CHAPTER 6
ABATEMENT OF NUISANCE
Article 1 NUISANCES GENERALLY
1.6.102 Nuisance Definition.
Any violation of any of the provisions of this Code, or any ordinance of the City, or any rule, regulation or order promulgated or issued pursuant to City ordinance, or the provisions of any code adopted by reference by City ordinance, or any violation of any condition of an approval, permit or license granted pursuant to City ordinance, shall constitute and is declared to be a nuisance. This includes, but is not limited to any encroachment upon or obstruction in or to, any public sidewalk, street, alley, lane, court, park, trail or easement, or other public place. Such nuisance may be abated pursuant to the procedure set forth in this section through Section 1.6.152.
1.6.104 Authority for Noticed Nuisance Abatement Procedure.
Sections 1.6.104 through Section 1.6.132 of this chapter are adopted pursuant to the provisions of Section 38773.5 of the Government Code.
1.6.106 Right of Entry.
When it is necessary to make an inspection to enforce the provisions of this Code, or of any City ordinance, or when the City Manager or the City Manager’s authorized representative has reasonable cause to believe that there exists a parcel of land or structure upon a premises a condition which makes a parcel of land or structure a nuisance as defined in this Code or any City ordinance, the City Manager may enter the building or premises at reasonable times to inspect or to perform the duties imposed by this chapter, provided that if such building or premises be occupied that credentials be presented to the occupant and entry requested. If such building or premises be unoccupied, the City Manager shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry.
1.6.108 Declaration of Nuisance.
When the City Manager has inspected or caused to be inspected any condition on any parcel of land or structure and has found and determined that such condition on such parcel of land or structure is a nuisance, the City Manager shall commence proceedings to cause the abatement of such nuisance and to make the costs of such abatement a special assessment against the parcel upon which such nuisance exists.
1.6.110 Notice and Order.
a. The City Manager shall issue a notice and order directed to the record owner of the parcel of land. The notice and order shall contain:
1) The street address and a legal description sufficient for identification of the parcel of land and structures thereon;
2) A statement that the City Manager has found the premises or structures to be a nuisance with a brief and concise description of the conditions found to render the building dangerous under the provisions of this Code or City ordinance;
3) A statement of the action required to be taken as determined by the City Manager;
4) Statements advising that if the abatement work is not commenced within the time specified, the City Manager may proceed to cause the work to be done and charge the costs thereof against the property or its owner;
5) Statements advising (1) that any person having any record title or legal interest in the parcel of land may appeal from the notice and order or any action of the City Manager to the City Council, provided the appeal is made in writing and filed with the Office of the City Manager within 30 days from the date of service of such notice and order (or within 10 days from such date if the City Manager has determined that the condition is such as to make it immediately dangerous to the to the life, limb, property or safety to the public or adjacent property); and (2) that failure to appeal will constitute a waiver of all right to an administrative hearing and determination of the matter.
b. Service of Notice and Order. The notice and order, and any amended or supplemental notice and order, shall be served upon the record owner and posted on the property; and one copy thereof shall be served on each of the following if known to the City Manager or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance of record; the owner or holder of any lease of record; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located. The failure of the City Manager to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served to relieve any such person from any duty or obligation imposed by the provisions of this section.
c. Method of Service. Service of the notice and order shall be made upon all persons entitled thereto either personally or by mailing a copy of such notice and order by certified mail, postage prepaid, return receipt required, to each such person at their address as it appears on the last equalized assessment roll of the county or as known to the City Manager. If no address of any such person so appears or is known to the City Manager, then a copy of the notice and order shall be so mailed, addressed to such person at the address of the parcel of land involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings. Service by certified mail in the manner herein provided shall be effective on the date of the mailing.
d. Proof of Service. Proof of service of the notice and order shall be certified to at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the time, date and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail shall be affixed to the copy of the notice and order retained by the City Manager.
1.6.112 Notices; Publication.
In addition to posting and serving the notice and order required by Section 1.6.110, the City Manager shall direct the City Clerk to publish such notice once in a newspaper of general circulation in the City or, if none, in the County.
1.6.114 Recordation of Notice of Code Violation.
If compliance is not had with the notice and order within the time specified therein, and no appeal has been properly and timely filed, the City Manager shall file in the Office of the County Recorder a certificate describing the property and certifying a notice of violation in accordance with Section 1.5.022.
1.6.116 Appeal to the City Council.
The City Council shall hear and decide appeals of decisions or determinations made by the City Manager relative to the application and interpretation of Section 1.6.102 through Section 1.6.132.
1.6.118 Appeal of Notice and Order.
a. Any person entitled to service under Section 1.6.104 through Section 1.6.132 may appeal from any notice and order or any action of the City Manager under this Code or City ordinance by filing with the office of the City Clerk a written appeal containing:
1) A street address and a description sufficient for identification of the property and the affected structures thereon.
2) The names of all appellants participating in the appeal.
3) A brief statement setting forth the legal interest of each of the appellants in the structure or the property involved in the notice and order.
4) A brief statement in ordinary and concise language of the specific order of action protested together with any material facts claimed to support the contentions of the appellant.
5) A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed the protested order or action should be reversed, modified or otherwise set aside.
6) The signatures of all parties named as appellants and their official mailing addresses.
7) The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.
b. The appeal shall be filed within 30 days from the date of service of such notice and order or action of the City Manager, provided, however that if the parcel of land or structure is in such condition as to make it immediately dangerous to the life, limb, property or safety of the public or adjacent property, such appeal shall be filed within 10 days from the date of the service of the notice and order of the City Manager.
c. As soon as practicable after receiving the written appeal, the City Clerk shall fix a date, time and place for the hearing of the appeal by the Council. Such date shall not be less than five days nor more than 30 days from the date the appeal was filed with the City Manager. Written notice of the time and place of the hearing shall be given at least five days prior to the date of the hearing to each appellant by the City Clerk either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid addressed to the appellant at the address shown on the appeal.
d. Failure of any person to file an appeal in accordance with the provisions of this Code or City ordinance shall constitute a waiver of the right to an administrative hearing and adjudication of the notice and order or any portion thereof.
e. Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.
1.6.120 Staying of Order Under Appeal.
a. Enforcement of any notice and order of the City Manager issued under this Code or City ordinance shall be stayed during the pendency of an appeal there from which is properly and timely filed.
b. Procedures for the conduct of the appeals hearing shall comply with the provisions of the most current version of the Uniform Code for the Abatement of Dangerous Buildings, Chapter 9.
1.6.122 Council.
If the Council has upheld the City Manager’s determination of nuisance, and proposed abatement, the Council shall order the City Manager to abate the nuisance.
1.6.124 Abatement Work.
The abatement work may be performed by the City’s own employees or by independent contractor, or any combination thereof. The City Manager and his/her authorized representatives and contractors may enter upon private property as may be necessary or appropriate in order to abate the nuisance declared to exist upon such property. Prior to commencement of abatement work by or on behalf of the City, the property owner may abate the nuisance at his/her own expense.
1.6.126 Notice and Hearing; Report of Costs.
The City Manager shall keep an accurate account of the abatement costs incurred by the City, including attorneys’ fees. Such account shall indicate, where appropriate, the costs attributable to each separate parcel of land upon which the abatement work is performed. Following completion of all abatement work, the City Manager shall prepare a final itemized written report showing the total abatement costs and he/she shall submit such report for confirmation by the City Council at its next available regular meeting after the notice period set forth herein. At least 10 days prior to the date of such meeting, a copy of the report together with a written notice of the date on which the same shall be considered by the City Council shall be mailed to the persons to whom notice was mailed pursuant to Section 1.6.110(a) and a copy thereof shall also be posted upon the property involved and at City Hall.
1.6.128 Protests and Objections.
At the time fixed for considering the report of costs provided for in Section 1.6.126, the City Council shall hear any objections of the owners of the property to be assessed for the abatement costs. Any person filing any protest or objection who is affected by the proposed charge may file a written report of the objections with the City Clerk at any time prior to the time set for the hearing on the report of costs. Each such objection must contain a description of the property in which the signer thereof is interested and the grounds of the objection. The City Council may modify the report of costs if deemed necessary. The City Council may then, by resolution, confirm the report as submitted or modified.
1.6.130 Payment of Abatement Costs.
The City Manager may receive payment in full of the abatement costs charged against a parcel of land at any time after confirmation of the report by the City Council pursuant to Section 1.6.126 and prior to the filing of such report with the County Tax Collector pursuant to Section 1.6.132.
1.6.132 Filing Report with County Tax Collector; Collection of Assessment.
After the City Council has confirmed the report of costs to abate the nuisance declared to exist upon a parcel of land, and if such costs have not been paid in full, the City Clerk shall transmit a copy of the report together with a copy of the resolutions confirming the same to the County Tax Collector, who shall add the amount of abatement costs, or unpaid portion thereof, to the next regular tax bill as a special assessment, for the municipal purposes against such parcel. The amount of the assessment shall be collected at the time and in the manner as ordinary municipal taxes. If such assessment is delinquent, the amount shall be subject to the same interest and penalties and procedure of foreclosure and sale provided for ordinary municipal taxes.
1.6.134 Authority for Emergency Nuisance Abatement Procedure.
Section 1.6.134 through Section 1.6.152 of this chapter are adopted pursuant to the provisions of Article 6 (commencing with Section 38771) in Chapter 10, Division 3 of Title 4 of the Government Code.
1.6.136 Alternate Procedure.
Section 1.6.134 through Section 1.6.152 of this chapter constitute an alternate procedure to Section 1.6.104 through Section 1.6.132 of this chapter for abatement of a nuisance and for assessment of the abatement costs against the property on which such nuisance is maintained or from which such nuisance extends.
1.6.138 Abatement by City Manager.
If, in the opinion of the City Manager, any nuisance, as defined in Section 1.6.102 constitutes an immediate hazard to the public health, safety or welfare or materially interferes with public travel or passage, the City Manager may abate such nuisance. The abatement work may be performed by the City’s own employees or by independent contractors, or any combination thereof. The City Manager and his/her authorized representatives and contractors may enter upon private property as may be necessary or appropriate in order to perform the abatement work.
1.6.140 Report of Costs.
The City Manager shall keep an accurate account of the abatement costs incurred by the City, including attorneys’ fees. Such account shall indicate, where appropriate, the costs attributable to each separate parcel of land upon which the abatement work is performed. Following completion of all abatement work, the City Manager shall prepare a final itemized written report showing the total abatement costs and he/she shall submit such report to the City Clerk. The City Clerk shall thereupon schedule the matter for hearing by the City Council at its next available regular meeting after the notice period set forth in Section 1.6.142 and Section 1.6.146.
1.6.142 Notices; Posting.
a. At the time he/she submits the report of costs to the City Clerk, the City Manager shall also cause notices to be conspicuously posted on the property on which the abated nuisance existed or from which the abated nuisance extended.
b. Such notices shall be posted at least 15 days prior to the time for hearing by the City Council of objections to the proposed assessment.
1.6.144 Notices; Form.
The notice required by Section 1.6.142 of this chapter shall be substantially in the following form:
NOTICE IS HEREBY GIVEN that the City of Oakley has caused to be removed from a public place, certain ___________ which constituted a public nuisance. An itemized written report showing the costs of such removal is on file in the office of the City Clerk. Reference is hereby made to such report for further particulars. It is the intention of the City Council of the City of Oakley to make the costs of such removal a special assessment against the property on which said nuisance was maintained or from which said nuisance extended, said assessment to be collected at the same time and in the same manner as ordinary municipal taxes. The property to be assessed is described as follows:
Any property owner objecting to the proposed special assessment is hereby notified to attend a meeting of the City Council of the City of Oakley to be held on ___________, 2___, commencing at _____ p.m., at _____________________________, when their objections will be heard and given due consideration.
Dated this ____________________________ day of 2_____
____________________________
City Manager
City of Oakley
1.6.146 Notices; Publication and Mailing.
a. In addition to posting the notice required by Section 1.6.142 of this chapter, the City Clerk shall publish such notice once in a newspaper of general circulation in the City, or, if none, in the County, and mail such notice to each owner of the property described in the notice, as shown by the latest assessment roll available to the City on the date of mailing.
b. The notice shall be published and mailed by the City Clerk at least 15 days prior to the time for hearing by the City Council of the objections to the proposed assessment.
c. The notice published and mailed by the City Clerk shall be substantially in the form set forth in Section 1.6.144 of this chapter, except that such notice shall be signed by the City Clerk.
1.6.148 Hearing.
At the time stated in the notice set forth in Section 1.6.144 of this chapter the City Council shall receive and consider the report of costs provided for in Section 1.6.140 of this chapter and shall hear any objections of the owners of the property to be assessed for the abatement costs. The City Council may modify the report if deemed necessary. The hearing may be continued from time to time.
1.6.150 Action by City Council.
At the conclusion of the hearing provided for in Section 1.6.148, the City Council shall allow or overrule any objections to the proposed assessment. If no objections have been made at the hearing or the City Council has overruled those made, the City Council shall, by resolution, confirm the report of costs as submitted or modified
1.6.152 Payment of Abatement Costs.
The City Manager may receive payment in full of the abatement costs charged against a parcel of land at any time after confirmation of the report by the City Council pursuant to Section 1.6.150 and prior to the filing of such report with the County Tax Collector pursuant to Section 1.6.132.
Article 2 (VACANT)
(Repealed by Ordinance No. 10-19, on August 13, 2019)
Article 3 RECOVERY OF ATTORNEYS’ FEES IN NUISANCE ABATEMENT ACTIONS
1.6.302 Recovery of Attorney Fees for Nuisance Abatement Actions or Proceedings.
In any action, administrative proceeding, or special proceeding initiated by the City to abate a nuisance, the prevailing party may recover attorneys’ fees. Recovery of attorneys’ fees by the prevailing party is limited to those individual actions or proceedings in which the City elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees. The award of attorneys’ fees to the prevailing party shall in no circumstances exceed the amount of reasonable attorneys’ fees incurred by the City in the action or proceeding.
1.6.304 Recovery of Treble Damages Upon Second or Subsequent Judgment Finding Property Owner Responsible for Nuisance Conditions.
Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that a property owner is responsible for a condition which may be abated as a nuisance, the court may order the property owner to pay treble (three times) the cost of abatement. This section shall not apply to conditions abated pursuant to section 17980 of the California Health and Safety Code.