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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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 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 -2- 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 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. -3- 6 7 8 9 l0 ll 12 13 14 15 16 17 18 19 20 2t 22 23 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 -4- 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