Chapter 10.50
PUBLIC NUISANCE ABATEMENT
Sections:
10.50.005 Findings and Purpose.
10.50.030 Owner Responsibility.
10.50.040 Notice to Correct Violations.
10.50.060 Content and Conduct of Hearing.
10.50.080 Appeal and Call for Review.
10.50.110 Hearing on Assessment.
10.50.120 Resolution of Special Assessment.
10.50.130 Cost Report—Filing with County Auditor.
10.50.140 Manner of Collection.
10.50.150 Noncompliance with the Notice to Correct—Citation.
10.50.160 Alternative Actions.
10.50.005 Findings and Purpose.
A. The City of Newport Beach, pursuant to its Charter and the constitutional and statutory laws of the State of California, is authorized to abate public nuisances and assess the cost of abatement against the parcel on which the nuisance exists. The City of Newport Beach is further authorized to impose criminal sanctions for maintenance of a public nuisance. The City Council finds that a public nuisance:
1. Reduces the value of real property and improvements in the vicinity of the nuisance;
2. Unreasonably interferes with the personal and property rights of those who live and work in the vicinity of the nuisance;
3. Adversely impacts the appearance of the property on which it occurs as well as contributing to the appearance of blight and a deteriorated environment in the vicinity; and
4. Creates conditions that pose a threat to public health, safety and welfare by, among other things, harboring rodents and insects and increasing the potential for fire. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.010 Definitions.
“Abate” means to repair, replace, remove, destroy, or otherwise remedy the condition in question by such means and in such manner and to such an extent as the Enforcement Officer in his or her judgment shall determine is necessary in the interest of the general health, safety and welfare of the community.
“Appeals Board” means the City Council of the City of Newport Beach.
“Enforcement Officer” means a Newport Beach Code Enforcement Officer or Newport Beach Municipal Compliance Officer or such other City positions as may be designated in writing by the City Manager.
“Owner” means the owner of the property that is the subject of the nuisance as shown on the last equalized assessment roll and any person who occupies the property pursuant to a written or oral agreement conferring the right to occupy.
“Property” means any building, lot, parcel, real estate, or land or portion of land, whether improved or unimproved, including adjacent sidewalks, parkways and parking strips.
“Watercraft” means a type of recreational vehicle designed to be used for water-related activities, including, but not limited to, sailboats, powerboats, canoes, kayaks and other personal watercraft.
“Whitegoods” means major household appliances, such as washers, stoves, refrigerators and freezers, that are typically, but not necessarily, finished in white enamel. (Ord. 2023-22 § 464, 2023; Ord. 2009-27 § 2 (part), 2009: Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.020 Nuisance.
It is unlawful and a public nuisance for any person owning, leasing, occupying or having charge or possession of any property in the City to maintain, permit, cause or allow to exist on such premises any of the following conditions:
A. A fire hazard including, but not limited to, any cut or uncut shrub, tree, grass, weeds, vines or other vegetation; combustible refuse or waste; or other flammable material which by reason of its size, manner of growth or location constitutes a fire hazard to any structure, improvement or landscaping;
B. Any swimming pool, spa, pond, fountain or other body of water that is allowed to become stagnant, unsanitary or unsafe;
C. The accumulation or storage of automobile parts, rubbish, trash, debris, rubble, broken-up asphalt, lumber, concrete, plaster, tile, rocks, bricks, building materials, crates, cartons, containers, boxes, scrap metal, trimmings from plants and trees, cans, bottles and barrels;
D. Vegetation, including, but not limited to, trees, shrubbery, grass and plants, which is overgrown, dead, decayed or diseased such that it may:
1. Impede or present a danger to pedestrian or vehicular traffic;
2. Interfere with visibility on, or free use of, or access to, any portion of any public sidewalk, street, alley or right-of-way; or
3. Harbor rats, vermin, insects and other situations likely to cause a hazard to the public safety;
E. Unsafe, unsightly, or poorly maintained property including but not limited to:
1. Storage or accumulation of household items, except furniture designed for outdoor use, barbecues and plants, on patios, roofs, balconies, and in yards in such a manner as to be visible from a public street, alley, sidewalk or other public right-of-way;
2. Private driveways or walkways maintained in an unsafe condition which create a hazard to pedestrians;
3. Outside storage of any whitegoods, whether operable or not, in any area accessible to children who are not under the care and supervision of the owner or person in charge of the property;
4. Broken windows, or doors;
5. The failure to secure and maintain from public access all doorways, or other openings into vacant or abandoned buildings or structures;
6. Buildings or structures which are partially destroyed, partially repaired, abandoned or which remain in the state of partial construction or disrepair for more than three months, unless the construction and repairs are being accomplished pursuant to an active, open building permit;
7. Buildings, walls, fences or structures upon which the condition of the paint or exterior finish has become so deteriorated as to permit decay, excessive cracking, peeling, chalking, dry rot, warping or termite infestation;
8. Any front yard or landscaped setback area which, due to the lack of turf, other planted material, decorative rock, bark or planted groundcover or covering causes excessive dust or allows the accumulation of debris;
9. Landscaping, grounds, walls, fences, driveways, parking lots, irrigation systems, or sidewalks which are maintained in such a condition so as to become defective, unsightly or unsafe. Lawn areas shall be exempt from the defective and unsightly provision when the City Council has declared a Level Three water supply shortage (Section 14.16.080) and all lawn, landscape, and other vegetated areas shall be exempt from the defective and unsightly provision when the City Council has declared a Level Four water supply shortage (Section 14.16.090). All landscaped areas must continue to be kept in a safe and orderly manner consistent with the other requirements to minimize the potential for excess dust, fire hazards, and hazards created by dead or dying trees and shrubs;
10. Deteriorated parking lots, including those containing potholes, cracks, ponds or ridges;
11. Accumulations of grease, oil or other hazardous material on paved or unpaved surfaces, driveways, buildings, walls, or fences, or from which any such material flows or seeps onto any public street, sidewalk, alleyway, or other public or private right-of-way; and
12. The use of materials other than glass (or other rigid transparent or semitransparent material designed for permanent installation in a structure) as a replacement or covering of window panes;
F. The existence of any unlawful encroachment including signs, play equipment, trash or vegetation, which obstructs or interferes with the free passage or use by the public of any public sidewalk, street, alley, beach, or other public right-of-way, or which may impede emergency access;
G. The use of any machinery or equipment which because of noise, odor, vibration, fumes or discharge constitutes a health or safety hazard;
H. A violation of any of the terms or conditions of a use permit granted by the City of Newport Beach;
I. A violation of any provision of this Code;
J. The parking or storage of any vehicle in the required front yard setback on private property other than in a garage, carport or paved driveway leading to the garage or carport;
K. Repetitive, boisterous or unruly conduct by the owner or occupants of the property that occurs on the property when that conduct: (1) is offensive to a person of ordinary sensibility; (2) continues after a written or oral request to terminate the conduct; (3) is offensive to a considerable number of people; and (4) in the opinion of the Enforcement Officer results in any of the impacts described in Section 10.50.005.
L. The parking or storage of any watercraft in excess of thirty-five (35) feet on any property in any residential district as established by Title 20. Length shall be the distance from the forward most point of the watercraft to the rear most point of the watercraft, including any attachments thereupon. (Ord. 2023-22 § 465, 2023; Ord. 2015-25 § 1, 2015; Ord. 2009-27 § 2 (part), 2009: Ord. 2005-22 § 1, 2006: Ord. 2005-17 § 9, 2005; Ord. 2004-7 § 1 (part), 2004: Ord. 95-46 § 1, 1995; Ord. 94-50 § 1 (part), 1994)
10.50.030 Owner Responsibility.
The owner of any property within the City has the primary responsibility for keeping such property free of public nuisances. Tenants and occupants of the property are also responsible for compliance with the provisions of this chapter including, without limitation, the obligation not to maintain, permit, cause or create a public nuisance as specified in Section 10.50.020. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.040 Notice to Correct Violations.
A. Whenever an Enforcement Officer determines that any property within the City is being maintained in violation of one or more provisions of Section 10.50.020, he/she shall give written notice to the owner of the property stating a description of the property and the provisions of this chapter being violated. The notice shall specify a reasonable time, not less than seven days nor more than thirty (30) days, for correcting the violation and may also describe acceptable methods or means of correction.
B. A notice shall be posted conspicuously on the property where the nuisance is present. Notice shall also be personally served or mailed to the owner of the property, by registered or certified mail, return receipt requested. Any mortgagee or beneficiary under a deed of trust of record shall be served by mail. A copy of the notice shall be maintained by the Enforcement Officer, together with an affidavit stating the date on which the notice was posted, served, and mailed and any receipt card which may be returned to him/her in acknowledgement of notice by registered mail. The failure of any owner or other person to receive such notice shall not affect in any manner the validity of any proceedings under this chapter. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.050 Notice of Hearing.
A. In the event the owner fails, neglects or refuses to comply with the notice to correct violation served pursuant to Section 10.50.040, a public hearing before the City Manager shall be held to take evidence to determine whether a public nuisance does exist. At least ten (10) days before the hearing, notice of the hearing shall be posted and served in the same manner as specified in Section 10.50.040. The Enforcement Officer shall file an affidavit of posting and mailing with the City Manager.
B. The notice shall indicate the nature of the alleged nuisance, a description of the property involved, the designation of the time and place of the hearing to determine whether the same constitutes a nuisance, and the manner of its proposed abatement if the condition is found to be a nuisance.
C. The failure of any person to receive the notice shall not affect the validity of any proceedings under this chapter. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.060 Content and Conduct of Hearing.
A. All hearings under this chapter shall be held before the City Manager who shall hear and consider all evidence offered as to whether or not a nuisance, in fact, exists.
B. The owner may appear in person at the hearing or submit a written statement by five p.m. the day before the date set for the hearing. The hearing will be open to the public.
C. If the City Manager determines that no nuisance exists, the Enforcement Officer shall not take any action with respect to the property.
D. If the City Manager determines a nuisance exists, he/she shall adopt written findings declaring the property a public nuisance and order the nuisance removed and abated by the owner within a reasonable period of time. The order shall inform the owner of the City’s proposed method of abatement should the owner fail to comply.
E. The City Manager shall ask the City Attorney to seek a court order from a court of competent jurisdiction to abate the nuisance if it is not timely abated by the owner. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.070 Order of Abatement.
A copy of the findings and order of the City Manager shall be posted on the property and served upon the owner by certified mail or personal service within five working days and shall contain a detailed list of needed corrections and abatement methods. Any owner shall have the right to have such property rehabilitated or to have such buildings or structures demolished or repaired in accordance with said findings and order at his own expense provided the corrections are completed prior to the expiration of a reasonable abatement period. The abatement period shall commence upon the date the findings and order are served upon the owner. The proceedings shall terminate at such time as the nuisance is abated in full. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.080 Appeal and Call for Review.
A. The decision of the City Manager may be appealed to the Appeals Board by the owner or any person owning property within three hundred (300) feet of the property that was the subject of the hearing or may be called for review by a member of the City Council. The appeal or call for review must be filed with the City Clerk no more than ten (10) days after the date of the posting and service of the order and the appeal must be accompanied by the fee established by resolution. A call for review by a member of the City Council is exempt from the payment of a fee. The order of abatement shall be suspended pending action of the Appeals Board if an appeal or call for review is filed.
B. The notice of appeal shall specify:
1. A description of the property;
2. The proceedings that are the subject of the appeal;
3. The standing of the appellant;
4. A statement of disputed and undisputed facts;
5. A statement specifying the portion of the abatement proceedings being appealed together with any evidentiary or supporting materials that would support the appeal; and
6. A verification of the truth of all matters asserted in the appeal.
C. A call for review initiated by a member of the City Council, in their official capacity, shall be for the purpose of bringing the matter in front of the entire body for review.
D. Assuming the timely filing of a notice of a proper appeal or call for review, the City Clerk shall place the appeal or call for review on the agenda of a regular meeting of the City Council scheduled to be held within thirty (30) days after the appeal or call for review is filed. The City Clerk shall provide written notice of the appeal or call for review, including the time, place and date of the hearing on the appeal or call for review, to the appellant, if any, and any other person to whom notice of the City Manager’s order was sent. The notice shall be sent in the same manner as notice of hearing. The Appeals Board may limit the issues on appeal to those raised in the notice of appeal. A call for review is de novo. The Appeals Board shall declare its findings by resolution and in the event a nuisance is declared, uphold or modify the order of the Hearing Officer and order the owner to abate the nuisance. A copy of the resolution shall be posted on the property and sent to all persons to whom, and in the same manner, notice of the City Manager’s order was sent and to all persons who have, in writing, requested notice at or before the hearing on the appeal or call for review. (Ord. 2015-9 § 14, 2015: Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.090 Owner to Abate.
Any public nuisance shall be abated by the owner within thirty (30) days after the date of posting and mailing a copy of the resolution of the Appeals Board. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.100 Abatement by City.
If the owner fails or neglects to remove or otherwise take action to abate the public nuisance, as provided in this chapter, the Enforcement Officer, through City employees or an independent contractor shall cause such public nuisance to be abated as directed in the City Manager’s order or by order of Appeals Board. A report of the proceeding and itemized account of the cost of abating the public nuisance on each separate property shall be filed with the City Clerk. The City Attorney shall ensure that each abatement action is conducted in accordance with then current statutory and decisional law. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.110 Hearing on Assessment.
In the event of abatement by the City, the City Clerk shall submit the report and account for hearing by the City Council at a regular meeting held no more than thirty (30) days after the date of filing. The City Clerk shall post a copy of the report and account and notice of the time and place of hearing in a conspicuous place in or near the entrance of the Newport Beach City Hall. The owner of the property on which the nuisance was abated shall be sent a notice advising of the date, time and place of the hearing. The notice shall be served as provided in Section 10.50.040. (Ord. 2023-22 § 466, 2023; Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.120 Resolution of Special Assessment.
A. The City Council shall consider the report and account at the time set for hearing, together with any objections or protests by any interested party. At the conclusion of the hearing the City Council shall either approve the report and account as submitted, or as modified or corrected.
B. If the property owner does not pay the cost of abating the nuisance within thirty (30) calendar days after the City Council approved the cost report and account, the amounts approved shall be special assessments upon the property.
C. A Notice of Special Assessment in substantially the following form shall be recorded in the Official Orange County Records.
NOTICE OF SPECIAL ASSESSMENT LIEN OF CITY OF NEWPORT BEACH
Under the authority of Government Code § 38773.1, the City of Newport Beach ordered the abatement of a nuisance on the ________ day of ________, 199________. The Enforcement Officer of the City of Newport Beach, on the ________ day of ________, 199________, abated the nuisance upon the real property hereinafter described. The City of Newport Beach has assessed the cost of such abatement upon the real property hereinafter described. The same has not been paid. The City of Newport Beach claims a lien on the real property for the cost of doing the work in the amount of $ ________; which shall be a special assessment against the real property until paid, with interest at the rate of ________ percent a year from ________, and discharged of record.
The real property hereinabove mentioned, and upon which the special assessment is claimed, is that certain parcel of land located in the City of Newport Beach, County of Orange, State of California, and more particularly described as follows:
Assessor Parcel Number(s):
Dated this ________ day of ________.
________ _______________________
City Clerk Mayor, City of Newport Beach
(Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.130 Cost Report—Filing with County Auditor.
After confirmation of the report, the City Clerk shall file a certified copy with the Orange County Auditor/Controller and the auditor shall be requested to enter the amounts of the respective assessments on the County tax roll opposite each parcel of property. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.140 Manner of Collection.
The amount of the assessment shall be collected at the time and in the manner of secured property taxes collected by the County and distributed to the City. If delinquent, the amount of such assessment shall be subject to the same penalties and procedure for foreclosure and sale as in the case of secured property taxes. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.150 Noncompliance with the Notice to Correct—Citation.
A. If the owner has not complied with the notice to correct in the time specified, the owner may be cited for an infraction for failure to correct the violation pursuant to the notice. Upon conviction, the owner shall be punished by a fine not exceeding one hundred dollars ($100.00). For a second conviction within a period of one year, a fine not exceeding two hundred dollars ($200.00) shall be imposed; and for a third or any subsequent conviction within a period of one year, a fine not exceeding five hundred dollars ($500.00) shall be imposed.
B. Each person described in subsection A of this section shall be deemed guilty of a separate offense for each day during any portion of which any violation of the provisions of Section 10.50.020 is committed, continued or permitted by such person and shall be punishable as provided in subsection A of this section. (Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994)
10.50.160 Alternative Actions.
A. This chapter is not the exclusive regulation of property maintenance. It shall be supplemental in addition to other regulatory codes, statutes and ordinances heretofore or hereafter enacted by the City, State, or any other legal agency having jurisdiction.
B. The prevailing party in any judicial action or administrative proceeding to abate a nuisance shall recover the attorneys’ fees and costs incurred as follows:
1. The recovery of attorneys’ fees shall be limited to those individual judicial actions or administrative proceedings in which the City elects, at the initiation of the individual judicial action or administrative proceeding, to seek recovery of its own attorneys’ fees; and
2. In no judicial action or administrative proceeding shall an award of attorneys’ fees to a prevailing party exceed the reasonable attorneys’ fees incurred by the City in the judicial action or administrative proceedings; and
3. Attorneys’ fees and costs may include, but not be limited to, costs and expenses related to the use of expert witnesses incurred in the evaluation and/or prosecution of any nuisance abatement proceedings pursuant to the provisions of this chapter. (Ord. 2023-22 § 467, 2023; Ord. 2004-7 § 1 (part), 2004: Ord. 94-50 § 1 (part), 1994) (Ord. No. 2009-9, § 1, 3-24-2009)