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HomeMy WebLinkAbout39001 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1G 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 3900 AN ORDINANCE OF THE COUNTY OF BUTTE, CALIFORNIA, ADDING CHAPTER 49 TO THE BUTTE COUNTY CODE, ESTABLISHING UNLAWFUL REFUSE DUMPING VIOLATIONS, AN ADMINISTRATIVE ENFORCEMENT PROGRAM FOR SUCH VIOLATIONS AND A CIVIL REMEDIAL PROCESS FOR THE FORFEITURE OF VEHICLES CONNECTED WITH THE UNLAWFUL DUMPING OF REFUSE WHEREAS, the County of Butte ("County") is authorized by California Constitution, Article XI, Section 7 to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general Iaws; and WHEREAS, the Board of Supervisors has determined that the public health, safety and welfare of the residents of the County will be promoted and the environmental settings of the County will be maintained and improved through the strict enforcement of laws pertaining to illegal refuse disposal. The Board of Supervisors of the County of Butte ordains as follows: Section 1. Chapter 49, entitled "Unlawful Dumping," consisting of Articles I and lI, is added to the Butte County Code to read as follows: "ARTICLE I. ADMINISTRATIVE ENFORCEMENT ACTIONS Sec. 49-1 Definitions. Sec. 49-2 Unlawful and unauthorized dumping. Sec. 49-3 Dumping at county waste facilities. Sec. 49-4 Administrative enforcement actions. Sec. 49-5 Review of abatement orders. Sec. 49-G Conduct of hearings. Sec. 49-7 Liability. Sec. 49-8 Administrative penalty for violations. Sec. 49-9 Administrative penalty for failure to abate. 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sec. 49-10 Appeal to Board of supervisors. Sec. 49-1 1 Recovery of abatement costs and administrative penalties. Sec. 49-12 Pa}~nent and collection. Sec. 49-13 Nonexclusive remedy. Sec. 49-1. Definitions. For the purposes of this Article, the following words and phrases are defined and shall be construed as hereinafter set out, unless it shall be apparent from the context that they have a different meaning: a. "Container" means any can, tank, receptacle or bax used or intended to be used for the purpose of holding solid waste. b. "Enforcement Officer" means the director of the Department of Development Services, the director of the Department of Public Works, health officer or their designees. c. "Hearing Officer" means the director of the Department of Development Services, the director of the Department of Public Works, health officer or their designees. d. "Household medical waste" means any home generated waste that was used in the treatment of human beings or animals and is either biahazardous ar sharps (hypodermic needles, etc.) as defined in the Health and Safety Code. e. "Person" means an individual, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, firm, organization, partnership, joint venture or any other entity whatsoever. f. "Premises" includes the property, easements abutting sidewalks, alleyways and the untraveled portion of an abutting public street. g. "Permitted solid waste hauler" means any person who engages in the business of collecting and removing garbage and refuse and who has been issued a solid waste hauler permit by the Division of Environmental Health, pursuant to the provisions of Chapter 2 l 2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3l of this code. h. "Public Official" means the director of the Department of Development Services, the director of the Department of Public Works, or the health officer. i. "Residential property" means any real property improved with a home, abode or place where an individual or family is residing and that is not rental property. j. "Solid waste" means any and all putrescible and nonputrescible liquid, solid and/or semi-solid waste, whether hazardous or nonhazardous, andlor discarded property and items, including but not limited to refuse, garbage, rubbish, paper, ashes, industrial wastes, demolition and construction wastes, nuisance vehicles, dismantled vehicles or abandoned vehicles andlor parts thereof, discarded home and industrial appliances, vegetable or animal solid and semi-solid wastes and other discarded liquid, solid andlor semisolid wastes. For purposes of this chapter "solid waste" shall include materials brought to a county waste facility that may ultimately be diverted, reused or recycled by the county. k. "Waste facility" means; 1. A permitted facility used to receive, temporarily store, separate, convert or otherwise process the materials in solid waste or transfer solid waste directly from smaller to larger vehicles for transport; and 2. A permitted solid waste disposal site which is a Class III Disposal Site in accordance with the meaning prescribed by Article 2, Subchapter 15, Chapter 3, Title 23 of the California Code of Regulations (commencing with Section 2510) as amended from time to time; at~d 3. A pern~itted household hazardous waste collection facility authorized to operate under permit by rule status pursuant to Title 22, California Code of Regulations, Section 66270.60; and 4. A permitted Class II Disposal Site; and 5. A permitted waste processor; and 28 ~~ 3 6. A mono-fill waste disposal site; and 7. An exempt disposal facility or reclamation site. Sec. 49-2 Unlawful and unauthorized dumping. 7 8 9 10 11 12 13 14 15 l6 17 18 19 20 2l 22 23 24 25 26 27 28 a. Any person who: 1. Fails to arrange for the lawful disposal of solid waste generated on property which that person owns, occupies or is the person responsible for day-to-day operations thereof; or 2. Causes, maintains or permits solid waste to be deposited within the county in any manner that violates the provisions of this chapter; or 3. Causes or permits the deposit of solid waste on the right-of--way of any public highway, street, easement or thoroughfare, or upon any camping place or public grounds, or on any premises, or in any container, without the permission of the owner thereof, or into any stream or dry watercourse, within the county of Butte, State of California, and outside of the incorporated cities; or 4. Causes, maintains or permits the accumulation of solid waste which creates atl unsanitary condition or permits or encourages the accumulation or breeding of vectors, or causes, maintains or permits solid waste to be placed in a container other than provided in this chapter; is guilty of a misdemeanor and may be punished as provided in Section 1-7, Subsection(a) of this code. Such person is also subject to the administrative/abatement procedures set forth in this Article, as well as any other remedy provided by law. b. Any Condition which is a direct result of any of the actslomissions set forth in subsection "a" of this section 49-2 is hereby deemed to be a public nuisance subject to the administrativelabatement procedures set forth in this Article, as well as any other remedy provided by law. e. In a criminal proceeding alleging a violation of subsection "a" of this section, upon 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a prima facie showing by the prosecution that a person's items, solid waste or property have been found in any location where it is unlawful to dispose of solid waste, under circumstances which would lead a reasonable trier of fact to conclude that the items had previously been discarded in that location, shall constitute a permissible inference that the person is guilty of a violation of Subsection a of this Section 49-2. The mental state required for conviction of a violation of Subsection "a" of this Section 49-2 is strict liability, without regard to any element of mens rea, fault, negligence or other wrongdoing. d. In the event of a conviction of a violation of Subsection "a" of this Section 49-2 and under appropriate circumstances, the court shall order the defendant to pay restitution to any public entity andlor private party which and/or whom has incurred out-of-pocket expenses as a result of cleaning up an unlawful dump site, as a rehabilitative measure, in addition to any penalty imposed. Sec. 49-3 Dumping at county waste facilities. a. It is unlawful for any person to place, deposit or dump or cause to be placed, deposited or dumped any material at any waste facility: 1. Without first paying the fees prescribed by the board of supervisors; or 2. In violation of the rules and regulations prescribed by the board of supervisors for the operation of the waste facility. A copy of the fee schedule and the rules and regulations governing the waste facility shall be on file at the Department of Public Works and the clerk of the board and shall be open to inspection by the public. b. Any Condition which is a direct result of any of the actstomissions set forth in subsection (a) of this Section 49-3 is hereby deemed to be a "public nuisance" subject to the administrativelabatement procedures set forth in this Article, as well as any other remedy provided by law. Sec. 49-4 Administrative enforcement actions. a. Whenever helshe becomes aware that any actlomission constituting a violation of this 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1G 17 18 19 20 21 22 23 24 25 26 27 28 Article has occurred, the Enforcement Officer may: 1. Issue an administrative order finding that aperson orpersons is/are responsible for a violation of this Article and directing such responsible person to pay an administrative penalty in the applicable amount set forth in Section 49-8; and/or 2. Issue an administrative order directing any responsible person to undertake partial or comprehensive actions so, as to provide adequate protection of the public health, welfare, the environment or natural resources, by abating a nuisance resulting from a violation of this Article; and/or 3. If, in the opinion of the Enforcement Officer, the nuisance constitutes an immediate threat to public health or safety, summarily abate the nuisance, andlor 4. Request that the District Attorney or County Counsel immediately seek relief as may be necessary or appropriate from a court of competent jurisdiction. Said court, upon finding that there is, or that the conditions complained of may present an endangerment to the public health, welfare, the environment or natural resources arising out of or resulting from such nuisance, in whole or in part, shall grant relief to abate the nuisance as is consistent with the relevant requirements of this Chapter and the public interest to secure adequate protection of the public health, welfare, the environment or natural resources. b. At his discretion, the Enforcement Officer may both issue administrative orders}and request that the district attorney or county counsel seek such relief as maybe necessary or appropriate from a court of competent jurisdiction pursuant to this section. c. Any such administrative order shall be served by personal service, registered mail, or certified mail with return receipt requested addressed to the person subject to the order. d. The administrative order(s) issued by the Enforcement Officer pursuant to this section shall include a statement of the factual and legal grounds upon which the order is issued, a schedule for completion of specific actions ordered and specify the amount(s) of the administrative penalties applicable, both for violating this Article and for failure to b 2 3 4 5 6 7 8 9 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 comply with specific actions ordered. Such order shall also specifically advise the person(s) to whom it is issued of the right to contest the order and request a hearing as provided for in Section 49-5. Such order shall also conspicuously advise the person(s) to whom it is directed that failure to request the hearing within the time and in the manner provided in Section 49-5 will result in the order becoming final and binding. e. The administrative order issued by the Enforcement Officer pursuant to this section shall become final and binding on the eighth day following service of the Enforcement Officer's order, unless the person who has been named in the order files a timely objection which complies in all respects with the requirements of Section 49-5. Sec. 49-5 Review of administrative enforcement orders. a. Administrative Review. Any person who has been Warned in an order issued by the Enforcement Officer pursuant to this chapter, may file an objection to such an order. An objection must be in writing and filed with the Enforcement Officer on or before the seventh day following service of the Enforcement Officer's order. An objection must state both the legal and factual bases in support thereof, and must include at a minimum, the requested modification(s), if any, of the order together with a summary of the issues, facts, and legal authorities to be raised at the hearing. The time requirement for filing an objection shall be deemed jurisdictional and may not be waived. In the absence of a timely filed objection which complies fully with the requirements of this Section 49-5, the findings of the Enforcement Officer contained in the administrative order shall be deemed true and correct. b. Upon timely receipt of an objection which complies with the requirements of this Section 49-5, the Enforcement Officer shall refer the matter to a Hearing Officer to conduct a hearing. Notice of the hearing shall be sent by first class mail postage prepaid to the persons filing the request. The notice shall state the date, time and place of the hearing (which in no event shall be sooner than seven (7) days from the date of mailing, unless otherwise agreed to by the responsible party and the Enforcement Officer.) 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. The Hearing Officer shall issue a written decision which shall include findings to support the decision. Written notice of the decision shall be given by mail within seven (7) calendar days after the date of the decision to the person subject to the order and any person filing a written request for notice of the decision. d. Judicial Review. Pursuant to Section 1085 ofthe Code ofCivil Procedure, anyperson who has been named in an order issued by the Enforcement ©fficer pursuant to this chapter, may, following exhaustion of administrative remedies, seek judicial review of the order by filing a petition for writ of mandate within ninety (90} days after the order becomes final and binding pursuant to this chapter. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, any person who contests a final administrative order issued under this Article regarding the imposition, enforcement or collection of the administrative penalties imposed, may seek judicial review of the order by filing an appeal with the superior court within twenty (20) days after service of the order in accordance with Section 53069.4 of the Government Code. Any other person who has the right to seek judicial review of the order by filing a petition for writ of mandate pursuant to Section 1085 of the Code of Civil Procedure shall do so within one hundred eighty (180) days after the order has become final and binding pursuant to this chapter. The filing of a petition for writ of mandate to review the order shall not stay any action specified in the order. Sec. 49-6 Conduct of hearings. a. Any administrative hearing conducted under Section 49-Sneed not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible 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 the evidence over objection in civil actions. The Hearing Officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will 8 1 2 3 4 5 61 71 8 9 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 necessitate undue consumption of time. b. For purposes of conducting any administrative hearing under this Article, the presence of at least two pieces of addressed mail or other identifying information in the dumped material shall be deemed to create a rebuttable presumption that the person so identified is responsible for the dumped material and is subject to the penalties and remedies provided for in this chapter. Sec. 49-7. Liability. a. In any enforcement action brought pursuant to this Article, whether by administrative proceedings, judicial proceedings or summary abatement, the person who creates or has created the nuisance shall be liable for all costs set forth in Chapter 3, Article XVI (beginning with Section 3-150} of this code incurred by the county, including, but not limited to, administrative costs, and any and ail costs incurred to undertake, or to cause or compel any responsible party to undertake, any abatement action in compliance with the requirements of this Chapter, whether those costs are incurred prior to, during or following enactment of this Chapter; b. In any action by the County to abate a nuisance under this Chapter, whether by administrative proceedings, judicial proceedings, or summary abatement, the prevailing party shall be entitled to a recovery of the reasonable attorneys' fees incurred. Recovery of attorneys' fees under this section shall be limited to those actions or proceedings in which the County elects, at the initiation of that action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the County in the action or proceeding. c. Unless otherwise expressly indicated, the standard of liability imposed by this Article is strict liability, without regard to any element of mcns rea, fault, negligence or other wrongdoing. d. The scope of liability in this chapter is joint and several for any person who has 28 II 9 21 31 4 5 6 7 8 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 caused, created or contributed to a violation and/or a nuisance as defined in this Article, is joint and several. Any person seeking to apportion the harm must demonstrate by clear and convincing evidence that the component of`harm which is sought to be apportioned is scientifically and technologically susceptible to apportionment, that there is a reasonable and practicable basis for apportioning the harm, and that the separate abatement activity proposed for that harm is as practicable, safe, efficient, reliable and cost-effective in providing the degree of protection of the public health, welfare and the environment as the abatement activity or activities, if any, proposed by the Enforcement Officer. Sec. 49-8 Administrative penalty for violations. a. In addition to the costs of administrative enforcement as provided in Section 49-7, any person who violates section 49-2 and/or 49-3, is liable to the County for administrative penalties in the amount of one hundred dollars 0100.00) for each violation set forth in the administrative order. b. If a second violation of this is caused by a responsible party whom has already been determined to be liable of a violation of this Article within one (1) year of the date of the first violation, the administrative penalty shall be two hundred dollars ($200.00). c. if a third or subsequent violation of this code is caused by the same responsible party whom has already been determined to be Liable of a violation of this Article within one (1) year of the date of the first violation, the administrative penalty shall be five hundred dollars ($500.00}. d. Liability under this Article may be imposed in a civil action or liability may be imposed administratively pursuant to this section. Any such civil action maybe joined with an action for any other remedy, including injunctive relief, available pursuant to State law or pursuant to this code. Nothing in this Section 4~-8 in any way limits, conditions or affects liability of any responsible party to the County for administrative failure to abate penalties, abatement action costs or for any other legal or equitable 10 1 2 3 4 5 6 7 8 9 lU 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27~' 28 remedy. e. Neither the imposition nor the payment of an administrative penalty for violating this Section 49-8 shal l relieve the responsible party from his/her obligation to abate any public nuisance resulting from the violation, nor shall it bar further enforcement action by the Enforcement Officer. Nothing in this Section 49-8 shall affect or modify in any way the obligations or liabilities of any person under any other provision of`State, federal or local law, including common law, far damages, injury, loss, or for liability for nuisance abatement and nuisance abatement costs incurred by the County which results from a nuisance in the County. Sec. 49-9 Administrative penalty for failure to abate. a. In addition to the costs of administrative enforcement set forth in Section 49-7 and the administrative penalty set forth in Section 49-$, If a responsible party fails to abate a public nuisance resulting from afirst-time violation, in violation of any final order issued pursuant to this Article, within three (3) days after the notice and order is served under Section 49-5, the administrative penalty established by the order shall become effective. The administrative penalty shall not exceed one hundred dollars ($100.00). b. The administrative penalty, or any portion thereof; for failure to abate a public nuisance resulting from afirst-time violation which has become effective following the three (3) day corrective period may be waived by the Public Official in his sole discretion only if the responsible party corrects the violation in accordance with all conditions established by the Public Official. c. If a second violation of this Artiele is caused by the same responsible party within one (1) year of the first violation, and the same responsible party fails to abate a public nuisance resulting from the second violation within three (3) days, the administrative penalty shall be two hundred dollars ($200.00). d. if a third or subsequent violation of this code is caused by the same responsible party within one (1) year of the first violation, and the same responsible party fails to abate a 11 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2G 27 28 public nuisance resulting from the third violation within three (3) days, the administrative penalty shall be five hundred dollars ($500.00). e. Neither the imposition nor the payment of an administrative penalty for violating this Article in Section 49-8 nor the payment of an administrative penalty far failure to abate a nuisance pursuant to this Section 49-) shall relieve the responsible party from his/her obligation to abate any public nuisance resulting from the violation, nor shall it bar further enforcement action by the Enforcement Officer. f. Nothing in Section 49-8 nor in this Section 49-$ shall affect or modify in any way the obligations or liabilities of any person under any other provision of State, federal or local law, including common law, for damages, injury, loss, or for liability for nuisance abatement and nuisance abatement costs incurred by the County which results from a nuisance in the County. Sec. 49-10 Appeal to board of'supervisors. a. The written decision of the Hearing Officer required by Section 49-5 shall become final on the date it is deposited in the mail. The Hearing Officer shall notify the Clerk of the Board of Supervisors of his or her decision, the date upon which the decision became final and the last date upon which an appeal maybe made. If the Board of Supervisors does not receive an appeal within twelve (12} days of the date the Hearing Officer's decision becomes fina], the Board shall be deemed to have ratified and adopted the Hearing Officer's decision. If it is the decision of the Hearing Officer that a public nuisance exists, the owner of the property shall be responsible far paying all of the County's Abatement costs and Administrative costs, including but not limited to, those cost items set forth in the notice required by subsection (a) above. b. Within the twelve { 12) day period referred to in subsection {e}, above, the responsible party, the Enforcement Officer, or any other interested person may appeal the decision of the Hearing Officer to the Board of Supervisors of the County of Butte if such individual or entity does all of the following: 12 1. Delivers a written appeal to the Clerk of the Board of Supervisors within the twelve (12) day appeal period; and 2. Delivers to the Clerk of the Board of Supervisors within the 12-day appeal 6 7 8 9 10 12 13 14 15 1G 17 18 19 20 21 22 23 24 25 2G 27 period an appeal fee in the amount set forth in Section 3-43 of this Code. c. Within fifteen (15} days of being notified by the Clerk of the Board of Supervisors, the appellant shall deposit with the Clerk of the Board an amount of money equal to the estimated cost of transcribing the oral proceedings before the Hearing Officer and the cost of duplicating seven copies of the administrative record, including all exhibits introduced at the hearing. The appellant shall be responsible for the cost of the appeal and record; provided, however, if the Board upholds the appeal and finds that no violation exists, then the costs of the appeal shall be borne by the County. d. In the event of an appeal to the Board of Supervisors, the Board shall decide the appeal based solely on the administrative record and transcript of the hearing. The Board shall review the record, transcript and evidence and then adopt, reject or modify the decision of the Hearing Officer. e. In the event of an appeal to the Board of Supervisors, the Board shall decide the appeal within ninety {90) days after receipt of the administrative record. Notice of the Board's decision shall be mailed to the property owner, the Director of Development Services, the Hearing Officer and those persons receiving notice pursuant to Section 49-5, above. See. 49-11 Recovery of administrative enforcement costs and administrative penalties. a. In the event the person who is the subject of a final administrative enforcement order fails to pay the costs of administrative enforcement upon demand by the County, the County may: 1. Proceed under the authority of Section 25845 and/or 54988 of the Government Code to have the costs specially assessed against any parcel of property owned by the 28 ~~ 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I6 17 18 19 I 20 21 22 23 24 25 26 27 28 responsible party; or 2. Commence a civil action to recover such costs from any responsible party. b. Any civil action for the recovery of the costs of abatement and civil penalties maybe joined with an action for any other relief, including mandatory or prohibitory injunctive relief or for damages to which the county may be entitled. Sec. 49-12 Payment and collection. a. Any responsible party against whom an administrative penalty has been imposed shall pay the administrative penalty immediately upon the order becoming final. b. In the event the responsible party fails to pay the administrative penalty when due, the County may take any actions permitted by law or ordinance to collect the unpaid penalty, which shall accrue interest at a rate often percent (10%) per year. c. In the event a civil action is commenced to collect the administrative penalty, the county shall be entitled to recover all costs set forth in Chapter 3, Article XV I (beginning with Section 3-150) of this code incurred by the county, associated with the enforcement, investigation, establishment and collection of the penalty. Costs include, but are not limited to, staff time and costs incurred in the enforcement, investigation, establishment and the collection of the penalty and those costs set forth in Code of Civil Procedure Sections 685.010 et seq. and 1033.5. d. The amount of any unpaid administrative penalty, plus any other costs as provided in this Chapter, may be declared a lien on real property owned by the responsible party within the county as follows: 1. Notice shall be given to the responsible party prior to the recordation of the lien, and shall be mailed first class mail postage prepaid to the last known address; and 2. When the Public Official records a lien listing delinquent unpaid administrative penalties with the county recorder's office, the lien shall specify the amount of the lien, the date of the code violations, the date of the final administrative decision, the street address, legal description, and assessor's parcel number of` the parcel on which the lien 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is imposed, and the name of the owner of the parcel according to the last equalized assessment roll; and 3. In the event that the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge and release of the lien shall be prepared by the Public Official. e. The amount of the unpaid administrative penalty, plus any other costs as provided by this Chapter, may be declared a special assessment against any real property owned by the responsible party and located within the County. The board of supervisors may impose the special assessment on one (1 } or more parcels. The amount of the assessment shall not exceed the amount of administrative penalty imposed for the violation, plus the amount of administrative penalty imposed for a failure to abate a public nuisance as directed, plus any cost authorized by other chapters of this code. The Public Official may present a resolution to the board of supervisors to declare a special assessment, and, upon passage and adoption thereof, shall cause a certified copy to be recorded with the Butte County recorder's office. The assessment may then be collected at the same time and in the same manner as ordinary taxes are collected, and shall be subjected to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary property taxes. f. The County may withhold issuance of licenses, permits and other entitlements for any property whenever an administrative penalty resulting from a code violation on that property remains unpaid. g. The county may take any action permitted far enforcement of a civil money judgment pursuant to the Enforcement of Judgement Law, California Code of Civil Procedure Section 680.010 et. seq." Sec. 49-13. Nonexclusive remedy. This Article does not exclusively regulate, enforce and/or penalize refuse disposal, unlawful dumping of refuse and the other, lesser included violations set forth above. It 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2f 27 28 supplements and is in addition to other regulatory and enforcement codes, statutes, and ordinances heretofore or hereafter enacted by the County, the State and/or any other legal entity or agency having jurisdiction. ARTICLE Il. SEIZURE ANI7 FORFEITURE OF NUISANCE VEHICLES Sec. 49-20 Findings, purpose and intent. Sec. 49-21 Nuisance vehicles. Sec. 49-22 Right, title and interest in Vehicle. Sec. 49-23 Process. Sec. 49-24 Receipts. Sec. 49-25 Evidence. Sec. 49-26 Forfeiture. Sec. 49-27 Innocent parties; return of vehicle. Sec. 49-28 Claim of interest in vehicle. Sec. 49-29 Alternative settlement procedure. Sec. 49-30 Sale of vehicles. Sec. 49-31 Nonexclusive remedy Sec. 49-20. Findings, purpose and intent. a. The Board of Supervisors finds that the problem of unlawful refuse dumping in the County is a significant, ongoing problem. It is impossible to drive along any County road for any appreciable length of time without encountering discarded rubbish. Usually, such a drive exposes one to not only significant amounts of litter, but also to the full range of large household items, such as mattresses, sofas and any number of kitchen and other appliances, abandoned automobiles and parts thereof, and numerous other types of discarded items alongside the road. The presence of roadside trash dumps impairs the charm of the diverse and beautiful lands of the County. The Board finds that this 16 1 2 3 4 5 G 7 8 9 10 11 12 I 13 14 15 16 17 1$ 19 20 21 22 23 24 25 26 27 28 significant problem has continued, in spite of the Board's best efforts to discourage and abate it. b. The Board has embarked upon an aggressive, multifacted, integrated program designed to reduce incentives for unlawful dumping, protect public health, safety and welfare and the environment, and beautify the unincorporated areas of the county, which includes but is not limited to the following: 1. The establishment in 2002 of a vehicle abatement program, including an ordinance set forth in Article X11 of Chapter l4 of the Butte County Code, and the formation of the Butte County Abandoned Vehicle Abatement Service Authority; and 2. The establishment in 2002 of a comprehensive nuisance abatement program, including the adoption of an ordinance set forth in Chapter 32A of the Butte County Code and an administrative enforcement and nuisance abatement procedure; and 3. The adoption of a an ordinance in 2004 set forth in selected portions of Article lI of Chapter 31 of the Butte County Code which specifically addresses the disposal of solid waste from multi-family dwellings, and imposes a duty upon the owners of all multi-family dwellings in the unincorporated areas of the County to subscribe to a licensed waste hauling and disposal service; and 4. The appropriation of $60,000 of County revenue in 2004 to enhance an ongoing public education program, including an elementary school education program designed to educate the public on proper waste disposal and promote recycling; and 5. The establishment of a County-wide household hazardous waste disposal program in 1999, which includes a permanent household hazardous waste disposal facility and periodic mobile household hazardous waste events in the more remote areas of the County; and 6. Periodic tire disposal amnesty events, beginning in 1993, which allow the public to dispose of waste tires for free; and 7. The establishment and continuation of an annual $5,000 per supervisorial 17 1 2 3 4 5 b 7 8 9' 10 ll 12 13 14 15 16 17 18 19 20 I 21 22 23 24 25 25 I 27' district fund and community cleanup program; and 8. An ongoing County adopt-a-highway program, which allows individuals, community groups, businesses and organizations to adopt County highways for the purpose ofmaintaining glitter-free roadside environment within the County; and 9. Lowering the cost of disposal for County residents of computer monitors, televisions and refrigerators. c. The Board finds that persons who unlawfully dump refuse pollute viewsheds and bring decay and environmental contamination to local neighborhoods where they dump such matter. Persons who unlawfully dump refuse harm the public welfare, both in ternis of the temporary, yet palpable diminution of quality of life that many individuals experience when they observe roadside trash dumps, and also by imposing on law- abiding taxpayers the cost of abating adverse environmental impacts caused by such unlawful dumping. d. The Board finds that the continued existence of the above referenced unlawful dumping problem, in spite of the Board's best efforts to discourage it,necessarily requires further strong legislative response. The Board is aware of its full range of options in this area. For example, one potential solution to such a problem would be to impose a property tax assessment which would be sufficient to pay for ongoing solid waste hauling services on every parcel of every real property owner in the County. Such an option would arguably remove the incentive of real property owners to dump refuse unlawfully, because they would already be required to fund the cost of legal refuse disposal. This option, would, however, place almost the entire burden of eradicating the problem set forth above onlaw-abiding taxpayers. The Board finds such an option inequitable, overly broad gild overly onerous, in terms of its disproportionate fiscal impact on law-abiding taxpayers. e. The Board finds that those who unlawfully dump refuse should pay as much of the cost as is possible of eradicating the problem of unlawful dumping and cleaning up refuse 28 I) 18 1 2 3~ 4 5 6 7 8 91 10 I 11 12 13 14 15 I6 171 18 I 19 20 21 22 23 24 25 26 27 28 unlawfully dumped. Correspondingly, law abiding taxpayers should pay as little of such costs as possible. Further, costs should be kept as low as possible. In order to adopt an effective, low cost program which is as equitable as possible, the Board has recently elected to pursue an approach which imposes the limited burden (set forth in Article 1 of this Chapter) on every person in the unincorporated area of the County, of arranging for lawful disposal of their refuse. f Further, a portion of the approach the Board has recently elected to pursue through this ordinance involves the implementation of the administrative enforcement program set forth in Article I of this Chapter. The Board finds that administrative enforcement is much more cost effective than law enforcement conducted through the courts, because it eliminates long periods in which County employees must wait through long court calendars for County Code cases to be called. Further, administrative enforcement is more streamlined, eliminating the need for multiple court appearances, while still providing adequate due process to safeguard the rights of the accused. g. The Board finds that protection of the public welfare is best accomplished through preventing crime from occurring in the first instance. The Board finds that adequate deterrence is an essential element of the enforcement of laws against unlawful refuse dumping, because preventing a significant number of unlawful dumping violations would result in a more pleasant County roadside environment, while significantly lowering the costs of law enforcement and cleanup. h. Hence, the Board has elected to add the supplemental deterrent value of the vehicle seizure and forfeiture provisions set forth in this Article II, in order to enhance the effectiveness of the unlawful dumping enforcement program. The Board finds it is likely that an enforcement program which encompasses the seizure and forfeiture of vehicles used to facilitate the unlawful dumping of refuse in the unincorporated areas of the County will provide preventative effects, as set forth below. i. The Board finds that vehicles are an indispensable tool for those who engage in 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 I 15 I 16 17 18 l9 20 21 22 23 24 25 2G 27 28 unlawful refuse dumping, and that removing such vehicles from the possession of said perpetrators could well render them, at least temporarily, unable to engage in such reprehensible conduct, thereby preventing such crimes from occurring. The Board also finds that revenue realized from the seizure and forfeiture of such vehicles will partially offset the high cost to Butte County taxpayers of the removal of the visual pollution caused by such unlawful dumping, as well as the cost of abating adverse environmental impacts. j. The Board finds that vehicles are generally very important to most people's lives and livelihoods, particularly in the more rural unincorporated areas of the County, and that adopting an ordinance which calls for the seizure and forfeiture of vehicles used in the commission of unlawful refuse dumping violations represents an innovative legislative measure which maybe criticized as overly severe. However, the Board also finds that it is often necessary to affect people's lives significantly in order to deter and/or prevent them from committing crimes. In this regard, the Board finds specifically that providing for the removal from perpetrators of the most essential instrumentality tothe commission of the specific crime targeted is an eminently reasonable remedial measure. Further, in order to achieve the above expressed goals of the enforcement program the Board has elected to implement, the Board finds that this innovative measure is necessary to shift, to the maximum extent possible, the financial burden of cleanup and other costs from law-abiding taxpayers to perpetrators, in order to better conserve on expenditures of revenue generated by law-abiding taxpayers. k. Hence, the Board declares the seizure and forfeiture of vehicles described in this Article Il to be remedial in nature, because, as set forth above, it is a necessary prophylactic measure intended to prevent the commission of unlawful refuse dumping violations from occurring in the first instance, through the preventative effects set forth above, as well as to offset the high costs of cleanup and other expenses. Sec. 49-21. Illegal Dumping; Public Nuisance Vehicle. 20 No person shall dump, deposit, place or bury in or upon any lot, land or public place, or 5 6 7 8 9 10 11 12 I 131 14 15 1G 17 in any water or waterway, any refuse, Solid Waste, as defined in Section 49-1 of Article I of this Chapter, or any deleterious or offensive substance, or any substance condemned by the health officer of the County; provided, however, this section shall not apply to any land used by the County for a disposal or reclamation site. Any vehicle used to facilitate the illegal dumping of refuse in violation of this Section is declared a nuisance, and the vehicle shall be subject to seizure and forfeiture as provided in this Article. Any person or his or her servant, agent, or employee who owns, leases, possesses, conducts, uses or maintains any vehicle (hereinafter referred to as the "Vehicle"}, used for any of the purposes or acts set forth in this section is guilty of a public nuisance. Sec. 49-22. Right, title and interest in Vehicle. All right, title and interest in any Vehicle described in Section 49-21 shall vest in the County upon commission of the act giving rise to the nuisance under this Article. Sec . 49-23. Process. a. Vehicles subject to forfeiture under this Article may be seized by any peace officer upon process issued by any court having jurisdiction over the Vehicle. Under this Article, seizure without process may be made if any of the following situations exist: 18 19 20 Article. 21 22 23 24 25 26 27 z8 1. The seizure is incident to an arrest or a search pursuant to a search warrant; or 2. There is probable cause to believe the Vehicle was used in violation of this Sec.49-24. Receipts. Receipts for vehicles seized pursuant to this Article shall be delivered to any person out of whose possession such vehicle was seized, in accordance with Section 1412 of the Penal Code. Sec.49-25. Evidence. The District Attorney may institute and maintain criminal proceedings under this Chapter andlor pursuant to State law. Property seized pursuant to Section 49-23, where 21 appropriate, may be held for evidentiary purposes with regard to any proceeding authorized pursuant to this Chapter. The District Attorney shall institute and maintain the civil forfeiture proceedings against any Vehicle subject to forfeiture as described in 5 6 7 8 9 10 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28~ the Article. Sec.49-26. Forfeiture. a. if the District Attorney determines the factual circumstances warrant forfeiture of a Vehicle described in Section 49-21, the District Attorney shall begin forfeiture proceedings as further described herein. b. The District Attorney shall cause a notice of the seizure and of the intended forfeiture proceedings, as well as a notice stating that any interested party must file a verified Claim Opposing Forfeiture with the Superior Court in Butte County, said Notice and Claim Opposing Forfeiture to be served by personal delivery or by registered mail upon the person out of whose possession the vehicle was seized and any person who reasonably appears to have an interest in said Vehicle. Whenever a notice is delivered pursuant to this section, it shall be accompanied by a claim form as described in Section 49-28, along with directions for timely filing and service of an Endorsed Filed Claim Opposing Forfeiture upon the Office ofthe District Attorney. The Notice described herein shall also be published once a week for three consecutive weeks, in a newspaper of general circulation in Butte County or in the county from which the vehicle was seized. The District Attorney shall provide notice of the proceedings under this subsection, including the following information: 1. A description of the Vehicle; 2. The date and place of seizure; 3. The violation of law alleged with respect to forfeiture of the Vehicle; 4. The instructions for filing a Claim in the Butte County Superior of Butte County and for serving an Endorsed Filed copy of the Claim on the District Attorney pursuant to Section 49-2$ and time limits for filing and serving a timely claim. 22 1 2 3 4 5 6 7 8 9 ]0 11 12 13 14 15 16 17 18 19 20 21 22 23 I 24 I 25 26 27 28 5. Instructions that a Proof of Service demonstrating timely service of an Endorsed Filed Claim Opposing Forfeiture was served on the District Attorney, which proof of service must be filed with the Superior Court within ten (]0) days of the filing of the initial Claim Opposing Forfeiture in the Superior Court. c. An investigation shall be made by the District Attorney as to any potential claimant to a Vehicle subject to forfeiture whose right, title, interest, ar lien is of record with the Department of Motor Vehicles or appropriate federal agency. If the District Attorney finds that any person, other than the registered owner, is the legal owner thereof, anal such ownership did not arise subsequent to the date and time of arrest, notification of the forfeiture proceedings or seizure of the Vehicle, he or she shall forthwith send a Notice to the legal owner at his or her address appearing on the records of the Department of Motor Vehicles or appropriate federal agency, by registered mail along with a blank Claim Opposing Forfeiture. d. All notices shall set forth the time within which a Claim Opposing Forfeiture of the Vehicle seized or subject to forfeiture is required to be filed in the Butte County Superior Court pursuant to Section 49-28. e. With respect to a Vehicle described in Section 49-21 for which forfeiture is sought and as to which forfeiture is timely contested, the District Attorney shall have the burden of proving by a preponderance of the evidence that the Vehicle was used to facilitate the illegal activity, as set forth in Section 49-21. Trial shall be before the court or jury. f. Upon proof by a preponderance of the evidence that the Vehicle was used to facilitate any of the illegal purposes set forth in Section 49-21 of this Article, the court shall declare the Vehicle a public nuisance and subject to forfeiture, order the Vehicle seized, if not previously seized and held by the District Attorney, and order the Vehicle forfeited to the County of Butte, and include in such order that the forfeited Vehicle be sold with the proceeds distributed in accordance with this Article. A judgment of forfeiture does not require as a condition precedent thereto, that any person or criminal defendant be 23 1 2 3 4 9 10 11 12 13 14 15 1G 17 18 19! 24 21 22 23 24 25 26 27 28 convicted of an offense which made the Vehicle subject to forfeiture, provided the facts giving rise to forfeiture occurred within five years of the seizure of the Vehicle or within five years of the notification of intention to seek forfeiture. g. If no timely Claims Opposing Forfeiture are filed, and timely served on the District Attorney, the District Attorney shall prepare a written administrative Declaration of Forfeiture of the Vehicle as evidence of the title passing to the County. The written declaration of forfeiture signed by the District Attorney under this section shall be deemed to provide good and sufficient title to the forfeited Vehicle. The District Attorney ordering forfeiture pursuant to this section shall provide a copy of the Declaration of Forfeiture to any person who received notice of the forfeiture proceedings. Thereafter the District Attorney shall sell the forfeit vehicle and cause the proceeds from the sale to be distributed in accordance with this Article. h. If a claim is timely filed and timely served on the District Attorney, the District Attorney shall file a Complaint for Forfeiture against the defendant Vehicle in the Superior Caurt within thirty (30) days of receipt of the Endorsed Filed copy of the Claim Opposing Forfeiture. Thereafter within thirty (30) days of the service of the Complaint for Forfeiture, a claimant shall file a verified Answer to the Complaint for Forfeiture unless for good cause shown prior to the thirty (30} day deadline, the court extends the time for the filing of the Answer. i. A Complaint for Forfeiture under this subdivision shall be filed as soon as practicable, but in any case within one year afthe seizure of the Vehicle which is subject to forfeiture Sec. 49-27. Innocent parties; return of vehicle. Notwithstanding the provisions of this Article, the District Attorney shall return a seized Vehicle upon the timely filing and timely service of the Claim Opposing Forfeiture pursuant to Section 49-28 and upon a showing by the claimant that the facts in any of subdivisions "a", "b", "c", or "d" of this Section exist. As a condition to the return of 24 1 2 3 4 5 6 7 8 c~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 said Vehicle the claimant shall pay to the County all of the costs of towing and storing said Vehicle as well as any release fee or charge. The foregoing fees can be waived ifthe Vehicle was seized without probable cause at a hearing to be requested by the claimant. a. The Vehicle is owned by two or more persons and there is a community property interest in the Vehicle by a person other than the person who used the Vehicle to facilitate illegal dumping of refuse, and the Vehicle is the sole vehicle available to the person's immediate family; or b. The Vehicle is owned by the employer of the person who used the Vehicle to facilitate illegal dumping of refuse and employer timely files and timely serves on the a copy of the Claim Opposing Forfeiture on the District Attorney, along with a declaration or affidavit under penalty of perjury that he or she had no knowledge of the illegal dumping, which a reasonable trier of fact would find is supported by the nature of the evidence, and the nature of the refuse or substances found to be dumped; or c. The Vehicle is owed by a rental car agency with a duly executed contract with the person who used the Vehicle to facilitate the illegal dumping of refuse. d. The provisions of this Article relative to forfeiture of Vehicles shall not apply to a common carrier, or to an employee acting within the scope of his employment in the enforcement of this Article. Sec. 49-28. Claim of interest in vehicle. a. Any person claiming an interest in a Vehicle seized pursuant to this Article shall, at any time within ten (10) days from the date of actual notice of seizure or within thirty (30) days from the first date of the published Notice in the newspaper, whichever comes first, file with the Superior Court of Butte County a Claim Opposing Forfeiture, verified in accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the Vehicle. b. An endorsed copy of the claim shall be served by the claimant on the District Attorney within ten (10) days of the filing of the Claim Opposing Forfeiture with the 25 1 2 3 4 5 6 7 c~ l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court. c. Thereafter, Claimant shall file in the Superior Court a proof of service showing the timely service of the endorsed claim on the District Attorney. d. The District Attorney shall develop a verified Claim Opposing Forfeiture form to be filed pursuant to this Section. The official claim forms shall be drafted in nontechnical language and shall be modeled after the Judicial Counsel approved Claim Opposing Forfeiture forn~s created for making a claim in state drug asset forfeiture cases wider California Health & Safety Code § 11469 et seq. e. If a verified timely claim is filed, timely served and a timely proof of service is on file with the Superior Court, the forfeiture proceeding shall be set for hearing on a day not less than thirty (30} days therefrom, allowing for adequate Discovery to take place. f. The hearing shall be before the court or jury. g. The provisions of the Code of Civil Procedure shall apply to proceedings under this Article unless otherwise inconsistent with the provisions or procedures set forth in this Article. However, in proceedings under this Article, there shall be no joinder of actions or coordination of actions, except for forfeiture proceedings orcross-complaints, and the issues shall be limited strictly to the questions related to this Article. Sec. 49-29. Alternative settlement procedures. a. Any person, or his or her servant, agent or employee who owns, leases, conducts, uses or maintains, any vehicle to illegally dump refuse and whose vehicle has been seized in accordance with this Article may request to execute a voluntary settlement agreement with the County for the return of the Vehicle. Such request shall be made in writing or orally to the District Attorney. b. The minimum amount of the settlement agreement shall be sufficient to cover all of the County's reasonable administrative costs, including towing, storage costs, attorney's fees and personnel time for the seizure and forfeiture action. c. The Board of Supervisors delegates the actual amount of settlement to be set in the good faith, sound, and binding discretion of the District Attorney. 26 21 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. The executed settlement agreement shall be accompanied by the appropriate settlement fee amount in the form of a money order, cash or cashier`s cheek. All settlement funds shall be distributed as set forth in Section 49-30, subdivisions "a", "b" and "c." Sec. 49-30. Sale of vehicles. In all cases where a Vehicle seized pursuant to this Article is forfeited to the County, the Vehicle is prohibited from being placed into service with the County and shall be sold with the proceeds of the sale to be distributed and appropriated as follows: a. To the bona fide or innocent purchaser, conditional vendor, mortgagee or secured lien holder of the Vehicle, if any, up to the amount of his or her secured interest in the Vehicle, when the court, District Attorney declaring the forfeiture and sale of the Vehicle orders a distribution to that person. b. To the County for all expenditures made or incun•ed by it in connection with the publication of the notices set forth in this Article, and sale of the Vehicle; including expenditures for any necessary repairs, towing, storage or transportation of any Vehicle seized under this Article. c. The remaining funds shall be placed in the General Fund, subject to appropriate accounting controls and financial audits for all deposits and expenditures. d. All the funds distributed pursuant to subparagraph "c" of this Section should be placed in an isolated interest bearing trust fund and shall not be used to supplant any funds that would, in the absence of this subdivision, be made available to support the law enforcement and prosecutorial efforts ofCountydepartments. Said funds shall be subject to appropriate accounting controls and financial audits for all deposits and expenditures. Sec. 49-31. Nonexclusive remedy. This Article is not intended to be utilized as the exclusive enforcement mechanism for the unlawful dumping ofrefuse, because, as set forth above in Section 49-20, this Article is not intended to be utilized to punish offenders. This Article is intended to be remedial 27 1 2 3 4 _5 6 7 8 9 14 11 12 13 14 15 16 17 18 191 ~0 I 21 22 23 24 25 26 27 in nature and to supplement and to be utilized in addition to other regulatory and enforcement codes, criminal and other statutes and ordinances heretofore or hereafter enacted by the County, the State or any other legal entity or agency having jurisdiction." Section 2. The Board of Supervisors hereby finds that the approval of this Ordinance is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations Section 15307 this Ordinance constitutes an action taken by a regulatory agency as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment pursuant to State CEQA Guidelines section 15307. Therefore, County staff is hereby directed to file a Notice of Exemption upon adoption of this Ordinance. Section 3. Severability. If any provision of this Ordinance or the application thereof to any person or circumstances is for any reason held to be invalid by a court of competent jurisdiction, such provision shall be deemed severable, and the invalidity thereof shall not affect the remaining provisions or other applications of the Ordinance which can be given effect without the invalid provision or application thereof. Section 4. Effective Date and Publication. This Ordinance shall take effect thirty (30) days after the date of its passage. The Clerk of the Board of Supervisors is authorized and directed to publish this ordinance before the expiration of fifteen (15) days after its passage. This Ordinance shall be published once, with the names of the members of the Board of Supervisors voting for and against it, in the Enterprise Record, a newspaper of general circulation published in the County of Butte, State of California. PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of California, on the 25`h day of January 2005 by the following vote: AYES: Supervisors Connelly, Dolan, Houx, Josiassen and Chair Yamaguchi NOES: None ABSENT: None NOT VOTING: None ?g ~~ 2$ 1 2 3 4 5 6 7 8 (~ 1V 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTEST: PAUL McINTOSH, Chief Administrative Officer and Clerk of the Board By r" ' •, g. ~ordinancc~~79 Comp Unlaw Cal Damping Ord final 1 '~~ ~~ `\ ~_- Kim K. Yamaguchi , Chair of the Butte County Board of Supervisors 29