HomeMy WebLinkAbout2005-6 - Amending Section 14.36.060, Chapter 14.36 of Title 14 of the NBMC Pertaining to Water and Sewers.ORDINANCE NO. 2005- 6
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH AMENDING SECTION 14.36.060, CHAPTER
14.36 OF TITLE 14 OF THE NEWPORT BEACH MUNICIPAL
CODE PERTAINING TO WATER AND SEWERS
SECTION 1: Section 14.36.060 of Chapter 14.36 is amended to read as follows:
Chapter 14.36
Section 14.36.060 Enforcement.
A. Administrative Remedies.
1. Notice of Noncompliance. In addition to any other remedy or means of
enforcement authorized by law or this code, the Authorized Inspector may
deliver to the owner or occupant of any property, or to any person
responsible for an illicit connection or prohibited discharge a notice of
noncompliance. The notice of noncompliance shall be delivered in
accordance with this section.
a. The notice of noncompliance shall identify the provision(s) of this
chapter or the applicable permit which has been violated. The
notice of noncompliance shall state that continued noncompliance
may result in additional enforcement actions against the owner,
occupant and /or person.
b. The notice of noncompliance shall state a compliance date that
must be met by the owner, occupant and /or person; provided,
however, that the compliance date may not exceed ninety (90) days
unless the Authorized Inspector extends the compliance deadline
an additional ninety (90) days where good cause exists for the
extension.
WATER QUALITY
Sections:
14.36.010
Purpose and Intent.
14.36.020
Definitions.
14.36.030
Illicit Connections and Prohibited Discharges.
14.36.040
Control of Urban Runoff.
14.36.050
Inspections.
14.36.060
Enforcement.
14.36.070
Permits.
14.36.080
Compliance Disclaimer.
Section 14.36.060 Enforcement.
A. Administrative Remedies.
1. Notice of Noncompliance. In addition to any other remedy or means of
enforcement authorized by law or this code, the Authorized Inspector may
deliver to the owner or occupant of any property, or to any person
responsible for an illicit connection or prohibited discharge a notice of
noncompliance. The notice of noncompliance shall be delivered in
accordance with this section.
a. The notice of noncompliance shall identify the provision(s) of this
chapter or the applicable permit which has been violated. The
notice of noncompliance shall state that continued noncompliance
may result in additional enforcement actions against the owner,
occupant and /or person.
b. The notice of noncompliance shall state a compliance date that
must be met by the owner, occupant and /or person; provided,
however, that the compliance date may not exceed ninety (90) days
unless the Authorized Inspector extends the compliance deadline
an additional ninety (90) days where good cause exists for the
extension.
2. Administrative Compliance Orders.
a. The Authorized Inspector may issue an administrative compliance
order, which shall be delivered in accordance with this section of
this chapter. The administrative compliance order may be issued to:
The owner or occupant of any property requiring abatement
of conditions on the property that cause or may cause a
prohibited discharge or an illicit connection in violation of this
chapter;
ii. The owner of property subject to terms, conditions or
requirements imposed on a project in accordance with this
section to ensure adherence to those terms, conditions and
requirements;
iii. A permittee subject to the requirements of any permit issued
pursuant to Section 14.36.070 to ensure compliance with the
terms, conditions and requirements of the permit;
iv. Any person responsible for an illicit connection or prohibited
discharge.
b. The administrative compliance order may include the following
terms and requirements:
i. Specific steps and time schedules for compliance as
reasonably necessary to eliminate an existing prohibited
discharge, or to prevent the imminent threat of a prohibited
discharge, including but not limited to a prohibited discharge
from any pond, pit, well, surface impoundment, holding or
storage area;
ii. Specific steps and time schedules for compliance as
reasonably necessary to discontinue any illicit connection;
iii. Specific requirements for containment, cleanup, removal,
storage, installation of overhead covering, or proper disposal
of any pollutant having the potential to contact storm water
runoff;
iv. Any other terms or requirements reasonably calculated to
prevent the imminent threat of or continuing violations of this
chapter, including, but not limited to requirements for
compliance with best management practices guidance
documents promulgated by any federal, State of California or
regional agency;
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V. Any other terms or requirements reasonably calculated to
achieve full compliance with the terms, conditions and
requirements of any permit issued pursuant hereto.
3. Cease and Desist Orders.
a. The Authorized Inspector may issue a cease and desist order. A
cease and desist order shall be delivered in accordance with this
section. A cease and desist order may direct the owner or occupant
of any property and /or other person responsible for a violation of
this chapter to:
Immediately discontinue any illicit connection or prohibited
discharge to the Storm Water Drainage System;
ii. Immediately contain or divert any flow of water off the
property, where the flow is occurring in violation of any
provision of this chapter;
iii. Immediately discontinue any other violation of this chapter;
iv. Clean up the area affected by the violation.
b. The Authorized Inspector may direct by cease and desist order that
the owner of any property or his successor -in- interest, which
property is subject to any conditions or requirements issued
pursuant to Section 14.36.040 of this chapter or any permittee
under any permit issued pursuant to Section 14.36.070,
immediately cease any activity not in compliance with the
conditions or requirements issued pursuant to Section 14.036.040
of this chapter, or the terms, conditions and requirements of the
applicable permit.
4. Recovery of Costs. The Authorized Inspector may deliver to the owner or
occupant of any property, any permittee or any other person who
becomes subject to a notice of noncompliance, administrative or cease
and desist order, an invoice for costs. An invoice for costs shall be
delivered in accordance with this section. An invoice for costs shall be
immediately due and payable to the City in issuing and enforcing any
notice or order. If any owner or occupant, permittee or any other person
subject to an invoice for costs fails to either pay the invoice for costs or
appeal successfully the invoice for costs in accordance with this section
then the Enforcing Attorney may institute collection proceedings.
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5. Delivery of Notice. Any notice of noncompliance, administrative
compliance order, cease and desist order or invoice of costs to be
delivered pursuant to the requirements of this chapter shall be subject to
the following:
a. The notice shall state that the recipient has a right to appeal the
matter as set forth in this section;
b. Delivery shall be deemed complete upon (i) personal service to the
recipient; (ii) deposit in the U.S. mail, postage prepaid for first class
delivery; or (iii) facsimile service with confirmation of receipt;
C. Where the recipient of notice is the owner of the property, the
address for notice shall be the address from the most recently
issued equalized assessment roll for the property or as otherwise
appears in the current records of the City;
d. Where the owner or occupant of any property cannot be located
after the reasonable efforts of the Authorized Inspector, a notice of
noncompliance, administrative compliance or cease and desist
order shall be deemed delivered after posting on the property for a
period of ten business days.
6. Administrative Hearing for Notices of Noncompliance, Administrative
Compliance Orders, Invoices for Costs and Adverse Determinations. Any
person receiving a notice of noncompliance, administrative compliance
order, a notice of legal nonconforming connection, an invoice for costs, or
any person who is subject to any adverse determination made pursuant to
this chapter, may appeal the matter by requesting an administrative
hearing. Notwithstanding the foregoing, these administrative appeal
procedures shall not apply to criminal proceedings initiated to enforce this
chapter.
7. Request for Administrative Hearing. Any person appealing a notice of
noncompliance, an administrative compliance order, a notice of legal
nonconforming connection, an invoice for costs or an adverse
determination shall, within fifteen (15) days of the correction date, file a
written request for an administrative hearing, accompanied by an
administrative hearing fee as established by separate resolution of the
City Council, with the Office of the City Clerk, with a copy of the request
for administrative hearing mailed on the date of filing to the City Manager,
or the Authorized Inspector and the City Attorney. Thereafter, a hearing on
the matter shall be held before the Hearing Officer within forty -five (45)
business days of the date of filing of the written request unless, in the
reasonable discretion of the Hearing Officer and pursuant to a written
request by the appealing party, a continuance of the hearing is granted.
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8. Administrative Hearing for Cease and Desist Orders and Emergency
Abatement Actions. An administrative hearing on the issuance of a cease
and desist order or following an emergency abatement action shall be held
within five (5) business days following the issuance of the order or the
action of abatement, unless the hearing (or the time requirement for the
hearing) is waived in writing by the party subject to the cease and desist
order or the emergency abatement. A request for an administrative
hearing shall not be required from the person subject to the cease and
desist order or the emergency abatement action.
9. Hearing Proceedings. The Authorized Inspector shall appear in support of
the notice, order, determination, invoice for costs or emergency abatement
action, and the appealing party shall appear in support of withdrawal of the
notice, order, determination, invoice for costs, or in opposition to the
emergency abatement action.
10. Final Decision and Appeal. The final decision of the Hearing Officer shall
issue within ten business days of the conclusion of the hearing and shall
be delivered by first -class mail, postage prepaid, to the appealing party.
The final decision shall include notice that any legal challenge to the final
decision shall be made pursuant to the provisions of Code of Civil
Procedure Sections 1094.5 and 1094.6 and shall be commenced within
ninety (90) days following issuance of the final decision. If the appellant is
the prevailing party, the administrative hearing fee paid by Appellant shall
be refunded. Notwithstanding the foregoing, the final decision of the
Hearing Officer in any proceeding determining the validity of a cease and
desist order or following an emergency abatement action shall be mailed
within five business days following the conclusion of the hearing.
11. City Abatement. In the event the owner of property, the operator of a
facility, a permittee or any other person fails to comply with any provision
of a compliance schedule issued to such owner, operator, permittee or
person pursuant to this chapter, the Authorized Inspector may request the
Enforcing Attorney to obtain an abatement warrant or other appropriate
judicial authorization to enter the property, abate the condition and restore
the area. Any costs incurred by the City in obtaining and carrying out an
abatement warrant or other judicial authorization may be recovered
pursuant to this Section.
B. Nuisance. Any condition in violation of the prohibitions of this chapter, including
but not limited to the maintenance or use of any illicit connection or the
occurrence of any prohibited discharge, shall constitute a threat to the public
health, safety and welfare, and is declared and deemed a nuisance and may be
abated pursuant to Chapter 10.50 of this code.
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1. Emergency Abatement. In the event the nuisance constitutes an imminent
danger to public safety or the environment, the City Manager may enter
the property from which the nuisance emanates, abate the nuisance and
restore any property affected by the nuisance. To the extent reasonably
practicable, informal notice shall be provided to the owner or occupant
prior to abatement. If necessary to protect the public safety or the
environment, abatement may proceed without prior notice to or consent
from the owner or occupant thereof and without judicial warrant.
a. An imminent danger shall include, but is not limited to, exigent
circumstances created by the dispersal of pollutants, where the
same presents a significant and immediate threat to the public
safety or the environment.
b. Notwithstanding the authority of the City to conduct an emergency
abatement action, an administrative hearing pursuant to this section
hereinabove shall follow the abatement action.
2. Reimbursement of Costs. All costs incurred by the City in responding to
any nuisance, all administrative expenses and all other expenses
recoverable under State law, shall be recoverable from the person(s)
creating, causing, committing, permitting or maintaining the nuisance,
including costs relating to restoration of the environment.
3. Nuisance Lien. All costs shall become a lien against the property from
which the nuisance emanated and a personal obligation against the owner
thereof who shall be given notice of the lien as provided in Chapter 10.50
of this code.
a. At the direction of the City Manager or the Authorized Inspector, the
Enforcing Attorney is authorized to collect nuisance abatement
costs or enforce a nuisance lien in an action brought for a money
judgment or by delivery to the County Assessor of a special
assessment against the property in accord with the conditions and
requirements of Government Code 38773.5.
C. Consecutive Violations. Each day in which a violation occurs and each separate
failure to comply with either a separate provision of this chapter, an
administrative compliance order, a cease and desist order or a permit issued
pursuant to this chapter, shall constitute a separate violation of this chapter
punishable by fines or sentences issued in accordance with Chapter 1.04 of this
Code.
D. Nonexclusive Remedies. Each and every remedy available for the enforcement
of this chapter shall be nonexclusive and it is within the discretion of the
Authorized Inspector or Enforcing Attorney to seek cumulative remedies, except
that multiple monetary fines or penalties shall not be available for any single
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violation of this chapter.
E. Citations. Pursuant to Penal Code Section 836.5, the Authorized Inspector shall
have the authority to cause the arrest of any person committing a violation of this
chapter. The person shall be released and issued a citation to appear before a
magistrate in accordance with Penal Code Sections 853.5, 853.6 and 853.9,
unless the person demands to be taken before a magistrate. Following issuance
of any citation, the Authorized Inspector shall refer the matter to the Enforcing
Attorney.
Each citation to appear shall state the name and address of the violator, the
provisions of this chapter violated, and the time and place of appearance before
the court, which shall be at least ten business days after the date of violation.
The person cited shall sign the citation giving his or her written promise to appear
as stated therein. If the person cited fails to appear, the Enforcing Attorney may
request issuance of a warrant for the arrest of the person cited.
F. Violations of Other Laws. Any person acting in violation of this chapter also may
be acting in violation of the Federal Clean Water Act or the State Porter - Cologne
Act and other laws and also may be subject to sanctions including civil liability.
Accordingly, the Enforcing Attorney is authorized to file a citizen suit pursuant to
Federal Clean Water Act Section 505(a), seeking penalties, damages and orders
compelling compliance, and other appropriate relief. The Enforcing Attorney may
notify EPA Region IX, the Santa Ana or San Diego Regional Water Quality
Control Boards, or any other appropriate state or local agency, of any alleged
violation of this chapter.
G. Injunctions. At the request of the City Manager, the Enforcing Attorney may
cause the filing in a court of competent jurisdiction, of a civil action seeking an
injunction against any threatened or continuing noncompliance with the
provisions of this chapter. Any temporary, preliminary or permanent injunction
issued pursuant hereto may include an order for reimbursement to the City of all
costs incurred in enforcing this chapter, including costs of inspection,
investigation and monitoring, the costs of abatement undertaken at the expense
of the City, costs relating to restoration of the environment and all other expenses
as authorized by law.
SECTION 2: If any section, subsection, sentence, clause or phrase of this ordinance is,
for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this ordinance. The City Council
hereby declares that it would have passed this ordinance, and each section, subsection,
clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this
ordinance. The City Clerk shall cause the same to be published once in the official
newspaper of the City, and it shall be effective thirty (30) days after its adoption.
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.DE ro I
SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach, held on the 26`h day of April 2005 and adopted on the 10`h day of
May, 2005, by the following vote, to wit:
AYES, COUNCILMEMBERS Heffernan,
Rosansky, Webb, Ridgeway, Daigle, Nichols, Mayor Bromberg
NOES, COUNCILMEMBERS
None
ABSENT COUNCILMEMBERS None
CITY CLERK
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LEILANI I. BROWN, Deputy City Clerk of the City of Newport Beach, California,
do hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 2005 -6 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 10th
day of May 2005, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Heffernan, Rosansky, Webb, Ridgeway, Daigle, Nichols, Mayor Bromberg
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 11th day of May 2005
A Deputy City Clerk
City of Newport Beach, California
G
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(Seal) �pFOaN�'
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2005 -6 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: May 14, 2005.
In witness whereof, I have hereunto subscribed my name this y�.� day of
2005. /A / • Xa2"
City Clerk
City of Newport Beach, California