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Illegal dumping, an ever-present problem

By Simon Wong

Finding the right tonic for a public ill

HAYWARD, Calif. -- Hayward City Council voted 6-1 in favor of introducing an amendment to the Municipal Code on October 23, 2012 to combat illegal dumping on public property and to update the Master Fee Schedule with associated charges. There is public opposition to what is proposed. Adoption of the amendment is scheduled for Council’s meeting on November 13, 2012 at 7 p.m.

In stark contrast to Council’s priorities of a Safe, Clean and Green Hayward, city streets and sidewalks have been used increasingly as dumping grounds for large items over the past four years. The culprits are not always identifiable but occasionally the occupants of nearby property are known to have left mattresses, furniture, appliances and refuse in the public right-of-way. In Fiscal Year (FY) 2009, the City received 514 requests to remove a total of 4,972 cubic yards of such materials. The numbers of cases and quantity have increased annually; so far, in FY 2012, there have been 1,521 requests to clear 10,595 cubic yards. This is a cost to the City.

Hayward’s Community Preservation and Improvement Ordinance deals only with illegal nuisances on private property whose owners may appeal citations and penalties. The Keep Hayward Clean and Green (KHCG) Task Force and community and volunteer groups have lobbied City staff for a solution to illegal dumping on public property.

Staff’s response is an ordinance that places the onus on private property owners to ensure the public right-of-way by their properties is clear so that pedestrians and vehicles can proceed unhindered. The intent is also to combat blight and assure public health and safety. It will be a violation to leave dumped items on public property.

Owners of properties adjacent to abandoned items will be responsible for their removal. When a complaint is received, City staff will inspect the location and issue a courtesy notice to the property owner requesting removal of the items within 72 hours. If the debris remains in situ, staff will remove it and issue the property owner a Notice of Violation, to include a fee and a penalty.

Staff will also inform the property owner that future violations will incur additional penalty fees, that non-payment will lead to a special assessment against the property and that a subsequent violation within 12 months from the date of the Notice will result in additional fees.

Property owners, who dispute the Notice of Violation, have recourse to the Administrative Hearing process and must contact staff within 10 calendar days from the date of the Notice of Violation to request a hearing for which there is a $51 fee.

The City’s contract with Waste Management of Alameda County (WMAC) provides for WMAC’s removal of items dumped illegally in the public right-of-way and recovery of costs by WMAC from the property owner. Not only is the seven-day response time slower than might be preferred, constant use of this service could increase refuse collection costs for everyone.

WMAC provides self–haul, fee-waiver coupons, upon request, to single-family homes, duplexes, triplexes and four-plexes for a one-time disposal of two cubic yards of rubbish at the Davis Street Transfer Station, San Leandro. Unfortunately, 70 percent of the coupons remain unused. The City and WMAC have agreed to make unredeemed, self-haul coupons available to managers of multi-family properties for use by tenants. Coupons are available upon request by contacting WMAC and will be issued on a first-come, first-served basis. The City’s franchise agreement with WMAC expires on May 31, 2014 (with three one-year extension options available) when the City may consider additional WMAC services such as collection of bulky items from single and multi-family residences.

Given that Hayward is a charter city, the City has inherent police powers to assure the public well-being; consequently, the legal basis for the proposed ordinance is not in question. The desire to find a solution to a persistent problem is reasonable. However, the community is concerned about the one proposed.

While Maintenance Services Director Matt McGrath gave his personal assurance that he would never issue a violation notice to an innocent property owner and explained the nuances of discerning culpability, public speakers fear that the official inspecting a location might err in his judgment or be dogmatic. Many landlords/property managers remove items abandoned by tenants but transfer station costs could be prohibitive, if tenant-turnover is high. The proposed ordinance would penalize them for illegal dumping by tenants.

The two-and-a-half hour discussion of this legislative business used the term “illegal” dumping. When asked by Councilman Greg Jones, City Attorney Michael Lawson confirmed that discarding unwanted items in the public right-of-way is a criminal act that can result in prosecution but the latter is an expensive and lengthy process that has proved difficult to secure.

Mayor Sweeney moved the staff recommendation to introduce the ordinance with the conditions that staff conduct an annual review of the efficacy of the legislation, through the KHCG Task Force and Council, and that they explore ways of improving the program and review viable alternatives.

“The arguments of staff and volunteers, who regularly clear the City’s streets and neighborhoods of debris, are the most compelling for such an ordinance. They know the enormity of the problem,” said the Mayor. “Others have spoken against the ordinance but have yet to participate at a clean-up event. The proposed legislation, with the conditions in my motion, is a reasonable first-step to address the issue of illegal dumping. We must do the right thing for Hayward.”

“I’ve participated in KHCG events and support their activities but cannot support this ordinance. Making private property owners responsible for public property is the long slippery slope. Staff and community members have said they know the identities of many of the perpetrators who should be arrested. Hayward has a law that says it is “illegal” to dump on the public right-of-way. We need to partner with law enforcement, raise the issue as a priority with Hayward Police Department to stamp out this behavior and enforce the Criminal Code related to dumping. If this is really a priority, Council must direct staff to do that. I don’t think we have,” explained Councilman Greg Jones. “This ordinance effectively de-criminalizes such activity. What we’ve done is dilute the seriousness of discarding garbage on public property and the consequences for doing so.

“I’ve complete faith in staff and their judicious administration of the process but things happen, mistakes happen, accidents happen, processes break down. Assuming the property owner is somehow responsible for the presence of dumped items is the wrong way to administer public policy. The right way is to enforce existing codes, to continue focusing on this as criminal activity, to secure prosecution and the appropriate penalties rather than issue a ticket,” he added. “Existing codes don’t appear to work because we’re not enforcing them.”

According to Jones, if the perpetrators are tenants, they should be held accountable, not the property owner who already has a large burden associated with property ownership and whose property happens to be in the vicinity of the abandoned rubbish.

“Other options are necessary; perhaps scheduled, frequent collections from Hayward residences might combat the problem more effectively? Although I appreciate the effort and oppose dumping, I can’t support the ordinance because it is not good public policy. It isn’t the right approach for our community,” concluded Jones.

If it is impractical to prosecute, an alternative solution is needed but the community has concerns about what is proposed. Although Councilman Marvin Peixoto mentioned limited public funds and the need for “shared responsibility” [with private sector property owners] to address the problem, dumping is an issue that will persist. Might government be the ultimate solution?

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