RECOMMENDATION(S): (CONT'D)
3. FIND that the facts set forth in this board order are true.
4. AFFIRM the County Abatement Officer's determination in the Notice and Order to Abate by finding that the subject property constitutes a public nuisance in that it contains all of the following:
a) All trailers, recreational vehicles, and boats located on the subject property that are being used for human habitation without the necessary permits or authorizations constitute violations of Sections 84-68.1402 and 84-68.1404 of the Contra Costa County Ordinance Code.
b) All trailers, recreation vehicles, and boats located on the subject property that are being used for human habitation are in an unsafe and unsanitary condition, including inadequate sanitation, lack of running hot water, lack of adequate heating, lack of electrical lighting, lack of connection to a sewage disposal system, lack of garbage removal services, nonconforming electrical wiring, lack of domestic water supply services, faulty weather protection, and the there is an accumulation of junk, garbage and debris in violation of Section 84-68.1402 of the Contra Costa County Code and California Health and Safety Code, Sections 18865(f) and 18771(c);
c) The electrical system consisting of generators and extension cords used to provide power to the various occupancies located on the subject property was installed without the necessary permits, does not use commercially supplied electricity, and is in use without authorization from the County building official, in violation of Sections 72-6.202, 76-2.002, 76-4.602, and 76-4.608 of the Contra Costa County Ordinance Code;
d) Domestic water supply service and sewage systems are not present to serve the occupancies located on the subject property in violation of Section 82-2.020 of the Contra Costa County Code.
e) There are unpermitted junkyard conditions on the subject property, including the storage of trailers, recreational vehicles, and boats and the accumulation of tires, batteries, car parts, construction equipment, junk, garbage, and debris, in violation of Sections 88-4.402 and 720-2.006 of the Contra Costa County Ordinance Code.
5. ORDER the property owner to abate the public nuisances by doing all of the following within ten (10) days of the mailing of the Board's decision:
a) Discontinue the use of all trailers, recreational vehicles, and boats on the subject property for human habitation.
b) Disconnect and remove the unpermitted electrical system from the subject property.
c) Remove all trailers, recreational vehicles, and boats stored on the subject property OR submit a complete application and obtain necessary permit(s) from the Community Development Division to allow the storage of trailers, recreational vehicles, and boats on the subject property. Human habitation of the trailers, recreational vehicles, or boats stored on the subject property is not permitted.
d) Remove the accumulation of all tires, batteries, car parts, construction equipment, junk, garbage, and debris from the subject property.
6. DIRECT the County Abatement Officer to abate the nuisances and charge the cost of the work and all administrative costs to the property owner, if the property owner does not comply with the Board's order to abate the public nuisance.
7. DIRECT the County Abatement Officer to send the Board's decision by first class mail to the property owner, the appellants, and to each party appearing at this hearing, and to file the Board's decision with the Clerk of the Board of Supervisors.
FISCAL IMPACT:
Staff estimates the cost of the removal of all trailers, recreational vehicles, boats, the unpermitted electrical system, tires, batteries, car parts, construction equipment, junk, garbage, and debris to be $80,000.00. If the County Abatement Officer performs the work of the abatement and the property owner does not pay, the actual cost of the work and all administrative costs will be imposed as a lien on the property after notice and a hearing, and may be collected as an assessment against the property.
BACKGROUND:
- The real property located at 1970 Taylor Road, Bethel Island, CA. Contra Costa County; APNs: 028-14-003 and 028-140-004 is owned by B.I. Properties Inc.
- The above-referenced property is located in a retail-business (R-B) zoning district. The property is not within a lawful mobile home park or travel trailer park. No land use permit authorized the property to operate as a recreational vehicle park or campground.
- Contra Costa County Ordinance Code section 84-68.1402 prohibits a recreational vehicle or travel trailer from being located, maintained, or used for human habitation in an R-B zoning district unless the recreational vehicle or travel trailer is located in a lawful recreational vehicle park or campground allowed by a land use permit.
- Contra Costa County Ordinance Code section 84-68.1404 prohibits the storage of mobile homes, recreational vehicles, travel trailers, vessels, or vessel trailers if they are being used for living or sleeping purposes.
- California Health and Safety Code section 18871(c) prohibits the occupancy of recreational vehicles and trailers in an unsafe unsanitary condition or that is structurally unsound and does not protect its occupants against elements, which may be enforced by the County pursuant to Health and Safety Code section 18865(f).
- Contra Costa County Ordinance Code section 72-6.202 prohibits the performance of any work regulated by Title 7 of the County Ordinance Code, without the necessary permits from the county building official.
- Contra Costa County Ordinance Code sections 72-6.202 and 76-2.002 prohibit making connections from a utility, source of energy, fuel, or power to any building or system for which a permit is required until approved by the building official.
- Contra Costa County Ordinance Code section 76-4.602 prohibits connecting a source of electrical energy or supplying electric service, to any electrical equipment for which a permit is required without first obtaining a county building official's written authorization.
- Contra Costa County Ordinance Code section 76-4.608(a) requires all occupancies that have commercially supplied electricity to connect to the commercial supplier. Section 76-4.608(b) prohibits any occupancy that has commercially supplied electricity from using a permanent or temporary generator, except when authorized by the county building official.
- Contra Costa County Ordinance Code section 82-2.020 requires water supplies and sewage systems that comply with the County's health and safety requirements and have obtained the health officer's approval.
- Contra Costa County Ordinance Code section 88-4.402 prohibits the establishment or maintenance of an unpermitted junkyard, and Contra Costa County Ordinance Code section 720-2.006 prohibits the maintenance of residential property in a nuisance condition by keeping boats, trailers, vehicle parts or other articles of personal property in a state of partial construction or repair for an unreasonable period of time.
- Code enforcement involvement at the subject property dates back to 2007. (See Attachment A for the chronology of events and site inspections at the property.) Following several years of working with the then-property owner to legalize the uses on the property, including camping, occupied RVs, trailers, and boats, and the illegal storage of vehicles and boats, an increase in unpermitted activity at the property prompted staff to take active code enforcement actions to remedy the violations.
- County staff inspected the subject property on February 7, 2019. County staff observed; trailers, recreational vehicles, and boats being used for human habitation; several of the occupied trailers, RVs, boats were connected to electric, water, and sewage utilities without required permits; the remaining occupied trailers, RVs and boats were not connected to any utilities; unpermitted junkyard conditions on the subject property, including the storage of trailers, recreational vehicles, and boats, and the accumulation of tires, batteries, car parts, construction equipment, junk garbage, and debris.
- Re-inspections of the property on February 11, 2019; February 27, 2019; April 1, 2019; April 25, 2019; May 28, 2019; July 3, 2019; and June 29, 2020, showed that the conditions continued on the property.
- Following a report of a fire at the property, County staff inspected the property on December 29, 2020. Staff observed that the above-described conditions continued at the property, and that the number of occupied RVs and the travel trailers had increased. Staff also observed that a boat at the property's southernmost dock and the gangway to the dock had caught fire, and that the boat had sunk and spilled oil and gasoline into the Delta waterway. Staff observed that the electrical system running electricity to this dock had burned, and that the persons occupying boats at this dock had installed an electrical system consisting of extension cords from another dock to maintain power. The electrical system for service from the other dock was extended without permits and was non-compliant as it spanned the water with exposed connections over the water. Following the inspection, staff determined to commence abatement proceedings to remedy the conditions.
- County staff prepared, posted, and served a Notice and Order to Abate on June 16, 2021. However, staff did not proceed with abatement due to discussions with the property owner and potential buyer, as the buyer proposed to remedy the violations voluntarily. The proposed property sale did not occur.
- Following a site inspection on July 19, 2022, by which staff confirmed the above-described conditions at the property persisted, County staff reissued the Notice and Order to Abate on July 28, 2022. The appellants' representative filed an appeal on August 5, 2022.
- Staff conducted a site inspection on October 17, 2022, and observed and was informed by occupants that commercial electricity had been disconnected from the property. Staff observed RVs, travel trailers, and boats still occupied on the property, now being served by generators due to the lack of electricity. Staff observed evidence and was informed by occupants that several RVs and trailers had fire damage due to the improper use of and connection to generators. Staff also observed and was informed by occupants that due to the lack of electricity, the water well pump on the property was not operating and there was no domestic water available for the occupants on the property.
- Staff conducted a site inspection on March 13, 2023, and observed a significant deterioration of conditions at the property. Staff observed that occupants of the Rvs, trailers, and boats were still without a domestic water supply. Staff also observed that several occupied RVs and trailers were connected to the property's sewer connections without required permits, but the remaining occupied RVs and trailers were dumping raw sewage and wastewater directly onto the ground. Staff also observed that the sewer connection from the property's docks to the land has been disconnected and was draining into the Delta waterway. County staff observed each of the following:
- All trailers, recreational vehicles, and boats located on the subject property are being used for human habitation without the necessary permits or authorizations constitute violations of Sections 84-68.1402 and 84-68.1404 of the Contra Costa County Ordinance Code.
- All trailers, recreational vehicles, and boats located on the subject property that are being used for human habitation are in an unsafe and unsanitary condition, including inadequate sanitation, lack of running water, lack of adequate heating, lack of electrical lighting, lack of connection to a sewage disposal system, lack of garbage removal services, nonconforming electrical wiring, lack of domestic water supply services, faulty weather protection, and there is an accumulation of junk, garbage, and debris, in violation of Section 84-68.1402 of the Contra Costa County Ordinance Code and California Health and Safety Code, Sections 18865(f) and 18771(c).
- The electrical system consisting of generators and extension cords used to provide power to the various occupancies located on the subject property was installed without the necessary permits, does not use commercially supplied electricity, and is in use without authorization from the County building official, in violation of Sections 72-6.202, 76-2.002, 76-4.602 and 76-4.608 of the Contra Costa County Ordinance Code.
- Domestic water supply service and sewage systems were not present to serve the occupancies located on the subject property in violation of Section 82-2.020 of the Contra Costa County Ordinance Code.
- There were unpermitted junkyard conditions on the subject property, including the storage of trailers, recreational vehicles, and boats, and the accumulation of tires, batteries, car parts, construction equipment, junk, garbage, and debris, in violation of Sections 88-4.402 and 720-2.006 of the Contra Costa County Ordinance Code.
- Staff reviewed County files related to the above-referenced property and confirmed that no land use permit had been issued to allow recreational vehicle park or campground on the property, that no building permit had been issued for the installation of the electrical system, and that no approval had been granted for a domestic water supply or sewage system to serve the occupancies.
- Based on the deteriorated conditions at the property, staff determined to reissue an updated Notice and Order to Abate. Prior to issuing the updated Notice and Order to Abate, staff sent a withdrawal letter to the property owner and the appellants' representative, withdrawing the previous Notice and Order to Abate.
- Re-inspections of the property on April 5, 2023 and April 6, 2023, showed that the property continued to be in violation of Contra Costa County Ordinance Code, sections 84-68.1402, 84-68.1404, 72-6.202, 76-2.002, 76-4.602, 76-4.608, 82-2.020, 88-4.402, and 720-2.006 and California Health and Safety Code sections 18865(f) and 18771(c).
- A new Notice and Order to Abate was served on the property owner by certified and regular mail on April 6, 2023, and posted on the above-referenced property on April 6, 2023.
- On April 16, 2023, a representative of two persons living at the property, Kimberly Y. Perez and Robert Freeze (appellants), filed an appeal of the Notice and Order to Abate.
- On April 27, 2023, the Clerk of the Board sent the appellants and the appellants' representative a notice of the appeal hearing. The notice was also posted at the property. The notice gave the appellants notice of the date, time and location of the appeal hearing.
- The appeal contends that the conditions at the property do not constitute a nuisance. The chronology of events, photographic evidence and description of observations by County staff (attached) demonstrate that the conditions on the property violate the County Ordinance Code and State law. Additionally, the Sheriff's Office has responded to numerous complaints of criminal and non-criminal activity at the property. (See attached Sheriff Call for Service Log to the property.) And the Contra Costa County Fire Protection District has responded to reports of fires at the property. Evidence of fire damage can still be observed on the property today and contributes to the unsafe conditions on the property. On April 26, 2023, County staff received a notice from the Contra Costa County Fire Protection District of additional Fire Code violations at the property, confirming County staff's observations. (See attached CCCFPD Violation Notice and accompanying pictures.) Collectively, the unsanitary and unsafe living conditions, criminal activity, and fires on the property represent a significant threat to the health and safety of the occupants of the property and the surrounding community.
- The appeal also contends that the property owners received emergency rental assistance from the State for tenants on the property, including the appellants. Even if verified, such assistance does not preclude the County from abating the code violations on the property.
In response to the COVID-19 epidemic, the federal government established an emergency rental assistance program through the Consolidated Appropriations Act and the American Rescue Plan Act and made funds available for rental and utility assistance. The State established a statewide coordinating Emergency Rental Assistance Program ("ERAP"), which allocated the federal funds to participating cities and counties. Contra Costa County participated in the State's ERAP to assist County residents, landlords, and utility providers.
Both federal and State programs included tenant protections, but those protections were limited and did not prohibit code enforcement by a local land use agency. The federal statues authorizing the assistance authorizing the assistance program required the recipients of federal assistance funds, such as the State, to prohibit landlords from evicting tenants from nonpayment of rent with respect to the period covered by the assistance. The U.S. Treasury, in implementation of the program encouraged recipients to extend the prohibition of landlord evictions for up to 90 days following the period covered by rental assistance. In conjunction with the State ERAP, and to meet these federal program requirements, California passed several legislative bills (SB 91, AB 832, and AB2179) providing certain tenant protections from landlord evictions based on unpaid rent due to impacts from the COVID-19 epidemic.
The State program has concluded, and all available funds have been distributed. Applications for assistance were no longer accepted as of March 30, 2022. Similarly, the State COVID-19 eviction restrictions expired June 30, 2022. Neither the federal nor State regulations providing for rental assistance prevent the County from exercising its authority to enforce violations of its ordinance code, particularly those related to health and safety. Indeed, the tenant protections from landlord evictions do not prevent the County's enforcement of State and County health and safety standards or the County's building code. In any event, the ERAP and associated tenant protections have expired and are no longer in effect. Accordingly, any assertion of tenant protections by the appellants is a civil matter between the appellants and the property owner.
- The appeal also contends that electric services at the property "were terminated at the initiative and direction of the County." This assertion is false and without any factual basis. The County does not provide electrical services to the property, and the County had no involvement in the termination of electrical power to the property. Although not directly stated, the implication of appellants' contention is that the County is somehow responsible for the code violations on the property related to the lack of electrical power. This argument is without merit and lacks any factual basis. The property owner, not the County, is responsible for the code violations and the property related to the lack of electrical power.
- The appeal also contends that "appropriate measures have not been undertaken to investigate or ensure compliance with the Americans with Disabilities Act and other statutes." Neither federal nor State law prohibits the County from abating the type of code violations present on the subject property, and the County is not required to accommodate the violations through non-enforcement.
The federal Americans with Disabilities Act, Fair Housing Act, and Rehabilitation Act of 1973, and the California Fair Employment and Housing Act ("FEHA") (collectively, "the Acts") prohibit discrimination on the basis of disability. Discrimination under the Acts include intentional discrimination (disparate treatment), disparate impact discrimination, and failure to make a reasonable accommodation. Each Act, and case law interpreting and applying that Act, defines what constitutes unlawful discrimination under the Act. The FEHA specifically states that it does not affect the nondiscriminatory enforcement of state and local public nuisance laws that do not otherwise conflict with FEHA.
The appellants do not allege intentional discrimination. In fact, staff have not been made aware of any alleged disability except as generally referenced in the appeal letters. The appellants also do not allege that the proposed actions present a disparate impact. Disparate impacts occur when outwardly neutral practices result in significantly adverse or disproportionate impacts on persons with a disability. Here, the enforcement of zoning regulations and health and safety standards apply to all properties and persons equally. In particular, the code requirements related to electrical connections, water supply, sewer services, and safe and sanitary living conditions must be applied to all occupancies to preserve public health and safety. Additionally, there is no evidence that the prohibition on human habitation of trailers, RVs, and boats except as legally permitted or the prohibition on junkyard conditions disproportionately impact persons with disabilities. Thus, the Acts do not prohibit the County from abating the type of code violations present on the property.
The appellants also have not requested an accommodation under the Acts. Each of the Acts articulate an opportunity to seek reasonable accommodations from zoning and regulations affecting housing. Under the Acts, a local agency may not refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. The requested accommodation must be reasonable and necessary to provide the disabled person an equal opportunity to enjoy the housing of their choice. A requested accommodation is not required if it would pose a direct threat to the health or safety of other individuals or result in substantial physical damage to the property of others.
A request for accommodation has not been made to staff. But even if a request had been submitted, the violations persisting on the subject property are not those that could be reasonably accommodated. Enforcing health and safety standards, including code compliant utility connections and safe and sanitary living conditions, is eminently reasonable. Non-enforcement of such standards would fundamentally alter the County's purpose in public protection and ensuring safe occupancies. In addition to posing health and safety risks to the individuals living on site, the violations pose significant health and safety risks to the residents and occupants of surrounding properties. Staff is aware of past fires occurring on the property as a result of the nonconforming wiring and unpermitted electrical systems used to support the ongoing habitation of RVs, boats and trailers at the site and the persisting code violation poses a continued fire risk on the subject property and to the surrounding community. Additionally, the lack of domestic water supply service and sewage systems to the property have resulted in the improper disposal of waste on-site presenting significant health and safety risks to the entire community. For these and other reasons, allowing any of the existing code violations to continue is not a reasonable accommodation required by the Acts.
- Contra Costa Health's CORE (Coordinated Outreach Referral, Engagement) team has made site visits to the property on March 3rd, March 8th, March 13th, March 16th, March 27th, April 11th, April 25th, and May 2nd to offer temporary housing assistance and other forms of assistance to occupants of the property. Of the 20-30 individuals estimated to be currently occupying the property, 22 individuals have received some form of assistance from the CORE team. These services include emergency supplies and meals, shelter placement, mobile health care services, housing referrals, and substance abuse treatment referrals. Efforts are ongoing to place interested individuals in temporary housing arrangements. Shelter beds are available to all occupants of the property who express interest, and additional support services are available to assist in the transition to more permanent housing.
CHILDREN'S IMPACT STATEMENT:
N/A
CLERK'S ADDENDUM
Speaerks: Monique Dorland, Bay Area Legal Aid; Kimberly Perez, owner; Alex Wagner, owner; Residents: Scott Benedict, Dawn Santiago, Tia Darling, Al Jackson, Darcy Rose, Austin Whitfield; Terry Sloat, Steve March; Robbie Powelson; Mark Whitlock; Caller 1; Liz Ritchie.