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Ordinance Number 402ORDINANCE NO. 402 ABATEMENT OF VEGETATION OBSTRUCTING FREE PASSAGE AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, PROVIDING FOR THE ABATEMENT OF VEGETATION CONSTITUTING A PUBLIC NUISANCE BY OBSTRUCTING THE FREE PASSAGE OF PEDESTRIANS AND/OR VEHICLES UPON OR ALONG ADJACENT PUBLIC RIGHTS-OF-WAY THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Short Title. For reference purposes, this Ordinance may be known and cited as the "San Juan Capistrano Public Nuisance (Vegetation) Abatement Ordinance". RRCTTnM 2. Dafini+inns_ As used in this Ordinance, the following terms shall have the meanings as given hereinafter: A. Enforcement Officer means any individual designated by the City Manager to enforce and/or carry out the provisions of this Ordinance. B. Finance Officer means any individual designated by the City Manager to collect fees and abatement costs required by the provisions of this Ordinance. C. Free Passage means any movement or progress free from extraneous impediment, obstruction or interference. D. Hearing Officer means the City Manager or his designee. E. Property Owner means an individual, firm or organization as listed on the Orange County Assessor's Assessment Roll of Secure Property. F. Public Sidewalk means any publicly -owned sidewalk, lane or passageway designed, constructed and used for pedestrian passage. G. Public Street means any publicly -owned street, highway or passageway designed, constructed and used for vehicle passage. H. Vegetation means any tree, bush, shrub, or other plant life or growth. SECTION 3. Declaration of Public Nuisance. The City Council hereby finds, determines and declares that the following conditions constitute a public nuisance and are a hazard and detriment to the public health, welfare and safety: A. Vegetation which interferes with or obstructs the free passage of pedestrians upon or along adjacent public sidewalks. B. Vegetation which interferes with or obstructs the free passage of vehicles upon or along adjacent public streets. -1- 354 SECTION 4. Unlawful Obstruction of Pedestrian Passage. A. Vegetation allowed, kept or maintained on any property or premise shall be deemed to interfere with or obstruct the free passage of pedestrians along or upon an adjacent public sidewalk unless those portions of said vegetation extending over a public sidewalk are kept and maintained at all times so as to have a minimum clearance of seven (7) feet above the surface of such adjacent public sidewalk. B. It shall be unlawful for any property owner to allow, keep or maintain any vegetation which interferes with or obstructs the free passage of pedestrians as herein specified. SECTION 5. Unlawful Obstruction of Vehicular Passage. A. Vegetation allowed, kept or maintained on any property or premise shall be deemed to interfere with or obstruct the free passage of vehicles along or upon an adjacent public street unless those portions of said vegetation extending over a public street are kept and maintained at all times so as to have a minimum clearance of twelve (12) feet above the surface of such adjacent public street. B. It shall be unlawful for any property owner to allow, keep or maintain any vegetation which interferes with or obstructs the free passage of vehicles as herein specified. SECTION 6. Finding and Notification of Violation. Upon a finding by the Enforcement Officer that vegetation exists which constitutes a public nuisance as herein specified, the Enforcement Officer shall establish a reasonable time for abatement compliance and cause written notice of such finding and abatement order to be served upon the property owner of the property upon which the vegetation is allowed, kept or maintained. A. Such notice shall be served upon the property owner at least ten (10) days prior to the time specified for abatement compliance. If such notice is mailed, it shall be postmarked at least fifteen (15) days prior to the time specified for abatement compliance. Such notice shall be substantially as follows: NOTICE TO ABATE A PUBLIC NUISANCE (VEGETATION) Pursuant to Ordinance No. 402 of the City of San Juan Capistrano, notice is hereby provided that it has been found and determined that on property commonly referred to as and designated by Assessor's Parcel No. , vegetation exists which constitutes a public nuisance and is a hazard and detriment to the public health, welfare and safety, to wit: interference with or obstruction of the free passage of (pedestrians) (vehicles) along or upon an adjacent public (sidewalk) (street). Accordingly, you are hereby directed to abate such nuisance by , 19 If such public nuisance is not abated in accordance with Ordinance No. 402 by the time herein specified, abatement may be undertaken by the City and the costs thereof assessed upon the property and may constitute a lien until paid. -2- Property owners haveing objections to this finding and abatement order are hereby notified that a written request to hear this matter may be filed with the Hearing Officer at any time no later than the time specified herein for abatement compliance. Reference is made to Ordinance No. 402 for further particulars, a copy of which is on file for review in the Office of the City Clerk. (Signature) Enforcement Officer Date cc: Hearing Officer SECTION 7. Hearing Before Hearing Officer. A property owner who has been served a notice as provided in Section 6 may file, at any time no later than the time specified for abatement compliance by the Enforcement Officer, a written request with the Hearing Officer to hear objections to the abatement order. Upon receipt of a timely filed request for hearing, the Hearing Officer shall initiate and conduct hearings to accept and give due consideration to all relevant testimony and evidence relative to the matter at hand. Upon completion of the hearing, the Hearing Officer shall determine whether the vegetation in question constitutes a public nuisance and is a hazard and detriment as herein specified. If an affirmative determination is made, the Hearing Officer shall order abatement of the nuisance by the property owner, within a reasonable time specified by the Hearing Officer. 2. A copy of the Hearing Officer's notice of determination ordering abatement of the nuisance shall be served upon the property owner at least ten (10) days prior to the time specified for abatement compliance. If such notice is mailed, it shall be postmarked at least fifteen (15) days prior to the time specified for abatement compliance. SECTION 8. Right of Appeal to City Council. A property owner who has been served a notice as provided in Section 7 herein may file, at any time no later than the time specified for abatement compliance by the Hearing Officer, a written notice of appeal with the City Clerk, for hearing by the City Council. A written appeal to the City Council shall set forth the name and address of the appellant, the grounds upon which the appeal is submitted and a statement of facts to support such grounds for appeal, signed under penalty of perjury as to its truth. Failure to include specific grounds or a statement of facts may be sufficient grounds for the rejection or summary denial of the appeal. Upon receipt and acceptance of an appeal accompanied by proof of payment of the appeal fee, the City Clerk shall notify the appellant by regular mail of the date set for,hearing by the City Council. -3- SECTION 9. Appeal Fee. The City Clerk shall not accept a written notice of appeal until the appellant pays an appeal fee to the Finance Officer, in an amount as set by resolution of the City Council. SECTION 10. Appeal Hearing Before City Council. A. On the date set for hearing, the City Council shall consider the grounds and facts stated by the appellant and the determination of the Hearing Officer. The City Council may, at its discretion, take any additional evidence or testimony it deems necessary to enable it to grant or deny the appeal. B. Upon completion of the hearing, the City Council shall, by minute order, express its findings and conclusions. It may deny the appeal, grant the appeal, or modify the determination and conclusions of the Hearing Officer. If the appeal is not granted, then the time specified for abatement compliance shall be as set forth by the City Council. Such findings and determination by the City Council shall be final and conclusive. C. The resolution of the City Council setting forth its findings and conclusions and the final determination shall be sent to the appellant by regular mail to the address set forth in the written notice of appeal. SECTION 11. Abatement Compliance. A. If objections to an abatement order have not been filed, or if abatement is required after objections have been heard as provided in Section 10 hereinabove, and the property owner has failed to comply with an abatement order within the time period specified, the Enforcement Officer is thereupon authorized to take appropriate action to abate the public nuisance. Prior to the initiation and commencement of abatement actions by the Enforcement Officer, a property owner may abate the nuisance as ordered, at the property owner's expense and to the satisfaction of the Enforcement Officer. SECTION 12. Abatement Costs: Report and Hearing. A. If abatement has been undertaken by the Enforcement Officer, the Finance Officer shall compile and prepare an itemized, written report noting the costs encumbered in such abatement and shall submit same to the City Council for review and confirmation. A copy of the itemized, written report and notice of its submission to the City Council shall be posted on or near the Chamber door of the City Council by the City Clerk, at least three (3) days prior to the time fixed for hearing. At the time fixed for receiving and considering the report, the City Council shall hear it with any objections of the property owner liable to be assessed for the abatement costs. After such hearing, the City Council may modify the report if deemed appropriate and then shall confirm the report by minute order. -4- SECTION 13. Abatement Costs: Assessment. A. Costs encumbered by the City to abate a public nuisance as herein provided shall constitute a special assessment against the property in question. After the assessment is made, it shall constitute a lien upon such property. B. The amount of the assessment shall be collected at the time and in the manner of ordinary municipal taxes. If delinquent, the amount is subject to the same penalties and procedure of foreclosure and sale provided for ordinary municipal taxes. C. Laws and regulations relating to the levy, collection and enforcement of County taxes apply to such special assessment taxes. D. As an alternative to assessment and lien, the Finance Officer is authorized to collect the assessment without reference to the general taxes by issuing a separate bill for abatement services provided. SECTION 14. Abatement Costs: Payment. The Finance Officer may receive the amount due on the abatement costs at any time after the confirmation of the abatement costs report and until ten (10) days before a copy is provided to the City Assessor and Tax Collector, or where a certified copy of the assessment is filed with the County Auditor and until August 1st following confirmation of the abatement costs report. SECTION 15. Refund of Monies Paid. The City Council may order refunded all or part of a tax paid pursuant to this Ordinance if it finds that all or part of the tax has been erroneously levied. Tax monies shall not be refunded unless a claim is filed with the City Clerk on or before November 1st after the tax became due and payable. Such claim shall be verified by the person, guardian, executor, or administrator who paid the tax. SECTION 16. Separability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof. SECTION 17. Effective Date. This Ordinance shall take effect and be in force thirty (30) days after its adoption. M -5- SECTION 18. Citv Clerk's Certification. The City Clerk shall certify to the adoption of this Ordinance and cause same to be posted in the duly designated posting places within the City of San Juan Capistrano within fifteen (15) days after its adoption. PASSED, APPROVED AND ADOPTED this 2nd day of April 1 1980, by the following vote, to wit: AYES: Councilmen Hausdorfer, Thorpe, Buchheim and Mayor Friess NOES: None ABSTAIN: Councilman Schwartze ABSENT: None NNETH E. FRIESS, MAYOR ATTEST: CITY CLE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARY ANN HANOVER, City Clerk of the City of San Juan Capistrano, California, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Ordinance No. 402 , which was introduced at a meeting of the City Council of the City of San Juan Capistrano, California, held on March 19 1980, and adopted at a meeting held on .April 2 (SEAL) 0´┐ŻO , k MARY ANN VER, CITY CLERK -6-