Chapter 1.04
GENERAL PROVISIONS*
Sections:
1.04.030 Violations as misdemeanors or infractions—Penalties.
1.04.035 Declaration of public nuisance.
1.04.050 Appeal to City Manager or City Council.
1.04.060 Judicial review of administrative decision.
1.04.061 Recovery of nuisance abatement costs incurred by the city.
1.04.062 Recovery of attorney fees for nuisance abatement actions or proceedings.
1.04.070 Claims for money or damages—Procedure.
1.04.075 Claims for Refund Subject to the Tort Claims Act—Procedure.
* Prior code and ordinance history: Title 1, Chapters 1 and 2 of the Alameda County Code and Ords. 1 and 3-85.
1.04.010 Title.
This code shall be known and may be cited for all purposes, including amendment, as the Dublin Municipal Code. (Ord. 21-86 § 1; Ord. 13 § 1 (part), 1982)
1.04.020 Definitions.
The following words and phrases shall be construed as defined herein unless from the context a different meaning is intended, or unless a different meaning is specifically defined:
“City” means the area within the territorial city limits of the city of Dublin.
“City Manager” means the City Manager, or his designee.
Civil Code Provisions. The provisions of Sections 13 and 1645 of the Civil Code of the state of California are adopted in the interpretation of word and phrases, unless otherwise provided herein.
Code References. Whenever reference is made to any portion of this code or of any other law of the state, the reference applies to all amendments and additions now or hereafter made.
“Council” means the City Council of this city.
“County” means the county of Alameda, California.
“Days” means calendar days.
Genders. Any gender includes the other gender.
Office. The use of the title of any officer, employee, or any office or ordinance means such officer, employee, office or ordinance of the city of Dublin, unless otherwise specifically designated.
“Person” means natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization or the manager, lessee, agent, servant, officer or employee of any of them.
“Shall” is mandatory; “may” is permissive.
Singular and Plural. The singular number includes the plural, and the plural the singular.
“Street” means and includes all streets, highways, avenues, lanes, alleys, courts, places, squares, curbs and other public ways in this city which have been or may hereafter be dedicated and open to public use, or such other public property so designated in any law of this state.
Tenses. Words used in the present tense include the past and future tenses and vice versa.
Use of Words and Phrases. Words and phrases used in this code and not specifically defined shall be construed according to the context and approved usage of the language.
“Written” means and includes printed, typewritten, mimeographed, or multigraphed. (Ord. 25-07 § 2; Ord. 21-86 § 2; Ord. 13 § 1 (part), 1982)
1.04.030 Violations as misdemeanors or infractions—Penalties.
A. Violation of any provision of this code shall constitute a misdemeanor and shall be punishable by imprisonment in the County Jail not exceeding six (6) months, or by fine not exceeding one thousand dollars ($1,000), or by both, unless expressly described as an infraction. Notwithstanding the preceding sentence, or any other provision of this code, a violation of this code may, in the discretion of the designated enforcement officer, or if no enforcement officer is indicated, in the discretion of the City Attorney, be charged and prosecuted as an infraction.
B. Except as otherwise provided in this code, any person convicted of an infraction under this code shall be punished by a fine in an amount provided by Government Code Section 36900, as amended. Any person punished for a second violation of the same ordinance within a twelve (12) month period under Government Code Section 36900 may apply for a hardship waiver to reduce the amount of the fine upon a showing by the person that they made a bona fide effort to comply after the first violation and that payment of the full amount of the fine would impose an undue financial burden. Any person convicted of three (3) or more infractions within a twelve (12) month period following the first violation may, in the discretion of the designated enforcement officer, or if no enforcement officer is indicated, in the discretion of the City Attorney, be charged and prosecuted for a misdemeanor for any additional violations of the same code section.
C. Causing, permitting, aiding, abetting or concealing a violation of any provision of this code shall constitute a violation of such provision.
D. A separate offense shall be deemed committed each day a violation of any provision of this code occurs or continues.
E. In addition to or in lieu of the remedies provided in this chapter or this code, upon a finding by the city official, employee, contractor, or agent vested with the authority to enforce the various provisions of this code, he or she may initiate administrative enforcement proceedings under the provisions of Chapter 1.06. (Ord. 13-20 § 2: Ord. 1-07 § 1: Ord. 21-86 § 3; Ord. 13 § 1 (part), 1982)
1.04.035 Declaration of public nuisance.
A. Any condition caused or permitted to exist in violation of this municipal code, any uniform or adopted code by reference, any state or federal law enforceable by the city, any permit or conditions of approval or other authorization given by the city is hereby deemed a public nuisance.
B. Each day in which a violation of this section occurs or continues shall constitute a separate and distinct offense and a continuing nuisance. The remedies provided in this code are intended to be cumulative and may be utilized in conjunction with or in lieu of other remedies. (Ord. 1-24 § 1)
1.04.040 Civil action.
The provisions of this code may be enforced by civil action. (Ord. 21-86 § 4; Ord. 13 § 1 (part), 1982)
1.04.045 Mediation.
A. The City Council declares that mediation can be an effective technique to avoid appeals by developing consensus. The City Council also finds that mediation can sometimes resolve disputes in a more efficient and effective manner than an appeal.
B. Before a “complaining party,” that is, a person other than an applicant or a permittee, may appeal a decision of a city official, Planning Commission, or City Council, he or she must deliver within five (5) days of the decision a written proposal to mediate to the applicant or permittee as a means to settle the dispute. “Delivery” means sending an email, facsimile, in-person delivery, or deposit in overnight mail. The applicant or permittee shall either accept or refuse the proposal to mediate in writing within two (2) days of the date the proposal to mediate was received, or four (4) days after it was delivered, whichever is sooner. By the tenth day after the appealable decision, the applicant or permittee must notify the City Clerk by email, fax, or in person, of the decision whether the proposal to mediate was accepted or refused. The failure of the applicant or permittee to respond within these timelines shall be deemed a refusal to mediate.
C. If mediation is elected, the parties shall agree upon a neutral third party mediator. The complaining party shall be responsible for all costs, if any, of the mediation unless the parties agree to another payment arrangement.
D. The mediation process begins when the decision is made. If the proposal to mediate is accepted, the entire mediation process shall be completed within thirty (30) days of the decision.
E. This section shall not apply to appeals by city officials, pursuant to Section 8.136.040, or to appeals by applicants or permittees. (Ord. 2-08 § 1)
1.04.050 Appeal to City Manager or City Council.
A. Any person excepting to the denial, suspension or revocation of a permit or license applied for or held by him pursuant to any of the provisions of this code, or to any administrative decision made by any official of the city pursuant to any of the provisions of this code, may appeal to the City Manager or City Council, as the case may be, when the right to appeal is specifically so provided in this code by reference to this section, by filing a written notice of appeal with the City Clerk, setting forth the specific grounds thereof. If Section 1.04.045 applies, the written notice shall be accompanied by a copy of the proposal to mediate and a letter from the mediator indicating that mediation was conducted and the date the mediation was conducted, or, if there was no mediation, a copy of the refusal. In the event that no written response to the proposal to mediate was made, the written notice of appeal shall be accompanied by a copy of the proposal to mediate and a declaration signed under penalty of perjury attesting that the complaining party received no response to the proposal to mediate.
B. Notice of such appeal shall be filed with the City Clerk within fourteen (14) calendar days after the date written notice of such action appealed from was mailed or personally delivered to the appellant, but in no event later than twenty (20) calendar days after the date of such action; provided, however, that if Section 1.04.045 applies and mediation has been accepted, any appeal must be filed within three (3) days of the date that the mediation ended.
C. The City Clerk shall forthwith set a date for hearing before either the City Council or City Manager, as the case may be, and shall give the appellant at least five (5) calendar days’ notice of the time and place of said hearing.
D. At such hearing the appellant shall show cause on the grounds specified in the notice of appeal why the action excepted to should not be approved. The City Manager or City Council, as the case may be, may continue the hearing from time to time. The findings on the appeal shall be final and conclusive in the matter. (Ord. 2-08 § 2: Ord. 21-86 § 7; Ord. 13 § 1 (part), 1982)
1.04.060 Judicial review of administrative decision.
Any interested person seeking judicial review pursuant to Code of Civil Procedure (CCP) Section 1094.5 of any final decision, as defined in CCP Section 1094.6(e), of the City Council or any boards, commissions, officers, agents or employees of the city empowered to make such decisions may do so only if the petition for writ of mandate pursuant to CCP Section 1094.5 is filed within the time limits specified in CCP Section 1094.6. (Ord. 21-86 § 8; Ord. 13 § 1 (part), 1982)
1.04.061 Recovery of nuisance abatement costs incurred by the city.
A. The total cost for abating a nuisance, as confirmed by resolution of the City Council, shall constitute a special assessment against the respective lot or parcel of land to which it relates. The Administrative Services Director shall record in the office of the County Recorder a notice of lien, based on the resolution, which shall constitute a lien on the property for the amount of such assessment.
B. When the assessment has been so confirmed and recorded, the Administrative Services Director shall send by certified mail and by first-class U.S. mail, postage prepaid, a notice to the property owner stating the following: (1) that a special assessment is being imposed on the property, (2) the amount of the special assessment, (3) that the special assessment will be collected along with, and in the same manner as, ordinary ad valorem property taxes, and (4) that the property may be sold after three (3) years by the tax collector if the special assessment is not paid.
C. After such confirmation, recordation and notice, the Administrative Services Director shall file a certified copy of the Council’s resolution with the Alameda County Auditor-Controller on or before August 1st, whereupon it shall be the duty of the Auditor-Controller to add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land and thereafter the amounts shall be collected at the same time and in the same manner as municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment.
D. Where payment of an assessment on a vacant residential developed property is delinquent, the city may conduct a sale of such property, subject to the requirements applicable to the sale of property pursuant to Revenue and Taxation Code Section 3691.
E. In addition to the remedy described in this section and any other remedy contained in the Dublin Municipal Code, the city expressly reserves the right to utilize enforcement remedies available under any applicable state or federal statute or pursuant to any other lawful power the city may possess to recover the costs of nuisance abatement. All such remedies shall be alternative to or in conjunction with, and not exclusive of, one another. (Ord. 28-08 § 1)
1.04.062 Recovery of attorney fees for nuisance abatement actions or proceedings.
In any action, administrative proceeding, or special proceeding initiated by the city to abate a nuisance, the prevailing party may recover attorneys’ fees. Recovery of attorneys’ fees by the prevailing party is limited to those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees. The award of attorneys’ fees to the prevailing party shall in no circumstances exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding. (Ord. 18-199 § 1)
1.04.064 Recovery of treble damages upon second or subsequent judgment finding property owner responsible for nuisance conditions.
Upon entry of a second or subsequent civil or criminal judgment within a two (2) year period finding that a property owner is responsible for a condition which may be abated as a nuisance, the court may order the property owner to pay treble (three (3) times) the cost of abatement. This section shall not apply to conditions abated pursuant to Section 17980 of the California Health and Safety Code. (Ord. 18-99 § 2)
1.04.070 Claims for money or damages—Procedure.
A. Claims against the city for money or damages which are exempted by Government Code Section 905 from Chapter 1 and Chapter 2 of Part 3 of Division 3.6 of Title 1 of the Government Code of the state of California, and which are not governed by any other statutes or regulations expressly related thereto, shall be governed by this section. A claim relating to such a cause of action shall be presented not later than one year after the accrual of the cause of action. Such claims shall be presented and processed as provided by Chapters 1 and 2 of Part 3 of Division 3.6 of Title 1 of the Government Code in so far as said divisions are not in conflict with this section.
B. No suit for money or damages may be brought against the city until a written claim, verified by the person who claims to be entitled to be paid the money or damages, or who has paid the money sought to be refunded, or by the claimant’s guardian, conservator, or the executor or administrator of the claimant’s will or estate, has been presented to the City Council and has been acted upon or has been deemed to have been rejected by the City Council, in accordance with this section. Any action brought against the city on such a claim shall be subject to the provisions of Sections 945.6 and 946 of the Government Code.
C. Pursuant to Chapter 5 of Part 3 of Division 3.6 of Title 1 of the Government Code, written agreements entered into by or in behalf of the city may provide all claims arising out of or related to the agreement must be presented not later than the one hundredth (100th) day after the accrual of the cause of action, and such claims shall be governed by the provisions of this section. (Ord. 17-02 § 1: Ord. 21-86 § 9; Ord. 13 § 1 (part), 1982)
1.04.075 Claims for Refund Subject to the Tort Claims Act—Procedure.
Where a claim for refund is subject to Chapter 1 and Chapter 2 of Part 3 of Division 3.6 of Title 1 of the Government Code of the state of California, the claim shall be verified by the person who has paid the money sought to be refunded, by his guardian or conservator, or by the executor or administrator of his or her will or estate. No suit for refund may be brought against the city until a written claim pursuant to this section has been presented to the city and has been acted upon or has been deemed to be rejected by the city, in accordance with the Tort Claims Act. (Ord. 17-02 § 2)
1.04.080 Savings provision.
With respect to violations, rights accrued, liabilities incurred, or appeals taken prior to the effective date of this code under any provisions of the city’s ordinances in effect prior to the effective date of this code all provisions of the city ordinances or any part thereof shall be deemed to remain in full force for the purpose of sustaining any proper suit, action, or other proceeding, with respect to any such violation, right, liability or appeal. (Ord. 21-86 § 6; Ord. 13 § 1 (part), 1982)
1.04.090 Severability.
If any title, chapter, article, section, subsection, sentence, clause or phrase of this code is for any reason held unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this code. The City Council declares that it would have passed this code and each title, chapter, article, section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one (1) or more titles, chapters, articles, sections, subsections, sentences, clauses or phrases are declared unconstitutional or invalid. (Ord. 21-86 § 5; Ord. 13 § 1 (part), 1982)