Chapter 18.210 STORMWATER MANAGEMENT AND DISCHARGE CONTROL

This chapter shall be known as the “city of Fremont stormwater management and discharge control ordinance” and may be so cited. (Ord. 01-2021 § 1, 2-2-21.)

18.210.020 Purpose and intent.

The purpose of this chapter is to provide regulations and give legal effect to certain requirements of the National Pollutant Discharge Elimination System (NPDES) Permit No. CAS612008 issued to the city of Fremont, regarding municipal stormwater and urban runoff requirements. This chapter shall apply to all water entering the storm drain system generated on any developed and undeveloped lands lying within the city. This chapter shall be construed to assure consistency with the requirements of the Clean Water Act and Porter-Cologne Act and any applicable implementing regulations, as they exist at the time of enactment or as later amended. (Ord. 01-2021 § 1, 2-2-21.)

18.210.030 Scope and limits of chapter.

(a) This chapter shall apply to:

(1) Ministerial as well as discretionary approvals of development located on applicable sites and regulated projects for new development or significant redevelopment projects, as those terms are defined in this chapter;

(2) Dischargers at applicable sites which have been found to, or may be reasonably considered to, cause or contribute to pollution of stormwater runoff associated with commercial or industrial activity or illegal connections and other illicit discharges.

(b) Nothing in this chapter shall be interpreted to:

(1) Infringe any right or power guaranteed by the California Constitution, including any vested property right; or

(2) Require any action inconsistent with any applicable and lawfully adopted general plan, specific plan, vesting tentative map or building code that conforms to the laws of California and the requirements of this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.040 Administration.

This chapter shall be administered jointly by the departments of community development, public works, and the division of environmental services. Any powers granted to or duties imposed upon these designated individuals to administer, implement and enforce the provisions of this chapter may be delegated to other city personnel or city contracted personnel. (Ord. 01-2021 § 1, 2-2-21.)

18.210.050 Definitions.

For the purposes of this chapter the following words and phrases shall have the meanings given to them in this section. Words and phrases not defined in this chapter shall have the definitions set forth in the permit or by the regulations implementing the National Pollutant Discharge Elimination System, Clean Water Act Section 402, and Division 7 of the California Water Code, as they currently exist or may be amended.

(a) “Applicable site” means any site that could reasonably be considered to cause or contribute to pollution of stormwater runoff. This definition includes, but is not limited to, pollutant sources associated with outdoor process and manufacturing areas, outdoor material storage areas, outdoor waste storage and disposal areas, outdoor vehicle and equipment storage and maintenance areas, outdoor parking areas and access roads, outdoor wash areas, outdoor drainage from indoor areas, rooftop equipment, contaminated and erodible surface areas, and other sources determined to have a reasonable potential to contribute to pollution of stormwater runoff.

(b) “Authorized enforcement official” means the director of public works, the director of community development, or the director of community services and their designees.

(c) “Bank” means any embankment, dike, levee, wall or similar feature of a natural or manmade origin which adjoins or parallels any watercourse and which has as a function the confinement of the water of said watercourse.

(d) “Best management practices (BMP)” means a structural device, measure, facility, or activity that helps to achieve stormwater management control objectives at a regulated project or applicable site.

(1) “Maintenance of a best management practice or stormwater treatment system” means periodic action taken to maintain the as-designed performance of best management practice or stormwater treatment system, and includes, but is not limited to, repairs as necessary and replacement of the best management practice or stormwater treatment system by an equally effective or more effective best management practice or stormwater treatment system.

(2) “Source control best management practice” means any schedule of activities, prohibitions of practices, maintenance procedures, managerial practices or operational practices that aim to prevent stormwater pollution by reducing the potential for contamination at the source of pollution.

(3) “Treatment best management practice” means any engineered system designed to remove pollutants by simple gravity settling of particulate pollutants, filtration, biological uptake, media absorption/adsorption or any other physical, biological, or chemical process.

(e) “Bioretention area” or “flow-through planter” means landscaping features adapted to treat stormwater runoff on a development site. Surface runoff is directed into shallow, landscaped depressions or planter boxes. These landscape features are designed with soil mixtures and vegetation that incorporate many of the pollutant removal systems that operate in a natural ecosystem. If the subsurface soils will not allow for natural infiltration (e.g., heavy clay soil), the filtered runoff may be collected in a perforated underdrain in the area and returned to the storm drain collection system.

(f) “C3 Technical Guidance Manual” as revised means the manual approved by the Clean Water Program of Alameda County amended from time to time, that sets forth guidance, design standards and best management practices for stormwater treatment measures, which shall be utilized by developers and property owners to comply with this chapter. A copy of the C3 Technical Guidance Manual may be accessed at the city’s website, www.fremont.gov.

(g) “CASQA” means California Stormwater Quality Association.

(h) “CASQA Stormwater Best Management Practice Handbook” means the four-volume set of handbooks for new and redevelopment, construction, industrial and commercial, and municipal operations produced by CASQA as amended from time to time. It is available at www.casqa.org.

(i) “City” shall mean the city of Fremont.

(j) “City manager” shall mean the city manager of the city of Fremont or designee.

(k) “Construction” means constructing, clearing, grading, or excavation that results in soil disturbance. Construction also includes structure demolition. Construction does not include routine maintenance to maintain original line and grade, hydraulic capacity, or original purpose of a facility, nor does it include emergency construction activities required to immediately protect public health and safety, interior remodeling with no outside exposure of construction material or construction waste to stormwater or mechanical permit work.

(l) “Creek” means a watercourse that is a naturally occurring swale or depression or engineered channel which carries fresh or estuarine water either seasonally or year-round within the city boundaries.

(m) “Detached single-family home project” means the building of one single new house or addition and/or replacement of impervious surface to one single existing house, which is not part of a larger plan of development.

(n) “Detention” means the temporary storage of storm runoff in a manner that controls peak discharge rates and provides some gravity settling of pollutants.

(o) “Development” means any construction, rehabilitation, redevelopment or reconstruction of any public or private project, or mass grading for anticipated construction. Development does not include routine maintenance to maintain original line and grade, hydraulic capacity or original purpose of a facility, nor does it include emergency construction activities required to protect immediately public health and safety.

(p) “Director” means either the director of public works, community development, or the environmental services manager.

(q) “Discharge,” when used as a verb, means to allow pollutants to directly or indirectly enter stormwater, or to allow stormwater or nonstormwater to directly or indirectly enter the storm drain system from an activity or operation. When used as a noun, “discharge” means the pollutants, stormwater or nonstormwater that is discharged.

(r) “Discharger” means any person or entity engaged in activities or operations or owning facilities, which will or may result in pollutants entering stormwater or the storm drain system. “Discharger” also means the owners of real property on which such activities, operations or facilities are located; provided, however, that a local government or public authority is not a discharger as to activities conducted by others in public rights-of-way.

(s) “Enforcement response plan” established by the environmental services manager contains criteria and various guidelines for implementing consistent enforcement of the NPDES stormwater permit as may be amended from time to time. It is available on the city’s website, www.fremont.gov.

(t) “Full trash capture” or a “full capture system or device” means any single device or series of devices that traps all particles retained by a five-millimeter mesh screen and has a design treatment capacity of not less than the peak flow rate Q resulting from a one-year, one-hour storm in the sub-drainage area and as approved by the San Francisco Bay Regional Water Quality Control Board, Region 2.

(u) “General permit” means an NPDES permit issued under Code of Federal Regulations Section 122.28 (40 CFR 122.28) authorizing a category of discharges under the Clean Water Act within a geographical area.

(v) “Hydromodification management (HM)” means the modification of a stream’s hydrograph, caused in general by increases in flows and durations that result when land is developed (e.g., made more impervious). The effects of hydromodification include, but are not limited to, increased bed and bank erosion, loss of habitat, increased sediment transport and deposition, and increased flooding.

(w) “Illegal connection” means any device or artifice, excluding roof drains and other similar connections, connecting into the storm drain system without a permit, through or by which an illicit discharge may be discharged.

(x) “Illicit discharge” means any discharge to a storm drain system that is not composed entirely of stormwater except discharges pursuant to an NPDES stormwater permit, including categorically allowed discharges and conditionally exempted discharges.

(y) “Impervious surface” means constructed or modified surface that cannot effectively infiltrate rainfall. Impervious surface includes, but is not limited to, building rooftops, pavement, sidewalks, and driveways where such surfaces are not constructed with pervious materials. “Impervious surface area” means the ground area covered or sheltered by an impervious surface, measured as if from directly above.

(z) “Infiltration” means the process of percolating stormwater or nonstormwater into the subsoil.

(aa) “Infiltration device” means infiltration facilities that are deeper than they are wide and designed to infiltrate stormwater runoff into the subsurface and, as designed, bypass the natural groundwater protection afforded by surface soil. These devices include dry wells, injection wells and infiltration trenches (includes French drains).

(bb) “In-lieu fees” mean the monetary amount necessary to provide required hydraulically sized LID treatment that meets numeric sizing of an equivalent quantity of stormwater runoff and pollutant loading and a proportional share of the operation and maintenance costs of the regulated project.

(cc) “Land disturbance activity” means any activity that moves soils or substantially alters the pre-existing vegetated or manmade cover of any land including, but not limited to, grading, digging, cutting, scraping, stockpiling or excavating of soil; placement of fill materials; paving, pavement removal, exterior construction; substantial removal of vegetation where soils are disturbed including, but not limited to, removal by clearing or grubbing or any activity which bares soil or rock or involves streambed alterations or diversion or piping of any watercourse. Land disturbance activity does not include routine maintenance to maintain original line and grade, hydraulic capacity, or the original purpose of the facility, nor does it include emergency construction activities required to protect public health and safety.

(dd) “Land owner” means the holder of legal title to the land, and other persons or entities who exercise control over a land development project pursuant to rights granted in a purchase agreement, joint venture agreement, development agreement, or long-term lease.

(ee) “Low impact development” (“LID”) is a land planning and engineering design approach with a goal of reducing stormwater runoff and mimicking a site’s predevelopment hydrology by minimizing disturbed areas and impervious cover and then infiltrating, storing, detaining, evapotranspiring, and/or biotreating stormwater runoff close to its source, or on site.

(ff) “Maximum extent practicable” means a standard for implementation of stormwater management programs to reduce pollutants in stormwater to the maximum extent possible, taking into account equitable considerations and competing facts including, but not limited to, the seriousness of the problem, public health risks, environmental benefits, pollutant removal effectiveness, regulatory compliance, cost and technical feasibility.

(gg) “Nonstormwater” means any discharge that is not composed entirely of stormwater.

(hh) “Notice of violation/notice to abate” means an official written notice of noncompliance, issued to a discharger from the director or designee, which provides notification that a significant violation of this chapter has occurred. The notice includes required corrective actions.

(ii) “NPDES stormwater permit” or “municipal regional permit” means the California Regional Water Quality Control Board San Francisco Bay Regional Stormwater NPDES Permit Order R2-2015-0049, NPDES Permit No. CAS612008, November 19, 2015, effective December 1, 2015, as may be updated from time to time.

(jj) “Permeable surfaces” mean the pervious concrete, porous asphalt, unit pavers, and/or granular materials that allow water to infiltrate into subsurface soil.

(kk) “Pollutant” means dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharge into water.

(ll) “Premises” shall mean any building, lot, parcel, real estate, or land or portion of land whether improved or unimproved including adjacent sidewalks and parking strips.

(mm) “Redevelopment” means land-disturbing activity that results in the creation, addition, or replacement of exterior impervious surface area on a site on which some past development has occurred. The MRP excludes interior remodels and routine maintenance or repair, including roof or exterior surface replacement, pavement resurfacing, repaving and road pavement structural section rehabilitation within the existing footprint.

(nn) “Regional project” means a regional or municipal project with sufficient capacity or credit to protect or enhance water quality and/or beneficial uses in a manner equivalent to or greater than the stormwater benefits that would have been provided from the installation of the required treatment measures at the subject project site.

(oo) “Regulated projects” are new development projects, as defined in provision C.3.b.ii of the NPDES stormwater permit.

(pp) “Riparian areas” means an ecosystem that is the interface between dry land and a water body such as a creek, stream, river, lake, or marsh. Vegetation in riparian areas is characterized by a predominance of hydrophilic plants.

(qq) “Storm drain system” or “municipal separate storm sewer system” (“MS4”) means the conveyance or system of conveyances, including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, manmade channels, storm drains and natural creeks and streams, used for the purpose of collecting and conveying stormwater.

(rr) “Stormwater” means stormwater runoff, snow-melt runoff, surface runoff, and drainage, excluding infiltration and irrigation tailwater.

(ss) “Stormwater control plan” (“SCP”) means a plan identifying the measures that will be used for stormwater and nonstormwater management during the permitted activity and/or during and after construction of any development or significant redevelopment project subject to the provisions of this chapter. The SCP includes the city approved stormwater management plan sheets in the approved project plans; other sheets in the approved plan set relevant to the design of the SMMs; all documents providing inspection, operation and maintenance guidance for the SMMs; and any revisions or amendments to the SCP that are approved in writing by the city.

(tt) “Stormwater control plan guidance manual” (“SCP guidance manual”) means the guidance manual that details the process a development project follows in order to complete the SCP. The SCP guidance manual also details any city of Fremont specific guidelines, design standards, or requirements that a project must meet prior to acceptance of the SCP.

(uu) “Stormwater management measures” (“SMMs”) means all stormwater treatment measures, stormwater flow duration controls, stormwater site design measures, and appurtenant design features related to their function, that are to be constructed as part of a regulated project.

(vv) “Stormwater treatment measure” means the use of designed and/or engineered systems, which use physical, chemical, or biological processes to remove pollutants. Such processes include, but are not limited to, filtration, gravity settling, media absorption/adsorption, biodegradation, biological uptake, chemical oxidation and ultraviolet (UV) radiation.

(ww) “Top of bank” means the point at which a line projected from the toe of the bank toward the top of the bank at a slope of two (horizontal) to one (vertical), or 26 1/2 degrees from horizontal, intersects surrounding level ground, unless such a line does not intersect surrounding level ground at all. The top of a bank shall be determined at the discretion of the chief building official or his or her designee as the point at which the slope of the bank begins most closely to approximate the horizontal.

(xx) “Watercourse” means any conduit or natural or manmade channel through which water flows continuously or intermittently in a definite direction and course or alternating directions and course under the influence of tides or any appurtenant structure thereof which is used for the holding, delay or storage of water, except enclosed public water delivery and storm sewer system conduits. (Ord. 01-2021 § 1, 2-2-21.)

18.210.055 Taking.

The provisions of this chapter shall not operate to deprive any landowner of an economically viable use of his/her property or otherwise constitute an unconstitutional taking without compensation. If application of this chapter to a specific project would create an unlawful taking, the city may allow additional uses, but only to the extent necessary to avoid a taking. Such uses shall be consistent with and carry out the purposes of this chapter as stated in Section 18.210.020. (Ord. 01-2021 § 1, 2-2-21.)

Article II. Discharge Regulations and Requirements

18.210.060 Ultimate responsibility of discharger.

The standards established by this chapter are minimum standards, and do not imply that compliance by any discharger will ensure that there will not be contamination, pollution, nor unauthorized discharge of pollutants. This chapter shall not create liability on the part of the city or any city employee for any damages that result from any discharger’s reliance on this chapter or any lawful administrative decision. (Ord. 01-2021 § 1, 2-2-21.)

18.210.070 Discharge prohibition.

(a) General Prohibition. Any discharge to the storm drain system not composed entirely of stormwater is prohibited, except as set forth in this chapter.

(b) It is unlawful to throw, deposit, leave, abandon, maintain or keep materials or wastes on public or private lands in a manner and place where they may result in an illicit discharge.

(c) Categorically Allowed Discharges. Discharges categorically allowed in the NPDES stormwater permit and described in provision C.15, exempted nonstormwater changes (Exempted Discharges), are exempt from discharge prohibitions provided all specified conditions are met.

(d) Conditionally Exempted Discharges. Discharges specifically permitted in the NPDES stormwater permit and described in provision C.15, Conditionally Exempted Non-Stormwater Discharges, are exempt from discharge prohibitions provided all specified conditions are met.

(e) Exemptions Not Absolute. Any discharge category described above that is a significant source of pollutant to waters of the United States shall be prohibited from entering the storm drain system, or shall be subjected to a requirement to implement additional best management practices to reduce pollutants in the discharge to the maximum extent practicable. Such prohibitions shall be effective on a schedule specified by an authorized enforcement official in a written notice to the discharger. The schedule may take into account the nature and severity of any effects caused by the discharge; and the time required to design, engineer, fund, procure, construct and make appropriate best management practices operational.

(f) Nonstormwater Discharge. The prohibition shall not apply to any nonstormwater discharge permitted under an NPDES stormwater permit, waiver, or waste discharge order issued to the discharger and administered by the San Francisco Bay Regional Water Quality Control Board or state of California under the authority of the federal Environmental Protection Agency; provided, that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations.

(g) Littering. No person shall throw, deposit, leave, maintain, keep, or permit to be thrown, deposited, placed, left or maintained, any refuse, rubbish, garbage, organic debris, or other discarded or abandoned objects, articles, and accumulations, in or upon any street, alley, sidewalk, storm drain, inlet, catch basin, conduit or other drainage structures, business place, or upon any public or private lot of land in the city, so that the same might be or become a pollutant, except in refuse containers or in lawfully established waste disposal facilities. The occupant or tenant, or, in the absence of occupant or tenant, the owner, lessee, or proprietor, of any real property in the city of Fremont in front of which there is a paved sidewalk shall maintain said sidewalk free of dirt or litter to the maximum extent practicable. Sweepings from said sidewalk shall not be swept or otherwise made or allowed to go into the gutter or roadway, but shall be disposed of in receptacles maintained on said real property as required for the disposal of garbage. No person shall throw or deposit litter in any fountain, pond, lake, stream or any other body of water in a park or elsewhere within the city.

(h) Standard for Parking Lots and Similar Structures. Persons owning or operating a parking lot, gas station pavement or similar structures having impermeable surfaces shall clean such structures as frequently and thoroughly as practicable in a manner that does not result in discharge of pollutants to the city storm drain system.

(i) Notification of Intent and Compliance with General Permits. Each industrial discharger, discharger associated with construction activity, or other discharger, described in any general stormwater permit addressing such discharges as may be adopted by the United States Environmental Protection Agency, the state water resources control board, or the San Francisco Bay Regional Water Quality Control Board, shall provide notice of intent, comply with, and undertake all activities required by any general stormwater permit applicable to such discharges. Each discharger identified in an individual NPDES permit relating to stormwater discharges shall comply with and undertake all activities required by such permit.

(j) Compliance with Best Management Practices. Where best management practices guidelines or requirements have been adopted by any federal, state of California, or regional agency, and/or the city of Fremont, for any activity, operation, or facility which may cause or contribute to stormwater pollution or contamination, illicit discharges, and/or discharge of nonstormwater to the stormwater system, every person undertaking such activity or operation, or owning or operating such facility, shall comply with such guidelines or requirements as may be prescribed by the city manager. (Ord. 01-2021 § 1, 2-2-21.)

18.210.080 Prohibition of illegal connection.

(a) The construction, use, maintenance or continued existence of illegal connections to the storm drain system is prohibited.

(b) The authorized enforcement official may, by written notice, require a person responsible for an illegal connection to the storm drain system to eliminate or to secure approval for the connection within a specified time.

(c) This prohibition is expressly retroactive and applies to connections made in the past, regardless of whether made under a permit or other authorization or whether permissible under the law or practices applicable or prevailing at the time of the connection. (Ord. 01-2021 § 1, 2-2-21.)

18.210.090 False statements.

It is unlawful to knowingly make or present to the city any false statement, representation, record, report, plan or other document, with regard to any requirements of this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.100 Discharge in violation of permit – Liability for violation.

Any discharge that would result in or contribute to a violation of the NPDES stormwater permit, either separately considered or when combined with other discharges, is prohibited.

Liability for any such discharge shall be the responsibility of the person(s) causing or responsible for the discharge, and such persons shall defend, indemnify and hold harmless the city in any administrative or judicial enforcement action relating to such discharge. Every owner of real property within the city shall manage their property in a manner to avoid violation of this code. The property owner shall be liable for violations thereof regardless of any contract or agreement with any third party regarding the property. When there are multiple property owners, the property owners shall have joint and several liability. (Ord. 01-2021 § 1, 2-2-21.)

18.210.110 Compliance with NPDES stormwater permit.

Any person subject to an industrial or construction activity general NPDES stormwater permit shall comply with all provisions of such permit. Proof of compliance may be required in a form acceptable to the authorized enforcement official prior to or as a condition of the approval of a subdivision map, site plan, building permit, development or improvement plan; upon inspection of the facility; and/or during any enforcement action. (Ord. 01-2021 § 1, 2-2-21.)

18.210.120 Stormwater pollution reduction.

All applicants for permits pertaining to the planning, design, and construction of all projects subject to this chapter shall design and implement stormwater best management practices so as to reduce stormwater pollution to the maximum extent practicable. Such projects shall utilize standards and guidelines set forth in the C3 Technical Guidance Manual and the CASQA Stormwater Best Management Practice Handbook, as revised, and shall incorporate the numeric sizing criteria for best management practices set forth in this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.130 General development design guidelines.

(a) New Development and Redevelopment Projects. Certain new development and redevelopment projects are required to implement construction site control, permanent source control, site design and stormwater treatment, and hydromodification management measures to address stormwater runoff pollutant discharges and prevent increase in runoff flows. The categories of new development and redevelopment projects that are required to implement these requirements are identified in the Municipal NPDES permit.

Applicants for new development and redevelopment projects shall select, design and implement construction site control, permanent source control, site design and stormwater treatment and hydromodification management measures to the satisfaction of the city in accordance with the requirements and guidelines set forth in the most current version of following documents:

(1) NPDES stormwater permit.

(2) Alameda Clean Water Program C3 Technical Guidance Manual.

(3) City of Fremont stormwater control plan guidance manual.

The above referenced documents, as amended and reissued from time to time, are incorporated by reference into this chapter. These documents shall be available for review on the city’s website.

No person or persons shall develop or redevelop property, or construct, remodel, build, alter, modify or expand any structures or paved areas in any manner which fails to comply with the requirements of this chapter, and the NPDES stormwater permit.

(b) Storm Drain Markers. All developed property shall install and maintain “No Dumping Drains to Bay” markers on storm drains. Markers are determined by the city and can be purchased from the city of Fremont environmental services division. (Ord. 01-2021 § 1, 2-2-21.)

18.210.140 LID requirements for regulated projects.

(a) On-Site Low Impact Development Measures. All regulated projects shall implement low impact development on-site source control measures and low impact development site design strategies as set forth in the NPDES stormwater permit.

All regulated projects shall design stormwater treatment measures to meet the hydraulic sizing criteria as set forth in the NPDES stormwater permit, C3 Technical Guidance Manual, and SCP guidance manual. All regulated projects requiring planning approval must use the four percent sizing methodology for the design of all stormwater treatment measures. If a project’s site design precludes it from using the four percent sizing, it can opt to use the flow-volume combination sizing (with a three percent minimum of the effective impervious area) if it provides construction level drawings that show the constructability of the stormwater treatment measures. Use of infiltration devices in stormwater treatment systems is limited as set forth in the C3 Technical Guidance Manual and the SCP guidance manual.

(b) Bubble Up Systems. Bubble up systems or pop-up emitters are discouraged to the maximum extent practicable and are only allowed when a project has met the sizing requirements set forth in the SCP guidance manual.

(c) Permeable Pavement Design Guidelines. The design of any permeable pavement areas as part of a regulated project must meet the guidelines of the C3 Technical Guidance Manual and the SCP guidance manual.

(d) Alternate Compliance Off-Site Low Impact Development Treatment. Notwithstanding the provisions of subsection (a) of this section, the authorized enforcement official may, in accordance with the NPDES stormwater permit, authorize a regulated project to provide alternate compliance by treating a portion of the project’s stormwater runoff with LID treatment measures at an off-site project in the same watershed. The applicant must request approval for use of an alternate compliance off-site project location prior to approval of a tentative subdivision map, or, if there is no subdivision map, prior to approval of a building permit for the regulated project. In order to request approval for alternate compliance, the applicant must identify the proposed off-site project location, demonstrate to the satisfaction of the authorized enforcement official that the site is appropriate for use as a LID treatment site, and provide evidence that it has obtained the rights to use the off-site project location and that the off-site project will be constructed within the time frames specified in the NPDES stormwater permit. (Ord. 01-2021 § 1, 2-2-21.)

18.210.150 Hydromodification management.

(a) Regulated projects that are designated as hydromodification management projects under the NPDES stormwater permit criteria shall demonstrate that the project will not cause an increase in stormwater runoff flow and volume rates and durations over the pre-project existing condition based on the design criteria set forth in the municipal NPDES permit. Hydromodification management projects shall implement on-site hydromodification controls unless a regional hydromodification control is available to control all or a portion of the project runoff or the project qualifies to use an instream alternative hydromodification control measure to control all or a portion of the project runoff.

(b) Notwithstanding the provisions of subsection (a) of this section, the authorized enforcement official may, in accordance with the NPDES stormwater permit, authorize a regulated hydromodification management project to use alternate compliance methods to meet project hydromodification management requirements. The applicant must request approval for use of alternate compliance prior to approval of a tentative subdivision map, or, if there is no subdivision map, prior to approval of a building permit for the hydromodification management project. In order to request approval for alternate compliance, the applicant must demonstrate that all NPDES stormwater permit impracticability provisions have been satisfied. (Ord. 01-2021 § 1, 2-2-21.)

18.210.160 Site design measures for nonregulated projects.

All new development and redevelopment projects subject to planning, building, development, or other comparable reviews by the city, but not meeting the definition of “regulated project,” are required to include adequate site design measures that include minimizing land disturbance and impervious surfaces. These may include clustering of structures and pavement; directing roof runoff to vegetated areas, use of micro-detention, including distributed landscape-based detention of stormwater, and/or restoration of riparian areas or wetland as project amenities. (Ord. 01-2021 § 1, 2-2-21.)

18.210.165 Trash load reductions to storm drain collection system.

At the discretion of the authorized enforcement official or designee, all development projects may be required to install full trash capture devices to collect litter and debris from their project (including any off-site improvements).

(a) Full trash capture devices to be installed as part of the on-site improvements for a project must be approved as meeting the standards set by the California State Water Resources Control Board. A list of approved devices and their manufacturers shall be available on the city’s website. Installed full capture trash devices will be maintained by the property owner for the life of the project, following the manufacturer’s recommendations for maintenance.

(b) Full trash capture devices to be installed as part of any off-site improvements for a project must be per the city standard detail specifications. (Ord. 01-2021 § 1, 2-2-21.)

18.210.170 Stormwater control plan.

Each application for a regulated project shall be accompanied by a stormwater control plan that meets the criteria in the NPDES permit and the design guidelines detailed in the most recent Clean Water Program C3 Technical Guidance Manual. Any guidelines, design standards, or requirements that are specific to the city of Fremont can be found in the stormwater control plan guidance manual. The stormwater control plan shall demonstrate how stormwater flows on the site will be controlled, managed and treated in accordance with the requirements of this chapter. The stormwater control plan must be approved by the authorized enforcement official or designee prior to final subdivision map approval, if applicable, or the issuance of any other permit or approval. (Ord. 01-2021 § 1, 2-2-21.)

18.210.180 Alternative certification of adherence to numeric sizing criteria for stormwater treatment systems.

The authorized enforcement official shall require a signed certification from a civil engineer or a licensed architect or landscape architect registered in the state of California that the numeric sizing for stormwater treatment systems and/or hydromodification management (HM) facilities meets the hydraulic sizing design requirements of this chapter and the established criteria of the NPDES stormwater permit. Each certifying person shall establish to city’s satisfaction that such person has been trained on best management practice design for water quality not more than three years prior to the signature date, and that each certifying person understands the groundwater protection principles applicable to the project site. Any consultant hired to design and/or construct a stormwater treatment system for a regulated project shall not be the certifying person for the project. Training conducted by an organization with stormwater treatment best management design expertise, such as a university, the American Society of Civil Engineers, American Society of Landscape Architects, American Public Works Association, California Water Environment Association, Bay Area Stormwater Management Agencies, National Association of Flood and Stormwater Management Agencies, California Stormwater Quality Association, or the equivalent, may be considered qualifying. (Ord. 01-2021 § 1, 2-2-21.)

18.210.190 Design standards concerning flooding.

Except as this chapter may specifically exempt, every best management practice required to be implemented in new development or redevelopment shall not, by its construction, operation, maintenance, or lack thereof, lead to or cause flooding. (Ord. 01-2021 § 1, 2-2-21.)

18.210.200 Infiltration treatment measures.

In order to protect groundwater from pollutants that may be present in urban runoff, treatment best management practices that function primarily as stormwater infiltration devices, with no underdrain, must comply with design standards specified in the C3 Technical Guidance Manual. (Ord. 01-2021 § 1, 2-2-21.)

18.210.210 Stormwater management measures operation and maintenance agreements.

Prior to the issuance of any permit for land development activity, regulated projects shall develop and execute an operations and maintenance agreement for the development project location which identifies the stormwater management measures installed and the O&M maintenance actions to be conducted in perpetuity to ensure these function as intended over time. The O&M agreement shall run with the land and shall be recorded in the office of the Alameda County clerk-recorder. Provisions in the stormwater management measures operations and maintenance agreement are fully enforceable by law.

The O&M agreement must be entered into between the property owner and the city (i.e., not the tenant). Responsibility for the operation and maintenance of the stormwater management facilities shall remain with the property owner and shall pass to any successor owner. If portions of the land are sold or otherwise transferred, legally binding arrangements shall be made to pass the inspection and maintenance responsibility to the appropriate successors in title. (Ord. 01-2021 § 1, 2-2-21.)

18.210.220 Construction phase requirements.

(a) Construction Phase Inspections. The city requires inspections of stormwater management facilities during the construction process to verify proper installation. The development project will not receive final permit or improvement plan approval without obtaining approval by the authorized enforcement official.

(b) Certificate of Compliance. Development projects may be required to provide to the environmental services division a certificate of proper installation of stormwater management facilities. The certificate must be signed and stamped by a professional engineer or landscape architect and be received prior to the project receiving final permit or improvement plan approval.

(c) As-Built Plans. All applicants are required to submit as-built plans for any permanent stormwater management facilities after final construction is completed, if construction deviated from the approved plans. The plan shall show the final design specifications for all stormwater management facilities and shall be stamped by a registered professional engineer. A final inspection by the city of Fremont environmental services division is required prior to the development project receiving final permit or improvement plan approval.

(d) Inadequacy of the System. If a stormwater management facility is found to be inadequate by virtue of physical evidence of operational failure, even though it was built as called for in the approved stormwater management plan, it shall be corrected by the applicant before the development project receives final permit or improvement plan approval. If the applicant fails to act, the city may use the performance bond to complete the work. (Ord. 01-2021 § 1, 2-2-21.)

18.210.230 Maintenance of stormwater management facilities.

Regulated projects must perform maintenance of stormwater management facilities in accordance with the stormwater management measures operation and maintenance agreement. Stormwater management facilities installed in developments which do not have a stormwater management measures operations and maintenance agreement must be maintained as required by the manufacturer’s guidelines and/or to ensure intended functioning of the facility(ies). Enforcement action may be taken for failure to meet any of the requirements of the stormwater management measures operations and maintenance agreement consistent with the city’s enforcement response plan. (Ord. 01-2021 § 1, 2-2-21.)

18.210.240 Special districts.

The city has the authority and duty to require adherence to the NPDES stormwater permit for special districts, if the special district intends to connect to the municipal separate storm sewer system. (Ord. 01-2021 § 1, 2-2-21.)

18.210.250 Best management practices and CASQA Stormwater Best Management Practice Handbook incorporated.

The C3 Technical Guidance Manual and CASQA Stormwater Best Management Practice Handbook are incorporated by reference into this chapter as may be amended from time to time. (Ord. 01-2021 § 1, 2-2-21.)

18.210.260 Minimum best management practices and source control measures for all dischargers.

(a) Responsibility to Implement BMPs. Any person or commercial enterprise engaged in activities or operations or owning or occupying facilities or property which will or may result in pollutants entering the municipal separate storm sewer system or receiving waters shall implement BMPs to prevent and reduce such pollutants. (Ord. 01-2021 § 1, 2-2-21.)

18.210.270 Watercourse protection.

Every person owning property through which a watercourse passes, or such person’s lessee or tenant, shall keep and maintain that part of the watercourse, bank or riparian areas located on the property reasonably free of trash, debris, excessive vegetation, and other obstacles which would pollute, contaminate, or significantly retard the flow of water through the watercourse; shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse; and shall not remove healthy bank or riparian vegetation beyond that actually necessary for said maintenance, nor remove said vegetation in such a manner as to increase the vulnerability of the watercourse to erosion.

No person shall commit or cause to be committed any of the following acts, unless a written permit has first been obtained from the city manager or designee:

(a) Discharge into or connect any pipe or channel to a watercourse;

(b) Modify the natural flow of water in a watercourse;

(c) Carry out development within 30 feet of the center line of any creek or 20 feet of the top of a bank, whichever is greater or if the development is located above the toe of the hill then 200 feet from the center line of a creek, unless provided otherwise in this title;

(d) Deposit in, plant in, or remove any material from a watercourse, including its banks, except as required for necessary maintenance;

(e) Construct, alter, enlarge, connect to, change, or remove any structure in a watercourse or if the development is located above the toe of the hill then 200 feet from the center line of a watercourse, unless provided otherwise in this title; or

(f) Place any loose or unconsolidated material along the side of or within a watercourse or so close to the side as to cause a diversion of the flow, or to cause a probability of such material being carried away by stormwaters passing through such watercourse.

At the discretion of the chief building official, a permit may be withheld until the applicant has posted security in an amount satisfactory to the chief building official for either the faithful performance of the development or work or the cost of removing the development or work or otherwise reconstructing or restoring a creek to conditions existing prior to such development or work in the event of default on the part of the permittee. Said security shall be in the form of cash, a certified or cashier’s check, performance bond, or an irrevocable letter of credit.

The city manager may adopt regulations to clarify and implement the requirements of this section. (Ord. 01-2021 § 1, 2-2-21.)

Article III. Inspection and Enforcement

18.210.280 Authority to inspect.

(a) Whenever necessary to make an inspection to enforce any of the provisions of this chapter, or whenever any authorized enforcement official has reasonable cause to believe that there exists in any building or upon any premises any condition which constitutes a violation of the provisions of this chapter, the authorized enforcement official may enter such building or premises at all reasonable times to inspect the same or perform any duty imposed upon the officer by this chapter; provided, that: (1) if such building or premises be occupied, he/she shall first present proper credentials and request entry; and (2) if such building or premises be unoccupied, he/she shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry.

(1) Inspection Warrant. Where the authorized enforcement official’s request to inspect is denied by the property owner or occupant, inspection may be made only upon issuance of an inspection warrant by a duly authorized magistrate except as permitted for emergency or open space inspections. The city staff shall obtain an inspection warrant as provided in Cal. Code of Civ. Proc. §§ 1822.50 et seq.

(b) Emergency Inspections. In any circumstance where there appears an immediate threat to the public health or safety, any authorized enforcement official may enter any structure or premises without the consent of any person or court process.

(c) Open Space Inspections. In any circumstances when it is necessary for the purposes of investigating or enforcing the provisions of this chapter, any authorized enforcement official may enter open space areas without forcing entry. Said officer may enter such premises at any time to inspect the same, or to perform any duty imposed by law.

(d) Routine or area inspections shall be based upon such reasonable selection processes consistent with general law as may be deemed necessary to carry out the objectives of this chapter, including but not limited to random sampling and/or sampling in areas with evidence of stormwater contamination, illicit discharges, discharge of nonstormwater to the stormwater system, or similar factors. (Ord. 01-2021 § 1, 2-2-21.)

18.210.290 Authority to sample and establish sampling devices.

(a) With the consent of the owner or occupant or pursuant to a warrant, any authorized enforcement official may establish on any property such devices as are necessary to conduct sampling or metering operations. During all inspections as provided herein, the officer may take any samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities on site.

(b) Emergency or open space inspections and samplings may be conducted by any authorized enforcement official without the consent of the owner or occupant and without a search warrant. (Ord. 01-2021 § 1, 2-2-21.)

18.210.300 Personal duty for training and procedures – Notification of spills.

(a) All persons in charge of a facility or responsible for emergency response for a facility have a personal responsibility to train facility personnel and maintain notification procedures to assure immediate notification is provided to city of any suspected, confirmed or unconfirmed release of material, pollutants or waste creating a risk of discharge into the city storm drain system.

(b) As soon as any person in charge of a facility or responsible for emergency response for a facility has knowledge, or reason to know, of any suspected, confirmed or unconfirmed release of materials, pollutants or waste which may result in pollutants or nonstormwater discharges entering the city storm drain system, such person shall immediately take all necessary steps to ensure the discovery, containment and cleanup of such release and shall immediately notify the city of the occurrence by telephoning (510) 494-4570 and confirming the notification by correspondence to City Manager, City of Fremont, 3300 Capitol Avenue, Fremont, CA 94538. (Ord. 01-2021 § 1, 2-2-21.)

18.210.310 Authorization to test or monitor.

(a) Whenever there is reasonable cause to believe that any facility is discharging pollutants or nonstormwater discharges into the city storm drain system, any authorized enforcement official is authorized to order testing or monitoring to confirm the unlawful discharge.

(b) Any authorized enforcement official may order any person engaged in any activity and/or owning or operating any facility which may cause or contribute to stormwater pollution or contamination, illicit discharges, and/or discharge of nonstormwater to the stormwater system, to undertake such monitoring activities and/or analyses and furnish such reports as the officer may specify. The burden, including costs, of these activities, analyses and reports shall bear a reasonable relationship to the need for the monitoring, analyses and reports and the benefits to be obtained. The recipient of such request shall undertake and provide the monitoring, analyses and/or reports ordered.

(c) In the event the owner or operator of a facility subject to a testing or monitoring order fails to conduct required monitoring, analyses and reports in the form required, the authorized enforcement official may cause such testing, monitoring and analyses to be performed and the cost therefor, including the reasonable additional administrative costs incurred by city, shall be the obligation of the owner or operator and may be recovered as provided in this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.320 Violations constitute misdemeanors – Alternative charge as infraction.

Unless otherwise specified by ordinance, the violation of any provision of this chapter, or failure to comply with any of the mandatory requirements of this chapter, shall constitute a misdemeanor. Notwithstanding any other provisions of this chapter, any such violation constituting a misdemeanor under this chapter may, in the discretion of the authorized enforcement official, be charged and prosecuted as an infraction. (Ord. 01-2021 § 1, 2-2-21.)

18.210.330 Penalty for violation.

(a) Violation of this chapter may be remedied by any means available to remedy a violation of this code.

(b) The remedies for violation of this chapter are nonexclusive and cumulative.

(c) Notwithstanding Section 1.20.080, the administrative penalties that may be imposed for the violation of any provision of this chapter or failure to comply with any of the mandatory requirements of this chapter are as follows:

(1) A person committing a violation is subject to a fine in the amount of:

(A) Three hundred fifty dollars for the first offense;

(B) Seven hundred fifty dollars for the second offense; and

(2) A person committing a violation either knowingly or with intent to violate any provision of this chapter is subject to a fine in the amount of $1,000 for each offense.

(d) Upon conviction of a misdemeanor, a person shall be subject to payment of a fine, or imprisonment, or both, not to exceed the limits set forth in Cal. Gov’t Code § 36901.

(e) Upon conviction of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in Cal. Gov’t Code § 36900. (Ord. 01-2021 § 1, 2-2-21.)

18.210.340 Continuing violation.

Unless otherwise provided, a person, firm, corporation, or organization shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this chapter is committed, continued or permitted by the person, firm, corporation, or organization and shall be punishable accordingly as herein provided. (Ord. 01-2021 § 1, 2-2-21.)

18.210.350 Concealment.

Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall constitute a violation of such provision. (Ord. 01-2021 § 1, 2-2-21.)

18.210.360 Acts potentially resulting in violation of federal Clean Water Act and/or Porter-Cologne Act.

Any person who violates any provision of this chapter, any provision of any permit issued pursuant to this chapter, or who discharges waste or wastewater which causes pollution, or who violates any cease and desist order, prohibition, or effluent limitation, may also be in violation of the federal Clean Water Act and/or Porter-Cologne Act and may be subject to the sanctions of those acts including civil and criminal penalty. Any enforcement action authorized under this article should also include notice to the violator of such potential liability. (Ord. 01-2021 § 1, 2-2-21.)

18.210.370 Violations deemed a public nuisance – Use of administrative hearings.

In addition to the civil and criminal remedies and penalties provided herein, any condition caused or permitted to exist in violation of any of the provisions of this chapter or orders of the authorized enforcement official, is declared a threat to the public health, safety and welfare of the city of Fremont, and is declared and deemed a nuisance and may be abated by any authorized enforcement official using the administrative notice and hearing procedures and remedies provided in this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.380 Notice to abate violation.

Whenever the authorized enforcement official determines there exists in the city a nuisance in violation of this chapter, said authorized enforcement official will take corrective actions consistent with the city’s enforcement response plan:

(a) Send or hand deliver a written notice to abate the nuisance to the owner and operator in the manner and in the form as prescribed in this chapter.

(b) The notice shall state the proper street address and the assessor’s parcel number of the subject property.

(c) The owner shall be provided 30 calendar days to take corrective action to remedy the nuisance except in exigent circumstances and during the rainy season when a shorter notice may be prescribed by the authorized enforcement official. During the rainy season (October 1st through April 30th) owner shall be provided 10 calendar days to take corrective action but this time period may be shorter depending on the severity of the exigent circumstances.

(d) The notice shall specify the Fremont Municipal Code section or statute violated and state all the facts constituting the nuisance.

(e) The notice shall specify the corrective action required, including temporary corrective actions when appropriate.

(f) City may require structural controls (e.g., trash enclosure) in cases where there has been a sustained public nuisance.

(g) The notice shall advise the owner and operator that failure to appeal shall constitute a waiver of the right to administrative hearing to contest the existence of the nuisance. (Ord. 01-2021 § 1, 2-2-21.)

18.210.390 Summary abatement – Imminent danger.

(a) Any nuisance which the authorized enforcement official determines is imminently dangerous to the life, limb, health, or safety of the occupants of the property or to the public in general may be summarily abated in accordance with the procedures set forth in subsection (d) of this section.

(b) Actions taken to abate imminently dangerous property nuisances may include but are not limited to correction or removal of the condition creating the danger and/or the restriction from use of the property on which the dangerous condition exists or any other abatement action determined by the authorized enforcement official to be necessary.

(c) Summary abatement actions taken by the authorized enforcement official shall be fully documented prior to or contemporaneously with abatement. Documentation shall include photographs and/or drawings of the condition and a written statement by the authorized enforcement official or other first-hand witnesses as to the circumstance, condition, or occurrence constituting the nuisance.

(d) Whenever the authorized enforcement official determines that summary abatement is justified by an imminently dangerous condition, circumstance, or occurrence, the authorized enforcement official shall give immediate written notice to the property owner and personal notice to the occupant of the premises as to the nuisance. If the property owner fails to take prompt appropriate action to abate the nuisance, the authorized enforcement official may proceed to take abatement action authorized in this chapter to the extent necessary to remedy the immediate danger without further notice or right to a prior hearing.

(e) Once summary abatement action has been completed, the property owner may contest the need for and cost of abatement action in the manner provided in Sections 18.210.480 and 18.210.490 within seven calendar days after service of the cost report. (Ord. 01-2021 § 1, 2-2-21.)

18.210.400 Abatement by city.

(a) In the event the property owner fails to abate within the prescribed time, and if no appeal has been filed with the city manager, the authorized enforcement official shall abate the nuisance.

(b) Abatement shall be pursued by city personnel or private contractor retained by the city. The authorized enforcement official or designee is hereby expressly authorized to enter upon said property for such purposes, to the extent permitted by law, and is authorized to obtain such court process as may be necessary to gain lawful entry.

(c) The actual costs of abatement, including administrative and incidental expenses, shall be the liability of the owner. “Incidental expenses” shall include but are not limited to personnel costs, both direct and indirect, costs incurred in inspecting the property, in documenting the nuisance, the actual expenses to the city in the preparation of notices, preparation of specification and contracts for abatement and inspection of the work, and the costs of printing and mailing required hereunder, and legal expenses as provided in Section 18.210.530. (Ord. 01-2021 § 1, 2-2-21.)

18.210.410 Appeal procedure – Administrative hearing.

The property owner may appeal the nuisance determination of the authorized enforcement official to the city manager by filing an appeal with the city clerk within seven calendar days of the date of service of the notice to abate. The appeal shall identify the property and state the grounds for appeal together with all material facts in support thereof. (Ord. 01-2021 § 1, 2-2-21.)

18.210.420 Service of notice of hearing.

(a) In the event the property owner appeals the nuisance determination, the city manager shall schedule an administrative hearing within five days of receiving said appeal before a hearing officer designated by the city manager.

(b) Notice of said hearing shall be served personally or by first-class mail, postage prepaid. Such notice shall be addressed to the person in possession of such property as shown in the records of the authorized enforcement official, and to the owner thereof at the last known address as the same appears on the last equalized-assessment roll of the county and shall specify the time and place when and where the designated hearing officer will hear and decide upon issues which may be raised by the owner. Such notice shall be served not less than five days, exclusive of Saturdays, Sundays, and holidays, prior to the time set for the hearing. Service shall be deemed complete at the time notice is personally served or deposited in the mail. (Ord. 01-2021 § 1, 2-2-21.)

18.210.430 Waiver of hearing.

Failure of the owner to appear at the hearing after notice has been served personally or by first-class mail, postage prepaid, addressed to said owner at the address shown on the appeal shall be deemed a waiver of the hearing and an admission by said owner of the nuisance charged. In the event of such failure to appear, the city manager may order that the nuisance be abated by the authorized enforcement official or his/her designee. (Ord. 01-2021 § 1, 2-2-21.)

18.210.440 Administrative hearing by hearing officer.

(a) At the time and place set for hearing, the hearing officer designated by the city manager shall afford the appellant an opportunity for a hearing and shall consider all relevant evidence, and shall receive testimony from the authorized enforcement official or his/her designee and the property owner under oath relative to such alleged nuisance and the proposed abatement of such nuisance. Each party may examine the witnesses of other parties.

(b) Said hearing shall be tape recorded and may be continued from time to time at the discretion of the hearing officer.

(c) The hearing officer shall prepare a written decision based on the evidence received which shall be final and conclusive. The written decision shall contain a statement of decision relevant to the issues presented and set forth the time within which abatement shall be completed by the owner. In no event shall said abatement period be less than 30 days (except in exigent circumstances) nor more than 60 days, except with a showing of good cause.

(d) The hearing officer shall complete and deliver the written decision to the parties no later than 10 days after the close of the hearing and such decision shall be served in the same manner as the notice of hearing as prescribed in Section 18.210.420(b).

(e) The city manager shall compile and retain for 120 days the full record of the hearing under this chapter, including all exhibits and documents offered as evidence, whether or not admitted, and an audio tape recording of the proceeding. (Ord. 01-2021 § 1, 2-2-21.)

18.210.450 Voluntary abatement – Avoidance of costs.

No administrative or incidental staff costs associated with the hearing or enforcement may be assessed against an owner who undertakes abatement action within 10 calendar days after service by the hearing officer of the written decision on the owner. The owner’s abatement action shall be in compliance with the orders of the hearing officer. (Ord. 01-2021 § 1, 2-2-21.)

18.210.460 Judicial review.

Review of hearing officer decisions pursuant to this chapter shall be in accordance with Cal. Code of Civ. Proc. § 1094.5. (Ord. 01-2021 § 1, 2-2-21.)

18.210.470 Abatement by authorized enforcement official upon failure of owner to abate.

After said hearing, if abatement of the nuisance has not been commenced and prosecuted to completion with due diligence as required by the written hearing decision, the city manager shall forthwith abate or cause to be abated the nuisance upon the premises and the cost thereof shall be billed to the property owner. Payment of the abatement cost shall be due within 30 calendar days of the date of mailing the bill. (Ord. 01-2021 § 1, 2-2-21.)

18.210.480 Notice and hearing of cost report.

(a) After completion of the abatement, the authorized enforcement official shall file with the city manager a cost report specifying the work completed, the cost of abatement, including incidental expenses, and a description of the property subject to abatement. The cost report shall be filed within 10 calendar days of completion of the abatement.

(b) At the time of filing the cost report with the city manager, the authorized enforcement official shall cause notice of the cost report to be given in the manner specified in Section 18.210.420(b).

(c) The property owner may request a hearing to appear and be heard concerning the abatement cost report and the actual and incidental abatement costs. A request for a hearing shall be made to the city clerk within 15 calendar days after service of the cost report.

(d) When a request for hearing on the cost report is made, the city manager shall serve a notice of hearing on the property owner which shall specify the time and place when and where a city manager designated hearing officer shall hear and pass upon the abatement cost report of the city staff. The property owner may appear and be heard concerning the cost of abatement. (Ord. 01-2021 § 1, 2-2-21.)

18.210.490 Hearing on cost report – Finality of decision.

(a) At the time and place fixed for the hearing of the cost report, the hearing officer shall conduct a fair hearing to hear and pass upon the abatement cost report in the manner provided in Section 18.210.440. The hearing officer shall receive objections and protests of the property owner liable to be assessed for such abatement costs and any other interested persons. The hearing officer may continue the hearing from time to time in his/her discretion.

(b) The hearing officer may make such revision, correction, or modification in the cost report as he/she may deem just, after which the cost report as revised or modified shall be confirmed in writing by the hearing officer. The hearing officer shall make a written statement of decision.

(c) The hearing officer shall serve the decision and confirmed cost report on the parties in the same manner as provided in Section 18.210.440 no later than 10 days after the close of the hearing. The hearing officer shall inform the property owner that the cost report will become a lien on the subject property unless paid within 30 days after confirmation by the hearing officer.

(d) If the hearing officer determines that the objections and protests support a finding that the nuisance was not created, or allowed to continue by the owner or a person or entity holding an estate under the owner, he/she shall make such finding and may revise, correct, or modify the cost report as justice may require.

(e) The decision on all protests and objections which may be made shall be final and conclusive and subject to judicial review pursuant to Cal. Code of Civ. Proc. § 1094.5.

(f) The city manager shall prepare and preserve a full record of the proceeding, including an audio tape, for 120 days after the close of the hearing. (Ord. 01-2021 § 1, 2-2-21.)

18.210.500 Assessment of cost of abatement – Lien.

(a) The abatement cost shall be a debt owing to the city and may be enforced like any other debts owning to the city.

(b) As an alternative to subsection (a) of this section, the cost of abatement may be assessed by the city against the property upon which the nuisance was abated and such cost so assessed, if not paid within 30 days after its confirmation by the hearing officer, shall constitute a special assessment against the parcel of property and shall be a lien on such property for the amount thereof from the time of recordation of the notice of lien, which lien shall continue until the assessment is paid or until it is discharged of record. (Ord. 01-2021 § 1, 2-2-21.)

18.210.510 Notice of lien – Manner of collection.

(a) From and after the date of the recording of the notice of lien, all persons shall be deemed to have notice of the contents thereof. The notice of lien shall be delivered by the city manager to the county auditor, who shall enter the amount thereof on the county assessment book opposite the description of the particular property. The amount of the lien shall be collected together with all other taxes thereon against the property.

(b) The notice of lien shall be delivered to the county auditor before the date fixed by law for the delivery of the assessment roll to the county board of equalization. Thereafter the amount of the lien shall be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and interest and to the same procedure under foreclosure and sale in the case of delinquency as provided for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of county taxes are hereby made applicable to such special assessment taxes. (Ord. 01-2021 § 1, 2-2-21.)

18.210.520 Special circumstances.

(a) Notwithstanding any other provision herein, whenever an owner of property constituting a nuisance is unable to abate the nuisance and is also unable to pay for the cost of abatement by the city, the city shall abate the nuisance. The cost of abatement shall become a lien against the property, which lien comes due and payable only upon the sale, transfer, or total or partial destruction of said property.

(b) This procedure shall be available as an alternative provision whenever the owner can prove to the satisfaction of the authorized enforcement official that said owner is unable to abate the nuisance or to pay for the cost of abatement due to the following circumstances:

(1) Continued unemployment, underemployment, or low income.

(2) Physical or mental disability, disease, handicap, or impairment rendering owner unable to meet its civic and financial obligations.

(3) Senior citizens subsisting on a limited, fixed, low income.

(c) The authorized enforcement official shall advise all property owners of the availability of this procedure at the time of giving notice of nuisance as provided in Section 18.210.380. (Ord. 01-2021 § 1, 2-2-21.)

18.210.530 Costs and attorneys’ fees recovery.

In any administrative or civil proceeding under this chapter in which the city prevails, the city shall be awarded all costs of investigation, administrative overhead, out-of-pocket expenses, costs of administrative hearings, costs of suit, and reasonable attorneys’ fees. All such costs shall be deemed costs of nuisance abatement and shall be included in the cost report provided in this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.540 Civil actions.

In addition to any other remedies provided in this section, any violation of this section may be enforced by civil action brought by the city. In any such action, the city may seek, and the court shall grant, as appropriate, any or all of the following remedies:

(a) A temporary and/or permanent injunction.

(b) Assessment against the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection.

(d) Compensatory damages for loss or destruction to water quality, wildlife, fish and aquatic life. Assessments under this subsection shall be paid to the city to be used exclusively for costs associated with monitoring and establishing stormwater discharge pollution control systems and/or implementing or enforcing the provisions of this chapter.

(e) An award of reasonable attorneys’ fees in any action in which the city prevails. (Ord. 01-2021 § 1, 2-2-21.)

18.210.550 Administrative enforcement powers.

In addition to the other enforcement powers and remedies established by this chapter, any authorized enforcement official has the authority to utilize the following administrative remedies:

(a) Cease and Desist Orders. When an authorized enforcement official finds that a discharge has taken place or is likely to take place in violation of this chapter, the official may issue an order to cease and desist such discharge, or practice, or operation likely to cause such discharge and direct that those persons not complying shall: (1) comply with the requirement, (2) comply with a time schedule for compliance, and/or (3) take appropriate remedial or preventive action to prevent the violation from recurring.

(b) Notice to Clean. Whenever an authorized enforcement official finds any oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or any other material of any kind, in or upon the sidewalk abutting or adjoining any parcel of land, or upon any parcel of land or grounds, which may result in an increase in pollutants entering the city storm sewer system or a nonstormwater discharge to the city storm drain system, he/she may give notice to remove such oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or other material. The recipient of such notice shall undertake the activities as described in the notice. (Ord. 01-2021 § 1, 2-2-21.)

18.210.560 Costs and attorneys’ fees a debt.

All costs and attorneys’ fees imposed pursuant to the provisions of this chapter shall be deemed a debt to the city. At the discretion of the city manager, an action may be commenced in the name of the city in any court of competent jurisdiction for the amount of such debt. The time for commencement of any such action shall be within three years from the date of the award imposed pursuant to the provisions of this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.570 Authority to arrest or issue citations.

(a) Authorized enforcement officers shall have and are hereby vested with the authority to arrest or cite and release any person who violates any section of this chapter in the manner provided by the California Penal Code for the arrest or release on citation of misdemeanors or infractions.

(b) Such authorized enforcement officers may issue a citation and notice to appear in the manner prescribed by Cal. Penal Code §§ 853.5 and 853.6.

(c) It is the intent of the city council that the immunities prescribed in Cal. Penal Code § 836.5 be applicable to public officers or employees acting in the course and scope of employment pursuant to this chapter. (Ord. 01-2021 § 1, 2-2-21.)

18.210.580 Remedies not exclusive.

Remedies under this article are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive. (Ord. 01-2021 § 1, 2-2-21.)

18.210.590 Disclaimer of liability.

The degree of protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. The standards set forth herein are minimum standards and this chapter does not imply that compliance will ensure that there will be no unauthorized discharge of pollutants into the waters of the United States. This chapter shall not create liability on the part of the city, any officer or employee thereof, for any damages that result from reliance with this chapter or any administrative decision lawfully made thereunder. (Ord. 01-2021 § 1, 2-2-21.)

Article IV. Coordination with Other Programs

18.210.600 Coordination with hazardous materials inventory and response program.

The first revision of the business plan for any facility subject to the city’s hazardous materials inventory and response program shall include a program for compliance with this chapter, including the prohibitions on nonstormwater discharges and illicit discharges, and the requirement to reduce stormwater pollutants to the maximum extent practicable. (Ord. 01-2021 § 1, 2-2-21.)

18.210.620 Construction and application.

This chapter shall be construed to assure consistency with the requirements of the federal Clean Water Act and acts amendatory thereof or supplementary thereto, applicable implementing regulations, and NPDES stormwater permit. (Ord. 01-2021 § 1, 2-2-21.)