Chapter 8.16 NEIGHBORHOOD PRESERVATION*

The purpose of this chapter is to ensure the comfortable enjoyment of life and property within the city. Any thing or condition, including, but not limited to, violations of this code, which threatens injury or damage to the health, safety, welfare or property of members of the public, which obstructs the free use of property of others or interferes with the comfortable enjoyment of life or property is considered a nuisance by this council. (Ord. 2024-765 § 4 (Exh. A)).

8.16.020 Definitions.

As used in this chapter:

A. “Building” means any structure used or intended for supporting or sheltering any use or occupancy and includes any house, garage, duplex, apartment, condominium, stock cooperative, or other residential structure, and includes all retail commercial and industrial structures.

B. “City manager” means the city manager or the city manager’s designee.

C. “Owner” means any individual(s) or legal entity(ies) having legal record ownership of the subject property, or effective possession or control of the property, or the individual(s) and entity(ies) having responsibility for maintenance or management of the subject property, including but not limited to fee owners, lessees, occupants and homeowners’ associations. A homeowners’ association or a property management company which exercises control or management over a common area shall be deemed an owner of such common area.

D. “Person” means any individual, partnership, corporation, association or other organization, however formed.

E. “Property” means all personal and real property within the city and shall include any building located on such real property.

F. “Unreasonable state of partial construction” means any unfinished building or structure which has been in the course of construction two years or more, and where the appearance or the conditions of said unfinished building or structure substantially detracts from the appearance of the immediate neighborhood or reduces the property value in the immediate neighborhood.

G. “Abatement costs” means all specific abatement costs, including reasonable reinspection fees prescribed by city council resolution, administrative and incidental expenses. “Incidental expenses” includes, but is not limited to, personnel costs, both direct and indirect, costs incurred in inspecting the property, in documenting the nuisance, the actual expense to the city for the preparation of notices, preparation of specifications and contracts for abatement and the inspection of the work, the costs of printing and mailings required hereunder, and attorneys’ fees pursuant to California Government Code Section 38773.5. (Ord. 2024-765 § 4 (Exh. A)).

Article II. Nuisance

8.16.030 Nuisance.

A. Activities prohibited by California Penal Code, Part 1, Title 10 and Sections 370, 371 and 11225 et seq., as enacted or hereinafter amended, shall be unlawful, constitute a public nuisance, and enforcement and abatement shall be undertaken as provided by law.

B. It is hereby declared unlawful and a public nuisance per se for any person owning, leasing, occupying and/or having charge or possession of any premises or land in this city to permit, allow, or maintain such premises or land such that any one or more of the following conditions or activities exist:

1. Any condition recognized in law or equity as constituting a public nuisance;

2. Any dangerous, unsightly, or blighted condition that is detrimental to the health, safety or welfare of the public;

3. Any condition that is in violation of any duly enacted ordinance of the Fortuna Municipal Code, or resolution or lawful order promulgated by authorized city officials;

4. Any condition in violation of FMC Title 17, Zoning Regulations, including any condition in violation of any written design finding, including design standard, design guideline, or development standard that may be adopted by resolution or ordinance from time to time by the city council or the planning commission, or any condition imposed on any entitlement, permit, contract, or environmental document issued or approved by the city;

5. Anything defined as a nuisance pursuant to state and federal law, including, but not limited to, California Civil Code Section 3479 et seq.;

6. Any condition in violation of the weed and rubbish abatement laws defined at Government Code Sections 39501 et seq., and 39560 et seq., as enacted or hereafter amended and enforced by city ordinance and resolutions;

7. Any vacant, unoccupied or abandoned building or structure that is not reasonably secured against uninvited entry or that constitutes a fire hazard, or is in a state of unsightly or dangerous condition so as to constitute a blighted condition detrimental to property values in the neighborhood or otherwise detrimental to the health, safety and welfare of the public;

8. Any condition that constitutes an attractive nuisance, which include those objects or conditions that by their nature may attract children or other curious individuals including, but not limited to, unprotected hazardous or unfilled pools, ponds, including pools or ponds that have not been properly barricaded;

9. Any condition that constitutes a visual blight. For purposes of this code, visual blight is any unreasonable, nonpermitted or unlawful condition or use of real property, premises or of building exteriors which by reason of its appearance as viewed from the public right-of-way is detrimental to the property of others or to the value of property of others, offensive to the senses, or reduces the aesthetic appearance of the neighborhood. Visual blight includes, but is not limited to, the keeping, storing, depositing, scattering over or accumulation on the premises any of the following:

a. Lumber, junk, trash, debris, scrap metal, rubbish, packing materials, building materials,

b. Abandoned, discarded or unused objects or equipment such as furniture, stoves, appliances, refrigerators, freezers, cans or containers, automotive parts and equipment,

c. Abandoned, wrecked, disabled, dismantled or inoperative vehicles or parts thereof except inoperative vehicles that are not abandoned and are in an active state of renovation or restoration. For purposes of this article, “active state of renovation or restoration” means that the vehicle is actively being restored or renovated in a manner intended to make the vehicle operational, and shall not include restoration or renovation that solely improves the interior or exterior appearance, but not the operation, of the vehicle. A vehicle shall only be permitted to be in an active state of renovation or restoration for a period that shall not exceed 90 days, whether consecutive or nonconsecutive, out of any 12-month period,

d. Stagnant water or excavations,

e. Any personal property, object, device, decoration, design, fence, structure, clothesline, landscaping or vegetation which is unsightly by reason of its condition or its inappropriate location,

f. The keeping, storage, depositing or accumulation of dirt, sand, gravel, concrete or other similar materials which constitutes visual blight or reduces the aesthetic appearance of the neighborhood or is offensive to the senses or is detrimental to nearby property or property values; provided, however, that such of the listed materials as are being used or to be used for a project of repair or renovation may be stored for such period of time as is reasonably necessary to expeditiously complete the project,

g. Any condition of a building or structure deemed to be unsafe or that, in the discretion of the code compliance administrator or the department head, would constitute a threat to public safety, health, or welfare, or poses a security problem by reason of dilapidation, fire hazard, disaster, damage or other similar occurrence specified in this code or any other applicable law,

h. Any condition of a building or portion thereof which constitutes a substandard building, as defined in Health and Safety Code Section 17920.3 or its successor,

i. Filling of any swimming pool with water prior to the final safety inspection required by the California Code of Regulations, conducted by city inspectors and before such final inspection has been noted on the permit card obtained from the city;

10. Behavior constituting a violation of California Penal Code Sections 407, 409, 415, 416, and 603 or other noise, explosions, destruction of property or audible conduct that is unreasonably loud, raucous, excessive or jarring to persons within the area of audibility in any zone of the city which disturbs the peace or quiet of any neighborhood;

11. Any violations of this code. (Ord. 2024-765 § 4 (Exh. A)).

8.16.040 Unlawful nuisance on public property.

It shall be unlawful for any property owner to maintain or to allow to be maintained property for any purpose so as to create any of the following conditions on adjacent or contiguous public property:

A. The discarding of furniture, appliances, containers of used motor oil, car batteries, tires and other household waste upon a public street, right-of-way or other public property;

B. The depositing or spilling of debris, including trash, paper, wood, plant cuttings and other vegetation onto the public right-of-way or other public property;

C. The depositing of mud, dirt, sand, gravel, or concrete onto the public right-of-way;

D. The existence of any condition or use which unlawfully obstructs the free passage or use of any public right-of-way, street, or sidewalk. (Ord. 2024-765 § 4 (Exh. A)).

8.16.050 Declaration of public nuisance.

Any property found to be maintained in violation of the foregoing section is declared to be a public nuisance and shall be abated by rehabilitation, removal, demolition, or repair pursuant to the procedures for abatement set forth herein or as otherwise provided by law. However, the city shall take into consideration the overall character of the neighborhood in declaring a public nuisance. The procedures for abatement set forth herein shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other city ordinances or abating public nuisances in any other manner provided by law. (Ord. 2024-765 § 4 (Exh. A)).

Article III. Abatement Procedure

8.16.060 Notification of nuisance.

Whenever the city manager determines that any property within the city is being maintained contrary to one of the provisions of FMC 8.16.030, the city manager shall give written notice (the “Notice to Abate”) to the owner of said property stating the section(s) being violated. Such notice shall set forth a reasonable time limit, in no event more than 15 days unless granted a longer period of time by the city manager, for correcting the violation(s) and may also set forth suggested methods of correcting the same. Such notice shall be served upon the owner in accordance with provisions of FMC 8.16.080 covering service in person or by mail. (Ord. 2024-765 § 4 (Exh. A)).

8.16.070 Hearing to abate nuisance.

In the event said owner shall fail, neglect, or refuse to comply with the “Notice to Abate,” the city manager shall conduct an administrative hearing to ascertain whether said violation constitutes a public nuisance. (Ord. 2024-765 § 4 (Exh. A)).

8.16.080 Notice of hearing.

Notice of said hearing shall be served upon the owner not less than 15 days before the time fixed for hearing. Notice of hearing shall be served in person or by certified mail to the owner’s last known address. Service shall be deemed complete at the time notice is personally served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any proceedings hereunder. Notice shall be substantially in the format set forth below:

NOTICE OF ADMINISTRATIVE HEARING ON ABATEMENT OF NUISANCE

This is a notice of hearing before the City Manager (or his designees) to ascertain whether certain property situated in the City of Fortuna, State of California, known and designated as (street address) _________________________, in said City, and more particularly described as (assessor’s parcel number) _______________________ constitutes a public nuisance subject to abatement by the rehabilitation of such property or by the repair or demolition of buildings situated thereon. If said property, in whole or part, is found to constitute a public nuisance as defined in this Code and if the same is not promptly abated by the owner, such nuisance may be abated by municipal authorities, in which case the cost of such rehabilitation, repair or demolition will be assessed upon such property, and such costs, together with interest thereon, will constitute a lien upon such property until paid, in addition, you may be cited for violation of the provisions of the Municipal Code and subject to a fine.

Said alleged conditions consist of the following:

_________________________________

The method(s) of abatement are:

_________________________________

All persons having an interest in said matters may attend the hearing and their testimony and evidence will be heard and given due consideration.

Dated this __________________day of _______________________, 20_______

_________________________________

City Manager

Time and Date of Hearing:

_________________________________

Location of Hearing:

_________________________________

(Ord. 2024-765 § 4 (Exh. A)).

8.16.090 Hearing by city manager.

A. At the time stated in the notice, the city manager shall hear and consider all relevant evidence, objections or protests, and shall receive testimony under oath relative to such alleged public nuisance and to proposed rehabilitation, repair, removal or demolition of such property. Said hearing may be continued from time to time.

B. If the city manager finds that such public nuisance does exist and that there is sufficient cause to rehabilitate, demolish, remove or repair the same, the city manager shall prepare findings and an order, which shall specify the nature of the nuisance, the method(s) of abatement, and the time within which the work shall be commenced and completed. The order shall include reference to the right to appeal set forth in FMC 8.16.110. A copy of the findings and order shall be served on all owners of the subject property in accordance with the provisions of FMC 8.16.080. In addition, a copy of the findings and order shall be forthwith conspicuously posted on the property. (Ord. 2024-765 § 4 (Exh. A)).

8.16.100 Procedure, no appeal.

In the absence of any appeal, the property shall be rehabilitated, repaired, removed or demolished in the manner and means specifically set forth in the findings and order. In the event the owner fails to abate the nuisance as ordered, the city manager shall cause the same to be abated by city employees or by private contract. The costs shall be billed to the owner, as specified in FMC 8.16.150. The city manager, city employees, or private contractors are expressly authorized to enter upon said property for such purposes. (Ord. 2024-765 § 4 (Exh. A)).

8.16.110 Appeal procedure, hearing by city council.

A. The owner may appeal the city manager’s findings and order to the city council by filing a written appeal with the city clerk within seven days of the date of service of the city manager’s decision. The appeal shall contain:

1. A specific identification of the subject property;

2. The names and addresses of all appellants;

3. A statement of appellant’s legal interest in the subject property;

4. A statement in ordinary and concise language of the specific order or action protested and the grounds for appeal, together with all material facts in support thereof;

5. The date and signature of all appellants; and

6. The verification of at least one appellant as to the truth of the matters stated in the appeal.

B. As soon as practicable after receiving the appeal, the city clerk shall set a date for the council to hear the appeal which date shall be no less than seven days nor more than 30 days from the date the appeal was filed. The city clerk shall give each appellant written notice of the time and place of the hearing at least five days prior to the date of the hearing, either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at his address shown on the appeal.

C. Continuances of the hearing may be granted by the council on request of the owner for good cause shown, or on the council’s own motion. (Ord. 2024-765 § 4 (Exh. A)).

8.16.120 Decision by council.

Upon the conclusion of the hearing, the council shall determine whether the property or any part thereof, as maintained, constitutes a public nuisance. If the council so finds, the council shall adopt a resolution declaring such property to be a public nuisance, setting forth its findings and ordering the abatement of the same by having such property rehabilitated, repaired, removed or demolished in the manner and means specifically set forth in said resolution. The resolution shall set forth the time within which such work shall be completed by the owner, in no event more than 15 days unless additional time is granted by the council due to weather. The decision and order of the council shall be final. (Ord. 2024-765 § 4 (Exh. A)).

8.16.130 Service of order to abate.

A copy of the resolution of the council ordering the abatement of said nuisance shall be served upon the owner(s) of said property in accordance with the provisions of FMC 8.16.080. Upon abatement in full by the owner, the proceedings hereunder shall terminate. (Ord. 2024-765 § 4 (Exh. A)).

8.16.140 Hearing procedure before city manager and council.

A. There shall be a record made of all hearings.

B. Hearings need not be conducted according to the technical rules of evidence.

C. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper admission of any such evidence over objection in civil actions in courts of competent jurisdiction in this state.

D. Oral evidence shall be taken only on oath or affirmation.

E. Irrelevant and unduly repetitious evidence shall be excluded. (Ord. 2024-765 § 4 (Exh. A)).

8.16.150 Abatement by city.

If such nuisance is not abated as ordered within said abatement period, the city manager shall cause the same to be abated by city employees or private contractor. The city manager, city employees, or private contractors are expressly authorized to enter upon said property for such purposes. The cost, including incidental expenses, of abating the nuisance shall be billed to the owner and shall become due and payable 30 days thereafter. The term “incidental expenses” shall include, but not be limited to, personnel costs, both direct and indirect; costs incurred in documenting the nuisance; the actual expenses and costs of the city in the presentation of notices, specifications and contracts, and in inspecting the work; and the costs of printing and mailing required hereunder. (Ord. 2024-765 § 4 (Exh. A)).

8.16.160 Limitation of filing judicial action.

Any action appealing the council’s decision and order shall be commenced within 30 days of the date of service of the decision. (Ord. 2024-765 § 4 (Exh. A)).

8.16.170 Summary abatement.

A. Any nuisance which the city manager determines is imminently dangerous to the life, limb, health or safety of the occupants or users of the property or to the public may be summarily specifically abated in accordance with the procedures set forth in subsection (D) of this section.

B. Actions taken to specifically abate imminently dangerous property nuisances may include, but are not limited to, any abatement action determined by the city manager to be necessary.

C. Summary abatement actions taken by the city manager shall be fully documented prior to or contemporaneously with abatement. Documentation may include photographs or drawings of the condition, and a written statement by city staff, and/or other firsthand witnesses as to the circumstance, condition or occurrence constituting the nuisance.

D. Whenever the city manager determines that summary abatement is justified by an imminently dangerous condition, circumstance, or occurrence, the city manager shall, if practicable, give immediate written notice to the property owner and personal or written notice to the occupant of the premises as to the nuisance. If the property owner cannot be located or fails to take prompt appropriate action to abate the nuisance, the city manager may proceed to take abatement action authorized in this chapter to the extent necessary to remedy the immediate danger without further notice or right to a prior hearing.

E. No imminently dangerous building or property shall be abated by demolition unless the order is based on a competent declaration under penalty of perjury by the city manager, describing the specific conditions existing in the structure which justify the demolition.

F. Prior to any demolition as provided for in this chapter, the property owner may submit engineering or other information supporting preservation of the building rather than demolition. Such data or information shall be submitted to the city manager within five city business days after the declaration of substandard building is received by the property owner. The city manager shall have no duty to withhold demolition in an emergency situation.

G. Once summary abatement action has been completed, the property owner may appeal the need for abatement action, and/or the abatement cost, in the manner provided in FMC 8.16.110 within seven calendar days after service, by first-class mail, postage prepaid, of the statement of abatement cost. No abatement cost shall be assessed against a property owner under this section if the city hearing officer makes a finding, based on the objections and protests, that the property owner did not create, acquiesce in, or allow to continue the nuisance which created the need for summary abatement or was otherwise not at fault. (Ord. 2024-765 § 4 (Exh. A)).

8.16.180 Limitation of filing judicial action following summary abatement.

Any action appealing the council’s decision and order shall be commenced within 30 days of the date of service of the decision. (Ord. 2024-765 § 4 (Exh. A)).

8.16.190 Demolition.

No property shall be found to be a public nuisance under FMC 8.16.030 and ordered demolished unless the order is based on competent sworn testimony and it is found that in fairness and in justice there is no way other than demolition reasonably to correct such nuisance. (Ord. 2024-765 § 4 (Exh. A)).

8.16.200 Notice of intent to demolish.

A copy of any order or resolution requiring abatement by demolition under FMC 8.16.190 shall be forthwith recorded with the Humboldt County recorder. (Ord. 2024-765 § 4 (Exh. A)).

Article IV. Lien Procedure

8.16.210 Record of cost of abatement.

The city manager shall keep an account of the cost, including incidental expenses, of abating such nuisance on each separate lot or parcel of land where the work is done by the city and shall render an itemized report in writing to the city council showing the cost of abatement, including the rehabilitation, demolition, or repair of said property, including any salvage value relating thereto; provided, that before said report is submitted to the city council, a copy of the same shall be posted for at least five days upon such property, together with a notice for the time when said report shall be heard by the city council for confirmation. A copy of said report and notice shall be served upon the owners of said property in accordance with provisions of FMC 8.16.080 at least five days prior to submitting the same to the city council. Proof of said service shall be made by affidavit filed with the city clerk. (Ord. 2024-765 § 4 (Exh. A)).

8.16.220 Revolving fund.

The council may create a revolving fund or funds from which may be paid the costs of enforcing the provisions of this chapter and into which shall be paid the receipts from the collection of costs as set forth in this chapter. (Ord. 2024-765 § 4 (Exh. A)).

8.16.230 Sale of materials.

The materials contained in any nuisance abated by the enforcement official may be sold in the same manner as surplus city personal property is sold, and the proceeds from such sale shall be paid into the revolving fund. (Ord. 2024-765 § 4 (Exh. A)).

8.16.240 Assessment lien.

The total cost for abating such nuisance, as so confirmed by the city council, shall constitute a special assessment against the respective lot or parcel of land to which it relates, and upon recordation in the office of the county recorder of a notice of lien, as so made and confirmed, shall constitute a lien on said property for the amount of such assessment.

After such confirmation and recordation, a certified copy of the council’s decision shall be filed with the Humboldt County auditor-controller on or before August 1st of each year, whereupon it shall be the duty of said auditor-controller to add the amounts of the respective assessments to the next regular tax bills levied against said respective lots and parcels of land for municipal purposes and thereafter said amounts shall 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 shall be applicable to such special assessment.

In the alternative, after such recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law.

Such notice of lien for recordation shall be in form substantially as follows:

NOTICE OF LIEN

(Claim of City of Fortuna)

Pursuant to the authority vested by the provisions of Section ______________ of the Fortuna Municipal Code, the City Manager of the City of Fortuna did on or about the _______ day of _________________, 20______, cause the property hereinafter described to be rehabilitated or the building or structure on the property hereinafter described, to be repaired or demolished in order to abate a public nuisance on said real property; and the City Council of the City of Fortuna did on the _______day of _________________, 20______, assess the cost of such rehabilitation, repair or demolition upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Fortuna does hereby claim a lien on such rehabilitation, repair, or demolition in the amount $________________; and the same, shall be a lien upon said real property until the same has been paid in full and discharged of record.

The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Fortuna, County of Humboldt, State of California, and particularly described as follows:

(description)

Dated this ______day of ____________, 20_____.

_________________________________

City Manager

City of Fortuna

(Ord. 2024-765 § 4 (Exh. A)).

8.16.250 Alternative actions available.

Nothing in this chapter shall be deemed to prevent the council or the city manager from ordering the commencement of a civil or criminal proceeding to abate a public nuisance or from pursuing any other means available to them under provisions of applicable ordinances or state law to correct hazards or deficiencies in real property in addition to or as alternatives to the proceedings herein set forth. (Ord. 2024-765 § 4 (Exh. A)).

8.16.260 Violations.

A. The owner or other person having charge or control of any such building, structure or property who maintains any public nuisance defined in this chapter or who violates any chapter is guilty of a misdemeanor.

B. Any person who removes or defaces any notice or order posted as required by this chapter is guilty of a misdemeanor.

C. No person shall obstruct, impede or interfere with any representative of the city department or any private contractor engaged by the city, or with any person who owns or holds any estate or interest in the building or structure which has been ordered to be vacated, repaired, rehabilitated, or demolished and removed or with any person to whom such building has been lawfully sold pursuant to the provisions of this code whenever any such representative of the city, purchaser, or person having interest or estate in such building is engaged in vacating, repairing, rehabilitating or demolishing and removing any such building pursuant to the provisions of this chapter or in performing any necessary act preliminary to or incidental to such work as authorized or directed pursuant hereto. (Ord. 2024-765 § 4 (Exh. A)).

8.16.270 Administrative fines for violations of chapter.

A violation of this chapter may be punishable as an infraction or misdemeanor, within the discretion of the city attorney. The fines shall be levied as follows:

A. Infractions. Except as provided in subsection (B) of this section, an infraction is punishable by:

1. A fine not exceeding $100.00 for the first violation;

2. A fine not exceeding $200.00 for the second violation within any consecutive 12-month period; and

3. A fine not exceeding $500.00 for the third or subsequent violation within any consecutive 12-month period.

B. An infraction committed in violation of the city’s building and safety codes is punishable by:

1. A fine not exceeding $130.00 for a first violation;

2. A fine not exceeding $700.00 for a second violation of the same ordinance within one year of the first violation;

3. A fine not exceeding $1,300 for each additional violation of the same ordinance within one year of the first violation;

4. A fine not exceeding $2,500 for each additional violation of the same ordinance within two years of the first violation if the property is a commercial property that has an existing building at the time of the violation and the violation is due to failure by the owner to remove visible refuse or failure to prohibit unauthorized use of the property.

C. Misdemeanors. A misdemeanor is punishable by a fine not exceeding $1,000, imprisonment, or both.

D. The administrative fines shall constitute a civil debt owing to the city jointly and severally by the owner or other responsible person. The debt shall be collectible in the same manner as any other civil debt owing to the city.

E. Each day or portion thereof that the provisions of this chapter are violated shall be deemed as a separate offense. (Ord. 2024-765 § 4 (Exh. A)).