Celebrating 10 years! 2007-2017

Help with Appeal of Calif. Admin. Ruling (Citation for Fire Hazard)

Please critique my "brief." I'll post in multiple parts. propurrr08/13/17
UNFAIR HEARING Summary: Alleged AHO denied Contestant a r propurrr08/13/17
PREJUDICIAL ABUSE OF DISCRETION SUMMARY: Alleged AHO cite propurrr08/13/17
SBC PROCEEDED WITHOUT OR IN EXCESS OF JURISDICTION SUMMAR propurrr08/13/17
If I were the Superior Court judge reading your appeal I'd b specv31308/13/17
Whatever you do, do not attack the hearing officer in any wa guyingorillasuit08/13/17
Thanks. I removed all the "attacks" on the AHO. I also cu propurrr08/15/17
Just an opinion. This area (Cajon Pass/Phelin) had a big as 2ski08/14/17
Given the low fine amount is there a reason for not just pay retard08/15/17
After obtaining a bulls*it warrant, SBC Land Use Services "a propurrr08/15/17
Ok. I reviewed this, I reviewed the relevant codes and I hav retard08/15/17
A city very likely CAN do that. In my case, however, County propurrr08/15/17
Do you actually have proof that the MOU was entered into inc retard08/16/17
1. Yes. It violates the CA Gov. Codes I mentioned in my brie propurrr08/16/17
My Admin. Citation Appeal Ruling ("ACAR") stated that I coul propurrr08/19/17
Sorry you are getting the runaround. Probably because SB cou 2ski08/19/17
It is the largest county (in acreage). That might justify o propurrr08/19/17
What you're probably filing is not an appeal, but a petition guyingorillasuit08/19/17
It could be done as a "writ of mandate" (CA GOV. Code 1094.5 propurrr08/19/17
You are wrong. Minimizing fire risk is a community issue, no retard08/19/17
I meant that, by ignoring my weeds, I stood little chance of propurrr08/19/17
WRT the 4", this is probably the standard height that a brus 2ski08/21/17

propurrr (Aug 13, 2017 - 5:34 am)

Please critique my "brief."

I'll post in multiple parts.

(Format is somewhat jacked, since this website is primitive).

(My appeal is to a CA Superior Court and will be treated as a "limited civil case").


Appeal of Administrative Citation Appeal Ruling: CA Gov. Code 53069.4(b)(1)

BACKGROUND
On 6/14/17, San Bernardino County (“SBC”) issued a $100 citation (“Citation"), alleging that

[redacted] (“Property”) violated San Bernardino County Code: 23.0305(b)(4) (“Code”).

Contestant then filed a Notice of Appeal (“NOA”), claiming Citation lacked legality for

multiple reasons. In a subsequent Administrative Citation Appeal Ruling (“ACAR”), an alleged

Administrative Hearing Officer (“AHO”) “upheld" the citation. Contestant now appeals that

decision for three reasons. First, the alleged hearing was either unfair or non-existent.

Second, the alleged AHO demonstrated prejudicial abuse of discretion. And, third, SBC issued

Citation either without or in excess of jurisdiction.


(Note: Contestant uses “SBC” to mean any of the following: San Bernardino County, San

Bernardino County Land Use Services, San Bernardino County Code Enforcement, San

Bernardino County Fire Hazard Abatement, or San Bernardino County Fire).

Reply Like (0)
propurrr (Aug 13, 2017 - 5:45 am)

UNFAIR HEARING

Summary: Alleged AHO denied Contestant a reasonable opportunity to be heard, failed to give

Contestant proper notice of a new allegation, failed to show that Contestant received a

hearing, failed

to show qualification to hear Contestant's case, and upheld Citation with bias.

CODE: Vagueness

Code failed to define either "unincorporated areas" or "grass." For those reasons,

Contestant claimed (in the NOA) that Code was "void for vagueness." But alleged AHO

ignored this argument.

CODE: Arbitrariness

Because Code lacked a rationale for defining a fire hazard as "grass exceeding 4 inches in

height," Contestant claimed (in the NOA) that Code was "void for arbitrariness." But

alleged AHO ignored this argument.


CODE: Inapplicable to Property

Code plainly limits itself to "unincorporated areas" of San Bernardino County. On or

before Citation date, Property sat within Hesperia, a city incorporated since 1988. As a

result, Contestant claimed (in the NOA) that Code did not apply to Property after 1988.

But AHO ignored this argument. (Instead, alleged AHO focused on an altered version of SBCC

23.0301, an ordinance for which Contestant was not cited).


MOU: Invalid Extension of Code to Property

After setting Contestant's hearing, SBC mailed Contestant a "Memo of Understanding"

("MOU") claiming it provided SBC with jurisdiction over Property.

Contestant subsequently rebutted it.

First, Code does not allow itself to extend to "incorporated areas" via a MOU (emphasis added):

§ 23.0305 Desert Area Fire Hazard Abatement.
(a) Desert Area means all portions of the unincorporated area of the County of San Bernardino north and east of the National Forest boundaries.
(b) Flammable vegetation in the Desert Area means:
(1) Tumbleweeds (Russian thistle);
(2) Limbs and debris of salt cedar (Tamarisk) within six feet of the ground;
(3) Plants, unless pruned to remove dead material;
(4) Grass over four inches in height.
(c) Fire Hazard in the Desert Area means:
(1) Flammable vegetation within ten feet of a road;
(2) Tumbleweeds, regardless of distance from structures;
(3) Combustible rubbish;
(4) Flammable vegetation within 30 feet of all structures, including that portion of the property within 30 feet of structures on adjacent properties;
(5) Where neighboring persons or properties are especially vulnerable to the effects of a fire, including, but not limited to schools, hospitals, mobilehome parks, residential occupancies or chaparral/development interfaces, flammable vegetation within 100 feet of all structures.
(Am. Ord. 3586, passed - -1994)

Second, Code lacks any revisions/amendments that extended Code to "incorporated areas."

Third, no CA Gov. Code permits change to county codes via a MOU. [See CA Gov. Code: Title

3 ("Government of Counties"), Division 2 ("Officers"), Part 2 ("Board of Supervisors"),

Chapter 1, Article 7 ("Ordinances"), Sections 25120, 25121, 25122, 25124, & 25129].

Fourth, the MOU bears signatures of an assistant, county fire chief, a director of county

land services, and a deputy county counsel. But neither Code nor CA Gov. Code provides

such people with power to legislate. Only Board of Supervisors can create, revise or amend

county ordinances. (A signatory space on MOU for Board of Supervisor B. Postmus is blank).

[See CA Gov. Code: Title 3 ("Government of Counties"), Division 2 ("Officers"), Part 2

("Board of Supervisors"), Chapter 1, Article 7 ("Ordinances"), Sections 25120, 25121,

25122, 25124, & 25129]

For all those reasons, Contestant claimed (in the NOA) that "MOU" failed to extend Code to

Property. But alleged AHO ignored those arguments.

Contestant also mentioned that no evidence suggested that MOU had ever met a publishing

requirement mandated by state law. [See CA Gov. Code: Title 3 ("Government of Counties"),

Division 2 ("Officers"), Part 2 ("Board of Supervisors"), Chapter 1, Article 7

("Ordinances"), Section 25124]. But alleged AHO ignored this argument.


CITATION: Fatally Inaccurate

Since Citation described alleged violation of Code as "Weeds and Grasses," Contestant

claimed it was fatally flawed. The description is fatally flawed, since Code limits itself

to "grass," mentioning neither "weeds" nor "grasses." Stated differently, Citation is

invalid, since it describes a different code than the one for which Contestant was cited.

But alleged AHO ignored this argument.

By ignoring Contestants arguments, alleged AHO gave them zero weight, treating them as if

they had never been raised. As a result, alleged AHO denied Contestant a reasonable

opportunity to be heard. [See Grannis v Ordean (1914) "The fundamental requisite of due

process of law is the opportunity to be heard"].

NEW ALLEGATION: No Notice

Citation accused Contestant of one ordinance violation: SBCC 23.0305(b)(4) ("Code"). But,

alleged AHO ignored it, finding Contestant liable for a violation of a different

ordinance: SBCC 23.0301. Lacking notification of the new allegation before the hearing,

Contestant was not able to mount a defense in the NOA. Contestant also can't request

another administrative appeal, since the ACAR states that "[t]his decision is final"

(emphasis added).

Therefore, Contestant's right to procedural due process in this case was permanently

denied. [See CA Constitution, Article 1, Section 7(a). Also see Fortich v. WCAB (1991):

"An elementary and fundamental requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present

their objections"]


ALLEGED ADMIN. HEARING OFFICER: Phantom

CA Gov Code 27724 (Title 3, Division 2, Part 3) requires that "[a]ny county hearing

officer, or any deputy or assistant hearing officer, appointed pursuant to this chapter,

shall be an attorney at law having been admitted to practice before the courts of this

state for at least five years prior to his or her appointment." But, since ACAR lacks

alleged AHO's name, signature and law license, Contestant can't know whether alleged AHO

satisfied the 27724 requirement.

Without alleged AHO's name, signature and law license, Contestant also can't verify

whether a hearing even occurred. Since no plausible reason existed for said omissions,

Contestant assumes that alleged AHO failed to satisfy CA Gov. Code 27724 and was therefore

unqualified to hear Contestant's case.


ALLEGED ADMIN. HEARING OFFICER: Lack of Impartiality

Historically, SBC has picked AHO's in a way that can strongly influence subjective outcomes

for SBC [See Haas v. County of San Bernardino (2002): County's selection-and-remunerative

scheme tempted AHO's to base decisions on potential for future work from SBC].

In this case, SBC notified Contestant of the hearing date, without describing what process

SBC would use to select the AHO.

SBC also failed to give Contestant advanced notice of the alleged AHO's name or CA law-

license number.

Additionally, SBC claimed Contestant's hearing would occur in San Bernardino. But the

ACAR's return address is a PO Box (not a street address) in Newport Beach, CA 92658. That

return address is similar to a company that processed Contestant's Citation: Citation

Processing Center, aka Data Ticket, Inc. Its mailing addresses is a PO Box (not a street

address) in Newport Beach, CA 92658.

In addition, alleged AHO ignored Contestant's NOA arguments, and misconstrued MOU

favorably to SBCC (discussed later). Alleged AHO also found Contestant liable for Code by

relying on an illegally altered version of a different SBC ordinance (discussed later).

The ACAR also lacks alleged AHO's name, signature and CA law-license number, allowing him

to render a baseless decision, without fear of consequence.

These facts suggest that Contestant's Citation was upheld with bias for SBC, violating

Contestant's due-process right to a fair hearing.

Reply Like (0)
propurrr (Aug 13, 2017 - 5:55 am)

PREJUDICIAL ABUSE OF DISCRETION

SUMMARY: Alleged AHO cited wrong ordinance, misconstrued MOU, relied on an altered

ordinance, and used photographs of an incorporated-area property to uphold an alleged

violation of a code for unincorporated areas.


DECISION NOT SUPPORTED BY FINDINGS

Alleged AHO claimed that:

"The San Bernardino County code, section 23.0301 (as incorporated by agreement between the

County and the City of Hesperia), is clear that '[e]very owner or person in control of any

land or interest therein in the [City of Hesperia] shall abate all fire hazards...from

such land....'Grasses, a code-defined fire hazard, in excess of 4 inches were evident at

the time of the second inspection."

First, Contestant was not given a ticket for SBCC 23.0301. Instead, Contestant was

ticketed for SBCC 23.0305(b)(4). To uphold Citation (and not violate Contestant's due-

process right), alleged AHO should have focused on the code for which Contestant was

actually cited (emphasis added):


§ 23.0305 Desert Area Fire Hazard Abatement.
(a) Desert Area means all portions of the unincorporated area of the County of San Bernardino north and east of the National Forest boundaries...
Code clearly does not apply to Property. Therefore, alleged AHO should have dismissed Citation.

Second, alleged AHO misconstrued the MOU (a.k.a."agreement"). Nobody from City of Hesperia

signed the MOU. It's actually an agreement (but not binding law) between two, SBC

agencies: San Bernardino County Fire ("SBCF") & San Bernardino County Land Use Services.

Realizing that City of Hesperia had not authorized enforcement of Code within Hesperia,

alleged AHO should have dismissed Citation.

Third, alleged AHO altered SBCC 23.0301, removing "unincorporated" and inserting "City of

Hesperia."

To uphold alleged violation of SBCC 23.0305(b)(4), alleged AHO relied on the altered

version of SBCC 23.0301.

Nevertheless, the altered version fails to comply with CA Gov. Codes regarding creation,

amendment or revision of county/city ordinances. [See CA Gov. Code: Title 3 ("Government

of Counties"), Division 2 ("Officers"), Part 2 ("Board of Supervisors"), Chapter 1,

Article 7 ("Ordinances"), Sections 25120, 25121, 25122, 25124, & 25129. Also see Title 4

("Government of Cities"), Division 3 ("Officers") Part 2 ("Legislative Body"), Chapter 2

("Ordinances"), Article 2 ("Enactment"), Sections 36931, 36932, 36933, 36934, and 36937.]

Fourth, neither SBCC nor Hesperia Municipal Code contain the altered version of SBCC 23.0301.

For those reasons, the altered version of SBCC 2303.01 is not actual law. Instead, actual

law is the real, unaltered version of the county ordinance (emphasis added):

§ 23.0301 Duty to Abate Fire Hazards or Hazardous Trees. Every owner or person in control of any land or interest therein in the unincorporated area of the County of San Bernardino shall abate all fire hazards and hazardous trees from such land and from all sidewalks, parkways, road easements and all other easements on such land...

Given that SBCC 23.0301 plainly limits itself to unincorporated areas, alleged AHO should

have logically concluded that it did not apply to Property. As a result, he should have

dismissed Citation.

Since alleged AHO's findings are illusory, they do not legally support his decision to

uphold Citation.

FINDINGS NOT SUPPORTED BY EVIDENCE

Alleged AHO stated, ..."Based on all the testimony and evidence provided by the appellant

and the County, particularly photographs of the violation at time of second inspection,

the facts are sufficient to uphold the citation. The San Bernardino County code, section

23.0301 (as incorporated by agreement between the County and the City of Hesperia), is

clear that '[e]very owner or person in control of any land or interest therein in the

[City of Hesperia] shall abate all fire hazards...from such land.

Nevertheless, Alleged AHO did not state that the MOU (a.k.a. "agreement") extended SBCC

23.0305(b)(4) (the code for which Contestant was cited) to "incorporated areas."

Therefore, alleged AHO implied that SBCC 23.0305(b)(4) retained its original form,

applying exclusively to unincorporated areas of SBC.

If photographs are of Property, they show one that sits within Hesperia, a city

incorporated since 1988. Photographs of an incorporated-area property are not evidence of

a violation of SBCC 23.0305(b)(4), since it plainly limits itself to unincorporated areas.

Therefore, the evidence (photographs) does not support the findings.

Reply Like (0)
propurrr (Aug 13, 2017 - 5:57 am)

SBC PROCEEDED WITHOUT OR IN EXCESS OF JURISDICTION

SUMMARY: Unaltered versions of both SBCC's limit themselves to unincorporated areas, do not

extend to incorporated areas via MOU, and are not codified by City of Hesperia. Additionally,

no Hesperia Municipal Code grants SBCF authority to enfore either code within City of

Hesperia.

Both SBCC 23.0305(b)(4) and SBCC 23.0301 plainly limit themselves to unincorporated areas of

SBC (emphasis added):


§ 23.0305 Desert Area Fire Hazard Abatement.
(a) Desert Area means all portions of the unincorporated area of the County of San Bernardino north and east of the National Forest boundaries...

§ 23.0301 Duty to Abate Fire Hazards or Hazardous Trees.
Every owner or person in control of any land or interest therein in the unincorporated area of the County of San Bernardino shall abate all fire hazards and hazardous trees from such land and from all sidewalks, parkways, road easements and all other easements on such land...

Neither code extends to City of Hesperia via MOU. First, nobody from City of Hesperia

signed the MOU. Second, no Board of Supervisor signed the MOU. And, third, the MOU

otherwise fails to comply with CA Gov. Code regarding creations, amendments or revisions

of or to county/city ordinances. [See CA Gov. Code: Title 3 ("Government of Counties"),

Division 2 ("Officers"), Part 2 ("Board of Supervisors"), Chapter 1, Article 7

("Ordinances"), Sections 25120, 25121, 25122, 25124, & 25129. Also see Title 4

("Government of Cities"), Division 3 ("Officers") Part 2 ("Legislative Body"), Chapter 2

("Ordinances"), Article 2 ("Enactment"), Sections 36931, 36932, 36933, 36934, and 36937.]

On or before Citation date, City of Hesperia had not codified either SBCC 23.0305(b)(4) or

SBCC 23.0301 into Hesperia's Municipal Code.

And, on of before Citation date, no ordinance in Hesperia's Municipal Code authorized SBC

to enforce either SBCC 23.0305(b)(4) or SBCC 23.0301 within Hesperia's city limits.

For any or all of those reasons, SBC issued Citation either without or in excess of

jurisdiction.

Ultimately, Contestant's hearing was unfair; the alleged AHO committed abuse of

discretion, and SBC acted either without or in excess of jurisdiction.

For those reasons, Contestant asks that ACAR be reversed, and that Citation be dismissed.

Reply Like (0)
specv313 (Aug 13, 2017 - 10:02 am)

If I were the Superior Court judge reading your appeal I'd be annoyed by it. You raise so many arguments it's frustrating; the Judge and his or her clerk now have a sh_t ton of work to do to resolve your appeal. Sometimes making a mountain out of a $100 mole hill works in your disfavor.

Reply Like (0)
guyingorillasuit (Aug 13, 2017 - 11:19 pm)

Whatever you do, do not attack the hearing officer in any way, refer to him as "alleged", or question his qualifications (unless you have direct proof otherwise, which I doubt). Judges do not like to see other bench officers or lawyers being attacked in this manner, and it turns them off.

Also, I wouldn't use the "shotgun" approach to your writ - i.e. throw out a million different arguments, to see what sticks. Take several of your best arguments and expand on them. Research and find out whether or not an MOU is legally enough to extend the ordinance to Hesperia. In other words, would the ordinance itself have to be facially amended to include Hesperia, or whether, perhaps, there is another code section that allows the County to exercise jurisdiction over incorporated land by means of a contract such as the MOU. Look to see what case law governs. See if you can find precedent for the argument that even though the MOU may "incorporate" County regulations into Hesperia, and make them Hesperia regulations, the County still cannot reach into Hesperia. Therefore, it is Hesperia that has to prosecute you for the violation, and not the County, because the County has no jurisdiction over incorporated land.

Here's an example: let's say a County, for some reason, signs an MOU with a federal agency that federal law shall apply within the County. However, that MOU standing alone does not and cannot grant federal courts jurisdiction within the county over all affairs, because federal jurisdiction is granted only by statutes promulgated by Congress. An MOU is not enough.

Reply Like (0)
propurrr (Aug 15, 2017 - 3:56 pm)

Thanks. I removed all the "attacks" on the AHO.

I also cut the "unfair hearing" part.

Now I'm focusing on a few key issues under "Prejudicial Abuse of Discretion" & "Without or in Excess of Jurisdiction"

Reply Like (0)
2ski (Aug 14, 2017 - 12:49 pm)

Just an opinion. This area (Cajon Pass/Phelin) had a big ass wildfire last year that was very close to burning into a neighborhood pushed by very strong winds common in that area. Given they has such a close call, me thinks you are going to have a long fight with the FD.

Reply Like (0)
retard (Aug 15, 2017 - 9:39 am)

Given the low fine amount is there a reason for not just paying it and being done with it? A consequence such as a strike under a three strikes enforcement ordinance? Increased insurance? Because otherwise there has to be a better use of your time.

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propurrr (Aug 15, 2017 - 3:59 pm)

After obtaining a bulls*it warrant, SBC Land Use Services "abated" my weeds. If citation were upheld, I'd have to pay the $100 fine and "reimburse" SBC several hundred dollars for the "abatement" services.

Reply Like (0)
retard (Aug 15, 2017 - 7:51 pm)

Ok. I reviewed this, I reviewed the relevant codes and I have a strong background in local government and intergovernmental cooperation.

First, a city very likely CAN contract out enforcement of its codes to a county. Even if the MOU was not signed by those with legislative authority, if it was ratified in the appropriate manner by the legislative body then it likely passed the smell test. For reference, municipalities incorporate by reference building and fire codes into their own code. If at that point a city and county want to share or delegate enforcement then it's in the public interest (moves the budget liability to the party able to bear it). Here, SBC has an interest in making sure that the fire code is enforced in a city within its boundaries.

The reality is that in a fire prone area a judge is not going to strike down a legislative act that allows for fire protection. Your best shot on this though would be for the judge and the county to realize that they don't want to rule on this and it goes away. Good luck.

Reply Like (0)
propurrr (Aug 15, 2017 - 11:22 pm)

A city very likely CAN do that. In my case, however, County cited me for a County code. And that County code limits itself to UNincorporated areas.

There's NO evidence that MOU was ever ratified.

Also, there's NO evidence that City of Hesperia ever incorporated the code for which I was cited.

SBC should have NO such interest within City of Hesperia, since it has its own municipal code and code-enforcement division.

One, I don't live in a "fire prone" area (Fire-prone areas are, as you may have guessed, in SBC's unincorporated areas. Those places have large, continuous parcels of thick brush. But my neighborhood doesn't). Two, I don't see any evidence that the MOU was ever a "legislative act."

https://preview.ibb.co/nsi87v/Image_6.jpg

https://preview.ibb.co/eZgw0Q/Image_8.jpg

I agree that SBC won't want to get into this, and will (most likely) "no show."

BTW, I'm also going to argue due-process violation under "fair notice" doctrine, since code didn't warn me that it might apply to an incorporated area. Any thoughts on how a judge would perceive that, assuming SBC were to appear?

Reply Like (0)
retard (Aug 16, 2017 - 2:27 am)

Do you actually have proof that the MOU was entered into incorrectly? I mean do you have every agenda from that time period to show it wasn't ratified? Have you FOILed the Secretary of State (or whatever CA's procedure for the promulgation of a local law or its CA equivalent)?

I think the fair notice doctrine fails for the same reason. The policy underpinning this is strong and I doubt a judge is going to want to rule against a fire prevention measure that is squarely in the police power (public health, safety and welfare, etc).

Also, the proper enactment of the MOU is notice in itself. To paraphrase Thomas Jefferson (or Franklin?) ignorance of the law is no excuse to break it.

Lastly, the Hesperia code states that overgrown grass is a public nuisance. I believe it's also in the fire prevention code. It is probably also in the state fire code, which applies everywhere, but I haven't checked there because I have babies to feed, cigars to smoke and you aren't paying me. It seems your real issue is the enforcement of the code by the SBC.

Again, your best bet is you convince a judge that he (Or she,ust in case a liberal is reading!) might have to make a ruling that results in a net negative to the public health, safety and welfare and forces a settlement. To be honest though your best bet is to either hire a lawyer or pay the fine.

Keep in mind that judges come from the political system, which draws its power from government and you are challenging an aspect of government that, despite its seemingly unfair application, actually does benefit the public.

If you want a crusade hire a lawyer and see the cost of the city hiring an enforcement force in your next tax bill should you prevail. My advice is to pay the bill. Even if you win, in addition to wasting valuable months of your life, you might find yourself on the local version of an "enforcement list".

For the record, though I was in the law department of a 500,000 person municipality for much of my formative years, I represent developers and love to stick it to the government. This is not that case.

Happy Hunting.

p.s. that will be $875.00.

Reply Like (0)
propurrr (Aug 16, 2017 - 5:28 am)

1. Yes. It violates the CA Gov. Codes I mentioned in my brief. Only Board of Supervisors can create, amend or revise county ordinances. A creation, amendment, or revision must also be published in a newspaper of general circulation, with names of Board of Supervisors who voted for or against a creation, amendment or revision of a county ordinance. I look forward to seeing proof of that publishing requirement, when reading SBC's response to my appeal.

2. I don't get how SBC could argue that it was "good policy" to have three, non-legislative functionaries clandestinely alter an existing law. If SBC were all about serving the public good, why not simply have legislators (a.k.a. Board of Supervisors) OPENLY amend the code to permit fire-hazard abatement in incorporated areas? Why the need for secrecy? I've got to assume it was needed to cover up something illegal.

3. Would you agree that a "proper enactment" of the MOU would require that it be disclosed in the code for which I was cited? How else would I have known about the document? Before receiving a copy of the MOU, I had not even heard of such a thing. My guess is that 95% of other laypeople haven't either.

Here's the actual law. If you were to read it (and were unaware of the MOU), would you know that it applied to incorporated areas?

§ 23.0305 Desert Area Fire Hazard Abatement.
(a) Desert Area means all portions of the unincorporated area of the County of San Bernardino north and east of the National Forest boundaries.
(b) Flammable vegetation in the Desert Area means:
(1) Tumbleweeds (Russian thistle);
(2) Limbs and debris of salt cedar (Tamarisk) within six feet of the ground;
(3) Plants, unless pruned to remove dead material;
(4) Grass over four inches in height.
(c) Fire Hazard in the Desert Area means:
(1) Flammable vegetation within ten feet of a road;
(2) Tumbleweeds, regardless of distance from structures;
(3) Combustible rubbish;
(4) Flammable vegetation within 30 feet of all structures, including that portion of the property within 30 feet of structures on adjacent properties;
(5) Where neighboring persons or properties are especially vulnerable to the effects of a fire, including, but not limited to schools, hospitals, mobilehome parks, residential occupancies or chaparral/development interfaces, flammable vegetation within 100 feet of all structures.

(Am. Ord. 3586, passed - -1994)

4. I would've need to be cited separately under city code, and state code. But SBC cited me for only that one, county ordinance. A judge couldn't find me liable for violations of other codes, since I wasn't given proper notice. Without proper notice, there's a due-process violation. (Also, state fire code doesn't apply unless a city formally adopts it. Calif. gives local municipalities an option to create their own fire-related ordinances).

5. How is it a "net negative?" Hesperia is a big-boy city, with its own municipal code and code-enforcement agents. If Hesperia wanted me cited, it would've done so. If SBC Land Services were supposed to cite me, it would've been given a law to enforce (not one limited to unincorporated areas). If anything, this is a "net positive," since it redirects Land Services to where it's actually needed: in unincorporated areas, with acres of thick continuous brush, and no city agents to conduct heroic enforcement activities.

6. Somebody found this for me. A Superior Court found that SBC Land Use Services LACKED jurisdiction to issue fire-hazard citations within Grand Terrace, an incorporated city.

"The City has contracted Fire Hazard Abatement services with San Bernardino County since March, 1995.

Grand Terrace City staff was contacted by San Bernardino County Counsel regarding recent court appeals, stating San Bernardino County Land Use Services Department does not have legal authority to issue citations to Grand Terrace residents for non compliance and abatement of fire hazard violations...."

Packet Pg. 61 (Pg. 63 in Adobe PDF)

http://grandterracecityca.iqm2.com/Citizens/FileOpen.aspx?Type=1&ID=1166&Inline=True

7. Hire a lawyer? How would I afford that? "Hesperia Man Torches House to Pay Mounting Legal Bills for Alleged Infraction of County Fire Code"

Reply Like (0)
propurrr (Aug 19, 2017 - 1:12 am)

My Admin. Citation Appeal Ruling ("ACAR") stated that I could appeal to a Superior Court in my district. That court is in Victorville, about 10-15 miles away (Victorville was SPECIFICALLY mentioned on the ACAR).

Today, I went to Victorville Superior Court. While I stood in line in the court's "civil division," a court worker asked me what I was filing. I told her. Then she told me to file it in "criminal," even though I told her that an ACAR appeal was a "limited civil case."

I then went to "criminal." A clerk subsequently REFUSED to let me file my case. She claimed that, since 2014, Victorville STOPPED hearing "limited civil cases." Then she told me that I'd need to file my case in San Bernardino, 60+ miles away.

Afterwards, I asked her to verify what she had said with her supervisor. Her supervisor confirmed it.

I then asked to see the supervisor's supervisor. After I waited for about 10 mins. the higher-level supervisor confirmed that Victorville did NOT accept "limited civil cases." She also confirmed that I'd need to file in San Bernardino. Then she handed me a handwritten note with a San Bernardino address. Unfortunately, she's dumb, ignorant, or evil, since the address was for SBC Code Enforcement, NOT for San Bernardino Superior Court).

Despite her "error," this website (below) actually seems to confirm that Victorville does NOT accept "limited civil cases." In fact, it does NOT even accept "unlimited civil cases" ($>$25k). Other San Bernardino County Superior Courts do NOT accept limited/unlimited civil cases, either. Only the San Bernardino Court does.

http://www.sb-court.org/Divisions/Civil/WhereCanIFile.aspx


How does San Bernadino County get by with these shenanigans? Isn't there a violation of due process, since many people can't get to a court 60+ miles away? For that reason, aren't they suffering implicit DENIALS of access to court services?

(It would be one thing if NO court were in Victorville and SBC couldn't afford to build/staff one. But that's NOT the case here. If you lived in my area and had a family-law issue, you'd get CLOSE access to court services. But, if you wanted to sue somebody for a small sum, you'd spend more $$$ getting to San Bernardino than you'd recover from a judgement). How can such an obvious, unnecessary bias be justified?

Would 9th Circuit COA entertain this issue? Has a COA already addressed this issue? (serious questions, I'm NOT trolling. This much bullsh*t pisses me off).

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2ski (Aug 19, 2017 - 8:43 am)

Sorry you are getting the runaround. Probably because SB county is one if not the largest county(acreage)in the state and have to allocate resources within the court system.

Fair question: Why were the weeds not mowed in the first place?

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propurrr (Aug 19, 2017 - 3:12 pm)

It is the largest county (in acreage). That might justify offering LIMITED court services (Perhaps a few p/t, retired judges could roll in once or twice a month, or even every other month). But I don't think it's legit to SHUT OFF court services to an entire area.

My property is 1/2 acre. It's a PITA to mow, and I didn't enjoy paying $150+ for abatement. Historically, City of Hesperia has NOT cited me. And, over several years, SBC has NOT given me anything more than a "warning." (I figured the "warnings" would NOT turn into citations/warrants, since SBC LACKED jurisdiction). So why should I have either exerted myself or spent $, when repercussions were most likely ZERO? (My property was/is insured. So fire risk was somebody else's problem).

(My reasoning might be vile. But it's rational).

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guyingorillasuit (Aug 19, 2017 - 3:34 pm)

What you're probably filing is not an appeal, but a petition for writ of administrative mandamus. Here's a link on what the difference is: http://saclaw.org/law-101/appeals-topic/

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propurrr (Aug 19, 2017 - 4:28 pm)

It could be done as a "writ of mandate" (CA GOV. Code 1094.5). But SBC does a "limited civil case," under CA GOV. Code 53069.4. (That's the code mentioned on my ACAR).

"(b) (1) Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, within 20 days after service of the final administrative order or decision of the local agency is made pursuant to an ordinance enacted in accordance with this section regarding the imposition, enforcement or collection of the administrative fines or penalties, a person contesting that final administrative order or decision may seek review by filing an appeal to be heard by the superior court, where the same shall be heard de novo, except that the contents of the local agency’s file in the case shall be received in evidence. A proceeding under this subdivision is a limited civil case."

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=53069.4

Here's SBC's form for code-enforcement appeals.

http://www.sb-court.org/Portals/0/Documents/PDF/Forms/13-19890-360NoticeOfAppealCodeEnforcement.pdf

("A copy of the citation and the Administrative Ruling shall be filed with this form").

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retard (Aug 19, 2017 - 8:33 pm)

You are wrong. Minimizing fire risk is a community issue, not just the property owner. If there was a brush fire the repercussions could potentially be born by the neighbors, the firemen, etc.

Also i wonder if you'd be covered after ignoring a part of the fire abatement code.

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propurrr (Aug 19, 2017 - 11:50 pm)

I meant that, by ignoring my weeds, I stood little chance of suffering a fine from gov't. And I saved money from not paying for abatement. Others could get fuc*ed by my large weeds, no doubt.

Yea, it's possible that my insurance company would attempt to deny/reduce my claim IF big weeds were a contributing factor to a fire on my property.

That said, I could possibly argue that city/county weed code was arbitrary. Both claim weeds >4 inches in height are a "fire hazard." But what's the rationale? One isn't given in either code.

4-inch weeds = of ZERO importance

4.01-inch weeds = fire hazard

WTF?

But perhaps a rationale isn't necessary, as long as code seems intuitively reasonable? IDK.

Also, City of Hesperia considers a violation of its code a "civil infraction," punishable by a $100 fine. A "civil infraction" is even less severe than a "criminal infraction" (a.k.a. traffic violation). And a $100 fine is small. So "civil infraction" + small fine = very minor (if not most minor) offense. Would that constitute a reasonable basis to DENY (or SIGNIFICANTLY reduce) a large insurance claim? IDK. But I would assume not.

Lastly, both fire codes (city & county) concern themselves ONLY with "height" of weeds (>4 inches). After serving a warrant, SBC's workers LEFT all of the "abated" weeds on my property. So weeds >4-inches in height ARE a fire hazard, but a yard full of formerly-greater-than-four-inches-in-height weeds isn't? If both types of weed presented similar combustibility, I don't think a code violation would represent a basis for denial/reduction of an insurance claim. My 4.01-inches-in-height weeds would = denial/reduction. But my neighbor's equiv.-to-ten-inches-in-height weeds would = full payment. WTF? That seems ridiculous, but is possibly true.

I previously thought that either code REQUIRED cutting AND REMOVAL (removal = major PITA). Now I know that cutting alone is sufficient for compliance. So, from this point forward, I'll meet that standard to cover my as*.

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2ski (Aug 21, 2017 - 9:57 am)

WRT the 4", this is probably the standard height that a brush mower can cut. So if you cut your grass with a sickle you are trimming the 'excess' height and probably wouldn't be hassled. So, I wouldn't go the wall about the 4".

Now, you make some good points in the rest of your argument. Be persistent, make the drive, get your day in court, and keep us posted. ( there are some good eateries in down the hill in san berdu )

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