§ 6.28.020. Definitions.

As used in this chapter, the following definitions shall apply. For purposes of this chapter, these definitions shall supersede any other definitions of the same terms in this Code.

Abandoned personal property means and refers to any item, object, thing, material or substance that, by its condition of damage, deterioration, disrepair, non-use, obsolescence or location on public real property or on private real property, causes a reasonable person to conclude that the owner has permanently relinquished all right, title, claim and possession thereto, or that the object, thing, material or substance cannot be used for its intended or designed purpose. Abandoned personal property may include junk, vehicles, and vacant property itself, that has or has not ever been developed.

Abandoned structure means a building or other structure that is vacant and is maintained in a condition of disrepair or deterioration, as discernible from a public right-of-way or adjoining real property. Factors that may also be considered in a determination of an abandoned structure include, without limitation: present operability and functional utility; the presence of nonfunctional, broken or missing doors or windows, such that entry therein by unauthorized persons is not deterred; the existence of real property tax delinquencies for the land upon which the structure is located; age and degree of obsolescence of the structure, and the cost of rehabilitation or repair versus its market value.

Abatement costs means all costs, fees and expenses, incidental or otherwise, incurred by the city in abating a public nuisance.

Accessible property means any property that is accessible through a gate, fence, wall or other barrier that is broken, unlocked, unsecured or otherwise missing or lacking.

Accessible structure means a building or structure (as defined by the building code) that is unsecured in any manner that could allow access to the interior of the building or structure by unauthorized persons.

Appellant means any responsible person who files a timely, complete appeal of a notice of abatement pursuant to the procedures established in this chapter. Any responsible person who has received a notice of abatement who does not file a timely appeal shall be deemed to have waived the right of appeal and will have failed to exhaust administrative remedies.

Attractive nuisance means any condition, device, equipment, instrument, item or machine that is unsafe, unprotected and may prove detrimental to minors, whether in a structure or in outdoor areas of developed or undeveloped real property. This includes, without limitation, any abandoned or open and accessible building, structures, wells, shafts, basements or excavations; any abandoned refrigerators and abandoned or inoperable motor vehicles; any structurally unsound buildings, structures, walls, or fences; or, any lumber, trash, walls, fences, debris or vegetation which may prove hazardous or dangerous to minors. An attractive nuisance shall also include pools, standing water or excavations containing water, that are unfenced or otherwise lack an adequate barrier thereby creating a risk of drowning, or which are hazardous or unsafe due to the existence of any condition rendering such water to be clouded, unclear or injurious to health due to, without limitation, any of the following: bacterial growth, infectious or toxic agents, algae, insect remains, animal remains, rubbish, refuse, debris, or waste of any kind.

Building means any structure having, or originally designed to be used for the shelter or enclosure of persons, animals, chattel, equipment, or property of any kind, and shall also include structures wherein things may be grown, made, produced, kept, handled, stored, or disposed of, and all appendages, accessories, apparatus, appliances, and equipment installed as a part thereof.

City manager means the city manager or duly authorized representatives.

City personnel means any city employee, representative, agent or contractor designated by the city manager to abate a public nuisance.

Code, codes, and Barstow Municipal Code mean the Barstow Municipal Code and any code, law, or regulation incorporated therein by reference and any adopted and uncodified ordinances.

Code compliance fees mean fees imposed by the city to defray its costs of code compliance actions, including, but not be limited to, the time and other resources of public officials expended by them in identifying, inspecting, investigating, seeking or causing the abatement of a violation at a residential structure. These include, but are not limited to, site inspections, drafting reports, taking photographs, procuring other evidence, engaging in meetings, conferences and communications with responsible persons, their agents or representatives, concerning a violation, as well as with attorneys for the city at any time, and appearances before judicial officers or reviewing authorities during the pendency of a judicial or administrative proceeding and other appearances at such judicial or administrative hearings. The time and resources that public officials further expend to confirm that a residential or nonresidential structure and/or real property remains free of a violation while a responsible person is on probation to a court or when a matter concerning a residential, or nonresidential, structure and/or real property remains pending before a reviewing authority in an administrative action, shall also constitute code compliance actions. For purposes of this definition:

(1)

Residential structures means and include all structures and premises that are regulated by the state housing law (Health and Safety Code, division 13, part 1.5, section 17910 et seq.), and any future amendments thereto. These include, but are not limited to, apartment houses, hotels, motels, and dwellings, and residential buildings and structures accessory thereto.

(2)

Nonresidential means any office, commercial, industrial, institutional or other use that is not identified in subsection (1) of this definition.

(3)

Violation means and includes a public nuisance as described or referred to in this chapter, or any condition, activity or use that is caused, allowed to exist, or maintained (whether due to an affirmative act, or inaction or omission) by a responsible person in violation of any other provision, regulation, or requirement of this Code, or any applicable county, state or federal laws or regulations.

Community code compliance officer means any individual employed by the city with enforcement authority for city codes, or his duly authorized representatives, including, but not limited to, city community and economic development department staff and building department inspectors.

Compliance period means the period of time and/or required schedule set forth in a notice of abatement within which all nuisance abatement actions referenced in such notice must be completed.

Controlled substances mean any substance that is declared by state or federal law to be a controlled substance.

Distressed property means a property that meets any of the following conditions:

(1)

Is under a current notice of default;

(2)

Is under a current notice of trustee's sale;

(3)

Is pending a tax assessor's lien sale;

(4)

Has been the subject of a foreclosure sale where the title was retained by the beneficiary of a deed of trust involved in the foreclosure; or

(5)

Has been transferred under a deed in lieu of foreclosure.

Evidence of vacancy means any condition that on its own, or combined with other conditions present, would lead a reasonable person to believe that the property is vacant. Such conditions shall include, but shall not be limited to, overgrown and/or dead vegetation; accumulation of newspapers, circulars, flyers, and/or mail; past due utility notices and/or disconnected utilities; accumulation of trash, junk and/or other debris; the absence of window coverings, such as curtains, blinds and/or shutters; the absence of furnishings and/or personal items and/or commercial furnishings consistent with the permitted residential or commercial uses permitted within the zone of the real property; statements by neighbors, passersby, delivery agents, government employees that the property is vacant.

Foreclosure means the process by which real property is sold at auction to satisfy a debt.

Hazardous materials means any material or substance of any kind that is declared by any federal, state, or local law, ordinance, or regulation to be composed of hazardous material.

Hearing officer means the city manager, or a designee thereof, who shall hear all timely appeals from a notice of public nuisance and intention to abate with city personnel.

Incidental expenses includes, but shall not be limited to, the actual expenses and costs of the city, such as preparation of notices, specifications, contracts, inspection of work, costs of printing and mailings required hereunder, costs of any filing and/or recordation with the county recorder's office or other governmental agency, and the costs of administration and legal services.

Inoperable vehicle means and includes, without limitation, any vehicle that is immobilized or mechanically incapable of being driven on a highway. Factors that may be used to determine this condition include, without limitation, vehicles that have a nonoperational status with the DMV, or that are lacking a current and valid registration, a working engine, transmission, wheels, inflated tires, doors, windshield or any other part or equipment necessary for its legal and safe operation on a highway or any other public right-of-way.

Junk includes, but is not limited to, any cast-off, damaged, discarded, junked, obsolete, salvaged, scrapped, unusable, wornout or wrecked appliance, device, equipment, furniture, fixture, furnishing, object, material, substance, tire, or thing of any kind or composition. The term "junk" may include abandoned personal property, as well as any form of debris, refuse, rubbish, trash or waste. Factors that may be considered in a determination that personal property is junk include, without limitation, its:

(1)

Condition of damage, deterioration, disrepair or non-use.

(2)

Approximate age and degree of obsolescence.

(3)

Location.

(4)

Present operability, functional utility and status of registration or licensing, where applicable.

(5)

Cost of rehabilitation or repair versus its market value.

Notice of abatement means a notice of public nuisance and intent to abate with city personnel, as described in this chapter.

Notice of default means a recorded notice that a default has occurred under deed of trust and that the beneficiary intends to proceed with a trustee's sale and/or other foreclosure proceeding.

Order of abatement means an order issued by a hearing officer following a hearing on an appeal of a notice of abatement.

Owner means and includes any person having legal title to, or who leases, rents, occupies or has charge, control or possession of, any real property in the city, including all persons shown as owners on the last equalized assessment roll. Owners include persons with powers of attorney, executors of estates, trustees, or who are court-appointed administrators, conservators, guardians or receivers. An owner of personal property shall be any person who has legal title, charge, control, or possession of, or equitable right to such property.

Person means and includes any individual, partnership of any kind, corporation, limited liability company, association, joint venture or other organization or entity, however formed, as well as trustees, heirs, executors, administrators, or assigns, or any combination of such persons. The term "person" also includes any public entity or agency that acts as an owner in the city, other than the city.

Personal property means property that is not real property, and includes, without limitation, any appliance, article, device, equipment, item, material, product, substance or vehicle.

Public nuisance means anything which is, or likely to become, injurious or detrimental to health, safety or welfare, or is offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any sidewalk, public park, square, street or highway. All conditions hereafter enumerated in this chapter, or that otherwise violate or are contrary to any provision of the Barstow Municipal Code, including all violations of state and federal law that are defined as a misdemeanor or felony, are public nuisances by definition and declaration, and said enumerated conditions shall not, in any manner, be construed to be exclusive or exhaustive. A public nuisance shall also exist when a person fails to comply with any condition of a city approval, entitlement, license or permit or when an activity on, or use of, real property violates, or is contrary to, any provision or requirement of the Barstow Municipal Code.

Real property or premises means any real property owned by any person and/or any building, structure, or other improvement thereon, or portions thereof. The term "real property" or "premises" includes any parkway or unimproved public easement abutting or adjacent to such real property, whether or not owned by the city.

Responsible person means any person, whether as an owner/tenant as defined in this chapter, or otherwise, that allows, causes, creates, maintains, or permits a public nuisance, or any violation of the Barstow Municipal Code or county or state law, or regulation thereof, to exist or continue, by any act or the omission of any act or duty. A responsible person shall also include employees, principals, joint ventures, officers, agents, and/or other persons acting at the direction of, and/or with the knowledge and/or consent of the owner and/or occupant of the lot or the building, structure, or use located thereon, in the utilization of such building structure or use. The actions or inactions of a responsible person's agent, employee, representative or contractor may be attributed to that responsible person.

Securing means and includes such measures as may be directed by the city manager (or designee thereof) that assist in rendering real property inaccessible to unauthorized persons, including, but not limited to, the repair of fences, walls, and other barriers, chaining or pad locking of gates and/or the repair or boarding of doors, windows, and/or other openings. The boarding of any window, door, or other opening shall be completed to a minimum of the current United States Department of Housing and Urban Development (HUD) securing standards at the time the boarding is completed or required and shall be consistent with the requirements of this chapter.

Structure means that which is built or constructed, an edifice, wall, fence, or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner.

Vacant means real property and any building or structure thereon that is not legally occupied.

Vehicle.

(1)

The term "vehicle" means any device, by which any person or property may be propelled, moved, or drawn upon a highway or other public right-of-way, and includes all vehicles as defined by the state and all future amendments thereto.

(2)

The term "vehicle" does not include devices:

a.

That are propelled exclusively by human power, such as bicycles and wheelchairs; or

b.

Those that are used exclusively upon stationary rails or tracks.

(Ord. No. 905-2013, § 6.28.020, 5-20-2013)