HomeMy WebLinkAboutRES NO 152-99RESOLUTION NO. ] 5 2 ' 9 9
A RESOLUTION UPHOLDING THE DECISION OF THE
HEARING OFFICER AND DENYING AN APPEAL BY
ROBERT DARNALL RELATED TO THE REMOVAL OF A
PUBLIC NUISANCE LOCATED AT 12700 OVERTON
STREET.
WHEREAS, on September 21, 1999, a hearing was conducted before the assistant
building director to consider the existence of a public nuisance consisting of the unlawful
use of a metal storage container on single-family residential property located at 12700
Overton Street; and
WHEREAS, on September 21, 1999, after receiving all the evidence presented, the
hearing officer found that in fact a metal storage container was placed on the single-family
residential property located at 12700 Overton Street and the hearing officer did find that
such use of the property constituted a public nuisance in violation of Bakersfield Municipal
Code section 17.57.020; and
WHEREAS, Robert Darnall (Appellant) has filed an appeal to the hearing officer's
decision ordering that the storage container be removed;
WHEREAS, the appeal was filed in accordance with ordinance requirements; and
WHEREAS, the City Council through the City Clerk did set WEDNESDAY, October
20, 1999, at the hour of 7:00 p.m. in the Council Chambers of City Hall, 1501 Truxtun
Avenue, Bakersfield, California, as the time and place for a public hearing before said City
Council on said appeal; and
WHEREAS, City Council did hear all evidence presented at the aforementioned
hearing.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of
Bakersfield:
The Council hereby finds that a metal storage container was in fact placed
upon single-family residential property located at 12700 Overton Street.
The placement of the metal storage container on the single-family residential
property violates Bakersfield Municipal Code section 17.57.020 and,
therefore, constitutes a public nuisance in that placement of these types of
storage containers in single-family residential neighborhoods negatively
impacts the aesthetics of the neighborhood.
The appellant shall forthwith remove the metal storage container from the
residential property located at 12700 Overton Street within five (5) working
days from the date of this decision, thereafter, the City shall have jurisdiction
to abate the public nuisance in a manner provided by law.
.......... o0o ..........
I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the
Council of the City of Bakersfield at a regular meeting thereof held on OCT ~ 0 l~.Cl.~ ,
by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
COUNCILMEMBER CARSON, DEMOND, MAGGARD, COUCH, ROWLES, SULLIVAN, SALVAGGIO
COUNCILMEMBER ~,10
COUNClLMEMBER ~
COUNClLMEMBER ~'J (3 ~
.~ClTY CLERK and Ex Officio Clerk of the
Council of the City of Bakersfield
APPROVED
OCT 20 1999
BOB I=i~ICE
MAYOR of the City of Bakersfield
APPROVED as to form:
BART J. THILTGEN
CITY ATTORNEY
BY. ~ ~" ~'-
CARL'~;IERNANDEZ III
Assistant City Attorney
October 21, 1999
r/damall
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ROBERT DARN
12700 Overlon
Bakersfield. CA 93312
(661) 587-8027
.In Propr~a Persona
OCT 1
99SEP30 1:5-/
~""~'~:' EL 0 CIT'( CLERK
CITY COI;NCIL FOR THE CITY OF BAKERSFIELD
CITY OF BAKERSFIELD,
Plaintiff.
VS.
ROBERT DARNALL.
Defendant.
NOTICE OF APPEAL OF
THE SEPTEMBER 21, 1999
RULING OF THE BU'ILDING
DEPARTMENT OF THE CITY
OF BAKERSFIELD, P[rRPORT-
EDLY MADE PURSUANT TO
MUNICIPAL CODE 17.57 AND
NOTICE OF CONSTITI_YrIONAL
CItALLENGES TO MUNICIPAL
CODE 17.57
PLEASE TAKE NOTICE thai as a matter of right, ROBERT
DARNALL appeals the ruling given on September 21, 1999. by the Building
Depa~nent of the Ci~ of Bakersfield, in the matter of the placement of an 8' x
40' metal slxucture in the side yard of his residence, zoned R-I and located at
12700 Overlon in the City of Bakersfield, in the county of Kern, state of
Califoruia. Said ruling was purportedly issued pursuant to Municipal Code 17.57.
The bases for this appeal include, but are not limited to the following:
1. Municipal Ordinance 17.57 is unconstitutional on the basis that it is
overly broad, vague and ambiguous in that it fails to define "nuisance."
2 Municipal Ordinance 17.57 is unconstitutional as it is being applied to
ROBERT DARNALL, in that it purports to regulate the private and quiet
possession oflawfidly owned property in a maaner resulting in the de
)rivatiou of
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such properS,, all absent probable cause or a warrant in conlravention of the
Fourth and Fourteenth Amendments to lhe Constitution of the United States and
the Constitution and laws of the State of'California.
3. Municipal Ordinance 17.57 is unconstitutional as it is being applied to
ROBERT DARNAI ,L. in lhat its application and enforcement is selective, thereby
violating ROBERT DAILNALL's rights lo due process, equal privileges and
immunities and equal protection, as protected by' the Filth, Ninth and Fourteenth
Amendments to the Constitution of the United States and in contravention of the
Constitution and laws of the State of California.
4. The decision of the Building Department was unconstitutional in that,
under color of law (Municipal Ordinance 17.57), the Board determined that a
container owned by ROBERT DARNALL was a "nuisance" for the unlawfi~l
purpose of harassing ROBERT DARNALL in order to force him lo vacate the
properly because his wife and children are African American, thereby violating 42
U.S.C. § 1981, 1983 and 1988, and the rights of ROBERT DARNALL and his
wife Sherrice, his daughter Brenda, and his son Robert. prolected by the First,
Ninth and Fourteenth .Amendments to the Constitution of the United States and by
the Constitution and laws of the State of California, including the rights of
contract, association, privacy, to equal privileges and immunities and to the fi~ll
and equal protection of the law.
5. The decision of lhe Building Department v, as fundamentally flawed
because the Building Department failed to Ibllow its own policies and procedures
by allowiug a private citizen, attorney Daniel C Smm~, to use the board's processes
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for private purposes, by relying upon his personal associalion with members of
the Building Deparlment Board to initiate a :'complaint" in a case in which Smart
had already unsuccessfully attempted to evict ROBERT DARNALL from the
property.' for the pecuniaD, or other benefit of Smart and;or Smart's client(s).
Smart'g alleged complaint (that ROBERT DAI~NALL had a container on his
property' that v~as a "nuisance") was made to top members of the Building
Dep,arlment rather than Io an inspector. This unprecedented method of initiating
the complaint should have resulted in Smart being told to take his complaint to an
inspector. Instead, it resulted in immediate enforcement proceedings aa~d in
subsequent deviations from the nomaal period of 30 or more days to correct any
alleged deficiencies, all of which violated ROBERT DARNALL's rights to due
process, equal privileges and immunities and equal protection, all as protected by'
the Fifth. Ninth and Fourteenth Amendments to the Constitution of the United
States and by the Constitution and laws of the State of California.
6. The Building Department accepted hearsay, conclusory and other
inadmissible evidence in reaching ils decision, all contra~ to law and to
ROBERT DARNALL's rights to due process, equal privileges and immunities,
and equal treatment under the law, as protected by the Fifth, Ninth and Fourteenth
~endments to the Constitution of the United States and by the Constitution and
lav, s of the State of California.
7. The decision of the Building Department is not supported by the
evidence.
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8. ROBERT DARNALL reserves the right to set lbrth an5, other bases
his appeal as ma.,,' be determined prior 1o the hearing in this matter.
This appeal is to be heard by the Bakersfield Ci~, Council at a time and
date to be set and duly noticed by that body.
ROBERT DARN ALi /
[n Propria Persona
CERTIFICATE AND PROOF OF SERVICE
STATE OF CALIFOILNI,~ COLa~TY OF KERN
I am employed in the County of Kerrk Stale ofCalilbrma. I am over lhe
age of 18 and I am the Defendant of record to the within action; my address is
12700 Overton, Bakersfield, CA 93312. My telephone number is (661) 587-
8027.
On September 30, 1999, I served the following document described as:
NOTICE OF APPEAI, OF THE SEPTEMBER 21, 1999 RULING OF
THE BUILDING DEPARTMENT OF 'rite CITY OF BAKERSFIELD,
PURPORTEDLY MADE PURSUANT TO ML,rNICIPAL CODE 17.57
AND NOTICE OF CONS 11112TIONAL CHALLENGES TO MUNICIPAL
CODE 17.57
on the pm'lies entitled thereto in this action by hand delivery, to:
CiLy Clerk of the C 15.' of Bakersfield
1501 Tmxlun Avenue
Bakersfield, CA 93301
BERT D~ RNALL
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FIRST NOTICE OF ALLEGED
MUNICIPAL CODE VIOLATION
CITY OF BAKERSFIELD
Building Department
Code Enforcement Section
1715 Chester Avenue
Bakersfield, CA 93301
(805) 326-3727
Date:
%331L
Property Address: t~L~ OO OOOLTOI-3 ~
It has been brought to our attention that your property is potentially in violation of one or more
Bakersfield Municipal Code Ordinances. Specifically, we have been informed that the following
condition exists: ,~'~'K40 h3~-'l'~- '5-T6cct~E ~g'~'~ehrt. t°6~c.~ i.~JTr~
If the allegation is true, your property may be in violation of Bakersfield Municipal Code section(s)
f'P . tqo q
Please contact the undersigned officer within seven (7) days of the date of this notice to discuss
informal resolution of this matter.
Please be aware that violations of the City's Municipal Code cannot be taken lightly. Should the City
be required to inspect your property and should the alleged violation of the Municipal Code be
substantiated, the costs of the inspection and any other costs necessary to remove the violation will
be made a personal obligation of the property owner and/or will be assessed against the land and can
be foreclosed on or made a tax lien to be collected on the tax roll upon which property taxes are
collected.
We trust you will respond promptly to this important matter.
Sincerely,
Code Enforcement Officer
SECOND NOTICE TO ABATE
PUBLIC NUISANCE
AND ORDER TO SHOW CAUSE
CITY OF BAKERSFII~LD
Building Depaxtment
1715 Chester Avenue
Bakersfield, CA 93301
Robert Damall
12700 Overton Street
Bakersfield, CA 93312
Re: 12700 Overton Street
On September 2, 1999, you were notified to contact our office to discuss informal resolution of an
illegal condition existing on your property.
NOTICE IS HEREBY GIVEN, pursuant to Bakersfield Municipal Code Chapter 8.80, that the
condition of your property constitutes a public nuisance, in violation of Bakersfield Municipal Code
section(s) 17.57 namely: an 8xSx40 metal storage container placed into side yard of residence
in an R-1 zone.
YOU ARE HEREBY NOTIFIED that you may remove or repair the condition before the date of
heating stated below. Otherwise, the City of Bakersfield may obtain permission to remove the illegal
condition. Il'the illegal condition has not been resolved within the time specified above, you will be
charged a $145.00 adminishative fee to cover the cost of reinspection. This fee, and any other costs
necessary to remove the violation will be charged to you personally and/or will be assessed a~,alnst
the land and can be foreclosed on or made a tax assessment which will be placed on the tax rolls to
be collected.
YOU ARE FURTI:I~,R NOTIFIED to appear before the Building Director for the City of
Bakersfield on September 21, 1999, at the hour of 10:00 a.m., at 1715 Chester Avenue.
Bakersfield, California to show cause, if any you have, why said nuisance should not be found to exist
and the same ordered abated.
YOU ARE FURTHER NOTIFIED that at the above-stated hearing you may call witnesses to
testifa~ on your behalf, present documentary evidence, cross-examine witnesses, and other,vise show
why said nuisance should not be ordered abated. You may be represented by legal counsel at your
own expense.
SHOULD YOU FAIL TO APPEAR AT SUCH HEARING it shall be deemed a waiver of your right
to a hearing. Please contact Term' Buss, Code Enforcement Officer, at (661) 326-3771 to discuss
any questions you have regarding this matter.
Dated: September 10, 1999
Dennis C. Fidler, Building Director
NOTICE AND ORDER FOR ABATEMENT
OF CONDITION CONSTITUTING
A PUBLIC NUISANCE
CITY OF BAKERSFIELD
Building Department
1715 Chester Avenue
Bakersfield, CA 93301
(661) 326-3674
Robert Damall
12700 Overton Street
Bakersfield, CA 93312
NOTICE IS HEREBY GIVEN that at, er a duly-noticed hearing on September 21, 1999, at 10:00
a.m., 1715 Chester Avenue, Bakersfield, California before Jack Leonard, Assistant Buildin~ Director
it is found, after consideration of all the evidence presented, that a condition constituting a public
nuisance does ex/st at 12700 Overton Street (APN 496-351-04) and there is the necessity for timely
abatement of this nuisance, to wit: an 8x8x40 metal storage container placed into side yard of
residence in an R- 1 zone.
AND, IT IS HEREBY ORDERED, the City of Bakersfield proceed with the abatement of the
nuisance pursuant to the provisions of Chapter 8.80 of the Bakersfield Municipal Code and all other
applicable provisions thereof.
NOTICE IS FURTI:IER GIVEN you may appeal this decision to the City Council by filing with the
City Clerk, at 1501 Truxtun Avenue, Bakersfield, California 93301, a written request to appeal within
ten (10) days from the date of this notice. Said request for appeal must be actually received in the
office of the City Clerk by 5:00 p.m. on the tenth day from the date of this notice. The cost of appeai
must be paid upon filing the request for appeal.
Dated: September 21, 1999
Assistant Building Director