Chapter 9.100
NUISANCE ABATEMENT
Sections:
9.100.020 Public nuisances included.
9.100.030 Abatement by civil action.
9.100.040 Abatement by proceedings before city council.
9.100.070 Further proceedings by authorized city officer.
9.100.110 Public nuisance by judicial decree.
9.100.120 Summary abatement of nuisances.
9.100.130 Second or subsequent civil or criminal judgment – Abatement of nuisance – Treble damages.
9.100.010 Purpose.
Pursuant to Government Code Sections 38771 et seq., the city council establishes the procedures set forth in this chapter for the purpose of the abatement of public nuisances. (Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.020 Public nuisances included.
Except as to nuisances for which abatement procedures are provided elsewhere in this Municipal Code, the provisions of this chapter shall be applicable to any nuisance heretofore or hereafter defined as a nuisance by any ordinance of the city, section of the Cotati Municipal Code, resolution of the city council, or statute of the state. A public nuisance further includes any unlawful obstruction or encroachment upon any public property, including but not limited to any public street, highway, right-of-way, park or building. (Ord. 359 § 1, 1983: Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.030 Abatement by civil action.
A. A civil action may be brought in the name of the people of the state to enjoin a public nuisance, as defined in this chapter and in Section 1.20.010 of this code, by the city attorney or by the district attorney or county counsel of Sonoma County, and each of said officers shall have concurrent right to bring such action for a public nuisance within this city. The city attorney shall bring such action when directed to do so by the city council. Such civil action may be brought at any time, and may be instituted before, in lieu of, after or in combination with the procedures set forth under Sections 9.100.040 and 9.100.060.
B. In any civil action brought in the name of the people of the state or the city to enjoin a public nuisance by the city attorney or by the district attorney or county counsel of Sonoma County pursuant to any provision of this code, the court may award reasonable attorneys’ fees to the prevailing party in such action, if the city elects, at the initiation of that individual action, to seek recovery of its own attorneys’ fees. (Ord. 682 § 1, 1998: Ord. 647 § 1, 1995: Ord. 616 § 1, 1994: Ord. 541 § 1, 1990; Ord. 538 § 1, 1990: Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.040 Abatement by proceedings before city council.
A. If the public nuisance is to be abated by resolution and/or order of the city council, the hereinafter prescribed procedures shall be followed.
B. Written notice of appearance before the city council shall be given to the property owner or owners at least ten days prior to the date set for hearing before the city council. Service of the notice shall be made either by personal delivery thereof to the person to be notified, or by deposit in the U.S. mail to such person to be notified at the address shown upon the last tax roll or as shown upon some other public record pertaining to the matter to which such notice is directed. Service by mail shall be deemed to have been completed at the time of deposit in the post office.
C. A copy of the notice shall be conspicuously posted in front of the property on which the nuisance exists, or in any other location on the property wherein it will be most likely to give notice to the owner or owners, at least ten days prior to the hearing date.
D. A notice shall direct the owner or owners of the property on which the nuisance exists to appear before the city council at a stated time and place, and show cause why the nuisance should not be abated as herein provided and why attorney’s fees should not be recovered by the prevailing party if the city elects, at the initiation of such proceedings, to seek recovery of its own attorney’s fees. (Ord. 682 § 2, 1998: Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.050 Form of notice.
The notice provided for by Section 9.100.040 shall be substantially in the following form:
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ORDER TO SHOW CAUSE RE: |
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ABATEMENT OF PUBLIC NUISANCE: |
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TO:__________________________________________________ |
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You are hereby notified to appear before the City Council of the City of Cotati on the _________ day of __________, 20_____, at City Hall, 201 West Sierra Avenue, Cotati, California, at the hour of ________ o’clock p.m., or as soon thereafter as the matter can be heard, to show cause, if any you have, why that certain ___________________________ should not be condemned as a public nuisance and said nuisance be abated by its removal or __________, and why the cost [attorney’s fees, if elected] of such abatement should not be assessed upon the property from which the nuisance is abated, such cost [and attorney’s fees, if elected] to constitute a lien upon such property until paid. |
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[The city hereby elects to recover its own attorney’s fees in this proceeding.]____YES_____NO |
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DATED this _____________ day of _______, 20_____. |
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_____________________________________________ |
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DEPUTY CITY CLERK |
(Ord. 682 § 3, 1998: Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.060 Hearing.
A. At the time stated in the notice, the city council shall hear and consider all objections or protests, if any, to the proposed abatement of the public nuisance. The hearing may be continued from time to time. After final action is taken by the city council on the disposition of any protests or objections which are received, the council may declare, by resolution, that a public nuisance exists, and may order an appropriate city officer to abate the nuisance, or direct the city attorney to commence an action to abate the nuisance found, at the hearing, to exist. The council may further order that the cost of such abatement and attorney’s fees, if the city elects at the initiation of such proceeding to recover its own attorney’s fees, will be assessed upon the property from which the nuisance is abated, and that such costs and attorney’s fees shall constitute a lien upon such property until paid.
B. The decision of the city council shall be final and conclusive unless the owner or owners file, within fifteen days after the aforesaid decision is rendered, an action and/or appeal to a court of competent jurisdiction. (Ord. 682 § 4, 1998: Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.070 Further proceedings by authorized city officer.
A. At any time within thirty days after the passage of any resolution directing the abatement of a nuisance, the city officer authorized to abate the nuisance shall serve and post a copy thereof in the manner of giving notice as prescribed in Section 9.100.040.
B. Furthermore, if the city council, at the aforesaid hearing, determines that the abatement of the nuisance is likely to cause a significant depreciation in the value of the property upon which the nuisance is located, the city may order that all mortgagees and/or beneficiaries under any deeds of trust of record on the property be served a copy of the resolution in the manner prescribed in this section.
C. At any time following a period of five days after the serving and posting of a copy of the resolution ordering abatement as required above, the city officer may abate the nuisance, as directed by the city council. (Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.080 Actual abatement.
The city officer designated in Section 9.100.070 may direct any officer, or his assistant, deputy, employee, contracting agent or other representative, to enter upon private property for the purpose of abating the public nuisance. Should it be practicable to sell or salvage any material procured from the aforesaid abatement, it may be sold at private or public sale at the best price obtainable, and an itemized account of the proceeds shall be maintained by the authorized city officer. Such proceeds, if any, shall be deposited in a general fund of the city and shall be credited against the cost of abatement as provided for herein. (Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.090 Cost account.
A. The officer abating the nuisance shall keep an account of the cost of abatement, and shall render an itemized, written report to the city council, showing the cost of removing and/or abating the nuisance.
B. Before the report is submitted to the city council, a copy shall be posted for at least three days on the bulletin board on the front porch of the city hall, with a notice of the time when the report will be submitted to the city council for confirmation. A copy of the account and notice shall also be mailed to the owner of the property, at the address shown on the last tax roll, at least ten days prior to submission to the city council.
C. At the time fixed for receiving and considering the report, the city council shall hear it and any objections by the property owners liable to be assessed for the work of abatement. Thereupon the city council may make such modifications in the report as it deems necessary, after which, by order or resolution, the report shall be confirmed. (Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.100 Special assessment.
The cost of such abatement and related administrative costs shall become a special assessment and lien against the aforementioned property, which assessment may be collected by either of the following two procedures, which are authorized by Government Code Sections 38773.1 and 38773.5:
A. Collection as an Ordinary Municipal Tax. The costs of abatement and related administrative costs, as determined by the city council, shall become a special assessment and lien against the aforesaid property, which assessment may be collected at the same time and in the same manner as ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes are applicable to such special assessment. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection. Notices or instruments relating to the abatement proceeding or special assessment shall be recorded.
B. Collection by Nuisance Abatement Lien. The costs of abatement and related administrative costs, as determined by the city council, shall also be subject to collection by means of a nuisance abatement lien. The creation of said nuisance abatement lien may only be established by compliance with the following procedure:
1. A notice of the lien shall prior to the recordation of the lien be sent to the owner of record of the parcel of land wherein the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current.
2. The 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 5 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 ten days and publication thereof in a newspaper of general circulation published in the county from which the property is located pursuant to Government Code Section 6062.
3. After a notice of a nuisance abatement lien has been served upon the owner of record, the lien may be recorded no sooner than fifteen days after service of said notice.
4. The nuisance abatement lien is recorded in the Sonoma County recorder’s office and from the date of recording has the force, effect and priority of a judgment lien.
5. The nuisance abatement lien shall specify the amount of the lien, the name 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.
6. In the event the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subdivision (5) of this subsection shall be recorded by the city. The nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.
7. The nuisance abatement lien may be foreclosed by an action brought by the city for a money judgment.
8. Administrative costs subject to recovery from the property owner shall include, but are not limited to, attorney’s fees and costs and the 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. (Ord. 647 § 2, 1995: Ord. 555 § 1, 1991: Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.110 Public nuisance by judicial decree.
If a public nuisance has been declared by judicial decree, after the defendant(s) receive(s) notice of entry of judgment as prescribed by law, and the time within which an appeal may be filed has expired, all procedures of Sections 9.100.080 through 9.100.100 shall be applicable, and shall be followed in the same manner as if a resolution by the city council had been passed declaring a public nuisance to exist. (Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.120 Summary abatement of nuisances.
A. Whenever there is imminent or immediate danger to the public by the existence or continuance of any nuisance endangering the public health, welfare or safety, arising from any act, condition or use or occupation of property, or otherwise amounting to a nuisance per se, it is the duty of the city council or the appropriate officials of the city to abate such nuisance.
B. Such abatement shall not occur unless the director of community services and/or his/her designate finds, from a preponderance of the evidence, that such an imminent or immediate danger exists, and has provided or attempted to provide the owner of the property in question, or the person responsible for permitting the danger to occur, reasonable notice within which to correct the condition, and the necessary corrective action has not taken place. Twenty-four hours shall be presumed to be reasonable notice in the absence of evidence to the contrary. Notice hereunder need not take any particular form, and may be dispensed with if the exigencies of the situation require immediate abatement and/or providing reasonable notice is impracticable.
C. Sections 9.100.080 through 9.100.100 shall apply to summary abatement provided hereunder. (Ord. 335 § 1(part), 1982: Ord. 259 § 1(part), 1978).
9.100.130 Second or subsequent civil or criminal judgment – Abatement of nuisance – Treble damages.
Pursuant to Government Code Section 38773.7, the city council determines and establishes that upon entry of a second or subsequent civil or criminal judgment within a two-year period of time against an owner of property finding that said owner of property is responsible for a condition that may be abated in accordance with Section 9.100.100(A) of this chapter, except for conditions abated pursuant to Section 17950 of the Health and Safety Code, the owner of the property, subject to the approval of the court, shall pay to the city treble the costs of the abatement. (Ord. 555 § 2, 1991).