4-11. FIRE HAZARDOUS WEEDS AND RUBBISH

CHAPTER 11. FIRE HAZARDOUS WEEDS AND RUBBISH

ARTICLE 1. GENERAL PROVISIONS

4-11-1000 LEGISLATIVE AUTHORITY: TITLE:

Pursuant to the authority granted it by section 25845 of the Government Code and sections 14930 and 14931 of the Health and Safety Code, the Board of Supervisors does enact this Chapter, which shall be known and may be cited as the Fire Hazardous Weeds and Rubbish Ordinance.

(Amended by Ord. No. 3571, effective 8-22-19)

4-11-1005 POLICY:

(a) It is the purpose of this Chapter to protect the lands, fields, lots, buildings and homes within this County from the danger of fire, which may spread from one property to another. It shall be construed liberally to that end.

(b) It is the further policy of the Board of Supervisors to minimize the burden placed upon property owners. Accordingly, those methods of abatement are to be favored which are least costly, which are directly related to protecting neighboring property, and which entail the least destruction of valuable economic or ornamental plants and valuable materials.

4-11-1010 EFFECT:

This Chapter is not the exclusive regulation of fire hazardous weeds and rubbish. It shall supplement and be in addition to the other regulating statutes and ordinances heretofore or hereafter enacted by the State, the County, or any other legal entity or agency having jurisdiction.

4-11-1015 ENFORCEMENT:

Except as otherwise provided, this Chapter shall be administered and enforced by the County Fire Chief and his or her deputies and employees in the department.

(Amended by Ord. No. 3559, effective 6-20-19)

4-11-1020 NO DUTY TO ENFORCE:

Nothing in this Chapter shall be construed as imposing any duty on the County Fire Chief, or any other agency, department, or division of the County to take any specific enforcement action with respect to alleged violations of this Chapter, including issuing citations or notices of violations pursuant to this Chapter. Neither the County Fire Chief nor any other agency, department, or division of the County, or the County, shall be held liable for failure to take any specific enforcement action to correct an alleged violation of this Chapter.

(Amended by Ord. No. 3571, effective 8-22-19)

4-11-1025 SEVERABILITY:

The provisions of this Chapter are hereby declared to be severable. If any section, subsection, subdivision, sentence, clause, phrase, portion, or application of this Chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, that portion shall be deemed a separate, distinct, and independent provision, and that holding shall not affect the validity of the remaining portions of this Chapter. The Board hereby declares that it would have enacted this Chapter, each section, subsection, subdivision, sentence, clause, phrase, and portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions be declared invalid.

(Amended by Ord. No. 3571, effective 8-22-19)

ARTICLE 3. NUISANCE

4-11-1065 DECLARATION OF NUISANCE:

Weeds, grass, rank growths and combustible rubbish growing or accumulating upon private property which do, or will when dry, create a fire hazard and which by virtue thereof constitute a danger to neighboring property or the health or welfare of residents of the vicinity are hereby declared to constitute a public nuisance which may be abated in accordance with the provisions of this Chapter.

4-11-1070 DEFINITIONS:

Except where the context otherwise requires, the following definitions shall govern the construction of this Chapter:

(a) "Weed" means any plant, whether herbaceous or woody and of whatever height, except a tree, which grows wild.

(b) "Grass" means any herbaceous plant which is cultivated and which attains, when mature, if uncontrolled, such a height as to be a medium for the rapid spread of fire.

(c) "Rank growth" means a cover of vegetation of any type, cultivated or not, including trees, which has attained or will, if allowed to mature, attain such a height and density as to be a medium for the rapid spread of fire.

(d) "Rubbish" means material of whatever value placed or allowed to accumulate so as to be a medium for the rapid spread of fire.

(e) "Cost of administration" means the cost to the County of performing the various administrative acts required under this Chapter with regard to the abatement of a public nuisance, including, without limitation, the costs of investigating such nuisance and the cost of prosecuting the public nuisance, but not including the actual cost of physically abating the nuisance. The Board of Supervisors shall establish by resolution, from time to time, the fee necessary to cover the cost of administration per parcel for a nuisance abated by the County Fire Chief.

(f) "Board" means the Board of Supervisors of the County.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1075 OWNER’S DUTY:

It is the duty of every owner of private property within the unincorporated areas of Tulare County to prevent a nuisance described in section 4-11-1065 of this Chapter from arising on, or existing upon, his or her property.

(Amended by Ord. No. 3559, effective 6-20-19)

ARTICLE 5. NOTICE OF EXISTENCE OF NUISANCE

4-11-1125 NOTICE:

Whenever the County Fire Chief determines that a nuisance described in section 4-11-1065 of this Chapter exists upon any private property within the County, he or she may prepare a notice of violation and order to abate ("notice/order"), and shall serve a copy thereof upon the owner of the real property upon which the nuisance exists, as shown on the last equalized assessment roll, or to the current owner if otherwise known to the County Fire Chief. The County Fire Chief shall also serve copies of the notice/order upon anyone known to the County Fire Chief to be in possession of the real property, and upon any mortgagee, beneficiary under a deed of trust, or other lienholders of record.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1130 NOTICE/ORDER: CONTENTS:

The notice/order required by section 4-11-1125 of this Chapter shall:

(a) Identify the owner of the private property upon which the nuisance exists, as the name appears on the records of the County Assessor/Clerk-Recorder.

(b) Describe the location of such private property by its commonly used street address, giving the name or number of the street, road or highway and the number, if any, of the property.

(d) Contain a statement that a fire hazardous condition exists and that it has been determined by the County Fire Chief to be a public nuisance described in section 4-11-1065 of this Chapter.

(e) Contain an order specifying the repairs or corrective actions that are required to correct or abate the fire hazardous condition.

(f) Contain a statement that the owner may within fifteen (15) calendar days after delivery or service of the notice make a request in writing to the County Fire Chief for administrative review of the determination that the conditions on the property create a public nuisance, or to show that for some other reason those conditions should not be abated in accordance with the provisions of this Chapter. The notice/order shall include a telephone number and an Internet website (if applicable) where a property owner may obtain a copy of the administrative review request form. A copy of the request form shall also be included with the notice.

(g) Contain a statement explaining the consequences of failing to abate or request administrative review within the applicable time periods, including:

(i) That the notice/order will become a final order;

(ii) That the County Fire Chief may send an additional "Final Notice" informing the property owner and other affected parties that because the hazard has not been abated, the property owner may be held liable for certain fire suppression or medical and rescue costs;

(iii) That the County Fire Chief may abate the public nuisance at the owner’s expense, not less than thirty (30) days after the date said notice/order was mailed or personally delivered; and

(iv) That if the notice/order is not fully complied with within the applicable time period, the County may impose fines or penalties pursuant to this Chapter and any other applicable laws, and it may seek recovery of its civil, administrative and abatement costs, including by means of liens and/or special assessments against the subject real property that will be collected at the same time and in the same manner as ordinary real property taxes.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1135 NOTICE: MAILING: PERSONAL DELIVERY: POSTING

(a) Unless otherwise required by law, the notices/orders required by this Chapter shall be served by one or more of the following methods:

(1) Personal service, by delivery to the party or attorney on whom the service is required to be made.

(2) Service by first class or certified mail. Such service shall be deemed effective two (2) days after the date of mailing. The owner of a property may be served by first class or certified mail at his or her address as it appears on the last equalized assessment roll, except that, if the records of the County Assessor/Clerk-Recorder show that the ownership has changed since the last equalized assessment roll was compiled, notice shall be mailed to the new owner.

(3) Service by Posting. If service cannot with diligent effort be accomplished by personal delivery or by mail, then notice may be given by posting copies of the notice/order along the subject real property not more than one thousand (1,000) feet apart, but in no event shall fewer than two (2) signs be posted.

(b) A copy of any notice/order served pursuant to this section may be recorded against the subject real property in the office of the County Assessor/Clerk-Recorder.

(c) If the County Fire Chief serves a notice/order pursuant to this Chapter in the manner and within the time limits required by this section, then the failure of any person to receive actual notice of any proceedings shall not affect the validity of any proceedings taken pursuant to this Chapter.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1140 NOTICE: POSTING:

Repealed by Ord. No. 3571. (Amended by Ord. No. 3559, effective 6-20-19)

ARTICLE 7. ADMINISTRATIVE REVIEW OF EXISTENCE OF NUISANCE

4-11-1190 ADMINISTRATIVE REVIEW: REQUEST:

(a) The owner of property upon which the County Fire Chief has determined that a nuisance described in section 4-11-1065 of this Chapter exists may request administrative review on or before the fifteenth (15th) calendar day following the date of mailing of the notice or the date on which the notice was personally delivered by filing a written request therefor with the County Fire Chief. The request for administrative review shall include the following information, and may be on a form provided by the County Fire Chief:

(1) The Property Street Address (name and number), the Assessor's Parcel Number, and the name of the owner and his or her address.

(2) A brief statement setting forth the interest the aggrieved person has in the matter relating to the imposition of the fine/penalty.

(3) A brief statement of the material facts relating to the determination of the existence of the nuisance, and/or which the aggrieved person claims support his or her contention that no administrative fine/penalty should be imposed or that an administrative fine/penalty of a different amount is warranted; and

(4) An address at which the aggrieved person agrees notice of any additional proceedings or an order relating to imposition of the administrative fine/penalty may be received by first class mail.

(b) Unless the nuisance is abated as specified in the notice/order, or the real property owner or other party with a legally protected interest in the real property requests administrative review of the determination that a public nuisance exists within fifteen (15) calendar days after the date the notice/order was served, then the County Fire Chief's notice/order shall constitute a final administrative order or decision. It cannot be appealed and cannot be judicially reviewed, because the aggrieved person failed to exhaust available administrative remedies.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1195 ADMINISTRATIVE REVIEW: NOTICE:

If administrative review has been requested in accordance with section 4-11-1190 of this Chapter, the County Fire Chief or designee, as administrative review officer, shall set a date and time for such administrative review and send a notice thereof by regular mail at least five (5) calendar days before such date to the aggrieved person at the address set forth on his or her request.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1200 ADMINISTRATIVE REVIEW: CONDUCT:

At the date and time set, an administrative review shall be held by the administrative review officer. The administrative review officer shall consider all pertinent information offered by all interested persons.

(Amended by Ord. No. 3559, effective 6-20-19)

4-11-1205 ADMINISTRATIVE REVIEW: DECISION:

At the conclusion of the administrative review, the administrative review officer may determine:

(a) That no public nuisance exists.

(b) That a public nuisance exists which should be abated in accordance with section 4-11-1260 of this Chapter. The administrative review officer shall thereupon order the nuisance abated no sooner than the fifth (5th) business day following the mailing of notice of the administrative review officer’s decision.

(c) That a public nuisance exists which may be removed by some procedure proposed by the owner other than destruction of the fire hazardous plants or materials. If the administrative review officer determines that another procedure proposed by the owner may be employed to remove the public nuisance, the officer shall set a reasonable time within which the owner must complete that procedure. If the owner fails to complete the proposed procedure within the time limit set by the administrative review officer, the County Fire Chief may, upon five (5) business days’ notice, sent by him or her to the owner by regular mail, commence abatement in accordance with section 4-11-1260 of this Chapter.

(d) An appropriate amount for administrative fines/penalties, if any.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1210 APPEAL:

Any person aggrieved by any decision of the administrative review officer may appeal to the County Hearing Officer as set forth in Chapter 31 of Part I of this Code.

(Added by Ord. No. 3559, effective 6-20-19)

ARTICLE 9. ABATEMENT AND STATEMENT OF EXPENSES

4-11-1255 ABATEMENT BY OWNER:

Any owner may remove or cause to be removed a nuisance described in section 4-11-1065 of this Chapter at any time prior to commencement of abatement by, or at the direction of, the County Fire Chief.

(Amended by Ord. No. 3559, effective 6-20-19)

4-11-1260 ABATEMENT: ENTERING PRIVATE PROPERTY:

If the owner has not earlier removed the nuisance and if no request for administrative review as provided by section 4-11-1190 of this Chapter is received by the County Fire Chief on or before the fifteenth (15th) calendar day following the mailing or personal delivery of the notice required by section 4-11-1125 of this Chapter, or if no notice of appeal to the County Hearing Officer after the administrative review officer’s decision is filed as provided by section 4-11-1210 of this Chapter, within the time provided in Article 31 of Chapter 1 of Part I of this Code, the County Fire Chief may cause the nuisance to be abated. The County Fire Chief shall not commence the abatement until at least thirty (30) days after said notice was mailed or personally delivered to the owner. The County Fire Chief, his or her deputies, the employees of his or her department, and independent contractors hired by him or her may enter upon private property on which a nuisance described in section 4-11-1065 of this Chapter exists for the purpose of abating that nuisance. If necessary, the County Fire Chief shall apply to a court of competent jurisdiction for a warrant authorizing entry upon the subject real property for purposes of undertaking the work of abatement.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1265 STATEMENT OF EXPENSES:

(a) The County Fire Chief shall keep an account of the cost of every abatement carried out and shall prepare a statement of expenses in writing showing the cost of each abatement, itemized by parcel, and the applicable costs of administration. The County Fire Chief shall submit these statements of expenses to the Clerk of the Board. The statement of expenses or its supporting attachments shall include the following information:

(1) Name(s) of the contractor(s) who performed the abatement, if any;

(2) Dates when abatement activities were conducted on the real property, and information about what activities were conducted on which dates;

(3) Number of individuals who worked on each type of abatement activity on the property;

(4) Total number of hours the contractor’s employees/agents spent on each type of abatement activity;

(5) Rate for each type of abatement activity performed;

(6) Itemized list of other fees or charges incurred in conducting the abatement, including, but not limited to, dump fees or travel fees; and

(7) Costs of administration, including any applicable postage and attorneys’ fees.

(b) Upon receipt of the statement of expenses, the Clerk of the Board shall mail a copy of the statement of expenses, and a notice explaining the right to appeal the statement of expenses to the County Hearing Officer, to the owner of the affected real property at the address provided in section 4-11-1135 of this Chapter, unless the owner has otherwise requested in writing, and to any mortgagee, lienholders of record, or beneficiary under a deed of trust.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1270 APPEAL ON STATEMENT OF EXPENSES: NOTICE: WAIVER BY PAYMENT:

(a) The owner of the affected real property, or other individual with a legally protected interest in the affected real property, may appeal for a reconsideration or modification of the statement of expenses to the County Hearing Officer. Any appeal to the County Hearing Officer shall be in writing and shall be filed with the Clerk of the Board within ten (10) calendar days after the date of mailing of the notice and statement of expenses. An appeal shall specifically set forth the grounds of the appeal. At the time of filing the appeal, the appellant shall pay a fee adequate to cover the cost of processing and hearing the appeal as established from time to time by resolution of the Board of Supervisors. The appellant may request a waiver of the fee pursuant to section 1-31-1060 of this Code.

(b) The Clerk of the Board shall mail notice to the appellant of the date and time that the County Hearing Officer will hear the appeal, which date shall be not less than (10) calendar days after the date of mailing the notice.

(c) Unless otherwise expressly stated by the owner, payment of the cost of abatement and the cost of administration without filing an appeal, or payment prior to an appeal hearing on the statement of expenses, shall be deemed a waiver of the right thereto and an admission that said statement of expenses is accurate and reasonable.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1275 HEARING ON APPEAL: STATEMENT OF EXPENSES:

(a) At the time fixed by the Clerk of the Board, the County Hearing Officer shall hear the appeal on the statement of expenses. The owner may appear and be heard on the questions of whether the statement of expenses and the costs included are accurate and reasonable.

(b) The statement of expenses shall be admitted into evidence. The owner shall bear the burden of proving that the statement of expenses is not accurate and reasonable.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1280 MODIFICATIONS:

The County Hearing Officer shall make such modifications in the statement of expenses as he or she deems necessary based on the evidence at the hearing, and thereafter shall confirm the statement of expenses in a written decision. The County Hearing Officer shall transmit the decision on the statement of expenses to the parties in the manner prescribed in section 1-31-1210 of this Code.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1285 LIABILITY FOR COST OF ABATEMENT: SPECIAL ASSESSMENT AND LIEN:

(a) The applicable owner of the real property shall be liable for the cost of the abatement, including the cost of administration, as so determined by the statement of expenses if such statement is not appealed, or by the County Hearing Officer if the statement of expenses is appealed.

(b) Pursuant to section 25845 of the Government Code, the Board may order that the cost of abating nuisances pursuant to this Chapter and the applicable costs of administration be placed upon the County tax roll by the County Auditor as special assessments against the respective parcels of land and collected at the same time and in the same manner as ordinary county taxes are collected, or placed on the unsecured roll, if such costs and fees are not paid: (i) within five (5) days following service of the County Hearing Officer's decision under section 4-11-1280, if the statement of expenses is appealed, or (ii) within thirty (30) days following service of the statement of expenses, if not appealed; provided, however, that the cost of abatement and the cost of administration as finally determined shall not be placed on the tax roll if paid in full prior to entry of said costs on the tax roll.

(c) The Board may also order that a notice of abatement lien be recorded against any applicable real property until such costs and fees have been paid in full.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)

4-11-1290 VIOLATION: PENALTY:

The maintenance on private property of a public nuisance as described in section 4-11-1065 of this Chapter shall constitute an infraction, punishable under section 125 of this Code, if any of the following conditions are met:

(a) Such public nuisance is not corrected within thirty (30) days after the County Fire Chief has notified the property owner of the existence of the public nuisance and there has been no timely request made to the County Fire Chief for administrative review of the determination of the existence of such public nuisance; or

(b) If, after administrative review, the administrative review officer determines that such a public nuisance exists and such public nuisance is not corrected within five (5) business days following mailing of the notice of the administrative review officer’s decision to the property owner; or

(c) If, after administrative review and determination by administrative review officer that such a public nuisance exists and that such public nuisance may be removed by some procedure proposed by the owner other than destruction of the fire hazardous plants or materials, the administrative review officer has set a specific time within which the owner must complete the procedure, and such public nuisance is not corrected within the period of time as set by the administrative review officer; or

(d) If, after a hearing by the County Hearing Officer as set forth in Article 31 of Chapter 1 of Part I of this Code, the public nuisance is not corrected within the time set by the County Hearing Officer.

(Amended by Ord. No. 3559, effective 6-20-19; amended by Ord. No. 3571, effective 8-22-19)