Visalia Municipal Code Art. 5 Enforcement

Except as otherwise provided herein, the provisions of this chapter shall be administered and enforced by the city manager in his or her capacity as enforcement officer. In the enforcement of this chapter such enforcement officer and his or her deputies may enter upon private or public property to examine any oak tree, and may issue citations for any violations of this chapter. (Ord. 2007-02 § 2 (part), 2007)

A. It is declared a public nuisance for any person owning, leasing, occupying or having charge of any premises in the city which has one or more oak trees located thereon to intentionally, negligently accidentally, or otherwise maintain said premises in such a manner so as to cause harm to and of said oak trees, by reason of any of the following conditions:

1. Water saturation or deprivation;

2. Nailing, screwing, stapling, bolting, or otherwise attaching boards, fences, signs, placards, posters, or other material which might cause injury to the oak tree;

3. Neglect in the pruning or trimming of overgrown, diseased, decaying, dead, or rotting limbs, branches and foliage.

B. In addition to enforcing provisions of this code that constitute a public nuisance through criminal citations, civil action or administrative enforcement, the city manager may enforce against and abate any and all nuisances declared pursuant to this section in a manner consistent with applicable provisions of the Visalia Municipal Code pertaining to the procedure for abatement of nuisances, or absent such provisions, in a manner consistent with the laws of the State of California pertaining to abatement of nuisances. (Ord. 2007-02 § 2 (part), 2007; Ord. 9907 § 2 (part), 1999)

All premises or oak trees declared to be such public nuisances and ordered to be abated may be abated by watering, conditioning the soil, constructing berms, pruning or trimming, or removing offending materials affixed to the tree which might cause injury to said tree, pursuant to the procedures set forth in this code. (Ord. 9907 § 2 (part), 1999)

A. Within thirty (30) days of the passage of said resolution, the city clerk shall cause to be conspicuously posted on the premises, where the oak tree(s) are located, a certified copy of the resolution of the city council, which said notices shall be titled: "NOTICE OF HEARING" in letters of not less than one inch in height and shall be substantially in the following form:

NOTICE OF HEARING

TO ABATE NUISANCE

Notice is hereby given that on the day of , , the City Council of the City of Visalia passed a resolution declaring that certain Oak Tree(s) located or standing upon that certain lot, piece or parcel of land, situated in the City of Visalia, State of California, known and designated as, in said City, and more particularly described as Lot No., Tract No., or name of subdivision in said City, constitutes a public nuisance and must be abated by the rehabilitation of such premises by the watering, pruning, trimming, or other methods; otherwise said nuisance will be abated by the municipal authorities of the City, in which case the cost of such rehabilitation, watering, pruning or trimming will be assessed upon the land on which said Oak Tree(s) is or are located and such cost will constitute a lien upon such land until paid. (Reference is hereby made to said resolution for further particulars.)

B. The city clerk shall cause to be served upon the owner of each of the oak tree(s) declared to be a public nuisance and sought to be rehabilitated by watering, pruning or trimming one copy of said notice and a certified copy of the resolution of the city council, in accordance with these provisions.

C. Said notices and resolutions must be posted and served as aforesaid, at least thirty (30) days before the time fixed for the hearing before the city council and proof of posting and service of such notices and resolutions shall be made by affidavit which shall be filed with the city council. (Ord. 9907 § 2 (part), 1999)

Proper service of said notice and resolution shall be by personal service upon the person owning the property as such person's name and address appears on the last equalized assessment roll, if he is found within the city limits, or if he is not to be found within the city limits, by depositing a copy of said notice and resolution in the U.S. post office properly enclosed in a sealed envelope and with the posting thereon fully prepaid. Said mail shall be registered or certified and addressed to said owner at the last known address of said owner. The service is complete at the time of deposit. (Ord. 9907 § 2 (part), 1999)

A. At the time stated in the notices, the city council shall hear and consider all objections or protests, shall receive testimony and other evidence from owners, witnesses and parties interested relative to such alleged public nuisance and as to rehabilitation of such premises by the watering, pruning or trimming, or by other abatement thereof, and may continue the hearing from time to time.

B. Upon the conclusion of said hearing, the city council shall allow or overrule any or all of said protests. If the city council finds that good and sufficient cause does exist why said premises should be rehabilitated, or oak tree(s) should be watered pruned, trimmed, or treated, the city council shall prepare and file a report of such findings with the city clerk.

C. Following said public hearing, the city council may by resolution order the director to abate said nuisance, after a period of thirty (30) days, by having the oak tree(s) watered, pruned, trimmed, treated, or the nuisance otherwise abated, and the director and his or her authorized representatives are hereby expressly authorized to enter upon private property for that purpose. (Ord. 9907 § 2 (part), 1999)

A copy of said resolution ordering the director to abate said nuisance shall be served upon the owner of said property in accordance with the provisions of this chapter and shall contain a detailed list of needed corrections. Any property owner shall have the right to have any such oak tree(s) watered, pruned, trimmed, treated, or the nuisance otherwise abated at his or her own expense, provided the same is completed prior to the expiration of the time set forth in said resolution. (Ord. 9907 § 2 (part), 1999)

The director 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 has been done and shall render an itemized report in writing to the city council showing the cost of watering, pruning, trimming, or treating said oak tree(s), and incidental expenses, on each separate lot or parcel of land; provided, that before said report is submitted to the city council, a copy of the same shall be posted for at least five days upon the premises or property upon which such oak tree(s) are situated, or the nuisance committed, together with a notice of the time when said report shall be submitted to the city council for confirmation; and a copy of said report and notice shall be served upon the owner of said property, in accordance with the provisions of this chapter at least five days prior to submitting the same to the council; proof of said posting and service shall be made by affidavit and filed with city clerk. The term "incidental expenses" shall include, but not be limited to the expenses and costs of the city in the preparation of notices, specifications and contacts, and in inspecting the work, and the costs of printing and mailing required hereunder. (Ord. 9907 § 2 (part), 1999)

At the date and time fixed for receiving and considering said report the city council shall hear and pass upon the report of the director, together with any objection or protests which may be raised by any of the owners of property liable to be assessed for the work of abating such nuisance any other interest persons. Thereupon, the city council may make such revision, correction or modification in the report as it may deem just, after which by resolution the report, as submitted, or as revised, corrected or modified, shall be confirmed; provided that said hearing or consideration may be continued from time to time. The decision of the city council on all protests and objections which may be made, shall be final and conclusive. (Ord. 9907 § 2 (part), 1999)

The amount of the costs of abating such nuisance upon any lot or parcel of land, as confirmed by the city council, shall constitute a special assessment against the respective lot or parcel of land, and as thus keep a lien on said property for the amount of such assessment. After the confirmation of said report, a copy shall be turned over to the assessor and the tax collector of the county of Tulare, acting on behalf of the city, whereupon it shall be the duty of said assessor and tax collector to add the amounts of the respective assessments to the next regular bills of taxes levied against the said respective lots and parcels for land for municipal purposes, and thereafter said amounts shall be collected at the same time and in the same manner as other municipal taxes are collected, and shall be subject to the same penalties and the same procedure under foreclosure and sale in case of delinquency as provided for other municipal taxes. (Ord. 9907 § 2 (part), 1999)

Any and all nuisances declared and abated hereunder shall be processed pursuant to the authority set forth in Sections 38771 et seq., of the Government Code of the state of California, in the manner described herein above. (Ord. 9907 § 2 (part), 1999)

A. Unless otherwise noted herein, a violation of any provision of this Chapter shall constitute a misdemeanor.

B. Any violation of any provision of Sections 12.24.060 and 12.24.070 shall be deemed an infraction and be punishable upon conviction as hereinafter set forth.

C. Any person convicted of a misdemeanor under this chapter shall be punished by a fine not to exceed one thousand dollars ($1,000.00) and/or six months in the county jail. Each day that a violation continues shall be regarded as a separate offense.

D. Any person convicted of an infraction of this chapter shall be punished by a fine not to exceed five hundred dollars ($500.00). Each day the violation continues shall be regarded as a new and separate offense.

E. Upon a person being convicted of any violation under this chapter, the court shall, in addition to, or in lieu of, the above penalties, or any other penalty provided and imposed under this chapter, order the defendant to pay a civil penalty assessment to the City of Visalia to be used in the manner described in the Oak Tree Maintenance Fund, as described in Section 12.24.110 herein, which Civil Penalty is designed as restitution to compensate the city and the community for the loss or diminution of economic, aesthetic, environmental, and property values resulting from the loss of any oak tree or portion thereof, and for the city's costs and attorney's fees in prosecuting the matter. In cases of un-permitted removal of an oak tree in violation of Section 12.24.025, such civil penalty shall be calculated by doubling the in-lieu mitigation amount as indicated in the Oak Tree Mitigation Policy implemented pursuant to Section 12.24.037, which would have been imposed for the specific tree had a permit been obtained. In cases of purposeful damage to an oak tree in violation of Section 12.24.025, the civil penalty imposed shall be calculated by multiplying one half times the in-lieu mitigation amount as indicated in the Oak Tree Mitigation Policy implemented pursuant to Section 12.24.037, which would have been imposed for the specific tree had a removal permit been obtained.

F. Any violation of any provision of this chapter may result in the immediate suspension of any permit previously issued for the construction and/or development of property upon which said violation occurred, until compliance with all mitigation measures required by this ordinance is demonstrated to the satisfaction of the city manager.

(Ord. 2007-02 § 2 (part), 2007; Ord. 9907 § 2 (part), 1999)

A. If any section, subsection, paragraph, sentence, clause, or phrase of this chapter is held to be unconstitutional or invalid or ineffective by any court or tribunal of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter, or any part thereof.

B. If the application of any provision of this chapter or any person, property, or circumstance is found to be unconstitutional or invalid or ineffective in whole or in part by any court or tribunal of competent jurisdiction, the effect of such decision shall be limited to the person, property, or circumstance immediately involved in the controversy, and the application of any such provision to other persons, properties or circumstances shall not be affected. (Ord. 2007-02 § 2 (part), 2007; Ord. 9907 § 2 (part), 1999)