Chapter 6.25 COMMUNITY PRESERVATION

A. The city has a history and reputation for well-kept properties and the property values and the general welfare of the community are founded, in part, upon the appearance and maintenance of private properties;

B. Some owners and occupants have permitted visual blight to occur on their properties within the city, including but not exclusive of abandoned, deteriorated and infested buildings, the accumulation of overgrown, rank and noxious vegetation visible to the public, the accumulation of broken-down or discarded personal property in front yards, and the strewing of debris and garbage cans on yards visible from the street;

C. The existence of such conditions as described in this chapter is injurious and inimical to the public health, safety and welfare of the residents of the city and contributes substantially and increasingly to the deterioration of neighborhoods as well as commercial areas;

D. Abatement of these conditions will improve the health, safety and welfare of the residents and the image of the city because maximum use and enjoyment of properties closely proximate to one another depends upon maintenance of those properties at or above a minimum standard of sightliness. The beneficial effects of maintaining a minimum standard of sightliness for property in the city include, but are not limited to, appreciation of property values, physical improvement of residential and commercial areas, attraction of investors of capital to residential and commercial zones, increase in commercial trade and increase in the tax base of the city;

E. The abatement procedures set forth in this chapter are reasonable, afford due process to all affected persons, and are designed to respect the constitutional and privacy rights of all persons;

F. The regulation of the uses and abuses of property, as described in this chapter, reasonably relate to the proper exercise of police power to protect the health, safety and general welfare of the public. (Ord. 620, § 1; 1976 Code § 6-5.02).

6.25.030 Definitions.

As used in this chapter and unless otherwise required by or more specifically defined in the context, the terms set out below shall have the meanings specified.

A. “Enforcement officer” is the person authorized by the city to enforce any of the provisions of this chapter.

B. “Multifamily dwelling” is a building or structure containing four or more residential units.

C. “Owner” and “property owner,” is the owner or owners of record of real property as shown on the latest equalized assessment roll of San Mateo County or as otherwise known to the city by virtue of more recent and reliable information.

D. “Responsible person” is a person designated by the owner to be responsible for the management of the owner’s property, and for purposes of the procedures set forth in this chapter, the responsible person shall be deemed an agent of the owner. (Ord. 620, § 1; 1976 Code § 6-5.03).

6.25.040 Authority for adoption – Application.

A. The procedures set forth in this chapter for the city’s abatement of a nuisance and levy of a special assessment against a parcel to recover all of the city’s costs to abate the nuisance are adopted under Government Code Section 38771 et seq.

B. The procedures set forth in this chapter are not exclusive and are in addition to and shall be coordinated with the procedures for abatement conferred upon the city by Civil Code Section 3494, Code of Civil Procedure Section 731, Government Code Section 38773, Health and Safety Code Section 17920, or any other lawful authority.

C. The procedures set forth in this chapter for abatement apply to any nuisance which the city declares is a nuisance pursuant to a provision of this code or other ordinance which the city may adopt. (Ord. 620, § 1; 1976 Code § 6-5.04).

6.25.050 Unlawful property nuisances.

It is unlawful and declared a public nuisance for any person owning, renting, leasing, occupying or having charge or possession of any property in the city to maintain such property in such a manner that any of the following conditions are found to exist:

A. Buildings or conditions that violate the Uniform Building, Electrical, Plumbing, Mechanical, Housing or Fire Codes as adopted by the city;

B. Any public nuisance as defined by county, state or federal law;

C. Any violation of this code expressly declared to be a public nuisance;

D. Maintenance on an interim or permanent basis of any obstruction in the public right-of-way;

E. Any criminal or other activity taking place on property that threatens the health, safety or right of peaceful enjoyment of the premises of the other residents or adjacent property owners, including drug-related activity on such property;

F. Maintenance or condition of property so that the property becomes defective or in a condition of deterioration or disrepair causing visual blight, reduces the aesthetic appearance of the neighborhood, offends the senses, is detrimental to nearby properties or is a danger to public safety including, but not limited to:

1. Buildings or Structures.

a. Buildings or structures which are abandoned, partially destroyed for a period of at least six months or left in an unreasonable state of partial construction. An “unreasonable state of partial construction” is defined as any unfinished building or structure that has been in the course of construction two years or more,

b. Unpainted buildings or structures and those having dry rot, warping or termite infestation,

c. Buildings or structures on which the condition of the paint has become so deteriorated as to permit decay, excessive checking, cracking, peeling, chalking, dry rot, warping or termite infestation,

d. Buildings or structures with missing doors and/or windows containing broken glass and/or no glass at all where the window is of a type which normally contains glass. Plywood or other materials used to cover such window space and/or doors, if permitted under this code, shall be painted in a color or colors compatible with the remainder of the building,

e. Graffiti on the exterior of any building, fence or other structure which is visible from a public street, alley or sidewalk,

f. Clotheslines in front or side yards visible from the public right-of-way or the hanging or placement of laundry or similar articles on porches or decks, stair railings or fences, hedges or other supporting structures located in front or side yards where the foregoing are visible from any public street, alley or from adjoining properties,

g. Any use of barbed wire, concertina wire, razor-cut wire, electrified fences, or other such similar fencing material in a dangerous or unsightly manner, except as authorized by the city,

2. Driveways and Sidewalks. Driveways, sidewalks, walkways or alleys which are maintained in such condition that they are or will become defective or unsightly,

3. Refuse and Waste.

a. The accumulation of dirt, dust, litter or debris in vestibules, doorways, or the adjoining front yards, sidewalks, passages or breezeways of a building or that may be visible from a public street, alley or adjoining properties,

b. The accumulation of debris, refuse or waste, the storage or placement of any equipment or materials, or the installation of buildings or structures that cover or otherwise block access to or use of a public right-of-way, manholes, water valves, storm sewers or other public infrastructure or appurtenances,

c. Used or damaged lumber; junk; trash; debris; salvage material; abandoned, discarded or unused furniture, stoves, sinks, toilets, cabinets, or other household fixtures or equipment stored so as to be visible from a public street, alley or from adjoining properties. This does not preclude the placement of stacked firewood for use on the premises,

d. The leaving of any garbage can, refuse container or recycling container in the front or side-yard area, other than on collection day, visible from a public street, alley or from adjoining properties, except as permitted by another section or chapter of this code,

e. All uncovered or inadequately covered accumulation of manure, plant material, fruits or rubbish that provide a breeding place for flies, mosquitoes or vermin or which release gases,

4. Erosion/Subsidence. Erosion, undercutting, excessive sloping, subsidence, saturation of soil or surface water drainage of such magnitude or effect to be hazardous or potentially hazardous, whether caused by grading operations, excavations or fill, directed or disregarded drainage or as a result of the topography, geography or configuration of the land in its natural or altered state,

5. Trees and Vegetation.

a. Dead, decayed, diseased or hazardous trees, shrubs or plants, and weeds or overgrown, unsightly or uncultivated vegetation,

b. Any vines or climbing plants growing into, on or over any street tree, public hydrant, utility pole, traffic signal, street or traffic sign, or electrolier,

c. Hedges or dense thorny shrubs and plants on any street or part of a street, sidewalk or any public right-of-way,

d. Any branches, foliage or roots of trees, shrubs or plants that interfere with use or access of any street improved for vehicular or pedestrian use, or any public infrastructure or improvements,

e. Placing any leaves or other vegetative debris in the public right-of-way,

6. Water.

a. Polluted or stagnant water which, because of its nature or location, constitutes an unsightly, unhealthy or unsafe condition,

b. Unfenced or unmaintained pools, hot tubs, ponds or other bodies of water,

7. Vehicles.

a. Storage of inoperative, nonregistered, abandoned, wrecked or dismantled vehicles, including recreational vehicles as defined in Health and Safety Code Section 18010, on private property or in the public right-of-way,

b. Vehicles placed in a location so as to block sidewalks, driveways or delivery approaches,

c. Storage of trailers, campers, recreational, commercial or any other vehicles, boats, or other mobile equipment in front yard areas, excluding driveways, or in other unpaved areas on private property that are visible from the public right-of-way,

d. Repair, assembly, modification, restoration or any other work of any type on any vehicle in the public right-of-way or on any private residential property with the exception that the owner or occupant of the private residential premises may conduct minor repair and maintenance of a vehicle registered as specified in the California Vehicle Code to such occupant or owner where such minor repairs (1) are limited to replacement of the alternator, generator, starter, water pump, battery or brake parts, change of oil and filter, fan belt, hose, lamp replacement, repair of flat tires, lubrication, engine tune-up (which consists of distributor cap, rotor and spark plug replacement) and similar routine and preventive maintenance work; and (2) are conducted in a location not readily visible from a public street, alley or adjoining property and in a manner that protects the health, safety and welfare of residents and the public at large,

8. Construction Equipment and Materials.

a. Construction equipment or machinery of any type or description parked or stored on property when it is readily visible from a public street, alley or adjoining property, except while excavation, construction or demolition operations covered by an active building permit are in progress on the subject property or where the property is zoned for the storage of construction equipment and/or machinery,

b. The keeping, storing, depositing or accumulating on property of dirt, sand, gravel, concrete or other similar materials when they are readily visible from a public street, alley or adjoining property, except while excavation, construction or demolition operations covered by an active building permit are in progress on the subject property or where the property is zoned for the storage of such materials,

c. Unfenced excavations or excavations not properly covered,

9. Smoke/Noise/Vibrations.

a. Smoke, fumes, gas, dust, soot, cinders or other particulate matter in such quantities as to render the occupancy or use of the property uncomfortable to a person of ordinary sensibilities,

b. Emanation of noise or vibrations on a continuous and regular basis of such a loud, unusual, unnecessary, penetrating, lengthy or untimely nature as to unreasonably disturb, annoy, injure or interfere with or endanger the comfort, repose, health, peace, safety or welfare of users of neighboring property,

c. Construction or repair work that occurs at any time other than the following: Monday through Friday seven-thirty a.m. to seven p.m., Saturday eight a.m. to six p.m., and Sunday and holidays nine a.m. to six p.m., unless otherwise authorized by the city,

10. Signs.

a. Improper maintenance of signs and/or signs which advertise a business or product which is no longer sold on the property,

b. Signs or advertisements posted on utility or street light poles, traffic or street signs, traffic signals, or other public structures or property,

11. Grease or Oil Accumulation. Any property which has pooled oil accumulation, oil flowing onto public rights-of-way or adjacent property, or excessive accumulations of grease or oil on paved surfaces, buildings, walls or fences. (Ord. 620, § 1 and Ord. 640, § 2, Amended by Ord. 718, § 7; 1976 Code § 6-5.05).

6.25.060 Right of entry for enforcement officer.

A. Whenever an enforcement officer has reason to believe that a nuisance exists or that an inspection is necessary to enforce any provision of this chapter, the officer, when duly authorized, may enter the premises at any reasonable time to perform the inspection or any other duty imposed by this chapter.

B. The enforcement officer shall present proper identification, state the purpose of the visit and request permission of the owner or responsible person to enter the premises. If entry is refused, the enforcement officer shall have recourse to every remedy provided by law to secure entry.

C. When the enforcement officer has first obtained a proper inspection warrant or other remedy provided by law to secure entry, no owner or responsible person shall fail or neglect, after proper

request is made as provided in this chapter, to promptly permit entry by the enforcement officer for the purpose of inspection and examination pursuant to this chapter. (Ord. 620, § 1; 1976 Code § 6-5.06).

6.25.070 Notice to abate.

A. Upon discovery of any public nuisance as defined in MMC 6.25.050, the city manager or designee shall notify the owner and any responsible person that the nuisance shall be abated by the city at the owner’s expense unless the owner appears at the stated time and place to show cause why there should be no abatement or abate the nuisance themselves.

B. A notice to abate on a form approved by the city manager may be issued to the owner of the property and mortgagee as shown on a recorded deed of trust, if such is known to the city, and the responsible person, if any, by any of the following: personal service, service by mail, or posting on any real property within the City in which the City has knowledge that the responsible person has a legal interest.

C. The notice to appear or abate shall be substantially in the following form:

NOTICE TO APPEAR OR ABATE PUBLIC NUISANCE

YOU ARE HEREBY NOTIFIED as the owner, agent, lessee or other person occupying or having control of the premises at (address), that pursuant to Section 6.25.050 of the Millbrae Municipal Code, the undersigned has determined that there exists upon the above-referenced premises a public nuisance, specifically (description of condition constituting nuisance). A copy of Section 6.25.050 is attached.

You are hereby required to abate this condition to the satisfaction of the undersigned within ____ days of the date of this notice or to appear at the office of__________________, Millbrae, California, at ___ __.m. to show cause, if any exists, why the condition or use should not be abated by the City with the abatement expenses including, but not limited to, the costs of administration and code enforcement charged to you as a personal obligation and/or made a lien upon the property.

Abatement is to be accomplished in the following manner: (description of what needs to be done to remedy situation).

(Name of Department and Department Head)

By:____________________________

D. An order or notice of abatement of a violation or nuisance under this chapter may include, in the discretion of the city, but shall not be limited to, any remedial action authorized by law. (Ord. 620, § 1, Amended by Ord. 698, § 1; Ord. 788, § 2; 1976 Code § 6-5.07).

6.25.080 Abatement of nuisance prior to scheduled hearing.

Any owner or responsible person may, at their own expense and prior to the scheduled hearing, abate a declared nuisance in accordance with the provisions of the notice sent by the enforcement officer, provided that all necessary permits are first obtained. If the enforcement officer determines that the nuisance has been abated, the proceedings under this chapter shall be terminated, except that the owner or responsible party shall be liable for any costs, including incidental expenses, incurred by the city for administration, code enforcement and abatement by the city, until the date of termination of proceedings under this chapter. (Ord. 620, § 1; 1976 Code § 6-5.08).

6.25.090 Manner of conducting hearing.

A. At the time and place designated in the notice, the hearing panel, to be appointed by the city manager and comprised of the chairperson of the beautification commission or other commission designee, a city department head from a department not involved in the prior identification or notification of the nuisance, and a building inspector from another city, shall hear and consider all relevant evidence, including, but not limited to, applicable staff reports, oral, physical and documentary evidence regarding the alleged nuisance and proposed method of abatement. The hearing may be continued from time to time.

B. The enforcement officer shall bear the burden of proving by a preponderance of the evidence that a public nuisance in the form of a violation of any requirement or provision of this chapter exists.

C. Oral evidence may be heard on oath or affirmation.

D. The owner or any responsible person may be represented by anyone of their choice or may represent themselves.

E. The hearing shall not be conducted according to the formal rules of evidence. 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 the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. However, irrelevant or unduly repetitive evidence shall be excluded.

F. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence.

G. The parties in the hearing shall have the following rights:

1. To call and examine witnesses on any matter relevant to the issues of the hearing;

2. To cross-examine opposing witnesses on any matter to the issues of the hearing;

3. To impeach any witness regardless of which party first called such witness to testify;

4. To rebut evidence against such parties;

5. To request the hearing officer to take official notice of any fact which would be subject to judicial notice by the courts of this state.

H. Within ten days after the conclusion of the hearing, the hearing panel shall issue a written decision and where applicable, an order of abatement. This decision shall set forth the factual findings made by the hearing panel, a conclusion as to whether a public nuisance in the form of a violation of any requirement or provision of this chapter exists, and the manner and time of the abatement. If the hearing panel determines that a nuisance exists which is likely to recur after abatement, the owner may be directed to take adequate precautions for a period of time not to exceed one year so that the nuisance will not recur. Copies of the decision shall be sent to the owner, the responsible person (if such person has been involved in the proceedings), the enforcement officer, and the city clerk. (Ord. 620, § 1, Amended by Ord. 698, § 1; 1976 Code § 6-5.09).

6.25.100 Abatement of nuisance after hearing.

A. Prior to an abatement action by the city, any owner or responsible person may, at their own expense, abate the nuisance in the manner directed by the order of abatement. All necessary permits shall be obtained before any such abatement is carried out.

B. If the enforcement officer determines that the owner or responsible person has completely abated the nuisance, all proceedings under this chapter shall be terminated.

C. If the enforcement officer determines that the nuisance still exists, it shall be abated by the city in the manner described in the order of abatement. (Ord. 620, § 1; 1976 Code § 6-5.10).

6.25.110 Notice of cost of abatement.

A. The enforcement officer shall keep an itemized statement of costs incurred by the city in inspecting and abating a public nuisance and costs to the city in causing the owner or responsible person to abate the nuisance and any applicable civil penalties. The cost, including, but not limited to, the incidental expenses of abating the nuisance or causing the owner or responsible person to abate the nuisance shall be billed to the owner and shall become due and payable within thirty days. The term “incidental expenses” shall include, but not be limited to: attorneys’ fees and costs and personnel costs, both direct and indirect, for administration and code enforcement, including, but not limited to, costs incurred in inspecting the property, costs incurred in documenting the nuisance, the actual expenses and costs of the city in preparation of notices, specifications and contracts, and the cost of printing and mailing the notices and documents. Once the abatement is completed, either by the city or the owner or responsible person, the enforcement officer shall provide a copy of this statement to the owner of the property in question, to any responsible persons and the city manager. The owner of the property shall be liable and responsible for, and required to pay, all such costs.

B. The owner or responsible person may request a hearing before the city manager or designee (hearing officer) to contest the statement of costs. The request for a hearing shall be made within ten days of receipt of the statement to the city clerk or the right to hearing shall be deemed waived.

C. The hearing officer shall review the statement of costs and any information presented by the owner or responsible person. The hearing officer’s decision shall be mailed to the owner and all responsible persons. The decision of the hearing officer shall be final. (Ord. 620, § 1, Amended by Ord. 640, § 3 and Ord. 698, § 1; 1976 Code § 6-5.11).

6.25.120 Expenses a special assessment against the property.

If the property owner does not pay the expense of abating the nuisance within thirty days after receipt of the statement of costs pursuant to MMC 6.25.110, the costs shall become a special assessment against the real property upon which the nuisance was abated. The assessment shall continue until it is paid, together with interest at the rate of ten percent a year computed from the date of confirmation of the statement until payment. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection and enforcement of municipal taxes apply to this special assessment. (Ord. 620, § 1; 1976 Code § 6-5.12).

6.25.130 Notice of special assessment.

The city shall file in the office of the county recorder a certificate substantially in the following form:

NOTICE OF SPECIAL ASSESSMENT

Under the authority of Government Code Sec. 38773.5 and Sections _________ to _________ of the Millbrae Municipal Code, the City did on _____, abate a nuisance upon the real property hereafter described and then on ______, did assess the cost and incidental expenses of the abatement upon the real property and/or the costs of causing the owner or responsible person to abate the nuisance. The City of Millbrae claims a special assessment on the real property for the expense of doing the work in the amount of $______. This amount is a special assessment against the real property until it is paid, with interest at the rate of ten percent (10%) a year from ___________________, (insert date of confirmation of statement), and discharged of record. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection, and enforcement of municipal taxes apply to this special assessment. The real property referred to above, and upon which the special assessment is claimed is that certain parcel of land situated within the City of Millbrae, County of San Mateo, State of California, more particularly described as follows:

_______________________________

____________________________

CITY OF MILLBRAE

Dated:__________________________

By:____________________________

(Ord. 620, § 1; 1976 Code § 6-5.13).

6.25.140 Summary abatement of immediate dangers.

A. Whenever any condition on or use of property causes or constitutes or reasonably appears to cause or constitute an imminent or immediate danger to the health, welfare or safety of the public or interferes with or jeopardizes the public’s use of any street, sidewalk, path or right-of-way, the condition or use may be summarily abated by the city without notice or hearing. Reasonable attempts to contact the owner by phone or in person shall be made.

B. When summary abatement is necessary, it shall be ordered only by the city manager or designee.

C. Notice of the summary abatement shall be provided to the owner or other responsible party as soon as practical.

D. The owner of the property or other responsible person shall be given an itemized statement of costs and civil penalties, if applicable, and a hearing, if requested, in the manner set forth in MMC 6.25.110.

E. The costs and expenses of a summary abatement shall be collected pursuant to the procedure set forth in MMC 6.25.120. (Ord. 620, § 1, Amended by Ord. 698, § 1; 1976 Code § 6-5.14).

6.25.150 Civil penalties.

A. In addition to any other costs and expenses assessed pursuant to this chapter, any person or entity who, within thirty days of the notice to abate pursuant to MMC 6.25.070 or any order or decision pursuant to MMC 6.25.090, fails or refuses to abate any nuisance or violation of any requirement of this chapter shall be required to pay a civil penalty in the amount of five hundred dollars for each violation which the person or entity does not correct as directed by the city within thirty days of written notice by the city.

B. All penalties imposed pursuant to this section shall be assessed and recovered pursuant to the procedures set forth in MMC 6.25.110, 6.25.120 and 6.25.130.

C. If the imposition of a civil penalty under this section is appealed pursuant to MMC 6.25.110, the city may, in its discretion, reduce or excuse the penalty based on findings concerning any of the following facts: (1) the nature, circumstances, extent and gravity of the violation; (2) the extent to which the violation was wilful or intentional; or (3) whether and to what extent the violation can and will be promptly corrected or abated and all city costs and expenses incurred in abating the violation reimbursed. (Ord. 620, § 1; 1976 Code § 6-5.15).

6.25.160 Alternative remedies.

Nothing in the foregoing sections shall be deemed to prevent the city council from ordering the city attorney to commence a civil or criminal proceeding to abate a public nuisance under applicable Civil or Penal Code provisions as an alternative to these proceedings. Nothing herein shall prevent the city from abating a nuisance pursuant to any other procedure established by city ordinance or state law. (Ord. 620, § 1; 1976 Code § 6-5.16).

6.25.170 Limitation of filing judicial action.

Any court action or proceeding to review or challenge the city’s decision and order of abatement shall be barred unless it is commenced within thirty days of the date of the resolution, and the resolution shall contain a statement so advising the appellant(s) of this time limit on seeking court review. No action or proceeding to review or challenge an abatement order or decision shall be permitted unless each ground or basis for such action or proceeding first has been asserted to the city manager and council pursuant to the procedures set forth in MMC 6.25.090. (Ord. 620, § 1, Amended by Ord. 698, § 1; 1976 Code § 6-5.17).

6.25.180 Private right of action.

Any person, entity, association or organization aggrieved by a wilful violation of any provision of this chapter when the owner(s) of a property has failed or refused to correct or abate a violation or nuisance under this chapter for thirty days after notice to abate pursuant to MMC 6.25.070 or any order or decision pursuant to MMC 6.25.090, shall have the right to file an action or proceeding for injunctive relief and damages against the owner(s) of such property. Any person, entity, association or organization which prevails or is successful in any such action or proceeding shall be entitled, in addition to any other relief, to recover all reasonable costs, expenses and attorneys fees incurred in such action or proceeding. Treble damages also shall be awarded for such wilful failure to comply with this chapter. (Ord. 620, § 1; 1976 Code § 6-5.18).

6.25.190 Discretion to enforce.

No section of this chapter shall impose a mandatory duty on the city, or on any officer, official, employee or agent of the city, but rather shall be deemed to invest in the city and any of its appropriate officers, officials, employees or agents the discretion whether to enforce a section of this chapter. (Ord. 620, § 1; 1976 Code § 6-5.19).

6.25.200 Attorneys’ fees.

The city may elect at the initiation of any particular action, administrative proceeding or special proceeding to seek attorneys’ fees. If the city so elects, then the prevailing party in such action, administrative proceeding or special proceeding shall be entitled to seek recovery of its own reasonable attorneys’ fees. Any award of attorneys’ fees shall not exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding. (Ord. 640, § 4; 1976 Code § 6-5.20).