HomeMy WebLinkAboutOrd 1967-1032
ORDINANCE NO.
1032
AN ORDINANCE AMENDING CHAPTER
CODE BY ADDING THERETO A NEW
THROUGH 5, ENTITLED "DRAINAGE
TO THE CONTROL OF DRAINAGE
26 OF THE CHULA VISTA CITY
ARTICLE VII, DIVISIONS 1
AND WATERCOURSES", RELATING
AREAS AND WATERCOURSES
The City Council of the City of Chula Vista does ordain as
follows:
SECTION I: That Chapter 26 of the City Code of the City of
Chula Vista be, and the same is hereby amended by adding thereto a new
Article VII, Divisions 1 through 5, to read as follows:
ARTICLE VII. DRAINAGE AND WATERCOURSES.
Division 1. General Provisions.
Section 26.100. Purpose and Intent. It is the purpose of
the City Council in establishing these regulations to protect persons
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and property against water damage and flood hazards by augmenting the
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regulations imposed by Sections 33.45.6, 33.45.7 and 33.45.8 of this
Code, establishing flood plain zoning controls. It is the intent of
the Council to afford greater security for said persons and property
from damage resulting from the obstruction or diversion of drainage and
watercourses or the construction of inadequate or improper facilities
for carrying surface waters and storm waters which result in periods
of storms, causing excessive run-off of waters through the various
1 drainage ways and watercourses in the City of Chula Vista. In case of
conflict between the regulations imposed by this Article and anY"other
provision of law or of this Code, the more stringent regulation shall apply.
Section 26.101. Definitions. Whenever the following words
are used in this Article they shall have the meaning ascribed to them
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in this Section:
(a) "Watercourse" means any natural or artificial stream,
river, creek, ditch, channel, canal, conduit, culvert, drain, waterway,
gully, ravine, arroyo or wash, in which waters flow in a defini~direc-
tion or course, either continuously or intermittently, and which has a
definite channel and a bed or banks. A channel is not limited to land
covered by minimal or ordinary flow but also includes land covered
during times of high water.
"Watercourse" does not include any surface
drainage prior to its collection in a stream, river, creek, ditch,
channel, canal, conduit, culvert, drain, waterway, gully, ravine, arroyo
or wash.
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Division 2. Permit Applications.
Section 26.104. Issuance of Permits--Liability. Permits
required by this division shall be issued by the Director, subject
to such conditions as may be imposed pursuant to this division or as
may be required by law. Neither the issuance of a permit, nor com-
pliance with the conditions thereof or with the provisions of this
division, shall relieve any person from any responsibility otherwise
imposed by law for damage to person or property, nor impose any
liability on the City, its officers or employees for damage to per-
sons or property.
Section 26.105. Application for permit. A separate appli-
cation for a permit shall be made for each act listed in Section
26.102; except that only one application need be made for two or more
such acts which are done on the same parcel or lot and which are part
of a unified plan of development or improvement. Plans and specifi-
cations shall be submitted with each such application, unless waived
by the Director for small and unimportant work. Such plans and
specifications shall be prepared or approved, and signed, by a registered
civil engineer and shall show the following:
(a) The place where such construction, reconstruction, re-
pair or alteration is to take place;
(b) The type of construction proposed to be used in such
construction, reconstruction, repair or alteration, or the type of
obstruction or fill proposed to be used, together with materials to
be used shown on the accompanying diagram of the proposed work, and
such other information as the Department of Public Works may require
to carry out the purposes of this Article.
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Section 26.106. Permit Fees. Before a permit is issued,
an applicant shall pay the following fees, established for permits
authorized by this division:
(a) Plan Check Fee. A plan check fee shall be paid at the
time application is made for a permit. Where excavation or fill is
proposed, the plan check fee shall be based upon the quantity of
material involved in the proposed excavation or fill as set forth in
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the following table:
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100 cubic yards or less..........................No fee
101 to 1000 cubic yards.......................... $15.00
1001 to 10,000 cubic yards.......................$20.00
10,001 to 100,000 cubic yards....$20.00 for the first 10,000
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cubic yards plus $10.00 for each additional 10,000 cubic
yards or fraction thereof.
100,001 to 200,000 cubic yards....$llO.OO for the first
100,000 cubic yards plus $6.00 for each additional 10,000
cubic yards or fraction thereof.
200,001 cubic yards or more....$170.00 for the first 200,000
cubic yards, plus $3.00 for each additional 10,000 cubic
yards or fraction thereof;
otherwise, a plan check fee shall be paid in an amount equal
to the amount of the permit fee required by subparagraph
(b) hereof.
(b) Permit Fee. The following fee shall be paid before a
permit required by this division shall be issued:
Value of Work
Fee
$ 100.00 or less $10.00
101. 00 to 750.00 15.00
751. 00 to 1,250.00 20.00
1,251.00 to 2,500.00 31.00
2,501.00 to 5,000.00 44.00
5,001.00 to 10,000.00 58.00
10,001.00 to 20,000.00 71.00
20,001. 00 to 30,000.00 84.00
30,001.00 to 50,000.00 98.00
50,001.00 to 100,000.00 127.00
Over 100,000.00 150.00 plus $1.50 per each
$1,000.00 in excess of $100,000.00
The "value of work" shall be established in the following
manner: (1) where a building permit is required pursuant to the provis-
ions of this Code, the "value of work" shall be established in accordance
with said provisions; (2) otherwise, the "value of work" shall be de-
termined by the Director.
(c) Renewal Fee. The fee for renewal of a previously issued
permit is $10.00 or an amount equal to 25% of the original permit fee,
whichever is greater.
Section 26.107. Other Permits may be Required. A permit
issued pursuant to this division does not relieve the permittee of the
responsibility for securing the required permits for work to be done
which is regulated by any other provision of this Code, and City ord-
inance or State law.
Division 3. Permit Conditions and Bonds.
Section 26.108. Permit--When Issued--Conditions. After the
applicant has paid the required fees and complied with all conditions
precedent, the Director shall issue the permit unless it appears to
him that the work proposed would significantly restrict the carrying
capacity of a watercourse or would create an unreasonable hazard of
flood or inundation to persons or property; provided, however, that
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Section 26.111. Changes. No changes may be made in the
location, dimensions, materials or character of the work authorized
in a permit, except upon written authorization of the Director.
Section 26.112. Transfer of Permits. A permit issued pur-
suant to this division in not transferable from person to person or
from property to property, for any reason or in any manner whatsoever.
/ Section 26.113. Bond Required.
(a) A permit shall not be issued where the value of the
work is estimated by the Director to be $1,000.00
or more, unless
the permittee first posts with the Director a bond executed by the
permittee and a corporate surety authorized to do business in this
State as a surety. The bond shall be in a form approved by the City
Attorney and in an amount of 30% of the estimated cost of the work
authorized by the permit, except that the Director may waive all or
part of the amount to the extent that he determines that the hazard
or dan~er created by the work does not justify the full amount. The
bond shall include penalty provisions for failure to complete the
work on schedule.
(b) In lieu of a surety bond the applicant may file with
the City a cash bond or an instrument of credit approved by the City
Attorney in an amount equal to that which would be required for the
surety bond.
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(cl Every bond and instrument of credit shall include, and
every cash deposit shall be made on, the conditions that the permittee
shall:
1. Comply with all applicable laws, ordinances and
Provisions of this Code.
2. Comply with all the terms and conditions of the
permit, to the satisfaction of the Director; and
3. Complete all work contemplated under the permit
within the time limit therein specified, or if no time
limit is therein specified, then within the time limit
specified in this division.
(d) Each bond, instrument of credit and cash deposit shall
be made on and subject to the condition that no change, extension of
time, alteration or addition to the terms of the permit or to the work
contemplated thereunder, or the plans and specifications submitted
in connection with the same, shall in any wise affect the obligation
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of the surety on said bond, instrument of credit or cash deposit and,
further, that the surety waives notice of any such change, extension
of time, alteration or addition.
(e) Each bond and instrument of credit shall remain in
effect until the completion of the work to the satisfaction of the
Director.
(f) In the event of failure to complete the work, or failure
to comply with all terms and conditions of the permit, the Director
may order such work as in his opinion is necessary to eliminate any
dangerous conditions and to leave the site in a safe condition, or
may order that the work authorized by the permit be completed to a
safe condition, to his satisfaction. The permittee, and the surety
on the bond or the person issuing the instrument of credit or making
the cash deposit, shall continue to be firmly bound under a continuing
obligation for the payment of all necessary costs and expenses that
may be incurred or expended by the City in causing any and all such
work to be done. In case of a cash deposit, any unused portion thereof
shall be refunded to the person posting the same following completion
of the work.
(g) If the permit so provides, there may be a partial
acceptance of the work by the Director from time to time, and a con-
comitant partial release of the security.
Division 4. Appeal.
Section 26.114. Appeal. Any person aggrieved by the re-
fusal of the Director to grant a permit pursuant to this division or
by the imposition of a condition on such permit may appeal to the
City Council. The appeal shall be filed in duplicate, one copy with
the Director and one copy with the City Cler~. The City Clerk shall
then set the appeal for public hearing in the manner provided in this
Code relating to appeals on zoning matters as contained in Chapter 33
of this Code.
Section 26.115. Necessary Findings. The City Council shall
grant the permit or modify or delete the condition, as sought for by
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said appeal, only if it finds all of the following to be true:
(a) That the applicant would suffer substantial injury or
detriment by the refusal to grant the permit or modify or delete the
conditions;
(b) That no other method of obtaining the desired results
is more reasonable or less likely to be dangerous than that proposed
by the applicant; and
(c) That the granting of the permit or the modifying or
deleting of conditions would not be materially detrimental to the pub-
lic interest, safety, health and welfare, would not significantly re-
strict the carrying capacity of a watercourse, and would not create
an unreasonable hazard of flood or inundation to persons or property.
The permit shall also be granted, or the condition complained
of deleted or modified if the requirements of subparagraphs (a) ,(b), and
(c) above can be satisfied by the imposition of reasonable conditions.
Division 5. Abatement of Nuisance.
Section 26.116. Violation is a Nuisance. A violation of any
provision of Section 26.102 or the failure of the owner of property oVer
which there exists a natural drainage course to keep and maintain the
portion of said drainage course located on his property free of obstruc-
tions to the free flow of drainage water is hereby declared to constitute
and be a public nuisance, provided, however, that existing drainage fac-
ilities constructed prior to the enactment of this ordinance which have
not decreased the capacity of the natural drainage channel or watercourse
shall not be construed as a nuisance for purposes of this Article.
Section 26.117. Abatement of Nuisance.
(a) Notice of Violation. In addition to any other pro-
cedures or penalties established by law, in the event of a violation
of Section 26.102 or 26.116, the Director may serve a written notice
on the violator personally, or mail such notice, postage prepaid and
return receipt requested, to the address at which, in the opinion of
the Director, such notice is most likely to be received by the violator,
which notice states the nature of the violation; that the violator
is required to abate the condition constituting the violation within
ten (10) days after the notice is received; and that if"theviolator
fails to so abate the violation the Director may do so, in which event
the violator shall be liable for all costs of such abatement including
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but not limited to reasonable attorneys' fees. If the owner of the
property on which the violation occurred is the violator, the notice
shall be sent to the address of the said owner as it appears on the
last equalized assessment roll or, alternatively, as it appears from
such other records of the assessor or tax collector that contain more
recent addresses in the opinion of the Director.
(b) Abatement by City. If the condition is not abated by
the violator in accordance with the notice, the Director shall so re-
port to the City Council and, if it so directs, abate the condition; the
violator shall be liable to the City for all costs incurred in such
abatement including but not limited to reasonable attorneys' fees and
the expense of abatement shall be a lien against the property on which
it is maintained and a personal obligation against the property owner.
Section 26.118. Emergency Abatement. If it appears to the
Director that an emergency exists because of a violation of sections
26.102 and 26.116, then, without following the procedure established by
'section 26.117, the Director may order all work done necessary to re-
move, abate or mitigate the condition creating such emergency. The
Director may do the work with his own employees or may contract to have
the work done; in either event the Director shall keep a record of the
cost of the work and charge the cost of the work to the violator, who
shall repay the City for the cost thereof.
Section 26.119. Payment of costs--Lien. The cost of any
work done by the City pursuant to Sections 26.117 and 26.118 shall be
repaid to the City by the person required to do so by the terms of the
respective section. If the owner of the property on which the work is
done is responsible for such costs, the sums expended by the City in
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doing the work may be made a lien upon such property in the manner pre-
scribed in Section 26.120.
Section 26.120. Assessment for costs--Lien--Payment. The
cost of abating a nuisance within the meaning of this division shall be
a special assessment against the land on which such abatement was
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done. The procedure established for the abatement of abandoned
excavations by Sections 50244 through 50256, both inclusive, of the
Government Code, is hereby incorpqrated herein as though fully set
forth at this point and, pursuant to Government Code Section 25845 is
hereby adopted as the procedure for making the cost of the abatement
of such nuisances a special assemsment against the land involved;
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provided, that for the purposes of said Sections 50244 through 50256,
the Director is the "superintendent", the City Council is the "legis-
lative body", and the City is "local agency"; and further provided
that at the hearing on the superintendent's report, the property
owner may raise, and the City Council shall consider, as a complete
or partial defense to the imposition of the assessment, questions as
to the necessity of the abatement and the manner in which it was
accomplished.
SECTION II: This ordinance shall take effect and be in force
on the thirty-first day from and after its passage and approval.
'2:Y72ee
Lane Cole, ~i ty Engineer'------.
Approved as to form by
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George D. L' aberg, City Attorney ~
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ADOPTED AND APPRO'IED by the CITY COUNCIL of the CiTY OF CHULA VISTA,
CALIFORNIA, this 17th
day of ___ January___, 19~, by the f~llm"ing vote,
to-wit ~
AYES:
Councilmen _.t1parling, Sylvester, Anderson... McAllister... McCorquodale
NAYES:
Councilmen -.N.Qll~_________.
ABSENT:
Councilme.n --li2.~.
---- )~
( .-.....----:: 7~ % // /r-:;-
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~f t "e Ci y of Chula Vista
ATTEST 0(,~e.~a-l~~1'
~j' City Clerk
STATE OF CALIFORN LI, )
COUNTY OF SAN DlEGO ) ss.
CITY OF CHULA VISTA
I, KENNETH P. CANfBELL, City Clerk of the City of Chula Vista, California,
DO HEREBY CERTIFY that the above ar.d foregoing is a full, true and correct copy of
, and that the same has not been amended
or repealed.
DATED:
City Clerk
CC-652
'Y'
OFFICE OF THE
CITY ATTORNEY
City Ob CluxQa C\Jigta
CALIFORNIA
January 6, 1967
OPINION OF THE CITY ATTORNEY
TO:
The Honorable Mayor and City Council of the City
of Chula Vista, and the Chief Administrative
Officer
FROM: George D. Lindberg, City Attorney
SUBJECT: Suggested changes - Drainage Control Ordinance
Background
On December 20, 1966, the City Council considered an ordinance,
for a second reading and adoption, which would authorize the
control and regulation of drainage channels and watercourses
located across and over private property. For nearly two years
the City Council has expressed concern over the problem of un-
restricted obstructions or construction in the various water-
courses and drainage channels throughout the City.
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There are two aspects of the problem of handling surface waters.
The first is related to the matter of disposition of surface
waters, per se, and the second, the matter of flood waters
creating problems during storm periods. The Council has here-
tofore adopted a flood control zoning ordinance intended to
cope with the major problem of protection of the public health,
safety and general welfare in flood plain areas. In order to
clearly point out that the Council is also concerned with the
general problem of surface water in addition to the flood sit-
uations, it is suggested that the purpose and intent section
of the drainage control ordinance referred to above be amended
by inserting the terms "water damage" and "surface waters" so
that it is understood that the drainage control ordinance pre-
sently under consideration is supplementary to the ordinance
regulating flood plains.
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The delay in proposing an ordinance which would control drainage
channels, and watercourses on private property where no easement
has been granted to the City has been engendered by the concern
of possible liability to the City in the event that structures
January 6, 1967
Page 2
permitted in, or modifications of watercourses authorized by
the City should prove to be inadequate and result in damage
to private property. However, this concern is outweighed by
the obvious necessity to provide a means of proper control
and regulation, aside from the threat of civil liability to
property owners who create obstructions in watercourses re-
sulting in damage to upper or lower property owners.
The two aspects of this problem that have concerned the City
Council are as follows:
1. What is the responsibility of the private owner to
maintain and repair private drainage courses, and in
conjunction therewith, how can the City of Chula Vista,
through the passage of proper ordinances, require that
private drainage ways be maintained free of 'obstructions?,
and
2. What is the responsibility of the City for the
establishment of drainage easements which may affect
private properties by negligence or faulty construction,
and in conjunction therewith, what is the responsibility
of the City in regulating private watercourses by re-
quiring permits for the construction of facilities or
the diversion or obstruction of private watercourse
which may result in damage to adjacnet properties or
to the subject property?
General Legal Principles
First of all, a number of general principles of law may be
stated. Water flowing in a stream in a natural watercourse
through or adjoining a person's land may not be diverted so
as to cause damage to lower riparian owners. Voight vs.
Southern Pacific Company, 194 CA2d Sup. 907. The lower
riparian owner may not obstruct channels so as to cause water
which naturally flows through them to back up and flood the
upper riparian owners' property. Smith vs. City of Los
Angeles, 66 CA2d 562.
These principles are equally applicable to municipal cor-
porations. In order to protect the public health, safety
and general welfare, the municipality may, in the exercise
of its police power, require that all work in watercourses
be subject to the issuance of permits, such as has been
provided in the drainage control ordinance amending Chapter
26 of the City Code by adding a new Article VII.
In approving the construction of drainage facilities, either
as an adjunct of the approval of a subdivision or pursuant
to the terms of said ordinance, it is essential that the
City take great care to avoid any acts which would constitute
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violations of these general law principles. In addition, it
is necessary to avoid acts which would result in the increase
of surface water flows over the lower riparian properties.
Steiger vs. City of San Diego, 163 CA2d, 110. "Surface waters
are waters that are precipitated by rains and snows on the
land, and those that arise from the land through springs and
marshes, and flow over the surface of the ground without being
gathered into watercourses or other bodies of water." 52 Cal.
Jur.2d, 364, Sec. 724.
In the Steiger case, the City of San Diego, by virtue of the
construction of certain drainage facilities,caused an increase
in the flow of surface waters across the plaintiff's land,
which resulted in an actual taking of the property. The City
of San Diego argued that there is no liability for consequential
damages resulting from improvements made in watercourses in
the absence of negligence, although there is a liability where
a public improvement obstructs a watercourse. Stone vs. Los
Angeles County Flood Control District, 81 Cal.Ap.2d, 902.
Further, there is no liability for damage to private premises
due to the overflow of a natural stream because of the con-
struction of artificial conduits and hard surface streets
which cause an increase in the waters passing into a stream
and overflowing because of the insufficient capacity of the
natural channel.
However, the Court pointed out that it was not a question of
creating a flooding condition in a well-defined stream, which
is the definition of a watercourse as used in the ordinance in
question, but of an increase in the flow of surface waters
across plaintiff's property which had never been contained
in a well-defined stream. Therefore, the City was held liable.
In line with the Steiger case is the case of Frustuck vs. City
of Fairfax, 230 CA2d 412, which imposed a similar liabllity
upon the city, but involved an excess of water being diverted
to plaintiff"s property, which could not be handled by an
existing culvert. While that case seems to be exceptionally
severe, it does seem reasonable that the city, in approving a
drainage system within a subdivision, should take reasonable
precautions to ascertain that the system is capable of handling
the predictable increase in the volume of water. This increased
flow was not simply the result of the construction of the sub-
division, including hard surface streets and drainage facilities
which prevented the absorption of waters as in the Steiger case,
but was a diversion of waters which normally flowed to other
lowlands and is, I believe, distinguishable upon that basis.
This basic rule,as reiterated in the case of Inns vs. San Juan
School District, 22 CA2d, 174, is that the upper owner, or the
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Page 4
city if the drainage system be approved by the city, may not
increase the volume or velocity of the flow of surface water
over the property of the lower land owner, nor may he divert
waters so as to increase the flow beyond the existing capacity
of a natural watercourse.
Specific Objection to Retroa.ctive Feature of Drainage Ordinance
At the Council meeting of December 20th, Mr. Wilson Weid appeared
to oppose the ordinance in its present form because of what he
construed to be vague and ambiguous language regarding the
nuisance. abatement sections thereof. Specifically, he was
concerned with the possibility that the ordinance would have
a retroactive effect in requiring the removal of certain drain-
age facilities installed by his clients, which might be rendered
inadequate by the urban development in the nature of building
construction and hard surface streets in the upper drainage
basin, and impose upon his clients the requirement of enlarging
these facilities because of such construction.
First of all, it should be noted that the ordinance does have
a retroactive effect in that it is intended to require property
owners to remove obstacles or enlarge drainage facilities im-
posed or constructed prior to the adoption of the ordinance.
If this were not the case, we would not be solving the problem
of existing drainage complaints and would be lacking the proper
tools to rectify serious drainage problems that cause damage
and inconvenience to property owners. However, the ordinance
may not be used to require the improvement of natural drainage
to increase their natural capacity, and likewise, could not
impose a requirement for modifying or increasing manmade drain-
age structures constructed in natural channels which do not
limit or decrease the capacity of the natural channel.
As pointed out in the case of Voight vs. Southern Pacific Company,
194 CA2d Sup. 907, there is no liability on the part of the
defendant to increase the size of existing drainage facilities
which become inadequate as a result of urbanization subsequent
to the time of the defendant's construction of said facilities.
In that case, the owner had properly developed his property in
the interests of the whole community. However, as a result of
progress, there was an increased flow of surface waters to those
facilities constructed by the defendant. In the absence of an
obstruction and negligence on the part of the defendant in
allowing the facility to become clogged, there was no liability
in the failure to accommodate the increased flow.
In the same sense, it is not reasonable to require Mr. Weid's
clients in this particular case to improve the capacity of the
drainage facility which they established if, in fact, it did
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January 6, 1966
Page 5
not decrease the capacity possessed by the natural channel prior
the construction, and which may only become inadequate as a
result of the urban development of the upper properties. It is
true that the City Engineer, in a letter dated April 21, 1964,
objected both to the method of construction of this particular
facility and its adequacy to handle a fifty-year storm. How-
ever, in the absence of an ordinance such as the one under con-
sideration, it was not possible to impose such requirements on
the property owner, and it may be that the natural channel,
prior to the construction, would not have been capable of
handling such capacity.
Conclusion
Therefore, it does not appear that the orOlnance would impose
any burden upon Mr. Weid's clients to increase the capacity of
the drainage facility or to improve the construction techniques.
However, to clarify this point, I am suggesting one additional
amendment to the drainage ordinance.
Recommendation
I would suggest an addition to section 26.116, Division 5,
Abatement of Nuisance:
Section 26.116. Violation is a Nuisance. A violation of
any provision of Sectlon 26.102 or the failure of the owner
of property over which there exists a natural drainage
course to keep and maintain the portion of said drainage
course located on his property free of obstructions to
the free flow of drainage water is hereby declared to
constitute and be a public nuisance, provided, however,
that existing drainage facilities constructed prlor to
the enactment of this ordinance which have not decreased
the capacity of the natural drainage channel or water-
course shall not be construed as a nuisance for purposes
of this Article.
If the additions are acceptable to the Council, the ordinance
should be placed upon its first reading again and adopted the
following week.
Respectfully submitted,
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GeOrge~Lindberg (/7
City Attorney
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