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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7073
Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
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Being harassed monthly by violation notices from city

Customer Question

being harassed monthly by violation notices from city stating I must install landscaping because the lawn has been removed, all other trees & shrubs exist over 30yrs. Code says landscape is trees & shrubs OR grass.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 1 year ago.

Can you give me the link for the code?

Customer: replied 1 year ago.
The violation code is 4.29.402(c) it can be viewed @ http://www.codepublishing.com/CA/Oakley/#!/Oakley04/Oakley0429.html ,
I urge you to browse the definitions of terms under that code (g), (n). I've researched this section and find no specification for number of plants per square foot required or anything stating there can be NO exposed ground surface. They are acting as a homeowner assoc.
Customer: replied 1 year ago.
Link was shortened when sent, the rest is CA/Oakley/#!/Oakley04/Oakley0429.html
Expert:  Attyadvisor replied 1 year ago.

Sorry there was a technical issue getting back into your question. Thank you for the link I will check the definitions as well.

Expert:  Attyadvisor replied 1 year ago.

4.29.402 Landscaping Requirements.

a. It is hereby declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any property to maintain such property in such a manner that any one or more of the following described conditions are found to exist:

i. Overgrown, diseased, dead or decayed trees, shrubbery, weeds, lawns or other vegetation that:

(1) Constitutes a fire hazard or other condition that is dangerous to the public peace, health, safety, welfare; or

(2) Creates the potential for the harboring of rats, vermin, vector, or other similar nuisances; or

(3) Is overgrown onto a public right-of-way at least six (6) inches.

ii. Any trees, shrubbery, or other vegetation that overhang onto streets and sidewalks and are not trimmed or maintained in accordance with the following standards:

(1) At least twelve (12) feet above the street and gutter along streets which are not used for bus routes.

(2) At least eight (8) feet above the entire sidewalk.

(3) At least sixteen (16) feet above the street and gutter along streets which are used for bus routes.

iii. Any trees, shrubbery or other vegetation that is completely dead, over eight (8) inches in height and covers more than fifty percent (50%) of the front or side yard visible from any public street.

iv. A violation of any landscaping requirement under an applicable development permit.

b. A property on which the improved surface of the property exceeds 50% of the front yard area setback (including the driveway).

c. A property on which the unimproved surfaces are not maintained in good condition or repair, including without limitation any property which contains excessive weeds, rubbish or debris. Landscaping shall be installed and maintained in any unimproved portion of the front and side yards that is visible from any public right of way. If only Decorative Landscaping is used to meet the requirements of this section, "Weed Block" shall also be used.

Just want to make sure that we are talking about the same violation code. Is the above correct?

Customer: replied 1 year ago.
that is the correct code. My yard has been in place since 1980, it's bordered with railroad ties and Lodi river rock with Juniper bushes, it contains 3 fully grown Locust trees 30-35ft. tall, 2 mexican fan palm trees over 65ft. tall, numerous other shrubs and flowering plants. The yard is very clearly landscaped and although there is no grass at this time, I don't believe I need to have grass to comply with the code, which means the violations being filed are false and deliberate since I have already contested them. I'm prepared to file suit against the city which could become a class action since the city has been using the threats of fines to intimidate residents into complying to their desires of installing bark or rock where lawns used to be. The way I read and understand the definition of landscape, I need to have trees and shrubs OR grass, I don't need to have both to be in compliance.
Expert:  Attyadvisor replied 1 year ago.

The use of the word "unimproved" is clearly vague. In the eyes of the court when language is vague the party that drafted the language (in this case the municipality that wrote the code) is not given the benefit of any doubt. https://www.law.cornell.edu/wex/void_for_vagueness. See numbers 2 and 3. If this is also happening to others my suggestion would be to contact a local land use attorney to challenge the violations. It is amazing how quickly local government will back down when an attorney becomes involved. I can provide you with a link for land use attorneys in your area that provide free consultations.

Customer: replied 1 year ago.
The link you provided did not work, it went to a lost & found. Yes I would appreciate any help with locating an attorney in my area but probably not in the same city for obvious reasons. I live in Oakley, CA. 94561. The term unimproved is defined in the code as any surface not covered by concrete, asphalt, brick or pavers so I don't feel this term is vague. As previously mentioned the definition for landscape in the code is basically the same as found in any dictionary with the exception that other definitions also include altering / changing the contour of the land. If my property had NO plants, trees or other vegetation other than grass, it would be considered landscaped so I remain solid in the fact that the trees and shrubs in place also comply with the landscape requirement as written. I have received six or more violation notices giving me (30) days to comply. Threats of fines $100 - $500 per day, re-inspection fees, and possibly the city correcting the violation and charging me for all costs involved, I believe is coercion. The governor of California passed legislation prohibiting cities and homeowner associations from prosecuting homeowners for allowing lawns to die due to drought and water conservation efforts so the city is using "landscape requirements" as a vehicle to conduct compliance. Further more there are several city owned properties which are in the same condition and worse, some that violate state weed abatement standards (fire hazard), which I would like to see if code enforcement has issued violations, if not then there is also discrimination in the application of code.
Expert:  Attyadvisor replied 1 year ago.

Sorry about the link. I agree with you in regard to the term landscape. Give me one moment to provide a link for attorneys in your area. They have a tendency to back down when an attorney is involved otherwise they have no problem continuing to harass taxpayers. I think they forget who pays their salaries.

Expert:  Attyadvisor replied 1 year ago.

Please let me know if you have any trouble with the link. Just in case this is an additional link https://www.justia.com/lawyers/real-estate-law/california/contra-costa-county.

If you would be kind enough to rate my service positively so I may receive credit for my work I would appreciate it. Thank you.