter is different from the property owner, any affected neighborhood group(s) and any other individual or entity who has requested notice of any action on that complaint or that address and, as soon as the same becomes technologically feasible, posted on the city's web site. The Hearing Officer's decision shall become final ten (10) calendar days after the date of the decision, unless appealed to the City Planning Commission in accordance with Section 17.152.150. In the event the last day of appeal falls on a weekend or holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal.

(Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

In the event the Hearing Officer, or, on appeal, the City Planning Commission or the City Council, determines there has been a violation of any provisions of the Zoning Regulations, or upon evidence that there has been a failure to comply with any prescribed condition of approval, or a determination is made that a public nuisance exists on or is emanating from the property that is the subject of the revocation proceedings, the Hearing Officer, or, on appeal, the City Planning Commission or City Council, may amend or revoke any zoning permit associated with the property, add additional conditions of approval, abate the public nuisance, impose fines and/or penalties and/or issue any other reasonable remedial order to address the violations, failures and/or public nuisance. All penalties and fines imposed by the Hearing Officer, City Planning Commission or City Council shall be set forth in a written decision.

(Ord. 12233 § 3 (part), 2000)

If the Hearing Officer's decision is properly appealed to the City Planning Commission, the City Planning Director, upon receipt of a valid appeal, shall forward a complete Hearing Officer hearing record, including a transcript of the Hearing Officer proceedings and the Hearing Officer's written decision, to the City Planning Commission. The Hearing Officer's record of proceedings shall be forwarded to the City Planning Commission prior to the date the Commission hears the appeal. The appeal hearing before the Commission shall not be a de novo hearing.

Any appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Hearing Officer or wherein his/her decision is not supported by the evidence in the record. Upon receipt of such appeal, the Secretary to the Commission shall set the date for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the appellant, any adverse individuals and/or entities, or the attorney, spokesperson, or representative of such individual or entity, other interested groups and neighborhood associations that have requested notification; and to similar groups and

individuals as the Secretary deems appropriate, of the date, time and place of the hearing on the appeal, and, as soon as the same become technologically feasible, post the date, time and place of the hearing on the city's web site. Notice of the appeal shall be posted on the property.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

A.

In its review of the appeal, the City Planning Commission shall consider whether:

There were procedural or substantive errors by the Hearing Officer;

The decision is supported by sufficient evidence;

Sufficient findings were made by the Hearing Officer; or,

There was other error or abuse of discretion by the Hearing Officer.

The City Planning Commission may sustain, modify or overturn the Hearing Officer's decision. The Commission's decision shall be in writing and shall be supported by findings. The Commission's decision on the appeal shall be made within thirty (30) days of the date the appeal is made. The appeal shall be considered made on the date it is received by the City.

B.

In conducting the appeal, the City Planning Commission shall be authorized to not allow any individual or entity to introduce new written, recorded or photographic evidence on appeal, unless it is shown by substantial evidence that the new evidence was improperly excluded by the Hearing Officer, or, with due diligence, the new evidence could not have been presented to the Hearing Officer. Individuals will not be allowed to call witnesses or present new testimonial evidence at the appeal hearing. However, in compliance with the Commission's standard rules, individuals and entities will be allowed to speak to the staff report. The Commission shall be authorized to limit the time spent on each appeal. The Commission also shall be authorized to refer the entire matter and/or any new evidence back to the Hearing Officer for findings of fact and recommendations. If such referral occurs, the Commission shall retain jurisdiction over the matter. The Commission's decision on the appeal shall be appealable to the City Council. The Commission's decision shall be final, unless appealed to the City Council within ten (10) days of the date of the decision.

C.

Subject to the extensions allowed by this code, if no decision is made by the Commission within the required thirty (30) day period, any interested individual or entity may appeal the Hearing Officer's decision to the City Council within ten (10) days of the date the Commission was required to make a decision. If no appeal is made within the required ten day period, the Hearing Officer's decision shall be considered final. If an appeal is properly made to the City Council, the City Council shall hear the appeal in the same manner it would hear an appeal from the City Planning Commission.

(Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

Upon receipt of the appeal, the City Council shall set the date for consideration thereof. After setting the hearing date, the City Clerk shall notify the Secretary of the Planning Commission of the receipt of the appeal and of the date, time and place set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the appellant, any adverse individual or entity, or to the attorney, spokesperson, or representative of such individual or entity; other interested groups and neighborhood associations who have requested notification; and similar groups and individuals as the Secretary deems appropriate, of the date, time and place of the hearing on the appeal, and as soon as the same becomes technologically feasible, post the date, time and place of the hearing on the city's web site. The City Council shall affirm, modify or reverse the Commission's decision. The decision of the City Council shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

A.

In its review of the appeal, the City Council shall consider whether:

There were procedural or substantive errors below;

The decision is supported by sufficient evidence;

Sufficient findings were made below; or,

There was other error or abuse of discretion below.

The appeal hearing before the City Council shall not be a de novo hearing. The City Council may sustain, modify or overturn the City Planning Commission's or Hearing Officer's decision. The City Council's decision shall be in writing and shall be supported by findings.

B.

In conducting the appeal, the City Council shall be authorized to not allow any individual or entity to introduce new, written or photographic evidence on appeal, unless it is shown by substantial evidence that the new evidence was improperly excluded by the Hearing Officer, or, with due diligence, the new evidence could not have been presented below. Individuals and entities will not be allowed to call witnesses or present new testimonial evidence at the appeal hearing. However, in compliance with the City Council's standard rules, individuals and entities will be allowed to speak on the appeal. The City Council shall be authorized to limit the time spent on each appeal. The City Council's decision shall not be appealable. The City Council's decision shall be made by resolution. The Council shall vote on the appeal within thirty (30) days after opening the hearing on appeal. If the Council is unable to decide the appeal at that meeting, it shall appear for a vote on each regular meeting of the Council thereafter until decided. However, the Council must decide the appeal within sixty (60) days of the appeal being filed. The Council shall be authorized to refer the matter or any new evidence back to the City Planning Commission for findings of fact and recommendations. If any such referral is made, the City Council shall retain jurisdiction over the matters.

(Ord. 12233 § 3 (part), 2000)

In addition to the penalties provided elsewhere in the Zoning Regulations, any public nuisance, use or condition caused or permitted to exist in violation of any city, state or federal law or regulation shall be considered a public nuisance and a violation of the Zoning Regulations, if a permit has been issued pursuant to any of the sections referenced in Section 17.152.070 to allow any activity or facility to be established or conducted on the property on which said public nuisance, use or condition exists. In addition to anyone else authorized by the Planning Code, the city's Hearing Officer, City Planning Commission and City Council shall be authorized to abate said public nuisances pursuant to the procedures set forth in Sections 17.152.060 through 17.152.170 of these regulations and/or pursuant to any other authorized procedure.

(Ord. 12233 § 3 (part), 2000)

A.

If the Hearing Officer, City Planning Commission or City Council, as part of a final decision, imposes any fine and/or monetary penalty, such fine and/or monetary penalty, in addition to being a personal obligation of the property owner and permit holder, shall constitute a special assessment against that real property that is the subject of the final decision by the Hearing Officer, City Planning Commission or City Council;

B.

In addition, any and all reasonable expenses necessarily incurred by the City Planning and Building Department, City Building Official and/or any other City department, in abating any condition determined to be a public nuisance by a final decision of the Hearing Officer, City Planning Commission or City Council,

also shall be a personal obligation of the permit holder and property owner and constitute a special assessment against the property that is the subject of the final decision.

C.

Said reasonable expenses, fines and monetary expenses, among other ways, may be collected by the city pursuant to the provisions of Subsection D. of this Section.

D.

For purposes of this Section, the personal obligation requirement shall apply to individuals and entities. The Building Official shall give the permit holder and owner of such premises a written notice showing the amount of the penalty, fine and expense and requesting payment thereof. If the amount of such penalty, time and expense are not paid to the Building Official within five (5) days after the date of such notice, the Building Official shall forward a report of the penalty, fine and expense to the City Planning Commission for a confirmation hearing.

The property owner and permit holder shall be given at least seventeen (17) days' notice of the confirmation hearing before the City Planning Commission. Said notice shall be in writing. The amount of the penalty, fine and expense shall be confirmed by the City Planning Commission, unless the Commission finds, based upon evidence in the record, that the Building Official erred in imposing or computing the amount of the penalty, fine or expense. If such error is found, the Commission may modify the amount of the penalty, fine or expense as warranted.

Upon confirmation of the penalty, fine or expense the Commission shall direct that the Building Official shall record in the Office of the County Recorder of the County of Alameda, State of California, a certificate substantially in the following form:

NOTICE OF LIEN

Pursuant to Chapter 17.152 of the Oakland Planning Code, a penalty, fine and expense in the amount of $_______ was assessed by the Building Official, and confirmed by the City Planning Commission against the herein described real property and said amount has not been paid, nor any part thereof, and the City of Oakland does hereby claim a lien upon the hereinafter described real property in said amount; the same shall be a lien upon said real property until said sum has been paid in full. The real property herein above- mentioned and upon which a lien is claimed is that certain parcel of land lying and being in the City of Oakland, County of Alameda, State of California and particularly described as follows, to wit:

  (insert description of property)

  Dated this ___ day of __, 20.

---

Building Official

City of Oakland

Such lien attaches upon recordation of the notice of lien. The description of the parcel in the notice of lien shall be that used for the same parcel as the County Assessor's map book for the current year. The County Assessor shall enter each assessment on the county tax roll opposite the affected parcel of land. The amount of the assessment shall be collected and shall be subject to the same penalties and the same procedures for foreclosure and sale, in case of delinquencies, as provided for ordinary municipal taxes.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

Fees and regulations pertaining to fees, including fees pertaining to complaints and appeals, shall be in accordance with the city's master fee schedule, provided that no city official or employee shall be required to pay a fee to file a complaint with the City Planning and Building Department. There shall be no fee for lodging a revocation complaint with the city. To make an appeal, the property owner, permit holder and any individual or entity representing the interests of the project owner or permit holder shall pay one hundred percent (100%) of the appeal fee set by the city's master fee schedule. However, to make an appeal, the complainant, or anyone representing the complainant's interest shall pay fifty percent (50%) of the appeal fee established by the city's master fee schedule.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12233 § 3 (part), 2000)

While the city shall make a good faith effort to post revocation notices and determinations on the city's web site, the city's failure to so post shall not constitute error and shall not serve as a basis for invalidating any decision made pursuant to this Chapter.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12233 § 3 (part), 2000)

The complainant, property owner, permit holder and appellant, if applicable, may agree in writing to extend any deadline contained in this Chapter.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12233 § 3 (part), 2000)