EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
1 ORDER
I. INTRODUCTION
I was selected to serve as a hearing officer with respect to a dispute between the City of Camarillo (“Camarillo”) and the residents of 651 Corte Castano, CA 93010 (the “Residence”), Phillip Wayne Hall, Sr. and Connie S. Hall (the “Halls”). The Residence is located at the corner of Corte Castano (to the south) and Avenida Del Manzano (to the east). At issue, here, is whether changes at or near the Residence completed in March 2022 pose a public nuisance under Camarillo’s laws.
A. Administrative Citation Procedure
Camarillo Municipal Code Section 1.12.080 provides that “any condition caused or permitted to exist in violation of [the Municipal Code] is deemed a public nuisance and may be abated as such by the city in any manner provided by law or in this code for the abatement of a nuisance.” CMC Section 1.12.080. Under Municipal Code Section 1.12.090 “[u]pon a finding by a city official vested with the authority to enforce the provisions of this
code that a violation exists,
such official may issue an administrative citation…” CMC Section 1.12.090. A citee has the option under the Municipal Code to request an in
itial administrative review pursuant to Code
Sections 1.13.120 and 1.13.130. CMC Section 1.12.090.
A citee dissatisfied with the conclusions of an initial administrative review, “may contest that citation by requesting an administrative hearing.” CMC Section 1.13.140. The City Manager must then designate a hearing officer for the administrative citation hearing. CMC Section
1.13.160. Further, under Municipal Code Section 1.13.180(A), the “citee and enforcement officer have the opportunity [at the administrative hearing] to testify and present additional
2 evidence concerning the administrative citation. Evidence may include, without limitation, witness testimony, documents or other similar evidence.” And, “[e]vidence sought to be introduced is not limited to any legal rules of evidence except for the rule that it be relevant and material to the issues of whether the violation in the citation occurred and whether the citee was responsible for the violation.” CMC Section 1.13.180(A).
Finally, under Municipal Code Section 1.13.190(A), the “hearing officer must issue a written decision to uphold or set aside the administrative citation and present the reasons for that decision.” CMC Section 1.13.190(A).
B. Nuisance Abatement Procedure
Chapter 9.17 of the Municipal Code governs the nuisance abatement procedure. CMC Section
9.17.010 provides that “[n]othing contained in this chapter is intended to, nor shall it, preclude the city from pursuing any other available civil or criminal remedies concurrently or in addition to the proceedings established by this chapter to enforce this code.” CMC Section 9.17.010.
Notice of a hearing for nuisance abatement is governed by Municipal Code Section 9.17.050(B), which requires that the owner of the property receive notice by mail “at least ten days before the hearing date.” CMC Section 9.17.050(B). Municipal Code Section 9.17.060(A) provides that the hearing procedure requires the hearing officer to conduct a hearing “to determine based upon the evidence presented whether a public nuisance exists on the subject property.” Moreover, at the hearing, “the hearing officer shall accept reliable evidence from any person if such evidence bears on the issue of whether a public nuisance exists on the subject property.” CMC Section
9.17.060(A).
3 At the hearing, I sustained (and overruled) evidentiary objections. Where I sustained objections, I did so on the basis that I believed the questions sought to elicit evidence that was not relevant and/or not material. I also sustained objections where I believed counsel was presenting an argument instead of examining the witness. Regarding the evidence, I reviewed all the submissions by the parties and considered the testimony, documents and argument presented by both sides. This ruling is my written decision on the issue presented and a statement of the reasons for that decision.
II. FACTUAL AND PROCEDURAL BACKGROUND
Camarillo is a municipality located in Ventura, County. According to the 2020 census, its population is 70,741 persons. The City Hall is located at 601 Carmen, Drive, Camarillo, California 93010, which is where the administrative hearing in this matter was held on August 31, 2023. Mr. Hall, Sr. was unable to testify at the August 31 hearing, so I scheduled a continued hearing for November 1, 2023. Prior to the November 1, 2023 hearing, the parties submitted briefing in support of their respective positions.
The following are my factual findings with respect to this matter. There was no testimony presented at the November 1 session, so all references to testimony below are with respect to the August 31 session.
At an unspecified date, Mr. Hall, Sr.
1 visited Camarillo City Hall and inquired about constructing a wall on the side of the Residence facing Avenida Del Manzano. Mr. Hall, Sr.’s declaration states with reference to the visits, that he spoke three times to City employee Mitchell Morrison 1 The Halls were represented in this matter by their son, Philip Wayne Hall, Jr. Camarillo was represented by its outside counsel Burke Williams & Sorensen LLP serving as its City Attorney. 4 and nobody else. The declaration states further that, “[a]fter the first visit, I returned home and carefully measured off the wall according to the information that he provided. Satisfied with the placement, I returned with a drawing of what we planned to do and again spoke with Mitchell Morrison again who reviewed my drawing and said I was good to go as the wall would not require any permits.” Decl. Hall Sr., Para. 4. Senior Planner Paul McClaren testified, on the other hand, that he spoke to Mr. Hall, Sr. regarding his potentially building a fence on the property. Mr. McClaren testified that a fence was permitted so long as it was on the property.
Further, Mr. McClaren testified that at a different point in their discussion, but on the same day, he informed Mr. Hall, Sr. that the City has a right of way covering the 10 feet from the road (here, Avenida) that includes the “parkway.” I find that the City did not formally issue a zone clearance or encroachment permit to allow construction in the City’s right of way.
City Code Compliance Officer D.J. Sotelo testified that on March 11, 2022, he observed construction at the Residence that triggered further investigation. First, he observed that a driveway cutout (“Cutout”) allowing access to the Residence from Avenida del Manzano was under construction. He also observed a wall under construction running parallel to Avenida del Manzano. Three days later, March 14, 2022, Officer Sotelo observed the Cutout had been completed. Officer Sotelo testified that he did a measurement and determined the wall was located approximately 7 feet from the road (Avenida) and two feet from the sidewalk. The wall (“Wall”) was approximately six feet in height.
Based on his observations, Officer Sotelo issues two notices of violations on March 25, 2022 and April 22, 2022, respectively. These notices stated conditions at the Residence violated Municipal Code Section 13.04.035(D) based on the Cutout and Municipal Code Section 13.04.235 based on the Wall. The record reflects that the Residents did not modify their Residence in response to 5 these notices and, in fact, the Cutout and Wall (collectively “Construction”) remain in place at or near the Residence. On May 16, 2022, Officer Sotelo caused a letter to be sent to Mr. Hall, Sr. attaching an administrative citation for violations of Municipal Code Sections 13.04.235 and
13.04.035(D). Officer Sotelo caused a second citation to be sent to the Halls on May 26, 2022, citing them for violating Municipal Code Sections 13.04.235 and 13.04.035(D). The Residents requested, pursuant to Municipal Code Sections 1.13.120 and 1.13.130, that the Director conduct an Initial Administrative Review. Director Joe Vacca caused to be sent a letter dated June 10, 2022 to the Halls that concluded the citation was properly issued. The letter observed the construction violated the Municipal Code and the Wall “was built encroaching on the City’s right of way and blocking the sight lines for an uncontrolled intersection.” On June 27, 2022, in response to the citation, the Residents submitted to the City an Administrative Hearing Request Form. They did so again on July 8, 2022.
At the hearing, Mr. McClaren testified that the Residence is located within the Residential Plan Development-4U zone as provided by the Municipal Code. He further testified that in 1972, owners of a large piece of land that comprised the Residence and much more, sought to create a subdivision for residential development. An engineer or surveyor then created a tract map that was embodied as Tract Map 23121 and it was recorded with Ventura County in July 1973. The Tract Map details the individual plots of land and the rights of way within the development. The Residence is shown in Tract Map 2311 as plot number 35. This particular development, Mr.
McClaren testified, has an “inverse parkway,” meaning the sidewalk abuts the road and the parkway falls between the sidewalk and the Residence’s property line. Further, Tract Map 2311 shows, according to the testimony, the street to be 60 feet from property line to property line.
And, that comprises 40 feet of roadway, 5 feet of sidewalk on each side of the roadway, and 5 6 feet of parkway on each side of the roadway, totaling 60 feet. Mr. McClaren also testified that the tax assessor map likewise shows that the Residence does not extend into the 5-foot parkway because both Corte Castano and Avenida are shown as 60 feet wide. That means the Residents’ property tax does not include the parkway or any part of the 60 foot right of way.
In the Halls’ case, they called their neighbors as witnesses and presented declarations from other neighbors. Those witnesses testified, in general, that they believed the Wall fits the neighborhood aesthetic and does not pose a danger to the neighborhood. There was also testimony presented that due to a rehabilitation home in the neighborhood, there exists a security concern and the Wall helps address that, particularly in light of the Halls’ advanced age.
The City Attorney mail served to the Halls a notice of nuisance abatement on August 18, 2023.
The City had previously noticed the hearing for May 3, 2023, but it agreed to postpone the hearing at the Residents’ request. The alleged violations constituting a nuisance, pursuant to the notice were: a) the Cutout, an alleged violation of Municipal Code Section 13.04.035(D); b) the Wall, allegedly constructed on the City’s right of way, an alleged violation of Municipal Code Section 13.04.235; and c) obstruction of visibility at an intersection, an alleged violation of Municipal Code Section 19.38.050(A). An agenda of the hearing was posted by the City on or about August 30, and the hearing proceeded on August 31.
On August 29, 2023, two days before the hearing, the Halls filed with the City a permit request for encroachment on the City’s right-of-way with respect to the Cutout and the Wall. The Halls reserved their position in the application that the Cutout and Wall do not fall within the City’s right-of-way. The City had not acted on that permit request as of the hearing, and I believe that continues to be the case.
7 At the start of the hearing, I explained the procedure for how it would proceed. The Halls requested at the outset that the hearing be continued because they had not been provided enough time to prepare. I denied that request. The Halls had been aware of this matter for over one year, there was already one continuance of the hearing from May to August, and the notice for the August 31 hearing complied with the Municipal Code notice requirement. At approximately the 2 hour 14 minute point, during the Halls’ cross-examination of the City’s third and final witness Jason Samonte, there was a brief disturbance in the audience, immediately afterwards Mr. Hall, Sr. left the auditorium. After that, the testimony quickly resumed. Once Mr. Samonte’s testimony concluded, at approximately the 2 hour 30 minute point, I believe I was informed that Mr. Hall, Sr. had gone to the hospital for a serious heart condition. The Halls did not request an adjournment of the hearing due to Mr. Hall, Sr.’s health emergency. I did schedule a continued session so that Mr. Hall, Sr. could testify. At that second session, on November 1, 2023, the Halls decided not to call Mr. Hall, Sr. as a witness.
III. LEGAL DISCUSSION
Although the May 2022 citations issued by Officer Sotello did not include violations for Municipal Code Section 19.38.050(A), I believe the issue presented is broader than what is charged in the citations. The issue presented here is whether the Wall and the Cutout constitute a public nuisance in violation of Municipal Code Sections 13.04.035(D), 13.04.235 and
19.38.050(A) as provided in the City’s notice of hearing for nuisance abatement. Municipal Code Section 13.04.235 vests the City with authority to remove “. . . any encroachment, lawful or unlawful, on a finding that the encroachment is detrimental to the public health, safety or welfare.” CMC Section 13.04.235.
8 Municipal Code Section 1.12.080 defines a “public nuisance” as follows: “. . .any condition caused or permitted to exist in violation of this code is deemed a publ ic nuisance and may be abated as such by the city in an y manner provided by law or in this code fo r the abatement of a nuisance.” CMC Section 1.12.080. Further, Municipal Code Section 9.12.020 is entitled “Maintenance of property—Public nuisance” and that section provides in relevant part, “[i]t is declared to be a public nuisance for the owner and/or occupant of any lot located in this city to maintain or permit the maintenance on any such lot . . . (F) Any building, use or structure which does not comply with all of the regulations and provisions of this code, including, but not limited to, the city’s official zoning ordinance, as it now exists, or as it may hereafter lawfully be amended or otherwise made applicable to such building, us e or structure.” CMC Section 9.12.020(F).
Accordingly, the question of first instance is whether the City ha s met its burden of establishing the Cutout and the Wall violate th e Municipal Code Sect ions 13.04.035(D) and
13.04.235 respectively. If they do, the next ques tion is whether the Re sidents have presented arguments to overcome such a finding.
A. Applicable Code Sections
As mentioned, the City asserts the Wall and the Cutout pose a public nuisance due to violations of Municipal Code Sections 13.04.035(D), 13.04.235 and 19.38.050(A). The Code provides that a violation of a provision of the Code may constitute the basis for a public nuisance finding.
That leads to the question of whether the construction at the Residence, i.e., the Wall and the Cutout, violate any of the Code Sections.
1. Municipal Code Sections 13.04.035(D) and 13.04.235
9 a. Prima Facie Analysis
Municipal Code Section 13.04.035(D) states that, “Every person except as otherwise provided in this chapter shall obtain a permit from the engineer before he: . . . (D) Places, constructs or repairs any curb, gutter, sidewalk, driveway, pavement, base course, retaining or garden wall, storm drain, culvert, pipe, conduit, cable or other work of similar nature in, over, along, across, or through any highway.” CMC Section 13.04.035(D).
Municipal Code Section 13.04.010 defines “highway,” to mean “any public highway, public street, public way or public place in the incorporated territory of the city, either owned by the city or dedicated to the public for the purpose of travel. ‘Highway’ includes any part of the entire width of a right-of-way, and above and below the same, whether or not such entire area is actually used for highway purposes.” CMC Section 13.04.010.
I find that the facts establish the City holds a 10-foot right of way running from Avenida Del Manzano to the Residence’s property line. I further find that the facts establish that the Wall and the Cutout were built within and continue to fall within that right-of-way and that no permit was obtained prior to construction of the Wall and the Cutout. Accordingly, I find the Wall and the Cutout violate Section 13.04.035(D).
Further, I find construction of the Wall violates Section 13.04.235 because it encroaches on the City’s right-of-way. Further, I find as explained more fully below, that the Wall obstructs the view of oncoming traffic traveling south on Avenida Del Manzano towards Corte Castano so as to create a potentially unsafe condition. In addition, a city planner testified that the preservation of the five-foot parkway serves the City’s general welfare by promoting a certain aesthetic and allowing for future development including, potentially, a bike lane. 10 b. The Residents’ Arguments
i. Vested Right or Estoppel
The Halls do not appear to dispute that the Wall and the Cutout fall within 10 feet of Avenida Del Manzano. They argue, rather, that 1) the existing Wall is further from Avenida Del Manzano than the fence that was erected during the original development (see e.g. Hall Sr. Decl. at ¶3); 2) other residences in the City have walls that are likewise within the City right-of-way; 3) a former City planning employee while employed with the City approved building the Wall at its present location; and 4) the Wall is not within the City’s right-of-way because the right-of-way should be measured from the edge of the actual residence, not the property line. They also contend the City has failed to establish a violation of Section 19.38.050(A) I understand the Halls’ arguments 1-3 to contend that they have a vested right to construct the Wall and the Cutout within the City’s right of way. In short, the Halls contend that the Wall and the Cutout were permitted or authorized by the City. Both parties cite Avco Community Developers v. South Coast Regional Commission, 17 Cal.3d 785 (1976). There, a developer commenced grading of a subdivision in Orange County within the coastal zone. The developer had obtained a permit to do the grading, but had not obtained a building permit. Under the local ordinance, the developer could not seek a building permit until after the grading was completed.
Id. at 790. While the grading was underway, the California Coastal Zone Conservation Act of 1972 was passed that required, as relevant here, a building permit from the Coastal Commission for development in the coastal zone. The Supreme Court concluded that despite the adverse effect to the developer due to the expense from grading the property, it possessed no vested right to build because it had not obtained a building permit in the first instance. Id. at 791 (“It has long been the rule in this state and in other jurisdictions that if a property owner has performed 11 substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit.”) Here, I find that at no time did the Halls obtain a permit from the City with respect to the Construction. I do not find that Mr. Morrison’s statements (even if true) constituted a duly-issue building permit by the City. Accordingly, the Halls’ have no vested right as relating to the Construction.
The Halls cite three other cases in support of their vested rights argument. Nelson v. City of Pasadena, 2003 WL 21513458 Nos. B153868, B157239 (July 3, 2003) pertains to whether homeowners could rely on a duly-issued building permit that was subsequently revoked. The Court sided with the homeowners and affirmed the trial court ruling that the city’s revocation of the permits was arbitrary. In San Clemente Estates v. City of San Clemente, 12 B.R. 209 (1981), the bankruptcy court found that the debtor had relied on the city issuing a use permit and final tract map for a development that created a vested right. Id. at 217. Kaufman & Broad Central Valley, Inc. v. City of Modesto, 25 Cal.App.4th 1577 (1994) concerned development fees assessed to a project after the tentative map was approved. There, the Court of Appeal concluded such post hoc fees were impermissible. Unlike the cases above, here, the City at no time issued any permit authorizing the Wall and the Cutout. The Halls proceeded with the construction without obtaining a duly-issued permit from the City.
In City of Long Beach v. Mansell, 3 Cal.3d 462 (1970), the Supreme Court considered when it is appropriate to apply estoppel to a public entity. Id. On this subject, the Halls cite cases pertaining public entities impinging on an easement right after it was granted to a property owner. “To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) 12 continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.” Main Street Plaza v. Cartwright & Main, LLC, 194 Cal.App.4th 1044, 1054 (2011). While the Halls contend a fence once stood in the parkway that was located even closer to the sidewalk than the wall, they have not established that such use was “continuous.” More specifically, I believe it is undisputed that immediately prior to the Wall being erected, there was no construction within the City’s 10-foot right-of-way between the Residence’s property line and Avenida del Manzano.
The Halls argue that the, “use of an express easement is limited to original creation.” (Halls’ Brief at pg. 15). An “express easement,” is created by deed grant or by other formal executive fiat. See e.g. Rye v. Tahoe Truckee Sierra Disposal Co., Inc., 222 Cal.App.4th 84, 91 (2013).
There is nothing in the record evidencing such a grant occurred with respect to the side yard.
Further, and in any of event, I do not find there are sufficient facts in the record that the fence that was built originally on the property caused the Halls to believe they were entitled to construct in the right-of-way. Likewise, with respect to Mr. Morrison’s statements, I believe there are insufficient facts to show Mr. Morrison gave approval of the construction on the terms in which it was constructed such that the City is estopped from enforcing its Code. There is nothing in writing, for instance to corroborate Mr. Hall, Sr.’s declaration that he presented an accurate and detailed “drawing” of the construction that Mr. Morrison in fact approved.2 Mr.
2 As mentioned in the text, Mr. Hall, Sr. was unable to testify at the August 31 hearing due to a medical emergency. I scheduled a subsequent continued hearing for November 1 to allow Mr.
Hall, Sr. to testify and to hear any closing argument. At the November 1 hearing, the Halls did not call Mr. Hall, Sr. to testify. The evidence presented to support estoppel concerning Mr.
Morrison’s statements is, therefore, extremely limited and lacking in detail. It is a “well- established proposition that an estoppel will not be applied against the government if to do so would effectively nullify ‘a strong rule of policy, adopted for the benefit of the public.’” City of Long Beach v. Mansell, 3 Cal.3d 462, 493 (1970). The City presented testimony on policies for maintaining parkways, i.e. the right-of-way alongside the public roads and of minimizing the risk presented by limited site distances. Thus, I further conclude that this evidence of ongoing policy is more than sufficient to overcome any estoppel argument with respect to Mr. Morrison actions. 13 Hall, Sr.’s declaration states that he showed Mr. Morrison a drawing, but that drawing was not attached to the declaration.
ii. Fourteenth Amendment Analysis
The Halls argue this nuisance abatement violates their Fourteen Amendment rights because they are being treated differently from others similarly situated. The United States Supreme Court has reasoned that a homeowner may be a class of one in an equal protection challenge, but to prevail in such an action, a plaintiff must establish they have “been intentionally treated differently from others similarly situated and that there is no rational basis for the different in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here, the City has presented reasons for its abatement action here, viz: 1) walls of a certain height can present a safety visibility issue when built on a corner posing a risk to pedestrians, particularly children and the elderly and 2) the City has an interest in preserving its parkway for aesthetic reasons to allow for potential future expansion. With respect to point #1, the City argues in its brief that the Wall violates Municipal Code Section 19.16.080(B) that prohibits walls in excess of three feet in the required cutoff area. (City Brief at pg. 6). Municipal Code Section 19.16.140(C)(4) states th at the City may grant exceptions and allow walls in the cutoff zone of up to eight feet, provided that such a wall is, “consistent with and not detrimental to the public health, safety or welfare.” CMC Section
19.16.140(C)(4). Whil e I do not believe Municipal Code Section 19.16.080(B) forms the basis for a separate finding for nuisance abatement (a s explained below), I do believe these sections demonstrate there is a rational basis for the City’s actions with respect to the Wall and the City has established the Wall presents a potential safety concern.
Moreover, I do not believe the Halls have presen ted persuasive evidence that other residents similarly situated have erected similar construction in the City’s right-of-way. Indeed, in Mr. 14 Hall, Sr.’s declaration part two, pages 3-4, it ap pears that the Wall is closer to Avenida than their neighbor’s wall by more than mere inches. So, when comparing the two abutting properties adjoining the same street that are arguably the mo st similarly situated of any properties in the City, there ap pears to be a material differen ce. The Halls have also not presented any sigh t-line analysis with respect to other co rner lots in the City by which one may compare any differences in treatment.
Accordingly, I find the Halls’ Fourteenth Amendment argument does not overcome the Code violations.
iii. Placement of Right-of-Way
The Halls also argue that the Wall is not within the City’s right of way based on interpretation of Municipal Code Sections 19.14.070(B)(3) and 19.16.080(B)(1). The Halls argue these sections “conclusively prove [] that the City’s right-of-way assertions are erroneous.” (Halls’ Brief at pg. 8).
Municipal Code Section 19.04.720 defines “side yard setback line” as follows:
‘Rear yard or side yard setback line’ means the line which defines the width or depth of the required rear or side yard. Such setback line shal l be parallel with the property line removed therefrom by the pe rpendicular distance prescribed for the yard in the zone.
In more ordinary English, I be lieve this references the parc el of land that abuts the property line that runs alongside a residenc e, here, the parkway that runs parallel to Avenida del Manzano.
15 Municipal Code Section 19.16.080 states:
A one-story dwelling shall ha ve a minimum side yard from the street side of ten feet with the interior side yard being no t less than five feet unless approved under an RPD permit for an alternate se tback which shall be determined to provide adequate separation.
This language is consistent with the City’s contention—that there is a side yard of 10 feet between the property line and the street that includes a 5 foot parkway.
Municipal Code Section 19.14.070(B)(3) states:
Corner lots shall have a minimum side yard of ten feet on the street side measured from the existing or proposed right-of-way if such is not dedicated to its full width according to city standards.
Here, the right of way is “ded icated to its full width” at least prior to the Wall and Cutout. The Wall, in other word s, encroached on the sideyard that is required by City Code. Municipal Code Section 19.16.080(B)(1) states:
A one-story dwelling shall ha ve a minimum side yard from the street side of ten feet with the interior side yard being no t less than five feet unless approved under an RPD permit for an alternate se tback which shall be determined to provide adequate separation.
This section pertains to the space between the property line and the road and the “interior side yard” references the space between the sidewalk and the property line, or the “inverse parkway.” The Halls contend the side yard or right of way is measured from the 16 location of the home itself. (Halls’ Brief at pg. 9)(“Apply that reference to the corner of the home and you will have the required 10-foot side yard point. . .”) But that is contrary to the specific sections of the Code, which make clear the side yard is not measured by the location of the home, it is defined with reference to the “street” and “property line.” iv. Conclusion
For the reasons stated above, I find there to be a violation of Municipal Code Section
13.04.035(D) because the cutout encroaches on the City’s right-of-way and an encroachment permit was not obtained in advance. I further find a violation of Municipal Code Section
13.04235 because the Wall also encroaches on the City’s right-of-way and there is adequate evidence that such encroachment is detrimental to the public health, safety or welfare of the City.
Finally, I do not find the Halls’ arguments to the contrary to be persuasive.
2. Municipal Code 19.38.050(A)
Municipal Code Section 19.38.050(A)(1) provides as follows:
1. At intersections where traffic is not required to stop on an y approach, there shall be no visual obstruction within the corner cutoff area of any co rner lot. The corner setback shall be defined by a line on a horizontal plane connec ting two points along the front and side street property lines and forming a triangle. These points shall be measured fifty feet back from the inte rsection or the prolo ngation of the fron t and street side property lines. Properties that were approved or developed prior to April 26, 1995 shall be considered exempt and may continue to be subject to the comer se tback of thirty feet as measured from the front and side lot line.
17 At the hearing, the City called Traffic Engin eer Jason Samonte. Mr. Samonte testified principally regarding dist ances required and desired for vehi cles traveling 25 miles per hour to safely come to a stop set forth in Camarill o Policy Number 88-9. Mr . Samonte presented a chart showing that for 25 miles per hour, the de sired site distance is 275 feet, and the minimum necessary distance is 155 feet. He further testified from the intersection at Corte Castano and Avenida del Manzano (i.e. directly in front of the Residence), one cannot see a full 155 feet down Avenida del Ma nzano because the six-fo ot Wall obstructs the view. The implication from this testimony is that the Wall presents a potential safety hazard because a driver coming down Avenida del Manzano even at a relatively slow speed migh t not have sufficient time to stop for a passing pedest rian. While that testimony presen ts further reasons why the City’s enforcement action has a rational basis, I do not believe it establishes a violation of Municipal Code Section 19.38.050(A)(1 ). More specifically, I do not be lieve the City has established the Wall violates the thirty feet setback, wh ich is applicable because the Residence was constructed before 1995. I note that the City did not br ief in substance this issue and simply argued that “[t]he wall may also violate Section 19.38.050 (part b) of the Camarillo Municipal Code…” (City Brief at pg. 7)(emphasis added).
B. City Required to Act on Permit
On August 29, two days before the August 31 hearing, the Halls filed with the City a request for an encroachment permit with respect to the Wall and Cutout. The Halls argue that the hearing should be postponed until the City has acted on that request. They contend their “due Process rights require that this hearing be abandoned until such time as the permit application process, including any appeal if required, is complete. To do otherwise, infringes on the Halls’ ability to seek [relief] from elected officials and unlawfully elevates the opinion of the City Attorney and 18 the hearing officer over that of the City Council and as such it is a clear Due Process violation.” (Brief at pg. 11).
Here, as explained above, the City has followed the procedures for commencing a hearing with respect to the Halls’ Construction within its right-of-way. Proper notice was provided with respect to the nuisance abatement hearing. The Halls cite no authority, nor am I aware of any, that their post hoc permit application commands that this nuisance abatement hearing be suspended. The Code provides for a quasi-judicial procedure for adjudicating nuisance abatement actions and this hearing may be appealed to the Superior Court. Given these procedural guardrails – which are set forth in the Code – I do not believe the Halls’ due process rights are violated by proceeding with this hearing.
C. Due Process Challenges
The Halls identify 25 points they contend establish they were deprived of due process in relation to this proceeding. The 25 points are as follows:
1. The Notice fails to cite CMC sections that the City then asserted were violations at the hearing.
2. The Notice was provided while the Halls were out of town thus allowing the Halls less than 4 days to prepare.
3. The unreasonably short time frame was knowingly aimed at denying the Halls the time to arrange for witnesses, including former City staff members.
4. The unreasonably short time frame was aimed at denying the Halls the ability to seek records through the Public Records Act.
19 5. The City and the hearing officer did not provide the Halls with any information on how the hearing would be conducted.
6. The City provided its witness list less than 5 working hours before the hearing with the knowledge that more than 2 hours of travel was required to appear at the hearing.
7. When presented with an offer of settlement the City Attorney refused to provide the same to City Council which could not have provided any prior authority as this matter has not been agendized for closed session.
8. Requests for continuance were denied by the City Attorney without justification
9. The hearing officer denied a request for continuance without consideration and no reason for denial was asserted.
10. While the posted notice provides for a public comment the hearing officer denied the public such an opportunity when requested to do so.
11. The Halls were unaware of the identity of the hearing officer prior to the hearing.
12. The Halls were not provided any notice on how the hearing would be conducted.
13. The Halls were not even provided a table from which to work during the hearing.
14. Over the Halls’ express objections the hearing officer limited the length of the hearing without any regard to the Halls case which he had not even inquired about before ruling.
15. Over the Halls’ express objections the hearing officer limited the length of the hearing without any regard to the number of witnesses the Halls planned to call or how long cross examination of the City witnesses would reasonably take or what issues would be involved thus limiting the testimony that could be provided and protecting the City witnesses.
20 16. While CMC 1.13.180 provides the legal rules of evidence will not apply the City Attorney made several evidentiary objections which were allowed by the hearing officer.
17. The hearing officer actually testified for the traffic engineer when the engineer was asked about a key discrepancy in the CMC regarding lot lines.
18. The hearing officer did not immediately take action to continue the hearing when notified that Mr. Hall had suffered a heart attack even though the attorney was Mr.
Hall’s son.
19. The hearing officer denied the Halls the ability to call family witnesses that left to the hospital with Mr. Hall.
20. The hearing officer defended the City in relation to the heart attack with no knowledge and/or concern that the City was well aware of the medical issues and concerns prior to the hearing.
21. Over the Halls’ express objections the hearing officer refused to provide the Halls with the opportunity to present additional evidence, demanding instead that Mr. Hall continue and properly complete his case while not knowing the conditions of his father who has prior serious health issues.
22. The hearing officer set a briefing schedule based on calendar days rather than court days which considerably lengthened the City’s briefing schedule while diminishing the Halls.
23. The Halls were not provided a record of the hearing to work from their briefing.
24. The City had the record of the hearing and the Halls did not.
25. The hearing officer did not intervene when notified of the record issue. 21 Contentions ##23-25
The Halls’ brief does not cite to the record with respect to the above points and in many cases the record does not support the foregoing contentions. For instance, with respect to contentions ##23-25, on October 18, I was informed that the Halls asserted that they had not received an electronic copy of the August 31 hearing. Accordingly, that day, I instructed by email to all parties that the City Attorney expedite sending an electronic copy of the hearing to the Halls.
Thereafter, I was copied on a letter dated October 19, 2023, that enclosed a flash drive of the August 31 hearing. That letter was addressed to the Halls’ counsel, which I believe he received in due course. The November 1 hearing subsequently proceeded, the Halls confirmed that date was acceptable for them. The Halls’ contention that I did not “intervene” with respect to them obtaining a copy of the hearing has no factual basis.
Contentions ##1-4; ##8-9
Through the August notice, the City provided the requisite statutory notice. Further, the August 2023 notice was the second notice; the City continued the hearing scheduled in May at the Halls’ request. There is no evidence presented to show the City intentionally acted to deprive the Halls of time to prepare. The Halls have not identified anything to show that if they had more time, they would have taken additional specific action. While they do claim they would have propounded a Public Records act request, they do not specify what that would be or why they could not have done it sooner. I do agree that the City’s nuisance contentions must be limited to the charges in the Notice, and my analysis above reflects that. With respect to contentions ##8-9, I do not believe the Halls have established that their due process rights were violated because further continuances were denied.
22 Contentions ##16-17
From time-to-time I did sustain objections made by the City Attorney (but not all), this included admonishing the Halls’ counsel not to speak during City witnesses’ testimony. (Cf. Samonte testimony.) With respect to #17, I reviewed the record and do not believe there is a factual basis that I “testified for the traffic engineer,” nor do the Halls cite to any portion of the record to support this claim.
Contentions ##5, 12, 14, 15
The Halls also claim that I prevented them from introducing evidence due to the parameters that I set for the hearing. The Halls do not identify any specific witness or evidence that they would have introduced had they had more time. At the hearing, I heard testimony from residents in the area and from the Halls’ daughter. Thus, I find there is no factual basis for the Halls’ contention that I denied the public the opportunity to speak at the hearing (contention #10). I also scheduled a continued hearing so that Mr. Hall, Sr. could testify, but during the continued hearing, the Halls’ counsel informed me Mr. Hall, Sr. would not be called as a witness. I find the Halls were afforded adequate due process and I find they have not presented any evidence of prejudice suffered due to the procedural parameters set for the hearing. Likewise, at the start of the hearing, I explained how the hearing would be conducted. Accordingly, I find the Halls’ contention that I “did not provide [them] with any information on how the hearing would be conducted,” to be without factual basis. (Halls’ Brief at pg. 13.) Contentions ##18-21
As stated above, at the 2 hour 30 minute point, I was advised that Mr. Hall, Sr. had left the hearing due to a health emergency and had gone to the hospital. The Halls did not ask for an 23 adjournment of the hearing and I provided the Halls the opportunity to call Mr. Hall, Sr. as a witness at a later date. With respect to contention # 19, the Halls have not identified what other family member they would have called to testify had the emergency not arisen.
Contentions ## 6, 7, 11, 13, 22
The Halls raise objections to the process including that they were not provided a table to use at the hearing, they did not receive the City’s witness list until shortly before the hearing, and the briefing schedule was set according to calendar days so that left the Halls had less time than the City to file their 20-page brief. In general, there can always be improvements on procedures. I agree it would have been preferable for counsel to have had a table to use, although I do not believe counsel made that request at the hearing. And, in any event, counsel was able to use the podium and I allowed latitude in his cross-examination and the opportunity to leave the podium to more closely approach witnesses. In short, I conclude these additional contentions did not deprive the Halls of due process.
In Mohilef v. Janovici, 51 Cal.App.4th 267 (1996), the Court of Appeal considered a due process challenge to an administrative hearing to abate a public nuisance in the City of Los Angeles. The Court of Appeal noted that due process requires “reasonable notice of hearing and a reasonable opportunity to be heard,” further that quasi-judicial proceedings such as this one, “do not invoke the full panoply of procedures required in regular judicial proceedings, civil or criminal, many of which would be plainly inappropriate in these quasi-judicial settings.” Id. at 299. The Court of Appeal concluded the property owner suffered no due process violation “despite the lack of sworn testimony” at the hearing and found that, “[w]hile due process may guarantee a right of cross-examination in some types of administrative proceedings [citation], no such right existed in the nuisance abatement proceeding here.” Id. at 301. In reaching this conclusion, the Court of 24 Appeal reasoned that, “[b]alancing the probable value, if any, of a right of cross-examination in administrative nuisance abatement proceedings against the fiscal and administrative burdens that cross examination would entail [citation], we conclude that such a right is not mandated by the due process clause.” Id. at 301. Here, I administered an oath to the witnesses and allowed cross- examination. Plus, I allowed the parties to submit full briefs and written evidence, which I carefully considered. Accordingly, under the balancing test applied in Mohilef quoted above, I conclude the Halls suffered no due process violation.
The Halls cite Beames v. City of Visalia, 43 Cal.App.5th 741 (2019), and argue the Court of Appeal held there that the hearing officer was biased because he was employed by a different city as a code compliance officer. (Halls’ Brief at pg. 13.) But the language from the opinion quoted in the Halls’ brief is not the Court’s ruling; rather, the Court was summarizing the bases for the petitioner’s challenge to the hearing officer’s ruling. Id. at 756-57. Regarding the hearing officer, the Court of Appeal did observe that he had failed to exercise his discretion in reaching his ruling, failed to grant a continuance despite that a zoning change that would moot the action was under consideration by the City of Visalia, failed to make findings of fact, and the hearing officer imposed improper daily penalties against the property owner that ultimately totaled $45,000. Id. at 761-763. I do not believe Beames’ ruling applies here; the factual and procedural background are distinct. Moreover, regarding the Halls’ argument of bias, I am not employed by a different municipality, I have no business connection to the City of Camarillo or to its outside counsel, and more generally none of my clients are public entities.
The Halls also cite Haas v. County of San Bernardino, 27 Cal.4th 1017 (2002) which involved a due process challenge to the policy of San Bernardino County and other public entities of retaining hearing officers on an open-ended ad hoc basis. The Supreme Court reasoned that 25 where “the government unilaterally selects and pays the officer on an ad hoc basis and the officer’s income from future adjudicative work depends entirely on the government’s goodwill,” due process requires the hearing officer be disqualified because such a policy vitiates hearing officers’ impartiality. Id. 1024. Here, I have been retained solely with respect to this matter.
This is the first time I have served as a hearing officer and I have no expectation of future employment as a hearing officer for the City or any other public entity. I conclude Haas does not apply here.
ORDER:
For the above reasons, based on the powers authorized to me under the Municipal Code, I find and order as follows:
1. The Cutout built adjacent to the Residence on the Avenida del Manzano side violates the Municipal Code Section 13.04.035(D) and the Wall violates Municipal Code Section
13.04.235. Both constitute a public nuisance under Municipal Code Section 9.12.020(F).
2. Pursuant to Municipal Code Section 9.17.060(B), the Halls are hereby ordered to abate the public nuisance as follow s: (1) the Halls are ordered to apply within 14 calendar days of this order for an en croachment permit with respec t to the curb cutout; and (2) within 60 calendar days of th is order, the Halls are ordered to comple te demolition of the Wall.
3. Pursuant to Municipal Code S ection 9.17.070, if the Halls fail to co mply with #2 above, the City manager or designee is authorized to cause the nuisances to be abated either by city personnel or private contractor. Further, in the event of the Halls’ non-compliance, the City attorney is authorized to take such action as needed to gain entry upon the property for purposes of ab ating the public nuisances. 26 4. In the event of non-com pliance of #2 necessita ting actions by the City described in #3, the costs and expenses for abating such nuisances shall be as sessed against the Residence or property in the form of a lien or special assessment.
Dated: December 28, 2023
By: _______________________________________________
Damian J. Martinez
EXHIBIT 4
From: PWPermits
To: [email protected]; [email protected]
Subject: City of Camarillo Encroachment Permit Application Date: Thursday, December 14, 2023 8:56:00 AM
Good morning,
The City has reviewed the Encroachment Permit Application submitted for your property and the City will not issue an Encroachment Permit for the wall as it is located within the public right of way.
For the Driveway Approach, please see the items below:
New Encroachment Permit Application needs to be submitted with changes to the following items:
1. In the “Description of encroachment work to be done:” Write or type “Install Driveway Approach per City Standards”.
2. Please provide the full address of the contractor. Note that the contractor listed on the application is required to have an active City Business License.
Note Insurance requirements are listed on the instructions page attached to the Encroachment Permit application.
1. Insurance limits shown on the Certificate of Insurance submitted do not meet the City’s requirements.
Please submit policy limits as follows:
a. $2 million per occurrence
b. $4 million aggregate for the General Liability.
c. $1 million Auto Insurance Policy
2. Please submit the required insurance policy endorsements as stated on the instruction page of the Encroachment Permit Application.
3. Worker’s Compensation Coverage must be submitted.
Please email or call, if you have any questions or need clarification.
Permits - Department of Public Works
City of Camarillo | 601 Carmen Drive, Camarillo, CA 93010 Office (805) 383-5622 / Fax (805) 419-7827
We Are All In This Together!
Las Personas son la Ciudad - The People are the City
EXHIBIT 5
1 Villarroel, Lisa
From: Hamblet, Brian I.
Sent: Wednesday, February 7, 2024 11:19 AM
To: Phillip W. Hall; [email protected]
Cc: Richman, Rachel H.; Gonzalez, Teresa
Subject: Re 651 Corte Castano - SETTLEMENT COMMUNICATION
SETTLEMENT COMMUNICATION
Dear Mr. Hall,
We would like to offer you and your family the following se lement offer to resolve your current issues with the City regarding the status of encroachment permit and the City’s declara on that the wall your father has built on the City right of way, is a public nuisance.
As an alterna ve to demolishing the wall and driveway approach and restoring the City’s property to its pre- encroachment condi on, the City will allow you to keep the wall in place if the following condi ons are met:
1. Execu on and recorda on of a License Agreement allowing the wall to remain in the ROW subject to full indemnifica on and release of liability of the City by the property owner, and maintenance of property owner insurance in perpetuity to cover any loss arising from the wall being located in ROW as well as an agreement that, should the City need to use its ROW for any reason and if it is determined (at the City’s sole discre on) that the wall will interfere with that use, owner will remove the wall at owner’s expense.
2. Obtain an approved encroachment permit for the full removal and replacement of the driveway curb cut in conformance with all applicable City standards (including the purchasing of insurance approved by the City).
3. Execu ng a se lement and release of all claims and poten al claims against the City based upon the encroachment, the public nuisance declara on, and the denial of the encroachment permit.
Please let me know if these terms are acceptable to you. If this offer is acceptable, the City would be agreeable to postponing the appeal 25-30 days to allow the City and your family to work on and finalize the details of the offer which may render the appeal unnecessary. The City will also be including this as its recommenda on to the City Council at the Appeal if the appeal proceeds on Tuesday.
Sincerely
Brian Hamblet
Brian I. Hamblet | Partner
Pronouns: he, him, his
2310 East Ponderosa Drive, Suite 25 | Camarillo, CA 93010-4747 d - 805.437.4406 | t - 805.987.3468 | f - 805.482.9834 | m - 818.585.7381 [email protected] | bwslaw.com
To help protect your priv acy, Microsoft Office prevented automatic download of this picture from the Internet.
Burke, Williams & Sorensen, LLP
EXHIBIT 6
2. DRIVEWAYS
2.1 Residential
Residential driveways shall be constructed according to Std. Plate E-2b with the following limitations:
2.1.1 W ≥ 10 feet and W ≤ 27 feet.
2.1.2 The sum of W's for all driveways shall not exceed 40% of the property frontage, however at least one W = 10 feet driveway is allowed on each lot.
2.1.3 No driveway shall be constructed in the curb return area at intersections or within 5 feet of the BCR or ECR.
2.1.4 No driveway or driveway apron shall be constructed in the area occupied by a catch basin's local depression.
2.1.5 The outer edge of the driveway warp shall be 2 feet clear of obstructions in the R/W such as fire hydrants, utility poles, street light standards, signs and mailboxes.
2.1.6 No driveway is allowed unless there is space on the private property for parking an 18 feet long vehicle.
2.1.7 Where the road grade exceeds 5% and there is no sidewalk next to the curb, an L-shaped deflector curb shall be installed on the downslope side of the driveway. The curb shall be SPPWC 120, Type A1-6, 6" high above the roadway curb, extending 5 feet along the driveway and 2 feet along the roadway curb.
2.1.8 PCC may be colored or textured or both. Texturing shall not reduce the required thickness and shall not be either so smooth or so rough as to be hazardous to pedestrians.
2.1.9 Driveways shall be PCC class 520-C-2500, 6" thick. Where the existing road does not have PCC curbs, driveways may be constructed of AC C1 or C2-PG 64-10, either 6" thick or 2" thick over 4" of PMB. Sidewalks over driveway and driveway aprons must be 6" thick.
2.2.0 Where the existing road does not have PCC curbs, driveways shall be constructed at an elevation compatible with future construction of curbs and gutters.
2.2.1 Minimum distance between outer edges of adjacent driveway slopes:
On same lot ≥ 22'
On adjacent lots ≥ 1'
COUNTY OF VENTURA
PUBLIC WORKS AGENCY
ROAD STANDARDS
REVISION: PLATEUS UNITS
APPROVED:
RECOMMENDED:
REVISION
DATE: DESCRIPTION:
D F
J PChanged driveway standard to Plate E-2b01/15/2020
E-2
ADOPTED BY BOARD OF SUPERVISORS: 02-04-2020
COUNTY OF VENTURA
PUBLIC WORKS AGENCY
ROAD STANDARDS
REVISION: PLATEUS UNITS
APPROVED:
RECOMMENDED:
REVISION
DATE: DESCRIPTION:
D F
J P
E-2b
ADOPTED BY BOARD OF SUPERVISORS: 02-04-2020
CL
4'
2% MAX.
10% MAX.
VARIES
WARP
WARP
1/4" EXPANSION JOINT (TYP.)
R/W
4'
MIN
TYP
5' MIN.
VARIES
NEW CONSTRUCTION
(WITHOUT PARKWAY)
CL
2% MAX.
10% MAX.
VARIES
WARP
WARP
SIDEWALK
R/W LINE
4'
MIN.
NEW CONSTRUCTION
WX X
WEAKENED PLANEJOINT AT
DRIVEWAY CENTERLINE
WHERE DRIVEWAY WIDTH
EXCEEDS 16' (TYP).
TOP OF "X"
Y'
1/4" EXPANSION JOINT (TYP.)
PARKWAY/SIDEWALK
CURB FACE
C SECTIONL
BASE
CURB
FACE
12"
SAWCUT
REMOVE/REPLACE EX.
STRUCTURAL SECTION
1" CF
R/W
4' MIN. VARIES
2% MAX.
4'MIN
TYP
(WITH PARKWAY/WIDE SIDEWALK)
WX X
TOP OF "X"
SEE PLATE E-2 AND E-2a
1. FOR CURB FACE 6" OR LESS, X=3', Y=4'
2. FOR CURB FACE >6", PER SPPWC STD. PLAN 110-2.
NOTES:
SIDEWALK
CURB FACE
SLOPE VARIES
10% MAX
MIN.
Y
3. WEAKENED PLANE JOINTS SHALL BE INSTALLED AT
BOTH SIDES OF A DRIVEWAY AND AT 10' INTERVALS.