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HomeMy WebLinkAbout3936Ordinance No. 3936 1 AN ORDINANCE REGARDING FIREWORKS, FIRE PREVENTION AND PROTECTION 2 AMENDING SECTION 1-7, ARTICLE XVI OF CHAPTER 3, CHAPTER 38 AND 3 CHAPTER 38A OF THE BUTTE COUNTY CODE 4 The Board of Supervisors of the County of Butte ordains as follows: 5 Section 1. Section 1-7 of the Butte County Code is amended to read as follows: 6 1-7 General penalty; continuing violations. 7 {a) Whenever in this Code or in any other ordinance of the county or in any rule or 8 regulation promulgated pursuant thereto, any act is prohibited or made or declared to 9 be unlawful or an offense, or the doing of any act is required or the failure to do any 10 act is declared to be unlawful or a misdemeanor, where no specific penalty is 11 provided for, the violation of any such provision of this Code or any other ordinance, 12 rule or regulation of the county shall be punished by a fine not exceeding one 13 thousand dollars ($1,000} or imprisonment for a term not exceeding six (6) months, 14 or by both such fine and imprisonment. 15 (b} Notwithstanding any provision ofthis Code to the contrary in subsection {a} above 16 or in chapter 4, 10, 11, 13, 14, 19, 23B, 24, 26, 26A, 26B, 27, 28, 28A, 2$B, 31, 32, 17 33, 37, or 38, whenever any provision in any of said chapters provides that any act is i 8 prohibited or made or declared to be unlawful or a misdemeanor or an infraction, or 19 requires the doing of any act or declares the failure to do any act unlawful or a 20 misdemeanor or an infraction, the violation of such provision maybe charged as an 21 infraction and punishable as specified in section 41-5. This subsection (b) shall apply 1 to the violation of any provision described herein, including but not limited to the 2 following sections of this Code: 4-1, 4.1.1, 4-1.2, 4-1.3, 4-1.5, 4-2, 4-3, 4-13, 10-1, 3 10-2, 10-8, 10-22, 11-2, 11-4, 11-5, 11-6, 11-7, 11-8, 11-10, 11-11, 11-18, 13-3, 13- 4 104(a), 14-1,14-4, 14-5,14-12, 14-15, 14-21,14-28,14-30, 14-47, 14-48, 14-61, 14- 5 80, 14-91, 19-3, 19-4, 19-5, 14-7, 19-18, 23B-3, 23B-10, 24-4, 24-5, 24-6, 24-36.2, 6 24-631, 24-68, 26-6, 26A-4, 26A-12, 26B-5, 27-6, 28-4, 28A-2, 28B-2, 31-I, 31-5, 7 31-7.5, 31-8, 31-8.5, 31-11, 32-10, 33-3, 33-4, 37-7, 37-8, 37-9, 37-16, 37-22, 37-23 $ and 38-4. 9 (c} Every day any violation of this Code or any other ordinance, rule or regulation of 10 the county continues shall constitute a separate offense. 11 Section 2. Sections 3-150 and 3-152 of Article XVI of Chapter 3 of the Butte County Code is 12 amended to read as follows: 13 3-150 Definitions. 14 For the purpose of this Article, certain words are defined as follows: 15 (a) The term "County Code" shall mean the Butte County Code. 16 (b) The term "Enforcement Officer" shall include the Director of Development 17 Services, Building Official, Director of the Department of Public Works, Director of 18 Environmental Health, Treasurer-Tax Collector, Fire Chief, Clerk of the Board of 19 Supervisors, Sheriff, District Attorney, County Counsel, and their designees. 20 (c) The term "Person" means any natural person, firm, association, club, organization, 2 i corporation, partnership, business trust, company or other entity which is recognized 22 bylaw as the subject of rights or duties. 23 {d} The term "Abatement Costs" means any costs or expenses reasonably related to z 1 the abatement of conditions which violate the Butte County Code, and shall include, 2 but not be limited to, enforcement, investigation, collection and Administrative Costs, 3 and the costs associated with the removal or correction of the violation. 4 (e) The term "Administrative Costs," shall include the cost of County staff time 5 reasonably related to enforcement, for items including, but not limited to, site 6 inspections, investigations, summaries, reports, notices, telephone contacts and 7 correspondence, as well as time expended by the Enforcement Officer and Auditor- 8 Controller staff calculating the above costs and preparing itemized invoices showing 9 such casts. Costs for travel time for inspections shall not be included. 14 (f) The term "County" shall mean the County of Butte. 11 3-152 Billing of casts. 12 Upon completion of an abatement of conditions which violate the Butte County Cade 13 by the Enforcement Officer, he ar she shall send to the notified owner or occupant or 14 appellant by certified mail a notice stating: 1 S 1. The total Abatement Costs and Administrative Costs; and 16 2. That the Abatement Costs and Administrative Costs shall be specially assessed 1'7 against and shall become a lien against the subj ect property unless paid within forty- 18 five (45) days from the date of the notice. Tf the said Abatement Costs and 19 Administrative Costs are not paid within forty-five (45) days of the billing date, the 24 Enforcement Qfficer shall thereafter file with the Board of Supervisors an itemized 21 statement of Abatement Costs and Administrative Costs. 22 Section 3. Section 38-9 of Chapter 38 of the Butte County Code is amended to read as follows: 23 3$-9 Violation and penalty. 3 1 (a) Whenever any act is prohibited by this chapter, or is made or declared to be 2 unlawful, or an offense, or the doing of any act is required or the failure to do any act 3 is declared to be unlawful, the violation shall be punished by a fine not to exceed the 4 amount of one thousand dollars ($1,000.00} or imprisonment for a term not to exceed 5 six (6} months, or by both such fine and imprisonment. 6 {b) Notwithstanding subsection a above, violations of this chapter may be charged as 7 infractions, and if so charged, shall be punishable by the following fines, pursuant to 8 section 25132 of the Government Code: 9 (1) A fine not exceeding one hundred dollars ($100.00} plus penalty 10 assessment for a first violation. 11 (2} A fine not exceeding two hundred dollars {$200.00) plus penalty 12 assessment for a second violation within one {1) year. 13 (3) A fine not exceeding five hundred dollars ($500.00) plus penalty 14 assessment for each additional violation within one {1}year. 15 16 Section 4. Chapter 38A of the Butte County Code is amended to read as follows: 17 Article I. In General 18 3$A-1 Authority; title. 19 Pursuant to the authority granted to it by sections 14930 and 14931 of the Health and 20 Safely Code of the State of California, article I, section 1 of the Butte County Charter, 2i article XI, section 7 of the California Constitution and sections 25845 and 549$8 of 22 the California Government Code, the board of supervisors does enact this chapter, 23 which shall be known and may be cited as the "Fire Prevention and Protection 4 1 Ordinance." 2 38A-2 intent. 3 (a} It is the intent of this chapter to require the owners and occupants of real property 4 in the unincorporated areas of the county to maintain said properties to: 5 (1) Reduce the risk of uncontrolled fires and the harm they may cause to individuals; 6 (2) Minimize the spread of any fire to other properties and buildings; 7 (3) Reduce obstructions to fire suppression efforts if a fire does occur; 8 (4} Increase the opportunity for firefighters to successfully protect lives, residences 9 and other valuable buildings from wildfires; 10 (S) Protect populated areas such as metropolitan areas, suburban areas, and urban and 11 rural subdivisions from encroaching wildfires; 12 (6) Reduce the spread of residential and other building fires into the wildland 13 vegetation; and 14 (7) Prevent interference with fire hazard abatement activities. 15 (b) It is the further intent of the county to seek voluntary compliance with this chapter 16 and to provide remedies if such compliance is not obtained. 17 38A-3 Effect, 18 This chapter shall supplement and be in addition to the other fire prevention and 19 protection statutes, regulations, and ordinances enacted by the state, the county or any 20 other governmental agency having jurisdiction, including but not limited to Public 21 Resources Code sections 4290 and 4291. 22 38A-~4 Administration. 23 Except as otherwise provided, this chapter shall be administered and implemented by 5 1 the Fire Chief . 2 Article IL Definitions and Requirements 3 38A-5 Definitions. 4 Except where the context otherwise requires, the following definitions shall govern S the construction of this chapter: 6 (a) "Abatement" means mitigation ar elimination of a fire hazard and such ongoing 7 maintenance as is necessary to prevent the recurrence of a fire hazard. 8 (b} "Abatement Costs" means any costs or expenses reasonably related to the 9 abatement of conditions which violate the Butte County Cade, and shall include, but 10 not be limited to, enforcement, investigation, collection and Administrative Costs, and 11 the costs associated with the removal or correction of the violation. 12 (c) "Administrative Casts" shall include the cast of County staff time reasonably 13 related to enforcement, for items including, but not limited ta, site inspections, 14 investigations, summaries, reports, notices, telephone contacts and correspondence, 1S as well as time expended by Development Services the Enforcement Officer and 1 b Auditor-Controller staff calculating the above costs and preparing itemized invoices 17 showing such costs. Costs for travel time for inspections shall not be included. 18 (d) "Discing" means tilling the soil so as to turn under or remove vegetation by 19 mechanical or hand operated methods including, but not limited to, tractor drawn soil 20 tilling equipment, self propelled rototilling equipment or hand hoeing. 21 (e} "Firebreak" means a continuous area of land which is created and maintained in 22 accordance with the requirements of section 38A-8. 23 (f) "Fire hazard" means that condition which exists when weeds, grass, rank growths 6 1 and trimmings grow or accumulate upon real property and do, or will when dry, create 2 a medium for the rapid spread of fire and therefore constitute a danger to property or 3 persons. 4 (g} "Fire Chief "means the Fire Chief of the County of Butte or his or her designees. S (h) "Grass" means any herbaceous plant, cultivated or not, which will attain, when b mature, such a height as to be a medium for the rapid spread of fire. 7 {i) "Mowing" means cutting or shredding weeds, grass and other vegetation by hand S or mechanical methods. 9 (j) "Obstruction" means any material or object, including natural growing vegetation, 10 which is placed or allowed to accumulate so as to interfere with fire suppression or 11 the abatement of fire hazards. 12 (k) "Occupant" means an adult person or an entity having a possessory interest in real 13 property. "Occupant" includes a tenant, resident or other person or entity having 14 possession, use or contras of the property. 15 (1) "Owner" means an adult person or an entity having an ownership interest in real 16 property. "Owner" does not include persons having only a security interest in the 17 property. 1$ (m) "Rank growth" means vegetation of any type, cultivated or not, which has l9 attained or will, if allowed to mature, attain such a height and density as to be a 20 medium for the rapid spread of fire. 21 (n) "Rural lands" means those lands in the unincorporated area of the County of Butte 22 which are not "urban lands" as defined below. 23 (o) "Urban lands" means: 7 1 (1) Those lands in the unincorporated area of the County of Butte which are 2 inside the spheres of influence of the cities of Biggs, Chica, Gridley, Oroville and 3 Paradise, as such spheres are established and amended from time to time by the Butte 4 County local agency formation commission; and 5 (2) Those lands outside said spheres of influence but within an approved .. 6 subdivision which has lots six {6} acres in size or smaller, where fifty (50) percent or 7 more of the lots within such subdivision have been developed and improved with 8 residences. 9 (3) Those lands outside said spheres of influence but within the community 10 of Palmeo and within these geographical boundaries: North boundary of Ophir Rd 11 to the East boundary of South Villa Rd to Occidental Avenue, to the South boundary 12 of Palermo Rd, to the West boundary of Wyman Ave to Oroville city limits. 13 {4) Those lands outside said spheres of influence but within the North Chico 14 Specific Plan, within these geographical boundaries: North boundary of Rock Creek, 15 North of Keefer Rd, to the East boundary of Hicks Lane to the Chico city limit at the 16 Chico Municipal Airport, to the South boundary of Sycamore Creek, to the West 17 boundary of Highway 99. 1 S (p) "Weed" means any plant, whether herbaceous or woody and of whatever height, 19 except a tree, which grows wild. 20 3$A-6 Declaration of nuisance. 21 Afire hazard as defined above is a public nuisance which may be abated in 22 accordance with the provisions of this chapter. 23 3$A-7 Duty of owners and occupants. 8 1 It is the duty of every owner and occupant of real property within the unincorporated 2 areas of Butte County set forth in section 38A-5 to comply with the firebreak 3 requirements specified in section 38A-8 and to prevent fire hazards from arising on, 4 or existing upon, his or her property. A failure to comply with the mandatory duty S set forth above in this section 38A-7 by failing to prevent fire hazards from arising on, 6 or existing upon, one's property is unlawful and punishable as a misdemeanor. 7 38A-8 Firebreak requirements. 8 (a) Purpose. Firebreaks shall be created and maintained on real property, where a fire 9 hazard exists, to slaw or stop the spread of fire under normal summer fire season 10 conditions. 11 (b) Criteria to be considered. The following criteria shall be considered by the Fire 12 Chief in determining the firebreak requirements applicable to any property. Firebreak 13 requirements less than the maximums specified below are favored where such lesser 14 requirements are determined by the Fire Chief to be consistent with the intent of this 15 chapter. 16 (1 }Location of buildings on or in close proximity to the property. 17 {2) Type, density and condition of vegetation on the property or on adjacent 18 property. 19 (3) Existence of flammable or otherwise hazardous materials on the property 20 or on adjacent property; and 21 (4) Existence of natural or other existing firebreaks on the property ar on 22 adjacent property. 23 (5} The slope and other characteristics of the terrain which may make the 9 1 creation and maintenance of firebreaks infeasible. 2 (c) Rural land maximum requirement. Upon consideration of the purpose and criteria 3 specified in subsections (a) and (b) above, the Fire Chief shall require firebreaks 4 one-hundred {100) feet wide around inhabited residences and buildings, and shall 5 require fire breaks of thirty {30) feet around all uninhabited buildings. The owner or 6 occupant of a property shall only be required to create and maintain firebreaks on his 7 or her awn property. All firebreaks required shall be created and maintained by 8 mowing to a maximum height of three {3} inches, discing or removing the annual 9 weeds and grasses and other rank growth which is the primary flammable vegetation, 10 and by removing obstructions. 11 {d) Rural lands lesser requirements. On rural lands firebreak requirements around 12 residences and buildings less than the maximum specified in subsection ©) above 13 shall be favored where they are determined by the Fire Chief to be consistent with the 14 intent of this chapter and where the lower density of improvements and the type of 15 vegetation poses a lesser threat to lives, residences and other buildings. 16 (e} Agricultural lands. 17 (1} On imgated pasture and on irrigated crops and orchards, firebreaks shall 18 not be required. 19 (2) On non-irrigated pasture lands the Fire Chief shall require firebreaks of 20 one hundred (100) feet around all inhabited residences and buildings, and shall 21 require fire breaks of thirty {30) feet wide around all uninhabited buildings. 22 (3} On non-irrigated pasture lands the Fire Chief may require firebreaks of 23 thirty (30} feet wide around all property lines. Specific lot line and number of hoofed 10 1 animals will be considered prior to requiring said thirty {30) foot wide property line 2 firebreak. The standard equation for all hoofed animals will be {I) acre of "feed" per 3 hoofed animal. if the number of hoofed animals exceeds the number of acres in said 4 parcel the owner and occupant may be exempt. 5 (f} Modification of requirements for environmental factors. The Fire Chief may 6 approve reduced firebreak requirements around residences and buildings to mitigate 7 erosion potential on steep slopes, to prevent destruction of unique wildlife habitat, 8 endangered species andlor vernal pools, or for other environmental factors. Each 9 special circumstance will be evaluated based on the facts of the situation. The Fire 10 Chief is encouraged to coordinate with soil conservation, fish and game, corps of 11 engineers, water quality or other agency representatives when weed abatement 12 activities aze indicated on properties where significant environmental considerations 13 may arise. 14 (g) Shrubs. Specimen shrubs may be retained within firebreaks, provided that: 15 (1) They are spaced at a distance equal to no less than three {3) times their 16 widest diameter, and are not less than fifteen (15) feet from other specimens or 17 buildings. 18 (2) All specimens are kept free of dead wood and litter. 19 (3) All specimens shall be trimmed a minimum of two (2) feet up from the 20 ground or one-third of their height, whichever is greater. 21 {h) Trees. Specimen trees may be retained within firebreaks provided that: 22 (1 }All specimens are kept free of dead wood and litter. 23 {2}All conifer specimens shall be trimmed of limbs to a minimum of one~third 11 1 of their height from the ground or twelve (12) feet up from the ground, whichever is 2 lesser. 3 {3) All nonconifer specimens shall have all limbs under one (1} inch in 4 diameter removed to a point one-third of the height of the tree above the ground or 5 twelve (12) feet up from the ground, whichever is lesser. 6 (4) Crowns of adjacent specimens are not interlaced so as to constitute a 7 medium for the rapid spread of fire. 8 {i) Fire resistive vegetation. Firebreaks may include fire resistive vegetation such as 9 green lawns, ice plant, green ivy, and other plants recognized by the Fire Chief as 10 being fire resistive. Any fire resistive plants must be maintained in a state so as to 11 resist the spread of fire. 12 (j} Urban lands. Upon consideration of the purpose and criteria specified in 13 subsections {a) and {b} above, the Fire Chief may require the following firebreaks: 14 (1) On lots or parcels on urban lands which are one and one fourth (1.25) acre 15 in size or smaller and unimproved with residences or other valuable buildings, 1 b firebreaks may be required on the entire area of each lot or parcel. On lots or parcels 17 on urban lands which are more than one and one fourth (1.25) acre in size and 18 unimproved with residences or other valuable buildings, firebreaks may be required 19 adjacent to and along all property lines far a maximum width of thirty (30) feet. 20 Required firebreaks may be created by mowing to a maximum height of three (3) 21 inches, discing or removing the annual weeds, grasses, rank growth and trimmings, 22 and by removing obstructions. 23 (2} On lots ar parcels on urban lands improved with residences or other 12 1 valuable buildings, the firebreak requirements around residences or buildings shall be 2 the same as specified in subsection {c) above for rural lands. In addition, where there 3 is an existing fire hazard on said lots or parcels, more than one-hundred (100} feet 4 from residences or other valuable buildings and within thirty (30} feet of the property 5 lines, a firebreak of thirty (30}feet maximum width adjacent to and along the property 6 lines maybe required. Required firebreaks maybe created in the manner described 7 in subsection ~)(1) above. 8 Article YII. Notice of Existence of Fire Hazard 9 38A-9 Notice. 10 Whenever the Fire Chief determines that a fire hazard exists on real property, he or 11 she is authorized by this Chapter 38A to notify the owner(s) and/or occupant{s} of the 12 property, through issuance of an "Order to Abate Fire Hazard." 13 38A-10 Contents of order. 14 The Order set forth in section 38A-9 shall be in writing and shall: 15 (a) Identify the owner(s) of the property upon which the nuisance exists as named in 16 the records of the county assessor and identify the occupants}, if other than the 17 owners}, and if known or reasonably identifiable. 18 {b) Describe the location of such property by its commonly used street address, giving 19 the name or number of the street, road or highway and the number, if any, of the 20 property. 21 {c) Identify such property by reference to the assessor's parcel number. 22 (d) Describe the fire hazard which exists and the firebreak required to abate it. 23 {e) State that the Order requires abatement of the fire hazard within fourteen (14) days 13 1 after the date that said Order was served and that failure to do so maybe charged as 2 a misdemeanor violation of the provisions of this chapter pursuant to section 38A-21. 3 (f) State that if the violation of any provision of this chapter continues to exist on or 4 after the date of any violator's conviction of violating said provision, the Fire Chief S may submit a notice of violation to the county recorder for recordation pursuant to 6 section 38A-21(b). 7 (g) State that the owner and/or occupant may, within fourteen (14) days of the date 8 of the Order, appeal the determination of the Fire Chief that a fire hazard exists. The 9 appeal shall be submitted pursuant to section 38A-13. 10 {h) State that, unless the owner and/or occupant so notified abates the fire hazard 11 within fourteen (14) days of the date of service of the Order or timely appeals the 12 determination of the Fire Chief, the Fire Chief may abate the fire hazard and may 13 charge both the cost of the abatement and the cost of administration to the owner 14 and/or occupant so notified. It shall also state that if the owner has been notified but 1 S does not pay the cost of such abatement, together with the cost of administration, such 16 costs may be made a special assessment and lien against the property pursuant to 17 section 38A-26. 18 (i) State that, unless the owner and/or occupant so notified abates the fire hazard or 19 timely appeals the determination of the Fire Chief within fourteen (14) days of the 20 date of the Order, the Fire Chief may impose an administrative penalty at the rate of 21 $200 for every acre of land upon which a fire break was not maintained in accordance 22 with the requirements of Section 38A-8. Said administrative penalty maybe levied 23 in increments of one-tenth of an acre. 14 1 (}) State that any person upon whom an Order to Abate Fire Hazard has been served 2 may request an administrative review of the accuracy of the contents of the Order 3 and/or the propriety of any administrative penalty by: 4 (1) Filing a written notice of appeal with the Fire Chief na Iaer than fourteen 5 (14) days after the date of service of the Order to Abate Fire Hazard; and 6 (2} including within the notice of appeal all facts supporting the appeal and 7 any statements and evidence, including copies of all written documentation and a list 8 of any witnesses, that the appellant wishes to be considered in connection with the 9 appeal. 10 3$A-~ 1 Service of order. 11 (a) The Order set forth in section 38A-4 shall be served by delivering it personally 12 to the owner and/or occupant, or by mailing it by regular mail, together with a 13 certificate of mailing, to the occupant of the property at the address thereof and to the 14 nonoccupying owner at his or her address as it appears on the last equalized 15 assessment roll, except that: 16 (1) If the records of the county assessor show that the ownership has changed 17 since the last equalized assessment roll was completed, the Order shall be mailed to 18 the new owner at his or her address as it appears in said records; or 19 (2) In the event that, after reasonable effort, the Fire Chief is unable to serve 20 the Order as set above, service shall be accomplished by posting a copy of the Order 21 on the premises of the project, as provided in section 38A-12. 22 (b} The date of service is deemed to be the date of mailing, personal delivery, or 23 posting, as applicable. is I 38AW12. Posting of order. 2 if the address of the new, nonoccupying owner is not in the county assessor's records 3 and is not otherwise discovered, the Order set forth in section 38AA maybe served 4 an such owner by pasting copies along the frontage of the subject property and at 5 such other locations on the property reasonably likely to give notice to the owner. In 6 no event shall fewer than two {2} copies of the Order be posted on a property pursuant 7 to this section. 8 Article TV. Hearing an Existence of Fire Hazard 9 38A-13 Administrative review of order. 1Q (a) Any person upon whom an Order to Abate Fire Hazard has been served may 11 request an administrative review of the accuracy of the contents of the Order andlor 12 the propriety of any administrative penalty by filing a written notice of appeal with 13 the Fire Chief no later than fourteen (14) days after the date of service of the Order 14 to abate fire hazard. The notice of appeal must include all facts supporting the appeal 15 and any statements and evidence, including copies of all written documentation and 16 a list of any witnesses, that the appellant wishes to be considered in connection with 17 the appeal. The time requirement for filing an appeal shall be deemed jurisdictional 18 and may not be waived. In the absence of a timely filed notice of appeal which 19 complies fully with the requirements of this Section 3$A-13, the findings of the Fire 20 Chief contained in the Order shall be deemed true and correct, and the Order shall 21 become final and binding on the fifteenth day fallowing service of the Fire Chiefls 22 Order. 23 (b) Upon timely receipt of a notice of appeal which complies with the requirements 15 1 of this Section 38A-13, the Fire Chief shall refer the matter to a Hearing Officer, 2 designated pursuant to the protocol set forth in Section 38A-17{a), to conduct a 3 hearing. Notice of the hearing shall be sent by first class mail postage prepaid to the 4 persons filing the appeal. The notice shall state the date, time and place of the hearing S (which in na event shall be sooner than seven (7} days from the date of mailing, 6 unless otherwise agreed to by the responsible party and the Fire Chief.) 7 38A-14. Liability, administrative penalty. 8 {a) In any enforcement action brought pursuant to this Chapter 38A, whether by 9 administrative proceedings, judicial proceedings or summary abatement, the person 10 who creates or has created the fire hazard shall be liable for all costs set forth in 11 Chapter 3, Article XVI (beginning with Section 3-150) of this code incurred by the 12 county, including, but not limited to, administrative costs, and any and all casts 13 incurred to undertake, or to cause or compel any responsible party to undertake, any 14 abatement action in compliance with the requirements of this Chapter, whether those 15 costs are incurred prior to, during or following enactment of this Chapter; 1 fi (b) In any action by the Fire Chief to abate a fire hazard under this Chapter, whether 17 by administrative proceedings, judicial proceedings, or summary abatement, the 18 prevailing party shall be entitled to a recovery of the reasonable attorneys' fees 19 incurred. Recovery of attorneys' fees under this section shall be limited to those 20 actions or proceedings in which the Fire Chief elects, at the initiation of that action 21 or proceeding, to seek recovery of its awn attorneys' fees. in no acfiion, administrative 22 proceeding, or special proceeding shall an award of attorneys' fees to a prevailing 23 party exceed the amount of reasonable attorneys' fees incurred by the Fire Chief in 17 1 the action or proceeding. 2 (c} Unless otherwise expressly indicated, the standard of liability imposed by this 3 Article is strict liability, without regard to any element of mens rea, fault, negligence 4 or other wrongdoing. S (d} The scope of liability in this chapter is joint and several far any person who has b caused, created or contributed to a fire hazard as defined in this Article, is joint and 7 several. Any person seeking to apportion the harm must demonstrate by clear and S convincing evidence that the component of harm which is sought to be apportioned 9 is scientifically and technologically susceptible to apportionment, that there is a 10 reasonable and practicable basis for apportioning the harm, and that the separate 11 abatement activity proposed for that harm is as practicable, safe, efficient, reliable and 12 cost-effective in providing the degree of protection of the public health, safety, 13 welfare, public resources and the environment as the abatement activity or activities, 14 if any, proposed by the Fire Chief. 15 (e) An owner andlor occupant upon whom the Fire Chief has served an Order to 16 Abate Fire Hazard pursuant to the Chapter 38A and who fails to abate the fire 17 hazard(s) within fourteen {14) days of the date of the Order, is liable for and subject 18 to an administrative penalty at the rate of $200 for every acre of land upon which a 19 fire break was not maintained in accordance with the requirements of Section 3 SA-8. 20 Said administrative penalty may be levied in increments of one-tenth of an acre. 21 (f j Neither the imposition nor the payment of an administrative penalty for violating 22 this Chapter 38A shall relieve the responsible party from hislher obligation to abate 23 any fire hazard, or for liability for nuisance abatement and nuisance abatement casts 18 1 incurred by the Fire Chief, nor shall it bar further enforcement action by the Fire 2 Chief Nothing in this Section 38A-14 shall affect or modify in any way the 3 obligations or liabilities of any person for damages, injury or loss, which results from 4 afire hazard, under any other provision of State, federal or local law, including S common law. b Article V. Abatement, Enforcement, Cost Accounting and Recovery 7 38A-].5. Abatement by owner or occupant. S Any owner or occupant may abate the fire hazard or cause it to be abated at any time 9 prior to commencement of abatement by, or at the direction of, the Fire Chief. 10 38A-1G. Enforcement, cost accounting. 11 (a) Whenever the Fire Chief becomes aware that an owner andlor occupant has failed 12 to abate a fire hazard within fourteen (14) days of the date of service of the Order to 13 Abate Fire Hazard set forth in section 38A-9, the Fire Chief may: 14 (1}Issue an "Administrative Penalty Liability Order" finding that a person or 15 persons is/are responsible for a violation of section 38A-7 and directing such 16 responsible persons}to pay an administrative penalty in the applicable amount, 17 pursuant to the formula set forth in section 38A-8; andlor 18 (2) If, in the opinion of the Fire Chief, the nuisance constitutes an imminent 19 threat to public health or safety, summarily abate the fire hazard{s); andlor 2p (3) Request that the District Attorney or County Counsel immediately seek 21 relief as may be necessary or appropriate from a court of competent jurisdiction. Said 22 court, upon finding that there is, or that there is a reasonable basis upon which to 23 conclude that the conditions complained of may present a danger to the health, safety, 19 1 or welfare of the public, the environment or natural resources, arising out of or 2 resulting from said fire hazard, in whole or in part, shall grant reliefto abate the fire 3 hazard, consistent with the relevant requirements of this Chapter and the public 4 interest, to secure adequate protection of the health, safety, or welfare of the public, 5 the environment or natural resources. 6 (b) An Administrative Penalty Liability Order shall: 7 {I) Identify the owner{s) of the property upon which the nuisance exists as $ named in the records of the county assessor and identify the occupant(s), if other than 9 the owner{s), and if known or reasonably identifiable. 10 (2) Describe the location of such property by its commonly used street 11 address, giving the name or number of the street, road or highway and the number, 12 if any, of the property. 13 (3) Identify such property by reference to the assessor's parcel number. 14 (4) Describe the fire hazard which exists and the firebreak required to abate 15 it. 16 (5) State that the fire hazard was not abated within the required 14-day period 17 and the person or persons to whom the Administrative Penalty Liability Order is 1$ directed has been found liable for a violation of section 3$A-7 and shall remit l 9 payment of an administrative penalty. 20 (6) State that the Administrative Penalty Liability Order constitutes an order 2l to remit payment of an administrative penalty, in a specified amount, to the Fire Chief 22 within fourteen (14) days of the date of said Order. 23 {7) State that if the violation of any provision of this chapter continues to za 1 exist on or after the date of any violator's conviction of violating said provision, the 2 Fire warden Fire Chief may submit a notice of violation to the county recorder for 3 recordation pursuant to section 38A-21(c}. 4 (8) State that the owner and/or occupant may, within fourteen (14} days of the 5 date of service of the Order, appeal the administrative penalty liability determination b of the Fire Chief pursuant to section 38A-13. 7 (9) State that, unless the owner and/or occupant so notified remits payment 8 of the administrative penalty in the specified amount to the Fire Chief within fourteen 9 (14) days of the date of service of the Order or timely appeals the administrative 10 penalty liability determination of the Fire Chief, the Fire Chief may charge the 11 amount of the administrative penalty, the cost of the abatement, if any, and the cost 12 of administration to the owner andlor occupant so notified. Tt shall also state that if 13 the owner has been notified but does not pay the amount of the administrative penalty, 14 the cost of the abatement, if any, and the cost of administration, such casts maybe 15 made a special assessment and lien against the property pursuant to section 38A-26. lb (10) State that any person upon whom an Administrative Penalty Liability 17 Order has been served may request an administrative review of the accuracy of the 18 contents of the Order andlor the propriety of any administrative penalty by: 19 i. Filing a written notice of appeal with the Fire Chief no later than 20 fourteen (14} days after the date of service of the Administrative Penalty 21 Liability Order; and 22 ii. Including within the notice of appeal all facts supporting the appeal 23 and any statements and evidence, including copies of all written 21 1 documentation and a list of any witnesses, that the appellant wishes to be 2 considered in connection with the appeal. 3 (c) Cost accounting shall be conducted in accordance with Article XVl of Chapter 3, 4 beginning with Section 3-150. 5 (d) Nothing in this Chapter 38A shall be construed as imposing on the Fire Chief or 6 the County of Butte any duty to issue an order to abate a fire hazard, nor to abate a 7 fire hazard, nor to issue an administrative penalty liability order and neither the Fire 8 Chief nor the County of Butte shall be held liable for failure to issue an order to abate 9 afire hazard, nor far failure to abate any fire hazard, nor for failure to issue an 10 administrative penalty liability order. 11 3$A-1~'. Administrative review of order to abate fire hazard, administrative 12 penalty liability order. 13 {a} The appeal shall be heard by a Hearing Officer designated pursuant to the protocol 14 set forth in that document entitled the "Butte County Administrative Hearing Officer 15 Program." The Program is based upon an alphabetical rotation through attorneys 1 b currently under contract through the Program. The Hearing Officer shall conduct a 17 hearing concerning the appeal, which in no event shall be sooner than seven {7) days 18 from the date of mailing, unless otherwise agreed to by the responsible party and the 19 Fire Chie£ The Hearing Officer shall sustain, rescind, or modify the Order to Abate 20 Fire Hazard or the Administrative Penalty Liability Order by written decision. The 2l Hearing Officer shall have the power to waive any portion of an administrative 22 penalty in a manner consistent with the decision. 23 (b} Any administrative hearing conducted pursuant to this chapter need not be 22 1 conducted according to technical rules relating to evidence, witnesses and hearsay. 2 Any relevant evidence shall be admitted if it is the sort of evidence on which 3 responsible persons are accustomed to rely in the conduct of serious affairs, regardless 4 of the existence of any common law or statutory rule which might make improper the 5 admission of the evidence over objection in civil actions. The Hearing Officer has b discretion to exclude evidence if its probative value is substantially outweighed by the 7 probability that its admission will necessitate undue consumption of time. 8 (c) The Hearing Officer shall issue a written decision, which shall include findings 9 relating to the existence or nonexistence of the alleged fire hazard, as well as findings 10 concerning the imposition and the appropriate amount of an administrative penalty, 11 to support the decision. 12 (d} Written notice of the Hearing Officer's decision shall be given by mail within 13 seven (7} calendar days after the date of the decision to the person{s) subject to the 14 notice, the Fire Chief, and any person filing a written request for notice of the 15 decision. 16 (e) The decision of the Hearing Officer is final and effective on the date of service of 17 the written decision, is not subject to further administrative review, and constitutes 18 the final administrative decision. If judicial review of the final administrative 19 decision is not sought in accordance with the provisions of Section 3$A-18, the 20 decision of the Hearing Officer shall be deemed confirmed. 21 (f j If the applicable administrative penalty has not been paid, the amount of any 22 unpaid administrative penalty maybe declared a lien on any real property on which 23 the violation existed or exists, as provided in Section 3$A-19. 23 1 35A-1S. Judicial Review. 2 {a) Judicial Review. Pursuant to Section 1085 of the Code of Civil Procedure, any 3 person who has been named in a notice issued by the Fire Chief pursuant to this 4 chapter, may, following exhaustion of administrative remedies, seek judicial review 5 of the notice by filing a petition for writ of mandate within ninety (90) days after the 6 order becomes final and binding pursuant to this chapter. Notwithstanding the 7 provisions of Section 1094.5 or 1094.5 of the Code of Civil Procedure, any person 8 who contests a final decision issued under this Chapter regarding the imposition, 9 enforcement or collection of the administrative penalties imposed, may seek judicial 10 review of the decision by filing an appeal with the superior court within twenty (20) 11 days after service of the decision in accordance with Section 53069.4 of the 12 Government Code. Any other person who has the right to seek judicial review of the 13 decision by filing a petition for writ of mandate pursuant to Section 1085 of the Code 14 of Civil Procedure shall do so within one hundred eighty { i 80) days after the decision 15 has became final and binding pursuant to this chapter. The filing of a petition for writ 15 of mandate to review the decision shall not stay any action specified in the decision. 17 38A-19. Warning of Noncompliance. 18 (a) If the Fire Chief so elects, the Fire Chief may, instead of or in addition to any 19 other remedy, issue a written warning of noncompliance pursuant to the procedure set 20 forth in Butte County Code section 41-5.1. 21 (b) If a notice of noncompliance is recorded, Butte County permits, licenses or other 22 entitlements involving the premises shall not be issued or approved, except as 23 necessary to correct or abate the noncompliance, pursuant to Butte County Code 24 1 section 41-10; 2 38A-20. Collection of administrative penalties. 3 (a) Prior to retardation of a lien declared under this Chapter in the amount of an 4 unpaid administrative penalty, notice shall be given to the owner of the property to 5 be subject to the lien and shall be served in the same manner as a summons maybe 6 served pursuant to section 415.10 et seq. of the Code of Civil Procedure. 7 (b} The lien shall attach upon retardation in the office of the county retarder. The 8 lien shall specify the amount of the lien, the date of the violations, the date of the final 9 decision, the street address (if any), Iegal description, and assessor's parcel number 10 of the parcel on which the lien is imposed, and the name and address of the record 11 owner of the parcel. 12 {c) In the event that the lien is discharged, released, or satisfied, either through 13 payment or foreclosure, the county shall record a notice of the discharge containing 14 the information specified in subsection b. 15 {d) Any penalty collected under this section will be deposited in a separate revenue 16 fund entitled "Weed Abatement Account." 17 Article VI. Criminal Violations and Penalties 18 3$A-Zl.. Criminal violation. 19 An owner or occupant, as defined in this chapter, is strictly liable for the condition of 20 his or her real property. Allowing or maintaining a fire hazard on real property shall 21 constitute a violation punishable under section 38A-22(a) if any of the following conditions exist: 22 (a) Such fire hazard is not timely abated after the Fire Chief has notified the owner 23 ar occupant of the existence of the fire hazard pursuant to article III above and there 25 1 has been no Timely request for a hearing on the determination of the existence of such 2 fire hazard pursuant to article N above; or (b) If, after a hearing held pursuant to 3 article N above, the Hearing Officer determines that such a fire hazard exists and 4 such fire hazard is not abated in accordance with the Hearing Officer's decision S served pursuant to section 38A-17. 6 38A-22. Penalties. 7 (a} Whenever any act is prohibited by this chapter, or is made ar declared to be 8 unlawful, or an offense, or the doing of any act is required or the failure to do any act 9 is declared to be unlawful, the violation shall be punished by a fine not to exceed the 10 amount of one thousand dollars {$1,000.00) or imprisonment for a term not to exceed 11 six (6) months, or by both such fine and imprisonment. 12 (b} Upon conviction of an owner or occupant for violation of this chapter, and if the I3 violation continues to exist on or after the date of the conviction, the Fire Chief may 14 submit a notice of violation to the county recorder for recordation. Said notice of 15 violation shall include a description of the premises, a description of the violation, the 16 action necessary to abate the violation, the date of the conviction for said violation, 17 the court that entered the judgement of conviction and the case number. For the 18 purposes of this subsection, a bail forfeiture or a plea of nolo contendere shall be 19 deemed to be a "conviction." 20 38A-23. Remedies cumulative. 21 The provisions of this chapter are supplementary and complementary to all of the 22 provisians of the Butte County Code, state law and any law cognizable at common 23 law or in equity; and nothing herein shall be read, interpreted or construed in any 26 1 manner so as to bar or limit the Fire Chief from seeking any remedy to which the 2 county may otherwise be entitled. 3 38A-24. Validity. 4 If any provision of this chapter, or the application thereof to any owner, for any S reason, is held to be invalid, or unconstitutional, by a court of competent jurisdiction, b the remainder of this chapter and the application of its provisions to other persons and 7 circumstances shall not be affected thereby. 8 Section 5. Severability. If any provision of this Ordinance or the application thereof to any person 9 or circumstances is for any reason held to be invalid by a court of competent jurisdiction, such 10 provision shall be deemed severable, and the invalidity thereof shall not affect the remaining 11 provisions or other applications of the Ordinance which can be given effect without the invalid 12 provision or application thereof. 13 Section 6. Effective Date and Publication. This Ordinance shall take effect thirty {30) days after the 14 date of its passage. The Clerk of the Board of Supervisors is authorized and directed to publish this 15 ordinance before the expiration of fifteen (15) days after its passage. This Ordinance shall be 16 published once, with the names of the members of the Board of Supervisors voting for and against 17 it, in the Chico Enterprise Record, a newspaper of general circulation published in the County of 1 S Butte, State of California. 19 PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of 27 1 California, on the 13th day of June . 2006, by the following vote: 2 AYES: 5upervisars Connelly, Dolan, Houx, and Chair 3osiassen 3 NOES: Supezv3.sor Yamaguchi 4 ABSENT: None 5 NOT VOTING: None 6 7 8 9 10 11 12 l3 l4 I5 tb 17 18 l9 20 ATTEST: PAUL McINTOSH, Chief Administrative Officer and Clerk of the Board Curt J'o ' ssen, Chairman Butte County Board of Supervisors C:1Documents and SettingslMReevesllACa1 SettingslTemporary lntemet ~ilesl0LKE5138A Weed Abatement Amendments 06-I3 final.wpd 28