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12 - TRASH CANS STORED IN ALLEYSItem 12 COS WESA SAjV7AR,Y [�ISTRiC7 Memorandum To: Board of Directors ... an Independent SpeciafDistrict Via: Scott Carroll, General Manage From: Javier Ochiqui, Management Analyst Date: August 20, 2012 Subject: Trash Cans Stored in Alleys Summary On June 19, 2012, the Operations Committee directed staff to look into the issue of residents leaving their trash cans in the alleys because this may conflict with the District's Operations Code Section 7.01.080, Removal of Trash Containers, which states that, "Residential trash containers shall be removed ... out of view from the street." The issue is whether or not the Board of Directors considers alleys to be City streets and if so, what can be done for homes with alley's that cannot place their trash containers out of public view. CMSD staff contacted the City of Costa Mesa and the City indicated that alleys are indeed City right -of -ways and should be considered as a street. City Municipal Code Section 20 -2 — Definitions, states "Street means a public street, drive, right -of -way, avenue, highway, place, alley, land, court, or way." However, the City also stated that their code does not have a provision for enforcing visible trash cans from City streets and that it was the responsibility of the CMSD to enforce. Staff Recommendation That the Board of Directors make a decision as to whether or not Operations Code Section 7.01.080 applies to alleys. Protecting our community's fieaft( and tfie environment by providing sofidwaste andsewer coffection services. www. cnudca.gov Board of Directors August 20, 2012 Paae 2 of 6 Analysis There are 21,565 residential homes in the City of Costa Mesa. City engineers estimate that there are approximately 129 alleys in the City of Costa Mesa and about 2,150 homes with alleys. That means that roughly 10 percent of the homes in Costa Mesa have alleys. Operations Code Section 7.01.080 was adopted on August 14, 1997. There is no staff report found in the archives that will provide more details regarding the intent for adopting this ordinance and the minutes of the Board meeting do not give any further information regarding this issue. Staff assumes the intent for adopting the ordinance is to keep neighborhoods beautified by making sure trash cans are stored out of public view (Please read District Counsel memorandum dated August 2, 2012 regarding CMSD Code Interpretation). Residents that have alleys behind their homes have been storing their trash cans in the alleys long before the 1997 ordinance was adopted by the Board of Directors. After the ordinance was adopted, the District's position regarding alleys is that unlike city streets, alleys are not considered public thoroughfares that are used by the general public to arrive at their destination. The alleys are behind homes and used by homeowners to access their garages and homes. When two neighbors have disputes regarding the locations of trash cans, the District's position is that this would be a civil matter (similar to when a private property tree branch encroaches on another private property) and should be resolved by the two neighbors. Changing the District's position to treat alleys like a public street and begin enforcing the ordinance will catch residents off guard and could generate some hostility among residents towards the District. Furthermore, enforcing the ordinance on 2,150 homes will be extremely time consuming and costly. The District's code enforcement officer is a part-time employee and by having him enforce the ordinance on 2,150 homes would require him to work his entire shift. He would not be able to enforce other District codes such as scavenging, graffiti on trash cans, illegal dumping, nor can he assist the City in reporting abandon shopping carts and graffiti on public and private property. In addition, the City cannot provide code enforcement assistance because of staff reduction levels. In 2009, the City had 6 full -time and 3 part-time code enforcement officers. Today, they have 4 full -time and 2 part-time code enforcement officers. If the Board prefers to immediately enforce the ordinance by issuing citations, then staff recommends hiring CR &R for the service at $39,000 and will result in the need to amend the existing contract. CR &R's proposal is provided in this report in Attachment B. Staff has concerns that hundreds of citations will be issued causing a substantial increase in the number of public hearings to contest the citations. The General Manager is currently the hearing officer for public hearings. It is anticipated that the Board of Directors August 20, 2012 Paae 3 of 6 General Manager will be spending many hours in public hearings, thus, inhibiting his ability to execute regular day -to -day duties of effectively managing the organization. It is also anticipated that the front office staff will be inundated with phone calls and complaints regarding the citations and /or concerns about limited space to store trash cans out of public view. Another concern is the number of home renters. While the number of homes in alleyways being rented is unknown, staff believes renters will ignore enforcement efforts, which will cause staff to contact property owners directly. Now staff will have to be working with a 3rd party (property owner) to obtain compliance and that can be difficult especially if the property owner resides out of county or state. If the Board believes that Operations Code Section 7.01.080 does apply to alleys then the ordinance should be revised to reflect the Board's position. After the revised ordinance is adopted, staff anticipates further discussion and coordination with City staff will be necessary as this may impact their organization as well. Staff also believes there is a better way of using staff time to enforce the code while at the same time enhancing the District's image and relationship with alley residents. Staff's proposed plan is as follows: 1. Staff recommends mailing a joint notice, with the City, informing residents of CMSD's code violation, the City's safety and blight concerns, and to seek cooperation from residents to self- enforce and comply with the notice. 2. After the notices have been mailed and received by residents, staff anticipates an increase in telephone calls and emails from concerned residents regarding limited space to store their trash cans out of public view. Staff recommends these residents schedule appointments with the District code enforcement officer and /or the management analyst to work together on developing a solution. This has worked well with considerable success in other neighborhoods that had trash cans stored in public view. 3. On July 20, 2012, the Operations Committee discussed placing barricade type signage in the alleys warning residents of illegally storing trash cans and removing recyclable materials for said cans (scavenging). Staff does not recommend erecting these types of signs because they will constantly fall down and run the risk of being vandalized and /or stolen. Staff recommends erecting permanent pole signage in the alleyways. Installing permanent signage will cost approximately, $49,000 and would require coordination and approval by the City. 4. After six months of implementing this plan staff will report back to the Board of Directors on the progress made. Staff will bring back the compliance ratio, the number of meetings with residents and status of installing permanent signs. If significant progress is made in the past six months, then staff will recommend continuing the plan for an additional six months. If the plan is meeting less than expected, the Board may consider enforcing the ordinance by issuing warning notices followed by issuing citations for noncompliant residents. Board of Directors August 20, 2012 Page 4 of 6 This plan will not be implemented without first obtaining additional feedback from City officials whereas revisions of the plan may be required. CR &R's Proposal CR &R has submitted a proposal (Attachment B) to provide enforcement of CMSD Operations Code Section 7.01.080. CR &R's cost would be $150.00 per day or $39,000 per year. The proposed process is as follows: • CR &R will provide one (1) employee and one (1) vehicle to patrol the District to audit trash containers. • The designated CR &R employee will carry both a digital camera and cellular phone. The phone will allow CR &R to communicate directly with District staff while in the field, and the camera will be used for documentation of unusual issues. • CR &R employee will issue yellow warning notices to first time offenders for trash cans stored in public view. • CR &R employee will issue red warning notices to residents violating the ordinance a second time within 12 months after receiving the yellow warning notice. • After receiving red warning notices the District's code enforcement officer will visit the locations in the alleys and issue a citation for $75.00 for the third subsequent offense. A citation for $500.00 will be issued for the fourth offense and a $950.00 fine for the fifth offense within a 12 month period. • CR &R employee will attend public hearings as a witness for the District regarding warning notices issued to residents for storing trash cans in public view. • CR &R employee will turn in all tags and paperwork to the District office daily. • Projected working hours and schedule as presented by staff will be as follows: Tuesday through Saturday, four (4) hours per day, 20 hours per week. • An estimated 40 to 50 miles will be patrolled per day. • Expenditures for this program are projected at a cost of $150.00 per day or $39,000 per year. Costa Mesa Sanitary District will be responsible for the purchase and supply of notices to be placed on containers. Board of Directors August 20, 2012 Paae 5 of 6 If the Board recommends revising Operations Code Section 7.01.080 to enforce trash cans in the alleys, then the original agreement with CR &R will have to be amended. Strategic Plan Element & Goal This item complies with the objective and strategy of Strategic Element 2.0, Solid Waste, which states: "Objective: Our objective is to manage the collection and recycling of residential trash in the most economical and environmentally friendly way." "Strategy: We will do this by looking for ways to improve efficiencies, achieve high customer satisfaction, and considering prudent new recycling methods." Legal Review Attachment A to this report is a memorandum from District Council where he believes the District's intent for restricting trash cans on streets differs in intent by which the City defines streets to include alleys. Financial Review To mail 2,150 notices will cost $967.50 in postage and an additional $178.90 for paper and envelopes. The cost to purchase and install approximately 258 permanent signage, (pole & sign) in the alleys will cost about $49,000. Currently, the District has 6 booklets for yellow and red warning notices (120 notices in each booklet totaling 720 notices). Additional notices will have to be printed. Staff estimates an additional 50 booklets of yellow and red notices (25 each) will have to be printed at a total cost of $9,300. Currently, the District has five citation booklets for a total of 247 citations. Additional citation booklets may need to be printed. The cost to have CR &R assist with enforcement procedures is $39,000 a year. Total cost to implement the plan is $98,446.40 For Fiscal Year 2012 -2013, there are no funds budgeted for the plan mentioned above or for the enforcement program. Funds would require allocation from the Solid Waste Fund Balance, with an estimated Unreserved Fund Balance of $4.7 million as of June 30, 2012. Board of Directors August 20, 2012 Paae 6 of 6 Under the enforcement program, there is a potential revenue source from the citations projected to be issued. If ten percent of households in the alleys receive citations for the third offense ($75), it would generate $16,125 in revenues. The net cost to the program is estimated at $82,321.40. Committee Recommendation On July 20, 2012, the Operations Committee reviewed and discussed possible signage and enforcement procedures for scavenging and storing trash cans in the alleys. The Committee believed that each Board member would provide valuable input regarding this issue and suggested placement of this item on the August regular Board of Directors meeting agenda. Public Notice Process Copies of this report are on file and will be included with the entire agenda packet for the August 20, 2012 Board of Directors meeting at District Headquarters and on District website. Alternative Actions 1. Do not amend Operations Code Section 7.01.080 to apply to alleys (status quo). 2. Do not approve staff's plan, amend Operations Code Section 7.01.080 and direct staff to immediately enforce the code in the alleys. 3. After revising Operations Code Section 7.01.080, approve amending the original contract with CR &R to assist in the enforcement of the code. Reviewed by: Teresa Gonzalez Accounting Manager Attachments A: Memorandum from District Counsel, dated August 2, 2012 and December 17, 2002 B: CR &R's Proposal to Enforce CMSD's Operations Code Section 7.01.080 Attachment A LAW OFFICES OF HARPER & BURNS LLP A LRdRI'.D HABU RY PARTN1:RSDR' INCLUDING A PROPT•,SSIONAI, CORPCMATION JOHN R. HARPER* ALAN R. BURNS COLIN R. BURNS Of Counsel JUDI CURTIN• MICHAEL MONTGOMERY* •A PROFESSIONAL CORPORATION To: General Manager From: District Counsel Date: August 2, 2012 453 SOUTH GLASSELL STREET ORANGE. CALIFORNIA 92866 TELEPHONE (714) 771 -7728 FACSIMILE (714) 744.3350 Re: Trash Containers in the Alley - CMSD Operations Code Interpretation Alan R. Bums arbumseaa harpe rbums. com We reviewed a draft agenda staff report pertaining to trash containers in the alleys of the District. We believe the preliminary premise of the report is incorrect, specifically that the City's definition of "street" is controlling. For background, a statute or ordinance is to be interpreted by using the plain meaning of the words to ascertain the intent of the legislative body enacting the law. That legislative body is the Board of Directors. The intent in restricting trash container placement for District purposes is a different intent than was probably employed by the Costa Mesa City Council in defining street to include alley. THE RULE OF STATUTORY INTERPRETATION The plain meaning controls unless a statute is ambiguous. If ambiguous, we must ascertain the legislative intent. PLAIN MEANING The first place to look to interpret any statute is to its wording. The plain meaning of a statue controls. Here, the statute is an ordinance which states that containers shall be removed from the curb and stored in the "rear or side yard of the property so as to be out of view from the street." The CMSD Operations Code does not define "street." For undefined terms, we only use another code's definition if the statutes were in pari materia (to be read together) such as the Uniform Plumbing Code. (See CMSD Oper. Code § 6.01.015.). Since we have neither incorporated the Costa Mesa Municipal Code nor the Vehicle Code into our definitions, those definitions are not controlling. If the terms are not clear on their face, reference to the dictionary might be appropriate. Although the dictionary defines terms differently, a street is generally a public way with buildings on either side while an alley is a narrow passageway behind or between buildings. (The Vehicle Code defines these terms somewhat similarly. See Veh. Code §§ 110, 590, 591: "an alley is a roadway not exceeding 25' in width for access to buildings from the side or rear entrance to property. ") Costa Mesa Sanitary District Trash Containers in the Alley - CMSD Operations Code Interpretation August 2, 2012 Page 2 Since it is still not resolved what is meant by "alley," reference must be made to the rules for determining legislative intent. THE LEGISLATIVE INTENT Where the plain meaning does not resolve the issue, the next step is to look at legislative intent. The purpose of statutory interpretation is to ascertain the legislative intent. There is no record as to what the Board intended in choosing the word "street," but it can be surmised that it was probably to enhance aesthetics. It could be argued that this meant that trash containers should be promptly removed from the front of homes so that those homes would have "street appeal" to use the realtor term. On the other hand, it is possible that the Board also desired to have the alleys cleared for aesthetic reasons, but I would have supposed that if that was the purpose that the ordinance would have said "streets or alleys." PRIOR CONSTRUCTION Another rule of statutory construction is to look to an agency's prior construction. If the District has not enforced the rule in alleys for the past 20 or so years that the law has been in the books, that tends to suggest that the law was not meant to apply to alleys. PROVING THE CASE Although I assume we would pursue the lesser burden of proof in the civil citation system, we still have to prove by a preponderance of the evidence that the trash container was visible from the "street." If I were defending that action (as an attorney or homeowner) I would simply assert that the trash cans were not visible from a street and introduce a street map showing no street name for the alley. That should be enough to win as judges tend to resolve all doubts in favor of defendants. On the other hand, if these "alleys" have street names, that would be evidence that we can enforce the ordinance as written. CONCLUSION We have not enforced this ordinance in alleys for over 20 years (to my knowledge). If the Board intends for the ordinance to apply to alleys, it should make it clear, and we should revise our ordinance to say so. Since we have not enforced the law for 20 years, another 60 days should not be an unreasonable amount of time to wait to make sure a "person of average intelligence knows what is prohibited." I found a 2002 memo I did on this subject which came to the same conclusion (attached). d-z� Alan R. Burns District Counsel Harper & Bums LLP 1 453 South Glassell Street, Orange, California 92866 1 Telephone (714) 771 -7728 1 Facsimile (714) 744 -3350 1 www.harperbtims.com 4 1 LAW OITICF.S OF HARPER & BURNS LLP A I rrm-n uAnuin, PARTzitsi RP Mf7.1,UNK; A PROFE5SR)FAI, CORPORA7I(IN ALAN R. Rl1RNS JOHN R. HARPER' OF COUNSEL JUDI A. CCRTI \' MICHAE1.MONTGOMPRY' 'A PROMMIONAL CORPORA110N TO: District Manager/Engineer FROM: District Counsel DATE: December 17, 2002 RE: Definition of "Alley" 451 S GLASSEI.I. STREET ORANGE,CALIFORNIA 92966 RIVERSIDE -LS N- BERNARI�ILiL[1_. (000) 674 -0699 (7111) 771 -77129 FAX (714) 744 -33SO Rob, in reviewing your question, it is my opinion that the definition of "street" in the Costa Mesa Sanitary District ordinance does not include "alley ", although the Costa Mesa Municipal Code so defines the term. My reasoning is as follows. There is no reason to read the District Operations Code and the City Municipal Code in pari materia (construed together). The laws were enacted by two different legislative bodies and there is no attempt to incorporate the City Municipal Code definitions into the District Operations Code. Furthermore, the Vehicle Code provides that an "alley" is any highway having a roadway not exceeding 25 feet in width which is used primarily for access to rear or side entrances of abutting property. [Vehicle Code Section 110] However, it is arguable that since a "street" under the Vehicle Code encompasses a highway, that an alley is therefore a street. I believe the better interpretation is that if we mean alley, we should say "alley." While there may be reasons for including �alleyl within` \. reasons vehicle rules of the road, our ordinance has more of an aesthetic purpose. There is, in my mind, a big difference between prohibiting persons from having things visible from the street, and from having things visible from an alley. Where there is a street, that normally will be the front yard, while alleys are generally to the rear. Furthermore, it was my recollection that we specifically deleted alleys from the draft ordinance before we adopted it. This may have been done at the staff level (I may have done it on my own in doing the draft), so if I should have let the Board decide whether the cans should be out of view in alleys, that was an option I should have provided. ri U Costa Mesa Sanitary District Alley Definition December 17, 2002 Page 2 If you want to pursue this, I suggest we put it to the Board. Before we do, perhaps we should have a discussion on the situation in Costa Mesa and maybe some pictures of the problem as the justification for an enlargement of the prohibition. QL Alan R. Burns District Counsel Attachment B Residential Container Tagging Notification - Costa Mesa Sanitary District The Costa Mesa Sanitary District and CR &R Incorporated have discussed a combined program to enforce District codes pertaining to storage and removal of trash containers in public view. The aim of the program is to educate residents and present opportunities for sustained compliance. Similar programs have achieved success in decreasing the number of containers left curbside in other Orange County municipalities serviced by CR &R. Title 7, Chapter 7.01 of the Costa Mesa Sanitary District Operations Code addresses trash regulations and purposes for said regulations: Section 7.01.010. Purpose. ...A further purpose is to provide for the public health and welfare and sanitary streets by requiring the waste containers to be stored on the property out of view except for reasonable periods of time for collection. (Ord. 27, 1997) Section 7.01.080. Removal of Trash Containers. Residential trash containers shall be removed from the curb by midnight the day of trash collection and shall be stored in the rear or side yard of the property so as to be out of view from the street. Such containers shall be placed behind the curb for collection no earlier than 5:00 p.m. on the evening before the scheduled collection day. (Ord. 27, 1997) In order to enhance existing enforcement efforts of the Costa Mesa Sanitary District regarding proper trash container storage, CR &R proposes the following plan: • CR &R will provide one (1) employee and one (1) vehicle to patrol the District to audit trash containers. • The designated CR &R employee will carry both a digital camera and cellular phone. The phone will allow CR &R to communicate directly with District staff while in the field, and the camera will be used for documentation of unusual issues. • CR &R employee will issue yellow warning notices to first time offenders for trash cans stored in public view. • CR &R employee will issue red warning notices to residents violating the ordinance a second time within 12 months after receiving the yellow warning notice. • After receiving red warning notices the District's code enforcement officer will visit the locations in the alleys and issue a citation for $75.00 for the third subsequent offense. A citation for $500.00 will be issued for the fourth offense and a $950.00 fine for the fifth offense within a 12 month period. • CR &R employee will attend public hearings as a witness for the District regarding warning notices issued to residents for storing trash cans in public view. • CR &R employee will turn in all tags and paperwork to the District office daily. • Projected working hours and schedule as presented by staff will be as follows: Tuesday through Saturday, four (4) hours per day, 20 hours per week. Attachment B • An estimated 40 to 50 miles will be patrolled per day. • Expenditures for this program would be approximately $150.00 per day or $39,000 per year. Costa Mesa Sanitary District will be responsible for the purchase and supply of tags to be placed on containers. CR &R will assist in the production for these tags. Thank you in advance for allowing CR &R the opportunity to better the Costa Mesa Sanitary District community. The District is more than welcome to alter the parameters of this proposal. As always, it's a pleasure being of service to the Costa Mesa Sanitary District. Respectfully, Dean A. Ruffridge, Senior Vice President 2