Chapter 1.52
ADMINISTRATIVE AND SUMMARY ABATEMENT
Sections:
1.52.010 Declaration of purpose.
1.52.026 Finding of a public nuisance.
1.52.040 Compliance time frames.
1.52.042 Abatement of a public nuisance by the city.
1.52.060 Abatement of substandard housing conditions.
1.52.070 Recovering costs of abatement.
1.52.010 Declaration of purpose.
The council finds that its purpose in adopting this chapter is to establish a procedure for the administrative and summary abatement of public nuisances. The procedures established in this chapter are in addition to any other legal remedy, criminal or civil, established by law which may be pursued to address municipal code or applicable state code violations. This chapter governs all other nuisance abatement procedures established in other chapters of this code unless other procedures are specifically stated to apply. (Ord. 586 § 6 (part), 1998).
1.52.015 Definitions.
“Hearing officer” means an adequately trained and impartial person appointed by the city manager.
“Responsible party” includes persons or entities that are the owner(s), mortgagee(s), beneficiary, and tenant of the real property that is subject to the abatement procedure. (Ord. 750 (part), 2014).
1.52.020 Authority.
Any condition caused, maintained or permitted to exist in violation of any provisions of this code or applicable state codes which constitutes a public nuisance may be abated by the city pursuant to the procedures set forth in this chapter. (Ord. 586 § 6 (part), 1998).
1.52.025 Abatement methods.
The city may choose to abate any public nuisance or violation of this code through any of the abatement methods permitted by this code, state law, or federal law, and nothing in this code shall be construed to limit or adversely affect the city’s ability to concurrently or consecutively use any of those proceedings as the city may deem are efficient, effective, practicable, or applicable. (Ord. 750 (part), 2014).
1.52.026 Finding of a public nuisance.
The city may initiate abatement proceedings when it finds a public nuisance exists pursuant to Section 1.32.020 or Civil Code Section 3479. If it is not clear that a public nuisance exists, the city may request permission from responsible party to enter the property to inspect the premises. If permission to enter is denied, the city may obtain an inspection warrant to enter the premises pursuant to Code of Civil Procedure Sections 1822.50 through 1822.57. (Ord. 750 (part), 2014).
1.52.030 General procedures.
A. Abatement Notice.
1. Whenever the enforcement official determines that public or private property or any portion of public or private property is a public nuisance as generally defined in Section 1.32.020 of this title or as declared in a specific section of this code or applicable sections of the state code, an abatement notice may be issued to the responsible person to abate the public nuisance.
2. The abatement notice shall contain a description of the property in general terms reasonably sufficient to identify the location of the property, and shall refer to the section of this code or applicable state code violations which render the property a public nuisance. The abatement notice shall describe the action required to abate the public nuisance which may include corrections, repairs, demolition, removal, obtaining the necessary permits, vacation of tenants, or other appropriate action and shall establish time frames by which each action must occur. In addition, the abatement notice shall explain the consequences should the responsible person fail to comply with the terms of the notice and identify all applicable hearing and appeal rights.
B. Service of Abatement Notice. The abatement notice shall be served pursuant to Section 1.32.090 to the property owner and any mortgagee or beneficiary with an interest in the property. Additionally, the notice shall be posted on the premises of the real property that is subject to the abatement proceedings. The person giving notice shall file an affidavit with the code enforcement division stating how notice was given. Any receipt card received regarding notice shall be filed with the city.
C. Compliance Time Frame. The enforcement official shall follow the compliance time frames and specified procedures as specified in Section 1.52.040. (Ord. 750 (part), 2014; Ord. 586 § 6 (part), 1998).
1.52.040 Compliance time frames.
A. When a nuisance is determined to be present pursuant to Health and Safety Code Section 17910 et seq. (the “State Housing Law”), the responsible party shall be afforded the opportunity to abate such nuisance during the notice period required under Health and Safety Code Section 17980(a). Compliance with all other determinations of nuisance are governed by Time Frame One and Time Frame Two.
B. Time Frame One. The code enforcement official may issue a notice requiring the responsible party to abate the public nuisance within ten calendar days from the date of service of the abatement notice in any one of the following instances:
1. The condition causing the public nuisance is a vacant structure as described in Chapter 1.68;
2. The condition causing the public nuisance is a dangerous sign as described in Chapter 15.32;
3. The condition causing the public nuisance has been deemed by the enforcement official and city manager to be so serious or harmful that immediate abatement is required.
C. Time Frame Two. Time Frame Two shall apply to all other public nuisances not listed under Time Frame One. Time Frame Two shall require the responsible party to abate the public nuisance within a minimum of fourteen calendar days from the date of the abatement notice. The enforcement official may establish a longer time frame as is reasonable or necessary to complete the abatement.
D. No Action by Responsible Parties. The responsible parties have until the date stated on the notice to abate the nuisance voluntarily or request a hearing to appeal the notice and order. At the end of the period provided in the notice, the city shall make a determination of whether the nuisance has been abated. If a responsible party does not abate the nuisance or appeal the initial notice, the city may abate the nuisance if notice was given under Time Frame One or schedule a hearing if notice was given under Time Frame Two.
E. Appeal of Abatement Notice. The responsible party may appeal the abatement notice pursuant to the provisions of Section 1.36.060. Abatement shall not proceed until the hearing officer issues an order, unless the enforcement official concludes that an imminent threat to the public health and safety exists. If the hearing officer issues an order confirming the existence of a public nuisance, the order shall give the responsible party ten calendar days from the date the order is served to abate the nuisance. After such time, the city may abate the public nuisance pursuant to the procedures set forth in Section 1.52.042. The hearing officer’s decision is the final administrative decision and shall become effective upon the date of the order.
F. Abatement Under Time Frame One. The city may abate the condition causing the public nuisance pursuant to the provisions of Section 1.52.042 in the following circumstances:
1. The responsible party fails to abate the public nuisance as required by the abatement notice and an appeal has not been timely filed; or
2. An administrative enforcement order has been issued confirming the existence of a public nuisance after an appeal by the responsible party.
G. Abatement Under Time Frame Two. In the event the responsible party does not abate the public nuisance as required by the abatement notice, the enforcement official may request the city manager to schedule an administrative hearing pursuant to the procedures set forth in Section 1.36.020 to determine the existence of a public nuisance. If the hearing officer issues an order confirming the existence of a public nuisance, the city may immediately abate the conditions causing the public nuisance pursuant to the procedures set forth in Section 1.52.042. (Ord. 750 (part), 2014: Ord. 586 § 6 (part), 1998).
1.52.041 Appeal procedure.
A. If the responsible party appeals the notice and order to abate, the city shall schedule an administrative hearing on the matter and provide the responsible party with notice of the hearing.
B. The hearing shall be set no sooner than twenty days from the date of the request for the appeal. The city shall serve the responsible party a notice of the hearing containing the time, place and date of the hearing no later than ten days before the hearing.
C. An impartial hearing officer shall be appointed for the administrative hearing.
D. If the responsible party fails to appear for the hearing, the city may proceed with the abatement.
E. If the responsible party appears, the hearing officer shall conduct an administrative hearing. At the administrative hearing, each party shall have the opportunity to present evidence and the city shall have the obligation to establish that a public nuisance exists by a preponderance of the evidence.
F. The hearing shall comply with the following requirements:
1. Record. The entire proceeding shall be recorded by a tape recorder or other appropriate method of permanent recording.
2. Continuances. The hearing officer may grant a continuance if good cause is shown.
3. Conduct of Hearing. Responsible parties have a right to (a) call and examine witnesses regarding relevant issues, (b) cross-examine opposing witnesses regarding relevant issues, (c) impeach any witness, (d) rebut any evidence, (e) introduce evidence and (f) be represented by anyone legally permitted to do so.1 The hearing will explore: (a) the condition of the property, (b) the estimated cost of abatement and (c) other pertinent information.2
G. After the hearing, the hearing officer shall issue a written administrative enforcement order that shall be served upon the responsible parties. The hearing officer shall mail his or her recommendation to the responsible parties by certified mail and file the decision with the city. The decision shall contain the following:
1. Findings of fact;
2. A determination;
3. The requirements to be complied with;
4. The effective date of the decision.3
H. If the hearing officer finds that the city established that a public nuisance exists, the responsible party must abate the nuisance within ten days of being served.
I. If the responsible parties fail to comply with the order within ten days, the city may carry out the abatement. (Ord. 750 (part), 2014).
1.52.042 Abatement of a public nuisance by the city.
A. Once the enforcement official follows the procedures of this chapter and obtains authorization to abate a public nuisance, the public nuisance may be abated by city personnel or by a private contractor. City personnel or a private contractor can enter upon private property in a reasonable manner to abate the public nuisance as specified in the abatement notice or abatement order.
B. If the responsible party abates the public nuisance before the city performs the actual abatement pursuant to an abatement notice or abatement order, the enforcement official may still assess all costs incurred by the city at that point against the responsible party pursuant to the provisions set forth in Chapter 1.56.
C. When abatement is completed, a report describing the work performed and an itemized account of the total abatement costs incurred by the city shall be prepared by the enforcement official. This report shall contain the names and addresses of all responsible parties and the tax assessor’s parcel number of each parcel. The enforcement official shall request that the city manager schedule a confirmation of costs hearing pursuant to Section 1.56.020, unless waived in writing by all responsible parties. All administrative and actual costs incurred by the city in abating the public nuisance may be assessed and recovered against the responsible parties pursuant to the provisions set forth in Chapter 1.56. (Ord. 750 (part), 2014).
1.52.050 Summary abatement.
A. Authority. Whenever the enforcement official determines that an imminent life safety hazard exists that requires immediate correction or elimination, the enforcement official may exercise the following powers without prior notice to the responsible person:
1. Order the immediate vacation of any tenants and prohibit occupancy until all repairs are completed; or
2. Post the premises as unsafe, substandard or dangerous; or
3. Board, fence or secure the building or site; or
4. Raze and grade that portion of the building or site to prevent further collapse and remove any hazard to the general public; or
5. Make any minimal emergency repairs as necessary to eliminate any imminent life safety hazard; or
6. Take any other action as appropriate under the circumstances.
B. Procedures.
1. Determination of Imminently Dangerous Nuisance. If the city determines that a public nuisance is imminently dangerous to the life, limb, health or safety of the occupants of the property or to the public, the city may proceed with a summary abatement.
2. Notice. If the city decides that a summary abatement is necessary, it shall give the property owner written notice of the nuisance. If the owner cannot be located or does not take prompt action, the city may abate the nuisance to the extent necessary to alleviate the immediate threat.
3. Post Abatement Notice. After the summary abatement is completed, the city shall serve the responsible parties with another notice that states:
a. The actions taken by the city and the reasons for the actions;
b. The right to contest the abatement by appealing within ten days of receiving the notice;
c. A statement of the costs of the abatement and notice of the city’s intent to collect;
d. The time, date and location of the hearing to confirm costs of abatement which shall be set at least forty-five days from the date of the notice to allow for any appeals.
4. Hearing.
a. If the landowner or another party with an interest in the property appeals the abatement, the city shall schedule an administrative hearing on the matter and provide the responsible parties with notice of the hearing.
b. The hearing shall be set no sooner than twenty days from the date of the request for the appeal. The city shall serve the responsible party a notice of the hearing containing the time, place and date of the hearing no later than ten days before the hearing.
c. The hearing officer shall conduct an administrative hearing where each party shall have the opportunity to present evidence and the city shall have the obligation to establish that a summary abatement was necessary by a preponderance of the evidence.
d. Administrative Enforcement Order. After the hearing, the hearing officer shall issue a written administrative enforcement order that shall be served upon the responsible parties.
C. An enforcement official shall pursue only the minimum level of correction or abatement as necessary to eliminate the immediacy of the hazard. Costs incurred by the city during the summary abatement process shall be assessed and recovered against the responsible parties through the procedures outlined in Chapter 1.56. The enforcement official may also pursue any administrative or judicial remedy to abate any remaining public nuisance. (Ord. 750 (part), 2014; Ord. 586 § 6 (part), 1998).
1.52.060 Abatement of substandard housing conditions.
When the abatement involves the abatement of substandard housing conditions, the city shall follow the procedural requirements set forth in the California Code of Regulations Title 25. (Ord. 750 (part), 2014).
1.52.070 Recovering costs of abatement.
After the city abates the nuisance, it may recover its costs from the responsible parties pursuant to Chapter 1.56. (Ord. 750 (part), 2014).
Uniform Housing Code 1301 – 1305 (1997).
25 CCR § 62, 25 CA ADC § 62.
Uniform Housing Code 1301 – 1305 (1997).