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HomeMy WebLinkAbout05 - 15 Day Appeal PeriodCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 5 (April 26, 2005) TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Daniel K. Ohl, Deputy City Attorney Daniel K. Ohl, ext. 3131, dohI @city.newport- beach.ca.us SUBJECT: AMENDING CHAPTER 14.36 OF THE NEWPORT BEACH MUNICIPAL CODE TO OBTAIN CONSISTENCY WITH 15 DAY APPEAL PERIOD ISSUE: Should the time limit for appeals in Chapter 14.36 be amended from 30 to 15 days to make it consistent with other provisions? RECOMMENDATION: Staff recommends the City Council introduce the proposed amendment to Newport Beach Municipal Code Chapter 14.36, Section 14.36.060 that is attached as Exhibit A and pass to the next meeting for adoption. DISCUSSION: It has recently been determined that the time to appeal violations under the Water Quality Code, 30 days, was different than the time to appeal for violations of other Newport Beach Municipal Code sections, 15 days. We are suggesting the recommended changes to make the time limit for appeal consistent and eliminate any uncertainty and confusion. Environmental Review: None Public Notice: None. epari & Su i ,by: \ I Daniel K. Ohl, Deputy City Attorney Attachments: Amendment to Newport Beach Municipal Code Chapter 14.36 F:\ users\ cat \shared \CCstaffReports \14.36wq Enfo rce.doc ORDINANCE NO. 2005- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTION 14.36.060, CHAPTER 14.36 OF TITLE 14 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO WATER AND SEWERS SECTION 1: Section 14.36.060 of Chapter 14.36 is amended to read as follows: Chapter 14.36 Section 14.36.060 Enforcement. A. Administrative Remedies. 1. Notice of Noncompliance. In addition to any other remedy or means of enforcement authorized by law or this code, the Authorized Inspector may deliver to the owner or occupant of any property, or to any person responsible for an illicit connection or prohibited discharge a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with this section. a. The notice of noncompliance shall identify the provision(s) of this chapter or the applicable permit which has been violated. The notice of noncompliance shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and /or person. b. The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and /or person; provided, however, that the compliance date may not exceed ninety (90) days unless the Authorized Inspector extends the compliance deadline an additional ninety (90) days where good cause exists for the extension. WATER QUALITY Sections: 14.36.010 Purpose and Intent. 14.36.020 Definitions. 14.36.030 Illicit Connections and Prohibited Discharges. 14.36.040 Control of Urban Runoff. 14.36.050 Inspections. 14.36.060 Enforcement. 14.36.070 Permits. 14.36.080 Compliance Disclaimer. Section 14.36.060 Enforcement. A. Administrative Remedies. 1. Notice of Noncompliance. In addition to any other remedy or means of enforcement authorized by law or this code, the Authorized Inspector may deliver to the owner or occupant of any property, or to any person responsible for an illicit connection or prohibited discharge a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with this section. a. The notice of noncompliance shall identify the provision(s) of this chapter or the applicable permit which has been violated. The notice of noncompliance shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and /or person. b. The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and /or person; provided, however, that the compliance date may not exceed ninety (90) days unless the Authorized Inspector extends the compliance deadline an additional ninety (90) days where good cause exists for the extension. 2. Administrative Compliance Orders. a. The Authorized Inspector may issue an administrative compliance order, which shall be delivered in accordance with this section of this chapter. The administrative compliance order may be issued to: The owner or occupant of any property requiring abatement of conditions on the property that cause or may cause a prohibited discharge or an illicit connection in violation of this chapter; ii. The owner of property subject to terms, conditions or requirements imposed on a project in accordance with this section to ensure adherence to those terms, conditions and requirements; iii. A permittee subject to the requirements of any permit issued pursuant to Section 14.36.070 to ensure compliance with the terms, conditions and requirements of the permit; iv. Any person responsible for an illicit connection or prohibited discharge. b. The administrative compliance order may include the following terms and requirements: i. Specific steps and time schedules for compliance as reasonably necessary to eliminate an existing prohibited discharge, or to prevent the imminent threat of a prohibited discharge, including but not limited to a prohibited discharge from any pond, pit, well, surface impoundment, holding or storage area; ii. Specific steps and time schedules for compliance as reasonably necessary to discontinue any illicit connection; iii. Specific requirements for containment, cleanup, removal, storage, installation of overhead covering, or proper disposal of any pollutant having the potential to contact storm water runoff; iv. Any other terms or requirements reasonably calculated to prevent the imminent threat of or continuing violations of this chapter, including, but not limited to requirements for compliance with best management practices guidance documents promulgated by any federal, State of California or 2 regional agency; V. Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions and requirements of any permit issued pursuant hereto. 3. Cease and Desist Orders. a. The Authorized Inspector may issue a cease and desist order. A cease and desist order shall be delivered in accordance with this section. A cease and desist order may direct the owner or occupant of any property and /or other person responsible for a violation of this chapter to: i. Immediately discontinue any illicit connection or prohibited discharge to the Storm Water Drainage System; i. Immediately contain or divert any flow of water off the property, where the flow is occurring in violation of any provision of this chapter; iii. Immediately discontinue any other violation of this chapter; iv. Clean up the area affected by the violation. b. The Authorized Inspector may direct by cease and desist order that the owner of any property or his successor -in- interest, which property is subject to any conditions or requirements issued pursuant to Section 14.36.040 of this chapter or any permittee under any permit issued pursuant to Section 14.36.070, immediately cease any activity not in compliance with the conditions or requirements issued pursuant to Section 14.036.040 of this chapter, or the terms, conditions and requirements of the applicable permit. 4. Recovery of Costs. The Authorized Inspector may deliver to the owner or occupant of any property, any permittee or any other person who becomes subject to a notice of noncompliance, administrative or cease and desist order, an invoice for costs. An invoice for costs shall be delivered in accordance with this section. An invoice for costs shall be immediately due and payable to the City in issuing and enforcing any notice or order. If any owner or occupant, permittee or any other person subject to an invoice for costs fails to either pay the invoice for costs or appeal successfully the invoice for costs in accordance with this section then the Enforcing Attorney may institute collection proceedings. c3 5. Delivery of Notice. Any notice of noncompliance, administrative compliance order, cease and desist order or invoice of costs to be delivered pursuant to the requirements of this chapter shall be subject to the following: a. The notice shall state that the recipient has a right to appeal the matter as set forth in this section; b. Delivery shall be deemed complete upon (i) personal service to the recipient; (ii) deposit in the U.S. mail, postage prepaid for first class delivery; or (iii) facsimile service with confirmation of receipt; C. Where the recipient of notice is the owner of the property, the address for notice shall be the address from the most recently issued equalized assessment roll for the property or as otherwise appears in the current records of the City; d. Where the owner or occupant of any property cannot be located after the reasonable efforts of the Authorized Inspector, a notice of noncompliance, administrative compliance or cease and desist order shall be deemed delivered after posting on the property for a period of ten business days. 6. Administrative Hearing for Notices of Noncompliance, Administrative Compliance Orders, Invoices for Costs and Adverse Determinations. Any person receiving a notice of noncompliance, administrative compliance order, a notice of legal nonconforming connection, an invoice for costs, or any person who is subject to any adverse determination made pursuant to this chapter, may appeal the matter by requesting an administrative hearing. Notwithstanding the foregoing, these administrative appeal procedures shall not apply to criminal proceedings initiated to enforce this chapter. 7. Request for Administrative Hearing. Any person appealing a notice of noncompliance, an administrative compliance order, a notice of legal nonconforming connection, an invoice for costs or an adverse determination shall, within thi \fifteen 15 days Of ;8%:prthe%Gghe correction date, file a written request for an administrative hearing, accompanied by an administrative hearing fee as established by separate resolution of the City Council, with the Office of the City Clerk, with a copy of the request for administrative hearing mailed on the date of filing to the City Manager, or the Authorized Inspector and the City Attorney. Thereafter, a hearing on the matter shall be held before the Hearing Officer within forty -five (45) business days of the date of filing of the written request unless, in the reasonable discretion of the Hearing Officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted. 0 8. Administrative Hearing for Cease and Desist Orders and Emergency Abatement Actions. An administrative hearing on the issuance of a cease and desist order or following an emergency abatement action shall be held within five (5) business days following the issuance of the order or the action of abatement, unless the hearing (or the time requirement for the hearing) is waived in writing by the party subject to the cease and desist order or the emergency abatement. A request for an administrative hearing shall not be required from the person subject to the cease and desist order or the emergency abatement action. 9. Hearing Proceedings. The Authorized Inspector shall appear in support of the notice, order, determination, invoice for costs or emergency abatement action, and the appealing party shall appear in support of withdrawal of the notice, order, determination, invoice for costs, or in opposition to the emergency abatement action. 10. Final Decision and Appeal. The final decision of the Hearing Officer shall issue within ten business days of the conclusion of the hearing and shall be delivered by first -class mail, postage prepaid, to the appealing party. The final decision shall include notice that any legal challenge to the final decision shall be made pursuant to the provisions of Code of Civil Procedure Sections 1094.5 and 1094.6 and shall be commenced within ninety (90) days following issuance of the final decision. If the appellant is the prevailing party, the administrative hearing fee paid by Appellant shall be refunded. Notwithstanding the foregoing, the final decision of the Hearing Officer in any pFeeed+agproceeding determining the validity of a cease and desist order or following an emergency abatement action shall be mailed within five business days following the conclusion of the hearing. 11. City Abatement. In the event the owner of property, the operator of a facility, a permittee or any other person fails to comply with any provision of a compliance schedule issued to such owner, operator, permittee or person pursuant to this chapter, the Authorized Inspector may request the Enforcing Attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the City in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to this Section. B. Nuisance. Any condition in violation of the prohibitions of this chapter, including but not limited to the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance and may be abated pursuant to Chapter 10.50 of this code. 11 1. Emergency Abatement. In the event the nuisance constitutes an imminent danger to public safety or the environment, the City Manager may enter the property from which the nuisance emanates, abate the nuisance and restore any property affected by the nuisance. To the extent reasonably practicable, informal notice shall be provided to the owner or occupant prior to abatement. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant. a. An imminent danger shall include, but is not limited to, exigent circumstances created by the dispersal of pollutants, where the same presents a significant and immediate threat to the public safety or the environment. b. Notwithstanding the authority of the City to conduct an emergency abatement action, an administrative hearing pursuant to this section hereinabove shall follow the abatement action. 2. Reimbursement of Costs. All costs incurred by the City in responding to any nuisance, all administrative expenses and all other expenses recoverable under State law, shall be recoverable from the person(s) creating, causing, committing, permitting or maintaining the nuisance, including costs relating to restoration of the environment. 3. Nuisance Lien. All costs shall become a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof who shall be given notice of the lien as provided in Chapter 10.50 of this code. a. At the direction of the City Manager or the Authorized Inspector, the Enforcing Attorney is authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgment or by delivery to the County Assessor of a special assessment against the property in accord with the conditions and requirements of Government Code 38773.5. C. Consecutive Violations. Each day in which a violation occurs and each separate failure to comply with either a separate provision of this chapter, an administrative compliance order, a cease and desist order or a permit issued pursuant to this chapter, shall constitute a separate violation of this chapter punishable by fines or sentences issued in accordance with Chapter 1.04 of this Code. D. Nonexclusive Remedies. Each and every remedy available for the enforcement of this chapter shall be nonexclusive and it is within the discretion of the Authorized Inspector or Enforcing Attorney to seek cumulative remedies, except 0 that multiple monetary fines or penalties shall not be available for any single violation of this chapter. E. Citations. Pursuant to Penal Code Section 836.5, the Authorized Inspector shall have the authority to cause the arrest of any person committing a violation of this chapter. The person shall be released and issued a citation to appear before a magistrate in accordance with Penal Code Sections 853.5, 853.6 and 853.9, unless the person demands to be taken before a magistrate. Following issuance of any citation, the Authorized Inspector shall refer the matter to the Enforcing Attorney. Each citation to appear shall state the name and address of the violator, the provisions of this chapter violated, and the time and place of appearance before the court, which shall be at least ten business days after the date of violation. The person cited shall sign the citation giving his or her written promise to appear as stated therein. If the person cited fails to appear, the Enforcing Attorney may request issuance of a warrant for the arrest of the person cited. F. Violations of Other Laws. Any person acting in violation of this chapter also may be acting in violation of the Federal Clean Water Act or the State Porter - Cologne Act and other laws and also may be subject to sanctions including civil liability. Accordingly, the Enforcing Attorney is authorized to file a citizen suit pursuant to Federal Clean Water Act Section 505(a), seeking penalties, damages and orders compelling compliance, and other appropriate relief. The Enforcing Attorney may notify EPA Region IX, the Santa Ana or San Diego Regional Water Quality Control Boards, or any other appropriate state or local agency, of any alleged violation of this chapter. G. Injunctions. At the request of the City Manager, the Enforcing Attorney may cause the filing in a court of competent jurisdiction, of a civil action seeking an injunction against any threatened or continuing noncompliance with the provisions of this chapter. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the City of all costs incurred in enforcing this chapter, including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the City, costs relating to restoration of the environment and all other expenses as authorized by law. SECTION 2: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. 7 SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , 2005, and adopted on the _ day of 2005, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F:\users \cat\shared\0rdinance\1 4.36wgEnforce.doc