Following is the final text of the resolution I intend to introduce at the January 23, 2007, City Council meeting. I have obtained a legal analysis from a highly credible attorney experienced in public nuisance law, and it appears that this proposed course of action enjoys a clear legal foundation. If you want your City Council to know you support this, click “reply to all,” and send them a message. Or better yet, show up at the City Council meeting and speak in support.

 

RESOLUTION OF THE CITY COUNCIL OF RICHMOND, CALIFORNIA, DECLARING A PUBLIC NUISACE AND NOTICING A PUBLIC MEETING TO CONSIDER AMENDING CHAPTER 9.22 OF THE MUNCIPAL CODE SPECIFYING A NUISANCE AND SETTING A PENALTY

 

WHEREAS, while providing a critical public safety function, the sirens of the Community Warning System, when activated, result in substantial and widespread disruption of work, commerce, school, transportation, and domestic activities, sometimes for prolonged periods. This disruption carries a tangible economic cost to the community in lost productivity, lost educational opportunities, lost wages, and lost business opportunities. It also carries an intangible cost that includes degradation of the City’s image, worry and anxiety and diminution of values, and,

 

WHEREAS, the broadcast by Contra Costa County Department of Health Services during the most recent activation of the Community Warning System on January 14, 2007, included the following:

 

This is an emergency message from the Contra Costa County Health Services Department.  There is a chemical accident emergency in your area. Please shelter-in-place. This means residents should get inside immediately. Bring pets inside if it can be done quickly.  Close and lock all doors and windows.  Turnoff all heaters, air conditioners and fans.  Close or cover any vents to outside air.  If not using the fireplace close the damper. Cracks around doors and windows can be sealed with tape or damp towels.  Tune your radio to KCBS 740 AM for further information and instruction.  Stay off your phone.  Do not call 911 unless you have a life threatening emergency. Again the radio station to listen to for more information is 740 AM.  This has been an emergency message from the Contra Costa County Health Services Department, and,

 

WHEREAS, complying with the warning advice is tantamount to house arrest, and turning off heating or air conditioning can create conditions that may range from uncomfortable to life-threatening. Sealing windows or doors with tape or damp towels (and removing such after the emergency) is a time consuming and tedious exercise at best (assuming one has sufficient tape and towels of the proper type at hand) and an impossibility at worse, if one is incapacitated or disabled, and,

 

WHEREAS, The City of Richmond has broad powers to determine that particular conditions are public nuisances because they present risks of fire that can adversely affect the general public.  Almost by definition, an accident that causes a shelter in place order is a public nuisance since it interferes with the comfortable enjoyment of property and affects a large number of people, and.

 

WHEREAS, California has codified the common law nuisance theories of public nuisance and private nuisance at California Civil Code sections 3479 and 3480.  Section 3479 defines a nuisance as:

 

Anything which is injurious to health . . . or is indecent or 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 navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance, and,

 

WHEREAS, Section 3480 defines a “public nuisance” to be one “which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal,”  and,

 

WHEREAS, public nuisance actions can generally be brought only by public entities such as the City or Air District. (Diamond v. General Motors (1971) 20 Cal.App.3d 374)    Public nuisance actions generally seek injunctive relief only, but the City would have broad powers to take any reasonable action to abate the nuisance. (City of Bakersfield v. Miller (1966) 64 Cal.2d 93), and,

 

WHEREAS, largely because of the vagueness of the nuisance law, the California courts have long granted significant deference to governmental entities to deem activities to be nuisances and to take any reasonable action to abate the nuisances.^[1]  In City of Bakersfield v. Miller, the city deemed a hotel to be a public nuisance due to fire hazards.^[2]  The California Supreme Court held that:

 

In a field where the meaning of terms is so vague and uncertain it is a proper function of the legislature to define those breaches of public policy which are to be considered public nuisances within the control of equity.  Activity which in one period constitutes a public nuisance, such as the sale of liquor or the holding of prize fights, might not be objectionable in another. Such declarations of policy should be left for the legislature,^[3] and,

 

WHEREAS, The court also held that it would defer to the City of Bakersfield’s determination of the measures necessary to abate the nuisance, even if the abatement required destruction of the building,^[4] and,

 

WHEREAS, In the case of City of San Diego v. Carlstrom (1961) 196 Cal. App. 2d 485), the City declared an abandoned apartment complex to be a public nuisance because it created a risk of fire, even though no fire had yet occurred. The landowner argued that a condition that creates a prospective nuisance cannot be deemed a public nuisance because the nuisance had not yet occurred.  The Court disagreed, holding that the creation of a “fire hazard is a public nuisance,” and that the city could take action to abate the nuisance.  (Id. at 489).  The Court stated:

 

When people live in urban and congested areas they acquire certain rights against, and they assume certain responsibilities towards, their neighbors. While they have the right to use their property, within certain limits, as they see fit, even if it annoys the neighbors or depreciates the value of adjoining property, they have no legal right to put their land to an unnatural use and to create thereon an unnecessary hazard to other properties. In a very real sense there must be a balancing of conveniences and of rights. Where the danger to an entire neighborhood is demonstrated, as it was in this case, and where the condition created is unnecessary and can be remedied, prudence, common sense, fair play and justice require that the danger to the entire neighborhood be eliminated. In such a situation the condition may be found to be a nuisance and abated.”^[5]

 

. . . when any member of the community so unreasonably conducts his affairs as to create excessive and unbearable odors^[6]; or smoke;^[7] or dust;^[8] or soot;^[9] or danger from explosive materials;^[10] or water pollution^[11]; or constantly raucous sounds seriously offensive to neighborhood nerves;^[12] such condition is a nuisance and will be subject of abatement.

 

The happiness and joy of life are inextricably interwoven with man's emotions. No one is naive enough not to understand that the constant pressure of serious fear can and often does destroy all happiness in life and property. All sane adults are aware of the latent danger of fire, and their fears are quickly aroused by the unnecessary creation of extremely hazardous situations. The presence in a settled residential community of an unnecessarily extreme fire hazard can well create and maintain that fear in the lives of the people of that community and make of the hazard a public nuisance. No one has the right to inflict unnecessary and extreme danger to the life, property and happiness of others. The greater the number of people threatened, the greater becomes the need for abatement correction. Our courts have recognized this in respect to fire hazard in several cases,^[13] San Diego v. Carlstrom, at 490-491) and,

 

WHEREAS, the City of Richmond has clear legal authority to declare activity that would cause a shelter in place order to be a public nuisance and to take reasonable action to abate the nuisance, and,

 

WHEREAS, when a City declares an activity, facility or condition to be a public nuisance, it must hold a public hearing and allow any interested members of the public to present testimony and evidence to support or oppose the nuisance declaration.  (See, Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4^th 1519), and,

 

WHEREAS, after the hearing is held, the City may take final action to declare the activity to be a public nuisance and may take any reasonable action to abate the public nuisance. The Courts must defer to the City’s judgment unless it was found to be arbitrary or capricious.  (Id., Mohilef v. Janovici, (1997) 51 Cal. App. 4th 267), and,

 

WHEREAS, after providing notice and public hearing, the City may take any reasonable action to abate the public nuisance, up to and including ordering the facility to be closed.  For example, in City of San Diego v. Carlstrom, supra, the City ordered the abandoned apartment buildings to be destroyed to abate the fire hazard that constituted a public nuisance.  (See also, Bakersfield v. Miller, supra (hotel ordered destroyed due to fire hazard), and,

 

WHEREAS, in other cases, facilities have been ordered to install improved equipment or mitigation plans to abate nuisances.  For example, in McIntosh v. Brimmer (1924) 68 Cal.App. 770 a nuisance abatement order was upheld requiring a property owner to take action to prevent the migration of dust from its property onto the property of others.  Although the nuisance-causing activity was not shut down completely, the order required action to mitigate the nuisance, and,

 

WHEREAS, the City may take any reasonable action to “abate” the nuisance caused by activities leading to shelter in place orders.  Imposing a penalty would be one such reasonable action.

 

THEREFORE BE IT RESOLVED, that the City Council of the City of Richmond sets February 1, 2006, as the date for a public hearing to consider adopting an amendment to Chapter 9.22 of the Richmond Municipal Code, as follows:

 

It is declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises in the City of Richmond to discharge any substance that results in the activation of the Community Warning System, or should have resulted in the activation of the Community Warning System under the requirements for activation thereof.

 

Any person or corporation, whether owner, lessee, sublessee, or occupant of any premises responsible for an event that causes the activation of the Community Warning System  Sirens shall be liable for a penalty of $6,000 per minute for the period of time the Community Warning System sirens are activated to the time that an “all clear” is noticed. In the event it can be established that conditions were such that sirens were sounded later than required or the “all clear” was noticed prematurely, the period for establishing the penalty shall be determined as the elapsed time during which the Community Warning System should have been in activation.

 

In the event of a discharge, the owner, lessee, sublessee or occupant shall be jointly and severally liable.

 

_________________________

 

I certify that the foregoing Resolution was passed and adopted by the Members of the City Council of the City of Richmond at a regular meeting held on _________________by the following vote:

 

AYES:

 

NOES:

 

ABSTENTIONS:

 

ABSENT:

 

_________________________

Clerk of the City of Richmond

 

 

Approved:

 

_________________________

Mayor

 

Approved as to form:

 

_________________________

City Attorney

 

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