Chapter 18.210
STORM WATER MANAGEMENT AND DISCHARGE CONTROL

Sections:

Article I. Title, Purpose and General Provisions

18.210.010    Title.

18.210.020    Purpose and intent.

18.210.030    Definitions.

18.210.040    Responsibility for administration.

18.210.050    Taking.

Article II. Discharge Regulations and Requirements

18.210.060    Discharge of pollutants.

18.210.070    Exceptions to discharge prohibition.

18.210.080    Discharge in violation of permit – Liability for violation.

18.210.090    Illicit discharge and illicit connections.

18.210.100    Reduction of pollutants in storm water.

18.210.110    Development design requirements.

18.210.120    Watercourse protection.

Article III. Inspection and Enforcement

18.210.130    Authority to inspect.

18.210.140    Authority to sample and establish sampling devices.

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

18.210.160    Authorization to test or monitor.

18.210.170    Violations constituting misdemeanors – Alternative charge as infraction.

18.210.180    Penalty for violation.

18.210.190    Continuing violation.

18.210.200    Concealment.

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

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

18.210.230    Notice to abate violation.

18.210.240    Summary abatement – Imminent danger.

18.210.250    Abatement by city.

18.210.260    Appeal procedure – Administrative hearing.

18.210.270    Service of notice of hearing.

18.210.280    Waiver of hearing.

18.210.290    Administrative hearing by hearing officer.

18.210.300    Voluntary abatement – Avoidance of costs.

18.210.310    Judicial review.

18.210.320    Abatement by authorized enforcement officer upon failure of owner to abate.

18.210.330    Notice and hearing of cost report.

18.210.340    Hearing on cost report – Finality of decision.

18.210.350    Assessment of cost of abatement – Lien.

18.210.360    Notice of lien – Manner of collection.

18.210.370    Special circumstances.

18.210.380    Costs and attorneys’ fees recovery.

18.210.390    Civil actions.

18.210.400    Administrative enforcement powers.

18.210.410    Costs and attorneys’ fees a debt.

18.210.420    Authority to arrest or issue citations.

18.210.430    Remedies not exclusive.

18.210.440    Disclaimer of liability.

Article IV. Coordination with Other Programs

18.210.450    Coordination with hazardous materials inventory and response program.

18.210.460    Severability and validity.

18.210.470    Construction and application.

Article I. Title, Purpose and General Provisions

18.210.010 Title.

This chapter shall be known as the “city of Fremont storm water management and discharge control ordinance” and may be so cited. (Ord. 2012, 6-16-92. 1990 Code § 8-11100.)

18.210.020 Purpose and intent.

The purpose of this chapter is to ensure the future health, safety, and general welfare of city of Fremont citizens by:

(a)    Reducing to the maximum extent practicable non-storm water discharges to the city storm drain system.

(b)    Controlling the discharge to the city storm drain system from spills, dumping or disposal of materials other than storm water.

(c)    Reducing pollutants in storm water discharges to the maximum extent practicable.

The intent of this chapter is to protect and enhance the water quality of our watercourses, water bodies, and wetlands in a manner pursuant to and consistent with the federal Clean Water Act (33 U.S.C. Sections 1251 et seq.). (Ord. 2012, 6-16-92. 1990 Code § 8-11101.)

18.210.030 Definitions.

(a)    Any terms defined in the federal Clean Water Act and acts amendatory thereof or supplementary thereto, and/or defined in the regulations for the storm water discharge permitting program issued by the Environmental Protection Agency on November 16, 1990, (as may from time to time be amended) as used in this chapter shall have the same meaning as in that statute or regulations. Specifically, the definition of the following terms included in that statute or regulations are hereby incorporated by reference, as now applicable or as may hereafter be amended: discharge, illicit discharge, pollutant, and storm water. These terms presently are defined as follows:

(1)    “Discharge” means: (A) any addition of any pollutant to navigable waters from any point source; or (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

(2)    “Illicit discharge” means any discharge to the city storm drain system that is not composed entirely of storm water except discharges pursuant to a NPDES permit and discharges resulting from fire fighting activities.

(3)    “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.

(4)    “Storm water” means storm water runoff, snow melt runoff, and surface runoff and drainage.

(b)    When used in this chapter, the following words shall have the meanings ascribed to them in this section:

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

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

(3)    “Authorized enforcement officer” shall mean the city manager or his/her designee.

(4)    “Best management practices (BMPs)” shall mean schedules of activities, prohibitions of practices, general good housekeeping practices, pollution prevention practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to “waters of the United States.” BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(5)    “City storm drain system” includes but is not limited to those facilities within the city by which storm water may be conveyed to waters of the United States, including any roads with drainage systems, city streets, catch basins, curbs, gutters, ditches, manmade channels or storm drains, which is not part of a publicly owned treatment works (POTW) as defined at 40 CFR Section 122.2.

(6)    “Non-storm water discharge” shall mean any discharge that is not entirely composed of storm water.

(7)    “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. (Ord. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11102.)

18.210.040 Responsibility for administration.

This chapter shall be administered for the city by the city manager or designee. Where storm drain facilities and/or watercourses have been accepted for maintenance by the Alameda County flood control and water conservation district (ACFCWCD) or other public agency legally responsible for certain watercourses, then the responsibility for enforcing the provisions of this chapter lies with such agency with respect to those watercourses for which they have accepted maintenance. (Ord. 2012, 6-16-92; Ord. 02-2020 § 44, 1-14-20. 1990 Code § 8-11103.)

18.210.050 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. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11104.)

Article II. Discharge Regulations and Requirements

18.210.060 Discharge of pollutants.

The discharge of non-storm water discharges to the city storm sewer system is prohibited. All discharges of material other than storm water must be in compliance with NPDES Permit No. CA0029831, issued by the California Regional Water Quality Control Board, San Francisco Bay Region, Order No. 91-146, on October 16, 1991, and any subsequent permit issued for the discharge on file with the city clerk of the city of Fremont. (Ord. 2012, 6-16-92. 1990 Code § 8-11200.)

18.210.070 Exceptions to discharge prohibition.

The following discharges are exempt from the prohibition set forth in Section 18.210.060:

(a)    Any discharge regulated under a National Pollutant Discharge Elimination System (NPDES) permit issued to the discharger and administered by the state of California under authority of the United States Environmental Protection Agency is permissible; provided, that the discharger is in full compliance with all requirements of the permit and other applicable laws or regulations.

(b)    Discharges from the following activities are permissible when properly managed: water line flushing and other discharges from potable water sources; landscape irrigation and lawn watering; irrigation water; diverted stream flows; rising ground waters; ground water infiltration into separate storm drains; uncontaminated pumped ground water; foundation and footing drains; water from crawl space pumps; air conditioning condensation; springs; individual residential car washings; flows from riparian habitats and wetlands; dechlorinated swimming pool discharges; and flows from fire fighting. (Ord. 2012, 6-16-92. 1990 Code § 8-11201.)

18.210.080 Discharge in violation of permit – Liability for violation.

Any discharge that would result in or contribute to a violation of NPDES Permit No. CA0029831 (on file with the city clerk of the city of Fremont and more particularly referenced in Section 18.210.060) and any amendment, revision or reissuance thereof, 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. (Ord. 2012, 6-16-92. 1990 Code § 8-11203.)

18.210.090 Illicit discharge and illicit connections.

It is prohibited to establish, use, maintain, or continue illicit drainage connections to the city storm drain system, and to commence or continue any illicit discharges to the city storm drain system. 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. 2012, 6-16-92. 1990 Code § 8-11204.)

18.210.100 Reduction of pollutants in storm water.

Any person engaged in activities which may result in pollutants entering the city storm drain system shall undertake all practicable measures to reduce such pollutants. Examples of such activities include ownership and use of facilities which may be a source of pollutants such as parking lots, gasoline stations, industrial facilities, commercial facilities, stores fronting city streets, etc. The following minimal requirements shall apply:

(a)    Littering. No person shall throw, deposit, leave, maintain, keep, or permit to be thrown, deposited, placed, left or maintained, any refuse, rubbish, garbage, 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. Notwithstanding any other provision of this section, the city manager or designee may authorize the disposal of organic or nonorganic waste as permitted by general law.

(b)    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.

(c)    Notification of Intent and Compliance with General Permits. Each industrial discharger, discharger associated with construction activity, or other discharger, described in any general storm water 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 storm water permit applicable to such discharges. Each discharger identified in an individual NPDES permit relating to storm water discharges shall comply with and undertake all activities required by such permit.

(d)    Compliance with Best Management Practices. Where best management practices guidelines or requirements have been adopted by any federal, state of California, regional, and/or the city of Fremont, for any activity, operation, or facility which may cause or contribute to storm water pollution or contamination, illicit discharges, and/or discharge of non-storm water to the storm water 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 or designee. (Ord. 2012, 6-16-92; Ord. 31-2005 § 2, 10-4-05; Ord. 02-2020 § 45, 1-14-20. 1990 Code § 8-11205.)

18.210.110 Development design requirements.

New and in-fill redevelopment projects shall incorporate storm water treatment measures and site design techniques to minimize storm water runoff pollution. New and in-fill redevelopment projects shall conform to the following:

(a)    Best Management Practices (BMPs) for New Developments and In-Fill Redevelopment Projects. Any construction contractor performing work in the city shall implement erosion control measures on site to retain all debris, dirt and pollutants, and prevent said pollutants from flowing into the city’s storm drain system. The city manager or designee may adopt regulations establishing controls on the volume and rate of storm water runoff from new developments and in-fill redevelopment projects as appropriate to minimize the discharge and transport of pollutants.

(b)    Impervious Areas. Parking lots and other impervious areas shall be designed to drain storm water runoff to vegetated draining swales, filter strips, landscaping or other approved treatment devices prior to the discharge into the storm drain systems.

(c)    Operation and Maintenance Agreements. All projects incorporating post-construction storm water treatment controls (e.g., vegetated swales, filter strips, detention ponds, etc.) shall develop, execute and record an operation and maintenance plan for each type of control measure or device that outlines specific maintenance activities, including vector control, required for optimal performance of said post-construction storm water treatment control. The operation and maintenance agreement shall run with the land, and shall be recorded in the office of the Alameda County clerk-recorder.

(d)    Pedestrian Networks. The use of alternative materials for on-site walkways such as pervious concrete, decomposed granite, etc., rather than conventional walkways shall be encouraged for pedestrian networks.

(e)    Rooftop Runoff. Runoff areas shall drain through disconnected roof leaders and/or front yard bubblers that discharge to landscaped, vegetated or other runoff treatment areas and are properly located to prevent erosion of landscaped materials.

(f)    Surfacing. Off-street parking, loading and driveway areas: (1) shall be paved with asphalt, Portland cement, or permeable material, and (2) except for single-family and two-family developments on individual lots, shall be bounded by concrete curb six inches in height. The area shall be graded and drained to dispose of all surface water accumulated within the area. Guidance regarding to where surface water shall drain may be found in the city of Fremont urban runoff standard conditions of approval. Directly connected impervious surfaces shall be minimized.

(g)    Hydrograph Modification Management Plan (HMP). Post-construction flow shall not exceed predevelopment discharge, as required by the NPDES permit and to the extent practicable.

(h)    Stenciling. All storm drain inlets shall be stenciled “No Dumping – Drains to Bay” using thermoplastic stencils purchased from the city of Fremont maintenance division. Alternative inlet stencils or marking may be permitted, subject to city engineer approval during plan check review. (Ord. 31-2005 § 3, 10-4-05. 1990 Code § 8-11206.)

18.210.120 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 within 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 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;

(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

(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 storm waters passing through such watercourse.

The city manager or designee may adopt regulations to clarify and implement the requirements of this section. (Ord. 2012, 6-16-92; Ord. 31-2005 § 4, 10-4-05; Ord. 02-2020 § 46, 1-14-2020. 1990 Code § 8-11207.)

Article III. Inspection and Enforcement

18.210.130 Authority to inspect.

(a)    Whenever necessary to make an inspection to enforce any of the provisions of this chapter, or whenever any authorized enforcement officer 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 officer 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.

(b)    Consent – Search Warrant. Any request for entry by the authorized enforcement officer shall include a statement that the property owner or occupant has the right to refuse entry and that in the event such entry is refused, inspection may be made only upon issuance of a search warrant by a duly authorized magistrate except as permitted for emergency or open space inspections. In the event the owner and/or occupant refuses entry after such request has been made, the authorized enforcement official is hereby empowered to seek assistance from any court of competent jurisdiction in obtaining such entry.

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

(d)    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 officer 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.

(e)    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 storm water contamination, illicit discharges, discharge of non-storm water to the storm water system, or similar factors. (Ord. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11301.)

18.210.140 Authority to sample and establish sampling devices.

(a)    With the consent of the owner or occupant or pursuant to a search warrant, any authorized enforcement officer 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 officer without the consent of the owner or occupant and without a search warrant. (Ord. 2012, 6-16-92. 1990 Code § 8-11302.)

18.210.150 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 non-storm water 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. 2012, 6-16-92. 1990 Code § 8-11303.)

18.210.160 Authorization to test or monitor.

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

(b)    Any authorized enforcement officer may order any person engaged in any activity and/or owning or operating any facility which may cause or contribute to storm water pollution or contamination, illicit discharges, and/or discharge of non-storm water to the storm water system, 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 officer 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. 2012, 6-16-92. 1990 Code § 8-11304.)

18.210.170 Violations constituting 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 officer, be charged and prosecuted as an infraction. (Ord. 2012, 6-16-92. 1990 Code § 8-11305.)

18.210.180 Penalty for violation.

(a)    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.

(b)    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. 2012, 6-16-92. 1990 Code § 8-11306.)

18.210.190 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. 2012, 6-16-92. 1990 Code § 8-11307.)

18.210.200 Concealment.

Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall constitute a violation of such provision. (Ord. 2012, 6-16-92. 1990 Code § 8-11308.)

18.210.210 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. 2012, 6-16-92. 1990 Code § 8-11309.)

18.210.220 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 officer, 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 officer using the administrative notice and hearing procedures and remedies provided in this chapter. (Ord. 2012, 6-16-92. 1990 Code § 8-11310.)

18.210.230 Notice to abate violation.

Whenever the authorized enforcement officer determines there exists in the city a nuisance in violation of this chapter, he/she may:

(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 when a shorter notice may be prescribed by the authorized enforcement officer.

(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)    The notice shall advise the property owner that failure to correct the nuisance will result in the city’s abating the nuisance and collecting the charges by billing or by lien on the property.

(g)    The notice shall advise the property owner and operator that only one notice every two years will be provided for recurring nuisances.

(h)    The notice shall advise the owner and operator of the right to appeal the existence of the alleged nuisance pursuant to Section 18.210.260 within seven calendar days if the owner seeks to challenge the existence of the nuisance.

(i)    The notice shall advise the owner and operator he/she must either correct the nuisance or request a hearing in order to avoid city abatement and liability for costs of abatement.

(j)    The authorized enforcement officer may, as necessary, cause at least one copy of the notice bearing title letters at least one inch high reading “NOTICE TO ABATE NUISANCE” to be conspicuously posted on the property for 30 calendar days beginning the date written notice is given to the owner.

(k)    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. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11311.)

18.210.240 Summary abatement – Imminent danger.

(a)    Any nuisance which the authorized enforcement officer 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 officer to be necessary.

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

(d)    Whenever the authorized enforcement officer determines that summary abatement is justified by an imminently dangerous condition, circumstance, or occurrence, the authorized enforcement officer 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 officer 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 18.210.330 and 18.210.340 within seven calendar days after service of the cost report. (Ord. 2012, 6-16-92. 1990 Code § 8-11312.)

18.210.250 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 officer shall abate the nuisance.

(b)    Abatement shall be pursued by city personnel or private contractor retained by the city. The authorized enforcement officer 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 18.210.380. (Ord. 2012, 6-16-92. 1990 Code § 8-11313.)

18.210.260 Appeal procedure – Administrative hearing.

The property owner may appeal the nuisance determination of the authorized enforcement officer 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. 2012, 6-16-92. 1990 Code § 8-11314.)

18.210.270 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 officer, 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. 2012, 6-16-92. 1990 Code § 8-11315.)

18.210.280 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 officer or his/her designee. (Ord. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11316.)

18.210.290 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 officer 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 city manager within five days after the close of hearing.

(e)    The city manager shall serve the written decision on the parties no later than five days after the decision is delivered by the hearing officer and shall be served in the same manner as the notice to abate nuisance as prescribed in Section 18.210.230.

(f)    The hearing officer 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. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11317.)

18.210.300 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 city manager of the written decision on the owner. The owner’s abatement action shall be in compliance with the orders of the hearing officer. (Ord. 2012, 6-16-92. 1990 Code § 8-11318.)

18.210.310 Judicial review.

Review of hearing officer decisions pursuant to this chapter shall be in accordance with CCP Section 1094.5. (Ord. 2012, 6-16-92. 1990 Code § 8-11319.)

18.210.320 Abatement by authorized enforcement officer 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 authorized enforcement officer shall forthwith abate or cause to be abated the nuisance upon the premises and the cost thereof shall be billed to the property owner. (Ord. 2012, 6-16-92. 1990 Code § 8-11320.)

18.210.330 Notice and hearing of cost report.

(a)    The authorized enforcement officer 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 officer shall cause notice of the cost report to be given in the manner specified in Section 18.210.230, which notice shall specify the time and place when and where a city hearing officer will hear and pass upon the cost report.

(c)    The property owner may appear and be heard concerning the cost of abatement and may examine the authorized enforcement officer and any person responsible for the abatement of the nuisance. (Ord. 2012, 6-16-92. 1990 Code § 8-11321.)

18.210.340 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 hear and pass upon the cost report in the manner provided in Section 18.210.290. The hearing officer shall receive objections and protests of the owner liable to be assessed for such abatement costs. 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 deliver the written confirmation of the cost report to the city manager within five days after the close of the hearing on the cost report.

(c)    The city manager shall serve the confirmed cost report on the property owner in the same manner as provided in Section 17.15.120 no later than five days after receiving the confirmed cost report. The city manager 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 of the authorized enforcement officer as justice may require.

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

(f)    The hearing officer shall prepare and preserve a full record of the proceeding, including an audio tape, for 120 days after the close of the hearing. (Ord. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11322.)

18.210.350 Assessment of cost of abatement – Lien.

The cost of abatement shall 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. 2012, 6-16-92. 1990 Code § 8-11323.)

18.210.360 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 finance director 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. 2012, 6-16-92. 1990 Code § 8-11324.)

18.210.370 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 officer 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 officer shall advise all property owners of the availability of this procedure at the time of giving notice of nuisance as provided in Section 17.15.120. (Ord. 2012, 6-16-92. 1990 Code § 8-11325.)

18.210.380 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. 2012, 6-16-92. 1990 Code § 8-11326.)

18.210.390 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.

(c)    Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation.

(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 storm water 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. 2012, 6-16-92. 1990 Code § 8-11327.)

18.210.400 Administrative enforcement powers.

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

(a)    Cease and Desist Orders. When an authorized enforcement officer 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 – Abatement Procedures. Whenever an authorized enforcement officer 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 non-storm water discharge to the city storm sewer system, he/she may give notice to remove such oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or other material, in the manner prescribed by Section 17.15.120. The recipient of such notice shall undertake the activities as described in the notice. (Ord. 2012, 6-16-92; amended during 2012 reformat. 1990 Code § 8-11328.)

18.210.410 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. 2012, 6-16-92. 1990 Code § 8-11329.)

18.210.420 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 or employees acting in the course and scope of employment pursuant to this chapter. (Ord. 2012, 6-16-92. 1990 Code § 8-11330.)

18.210.430 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. 2012, 6-16-92. 1990 Code § 8-11331.)

18.210.440 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. 2012, 6-16-92. 1990 Code § 8-11332.)

Article IV. Coordination with Other Programs

18.210.450 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 non-storm water discharges and illicit discharges, and the requirement to reduce storm water pollutants to the maximum extent practicable. (Ord. 2012, 6-16-92. 1990 Code § 8-11400.)

18.210.460 Severability and validity.

If any section, subsection, sentence, clause, phrase or portion of this chapter is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. The city council of this city hereby declares that it would have adopted this chapter and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, clauses, phrases or portion should be declared invalid or unconstitutional. (Ord. 2012, 6-16-92. 1990 Code § 8-11401.)

18.210.470 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 Permit No. CA0029831 (on file with the city clerk of the city of Fremont and more particularly referenced in Section 18.210.060) and any amendment, revision or reissuance thereof. (Ord. 2012, 6-16-92. 1990 Code § 8-11402.)