Chapter 4-17 — DUST CONTROL—NUISANCE

Article 1 Purpose and Intent

The purpose of this Chapter is to provide supplemental legal authority to regulate the use of real property which, in the determination of the City made in accordance with the provisions of this Chapter, results in the creation of fugitive dust in such amounts and in such a manner as to constitute a public nuisance and/or results in the dispersal of mud, dirt or crushed rock on the public right-of-way.

The City Council hereby finds and declares that fugitive dust and the dispersal on the public right-of-way of mud, dirt and crushed rock resulting from the industrial and commercial use of real property constitutes a hazard to the public health, causes the depreciation of real estate values, impairs the ability of local industry to maintain precision manufacturing tolerances, reduces tax receipts by impairing the tax base, causes blight, imposes costs for additional public services and maintenance of public rights of way, creates traffic hazards and is otherwise a public nuisance.

The provisions of this Chapter shall not be construed to conflict with the provisions of the Clean Air Act (42 United States Code Section 7401 et seq.) and the provisions of Parts 3, 4 and 5, Division 26 of the California Health and Safety Code (commencing with Section 40000 et seq.). To the extent of any such conflict, it shall be resolved in favor of federal and state statutory authority.

The provisions of this Chapter shall not apply to any property used for agricultural, residential or recreational — open space purposes. Classification of any property in the Residence Districts, Commercial Recreation District or Nursery District under the provisions of the Zoning Code of the City of San Leandro shall be prima facie evidence of exemption under this Chapter.

The following words and phrases are defined as follows:

"All-weather surface" is that base treatment or surface material which in the opinion of the City Council upon competent evidence thereof, will to the extent feasible prevent the entrainment of fugitive dust from the source.

"Fugitive dust" shall mean solid particulate matter emitted from any source other than a stack or chimney and created by natural forces, construction work, mechanical processes, or movement of motor vehicles.

"Particulate matter" shall mean any material, except unadulterated water, that exists in a finely divided form as a liquid or solid.

"Source" shall mean that real property which is the point of entrainment of fugitive dust.

Article 2

Abatement

It shall be unlawful for any person owning, leasing, occupying or having charge of any premises in this City to conduct any enterprise on such premises in such manner which in the determination of the City Manager is directly resulting in fugitive dust, mud, dirt, crushed rock or other similar material being discharged, carried or entrained from the property to the extent that any of the following conditions result:

(a) Injury, detriment, nuisance or annoyance to the public;

(b) Danger to the comfort, repose, health or safety of the public;

(c) Injury or damage to business or property;

(d) Hazardous conditions on the public right-of-way;

(e) Blight or the impairment of property values;

(f) Increased costs for maintenance of the public right-of-way; or

(g) Any condition set forth in Section 4-17-105 of this Chapter.

Whenever the City Manager has inspected or caused to be inspected any premises and has found and determined there is reasonable cause to believe that such premises are in violation of Section 4-17-200, he or she shall give written notice to the owner of record of the premises, containing:

(a) The street address and such other description as is required to identify the source;

(b) A statement describing the conditions believed to be in existence in violation of Section 4-17-200;

(c) A statement of the action required to be taken to abate the conditions; and

(d) A request to the owner to, within 10 days, meet with or communicate with the City Manager to discuss abatement.

The above notice shall be sent certified mail to the record owner as shown on the latest equalized assessment roll.

In the event said owner shall fail, neglect or refuse to respond to the notice within the time provided in Section 4-17-205, or if it appears after the expiration of the 10 days, that negotiations are not proceeding in a satisfactory manner, the City Manager shall issue a notice ordering the owner to appear at a hearing before the City Council to determine whether any of the conditions specified in Section 4-17-200 exist on the premises and, if such are found to exist, to show cause why the premises should not be declared a public nuisance and the nuisance abated by the City. This notice shall be served upon the owner by the City Clerk not less than 10 days prior to the hearing date.

Notice of hearing shall be served in person or by certified mail to the record owner as shown on the latest equalized assessment roll. Service shall be deemed complete at the time notice is personally served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any proceedings hereunder. Notice shall be substantially in the format set forth below:

"NOTICE OF HEARING ON ABATEMENT OF NUISANCE

This is a notice of hearing before the City Council to determine whether any of the conditions specified in Section 4-17-200 and set forth below exist in violation of said section on the premises situated in the City of San Leandro, State of California, known and designated as (street address) __________ in said City and more particularly described as (assessor's parcel number) ___________ and if the City Council so finds, to provide you the opportunity to show cause why the premises should not be declared a public nuisance and the nuisance abated by the City. If said premises, in whole or in part, are found to contain any of said conditions and the conditions are declared to constitute a public nuisance, and if the same is not promptly abated by the owner, such nuisance may be abated by municipal authorities, in which case the costs of such abatement will be assessed upon such premises and such costs, together with interest thereon, will constitute a lien upon such premises until paid; or you may be cited for violation of the provisions of the Municipal Code and subject to a fine. Said alleged conditions consist of the following:

The methods of abatement available are:

All persons having an interest in said matters may attend the hearing and their testimony and evidence will be heard and given due consideration. Dated this __________ day of ____20.

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City Manager Time and Date of Hearing: _______________ Location of Hearing: ________________ "

At the time stated in the notice, the City Council shall hear and consider all relevant evidence, objections or protests, and shall receive testimony relative to such alleged public nuisance and to proposed rehabilitation, demolition or repair of such property. Said hearing may be continued from time to time.

All hearings shall be tape recorded.

Hearings need not be conducted according to the technical rules of evidence.

Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. Any relevant evidence shall be admitted if it is the type of evidence on which seasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.

Oral evidence shall be taken only on oath or affirmation. Irrelevant and unduly repetitious evidence shall be excluded.

Upon the conclusion of the hearing, the Council shall determine whether any of the conditions specified in Section 4-17-200 exist on the premises in violation of said section. If the Council so finds, it shall adopt a resolution declaring such property to be a public nuisance, setting forth its findings and ordering the abatement of the same by having such property rehabilitated, repaired or having installed or constructed an all-weather surface in the manner and means specifically set forth in said resolution. The resolution shall set forth the times within which such work shall be commenced and completed by the owner. The decision and order of the Council shall be final.

A copy of the resolution of the Council ordering the abatement of said nuisance shall be served upon the owner(s) of said property in accordance with the provisions of Section 4-17-215. Upon abatement in full by the owner, the proceedings hereunder shall terminate.

If such nuisance is not abated as ordered within said abatement period, the Council may, among other things, direct the City Manager or designee to cause the same to be abated by City employees or private contract. The City Manager and designees are expressly authorized to enter upon said property for such purposes.

Article 3

Lien Procedure

The City Manager shall keep an account of the cost (including incidental expenses) of abating such nuisance on each separate lot or parcel of land where the work is done by the City and shall render an itemized report in writing to the City Council showing the cost of abatement, including the rehabilitation, demolition or repair of said property, including any salvage value relating thereto; provided that before said report is submitted to the City Council, a copy of the same shall be posted for at least 10 calendar days upon such property, together with a notice of the time when said report shall be heard by the City Council for confirmation. A copy of said report and notice shall be served upon the owners of said property in accordance with the provisions of Section 4-17-215 at least 10 calendar days prior to submitting the same to the City Council. Proof of said posting and service shall be made by affidavit filed with the City Clerk. The term "incidental expenses" shall include, but not be limited to, the actual expenses and costs of the City in the preparation of notices, specifications and contracts, and in inspecting the work, and the costs of printing and mailing required hereunder.

The total cost for abating such nuisance, as so confirmed by the City Council, shall constitute a special assessment against the respective lot or parcel of land to which it relates, and upon recordation in the office of the County Recorder of a Notice of Lien, as so made and confirmed, shall constitute a lien on said property for the amount of such assessment.

After such confirmation and recordation, a certified copy of the Council's decision shall be filed with the Alameda County Auditor-Controller on or before August 1 of each year, whereupon it shall be the duty of said Auditor-Controller to add the amounts of the respective assessments to the next regular tax bills levied against said respective lots and parcels of land for municipal purposes and thereafter said amounts, together with interest on said amounts at ten per cent (10%) per annum from the date of recordation, shall 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.

In the alternative, after such recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law.

Such Notice of Lien for recordation shall be in form substantially as follows:

"NOTICE OF LIEN

(Claim of City of San Leandro)

Pursuant to the authority vested by the provisions of Section ___________ of the San Leandro Municipal Code, the City Manager of the City of San Leandro did on or about the ______ day of ___________ 20___, cause the property hereinafter described to be rehabilitated or the improvement on the property hereinafter described, to be repaired or demolished in order to abate a public nuisance on said real property; and the City Council of the City of San Leandro did on the _____ day of , 20, assess the cost of such rehabilitation, repair or demolition upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of San Leandro does hereby claim a lien on such rehabilitation, repair, or demolition in the amount of said assessment, to wit: the sum of $_________ and the same, together with interest thereon at 10% (ten per cent) per annum from the date of recordation, shall be a lien upon said real property until the same has been paid in full and discharged of record. The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of San Leandro, County of Alameda, State of California, and particularly described as follows:

(description) Dated this __________day of ___20 .

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City Manager, City of San Leandro"

Article 4

Miscellaneous(Legislative History: Ordinance No. 83-024, 9/12/83; Ordinance No. 2002-032, 12/9/02 (Section 4-17-400))

INFRACTION.

Nothing in this Chapter shall be deemed to prevent the City Council from enforcing the terms of this ordinance by ordering the commencement of a civil proceeding, nor to preclude the City from pursuing any other remedy available under Chapter 1-12 or any other applicable law. Violation of the provisions of this Chapter constitutes an infraction punishable in accordance with the provisions of Section 1-12-200 of this Code.