Board of Administrative Appeals

Agenda prepared by: City Clerk (925) 779-7009 BOARD OF ADMINISTRATIVE APPEALS ADMINISTRATIVE REVIEW PANEL Council Chambers 200 “H” Street MAY 2, 2013 3:00 P.M. 3:00 P.M. ROLL CALL: Diana Busenbarrick, Chairperson Deborah Simpson, Vice Chairperson Mike Schneider Maurice Jennings PLEDGE OF ALLEGIANCE 1. CONSENT CALENDAR A. APPROVAL OF ADMINISTRATIVE APPEALS MINUTES FOR APRIL 11, 2013 Recommended Action: Motion to approve the minutes MINUTES 2. APPEALS A. CITATION NO. 31821 – Appeal of Administrative Citation issued regarding Excessive Barking Dogs for Alejandro Lopez, 2905 Cashew Street, Antioch, CA [§6-1.18] STAFF REPORT PUBLIC COMMENTS WRITTEN/ORAL COMMUNICATIONS ADJOURNMENT PLEASE TURN OFF CELL PHONES BEFORE ENTERING COUNCIL CHAMBERS. The meetings are accessible to those with disabilities. Auxiliary aides will be made available for persons with hearing or vision disabilities upon request in advance at (925) 779-7009 or TDD (925) 779-7081. Agenda and related writings provided to members are available for viewing by the public during normal office hours at the City Clerk’s Office, located on the 3RD Floor of City Hall, 200 H Street, Antioch, CA 94509.  BOARD OF ADMINISTRATIVE APPEALS ADMINISTRATIVE REVIEW PANEL Regular Meeting April 11, 2013 3:00 p.m. Council Chambers Chairperson Busenbarrick called the meeting to order at 3:00 P.M. on Thursday, April 11, 2013, in the Council Chambers. ROLL CALL: Present: Chairperson Busenbarrick, Board Members Schneider and Simpson Absent: Board Members Jennings and Schleder Staff Present: City Attorney, Lynn Tracy Nerland City Clerk, Arne Simonsen Deputy City Clerk, Christina Garcia Animal Control Officer, Ada Romero-Gomez Senior Animal Control Officer, Andrea Sutherland Minutes Clerk, Kitty Eiden PLEDGE OF ALLEGIANCE Chairperson Busenbarrick led the board, staff and public in the Pledge of Allegiance. 1. CONSENT CALENDAR A. APPROVAL OF ADMINISTRATIVE APPEALS MINUTES FOR NOVEMBER 1, 2012 On motion by Board Member Simpson, seconded by Chairperson Busenbarrick, the Board Members approved the Minutes of November 1, 2012. The motion carried the following vote: Ayes: Board Member Simpson and Chairperson Busenbarrick Abstain: Board Member Schneider Absent: Board Members Jennings and Schleder City Attorney Nerland explained the manner in which the proceedings would be conducted and reviewed the options available for the Appeals Board. 2. APPEALS A. CITATION NO. 30251 – Appeal of Administrative Citation issued regarding Excessive Barking Dog for Alejandro Lopez, 2905 Cashew Street, Antioch, CA [§6-1.18] 1A 05-02-13 BOARD OF ADMINISTRATIVE APPEALS Regular Meeting April 11, 2013 Page 2 of 5 Animal Control Officer Gomez presented the staff report dated April 4, 2013 recommending that the Board of Administrative Appeals uphold the Administrative Citation No. 30251 for the Violations of Antioch Municipal Code § 6-1.18 Excessive Barking on February 16, 2013. For the record, Animal Control Officer Gomez stated Animal Control had issued a warning and Notices to Correct prior to issuing a Citation. APPELLANT Alejandro Lopez, reported he was not at home when the citation had been issued however, he was at the residence at 8:00 A.M. when the complainant stated the barking began. He noted there were parties in the neighborhood and it had been noisy on the date the incidence occurred. He reported officers had been called to his residence fourteen (14) times and only three (3) of the complaints had been founded. He stated he felt his dogs were barking for a reason and under § 6-1.18 there should have been further investigation into why they were barking. He suggested the City code be equal to the County code. He reported he had modified the way his dogs lived and had purchased anti-barking devices for them. He disagreed with reports that indicated his dogs barked all day and night. He resubmitted the petition contained within the staff report that indicated twenty-three (23) of his neighbors had never been disturbed by his dogs or birds. In response to Board Member Schneider, Mr. Lopez stated the dogs bark however, not consecutively and only when they are responding to someone passing his property. In response to Chairperson Busenbarrick, Mr. Lopez stated he had received a Notice to Correct in January 2012. OPPONENTS David Yount, reported he was the neighbor who had complained regarding the dogs growling and barking at him and the bird squawking. He added that the situation had negatively impacted his quality of life as he has been unable to leave his windows open, use his backyard and or sleep in a bedroom located in the back of the home. He stated he believed the dog barked excessively because it was bored and the owner had never attempted to quiet him. He stated he did not understand why the owner had not taken responsibility, however, since the issuance of the citations; he had corrected the problem. Kay Gehrmann, Concord resident, stated she visited Mr. Yount and had witnessed the dog barking excessively while she was at his residence. Chairperson Busenbarrick clarified the decision made on this matter would be based off of City Code. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting April 11, 2013 Page 3 of 5 Board Member Schneider stated given the evidence presented by the City, the burden of proof was on the Appellant to indicate why the barking is reasonable. He noted that had not occurred, therefore, he was making a recommendation to uphold the citation. Board Member Simpson reported the petition submitted affirmed that the other neighbors had never been disturbed by the Appellant’s dogs or birds. She questioned if one neighbor continually complaining, was the frequency, as defined in the City Code that warranted Mr. Lopez paying a $100.00 citation. On motion by Board Member Schneider, seconded by Chairperson Busenbarrick, the Board of Administrative Appeals denied the appeal and upheld the Administrative Citation No. 30251 for the Violations of Antioch Municipal Code § 6-1.18 Excessive Barking on February 16, 2013. The motion carried the following vote: Ayes: Board Member Schneider and Chairperson Busenbarrick Noes: Board Member Simpson Absent: Board Member Jennings and Schleder B. CITATION NO. 30254 (second citation received) – Appeal of Administrative Citation issued regarding Excessive Barking Dog for Alejandro Lopez, 2905 Cashew Street, Antioch, CA [§6-1.18] Animal Control Officer Gomez presented the staff report dated April 4, 2013 recommending that the Board of Administrative Appeals uphold the Administrative Citation No. 30254 for the Violations of Antioch Municipal Code § 6-1.18 Excessive Barking on March 7, 2013. APPELLANT Alejandro Lopez, reported that at the time the citation was issued, he was not home however, he had confirmed with another neighbor that his dogs had been barking at animals on the fence. He read Antioch Municipal Code § 6-1.18. He noted his dogs barked when Animal Control Officers arrived at his house because they were protecting his property. He stated he had not been careless and he did not ignore the situation. He noted he had witnessed the neighbor provoke his dogs which had caused them to bark. He stated he had attempted to work with the City, Police Department and Animal Control to resolve this matter; however, he could not stop one person from complaining. He stated he no longer owned the bird and he asked for help to resolve the issue. In response to Chairperson Busenbarrick, Mr. Lopez stated the dogs no longer sleep outside, at night, and they traveled with him when he left the property. He stated when they barked, he would quiet them down in Spanish. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting April 11, 2013 Page 4 of 5 OPPONENTS David Yount, Antioch resident, clarified his fence was fifteen (15) feet from the barking dogs and it echoed throughout the yard. He stated he had never witnessed the owner attempt to quiet them. He reported that he talked to neighbors who had indicated they had not discussed this matter with Mr. Lopez. He noted that Mr. Lopez had not responded to warnings or the Notices to Correct, however, the problem had been resolved since the citation was issued. He stated if there was any other way he could have rectified the matter, he would have done so and that all he wanted was peace and quiet so he could enjoy his property. In response to the Board, Mr. Yount clarified that since the citation had been issued, the problem had improved ninety-nine percent (99%). Officer Gomez clarified Mr. Lopez was warned multiple times by Animal Control and the Antioch Police Department and he was given two Notices to Correct, prior to an Administrative Citation being given. REBUTTAL Alejandro Lopez reported that he had invited Mr. Yount to arbitration to resolve the issue and those offers had not been accepted. He noted the dogs had been aggravated by Mr. Yount and out of the 14 calls, only 3 were founded. He stated he wanted proof that his dogs were barking and felt the City should have investigated what caused them to bark. He stated he cared about his surroundings and he had great communication with his neighbors, except for Mr. Yount. In response to Chairperson Busenbarrick, Mr. Lopez stated he had read the report detailing the calls for service. Board Member Schnieder stated that prior to this citation, Mr. Lopez had received an administrative warning and was aware of the calls for service. He clarified that proof of the violation, was from the testimony of the Animal Control Officer and the appellant’s statement indicating a neighbor had confirmed the dog was barking. Board Member Simpson remained concern that all the complaints were from the same person, who acknowledged the situation had improved. Following discussion, the Board agreed to uphold the citation and mitigate the fine. On motion by Board Member Schneider, seconded by Chairperson Simpson, the Board of Administrative Appeals unanimously denied the appeal and upheld the Administrative Citation No. 30254 for the Violations of Antioch Municipal Code § 6-1.18 Excessive Barking on March 7, 2013 and mitigate the fine from $200.00 down to $100.00. BOARD OF ADMINISTRATIVE APPEALS Regular Meeting April 11, 2013 Page 5 of 5 PUBLIC COMMENTS David Yount, Antioch resident, stated he felt Animal Control and the Antioch Police Department needed to be more responsive when they received calls for disturbing the peace at night. WRITTEN/ORAL COMMUNICATIONS - None ADJOURNMENT Chairperson Busenbarrick adjourned the Administrative Board of Appeals meeting at 3:52 p.m. to the next regularly scheduled meeting on May 2, 2013. Respectfully Submitted, __________________________ Kitty Eiden Minutes Clerk