Whittier Municipal Code Ch. 5.40 Unattended Donation/Collection Boxes

The purpose of these regulations is to promote the health, safety, and/or welfare of the public by providing minimum blight-related performance standards for the operation of unattended donation/collection boxes (UDCBs). This includes establishing criteria to ensure that material is not allowed to accumulate outside of the UDCBs, the UDCBs remain free of graffiti and blight, UDCBs are maintained in sanitary conditions, and residents and/or users are fully informed of those who operate the UDCBs so that they can be contacted if there are any blight-related questions or concerns.

(Ord. No. 3084, § 3, 1-23-18)

Where a conflict exists between the regulations or requirements in this chapter and applicable regulations or requirements contained in other chapters of the Whittier Municipal Code, the applicable regulations or requirements of this chapter shall prevail

(Ord. No. 3084, § 3, 1-23-18)

Failure to comply with any of the provisions of this chapter is declared to be prima facie evidence of an existing violation, a continuing blight and a declared public nuisance and shall be abated by the director in accordance with the provisions of this chapter. Any person in violation will be subject to administrative penalties, citations, civil action and/or other legal remedies.

(Ord. No. 3084, § 3, 1-23-18)

The parcel owner and the UDCB operator (operator) have joint and several liability for blight-related conditions and/or compliance with this chapter, including fees, administrative citations, civil actions, and/or legal remedies relating to a UDCB. The parcel owner remains liable for any violation of duties imposed by this chapter even if the parcel owner has, by agreement, imposed on the operator and/or a tenant or lessee the duty of complying with the provisions of this chapter.

(Ord. No. 3084, § 3, 1-23-18)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

"Accessory activity" means an activity that is incidental to, and customarily associated with, a specified principal activity.

"Agent" means a person who is authorized by the owner to act on their behalf to be the applicant for a UDCB permit. To be considered an agent, a person must be given express written authorization from the owner to apply specifically for a UDCB permit. A person who is only given general authorization to act on the behalf of an owner for various activities and transactions in regards to a property is not considered an agent.

"Blight" means property which is not kept clean and sanitary and free from all accumulations of offensive matter or odor including, but not limited to, overgrown or dead or decayed trees, weeds or other vegetation, rank growth, dead organic matter, rubbish, junk, garbage, animal intestinal waste and urine, and toxic or otherwise hazardous liquids and substances and material. For the purposes of this section the term "rubbish" shall include combustible and noncombustible waste materials, and the term shall also include the residue from the burning of wood, coal, coke, and other combustible material; and the term shall also include paper, rags, cartons, boxes, wood, excelsior, rubber, leather, tree branches, yard trimmings, hay, straw, tin cans, metal, mineral matter, glass, crockery, and dust.

"Building official" means the building official and his/her successor in title and his/her designees.

"Director" means the director of community development and his/her successor in title and his/her designees.

"Donated/collected material" means salvageable personal property, such as clothing and books and household items that is collected for periodic transport off-site for processing or redistribution or both.

"Owner" or "property owner" means the owner of real property on which a UDCB is or is proposed to be placed, as defined in Section 18.06.334 of this code.

"Parcel owner" means the owner of fee simple interest in the real property on which a UDCB is or is proposed to be placed.

"Principal activity" means an activity that fulfills a primary function of an establishment, institution, household, or other entity.

"Principal building" means a main building that is occupied a principal activity.

"UDCB operator" or "operator" means a person or entity who utilizes or maintains a UDCB to solicit donations/collections of salvageable personal property.

"UDCB permit" means the city of Whittier's annually renewable permit required to place, operate, maintain, or allow a UDCB within the Whittier city limits.

"Unattended donation/collection boxes" or "UDCBs" means unstaffed drop-off boxes, containers, receptacles, or similar facility that accept textiles, shoes, books and/or other salvageable personal property items to be used by the operator for distribution, resale, or recycling.

"Unpermitted UDCB" means a UDCB established either without a UDCB permit or with a UDCB permit that was issued in error or on the basis of incorrect or incomplete information supplied, or in violation of any law, ordinance, rule, or regulation.

(Ord. No. 3084, § 3, 1-23-18; Ord. No. 3112, § 2, 2-25-20)

A. With the exception of UDCBs described in Subsection B, below, it is unlawful to place, operate, maintain or allow a UDCB on any real property unless the owner/agent and/or operator first obtain an annually renewable UDCB permit from the city. A separate UDCB permit is required for each UDCB unless a second UDCB is required for overflow items per Subsection 5.40.120(H), in which case the permit for the first UDCB can include the second UDCB on a parcel

B. UDCBs that are enclosed within a principal building on a property owned or leased by the bin operator shall not require a UDCB permit. UDCBs that are accessory to a principal activity on a property owned or leased by the bin operator shall meet all other requirements of this chapter except the requirements contained in Subsection 5 40 120(A), (B) and/or (C).

C. The UDCB permit applicant shall be the UDCB operator and the permit may not be transferred, conveyed or otherwise assigned to another person or entity.

D. Decisions regarding UDCB permit applications shall be made by the director and the director shall be considered the investigating official acting for the city manager.

(Ord. No. 3084, § 3, 1-23-18)

The UDCB permit application shall be made on a development review application form provided by the community development department. All applications shall be filed with the community development department and shall include:

A. A signed agreement stating that the owner/agent and operator will abide by all the processes and requirements described in this chapter and an expedited code enforcement process;

B. A non-refundable development review application fee in an amount set by the fee schedule;

C. For permit applications for existing UDCBs, a signed affidavit, under penalty of perjury, stating that the UDCB existed at the proposed location prior to the adoption of Ordinance No. 3084 on January 23, 2018;

D. A signed authorization from the owner/agent to allow placement of the UDCB;

E. A signed acknowledgement of responsibility from the owner/agent and the operator for joint and several liability for violations of conditions or regulations, and/or blight relating to the UDCB;

F. Proof of general liability insurance of at least $1,000,000.00 covering the applicant's UDCB and naming the city of Whittier as an additional insured;

G. For nonprofit operators, evidence that the nonprofit has been registered as a non-profit organization with the city of Whittier, is recognized by the Internal Revenue Service as such, and complies with California Welfare and Institutional Code Division 1 (Welfare and Institutions Code Section 148 et seq.) as it may be amended;

H. For for-profit operators, proof of an active business tax certificate with the city of Whittier;

I. The name, address, email, website (if available) and telephone number of the UDCB operator and owner, including twenty-four-hour contact information;

J. A vicinity map showing 1) the proposed location of the UDCB; and 2) the distance between the site and all existing UDCBs within one thousand feet of the proposed UDCB location;

K. Photographs of the location and adjacent properties;

L. A site plan containing:

1. Location and dimensions of all parcel boundaries;

2. Location of all buildings;

3. Proposed UDCB location;

4. Distance between the proposed UDCB and parcel lines buildings; and

5. Location and dimension of all existing and proposed driveways, garages, carports, parking spaces, maneuvering aisles, pavement and striping/marking;

M. Elevations showing the appearance, materials, and dimensions of the UDCB, including the information required in this chapter to be placed on the UDCB and notice sign;

N. A description and/or diagram of the proposed locking mechanism of the UDCB;

O. A maintenance plan (including graffiti removal, pick-up schedule, and litter and trash removal on and around the UDCB) that is sufficient to prevent/eliminate blight-related conditions; and

P. Any other reasonable information regarding time, place, and manner of UDB operation, placement, and/or maintenance that the director requires to evaluate the proposal consistent with the requirements of this chapter.

(Ord. No. 3084, § 3, 1-23-18; Ord. No. 3120, § 14, 7-28-20)

A. Unless renewed as described in Subsection B, below, each UDCB permit shall expire and become null and void annually on the anniversary of its date of issuance.

B. A UDCB operator may apply for permit renewal by submitting a renewal application to the community development department at least one month prior to the expiration of the active UDCB permit. The UDCB permit renewal application shall be made on a form provided by the community development department. All applications shall be filed with the community development department and shall include:

1. A signed agreement stating that the owner/agent and operator will abide by all the processes and requirements described in this chapter and an expedited code enforcement process;

2. Photographs of the existing UDCB;

3. A non-refundable application fee in an amount set by the fee schedule;

4. A signed authorization from the owner/agent to allow placement of the UDCB;

5. A signed acknowledgement of responsibility from the owner/agent and the operator for joint and several liability for violations of conditions or regulations, and/or blight relating to the UDCB;

6. Proof of general liability insurance of at least $1,000,000.00 covering the applicant's UDCB and naming the city of Whittier as an additional insured;

7. For nonprofit operators, evidence that the nonprofit has been registered as a non-profit organization with the city of Whittier, is recognized by the Internal Revenue Service as such, and complies with California Welfare and Institutions Code Section 148 et seq. as it may be amended;

8. For for-profit operators, proof of an active business tax certificate with the city of Whittier;

9. Name and telephone number of any entity that may share or profit from items collected via the UDCB;

10. The name, address, email, website (if available) and telephone number of the UDCB operator and owner, including twenty-four-hour contact information; and

11. Any other reasonable information regarding time, place, and manner of UDB operation, placement, and/or maintenance that the director requires to evaluate the proposal consistent with the requirements of this chapter.

C. The director shall either approve or deny the renewal of a UDCB permit within sixty days of receipt of the complete renewal application and payment of the renewal fee. The failure of the community development department to act within this timeframe shall constitute approval of the UDCB permit renewal.

D. The director shall approve the renewal of a UDCB permit if he/she finds that no circumstances existed during the term of the UDCB permit or existed at any time during the review of the application for renewal that are inconsistent with any criteria required for approval of a new UDCB permit as specified in Section 5.40.090 or that would justify the revocation of the UDCB permit as specified in Subsection 5.40.170(G).

E. See Section 5.40.110 for the appeal and petition processes for UDCB permit decisions, including decisions regarding renewal.

(Ord. No. 3084, § 3, 1-23-18; Ord. No. 3112, § 2, 2-25-20)

The director shall not issue a UDCB permit or renewal unless each of the following is true:

A. The applicant has submitted a complete and accurate application accompanied by the applicable fee;

B. There are no open citations, zoning violations, unpaid fines or unresolved violations or complaints related to any UDCB managed by the proposed operator;

C. All existing unpermitted UDCBs that are managed by the proposed operator have been removed;

D. Reserved.

E. Any verified blight on the subject property has been abated and any case of a complaint to the city regarding blighted conditions on the subject property has been closed, and

F. The proposal is consistent with all the requirements of this chapter.

G. For renewals, the site does not have a history of being an attractive nuisance even if incidents of blight were abated For the purpose of this subsection, "history of attractive nuisance" means at least three verified blight complaints in the previous twelve months.

(Ord. No. 3084, § 3, 1-23-18)

The director shall provide a written decision regarding the placement of a UDCB within sixty days of the submission of a complete application for a UDCB permit.

(Ord. No. 3084, § 3, 1-23-18)

A. Within ten calendar days after the date of a decision by the director on an application for a UDCB permit or a renewal of such, an appeal from said decision must be filed by the applicant or any other interested party. The appeal shall be submitted to the community development department at 13230 Penn Street, 2nd Floor, Whittier, CA 90602. In the event the last date 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 Such appeal shall be made on a form prescribed by the community development department and shall be filed with such department, along with the appropriate fees required by the city's master fee schedule. The appeal application must be complete and shall state specifically wherein it is claimed there was an error or abuse of discretion by the director or wherein his/her decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues during the appeal and/or in court.

If a hearing is held on the appeal, then during such hearing, the appellant will be limited to issues and/or evidence previously raised in the appeal itself. The appellant shall not be permitted to present any other issues and/or oral, written and/or documentary evidence during the appeal process.

In considering the appeal, the city manager shall determine whether the proposal conforms to the requirements of this chapter, and may grant or deny a permit or require such changes in the proposed use or impose such reasonable conditions of approval as are in its judgment necessary to ensure conformity to said criteria. The written decision of the city manager shall be final and shall be made within sixty days of the submission of the appeal.

B. The applicant seeking placement of a UDCB which would be affected by this chapter and who contends that the ordinance as applied to him/her would be unlawful under and/or conflict with federal, state, or local law or regulation, must submit a petition to the city manager requesting relief from the ordinance. Petitions must be on the appeal form provided by the community development department and submitted to the community development department at 13230 Penn Street, 2nd Floor, Whittier, CA 90602. Failure to submit such a petition will preclude such person from challenging the ordinance as applied in court. The petition shall identify the name and address of the applicant and property owner, the affected application number, and shall state specifically and completely how the ordinance as applied to him/her would be unlawful under and/or in conflict with federal, state, or local law or regulation, and shall include payment of fees in accordance with the city's master fee schedule. Failure to raise each and every issue that is contested in the petition and provide appropriate supporting evidence will be grounds to deny the petition and will also preclude the petitioner from raising such issues in court.

If a hearing is held on the petition, then during such hearing, the petitioner will be limited to issues and/or evidence previously raised in the petition itself. The petitioner shall not be permitted to present any other issues and/or oral, written and/or documentary evidence during the petition process.

Within sixty calendar days of receipt of the completed petition, the city manager, or designee, shall mail to the applicant a written determination accepting or rejecting the petition. The written decision of the city manager is final. The city manager will utilize reasonable time, place and manner criteria to determine if the petition should be granted or denied consistent with this chapter. If the petition is granted, the city may impose reasonable time, place and manner-related conditions on the UDCB consistent with this chapter.

(Ord. No. 3084, § 3, 1-23-18; Ord. No. 3112, § 2, 2-25-20)

A. No UDCB shall be located within one thousand feet from any other UDCB, except those described in Subsection 5.40.060(B).

B. With the exception of areas described in Subsection (C), below, UDCBs are only allowed to be located in the following zones, which are designated in the zoning maps described in Title 18 of the Whittier Municipal Code:

1. C-2 General Commercial;

2. C-3 Commercial Manufacturing;

3. M Manufacturing.

C. No UDCBs are permitted within three hundred feet of a park, school, or government facility.

D. A UDCB is only permitted on a lot that also contains a principal building that contains at least one operating business.

E. UDCBs are prohibited within any of the following locations:

1. One hundred fifty feet from lots that lie in a residential, detached unit residential, or mixed housing type residential zone as designated in the city's zoning maps;

2. The public right-of-way and twenty feet of the public right-of-way;

3. Five feet from any property line; or

4. Landscaping.

F. UDCBs cannot block or impede access to:

1. Required parking or driveways;

2. Pedestrian routes;

3. Emergency vehicle routes;

4. Building ingress and egress;

5. Required handicapped accessibility routes;

6. Required easements; or

7. Trash enclosure areas or access to trash bins/trash enclosures.

G. UDCBs cannot impede the functioning of exhaust, ventilation, or fire extinguishing systems.

H. No more than one UDCB is permitted per parcel.

I. The donation/collection area must be visible from the principal building and be no more than ten feet from a continually operating light source of at least one foot candle.

J. At least one on-site pick up and drop off parking space shall be required for each UDCB.

K. Any requested signage must comply with the city sign regulations.

(Ord. No. 3084, § 3, 1-23-18; Ord. No. 3120, § 15, 7-28-20)

A. UDCBs shall:

1. Be fabricated of durable and waterproof materials,

2. Be placed on ground that is paved with durable cement;

3. Have a collection opening that has a tamper-resistant locking mechanism;

4. Be more than eighty-two inches high, sixty inches wide and fifty inches deep;

5. Not be electrically or hydraulically powered or otherwise mechanized;

6. Not be a fixture of the site or considered an improvement to real property; and

7. Have the following information conspicuously displayed on at least two-inch type visible from the front on the UDCB:

a. The name, address, twenty-four-hour telephone number, and, if available, the Internet Web address, and email address of the operator of the UDCB;

b. Address and parcel number of the site;

c. Instructions on the process to register a complaint regarding the UDCB to the city code enforcement division;

d. The type of material that may be deposited;

e. A notice stating that no material shall be left outside the UDCB;

f. The pickup schedule for the UDCB;

g. A city approved identification system that identifies the box as being properly permitted by the city;

h. If the UDCB is owned by a nonprofit organization:

i. A statement describing the charitable cause that will benefit from the donations;

ii. The Federal Tax Identification Number of the nonprofit organization operating the UDCB; and

iii. The statement "This collection box is owned and operated by a nonprofit organization."

i. If the UDCB is owned by a for-profit entity:

i. "This donation may not be tax deductible." and

ii. "This collection box is owned and operated by a for-profit organization or registered charitable solicitor."

iii. On the UDCB, there shall be a sign in a visually conspicuous location with text in at least two-inch typeface stating that no material shall be left outside the UDCB.

(Ord. No. 3084, § 3, 1-23-18)

A. No blight shall be within twenty feet of the UDCB including, but not limited to donation/collection overflow, litter, debris, and dumped material.

B. UDCBs shall be maintained and in good working order. Items to be repaired, removed, and/or abated include, but are not limited to graffiti, removed or damaged signs and notifications, peeling paint, rust, and broken collection operating mechanisms.

C. UDCBs shall be serviced not less than weekly between 7:00 a.m. and 7:00 p.m. on weekdays and 10:00 a.m. and 6:00 p.m. on weekends. This servicing includes the removal of donated/collected material and abatement of the blight described this section.

D. The operator shall maintain an active email address and a twenty-four-hour telephone service with recording capability for the public to register complaints.

E. UDCBs cannot be used for the collection of solid waste and/or any hazardous materials.

(Ord. No. 3084, § 3, 1-23-18)

Applicants and/or owner/owners agent shall maintain a minimum general liability insurance of one million dollars for the duration of the operation of a UDCB at each site, to cover any claims or losses due to the placement, operation, or maintenance of the UDCB and naming the city of Whittier as additional insured.

(Ord. No. 3084, § 3, 1-23-18)

Permitted UDCB operators shall be required to report annually to the directors of community development and public works the tonnage collected from their UDCBs within the city, including a breakdown by material type, whether the materials were reused or recycled, and any other information needed by the city to comply with AB 939. This information must be available to the city within sixty days of the end of the calendar year. Failure to report to the satisfaction of the directors of community development and public works will be grounds for revocation of the UDCB permit.

(Ord. No. 3084, § 3, 1-23-18)

A. Whenever the building official determines that a UDCB with a valid permit does not conform to any requirement in this chapter he/she shall promptly notify the owner/agent and UDCB operator through electronic mail of the violation. The violation must be abated and proof of such submitted to the city within seventy-two hours after receipt of such notification.

B. If an unpermitted UDCB is not within a permissible geographic area according to Section 5.40.120, then both the UDCB and any blight within twenty feet of the UDCB shall be removed within seventy-two hours after the owner/agent and UDCB operator is notified of the violation.

C. If an unpermitted UDCB is within a permissible geographic area according to Section 5.40.120 then any blight within twenty feet of the site shall be removed and the owner/agent and/or operator shall either: 1) apply for all UDCB permits required by this chapter; or 2) remove the UDCB. This requirement shall be met within seventy-two hours after the owner/agent and/or UDCB operator are notified of the violation.

D. Each day that a violation of a requirement of this chapter is not abated constitutes a new and separate offense.

E. The operation or maintenance of an unpermitted UDCB may be abated or summarily abated by the city in any manner by this code or otherwise by law for the abatement of public nuisances. Pursuant to Government Code Section 38773, all expenses incurred by the city in connection with any action to abate a public nuisance will be chargeable to the persons creating, causing, committing, or maintaining the public nuisance.

F. The city shall assess administration citations pursuant to W.M.C. Chapter 1.09 against an owner and/or operator who fails to timely resolve a violation or verified compliance is not sent to the city showing the resolution of the violation relating to a UDCB after notice.

1. For permitted UDCBs, the city shall issue administrative citations pursuant to W.M.C. Chapter 1.09:

a. Not more than one hundred fifty dollars for the first citation after the seventy-two-hour abatement period;

b. Not more than two hundred fifty dollars for the second citation after the seventy-two-hour abatement period; and

c. Not more than five hundred dollars for the third and each subsequent citation after the seventy-two-hour abatement period. Total fines resulting from administrative citations shall not be more than five thousand dollars within one year for each cited UDCB.

2. For unpermitted UDCBs, the city shall issue administrative citations pursuant to W.M.C. Chapter 1.09:

a. Not more than seven hundred fifty for the first citation after the seventy-two-hour abatement period;

b. Not more than one thousand dollars for the second citation after the seventy-two-hour abatement period; and

c. Not more than one thousand five hundred dollars for the third and each subsequent citation after the seventy-two-hour abatement period Total fines resulting from administrative citations shall not be more than ten thousand dollars within one year for each cited UDCB.

G. The daily administrative citations described in Subsection F shall continue until either the violation is abated or the UDCB is removed. Pursuant to Government Code Section 38773, removal of the UDCB shall be at the expense of the owner and/or operator. Any UDCBs removed shall also have any of its UDCB permits revoked.

H. The property owner and operator are jointly and severally liable and responsible for all fees, administrative citations, and compliance with the regulations.

I. Administrative citations for unpermitted UDCBs may be appealed administratively pursuant to appeals of administrative actions set forth in the Whittier Municipal Code or as developed by the city manager. Administrative citations for permitted UDCBs are not appealable.

J. A party aggrieved by a final administrative decision of the city may seek judicial review of the administrative decision pursuant to California Code of Civil Procedure Sections 1094.5 and 1094.6 within the time frame pursuant to those code sections.

K. All notices for unpermitted UDCBs shall be in writing and personally delivered to the owner/agent and UDCB operator or by depositing such notice in the United States mail, postage paid, and addressed to the owner/agent at the owner(s) last known address as it appears on the last Los Angeles County equalized assessments roll, as well as placed on the UDCB itself. If the city cannot reasonably determine the name and/or address of the unpermitted UDCB operator, placing the written notice on the UDCB itself constitutes sufficient notice. All notices regarding permitted UDCBs shall be through electronic mail.

L. Administrative citations established in this chapter are in addition to any other administrative or legal remedy which may be pursued by the city to address violations identified in this chapter.

(Ord. No. 3084, § 3, 1-23-18; Ord. No. 3112, § 2, 2-25-20)

A. Any person claiming a violation of this chapter may bring an action in the Superior Court of the State of California, as appropriate, to enforce the provisions of this chapter. Violations of this chapter are declared to irreparably harm the public.

B. The Court shall award reasonable attorney's fees, witness fees and costs to any plaintiff who prevails in an action to enforce this chapter.

C. No criminal penalties shall attach for any violation of this chapter.

D. No remedy set forth in this section is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce any rights hereunder in a court of law.

E. Nothing in this chapter shall be interpreted to authorize a right of action against the city, nor shall this section give rise to any cause of action for damages against the city.

F. The parcel owner or owner's agent shall have the right to rescind consent for a UDCB to be placed on the property, provided written notice of the rescission is provided to the UDCB operator, as provided in their agreement but in no event less than ten business days prior to the UDCB being removed.

G. The parcel owner or owner's agent shall be held harmless by the UDCB operator for the removal of an unauthorized UDCB where removal is necessary to comply with this chapter.

(Ord. No. 3084, § 3, 1-23-18)

A. Any UDCB scheduled to be removed by either the city or the operator shall clearly display a notice on the UDCB with at least four-inch type visible from the front on the UDCB that states the following text in capital letters: "THIS BOX WILL BE REMOVED BY" followed by the date the UDCB is scheduled for removal The operator and property owners are jointly and severally responsible for the placement of the notice.

B. For UDCBs required to be removed by the city of Whittier due to an abatement order, the notice shall be posted immediately after the city notifies the operator and/or owner that the facility is required to be removed.

C. Notice that a UDCB will be removed by the owner or operator shall be posted at least fourteen calendar days prior to the removal of the facility.

(Ord. No. 3084, § 3, 1-23-18)