Chapter 8.05
NUISANCE ABATEMENT
Sections:
8.05.010 Definitions and enumeration of specific nuisances.
8.05.020 Commercial poultry ranches – Public nuisance.
8.05.040 Authority of city manager.
8.05.050 Hearing and notice required.
8.05.080 Appeal to city council – Hearing.
8.05.100 City manager to abate and report.
8.05.120 Hearing of report and account of the cost of abating the nuisance.
8.05.130 Resolution assessing costs.
8.05.140 Nuisance abatement lien procedure.
8.05.150 Special assessment procedure.
8.05.160 Additional procedures.
8.05.180 Penalty for violation of chapter.
8.05.010 Definitions and enumeration of specific nuisances.
As used in this chapter, the following materials and conditions are defined as public nuisances:
A. Abandoned Buildings. Abandonment or vacation of any building or structure so that it becomes readily available to unauthorized persons, including but not limited to juveniles and vagrants, is declared to be a public nuisance.
B. Animals. Keeping any animal, reptile, or insect in such a manner as to pose a threat, disturbance, danger, or menace to it or persons or property of another or in a public right-of-way is declared to be a public nuisance.
C. “Commercial poultry ranch” shall mean any building, structure, enclosure, or premises where poultry are kept or maintained for the primary purpose of producing poultry, eggs, or meat for sale or other distribution. This term shall not apply to premises where less than 100 poultry are kept.
D. Dust-Producing Machinery. Keeping, operating, or maintaining any machinery which by reason of its dust, exhaust, or fumes creates a health or safety hazard is declared to be a public nuisance.
E. Fire Hazard. All dry, dead shrubs, dead trees, combustible refuse and waste, or any material growing upon parkways (the area between traveled way and property line), sidewalks, or upon private property within the city, which by reason of their size, manner of growth and location constitute a fire hazard to any building, improvements, crops or other property, or when dry will, in reasonable probability, constitute such a fire hazard, are declared to be a public nuisance.
F. “Fly breeding hazard” shall mean the accumulation, existence or maintenance of any substance, matter, material or condition resulting or likely to result in the breeding of flies in an amount or manner such as to endanger public health or safety or to create unreasonable interference with the comfortable enjoyment and use of life and property by others.
G. Hazardous Substances. Storing, discharging, holding, handling, maintaining, using, or otherwise dealing with hazardous substances, as defined by applicable state or federal laws or regulations, is declared to be a public nuisance when carried out under any of the following conditions:
1. In violation of federal, state, or local laws or regulations; or
2. In such a manner to affect in any way air or water quality; or
3. In such a manner as to create an identifiable risk of accidental release of the substances which might adversely affect the health or safety of persons, damage property, or adversely affect air or water quality.
H. Polluted Water. Any swimming pool, pond or other body of water which is abandoned, unattended, unfiltered, or not otherwise maintained, resulting in the water becoming polluted, shall constitute a public nuisance. “Polluted water” is defined, for the purpose of this chapter, as water contained in a swimming pool, pond, or other body of water, which includes but is not limited to bacterial growth, including algae, remains of rubbish, refuse, debris, papers, and any other foreign matter or material which, because of its nature or location, constitutes an unhealthy or unsafe condition.
I. Refuse and Waste.
1. Refuse and waste matter as hereinafter defined, which by reason of its location and character is unsightly and interferes with the reasonable enjoyment of property by neighbors, detrimentally affects property values in the surrounding neighborhood or community, or which would materially hamper or interfere with the prevention or suppression of fire upon the premises, or which is allowed or permitted to be transported by wind or otherwise onto or upon any public street or alley or sidewalk without the consent of the owner, is declared to be a public nuisance.
2. “Refuse and waste material” is defined for the purpose of this chapter as unused or discarded matter and material having no substantial market value, and which consists (without limitation or exclusion by enumeration) of such matter and material as: rubbish, refuse, debris and matter of any kind including but not limited to rubble, asphalt, concrete, plaster, tile, rocks, bricks, soil, building materials, crates, cartons, containers, boxes, machinery or parts thereof, scrap metal and other pieces of metal, ferrous or nonferrous, furniture or parts thereof, abandoned, wrecked, dismantled or inoperative vehicles, vehicle bodies or parts thereof, trimmings from plants or trees, cans, bottles and barrels.
J. Storage Tanks. Failure to remove underground or above-ground storage vessels or tanks within six months after the use of such vessels or tanks ceases is declared to be a public nuisance.
K. Trees, Poles, and Wires. Any tree, pole, wire, structure or similar obstruction to the free use of public property is declared to be a public nuisance.
L. Unsafe Buildings. Maintenance of any building, structure, or property in violation of the various building codes adopted by the city of Calimesa is declared to be a public nuisance.
M. Unsightly Property. Maintenance of any property, or building or structure thereon, in defective or unsightly condition, or in such a state of deterioration or disrepair that it causes or will cause an ascertainable diminution of the property values of surrounding properties or is otherwise materially detrimental to adjacent and nearby properties and improvements is declared to be a public nuisance.
N. Walls and Fences. Any indecent, offensive or obscene language, picture or other characterization painted on or affixed to any walls, fences, or similar structures on private property is declared to be a public nuisance. [Ord. 191 § 3, 2002; Ord. 91-15; Code 1990 § 4.1.01.]
8.05.020 Commercial poultry ranches – Public nuisance.
A. Commercial poultry ranches must obtain an approved manure management plan; commercial poultry ranches operating without an approved manure management plan constitute a public nuisance.
1. All commercial poultry ranch operations shall at all times be conducted in accordance with the requirements of an approved manure management plan prepared in accordance with subsection (B) of this section.
2. Commercial poultry ranches which operate without an approved manure management plan, prepared in accordance with subsection (B) of this section, are hereby declared to constitute a public nuisance and shall cease operations.
3. In addition to any and all violations of the county health code, a violation of any of the provisions of this section, or any condition of a use permit or license issued pursuant to the municipal code, this section or other city ordinance or regulation, or any condition caused or permitted to exist in violation of any of the provisions of this section is deemed and declared to be a public nuisance and may be abated as such by the city.
B. Manure Management Plan.
1. Each commercial poultry ranch shall submit a detailed manure management plan, prepared in accordance with the requirements of subsection (B)(2) of this section, to the city. Said manure management plan shall be submitted to the city not later than six months after the effective date of the ordinance enacting this section, and not later than December 31st of each year thereafter, for review and approval.
2. Each manure management plan shall identify a comprehensive strategy for controlling all vectors, and shall be specifically tailored to minimize fly breeding hazards and excessive odors, and shall be reviewed and approved by the city. Every effort shall be made to ensure that all fly breeding hazards are adequately controlled and disposed of in an approved manner.
3. Each commercial poultry ranch shall prepare and submit to the city for approval a capital improvement program which addresses technical and physical upgrades to each commercial poultry ranch in a five-year time frame that will reduce fly breeding hazards and excessive odors.
C. Penalties.
1. No person shall violate any provision or fail to comply with any of the requirements of this section. Unless a different penalty is prescribed for violation of a specific provision of this section, every act prohibited or declared unlawful and every failure to perform an act made mandatory by this section is punishable as a misdemeanor. Where the city attorney determines that such action would be in the interest of justice, he/she may specify in the accusatory pleading that the offense shall be an infraction. Each person shall be deemed guilty of a separate offense for each and every day during any portion of which any violation of any provision of this section is committed, continued, or permitted by such person and shall be punishable accordingly.
2. General Penalty. Except in cases where a different punishment is specifically prescribed elsewhere in this section, every misdemeanor offense is punishable by imprisonment in the county jail for a period not exceeding six months, or by a fine not exceeding $1,000, or by both; and every offense prosecuted as an infraction shall be punishable by a fine not exceeding $100.00 for a first violation, a fine not exceeding $200.00 for a second violation of the same provision within one year, and a fine not exceeding $500.00 for each additional violation of the same provision within one year. Any person who has previously been convicted two or more times during any 12-month period for any crime made punishable as an infraction shall be guilty of a misdemeanor upon the third violation.
3. In addition to the penalties provided in this section, any condition caused or permitted to exist in violation of any of the provisions of this section shall constitute a public nuisance and may be abated by the city in accordance with this chapter. Each day such condition continues shall be regarded as a new and separate offense.
4. All remedies herein are stated to be cumulative and nonexclusive. [Ord. 191 § 4, 2002; Code 1990 § 4.1.02.]
8.05.030 Abatement.
All or part of any real property, or structure located thereon, found, as provided in this code, to constitute a public nuisance, shall be abated by the procedures set forth in this chapter. [Ord. 191 § 4, 2002; Ord. 92-8 § 1; Ord. 91-15; Code 1990 § 4.1.03.]
8.05.040 Authority of city manager.
Whenever the city manager or his duly authorized representatives reasonably believe a nuisance exists, he may commence abatement proceedings under this chapter. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.04.]
8.05.050 Hearing and notice required.
A. Owners of the affected properties, as shown on the latest equalized tax assessment roll, shall be given not less than 10 days’ written notice of a hearing to determine whether a nuisance exists, in the manner prescribed herein. In the case of vehicles, notice shall also be given to the registered and legal owners of the vehicles. The failure of any person to receive the notice given as prescribed herein shall not affect the validity of any proceedings under this chapter.
B. The notice shall indicate the nature of the alleged nuisance, the description of the property involved, the designation of the time and place of the hearing, and the manner of the proposed abatement if the same is found to be a nuisance. Notice to the owner of the property upon which a vehicle exists shall include the provision that such owner, in lieu of appearing to contest any determination with respect to the vehicle, may submit, prior to the hearing, a sworn written statement, by registered or certified mail, denying responsibility for the presence of the vehicle and reasons for such denial. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.05.]
8.05.060 Conduct of hearing.
A. The hearing to determine whether a nuisance exists shall be conducted by the city manager or his authorized representative, who shall act as the hearing officer. The hearing officer is authorized to take testimony and in the course of so doing is authorized to administer oaths or affirmations pursuant to California Code of Civil Procedure Section 2093(a).
B. At the hearing, the hearing officer shall consider all relevant evidence, including but not limited to applicable staff reports. He shall give any interested person a reasonable opportunity to be heard in conjunction therewith. Based upon evidence so presented, the hearing officer shall determine whether a nuisance within the meaning of this chapter exists.
C. The decision of the hearing officer shall be final and conclusive in the absence of an appeal as provided in this chapter. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.06.]
8.05.070 Order of abatement.
A. The hearing officer shall, within five working days, give notice of his decision to the owner and to any other person requesting same. The decision shall contain an order of abatement, if a nuisance is determined to exist, directed to the owner of the affected property or the person in control or charge of the property, and shall set forth the nature of the nuisance, its location, and the time and manner of its abatement. In the case of a vehicle, the notice shall also state the requirement that after the vehicle has been removed, it shall not be reconstructed or made operable, unless it is a vehicle which qualifies for either horseless carriage license plates or historical vehicle license plates. Where an appeal is filed as provided in this chapter, the order of abatement shall be suspended pending the review of the determination on the appeal.
B. The notice required by this section may be served in any of the following manners:
1. By personal service on the owner, occupant or person in charge or control of the property;
2. By certified mail addressed to the owner or person in charge and control of the property, at the address shown on the last available assessment roll, or as otherwise known;
3. By posting at a conspicuous place on the land or abutting public right-of-way and insertion of an advertisement at least once a week for the period of two weeks in a newspaper of general circulation in the city.
C. If it is further determined that such public nuisance consists of a hazard to public health, safety and general welfare, the notice shall so state and, in addition, in so stating such determination shall shorten the period of time in which an appeal may be taken and in which the duty to remove must be acted upon. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.07.]
8.05.080 Appeal to city council – Hearing.
A. Within 10 days from the date of posting, mailing, or personal service of the required notice of decision and abatement, the owner or person occupying or controlling such lot or premises affected may appeal to the city council. Such appeal shall be in writing and shall be filed with the city clerk. At the regular meeting of the city council not more than 30 days thereafter, it shall proceed to hear and pass upon the appeal. The decision of the city council thereupon shall be final and conclusive. Pursuant to Code of Civil Procedure Section 1094.6, any action to review the decision of the council shall be commenced no later than the ninetieth day after the date the council’s order becomes final.
B. In the event that notice of decision and abatement declares the same to be a hazard to public health, the 10-day period for filing an appeal to the city council shall be shortened to three days and all other provisions contained in subsection (A) of this section shall be applicable. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.08.]
8.05.090 Removal.
A. It shall be the duty of the owner, agent of the owner, or the person in possession of any lot or premises in the city, within 10 days from the date of the notice of decision and abatement, or in the case of an appeal to the city council, then 10 days from the determination thereof, unless the same is sustained, to remove the nuisance as stated.
B. Said period of removal in the case of a nuisance which is declared to be a hazard to public health as heretofore set forth shall be three days from the date of the notice of decision and abatement, or three days from the determination of an appeal to the city council. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.09.]
8.05.100 City manager to abate and report.
A. Costs of nuisance abatement for which the city may be reimbursed begin to accrue at the time the city first receives a complaint regarding a problem on the property. These costs include, but are not limited to, the following:
1. Costs to the city for specifications, contracts, labor and materials, inspection, city staff time, attorneys’ fees, and other expenses related to enforcing the provisions of this chapter;
2. Costs related to the nuisance abatement action for which the city may be liable under state law;
3. Costs to which the city may be entitled pursuant to Health and Safety Code Section 510 and other statutory entitlement;
4. Where the city has elected to collect its attorneys’ fees in a nuisance abatement proceeding, the prevailing party in any proceeding conducted pursuant to this chapter and associated with the abatement of a public nuisance shall be entitled to recovery of attorneys’ fees incurred, in accordance with CMC 1.20.040.
B. In the case of a vehicle, within five days after the date of removal, the city shall give notice to the Department of Motor Vehicles, identifying the vehicle or part thereof and any evidence of registration available, including, but not limited to, the registration card, certificates of ownership, or license plates. [Ord. 209 § 3, 2004; Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.10.]
8.05.110 Costs.
A. Costs of nuisance abatement for which the city may be reimbursed begin to accrue at the time the city first receives a complaint regarding a problem on the property. These costs include, but are not limited to, the following:
1. Costs to the city for specifications, contracts, labor and materials, inspection, city staff time, attorneys’ fees, and other expenses related to enforcing the provisions of this chapter;
2. Costs related to the nuisance abatement action for which the city may be liable under state law;
3. Costs to which the city may be entitled pursuant to Health and Safety Code Section 510 and other statutory entitlement.
B. Such costs may be recovered by the city even if the nuisance is corrected prior to an appeal hearing. Costs shall be assessed at the conclusion of the abatement. However, in the case of an abatement by any method which takes more than six months, costs may be assessed at any time after six months, but in no event more than two times a year. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.11.]
8.05.120 Hearing of report and account of the cost of abating the nuisance.
A. The city clerk shall set the report and account of the cost of abating the nuisance for hearing by the city council at the first regular meeting which will be held at least 14 calendar days after the date of filing, and shall post a copy of such report and account and notice of the time and place of hearing in a conspicuous place in or near the entrance of City Hall. The owner who is affected by such report and account, or the person occupying or controlling such lot or premises, shall be sent a notice advising him of the date, time and place of the hearing, and said notice shall be served as provided for in CMC 8.05.050.
B. “Owner,” as used herein, means any person having or claiming to have any legal or equitable interest in or to the fee relating to such premises or disclosed by a title search. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.12.]
8.05.130 Resolution assessing costs.
The city council shall consider the report and account at the time set for hearing, together with any objections or protests by any interested parties. Any owner of land or person interested therein may present a written or oral protest or objection to the report and account. At the conclusion of the hearing, the city council shall approve the report and account as submitted or as modified or corrected. The city council shall adopt the resolution assessing the amount approved as either a special assessment or a nuisance abatement lien against the property and a personal obligation against the property owner. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.13.]
8.05.140 Nuisance abatement lien procedure.
If the city council makes the cost of abatement a lien against the property on which the nuisance is maintained and a personal obligation against the property owner, it shall observe the following procedure:
A. Prior to recordation of the lien, notice shall be served on the owner of record of the parcel of land on which the nuisance was maintained. Ownership shall be determined from the last equalized assessment roll or the supplemental roll, whichever is more current.
B. Notice shall be served in the same manner as a summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title V of Part 2 of the Code of Civil Procedure. If the owner of record after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Section 6062 of the Government Code.
C. A nuisance abatement lien shall be recorded in the county recorder’s office in the county in which the parcel of land is located and from the date of recording shall have the force, effect, and priority of a judgment lien.
D. The lien shall specify all of the following information:
1. The amount of the lien;
2. The city of Calimesa as the party on whose behalf the lien is imposed;
3. The date of the abatement order;
4. The street address, legal description, and assessor’s parcel number of the parcel on which the lien is imposed; and
5. The name and address of the recorded owner of the parcel.
E. In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection (D) of this section and a statement that the lien has been discharged shall be recorded by the city. A nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.
F. A nuisance abatement lien may be foreclosed by an action brought by the city for a money judgment.
G. 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. Such costs shall be accounted for and approved in the same manner as abatement costs. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.14.]
8.05.150 Special assessment procedure.
If the city makes the cost of abatement a special assessment against the property, it shall observe the following procedure:
A. The city clerk shall prepare and file with the county auditor a certified copy of the resolution of the city council adopted pursuant to CMC 8.05.130.
B. The county auditor shall enter each assessment in the county tax roll opposite the parcel of land. The assessment may 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 and sale in case of delinquency as provided for ordinary municipal taxes.
C. To the extent permitted by Section 38773.5 of the Government Code, all laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.
D. Notices or instruments relating to the special assessment shall be entitled to recordation. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.15.]
8.05.160 Additional procedures.
The procedures contained in this chapter for collection of abatement costs are derived from and subject to Title 4, Part 2, Division 3, Chapter 10, Article 6 (commencing with Section 38770) of the California Government Code relating to nuisances. Any additions or alterations to the procedures contained in said article are incorporated in this code by this reference. [Ord. 191 § 4, 2002; Ord. 92-8 § 2; Ord. 91-15; Code 1990 § 4.1.16.]
8.05.170 Summary abatement.
Where any real property, or any building or structure within the city, in the opinion of the city manager constitutes a public nuisance within the meaning of this chapter, and constitutes an emergency situation whereby an immediate threat of injury to persons or damage to property exists, he shall immediately contact the owner of such property or person in possession and demand that such nuisance be abated within a reasonable period of time commensurate with the extent of peril and danger to public health and safety. In the event the city manager cannot, after reasonable efforts, contact the owner or person in possession, or in the event the owner or person in possession refuses to abate the condition within the time period given, the city manager may order the condition abated by such means as may be reasonably required to eliminate the threat of injury or damage. Thereafter, he shall advise the city council and property owner of the actions taken and reason therefor. He shall commence a proceeding to recover the city’s costs of abatement pursuant to this chapter. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.17.]
8.05.180 Penalty for violation of chapter.
A. The owner, occupant, or agent of any lot or premises within the city who permits or allows the existence of a public nuisance as defined in this chapter upon any lot or premises owned, occupied or controlled by him or who violates any of the provisions of this chapter is guilty of a misdemeanor and shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation is committed, continued or permitted.
B. Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for conditions abated pursuant to this chapter, except for conditions abated pursuant to Section 17980 of the Health and Safety Code, the court may order the owner to pay treble the costs of the abatement. [Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.18.]
8.05.190 Legal action.
In addition to the remedies set forth in this chapter, the city council is authorized to bring a legal action in a court of competent jurisdiction for the recovery of any monies expended by it in order to enforce the provisions of this chapter. In the event that legal action is brought by the city against any individual, corporation, association or entity, the costs of such action, including, but not limited to, reasonable attorneys’ fees and costs shall constitute a debt owed by the individual, corporation, association or entity to the city.
Where the city has elected to collect its attorneys’ fees in an action to enforce the provisions of this chapter, the prevailing party in such action shall be entitled to recovery of attorneys’ fees incurred in any such proceeding, where the city has elected, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding. [Ord. 209 § 4, 2004; Ord. 191 § 4, 2002; Ord. 91-15; Code 1990 § 4.1.19.]