Chapter 8.04 PROPERTY MAINTENANCE

The purpose and intent of this chapter are to promote the health, safety, economic, aesthetic and general welfare of the citizens of the city, and to protect neighborhoods against property-related nuisances, blight and deterioration by establishing requirements for all buildings, whether residential or nonresidential, or structures of whatever kind, and establishing requirements for the maintenance of all land, whether improved or vacant.

The city of Benicia has a history and reputation for well-kept properties. Property values and the general welfare of the community are founded, in part, upon the appearance and maintenance of private properties. When owners and occupants of properties within the city permit conditions to exist which are below the minimum conditions required by this chapter, it is injurious and detrimental to the public health, safety, and welfare of residents of the city and contributes substantially and increasingly to the deterioration of residential neighborhoods and commercial areas. The abatement of continued violations impacts city personnel and resources, requires resources over and above the level of enforcement services normally provided, and constitutes a public nuisance, the costs of which should be paid by the responsible property owners.

This chapter establishes procedures to abate any and all public nuisances which are violations of this code, or which the city has declared to be injurious to the public health, comfort, convenience, safety, welfare, prosperity, peace and quiet of the citizens. (Ord. 18-17 § 2).

8.04.020 Definitions.

As used in this chapter:

“Backyard” means that portion of property between the back of the primary residential structure and the rear property line.

“Building” means any structure having a roof supported by columns or walls used or intended to be used for the shelter or enclosure of persons, animals or property.

“City” means the city of Benicia.

“City manager” means the city manager or his or her duly authorized representative.

“Commercial blight” means any building that accommodates commercial uses that is (1) in a state of disrepair or (2) inadequately maintained. Examples of commercial blight include, but are not limited to: exterior walls and/or roof coverings which have become deteriorated and do not provide adequate weather protections, resulting in termite infestation and/or dry rot; broken or missing windows or doors which constitute a hazardous condition or a potential attraction to trespassers; building exteriors, walls, fences, signs, retaining walls, driveways, walkways, sidewalks or other structures on the property which are broken, deteriorated, or substantially defaced, to the extent that the disrepair is visible from any public right-of-way or visually impacts neighboring public or private property or presents an endangerment to public safety; building exteriors, walls, fences, signs, retaining walls, driveways, walkways, sidewalks or other structures on the property which have been repainted in such a manner that the appearance may be further deteriorated or substantially defaced; and/or overgrown, diseased, dead, or decayed trees, weeds or vegetation.

“Costs or expenses to abate the nuisance” means the actual cost of abatement plus all administrative expenses, including direct and indirect personnel costs; costs incurred in documenting the nuisance; the actual expenses and costs of the city in the preparation and dissemination of notices, specifications, and contracts and in inspecting the work; the costs of printing and mailing the required notices; and the costs of imposing a lien, if a lien becomes necessary.

“Enforcement officer” means any individual employed by the city with primary enforcement authority for this chapter, or his or her duly authorized representative, or any city employee or agent of the city with the authority to enforce a provision of this code.

“Front yard” means that portion of property between the abutting frontal street and the primary building or residential structure.

“Hearing officer” means the individual appointed by the city manager under this chapter to hear all timely appeals described in this chapter. The hearing officer can have no pecuniary interest in the outcome of the hearing, or interest in or bias regarding the case. If the appointee is a city employee, the appointee cannot work in the department that is enforcing the code violations, nor can any decision as the hearing officer be made subject to the employee’s performance evaluation in his/her regular job.

“Junk” means any cast-off, damaged, discarded, junked, obsolete, salvaged, scrapped, unusable, worn-out or wrecked object, thing or material, including but not limited to those composed in whole or in part of asphalt, brick, carbon, cement, plastic or other synthetic substance, fiber, glass, plaster, plaster of Paris, rubber, terra cotta, wool, cotton, cloth, canvas, wood, wood chips, tree trimmings or cuttings, metal, sand, organic matter or other substance.

“Junkyard” means any property on which any junk is abandoned, bailed, bartered, bought, brought, bundled, deposited, disassembled, disposed of, exchanged, handled, kept, stored or transported, regardless of whether or not such activity is done for profit.

“Owner” and “property owner,” as used herein, and unless otherwise required by the context, shall be deemed to include any person owning, leasing, renting, occupying or having charge or possession of any property in the city to and including any person identified as owning property as shown on the last equalized assessment roll.

“Person,” as used in this chapter, means any individual, partnership, corporation, limited liability company, association, or other organization, however formed, including heirs in possession, executors, administrators, or assigns.

“Property” or “premises” means any lot or parcel of land, including any alley, sidewalk or parkway abutting such lot or parcel of land, or improvements thereon, or portions thereof, as the case may be.

“Public nuisance” means anything which is, or is likely to become, injurious to health or safety, or is offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any public park, square, street or highway. All conditions enumerated in BMC 8.04.030 are public nuisances by definition and declaration, and said enumerated conditions shall in no way be construed to be exclusive or exhaustive.

“Side yard” means that portion of property between the side of the building or residential structure and the property line.

“Vehicle” references the current definition of same contained at Section 670 of the California Vehicle Code, and means any device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks. Vehicles do not include wheelchairs. (Ord. 20-06 § 1 (Att. 1); Ord. 18-17 § 2).

8.04.030 Unlawful public nuisances – Defined.

It shall be unlawful and a public nuisance for any person owning, renting, leasing, occupying or having charge or possession of any real property in the city to maintain, or allow or permit others to maintain, such property in any of the following conditions:

A. The exterior accumulation of vegetation, weeds, dirt, litter, rubbish or debris on the property which is visible from a public street, sidewalk, alleyway, right-of-way or neighboring property. This includes, but is not limited to:

1. Neglected or improperly maintained landscaping, dead, debris-laden, weed-infested or overgrown vegetation, such as trees, shrubs, hedges, grass and ground covers, or vegetation dying as a result of physical damage, disease, insect infestation or lack of water or any other vegetation;

2. Vegetation likely to harbor rats, vermin and other nuisances or causing detriment to neighboring properties, or out of conformity with neighboring community standards to such an extent as to result in appreciable diminution of property values;

3. Vegetation growing on the roof or compromising the integrity of any structure, except for rooftop gardens designed and constructed to withstand structural load;

4. The removal or failure to maintain in good condition any landscaping required as a condition of any permit or development approval or included in the project plans or application without city approval. “Good condition” means that plant material is alive, irrigated, and otherwise cared for to ensure survival.

The provision as to dead or dying vegetation due to lack of water shall not be enforced during a drought year, as determined by the city. For purposes of this subsection, a lawn area shall be deemed overgrown if 50 percent or more of its area exceeds four inches in height (not including decorative grasses). (See also Chapter 8.08 BMC, Weeds and Rubbish).

B. The accumulation or storage of junk, trash or debris, including but not limited to tires, broken, abandoned or discarded furniture, sinks, toilets, cabinets or other household fixtures, equipment or parts thereof, rubbish, garbage, goods and furnishings, shopping carts, packing boxes, lumber, salvage materials or other materials, accumulations of grease, oil, or petroleum-based products of any kind, animal feces, or other debris and litter, which constitutes a fire hazard or safety hazard and/or is stored or accumulated in such a manner as to constitute visual blight which is visible from the public street, sidewalk or right-of-way, alley, or adjoining property. This includes the dumping, spillage or storage of solids or liquids which may negatively impact the visual or olfactory nature of the area.

C. Buildings, fences or other structures, the exterior walls or windows of which are visible from a public street, sidewalk or right-of-way, which are cracked, broken, leaning, fallen, decayed, deteriorated or defaced, including but not limited to unpainted or untreated exterior wood surfaces (other than natural decay-resistant wood) on any building (or any portion thereof), or structure in which the condition of the paint has become so deteriorated as to permit decay, excessive checking, cracking, peeling, chalking, dry rot, warping, or insect infestation, including failure to provide adequate weather protection to structures or buildings, including, but not limited to, cracked, peeling, warped, rotted, or severely damaged paint, stucco or other exterior covering.

D. Failure to maintain property, building structure, required fence, driveways, sidewalks or parking areas so that it becomes defective, unsightly, or in such condition of dilapidation or disrepair that it causes or accelerates the deterioration of the property or causes the depreciable diminution of the property values of surrounding properties, or is otherwise materially detrimental to adjacent properties.

E. Buildings or other structures which are abandoned, partially destroyed, partially constructed or allowed to remain unreasonably in a state of partial construction or neglect.

F. Vacant or abandoned buildings or structures with doorways, windows or other openings left open, unlocked, unsecured or otherwise easily accessible to trespassers, vagrants, vandals or other persons not authorized to enter.

G. Broken windows constituting hazardous conditions, or contributing to neighborhood blight, or resulting in unsecured property inviting trespassers and malicious mischief.

H. Storage or maintenance of packing boxes, storage containers, lumber, pallets, metal storage bins or containers, trash, dirt and other junk deposited or stored for unreasonable periods either inside or outside buildings, visible from the street or nearby property, which constitute visual blight, health and safety issues, are offensive to the senses, or are detrimental to nearby property values.

I. Where visible from a public street, sidewalk or right-of-way, the exterior storage or maintenance of unregistered, dismantled or inoperative vehicles, automotive engines, parts, or machinery of any type or description, unless specifically authorized by city license or permit; building materials or merchandise unless specifically authorized by an active use, building or other city permit; construction equipment or garbage bins except while excavation, construction or demolition operations covered by an active building permit or other city permit are in progress on the subject or adjoining property. (See also Chapter 10.44 BMC, Abandoned, Wrecked, Dismantled or Inoperative Vehicles.)

J. The parking or storage of any vehicle, boat, trailer, camper, camper shell, motor home or other mobile equipment, whether or not motorized, or portions thereof, including accumulation or storage of vehicle parts or other mechanical parts and components of a vehicle, boat, trailer, camper, or motor home, on property used or zoned for residential purposes, on any front lawn, front yard, side yard or rear yard, where visible from the public right-of-way; provided, however, that such parking or storage of a legally registered and operable vehicle, boat, trailer, camper, or motor home shall be allowed on required parking spaces or paved driveways leading directly from approved and permitted curb cuts to required garages, carports or other required off-street parking spaces if such vehicle, boat, trailer, camper or motor home is located totally within private property and does not extend or block any public right-of-way or interfere with a line of sight from a public right-of-way to the extent that it creates a safety hazard. It shall also be prohibited, and a public nuisance, to park any vehicle on any privately owned property if such vehicle would be prohibited from parking on such property pursuant to BMC 10.16.080 and 10.16.160.

K. Use of property in a residential district for the purpose of performing auto repair for profit. Auto repair including work on any vehicle, boat, trailer, camper, motor home or other mobile or mechanical equipment, whether or not motorized, may be allowed only in accordance with the provisions of BMC 8.32.030. In no instance shall more than two permits be issued and active at any one time for any property located in a residentially zoned district. All such auto repair shall only be allowed on or in the approved driveway, garage, carport or other required off-street parking space.

L. Land, the topography, geology or configuration of which, whether in natural state or as a result of grading operations, excavation or fill, that causes erosion, subsidence, or surface water drainage problems of such magnitude as to be injurious or potentially injurious to the public health, safety and welfare or to adjacent properties.

M. Once commenced, the failure by private property owners to complete, within a reasonable period of time, exterior physical improvements, visible from the public right-of-way, such as streets, curbs, gutters and other improvements whether or not intended to be dedicated to the city.

N. Obstruction or encroachment upon any public property including, but not limited to, any public street, sidewalk, highway, right-of-way, park or building, without a valid permit. Such obstructions or encroachments include, but are not limited to, overgrown trees and shrubs; building materials; merchandise or other personal property; and buildings or portions of buildings or structures protruding onto public property.

O. Maintain property in a manner which causes a hazard to the public by obscuring visibility of an intersection.

P. An attractive nuisance dangerous to children including, but not limited to, abandoned, broken or neglected equipment; machinery; a refrigerator, freezer or other appliance; or hazardous pool, pond or excavation.

Q. Maintain a building, structure, any artificial alteration of property, any activity or any water that supports the development, attraction or harborage of vectors, or that facilitates the introduction or spread of vectors, or that is a breeding place for vectors. The presence of vectors in their developmental stages on the property is prima facie evidence that the property is a public nuisance. “Vector” means any animal capable of transmitting human disease or capable of producing human discomfort or injury, including, but not limited to, mosquitoes, flies, mites, ticks, other arthropods, rodents and other vertebrates.

R. Causing, maintaining or permitting graffiti as defined in BMC 8.38.020: (1) to remain on exterior walls or facades of buildings, fences, walls, or other structures of whatever nature; or (2) to remain upon the exterior of motor vehicles, vans or trucks which are parked on public streets or driveways or are otherwise visible to the public. (See also Chapter 8.38 BMC, Graffiti Control.)

S. Storage of hazardous materials in such a manner as to be injurious or potentially injurious to the public health, safety and welfare or to adjacent properties.

T. The existence of any property condition which is unlawful or declared to be a public nuisance pursuant to any other provision in this code. This subsection shall be construed to place an affirmative duty on property owners and occupants to maintain their property in conformity with all applicable codes. The city shall have the power to require property owners and occupants to bring their property into compliance with applicable codes, regardless of whether the building is occupied.

U. Discharge of any materials other than storm water to the city storm sewer system in violation of Chapter 13.50 BMC.

V. Garbage cans and recycling containers stored in front yards and visible from public streets, other than as permitted by this code.

W. Heavy commercial vehicles, construction equipment, or machinery of any type or description parked or stored without a permit on property where it is readily visible to the general public, except during excavation, construction or demolition operations pursuant to an active building permit in progress on the subject property or on adjoining property.

X. Improper maintenance of signs or sign structures, or signs on property relating to uses no longer conducted or products no longer sold, on property more than 60 days after business uses or products sold cease, or signs in violation of this code. This does not include historic signs approved by the city.

Y. The use, in any residential zoning district or residential planned development district of the city, of barbed wire, concertina wire, razor-cut wire or other such similar fencing material, unless specifically approved by the city.

Z. Throwing or depositing any materials into any creek or channel unless authorized by COB, Army Corps and/or DFW.

AA. Any fence which is in a condition of dilapidation or disrepair, including, but not limited to, fences with broken slats and sharp edges, or which severely lean or list more than 15 degrees from perpendicular or are in danger of collapse due to the elements, pest infestation, dry rot, or other damage.

BB. A public nuisance as defined by California Civil Code Section 3479 or 3480.

CC. Any condition recognized in law or in equity as constituting a public nuisance, or any condition existing on property which constitutes visual blight, or is a health or safety hazard to the community or neighboring properties.

DD. Any violation of the Benicia zoning ordinance or any state or county law violation enforced by the city.

EE. Maintaining or failing to maintain a property that accommodates commercial uses in such a manner as to create, establish or constitute commercial blight. (Ord. 20-06 § 1 (Att. 1); Ord. 18-17 § 2).

8.04.040 Nuisance – Unsafe, substandard and dangerous building.

A building or structure which has one or more of the following conditions is deemed to be a public nuisance and an unsafe, substandard and dangerous building, if the conditions exist to the extent that the life, health, property, or safety of the public or occupants is endangered as determined by the city building official and/or their designee:

A. Inadequate sanitation;

B. Structural hazard;

C. Hazardous electrical wiring;

D. Hazardous plumbing;

E. Hazardous mechanical equipment;

F. Faulty weather protection;

G. Fire hazard;

H. Use of faulty construction materials;

I. Hazardous or unsanitary premises;

J. Inadequate exits;

K. Inadequate fire protection or firefighting equipment;

L. Improper occupancy;

M. Any other violation of the most current adopted building codes;

N. Any other violation which is set forth in the most current edition of any of the following code sections:

1. California Building Code Section 116, Unsafe buildings or structures.

2. California Health and Safety Code Section 17920.3, Substandard buildings.

3. Uniform Code for the Abatement of Dangerous Buildings Section 302, Dangerous Building. (Ord. 18-17 § 2).

8.04.050 Declaration of public nuisance.

All property found to be maintained in violation of any one or more of the provisions of this chapter is declared to be a public nuisance and shall be abated by rehabilitation, demolition and/or repair pursuant to the procedures set forth herein. (Ord. 18-17 § 2).

8.04.060 Nonexclusive remedies.

The procedures in this chapter shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other ordinances or abating public nuisances by all other remedies, including by issuing administrative citations in Chapter 1.10 BMC, or other administrative, civil or criminal proceedings, or in any other manner provided by law. Nothing contained in this chapter shall be construed as limiting, prejudicing, or adversely affecting the city’s ability to concurrently or consecutively use any of those proceedings as the city may deem are appropriate, efficient, effective, and/or practical. (Ord. 18-17 § 2).

8.04.070 Emergency summary abatement.

Notwithstanding any other provisions of this chapter to the contrary, whenever it is determined that a public nuisance is so imminently dangerous to life or adjacent property that such condition must be immediately corrected or isolated, the enforcement officer may institute the following procedures:

A. Notice. To the extent possible, the enforcement officer (or other city official) shall attempt to make contact with the landowner or the person, if any, occupying or otherwise in real or apparent charge and control of the property. In the event contact is made, the enforcement officer shall notify them of the danger involved and require that such condition be immediately removed, repaired or isolated to prevent harm to any person or property.

B. Abatement. In the event the enforcement officer is unable to make contact, or if the appropriate persons after notification by the city do not take action as specified by the city within 72 hours, or a lesser period if deemed necessary, then the enforcement officer may, with the approval of the city manager, take all steps deemed necessary to remove or isolate the dangerous condition or conditions with the use of city forces or a contractor retained pursuant to the provisions of this code.

C. Costs. The enforcement officer shall keep an itemized account of the costs incurred by the city in removing or isolating such condition or conditions. Such costs may be recovered to the same extent and in the same manner that abatement costs are recovered as set forth in this chapter pursuant to Government Code Sections 38773 and 38773.1. (Ord. 18-17 § 2).

8.04.080 Determination of nuisance – Notice of violation.

A. Whenever an enforcement officer charged with the enforcement of any provision of this chapter determines that a violation of a provision has occurred, the enforcement officer shall have the authority to cause the owner and any responsible party to be notified of the existence of such condition on the premises and shall direct such parties to abate the nuisance.

B. The notice of violation shall contain the following information:

1. The names and addresses of the owner and responsible parties, if any, in violation of this chapter, and the street address, legal description or other description of the premises where the violation is present;

2. A statement specifying the condition(s) which constitute a nuisance and the specific code section(s) which have been violated and the actions needed to abate the violations;

3. A reasonable time limit to correct the violation(s) not less than 10 calendar days or more than 20 calendar days after the date of the notice, based on the type, severity and number of previous violations on the same property, unless the enforcement officer determines there are circumstances of hardship that warrant additional time for abatement;

4. A statement explaining the consequences and range of penalties for not abating the violation within the time specified in the preliminary notice, including but not limited to the imposition of administrative charges, incurring city abatement costs, issuance of administrative citations, and/or other legal remedies available to the city; and

5. The name and phone number of a contact person at the city should the recipient desire to explain why the premises should not be declared a public nuisance and why penalties should not be assessed.

C. A copy of the notice of violation provided for in this section shall be served by personal delivery or by mail to the owner at the address appearing on the last equalized assessment roll of Solano County on the date the notice is prepared and upon any responsible party at their known address, including the occupant of the premises, if any. Service by mail shall be deemed to have been completed at the time of deposit in the United States mail. If the owner is not known, the notice may be posted on the property.

D. In no event does this chapter or its requirements limit the right of the enforcement officer or other city officials to issue informal written or oral notices of code violations to persons specifying shorter compliance periods when appropriate or when abatement by city forces is not the contemplated remedy. (Ord. 18-17 § 2).

8.04.090 Notice and order to abate or show cause.

A. Determination. Whenever the enforcement officer determines that property within the city is being maintained as a public nuisance, and the notice of violation has not resulted in abatement, the enforcement officer shall give a written final notice to the owner by serving a “notice and order to abate or show cause.”

B. Contents of Notice. The notice and order to abate or show cause (“notice to abate”) shall include the following:

1. The names and addresses of the owner and responsible parties, if any, in violation of this chapter and the street address, legal description or other description of the premises where the violation is present;

2. A statement specifying the condition(s) which constitute a nuisance and the specific code section(s) which have been violated and the actions needed to abate the violations;

3. A statement directing the owner to abate the nuisance and establishing the length of time permitted for voluntary abatement of the nuisance, which shall be at least 10 days unless the owner makes other arrangements with the approval of the enforcement officer;

4. The amount of the administrative charge owed the city pursuant to BMC 8.04.160 and the time limit not to exceed 30 days to pay the charge, and the consequences of not paying the administrative charge within the time specified in the notice;

5. A statement that if the owner does not voluntarily abate the nuisance or request a hearing within the specified time period, the city will enter the property and abate the nuisance, and the cost of abatement will become a charge against the owner and a lien or assessment against the property, if unpaid;

6. A statement that the owner may, within 10 days of date of the notice and order to abate, file a written request with the city clerk for an administrative hearing to show cause why the condition should not be abated by the city and why administrative charges and other abatement costs should not be charged against the owner;

7. The amount of the appeal fee as established by city council resolution and procedure for requesting an appeal fee hardship waiver pursuant to BMC 8.04.110;

8. A statement that failure to seek a hearing as provided shall constitute a waiver of all rights to an administrative hearing and determination of the matter and will waive all rights to maintain an action to set aside or modify the enforcement officer’s notice, order and action.

C. Manner of Giving Notice. The notice and order to abate shall be given to the owner in person or by regular, first class mail, postage prepaid, to the owner’s address as it appears on the last equalized assessment roll or as known to the enforcement officer. Notice is deemed complete at the time notice is personally delivered or deposited in the mail. If the notice is not personally served, in addition to mailed notice, the enforcement officer shall post a copy of the notice in a conspicuous place upon the property. If the owner of record, after diligent search, cannot be found, the notice may be served by posting a copy of the notice in a conspicuous place upon the property for a period of 10 days and publication in a newspaper of general circulation published in Solano County pursuant to Government Code Section 6062. The 10-day period in which to file an appeal shall be extended by the length of time it takes to publish the notice and order to abate pursuant to this section.

D. The failure of a person to receive notice shall not affect the validity of proceedings under this chapter. (Ord. 18-17 § 2).

8.04.100 Request for hearing.

The request for a hearing shall be filed with the city clerk within 10 days of the date of the notice and order to abate and must contain the following:

A. The name, address, telephone and any facsimile numbers of each person appealing the notice and order to abate.

B. A statement of the reason(s) why notice and order to abate is being contested and to show cause why the city should not abate the violations.

C. The date and signature of the owner and/or other persons appealing the notice and order to abate.

D. The appeal fee or hardship waiver form and supporting documentation. (Ord. 18-17 § 2).

8.04.110 Request for hardship waiver of appeal fee.

Any owner who requests a hearing to appeal a notice and order to abate and is financially unable to pay the appeal fee may file a request for a hardship waiver as follows:

A. The request for waiver shall be made on a form obtained from the city clerk and must be submitted to the city clerk with all supporting documentation within 10 days of the date of the notice and order to abate. Documents suitable for consideration may include, without limitation, accurate, complete and legible copies of state and federal income tax returns, and all schedules for the preceding tax year; financial statements, loan applications, bank account records, income and expense records for the 12 months preceding submittal of the waiver form, as well as other documentation demonstrating the responsible person’s finance hardship. The city manager or designee may grant a reasonable extension to the owner to supply supporting documentation. The city may, at a time chosen in its sole discretion and after a citation is final or confirmed, destroy or discard the documents submitted for a hardship waiver without prior notice to the responsible person.

B. The city manager or designee shall issue a written decision sent by first class mail specifying the reasons for issuing or not issuing the waiver within 10 days of the receipt of the request. The decision of the finance director shall be final.

C. If the city manager or designee determines a waiver is not warranted, the owner shall remit the appeal fee within 10 days of the date of the written determination. If the city clerk does not receive the appeal fee within this time period, the request for hearing shall not be accepted and shall constitute a failure of the property owner to exhaust his or her administrative remedies. (Ord. 18-17 § 2).

8.04.120 Administrative show cause hearing.

A. A written request for hearing and appeal fee or hardship waiver must be received by the city clerk within 10 days of the date of the notice and order to abate, except where there has been a delay in the service as set forth in BMC 8.04.090(C).

B. If a timely request for a hearing is received, the appointed hearing officer shall set a time and date for hearing and notify the person requesting the hearing in writing of the time, date, and place. The hearing may be continued once to a reasonable time upon the request of the owner, with the approval of the hearing officer, and by the city for good cause.

C. The city and owner shall be given the opportunity to testify and present evidence concerning the violation(s) and proposed rehabilitation, repair and/or demolition of the subject property and timeline for abatement in the notice and order to abate. The owner may represent themselves or be represented by any person of their choice. Although formal rules of evidence and discovery will not apply to the appeal hearing, each party shall have the following rights among others:

1. To call and examine witnesses on any matter relevant to the condition of the premises constituting a nuisance.

2. To introduce documentary and physical evidence.

3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing.

4. To impeach any witness, regardless of which party first called that witness to testify.

5. To rebut the evidence against him or her.

6. If a party does not proficiently speak or understand the English language, an interpreter may be utilized, at the party’s own expense, to translate for the party. An interpreter shall not have had and shall not have any involvement in the proceeding, unless the hearing officer finds that circumstances warrant an exception to this rule.

7. The proceedings at the hearing shall be recorded by a tape recorder.

8. Either party may provide a certified shorthand or stenographic reporter to maintain a written record of the proceedings at the party’s own expense. (When required, preparation of a record of the proceeding shall be governed by California Code of Civil Procedure Section 1094.6, as presently written or hereinafter amended.)

D. The city shall bear the burden of proving by a preponderance of the evidence that a violation of the code exists. The notice and order to abate and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents to the extent that the enforcement officer drafting the notice and order or any additional reports need not be the representative for the city presenting the city’s evidence.

E. The hearing officer may continue the hearing to request additional information from the city’s representative and/or the owner, or to conduct an inspection of the building and/or property involved in the hearing prior to concluding the hearing and issuing a written decision.

F. The hearing officer may inspect the building and/or property involved in the hearing prior to or during the hearing; provided, that the owner consents to the inspection, is given notice of the date and time of the inspection, and is permitted to be present during the inspection. The hearing officer shall state for the record during the hearing the material facts observed and conclusions drawn from the inspection. The city representative and owner shall be afforded an opportunity to rebut or explain the matters so stated by the hearing officer. If the building, structure and/or property can be inspected from areas in which the general public has access, or with permission of other persons authorized to provide access to the building and/or property, then notice to and consent of the owner is not required.

G. Failure of the owner to appear at the hearing after notice of the hearing has been served shall be deemed a waiver of the right to a hearing and a failure to exhaust their administrative remedies. It shall also be deemed an admission by owner of the existence of the nuisance conditions charged. In the event of a failure to appear, the hearing officer may order that the nuisance conditions be abated by the city. There shall be no right to appeal such order. (Ord. 18-17 § 2).

8.04.130 Decision of the hearing officer.

A. Within 10 business days after the conclusion of the hearing, the hearing officer shall issue a written decision to uphold, modify, or deny the violations in the notice and order to abate. The written decision shall state the reasons for the decision, including the factual findings and conclusions made by the administrative hearing officer.

1. If the hearing officer determines that the notice and order to abate should be upheld, the decision shall include an order to correct the violations within 10 days of mailing the decision or within such time as the administrative hearing officer deems reasonable.

2. If the hearing officer determines the notice and order to abate should be modified in terms of methods of abatement and/or time limit for compliance, then the written decision shall include the modified action to correct the violation and/or the date by which correction must be completed. Except under rare, extenuating circumstances, the date of completion should not exceed 60 days from the date the decision is issued.

3. The written determination shall further state that if the nuisance is not abated within the time provided, the nuisance shall be abated by the city at the parties’ expense and the expenses may be made a lien or special assessment against the property.

4. If the administrative hearing officer determines that a nuisance exists which is likely to recur after the abatement, the hearing officer’s decision may direct the owner to take adequate precautions for a period of time not to exceed 12 months so that the nuisance will not recur.

5. The written decision shall contain a statement of the right to seek judicial review of the hearing officer’s decision by filing a petition within 90 days with a court of competent jurisdiction pursuant to California Code of Civil Procedure Sections 1094.5 and 1094.6.

B. The recipient of the notice and order to abate shall be served a copy of the administrative hearing officer’s written decision in the manner set forth in BMC 8.04.080(C). Copies of the decision shall be sent to the owner (and any other responsible persons), the enforcement officer and the city clerk.

C. The hearing officer’s decision is final for the city of Benicia. (Ord. 18-17 § 2).

8.04.140 Abatement by owner.

The owner or responsible party may, at his or her own expense:

A. Abate the nuisance in the time and manner presented in the notice of violation, the notice and order to abate, or written determination of the hearing officer, whichever is applicable; or

B. Prior to the scheduled hearing, abate a declared nuisance in accordance with the provisions of the notice and order to abate; provided, that all necessary permits are first obtained.

If an enforcement officer determines that the nuisance has been properly abated, or that the owner is actively pursuing permits to correct the violation, then proceedings pursuant to this chapter may be terminated; provided, however, that the city may, in its discretion, proceed with recovery of such abatement costs, including incidental expenses, incurred by the city for administration, code enforcement or abatement by the city, as it may have incurred prior to abatement by the owner. Nothing in this chapter shall relieve any owner or other responsible party of the obligation of obtaining any required permit to do any work incidental to such abatement. (Ord. 18-17 § 2).

8.04.150 Abatement by city.

A. If the nuisance is not completely abated within the time prescribed by the notice and order to abate, or by the date established in the hearing officer’s written decision if a hearing is held, the city manager or designee may proceed to abate the nuisance by city personnel or private contractor. No abatement may proceed without first being approved by the city attorney.

B. The city manager or designee is expressly authorized to contract with or retain persons, contractors or franchisees to provide services necessary to effectuate any abatement action pursued under this chapter. The city personnel and/or private contractor may enter upon the property with either the owner’s consent or a warrant from the court to enter the property, if legally required and after receiving prior approval from the city attorney.

C. No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the city whenever such person is engaged in the work of abatement, or in performing any necessary act preliminary to or incidental to such work, as authorized or directed pursuant to this chapter. (Ord. 18-17 § 2).

8.04.160 Administrative charges.

If a violation is not abated within the time limit specified in the notice of violation and a notice and order to abate are issued, then the notice and order to abate shall include a charge to recover the administrative costs for the issuance of the notice and order to abate and other city activities related to the abatement of the violation. The amount of the charge shall be established by city council resolution based on an analysis of direct and indirect personnel costs (including attorney fees), costs of documenting the violation and the actual costs of preparing, printing and mailing the notice and order to abate. The administrative charge shall become due and payable 30 days from the effective date of the notice and order to abate. (Ord. 18-17 § 2).

8.04.170 Abatement costs.

A. If a violation is abated by the city pursuant to this chapter, the enforcement officer shall keep an accounting of the costs incurred, including all time spent by city and contract personnel in addressing and abating the nuisance, incidental expenses of such abatement, and attorney fees if the city elects, at the initiation of the abatement proceedings, to seek recovery of its own attorney fees. Upon conclusion of such abatement, the enforcement officer shall submit an itemized statement of costs to the city clerk.

B. Abatement costs shall begin to run from the date of the notice and order to abate, except in cases of summary abatement, in which case costs of abatement shall begin to run from the date the enforcement officer became aware of the nuisance requiring summary abatement.

C. Time spent by city personnel shall, in addition to an employee’s hourly rate of pay, include the city’s customary overhead expenses for provision of all benefits for that employee as well as the use of office space. Time spent by contract personnel shall be charged at actual cost to the city.

D. The term “incidental expenses,” as used in this section, includes, but is not limited to, costs incurred in documenting the nuisance, the actual expenses of the city in the preparation of notices, specifications, and contracts, inspection of the abatement work, and costs of printing and mailings required by this chapter. “Attorney fees” shall include fees and expenses of outside counsel and time spent by the city attorney and his or her staff, calculated like other city personnel as long as it does not include contested abatement proceedings involving third party attorneys.

E. The city may seek reasonable attorney fees incurred for an abatement action and related proceedings in those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorney fees. If the city elects to seek recovery of its own attorney fees, attorney fees may be recovered by the prevailing party in said action or proceeding. Pursuant to Government Code Section 38773.5(b), an award of attorneys’ fees to the prevailing party shall not exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding.

F. Pursuant to Health and Safety Code Section 17951, property owners and/or tenants shall be required to pay to the city reasonable fees as adopted by city council resolution to defray the following costs of code enforcement:

1. For inspections made at any dwelling unit in order to investigate a complaint of a violation of a building, housing, health or safety code;

2. For inspections of a dwelling unit to ensure the correction of a noticed code violation; and

3. For copies of reports and records relating to any code enforcement activity regarding any dwelling unit.

G. The enforcement officer shall send a statement of the costs to the owner or responsible persons receiving the notice and order to abate with a deadline of 30 days in which to pay the costs or make other arrangements for payment with the city. The owner and/or responsible persons receiving the notice and order to abate are liable to the city for all costs incurred in abating the nuisance and it shall constitute a civil debt owing to the city jointly and severally by the owner and/or responsible parties and may be collected pursuant to the procedures in this chapter. (Ord. 18-17 § 2).

8.04.180 Collection of unpaid costs.

A. Cumulative Remedies. At its discretion, the city may pursue any and all legal and equitable remedies for the recovery of abatement costs and/or administrative charges owed to the city. Pursuit of one remedy does not preclude the pursuit of any other remedies until the total of administrative and abatement charges have been recovered. Any property owner who fails to pay any abatement costs or administrative charges owed to the city shall be liable in any action brought by the city for costs incurred in securing payment of the delinquent amount. The city’s collection costs may include, but are not limited to, those for personnel, materials, overhead, attorneys’ fees and any other city expenditure required to collect unpaid abatement costs or administrative charges.

B. Liens. In the event the amount of any administrative costs and the total costs for abating a nuisance are not paid in full within 30 days of the date of invoice from the city and no other payment arrangements have been made and approved, the city may elect to place a nuisance lien against the real property on which the violation occurred, or the city may elect to levy a special assessment lien against the property on which the violation occurred. Any administrative or recording costs charged by the county shall also become a debt of the owner. (Ord. 18-17 § 2).

8.04.190 City council confirmation hearing.

A. The enforcement officer shall present the cost report and a resolution for a nuisance abatement lien or special assessment to the city council for approval.

B. At least 10 days before the council meeting at which the cost report and resolution of lien or special assessment are considered, the enforcement officer shall mail the owner a copy of the report and proposed resolution, together with a notice of the time and place of the council meeting at which the report will be considered, and advising the owner that he or she may appear and protest any cost item contained in the report. The report and notice shall also be posted conspicuously on the property. Failure to receive the notice shall not invalidate the proceedings.

C. At the time fixed for hearing on the report of expenses, the city council shall consider the report and protests or objections raised by the person liable to be assessed for the cost of abatement. The council may revise, correct or modify the report as it considers just.

D. The city council hearing is limited to the amount of costs and shall not include the validity of the abatement which is determined by the procedures set forth in BMC 8.04.080 and 8.04.090.

E. Upon conclusion of the hearing, the city council shall adopt a resolution accepting the cost report (with any modifications) which shall become a personal debt of the person liable for the costs of abatement. The city council shall also require, by resolution, that the costs be a nuisance abatement lien or special assessment upon the subject property as provided for in BMC 8.04.200 and 8.04.210. Any administrative or recording costs charged by the county shall also become a debt of the owner. The decision of the city council shall be final and conclusive. (Ord. 18-17 § 2).

8.04.200 Nuisance abatement lien.

A. The nuisance abatement lien shall specify the amount of the lien, the name and address of the city (on whose behalf the lien is imposed), the date of the abatement order, the street address, legal description and assessor’s parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel. The lien shall also state that the lien accrues interest at the legal rate of interest.

B. The city clerk shall serve a copy of the resolution and the nuisance abatement lien on the owner in accordance with Government Code Section 38773.1(b) and Code of Civil Procedure Section 415.10 by having it personally served, or, if the owner of record cannot be found after diligent search, by posting a copy in a conspicuous place on the property for a period of 10 days and publishing it in a newspaper of general circulation in the county pursuant to Government Code Section 6062.

C. The city clerk shall record a certified copy of the resolution and nuisance abatement lien in the Solano County recorder’s office. From the date of recording, the lien has the force, effect and priority of a judgment lien.

D. Interest shall accrue on the principal amount of the judgment remaining unsatisfied pursuant to law.

E. The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

F. A nuisance abatement lien may be foreclosed by an action brought by the city for money judgment. (Ord. 18-17 § 2).

8.04.210 Special assessment against property.

A. The notice of special assessment shall specify the amount of the assessment, the name and address of the city (on whose behalf the assessment is imposed), the date of the abatement order and city council resolution making the cost of abatement a special assessment, the street address, legal description and assessor’s parcel number of the parcel on which the assessment is imposed, and the name and address of the recorded owner of the parcel and the fact that owner has failed to pay city the cost of the abatement.

B. The notice of special assessment shall be sent by certified mail to the property owner pursuant to Government Code Section 38773.5(c). The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments.

C. The notice of special assessment shall be filed with the Solano County recorder. Upon recordation in the office of the county recorder of a notice of assessment lien, a copy of the lien may be turned over to the county auditor, who shall then enter the amount of the lien on the assessment rolls as a special assessment. Thereafter, the amount shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure under foreclosure and sale in case of delinquency as provided by California Government Code Section 38773.5 and as provided for ordinary municipal taxes. (Ord. 18-17 § 2).

8.04.220 Satisfaction of lien.

If the nuisance abatement lien or special assessment is discharged, released or satisfied, either through payment or foreclosure, the city shall record a notice of satisfaction of lien in the county recorder’s office or provide the property owner with a notice of satisfaction so they may record the notice with the county recorder’s office. The notice shall include all of the information set forth in BMC 8.04.200(A) or 8.04.210(A). Such notice of satisfaction shall cancel the city’s lien. (Ord. 18-17 § 2).

8.04.230 Limitation on filing judicial action.

Pursuant to Code of Civil Procedure Sections 1094.5 and 1094.6, any action appealing the city’s final decision and order shall be commenced within 90 calendar days of the date the decision becomes final. (Ord. 18-17 § 2).

8.04.240 Alternative means of enforcement.

A. Nothing in this chapter prevents the city council from authorizing the commencement of any other available civil or criminal proceeding to abate a public nuisance under applicable provisions of state or federal law.

B. Any person violating or causing the violation of this chapter shall be guilty of a misdemeanor as provided for in BMC 1.08.010 in addition to any other remedies provided for in this chapter, in the code, or under applicable law.

C. The citing officer is authorized and directed to issue criminal citations to persons maintaining or permitting the maintenance of nuisance as declared in this chapter or in any other ordinance adopted by the city council.

D. It is a misdemeanor to refuse to sign a citation prepared by a citing officer for the city that acknowledges receipt of a copy and includes a promise to appear at a hearing authorized by this chapter. (Ord. 18-17 § 2).

8.04.250 Treble damages.

Upon entry of a second or subsequent civil or criminal judgment within a two-year period that determines an owner of property is responsible for a condition that may be abated in accordance with the provisions of this chapter, the court may order the owner to pay treble the costs of the abatement, as authorized by Government Code Section 38773.7. (Ord. 18-17 § 2).

8.04.260 No duty on city to enforce.

Nothing in this chapter shall be construed as imposing a duty on the city to enforce the prohibitions in this chapter against any or all properties which may violate this chapter. This chapter may be enforced, in the city’s prosecutorial discretion, only as resources permit. (Ord. 18-17 § 2).