Chapter 8.60 NEIGHBORHOOD PRESERVATION

The Fremont city council has determined that the objective of Fremont’s nuisance abatement program is to advance the comfortable enjoyment of life and property. 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.

The Fremont city council has determined that the owners of property within the city shall sustain property maintenance best practices which will protect the livability, appearance, property values and economic stability of the city and will protect the public from health and safety hazards that result from the neglect and deterioration of property. This duty applies whether the nuisance is created by an existing physical condition or by nuisance-creating activities of the occupants or property owner.

The Fremont city council finds that nuisances can be avoided with effective property management. If property owners do not fulfill their responsibilities, it is necessary for the safety, health and welfare of neighborhoods and the city as a whole that abatement action be initiated and completed.

The purpose of this chapter is to accomplish the foregoing. Accordingly, the provisions herein shall be construed liberally to give full effect to the accomplishment of these purposes and objectives.

These procedures are a supplement to existing abatement procedures and are not intended to replace or supersede existing procedures. Existing abatement procedures include court injunctions to correct nuisances; criminal prosecution; infraction or administrative citation procedures and associated penalties. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9100.)

8.60.020 Definitions.

For the purpose of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

“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 Cal. Gov’t Code § 38773.5.

“Administrative order” means specific conditions imposed on the property owner by the city manager as a condition of continued operation or occupancy of the property. Administrative orders shall be reasonably calculated to resolve the nuisance condition and may include, but are not limited to, modification of management practices and the physical character of the property.

“Building/structure” means any structure, including but not limited to any house, garage, duplex, apartment, condominium, stock cooperative, mobile home, fence, wall or other residential structure, and any commercial, industrial or other establishment, warehouse, kiosk, or other structures affixed to or upon real property used for the purpose of dwelling, business, storage, or other activity.

“City manager” means the city manager or a designee of the city manager.

“Commercial establishment” means a for-profit, nonprofit or not-for-profit organization or institution offering goods or services to the public on a retail, wholesale or charitable basis including mail order, television, radio, Internet and other electronic or light beam impulse device, merchandiser or service provider.

“Common area” means an entire common interest development as defined in Cal. Civ. Code § 1351, except the separate interests therein.

“Graffiti” means any inscription, word, figure, picture, design or other graphic representation prohibited by law or unauthorized by the owner or person in possession of the subject property, which is marked, etched, scratched, drawn, painted or otherwise applied on any building or other public or private facility, and can be seen by any person using any public right-of-way or from adjacent properties. “Graffiti” includes, but is not limited to: (1) graphic representations which are obnoxious or an eyesore; (2) representations of any gang type group; (3) projection of threats; (4) insults to any race, creed or religion; or (5) expressions of profanity.

“Homeowners’ association” means any California corporation, nonprofit mutual benefit corporation or unincorporated association created for the purposes of controlling, managing or maintaining the common areas of a common interest development defined in Cal. Civ. Code § 1351.

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

“Property” means all residential, industrial, commercial, agricultural and other real property, including but not limited to front yards, side yards, rear yards, driveways, walkways, alleys, common areas and sidewalks, and shall include any building, wall, fence or other structure, whether fixed or moveable, located on such property.

“Property 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.

“Specific abatement” includes, but is not limited to, closure of all business activity, vacating of the premises, imposition of administrative orders, revocation of business application and occupancy permits, demolition, removal, repair, maintenance, construction, reconstruction, replacement or reconditioning of structures, appliances or equipment; removal, transportation, disposal and treatment of waste and abandoned materials and equipment capable of attracting or harboring rodents or insects or producing odors or blight.

“Substantial abatement” means continuous and consistent progress made by, or caused by, the property owner toward abatement of the conditions described in the abatement notice, which is commenced within the time for abatement stated in the notice and which is reasonably calculated to achieve full abatement in the near future. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9105.)

8.60.030 Property owner duty to abate nuisance.

(a) Every owner of real property within the city shall manage their property in a manner to avoid violation of this code. The property owner shall be liable for violations thereof regardless of any contract or agreement with any third party regarding the property. When there are multiple property owners, the property owners shall have joint and several liability.

(b) Every property owner in the city is required to conduct all activities in a manner to avoid violation of this code and to correct any nuisance condition.

(c) It shall be the duty of every property owner to keep all parcels of land under the property owner’s possession or control, free of nuisance conditions. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9110.)

8.60.040 Nuisance defined.

It shall be considered a public nuisance and unlawful for any property owner to maintain or to allow his/her property to be maintained in a condition that is detrimental to public health, safety, or general welfare or in a condition which violates any code or ordinance adopted by the city. Every property owner shall manage his/her property in such a manner as to avoid violation of this code. Conditions on the property that are detrimental to public health, safety, or general welfare constitute a public nuisance, and include, but are not limited to, the following conditions:

(a) Accumulation of garbage, litter, bins, boxes, construction debris, bags, dirt, used motor oil, or other debris;

(b) Junk, trash, shopping carts, salvage materials, scrap metal, bottles, cans, wire, paint cans, or other debris kept on the property except recycling materials contained in an enclosed nonhabitable structure or appropriate container;

(d) Fences with broken or missing boards, rotted posts, or fences that are leaning, dilapidated, or in disrepair; fences or retaining walls with inconsistent and incompatible use of materials or inconsistent or incompatible colors that are visible from the public right-of-way;

(e) Fuel tanks, storage tanks or cylinders for any type of gas, or other such containers which are not in an approved and enclosed structure, connected to a gas appliance or attached to a recreational vehicle, camper, or camping trailer;

(f) Any violations of Cal. Health & Safety Code § 17920.3 (Substandard building; conditions);

(g) Graffiti on public or private property;

(h) The storage of construction materials on a construction site for more than 30 days where there is no ongoing construction activity;

(i) Washers, dryers, refrigerators, freezers or other appliances or similar items on the property that is viewable from the public right-of-way;

(j) Clotheslines or clothes hanging in front yards, side yards, porches, or balconies; however, clotheslines and clothes hanging in rear yards are permitted;

(k) Buildings where 25 percent or more of any painted surfaces of the building’s exterior observable from public view is peeling; or lacks weather protection due to lack of paint;

(l) Occupied buildings whose doors or windows are boarded up or covered with tarps or similar opaque material, except as otherwise directed or approved by the city’s building official or designee;

(m) Occupied buildings with broken or cracked glass windows or doors;

(n) Unoccupied buildings which are unsecured;

(o) Materials such as tarps or similar nonpermanent articles on roofs for more than 30 days;

(p) Attractive nuisances or any dangerous machinery or conditions including, but not limited to, abandoned, broken or neglected equipment, tools and vehicle repair equipment;

(q) Overgrown trees or vegetation that obstruct public right-of-way or sidewalk or obscure the necessary view of drivers or pedestrians on public streets or private driveways; or weeds that exceed four inches in any yard or planter strip; overgrown or unsightly vegetation or weeds which may harbor rats, vermin, or other rodents;

(r) Dead trees or dead plant material;

(s) Inoperable, wrecked, dismantled, partially repaired or abandoned automobile(s), truck(s), boat(s), trailer(s), motorcycle(s), and other vehicle(s) of similar kind and use that are not stored in an enclosed structure on the property;

(t) Unmounted campers or camper shells in the rear, side, or front yard areas visible from the public right-of-way;

(u) Automobile(s), truck(s), boat(s), trailer(s), and other vehicle(s) of similar kind and use which are displayed for sale on any parking lot or unimproved property, except for authorized vehicle dealer sales lots;

(v) Commercial vehicles, as defined by the California Vehicle Code, that are parked or stored in any residential district, except vehicles operating in the normal course of business or authorized by home occupancy permit;

(w) Sleeping or living in any vehicle;

(x) Construction activity during hours other than those permitted in Section 18.160.010;

(y) Failure to obtain or finalize a building permit; and

(z) Any fire hazard as defined in California Code of Regulations Title 19, Division 1, as determined by the building official or fire marshal. (Ord. 2276 § 1, 2-3-98; Ord. 2-2005 § 1, 2-1-05; Ord. 36-2005 § 1, 11-22-05; Ord. 18-2013 § 1, 12-3-13. 1990 Code § 4-9115.)

8.60.045 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;

(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. 18-2013 § 2, 12-3-13.)

8.60.050 Unlawful property nuisances – Remedy by civil penalty, infraction citation and/or specific abatement.

(a) Any property found to be maintained in violation of Section 8.60.030 is hereby declared to be a public nuisance and may be specifically abated as described in Section 8.60.020. The procedures for abatement set forth in this chapter 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 including citations for infractions or civil penalties.

(b) Property nuisances determined pursuant to this chapter may be remedied by civil penalties as provided in Chapter 1.20. Whenever civil penalty citations are used to remedy nuisances, the procedures of Chapter 1.20 shall apply. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9120.)

8.60.060 Enforcement responsibility.

(a) The city manager may delegate to city staff authority to enforce portions or all of the provisions of this chapter.

(b) The city manager is authorized to order vacating of premises, revocation of city licenses, permits and approvals to impose administrative orders necessary to abate a nuisance. Nothing contained herein shall authorize revocation of conditional use permits by order of the city manager. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9125.)

8.60.070 No duty to enforce – Exercise of discretion.

(a) Nothing provided in this chapter shall create any duty on the city to enforce any specific law or code section or abate any specific condition or circumstance which may exist. The city manager shall exercise sound prosecutorial discretion and shall maintain enforcement actions as resources permit.

(b) The timing, methods and priority of specific abatement actions shall be subject to the sole discretion of the city manager. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9130.)

8.60.080 Inspection procedures.

City staff are authorized by the city manager to inspect private property with the express oral or written consent of an adult apparently occupying the premises. In exigent circumstances, consent is unnecessary. The staff inspecting such property shall document all consent circumstances or exigent circumstances as appropriate. Absent exigent circumstances, when consent is denied, city staff shall obtain an inspection warrant as provided in Cal. Civ. Proc. Code §§ 1822.50 et seq. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9135.)

8.60.090 Notice for specific abatement of nuisance.

Whenever the city manager determines that property in the city is maintained as a nuisance as defined in Section 8.60.040:

(a) The city manager may send by first-class mail postage prepaid or hand delivery a written notice to specifically abate the nuisance to the property owner as listed on the last equalized assessment roll of the county. Service shall be deemed complete at the time notice is personally served or deposited in the mail.

(b) The notice shall state the proper street address and the assessor’s parcel number of the subject property.

(c) The property owner shall be provided no less than three calendar days and not more than 30 calendar days to take corrective action to remedy the nuisance. At the discretion of the building official, an extension not to exceed 14 days at a time may be granted for good cause in order for the property owner to correct the violation(s). For purposes of graffiti abatement, the property owner and/or the person in possession of the property shall be provided five calendar days to take corrective action to abate the graffiti.

(d) The notice shall specify the Fremont Municipal Code sections or the statute violated and state all the facts constituting the nuisance.

(e) The notice shall specify the corrective action required, including temporary corrective action when appropriate, shall describe administrative orders and any business application or occupancy permit revocations imposed by the city manager.

(f) When corrective action is specified, the notice shall advise the property owner that failure to correct the violation will result in the city correcting the violation and collecting the abatement costs by billing or by lien on the property.

(g) The notice shall advise the property owner of the right to file an appeal pursuant to Section 8.60.120 within seven calendar days from the date of the notice if the property owner seeks to challenge the nuisance determination or the imposition of administrative orders, operational or occupancy conditions, or the revocation of business or occupancy permits. The grounds to appeal a determination of nuisance include disputing the factual or legal basis of the nuisance determination.

(h) The notice shall advise the property owner to either correct the violation or request a hearing in order to avoid specific abatement and liability for abatement costs.

(i) The city manager may, as necessary, cause at least one copy of a notice bearing title letters at least one inch high reading, “NOTICE TO ABATE NUISANCE,” to be conspicuously posted on the property for 30 calendar days beginning the date written notice is mailed or personally delivered to the property owner.

(j) The notice shall advise the property owner that failure to appeal shall constitute a waiver of their right to an administrative hearing to contest the nuisance determination or the abatement cost. (Ord. 2276 § 1, 2-3-98; Ord. 18-2013 § 1, 12-3-13. 1990 Code § 4-9140.)

8.60.100 Summary specific abatement – Imminent danger.

(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 specific abatement action determined by the city manager to be necessary.

(c) Summary specific abatement actions taken by the city manager shall be fully documented prior to or contemporaneously with specific 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 specific 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 specific 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 Sections 8.60.120 and 8.60.190 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 specific abatement or was otherwise not at fault.

(h) The procedures provided in this section shall not apply in the circumstances of a disaster event as described in Section 15.90.040.

(i) Nothing contained herein shall supersede the regulation of possible, potential and registered Fremont resources as set forth in Chapter 18.175. (Ord. 2276 § 1, 2-3-98; Ord. 18-2013 § 1, 12-3-13. 1990 Code § 4-9145.)

8.60.110 Specific abatement by city.

(a) When the notice for specific abatement of nuisance requires repair, removal, maintenance or other corrective action, and the property owner shall fail, neglect or refuse to comply with the notice to abate within the prescribed time, and if no appeal has been filed, the city manager may abate the nuisance.

(b) When the notice for specific abatement of nuisance requires closure of business activity, vacating of the premises, or the imposition of administrative orders, and the property owner shall fail, neglect or refuse to comply with the notice to abate within the prescribed time, and if no appeal has been filed, the city manager may abate the nuisance by all appropriate means.

(c) Said specific abatement shall be pursued by city personnel or private contractors at the direction of the city manager. The city manager is hereby expressly authorized to enter upon said property for such purposes.

(d) All abatement costs shall be billed to the owner and shall be due and payable within 30 calendar days thereafter.

(e) No 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 business days after the declaration of substandard building is received by the property owner.

(g) The procedures provided in this section shall not apply in the circumstances of a disaster event as described in Section 15.90.040.

(h) Nothing contained herein shall supersede the regulation of possible, potential and registered Fremont resources as set forth in Chapter 18.175. (Ord. 2276 § 1, 2-3-98; Ord. 18-2013 § 1, 12-3-13. 1990 Code § 4-9150.)

8.60.120 Appeal procedure.

The property owner may appeal the specific abatement of nuisance determination or the specific remedies and administrative orders imposed by the city manager by filing an appeal with the city clerk within seven calendar days of the date of service of the notice for specific abatement of nuisance determination. The appeal shall identify the property and state the grounds for appeal together with all material facts in support thereof. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9155.)

8.60.130 Service of notice of hearing.

(a) In the event the property owner appeals the specific abatement of nuisance determination, or an administrative order imposed by the city manager, the city clerk shall immediately assign a hearing officer for the matter. The assigned hearing officer shall schedule a hearing to commence within 15 calendar days after the hearing is assigned to the hearing officer.

(b) The city manager is authorized to recruit, train, evaluate and determine standards for administrative hearing officers.

(c) Notice of said hearing shall be served personally or by first-class mail, postage prepaid. Such notice shall be addressed to the person in possession of such property as shown in the public record and to the property owner thereof at the last known address as the same appears on the last equalized assessment roll of the county and shall specify the time and place when and where the designated hearing officer will hear and decide upon issues which may be raised by the property owner. Such notice shall be served not less than five calendar days, exclusive of Saturdays, Sundays and holidays, prior to the time set for the hearing. Service shall be deemed complete at the time notice is personally served or deposited in the mail. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9160.)

8.60.140 Waiver of hearing.

Failure of the property owner to appear at the hearing after notice has been served personally or by first-class mail, postage prepaid, addressed to said property owner at the address shown on the appeal, shall be deemed a waiver of the hearing and an admission by said property owner of the nuisance determination or the abatement cost. In the event of such failure to appear, the city manager may order that the nuisance be abated, or the abatement cost be collected. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9165.)

8.60.150 Administrative hearing by hearing officer.

(a) At the time and place set forth in hearing notice, the hearing officer designated by the city manager shall afford the property owner an opportunity for a hearing and shall consider all relevant evidence, objections and protests, and shall receive testimony from city staff, the property owner and other persons under oath relative to such alleged public nuisance and to the proposed specific abatement of such property. Said hearing shall be tape recorded and may be continued from time to time. Each party may examine the witnesses of other parties.

(b) (1) The hearing officer shall conclude the hearing of the matter within 30 calendar days after start of the hearing unless a party is able to show good cause to the hearing officer to extend the hearing time.

(2) The hearing officer shall affirm, modify or set aside the specific abatement order determined by the city manager and shall prepare a written statement of decision.

(3) The statement of decision shall be based on the evidence received, shall be final and conclusive and shall contain a statement of decision relevant to the issues.

(4) The statement of decision shall set forth the time within which specific abatement shall be completed by the property owner.

(5) The statement of decision shall be completed and mailed to the parties no later than 10 calendar days after close of the hearing and shall notify the parties that superior court review shall be commenced no later than 90 calendar days after the hearing officer mails the statement of decision first class, postage prepaid, with a proof of service to the parties.

(6) In no event shall the abatement period be less than five calendar days nor more than 60 calendar days except in circumstances of summary specific abatement as defined in Section 8.60.100.

(c) The hearing officer shall serve the statement of decision on the parties no later than five calendar days after the decision is signed by the hearing officer. The statement of decision shall be served in the same manner as the notice for specific abatement of nuisance.

(d) The hearing officer shall compile the full record of the hearing under this chapter, including all exhibits and documents offered as evidence, whether or not admitted, and an audio tape recording of the proceeding.

(e) The full record of all hearings shall be preserved for a minimum period of 24 months in a manner determined by the city manager in administrative regulations. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9170.)

8.60.160 Voluntary abatement – Avoidance of costs.

No administrative or incidental staff costs or attorneys’ fees associated with the appeal hearing or enforcement may be assessed against a property owner who voluntarily undertakes substantial abatement action within 10 calendar days after service by the hearing officer of the written statement of hearing decision on the property owner. The property owner’s abatement action shall be in compliance with the orders of the hearing officer. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9175.)

8.60.170 Judicial review.

Judicial review of the hearing decision shall be commenced in accordance with Cal. Civ. Proc. Code § 1094.6 no later than 90 calendar days after said decision is signed. Cal. Civ. Proc. Code § 1094.6 is hereby adopted for purposes of this chapter. Review shall be in accordance with Cal. Civ. Proc. Code § 1094.5. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9180.)

8.60.180 Abatement by city manager upon default of property owner.

After the hearing provided in Section 8.60.150, if abatement of the nuisance has not been commenced and prosecuted to completion with due diligence as required by the written hearing decision, the city manager shall forthwith abate or cause to be abated the nuisance upon the premises and the abatement cost thereof shall be billed to the property owner. Payment of the abatement cost shall be due within 30 calendar days of the mailing date. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9185.)

8.60.190 Abatement cost – Notice and hearing.

(a) After completion of specific abatement, the enforcement officer shall file with the city clerk an abatement cost report specifying the work which has been done, the abatement cost and a description of the property upon which the nuisance was abated.

(b) The enforcement officer shall serve the abatement cost report on the property owner by certified mail addressed at the last known address as the same appears on the last equalized assessment roll of the county.

(c) The property owner may request a hearing to appear and be heard concerning the abatement cost report and the actual and incidental abatement costs including reasonable reinspection fees. Any request for a hearing shall be made to the city clerk within 15 calendar days after service of the abatement cost report.

(d) When a request for hearing is made, the city clerk shall serve a notice of hearing on the property owner which notice shall specify the time and place when and where a city manager designated hearing officer shall hear and pass upon the abatement cost report of the city staff, together with any objections or protests, if any, which may be raised by the property owner liable to be assessed for the abatement cost, and any other interested person. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9190.)

8.60.200 Hearing on report – Finality of decision.

(a) At the time and place fixed for the hearing on the abatement cost report, the hearing officer shall conduct a fair hearing to hear and pass upon the abatement cost report of the city staff and shall receive objections or protests which may be raised by the property owner liable to be assessed for such abatement cost, and any other interested person.

(b) The hearing officer may make such revision, correction or modification in the written abatement cost report, as justice may require, after which the abatement cost report as submitted, or as revised, corrected or modified, shall be confirmed.

(c) If the hearing officer determines that the objections and protests support a finding that the nuisance was not created, acquiesced in or allowed to continue by the property owner, the hearing officer shall make such finding and may revise, correct, or modify the report of the city staff as justice may require.

(d) The hearing officer may continue the hearing from time to time. The hearing officer shall make findings and a written statement of decision. The decision on all protests and objections which may be made shall be final and conclusive and subject to review pursuant to Cal. Civ. Proc. Code §§ 1094.5 and 1094.6.

(e) The hearing officer shall complete the abatement cost report as submitted, revised, corrected or modified within five days after close of the hearing and immediately mail the written abatement cost report which shall include a statement that the time within which to seek judicial review is governed by Cal. Civ. Proc. Code § 1094.6, and a proof of service verifying the mailing of the written decision.

(f) The hearing officer shall prepare and preserve a full record of the proceeding, including an audio tape, for 120 calendar days after the close of the hearing. The full record of the hearing shall be preserved by the city clerk for a minimum of 24 months. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9195.)

8.60.210 Assessment of abatement cost – Lien.

(a) The abatement cost shall be a debt owing to the city and may be enforced like any other debts owing to the city.

(b) As an alternative to subsection (a) of this section, the abatement cost may be assessed by the city against the property upon which the nuisance was abated; and such abatement cost so assessed, if not paid within 30 calendar days after its confirmation by the hearing officer, shall constitute a special assessment against the parcel of property and shall be a lien on such property for the amount thereof from the time of recordation of the notice of lien, which lien shall continue until the assessment is paid or until it is discharged of record. When the assessment lien procedure is used, the city manager shall give notice by certified mail to the property owner at the last known address as the same appears on the last equalized assessment roll of the county. The notice shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments of the assessment lien imposition. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9200.)

8.60.220 Notice of lien – Manner of collection.

From and after the date of imposing the special assessment by recording notice with the county auditor, all persons shall be deemed to have notice of the contents thereof. The notice of special assessment shall be delivered by the city manager to the county auditor, who shall enter the amount thereof on the county assessment book opposite the description of the particular property, and the amount shall be collected together with all other taxes thereon against the property. The notice of special assessment shall be delivered to the county auditor before the date fixed by law for the delivery of the assessment roll to the county board of equalization. Thereafter the amount of the special assessment shall be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and interest and to the same procedure under foreclosure and sale in case of delinquency as provided for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of county taxes are hereby made applicable to such special assessment taxes. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9205.)

8.60.230 Special circumstances.

(a) Notwithstanding the provisions of Section 8.60.210, whenever an owner of property constituting a nuisance is unable to abate the nuisance and is also unable to pay for the estimated abatement cost to be incurred by the city, then the city shall abate the nuisance. The actual abatement cost shall become a lien against the property, which lien shall come due and payable only upon the sale, transfer, or total or partial destruction of said property. The property owner shall execute a lien instrument approved by the city attorney and the lien instrument shall be recorded with the county recorder against the subject property.

(b) This procedure set forth in subsection (a) of this section shall be available as an alternative provision whenever the property owner can prove to the satisfaction of the city manager that said property owner is unable to abate the nuisance or to pay for the abatement cost due to the following special circumstances:

(1) Continued unemployment, underemployment or low income.

(2) Physical or mental disability, disease, handicap or impairment rendering the property owner unable to meet their civic and financial obligations.

(3) Senior citizens involuntarily subsisting on a limited fixed income. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9210.)

8.60.240 Application of graffiti prohibited – Civil penalty liability.

The application of graffiti to any surface of private or public property is hereby prohibited. Each person responsible for application of graffiti in violation of this section shall be liable for a civil penalty of up to $1,000 as prescribed by the city council. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9215.)

8.60.250 Civil penalty for repeat graffiti nuisance.

(a) If the city manager finds that the city had previously removed graffiti from the same property after notice to the same property owner, the city manager shall assess a civil recovery based on the following schedule when graffiti is again removed by the city.

(b) Civil Recovery.

(1) For previous removal of graffiti by the city once within the preceding five years: 50 percent of the city’s total abatement cost for removal;

(2) For previous removal by the city two or more times within the preceding five years: 100 percent of the city’s total abatement cost for removal.

(c) The city shall give notice of this civil recovery to all property owners when graffiti abatement procedures are instituted against their properties. The amount of the civil recovery shall be stated as an additional abatement cost item in the abatement cost report as provided in Section 8.60.190. The imposition of civil recovery may be protested in the abatement cost report hearing as provided in Sections 8.60.190 and 8.60.200. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9220.)

8.60.260 Controlled access to graffiti materials.

(a) Every person who owns, conducts, operates or manages a commercial establishment selling aerosol containers exceeding three ounces, or marker pens with tips exceeding four millimeters in width, containing anything other than a solution which can be removed with water after it dries, shall take all feasible measures to control access to such aerosol containers or marker pens.

(b) Feasible measures to control access shall include, but not be limited to:

(1) Storage of aerosol containers and marker pens in an area viewable by, but not accessible to, the public in the regular course of business without employee assistance, pending legal sale or disposition of such marker pens and paint containers.

(2) Placing aerosol containers and marker pens in an area secure from the public without employee assistance.

(3) Placing aerosol containers and marker pens in an area of controlled or restricted access and posted for “ADULT ONLY ACCESS” and monitored easily by employees.

(4) Any other storage, display or access practice to restrict availability of aerosol containers and marker pens which effectively precludes pilferage or access to persons under 18 years of age.

(c) The chief of police is authorized to investigate and to determine whether the feasible measures to control access adopted by any person pursuant to this chapter are effective to meet the requirements of this chapter. In determining effectiveness, the chief of police shall consider all of the following:

(1) Evidence that materials from a specific retail commercial establishment have been used for graffiti activity.

(2) The business ability of a specific retail commercial establishment to adopt feasible measures to control access, including such factors as the size of an establishment, volume of business, and the financial condition of the establishment.

(d) Any person aggrieved by a determination of the chief of police pursuant to this section may request an informal conference to discuss the matter with the chief of police. A request for an informal conference shall be made within 10 calendar days following the chief’s determination and shall be directed to the chief of police at P.O. Box 5006, Fremont, California 94537. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9225.)

8.60.270 Program evaluation.

The city manager shall provide the city council a program evaluation, focusing on the effectiveness of this nuisance abatement program, two years after the effective date of the ordinance codified in this chapter. (Ord. 2276 § 1, 2-3-98. 1990 Code § 4-9230.)