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HomeMy WebLinkAbout03/14/2005 B AKE RSFI EL D Zack Scrivner, Chair Sue Benham David Couch Staff: Alan Christensen MEETING NOTICE LEGISLATIVE AND LITIGATION COMMITTEE of the City Council - City of Bakersfield Monday, March 14, 2005 1:00 p.m. City Manager's Conference Room Second Floor - City Hall, Suite 201 1501 Truxtun Avenue, Bakersfield, CA AGENDA 1. ROLL CALL 2. ADOPT FEBRUARY 16, 2005 AGENDA SUMMARY REPORT 3. PUBLIC STATEMENTS 4. NEW BUSINESS A. Report and Committee recommendation regarding Penalties for Littering, Graffiti and Illegal Dumping - Gennaro · B. Review and Committee recommendation 'on Combining the Historic Preservation Commission with Another Existing Committee - Christensen 5. COMMITTEE COMMENTS 6. ADJOURNMENT S:~C\05 Legislative&Litigation\05mar14agenda.doc DRAFT B A K E R S F I E L D ~7 ~~__.__ Zack Scrivner, Chair Staff: Alan Christensen Sue Benham For: Alan Tandy, City Manager David Couch AGENDA SUMMARY REPORT SPECIAL MEETING LEGISLATIVE AND LITIGATION COMMITTEE Wednesday, February 16, 2005 1:00 p.m. City Manager'S Conference Room, Suite 201 Second Floor - City Hall, 1501 Truxtun Avenue, Bakersfield, CA 1. ROLL CALL Called to Order at 1:00 p.m. Present: Councilmembers Zack Scrivner, Chair; and Sue Benham Councilmember David Couch arrived at 1:25 p.m. 2. ADOPTION OF OCTOBER 18, 2004 AGENDA SUMMARY REPORT Adopted as submitted. (Councilmember Couch absent) 3. PUBLIC STATEMENTS 4. NEW BUSINESS A. Discussion and Committee recommendation regarding RV Parking on City Streets Assistant City Manager. Alan Christensen provided an update. Last year the Legislative and Litigation Committee met and modified the ordinance to restrict vehicles from .being parked in residential areas for no more than 72 hours then the vehicle must be moved at least 1/2 mile from where the notice of potential violation occurred. The amended ordinance was forwarded to the Council and adopted in June 2004. Councilmember Couch referred this issue back to the Committee due to calls he is receiving that violations are still occurring and requested a review into whether the 72-hour period and the distance are sufficient to prevent the illegal parking. LEGISLATIVE AND LITIGATION COMMITTEE A :T AGENDA SUMMARY REPORT Wednesday, February 16, 2005 Page 2 Police Captain Bob Bivens explained there was an educational effort last fall and enforcement of the ordinance began in mid-November of 2004. The Police Department annually impounds approximately 4,000 vehicles including trailers. Year-to-date 265 vehicles have been impounded. Of the vehicles tagged to be moved .40 to 50 were motor homes. Only one of the motor homes was towed because it was not moved. The Police Department receives about 15 calls a day and responds as staffing allows. Committee Chair Scrivner asked staff if the regulations in the ordinance were made stiffer, would .police staffing allow for more follow up and enforcement? City Attorney Ginny Gennaro expressed staffing is a valid concern. She had spoken with Committee Member Couch and he had the same concerns, but because of continued violations, wanted to review if there were anything that could be-done to enhance -the ordinance. 'Fhe City Attorney explained under the new ordinance Police Officers have a wide range of discretion and can cite for an infraction, misdemeanor or vehicle code violation. The City's ordinance is in line with other cities in California. The ordinance has only been in the Code since June 2004 and more time may be needed to provide an ample opportunity to see how well it works. In response to a question regarding requiring recreational vehicles to be in the backyard behind screening or in an enclosure, the City Attorney responded if such an ordinance were adopted, the City is required to post legal signage. As the City has multiple entrances, the cost to put up the signs would be prohibitive. The Committee unanimously agreed .to give the ordinance more time to see if enforcement is 'effective and if not, bring the issue back to the Committee for further review. (Councilmember Couch absent) B, Review and Committee recommendation regarding Illegal Posting of Signs ~ Assistant City Manager Alan Christensen explained this was referred by Councilmember Hanson due to complaints he is receiving in reference to the illegal posting of signs on stop signs, light poles and in the City right-of-ways. For examPle: garage sale signs. The City has sufficiently strong ordinances in place restricting such activities. However, this is a code enforcement related activity, and code enforcement officers are responding to housing and other code violations with higher priority. With existing staff, there is little time left to monitor the posting of illegal signs. LEGISLATIVE AND~,LITIGATION COMMITTEE AF'r AGENDA SUMMARY REPORT Wednesday, February 16, 2005 Page 3 City Attorney Ginny Gennaro explained in order to cite for illegal posting, the officers must see the infraction taking place. Code Enforcement Officer Randy Fidler reported he had purchased special poles for Code Enforcement Officers to use to jerk down the signS, which has helped to cut down on the volume of illegal signs. However, with the construction boom, staff has not had ample time to monitor the posting of illegal 'signs. Randy Fidler stated if any; Councilmember has a concern, just give him a call and he will make a special effort to get the signs down. As a response to Councilmember Hanson's referral, the Committee requested staff to write a memorandum to the Council clarifying the staffing issues. Also, include in the memorandum information regarding the special poles with hooks that were .purchased by Code Enforcement to tear the signs down. (Councilmember Couch absent) C. Committee recommendations on date for next Committee meeting The Committee reviewed the draft calendar and approved the following Mondays at 1:00 p.m. March 14, 2005 April 1 i, 2005 May 9,~2005 June 13, 2005 July 11,2005 August 8, 2005 October 17, 2005 November 7, 2005 The Committee unanimously adopted the meeting schedule. (Councilmember Couch absent) 5.' COMMITTEE COMMENTS Committee Member Benham thanked both Code Enforcement and the Police Department for their efforts to enforce the ordinance regarding illegal flower vendors. 6. ADJOURNMENT The meeting was adjourned at 1:25 p.m. Staff present: City Manager Alan Tandy; Assistant City Manager Alan Christensen; City Attorney Ginny Gennaro; Development Services Director Stan Grady; Police Captain Bob Bivens; and Chief Code Enforcement Officer Randy Fidler S:~AC~05 Legislative&Litlgation~05feb16agendasummary.doc MEMORANDUM CITY ATTORNEY'S OFFICE March 7, 2005 TO: LEGISLATIVE AND LITIGATION COMMITTEE ZACK SCRIVNER, CHAIR DAVID COUCH FROM: VIRGINIA GENNARO, CITY ATTORN ~. ~v SUBJECT: LITTERING, GRAFFITI, ILLEGAL DUMPING COUNCIL REFERRAL NO. 001039 Councilmembers Hanson and Couch requested the Legislative and Litigation Committee look into the feasibility of issuing strong penalties for littering, graffiti and illegal 'dumping, and look at the various types of penalties, including seizing assets, cars, etc., and the use of administrative judges for prosecution. In general, City Council may enact laws not in conflict with state law; however, where a state law has criminalized certain conduct, such regulation preempts the lower level jurisdiction, including the penalty. GRAFFITI PENALTIES: Under State law, the fine for applying graffiti is dependent on the cost of the damage. For example, if the amount of defacement is $400 or above, the penalty is one year in jail or fine up to $10,000, or both. If the defendant is a minor, the court can order the fine paid by the .parent. Also, defendants and parents of minor defendants may be ordered to keep the damaged property graffiti free for a year. If the damage is less than $400, the penalty is up to one year in jail or a fine of $1000, or both. There are als0 laws which criminalize possession of aerosol paint containers or felt tip markers with intent to vandalize or apply graffiti. These violations carry penalties from six months in jail and/or $1000 fine for an adult or 300 hours of community service for a minor. In addition to criminal prosecution, State law allows a city to adopt an ordinance regulating the sale of aerosol containers of paint capable of applying graffiti, and to establish civil administrative regulations, procedures, or civil penalties governing the placement of graffiti on private real property. Pursuant to this authorization the City of Bakersfield passed BMC Chapter 9.36 regulating the sale and use of markers for graffiti (see copy of ordinance attached hereto). This ordinance allows the City to seek civil restitution from the legal guardians of minors who are convicted or confess to applying graffiti. While this procedure has been dormant for several years, the City Attorney's office is now actively working with our Police Department and has re-activated the program. Alan Tandy, City Manager March 7, 2005 Page 2 LITTERING/DUMPING PENALTIES: State law punishes "illegal dumping" and littering as an infraction. The difference is that an infraction cannot be punished by jail time. Among other things, "illegal dumping" includes dumping waste matter, concrete, asphalt, or dirt upon private or public property. Yet, a person dumping in excess of one cubic yard of prohibited matedal (a "commercial dumper") can be convicted of .a misdemeanor which is punishable by six moths in jail and a minimum fine of $1000 for a first conviction. More likely is the mandatory fine of $50 for a first time conviction and $250 for a third offense. The maximum penalty for a third time "dumper" is $10,000. Bakersfield Municipal Code Chapter 8.29 punishes "littering" and "illegal dumping" as an infraction. When Code Enforcement officers witness a littering, they pursue the code enforcement remedies for abating a nuisance, giving the notices and conducting the required administrative headngs and compelling "clean up." In these cases, the City is using its police power against the victim of the crime rather than against the unknown perpetrator, because the action is against the property .owner to make him or her rid his or her property of the offensive matter. CONCLUSION: The bottom line is that State law limits the power of a city to punish a misdemeanor. Therefore, the Council cannot impose punishment greater than six months and/or a $1000 fine for a criminal violation for either graffiti or dumping. The City may redress violation of its ordinances by initiating a civil action for civil penalties. This is precisely what we have done by enacting the graffiti ordinance mentioned above, as well as the administrative process for illegal littering/dumping and public nuisances. The same is true for asset seizures -- State law limits our ability to do so, other than as , evidence for of a crime. For example, the police are authorized to take graffiti paraphemalia from a tagger but not allowed to impound his/her car to cover restitution. Although it appears we have limited recourse to prevent the above crimes, it really is a matter of staffing and priority. The ordinances we have on the books concerning graffiti and illegal dumping are strong and capable of being enforced. Once the City prosecution program is up and running, we will be able to take a more aggressive stance on prosecuting misdemeanor violations and seeking civil penalties. VG/AMS:Isc Attachment cc: Honorable Mayor and City Council Alan Tandy, City Manager S:\COUNClL\Referrals\04-05 Referrals\LittedngGraffitiDumping.doc 9.36.010 Chapter 9.36 9~36.040 Display of aerosol spray paint containers and marker pens. GRAFFITI PREVENTION AND ABATEMENT A. Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol' Sections: paint containers or marker pens with the tip exceeding six 9.36.010 Purpose. millimeters in width, containing anything other than a 9.36.020 Graffiti del'med, solution which can be removed with water after it dries, 9.36.030 Public nuisance, shall store or cause such aerosol paint containers or 9.36.040 Display of aerosol spray paint marker pens to be stored, if viewable by the public, in a containers and marker pens, manner not accessible to the public in the regular course 9.36.0~0 Sale of wide-tipped marker pens of business without employee assistance, pending legal to minors, sale or disposition of such marker pens or paint contain- 9.36.060 Possession of aerosol paint ers. (Ord. 3524 § 2 (part), 1993: Ord. 3517 § 2 (part), container or'wide-tipped marker 1993) 9.36.070 Removal of graffiti. 9.36.050 Sale of wide-tipped marker pens to 9.36.080 Penalty. minors. 9.36.090 Reward. A. It shall be unlawful for any person, firm, or 9.36.100 Severability. corporation, except a parent or legal guardian, to sell or give or in any way furnish any marker pen with the tip 9.36.010 Purpose. exceeding six millimeters in width, containing anything The purpose of this Chapter is to prevent graffiti and other than a solution which can be removed with water provide for the prompt abatement of graffiti from public when dry, to any person under the age of eighteen years and private property in the city; to provide for methods who is not accompanied by a responsible adult. of controlling the sale, use and possession of instruments B. It shall be unlawful for any person under the age used in creating graffiti; and to encourage citizens to of eighteen years to purchase a marker pen(s) with the tip repor~ occurrences of graffiti vandalism within the city. exceeding six millimeters in width, containing anything (Ord. 3517 § 2 (part), 1993) other than a solution which can be removed with water when dry. 9.36.020 Graffiti deemed. C. Every retailer selling or offering for sale marker "Graffiti" means, but is not limited to, an unauthorized pens with the tip exceeding six millimeters in width, inscription, word, figure, design, writing orpicture which containing anything other than a solution which can be is marked, etched, scratched, drawn or painted upon any removed with water when dry, shall post in a conspicuous public or private property, either real or personal, or any place a sign in letters at least three-eighths of an inch structure, wall, fence, sidewalk, sign, public utility box, high stating: or any structural component of any building, bridge, "ANY PERSON WHO MALICIOUSLY DEFACES structure or any facility in public view to any person REAL OR PERSONAL PROPER-TY WITH IIqK OR utilizing any public street in the city of Bakersfield, OTHER PERMANENT LIQUIDS IS GUILTY OF including but not limited to any roadway, parkway, side- VANDALISM, PUN'IS~LE BY FINE AND/OR walk or alley. (Ord. 3517 § 2 (Par0, 1993) IMPRISONMENT." (ord. 3524 § 2 (pm), 1993: Ord. 3517 § 2 (part), 1993) 9.36.030 Public nuisance. The city of Bakersfield hereby declares graffiti to be 9.36.060 Possession of aerosol paint a public nuisance to be abated pursuant to the provisions container or wide-tipped marker provided in Chapter 8.80 of this code. Nothing in this or pen. any other chapter shall be deemed to prevent the city A. It is unlawful for any person under the 'age of from commencing a civil or criminal proceeding to abate eighteen years, who is on private property, without the a public nuisance under applicable Civil or Penal Code consent of the owner, tenant or operator thereon, or who provisions as an alternative to the proceedings set forth is in a public place, to possess a marker pen with the tip - herein. (Ord. 3517 § 2 (part), 1993) exceeding six millimeters in width, containing anything other than a solution which can be removed with water when dry. For purposes of this section, a "public place" 353 9.36.060 includes, but is not limited to, all public buildings and on the property in order to perform thc work-of removing facilities, public highway, street, alley or way, regardless the material. of whether that person is or is not in any automobile, If the city is unable to secure entry upon the affected vehicle or other conveyance. This subdivision shall not property for the purpose of removal of the graffiti, or if apply to the possession of a marker pen with the tip the city shall have requested consent to remove or paint exceeding six millimeters in width, by a minor under the over graffiti and the property owner shall have refused supervision of a responsible adult, consent for entry on terms acceptable to the city consis- B. It is unlawful for any individual, who is on tent with the terms of this section, the city may com- private property, without the consent of the owner, tenant mence abatement and cost recovery proceedings for the or operator thereon, to possess an aerosol or pressurized removal of the graffiti pursuant to the nuisance abatement container of paint for the purpose of defacing property, authority set fozth in Bakersfield Municipal Code Chapter (Ord. 3524 § 2 (part), 1993: Ord. 3517 § 2 (part), 1993) 8.80, which authority includes the recovery of all costs incurred by the city in abating graffiti and recordation of 9.36.070 Removal of graf/iii, lien as to affected property as provided for in Govern- A. Right of City to Remove. ment Code Sections 38773 et seq. 1. Authorization to Use City Funds. Within the B. Liability of Parents or Guardians; Liability of limits set forth in this section, city funds may be used to Violator; Penal Violations. remove graffiti and other similar inscribed material from 1. Pursuant to California Civil Code section 1714.1, publicly or privately owned permanent sn'uctures located each parent or legal guardian shall be personally liable on publicly or privately owned real property within the for any and all costs incurred by the city or any person city. or business in connection with the removal of graffiti 2. Limitations to Use of City Funds. The use of city caused by that parent or guardian's minor child, and for funds as authorized in this section is limited to the fol- all law enforcement costs, city staff costs, attorney's fees lowing cases: and court costs incurred in connection with the civil a. Sufficient funds have been budgeted and remain prosecution of any claim for damages or reimbursement, unencumbered for such purpose, up to the limits set in California Civil Code section b. The city manager or the designee of the city 1714.1(b) manager approves each proposed use of city funds for 2. Any individual who is determined to be responsi- such purpose, ble for violating the provisions of this chapter shall be c. City funds shall be used only to remove the personally liable for any and all costs incurred by the city inscribed material itself and may not be used for painting or any person or business in connection with the removal or repairing of any more extensive area. of graffiti caused by that person, and .for all law enforce- d. In any instance where the owner or tenant of the ment costs, city staff costs, attorney's fees and court costs affected property caused, materially contributed to, or incurred in connection with the civil prosecution of any voluntarily consented to the inscription, the owner may claim for damages or reimbursement. be held financially responsible pursuant to subsection A, 3. In addition to civil restitution remedies, the 3 below, section may pursue criminal charges for violators of this 3. Right of Entry on Private Property; Failure to chapter (as set forth in Penal Code section 594 or 640.6) Obtain Owner Consent. The city will first seek to obtain 4. In addition to the above, the city may also seek the written consent of the owner of the affected property, recovery for any and all costs incurred by the city for public or private, in order to enter upon the property to removal of graffiti pursuant to the remedies set forth in remove graffiti located thereon. The consent shall be in Government Code Sections 38772, 38773.2 and 38773.6. a form approved by the city attorney and shall: The procedures for recovery of costs under this particular a. Authorize entry of city employees and/or con- paragraph shall be those set forth in Bakersfield Munici- tractors on the affected property to accomplish the rem0v- pal Code Sections 8.80.140 through 8.80.200. (Ord, 3813 al of the material; § 1, 1997: ord. 3726 § 1, 1996: ord. 3517 § 2 (pa_n), b. Assign to the city of Bakersfield any cause or 1993) causes Of action which the owner may have against any person or persons who defaced said property with graffiti; 9.36.080 Penalty. and A violation of this chapter, except where otherwise c. Hold the city, its officers, employees and con- indicated, is a misdemeanor subject to all penalties set tractors harmless from all liability arising out of the entry forth in the Penal Code of this state and in Section 354 9.36.080 1.40.010 of the Bakersfield Municipal Code. (Ord. 3517 § 2 ~art), 1993) 9.36.090 Reward. The City of Bakersfield may provide a reward of up to five hundred dollars in each case for information which leads to the arrest and cOnviction of graffiti van- dals. As part of this incentive, the economic development depa~ment of the city of Bakersfield may establish, publicize, and maintain a "graffiti hot. line" for citizens to utilize to report this nuisance. (Ord. 3517 § 2 (part), 1993) 9.36.100 Severability. It is declared to be the intention of the city council that the subSeCtions, paragraphs, sentences, clauses and phrases of this section form an interrelated program for dealing with the problem of gra~ti and vandalism within the city, but that such subsections, paragraphs, sentences, clauses and phrases are distinct and severable and, in the event that any subsections, paragraphs, clauses and phras- es are declared unconstitutional, invalid or unenforceable by any court of competent jurisdiction, such unconstitu- tionality, invalidity or unenforceability shall not affect any of the remaining subsections, paragraphs, clauses or phrases of this chapter. (Ord. 3517 § 2 (part), 1993) 355 B AK E R S F I E L D MEMORANDUM February 12, 2005 TO: Legislative and Litigation Committee FROM: Alan Christensen, Assistant City Manager~ SUBJECT: Combining the Historic Preservation Commission with an Existing Board or-Commission Councilmember Couch referred this item because of the challenge he has experienced in trying to fill appointments to the Historic Preservation Commission (HPC) In fact, the City has had a difficult time filling positions for some time now. Mr. Couch's appointment has been open for almost two years. Of the 9 appointments authorized by ordinance, five positions remain open. Also, meetings are often cancelled because there are no agenda items or lack of a quorum. Scheduling and then later canceling meetings can be frustrating for the Commission and time-consuming for staff. The goals and activities of the HPC are important. However, they could be easily handled by another body as part of a larger agenda. Therefore it is staff's opinion that the duties of the HPC be combined with another existing Commission or Board. The following two options are offered for your consideration. 1. Merge HPC duties with the Board of Zoning Adjustment The BZA is made up of 3 members that decide zoning appeals made by citizens that disagree with decisions made by city staff. The 3 members include the Building Director, Economic Development Director, and Assistant Public Works Director. Their agenda is usually relatively short, so they could easily abSorb the HPC duties. The items coming before the BZA are very similar to those of the HPC. The only difference would be that decisions would be made by a board comprised of city staff rather than a citizen-commission. Decisions of-the BZA can be appealed to the City Council. 2. Merge HPC duties with the Planning Commision The Planning Commission is made up of 7 members of the general public. The items coming before the Planning Commision are also very similar to those of the HPC. However, the Planning Commission agendas are typically long and very complicated. Given the pace of building activity, we expect their workload to be significant for years to come. Adding to their workload may not be prudent. Decisions of the Planning Commission can also be appealed to the City Council. Staff recommends the HPC be combined with the Board of Zoning Adjustment. B A K E R S F I E L D EcOnomic and Community DevelOpment Department MEMORANDUM March 11, 2005 TO: Alan Christensen, Assistant City Manager FROM: Donna Barnes, Development Associate SUBJECT: Historic Preservation Commission- History and Duties On September 1, 1982 the City Council adopted an ordinance which created the Historic Preservation Commission and established certain rules and regulations governing historic preservation Bakersfield. The ordinance was later codified into the Bakersfield Municipal Code (BMC) as Chapter 15.72 Historical Preservation. The commission consists of nine unpaid members. Each council member nominates one member and the mayor nominates two members. The Economic and Community Development Department serves as staff. The Commission reviews and adopts its own operating rules-and bylaws. Each member serves a four-year term and continues to serve until a successor is appointed. One of the primary duties of the Commission is to designate cultural resources and/or historic districts (15.72.090). Following a public hearing and an affirmative roll call vote of a majority of the commission, the pending designation is forwarded to the City Council (15.72.120). Properties are designated by resolution. Once a property is designated, alteration, demolition or relocation of the property requires submittal of an application and a public hearing (15.72.160). The commission holds a public hearing and must render a decision within 45 days. Failure to hold such a hearing and render a decision results in approval of the application. The commission can approve, deny or approve subject to conditions an application. All of these applications are appealable to the city council. City Ordinance (15.72.050) also gives the HPC the following powers and duties. However, many of these powers and duties have remained largely unfilled due to budgetary constraints and/or no engagement: A. Establish criteria and conduct or cause to be conducted a Comprehensive survey of properties within the boundaries of the city, and publicize and periodically update survey results. B. Adopt specific guidelines for the designation of cultural resources, including landmarks, landmark sites, and historic districts. C. Maintain a local register of designated cultural resources and historic districts. D. Review and correspond with the city council and city departments as to matters as they relate to the cultural resources of the community. E. Assist in recommending prescriptive standards to be used by the council in reviewing applications for permits to alter, remove, preserve, protect, reconstruct, rehabilitate, restore or stabilize any designated cultural resource or historic district. F. Recommend to the city council the Purchase of fee or less-than-fee interests in property for purposes of cultural resource preservation and designation. G. Investigate and report to the city council on the use of various federal, state, local, or private funding sources and mechanisms available to promote cultural resource preservation in the city. H. Preserve, restore, maintain, and operate designated cultural resources and historic properties owned or controlled by the city. I. Recommend for approval or disapproval, in whole or in part, applications for cultural resource or historic district designation pursuant to procedures set forth in this chapter. J. Review and comment on applications for land use decisions as such applications may be referred to 'the commission by the planning commission, the board of zoning adjustment or the city council. Comments and recommendations shall be forwarded to the referring body. K. Cooperate with local, county, state and federal governments in the pursuit of the objectives of historic preservation. L. Provide information, upon the request of the property owner, on the restoration, alteration, decoration, landscaping or maintenance of any cultural resource or property within a historic district. M. Participate in, promote, and conduct public information, educational, and interpretive programs pertaining to cultural resources and historic districts. N. Perform any other functions that may be designated by the city council. O. Meet at least once a month. All meetings shall be noticed and open to the public. P. Prepare an annual report to the mayor and city council on the activities, cases, decisions, or other work of the commission. Q. Identify as early as possible conflicts between the preservation of cultural resources and alternative land uses and make recommendations to the appropriate legislative body. R. Establish a procedure for the review of and comment on historic preservation certification applications for federal tax incentives for both cultural resources and historic districts. HISTORIC PRESERVATION COMMISSIONER ATTENDANCE 0 0 0 0 0 0 0 ~'~ 0 0 0 Nancy Carter (Ward 2) X X NM NM NM NM NM NM NQ NM X X Scott Fieber (Ward 5) X X NM NM NM. NM NM NM. NQ NM X X Richard Hackett (Ward 7) X X NM NM NM 'NM NM NM NQ' NM AB X Glen Imke (Ward 3) AB AB NM NM NM NM NM NM NQ NM X AB Michael Kephart (Ward 6) AB AB NM NM NM NM NM NM NQ NM AB AB Anthony Noce (Mayor) X X NM NM NM NM NM NM NQ NM AB AB Susan Stussy (Mayor) X X NM NM NM NM NM NM NQ NM X X Ann Sullivan (Ward 1) X X NM NM NM NM NM NM NQ NM X X Vacant - (Ward 5) ' . ~ . .:..~.. .. See ..... !No No No~ · No No No note* ' ~ ';:.mtg mtg mtg, ~ mtg. mtg mtg'= ~qU°~umy' * Prior to the March 16, 2004 meeting fate the last meeting was held November 18, 2003 X = Present NQ=NoQuorum NM = Meeting Cancelled due to lack of business AB = Absent from Meeting Chapter 15.72 HISTORICAL PRESERVATION 15.72.010 Purpose. The purpose of this chapter is to promote the public health, safety, and general welfare by providing for the identification, protection, enhancement, perpetuation, and use of improvements, buildings, structures, signs, objects, features, sites, places, and areas within Bakersfield that reflect special elements of the city's architectural, artistic, cultural, engineering, aesthetic, historical, political, social and other heritage for the following reasons: A. To safeguard the city's heritage as embodied and reflected in such resources; B. To encore'age public knowledge, understanding, and appreciation of the city's past; C. To foster civic and neighborhood pride and a sense of identity based on the recognition and use of cultural resources; D. To promote the enjoyment and use of cultUral resources appropriate for the education and recreation of the people of the city; E. To preserve diverse and harmonious architectural styles and design preferences of periods of the city's history and to encourage complementary contemporary design and construction; F. To protect and enhance the city's attraction to tourists and visitors.(thereby stimulating business and industry); G. To identify as early as possible conflicts between the preservation of cultural resources and alternative land uses; H. To integrate the preservation of cultural resources and the extraction of relevant data from such resources into public and private land management and development processes; I? To conserve valuable material and energy resources by ongoing use and maintenance of the existing built environment. (Ord. 3338 § 1 (part), 1991) 15.72.020 Definitions. When used in this chapter, the following words shall have the meanings specified in this section, unless a different meaning clearly appears from the context: A. "Alteration" means any change or.modification, through public or private action, of any des. ignated cultural resource or property within a designated historic district which requires a permit from the city. B. "Bakersfield Register of Historic Places" means the official city list of designated cultural resources. C. "Commission" means the Bakersfield Historic Preservation Commission. D. "Cultural resource" means on site improvements, buildings, structures, signs, features (including significant trees or other landscaping), places, place names, interior architecture features, landmark sites, historic sites, areas (including significant trees or other landscaping located thereon) or other objects of scientific, archaeological, aesthetic, educational, cultural, architectural, or historical significance to the citizens of the city. E. "Designated cultural resource" means on site improvements, buildings, structures, signs, features (including significant trees or other landscaping), places, place names, interior architecture features, landmark sites, historic sites, area (including significant trees or other landscaping located thereon) or other objects of scientific, archaeological, aesthetic, educational, cultural, architectural, or historical significance to the citizens of the city that has been approved by the commission and designated by the city council. F. "Exterior architectural feature" means an architectural element embodying style, design, general arrangement and components of all of the outer surfaces of an improvement~ building or structure, including but not limited to the kind, color and texture of the building materials and the type and style of all windows, doors, lights, signs and other fixtures appurtenant to such improvement, building or structure. G. "Historic district" means any geographically definable urban or rural, small or large area containing buildings, structures, sites and objects linked historically through location, design, setting, materials, workmanship, and/or association. The significance of a district is the product of the sense of time and place in history that individual components collectively convey. This significance may relate to developments during one period or through several periods in history. H. "Historic site" means any parcel or portion of real property which has special character or special historical, cultural, archaeological, architectural, community or aesthetic value. I. "Landmark site" means any site or improvement, manmade or natural, which has special historical, cultural, architectural, archaeological, community, or aesthetic character, interest, or valUe as part of the development, heritage or history of the city, the State of California, or the nation. J. "National Register of Historic Places" means a national list of districts, sites, buildings, structures and objects of local, state or national importance that are significant for their historical, architectural, archaeological or cultural values. Properties less than fifty years old ordinarily are not eligible for the Register unless they are of exceptional importance. The Register is administered by the Keeper of the National Register, U.S. Department of the Interior, and is the nation's official list of cultural resources worthy of preservation. K. "Object" means a material thing or functional, aesthetic, cultural, symbolic, or scientific value, usually by design or nature movable. L. "Preservation" means the act or process of applying measures to sustain the existing form, integrity, and material of a building or structure, 'and the existing form and/or vegetative cover of a site. It may include initial stabilization work, where necessary, as well as ongoing maintenance. M. "Preservation Plan" means a list of the proposed restrictions, height and area regulations, minimum dwelling size, floor area, sign regulations, parking regulations, and any other proposed modification to existing development standards appropriate to the proposed historic district. N. "Property owner" or "owner of property" or "owners of property" means the person or persons shown as the record oWner(s), as determined by a title search, of the property proposed to be designated as a cultural resource. As to property to be included in a historic district and as to owners of property to be notified of'any hearing as to property other than their own, "property owners" means owners as shown on the latest equalized assessment roll of the County of Kern. O. "Protection" means the act or process of applying measures designated to affect the physical condition of a property by protecting or guarding it fi.om deterioration, loss or attack, or to cover or shield the property from danger or injury. In the case of buildings and structures, such treatment is generally of a temporary nature and anticipates future historic preservation treatment; in the case of archaeological and paleontological sites, the protective measure may be temporary or permanent. P. "Restoration" means the act or process of accurately returning the form and details ora property and its setting as it appeared at a particular period of time, or the removal of later work or the replacement of missing earlier work. Q. "Stabilization" means the act or process of. applying measures designed to reestablish a weather resistant enclosure and the structural stability of an unsafe or deteriorated property while maintaining the essential form as it exists at present. R. "State Office of Historic Preservation" means a division of the State Department of Parks and Recreation which-serves as the staff for the State Historic Preservation Officer who is the official designated and appointed by the Governor to administer the historic preservation program in California. (Ord. 3338 § 1 (part), 1991) 15.72.030 Applicability. This chapter shall apply to all cultural resources and all historic districts within the city. (Ord. 3338 § 1 (part), 1991) 15.72.040.Historic preservation commission-- Established-- Membership. A. There is established in the city a historic preservation commission consisting of nine unpaid members. Each council member will nominate one member. The mayor will nominate two members. Appointments shall be made by the city council. B. All members shall be residents of the city. C. The commission shall elect from among its members a chairperson and vice- chairperson to serve as such for a one year term. The chairperson shall preside at all meetings of the commission, and shall appoint each committee and perform the duties necessary or incidental to the office. The vice-chairperson of the commission, in the absence of the chairperson or in the case of inability of the chairperson to act, shall perform the duties of the chairperson. -3- D. The city manager or his designee, shall serve as administrative staff to the commission. The economic development director shall assign a representative to serve as secretary to the commission. The secretary shall keep minutes of each meeting, record the official actions taken, record the vote on all official actions, certify each official act and resolution of the commission, maintain records of operations, and perform such other duties as the commission assigns. E. The commission shall review and adopt its own operating rules and bylaws, thereafter having the power and authority to perform all of the duties hereinafter enumerated and provided. F. The members shall serve four year terms and.each member shall serve until his or her successor is duly appointed and qualified. G. In the event of a vacancy occurring during the term of a member of the commission, the council shall appoint a new member to fill the unexpired term in accordance with the provisions of subsection A. of this section. (Ord. 3338 § 1 (part), 1991) 15.72.050 Historic preservation commission-- Powers and duties. The commission shall have the following powers and duties: A. Establish criteria and conduct or cause to be conducted a comprehensive survey of properties within the boundaries of the city, and publicize and periodically update Survey results. B. Adopt specific guidelines for the designation of cultural resources, including landmarks, landmark sites, and historic districts. C. Maintain a local register of designated cultural resources and historic districts. D. Review and correspond with the city council and city departments as to matters as they relate to the cultural resources of the community. E. Assist in recommending prescriptive standards to be used by the council in reviewing applications for permits to alter, remove, preserve, protect, reconstruct, rehabilitate, restore or stabilize any designated cultural resource or historic district. F. Recommend to the city council the purchase of fee or less-than-fee interests in property for purposes of cultural resource preservation and designation. G. Investigate and report to the city council on the Use of various federal, state, local, or private funding sources and mechanisms available to promote cultural resource preservation in the city. H. Preserve, restore, maintain, and operate designated cultural resources and historic properties owned or controlled by the city. I. Recommend for approval or disapproval,'in whole or in part, applications for cultural resource or historic district designation pursuant to procedures set forth in this chapter. J. Review and comment on applications for land use decisions.as such applications may be referred to the commission by the planning commission, the board of zoning adjustment or the city council. Comments and recommendations shall be forwarded to the referring body. -4- K. Cooperate with local, county, state and federal governments in the pursuit of the objectives of historic preservation. L. Provide information, upon the request of the property owner, on the restoration, alteration, decoration, landscaping or maintenance of any cultural resource or property within a historic district. M. Participate in, promote, and conduct public information, educational, and interpretive programs pertaining to cultural resources and historic districts. N. Perform any other functions that may be designated by the city council. O. Meet at least once a month. All meetings shall be noticed and open to the public. P. Quorum. Five members of the commission shall constitute a quorum for the transaction of business. Q. P.repare an annual report to the mayor and city council on the activities, cases, decisions, or other work of the commission. R. Identify as early as possible conflicts between the preservation of cultural resources and alternative land uses and make recommendations to the appropriate legislative body. S. Establish a procedure for the review of and comment on historic preservation certification applications for federal tax incentives for both cultural resources and historic districts. (Ord. 3338 § 1 (part), 1991) 15.72.060 Cultural resource and historic district designation-Criteria. Any improvements, building, structure, sign, feature, site, place, or object may be designated as a cultural resource and any grouping of such may be designated as a historic district if it meets one or more of the following criteria: A. It exemplifies or reflects special elements of the city's or a community's or neighborhood's historical, archaeological, cultural, social, economic, political, aesthetic, engineering, or architectural development; or B. It is identified with persons or events significant in local, state, or national history; or C. It embodies distinctive characteristics of style, type, period, or method of construction, or is a valuable example of the use of indigenous materials or craftsmanship; or D. It is representative of the notable work of a builder, designer, architect, engineer, landscape architect, interior designer, artist or craftsman; or E. Its unique location or singular physical characteristic(s) represents an established and familiar visual feature of a neighborhood, community or the city; or F. It is an archaeological or paleontological site which has the potential of yielding information of scientific value. (Ord. 3338 § 1 (part), 1991) -5- 15.72,070 Cultural resource designation- Initiation. A. The city council or the property owner of the proposed cultural resource may initiate a request for the designation of a cultural resource. B. All applications for designation of a cultural resource shall include: 1. A legal description or address of the proposed cultural resource, and the name and address of the property owner. 2. Sketches, photographs, or drawings. 3. Statement of condition of the structure. 4. Explanation of any known threats to the cultural resource. 5. Other information requested by the city staff. 6. If the request is initiated by the city council, the city shall, in its application, declare its intention to purchase the cultural resource. C. At time of application, the applicant shall pay a fee not to exceed the cost of processing such application as required by Section 3.70.040 of the Bakersfield Municipal Code. No application shall be deemed complete until the prescribed fee has been received by the city. (Ord. 3338 § 1 (part), 1991) 15.72.080 Historic district designation-- Initiation. A. The city council .or the owners of property within a proposed historic district in the city of Bakersfield may initiate a request for the designation of that area as a historic district. B. All applications for designation of a historic district shall be accompanied by a petition, on forms provided by the city, setting forth the request for designation and the preservation plan, and signed by the owners of no fewer than two-thirds of the parcels within the proposed district. City staff shall verify the signatures. An application initiated by the city council shall require two-thirds approval of the council. C. All applications for designation of a historic district shall include: 1. A legal description of the boundaries of the proposed district, the names and addresses of all owners of property within the proposed district, and parcel assessor's numbers of properties within such proposed district. .2. A description of the proposed historic district, including special aesthetic, cultural, architectural, or engineering interest or value of a historical nature. 3. Sketches, photographs or drawings of structures within the proposed district. 4. A statement of the condition of the structures and improvements within the district. 5. An explanation of any known threats to any cultural resource within the district. 6. Other information requested by city staff. 7. A proposal for financing of costs of improvements, if any, including, but not limited to, maintenance or assessment districts. D. At time of application, the applicant shall pay a fee not to exceed the cost of processing such application as required by Section 3.70.040 of the Bakersfield Municipal Code. No application shall be deemed complete until the prescribed fee has been received by the city. (Ord. 3338 § 1 (part), 1991) -6- 15.72.090 Hearing procedure for designation of cultural resources and historic districts. Prior to recommendation of the designation of any cultural resource or historic district, the commission shall hold a public hearing. Notice of such hearing shall be given not less than ten days prior to the date of the hearing, and shall state the date, time, and place of the hearing, the location of the property to be designated, and the nature of the request, in the following manner: 1. By publishing once in a newspaper of general circulation in the city; 2. No action shall be taken by the commission to recommend designation of a proposed cultural resource or a historic district except following a noticed public heating. 3. In the case of the designation of a historic district, the following shall also be required: mailing a notice to the applicant, to each owner of property proposed to be included within a historic district, and to the owners of all property within three hundred feet of the exterior boundary of the district. 4. In the case of the designation of a cultural resource, the following shall also be required: mailing a notice to the applicant and to owners of all property within three hundred feet of the cultural resource proposed for designation. (Ord. 3355 § 1, 1991: Ord. 3338 § 1 (part), 1991) 15.72.100 Permit moratorium after notice to owner. A. Upon notification to the property owner that the commission has scheduled a hearing to determine if a property should be designated as a cultural resource or be included within a historic district, no person or entity shall undertake any alteration, construction, grading, demolition or removal of such building, structure, site, feature, object or district, and no permit to undertake such work shall be approved by any city official, while proceedings are pending on such designations; · provided, however, that if, after a maximum of sixty days from the date of initial notice of such hearing, final action by the council on such designation has not been completed, any such permit application shall be approved provided such permit application complies with all other legal requirements for approval. The commission shall ensure that approPriate city officials are notified of the commission's intent to consider designation of a property and the moratorium. B. The provisions of this section shall-not apply to the construction, grading, alteration, demolition or removal of any structure or other feature, where a permit for the performance of such work was issued prior to the date of notice of the public hearing to consider the designation of the cultural resource or historic district, and where such permit has not expired or been cancelled or revoked. Nor shall it apply to structures damaged in any flood, fire, earthquake Or other disaster or otherwise in such condition that the city's building director determines the structure or feature must be demolished in the interests of public safety. (Ord. 3338 § 1 (part), 1991) -7- 15.72.110 Commission action. The commission shall review the .staff reports, and consider the designation matter at a.regular, adjourned or special meeting and shall either approve and recommend the designation as proposed or as altered, or shall recommend disapproval of it. A property shall be recommended for designation as a cultural resource or for inclusion in a historic district only upon the affirmative roll call vote of a majority of the authorized membership of the'commission and approval by the city council. The commission shall make findings in support of any decision to recommend designation of property as a cultural resource or for inclusion in a historic district. Such findings shall state that the property meets the designation criteria specified in Section 15.72.060 of this chapter. Recommendations for designation of historic districts may include those items in the proposed preservation plan. (Ord. 3338 § 1 (part), 1991) 15.72.120 Council action. A. The council shall, nOt less than thirty days after the commission's recommendation, hold a noticed public heating for the proposed designation of property as a historic district. Notice shall be published and mailed as required in Section 15.72.090. B. The council shall, not less than thirty days at~er the commission's recommendation, approve or disapprove, in accordance with subsection C of this section, the designation of property as a cultural resource. None of the notice provisions of subsection A of this section shall apply to council action with respect to approval or disapproval of property as a cultural resource. C. The council shall approve or disapprove by resolution, in accordance with its normal procedure, any designation of property as a cultural resource or historic district. The action of the council shall be final. Upon such designation, the property shall be added to the. Bakersfield Register of Historic Places. (Ord. 3355 § 2, 1991: Ord. 3338 § 1 (part), 1991) 15.72.130 Notice of designation. Within fifteen days after any action of the city council designating a cultural resource or a historic district, notice of such designation shall be recorded with the county recorder on each specific property. (Ord. 3338 § 1 (part), 1991) 15.72.140 Amendment or rescission of designation. The city council may amend or rescind any designation of a cultural resource or historic district in the same manner as is prescribed for the original designation. Such amendment or rescission shall be recorded with the county recorder on each . specific property. (Ord. 3338 § 1 (part), 1991) -8- 15.72.150 Nomination for State or National Register of Historic Places. The city council may nominate a site for inclusion on the State or National Register of Historic Places in the same manner as and following the procedure for the designation of cultural resources. (Ord. 3338 § 1 (part), 1991) 15.72.160 Alteration, demolition or relocation of a designated cultural resource or property within 'a historic district--Hearing required-- Appeal. A. No person shall carry out or cause to be carded out, nor shall any permit be issued for, any alteration, demolition, or relocation of a designated cultural resource or of property within a historic district without first obtaining the approval of the commission or, on appeal thereto, of the city council. Application for such approval shall be made to the commission on forms provided by the city. B. Upon submittal of a complete application for commission approval of alteration, demolition or removal of a designated cultural resource or property within a historic district, the commission shall hold a public hearing and render a decision on the application within forty-five days. Failure to hold such a hearing and render a decision within such forty-five-day period, shall be deemed approval of the application. Notice shall be sent not less than ten days prior to the hearing, giving the date, time and place of such hearing, the location of the property, and the nature of the request, by mailing the notice to the applicant, to the owners of all property within three hundred feet of the subject property if such property is a cultural resource, and to all owners of property within the historic district, if such property is within such a district. Additionally, such notice shall be published once in a newspaper of general circulation in the city at least ten days prior to the hearing. C. Nothing in this section shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in or on any property covered by this section that does not require a permit from the city. D. Nothing in this section shall be construed to prevent the building director from issuing a building permit if he determines that demolition, removal or alteration of a designated cultural resource or of property within a historic district is immediately necessary in the interest of the public health, safety, or welfare. E. At the time of submittal of the application, the applicant shall provide whatever detailed information (plans, drawings, agreements, etc.) is required or necessary to describe the intended work and any additional information necessary for the commission to act on the matter, as determined by staff. Applications without such information shall be deemed incomplete for purposes of subsection B of this section. F. The commission shall have the authority to approve, deny, or approve subject to conditions, any application for the alteration, removal or demolition of a designated cultural resource or property within a historic district. If the commission determines that a permit should not be issued, the commission shall issue its · findings in writing, documenting the specific reasons for denial. The decision of the commission and the findings supporting that decision shall be mailed to the -9- applicant within five days of the decision. A new application for the same work affecting the same property may be submitted after the disapproval only if a change in circumstances of the owner or the property has occurred. G. The decision of the commission to approve, deny, or approve with conditions any application as set forth in this chapter is appealable to the city council. Such appeal shall be made in writing and delivered to the office of the city clerk not later than ten calendar days fi.om the date of mailing of notice of the commission's decision. At the time of filing, the applicant shall pay a fee not to exceed the cost of processing such appeal as required by Section 3.70.040 of the Bakersfield Municipal Code. No application for appeal shall be deemed complete until the prescribed fee has been received by the city. Such apPeal shall specify the reasons for the appeal fi.om the decision of the commission. Upon the filing of the appeal, the clerk shall set the matter for public hearing within thirty days or as soon thereafter as is practicable and shall give written notice to the appellant of the time and date set for the hearing. Upon the hearing of such appeal, the city council may by resolution affirm or modify or reverse the determination of the commission. (Ord. 3872 § 2, 1998; Ord. 3338 § 1 (part), 1991) 15.72.170 Alteration of a designated cultural resource or of property within a historic district--Criteria for approval. An application for the alteration of a designated cultural resource or of property within a historic district shall not be approved unless the following conditions are found to exist: The proposed work will not adversely affect the architectural features of the structure, where specified in the designation; nor will the proposed work adversely affect the special character or special historical, architectural or aesthetic interest or the relationship and congruity between the subject structure or feature and its neighboring structures and surroundings, where specified in the designation. The proposed work shall also conform to such further standards as may be embodied in the designation of the historic district by resolution. (Ord. 3338 § 1 (part), 1991) 15.72.180 Demolition or relocation of a designated cultural resource or property within a historic district-- Criteria-for approval. A. An application for the demolition or relocation of a designated cultural resource or of property within a historic district shall not be approved unless one or more of the following conditions exist: 1. The structure/site is a hazard to public health or safety and repairs or stabilization are not financially prudent; or 2. The site is required for a public use which will be of more benefit to the public than its use as a cultural resource or property within the historic district and there is no practical alternative location for the public use; or -10- 3. Denial of the proposed application will result in unreasonable economic hardship to the owner, as set forth in Section 15.72.190; it is not feasible to preserve or restore the designated cultural resource or property within the historic district; and the property owner will be denied the reasonable beneficial use of the property if the application is denied; or 4. With respect to an application for the relocation of a designated cultural resource or property within the historic district, if the commission finds that one or more of the above conditions exist and that the relocation will not destroy the historic, cultural or architectural values of the designated cultural resource or property within the historic district, and the relocation is part of a definitive series of actions which will assure the preservation of the designated cultural resource or property within the historic district, such application shall be approved. B. A permit for demolition of a designated cultural resource or property within the historic district shall not be approved unless the building or structure cannot reasonably be moved or relocated. C. Applicants proposing the demolition or re-location of a designated cultural resource or property within the historic district shall have the burden of proving that the demolition or relocation is necessary, and that an economic hardship exists, if any is claimed, and shall present substantial evidence as to the need for such action. (Ord. 3338 § 1 (part), 1991) 15.72.190 Proof of unreasonable economic hardship. In cases in which an applicant makes a claim of unreasonable economic hardship, the applicant shall provide the following information which shall include but is not limited to, ownership or operation of the property, mortgage or financing information, market value, structural integrity, rehabilitation costs, assessed value, real estate taxes, debt service, and potential adaptive re-use, and: A. For income-producing property: 1. Annual gross income from the property for the previous two years; 2. Itemized operating and maintenance expenses for the previous two years; 3. Annual cash flow, if any, for the previous two years. B. For low-income owners: a statement of present household income and the number of persons in the household. Low-income households shall be defined as meeting the income level established by the U.S. Department of Housing and Urban Development. C. The staff of the commission may require that an applicant furnish additional information which would assist the commission in making a determination as to whether or not the property does yield or may yield a reasonable remm to the owner(s), e.g., pro-forma financial analysis. In the event that any of the required information is not reasonably available to the applicant and cannot be obtained by the applicant, the applicant shall file with his affidavit a statement of the information which cannot be obtained and shall describe the reasons why such information cannot be obtained. (Ord. 3338 § 1 (part), 1991) -11- 15.72.200 Enforcement. Methods of Enforcement. In addition to the regulations of this chapter, other chapters of the code and other provisions of law which govern the approval or disapproval of applications for permits or licenses covered by this chapter, the building official shall have the authority to implement the enforcement thereof by any of the following means: A. Serving notice requiring the removal of any violations of this chapter upon the owner, agent, occupant or tenant of the improvement, building, structure or land; B. Calling upon the city attorney to institute any necessary legal proceedings to enforce the provisions of this chapter, and city attorney is authorized to institute any actions to that end; C..Calling upon the chief of police and authOrized agents to assist in the enforcement of this chapter. In addition to any of the foregoing remedies, the city · attorney may maintain an action for injunctive relief to restrain or enjoin or to cause the correction or removal of any violation of this chapter, or for an injunction in appropriate cases. (Ord. 3338 § 1 (part), 1991)