Chapter 1.24
NUISANCE – LIEN ABATEMENT PROCEDURE
Sections:
1.24.010 Authority for adoption, application and purpose.
1.24.020 Notice to abate nuisance.
1.24.030 Effect of failure to abate.
1.24.080 Statement of expenses.
1.24.090 Hearing on statement of expenses.
1.24.100 Expenses a special assessment against the property.
1.24.110 Notice of special assessment.
1.24.120 Procedure in case of emergency.
1.24.130 Effect of failure to receive notice.
1.24.140 Cost of abatement a personal obligation.
1.24.150 Treble costs of abatement.
1.24.010 Authority for adoption, application and purpose.
A. The city council declares that it is in the public interest to establish a summary abatement procedure using a lien process to abate a nuisance, and that the abatement of a nuisance shall be at the expense of the person(s) creating, causing, committing or maintaining the nuisance. The expense of abatement of a nuisance shall be a lien against the real property in which it is maintained and a personal obligation against the property owner or other person causing the nuisance. A recoverable expense shall include but not be limited to the following:
1. The loaded hourly rates for personnel time in: (a) preparing for and attending all inspections, (b) preparing all written reports and memos, (c) preparing for and attending all meetings at which the enforcement actions against the person/property being charged with the expense is the subject, (d) preparing for and attending all official enforcement proceedings, including but not limited to proceedings before and administrative hearing officer or the city council, and (e) preparing for and attending civil or criminal proceedings instituted in state or federal court; and
2. The cost of services rendered by third parties such as the preparation of title reports, investigative services, process servers, consulting services (including costs of estimates and appraisals), reproduction services and aerial photography and mapping services.
B. The procedure set forth in this chapter for the abatement of a nuisance and the making of the cost of abatement of a nuisance which exists upon a parcel of land a special assessment against that parcel is adopted under Government Code Section 38773.5. The procedure set forth in this chapter for abatement applies to any nuisance which the city council declares is a nuisance either by another provision of this code or other ordinance which the city council may adopt under Government Code Section 38771.
C. The procedure set forth in this chapter is not exclusive and is in addition to the procedure for abatement which is conferred upon the city by Civil Code Section 3494, Code of Civil Procedure Section 731, Government Code Section 38773 or other lawful authority.
D. If a specific abatement procedure is set forth in another title of this code and it is inconsistent with this chapter, the specific abatement procedure controls.
E. The reasonable attorneys’ fees incurred due to any enforcement proceedings commenced by the city pursuant to this code shall be awarded to the prevailing party. The proceedings shall be considered to have commenced once the initial inspection of the property, which is the subject of the proceeding, has been conducted. If the property against which the enforcement proceeding is pursued is found to be in violation of any part of this code, the city shall be deemed to be the prevailing party. In no action, administrative proceeding, or special proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding. Any award to the city of its attorneys’ fees shall be collectable as a recoverable expense and shall be included in the statement of expense provided for hereunder. [Ord. 04-1221 § 4, 2004; Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.020 Notice to abate nuisance.
A. If an enforcement officer or the city council determines that something constitutes a nuisance, the enforcement officer shall mail a notice to the owner of the real property and the mortgagee or beneficiary under a recorded deed of trust.
B. The notice shall state the conditions which constitute the public nuisance and shall order the abatement of the nuisance within a specific time after the date of the notice. The time allowed for abatement shall be a reasonable time in the judgment of the enforcement officer, based upon the circumstances of the particular nuisance.
C. The enforcement officer shall serve the notice either personally or by first class mail, addressed to each person as the address appears on the last equalized assessment roll or as known to the enforcement officer. If no address appears, then a copy of the notice shall be mailed, addressed to the owner, at the address of the real property found to constitute a nuisance.
If service of the notice is by mail, the enforcement office shall also send a copy by certified mail, postage prepaid, return receipt requested.
Service of the notice is effective on the date of mailing or personal service.
D. In addition to the mailed notice, the city shall post conspicuously at least one copy of the notice upon the real property where the nuisance exists.
E. The enforcement officer shall retain in the file a declaration of the person effecting service, declaring the date, time and manner that service was made and the date and place of posting. [Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.030 Effect of failure to abate.
If the property owner does not comply with the notice prescribed in PMC 1.24.020, the enforcement officer may determine to proceed with the abatement by giving a second notice in the same manner set forth in PMC 1.24.020. The second notice shall direct the person to appear before the council or such other person as specified in the notice at a stated time and place to show cause why the nuisance should not be abated. The notice shall be headed “Notice of Hearing to Abate Nuisance” in letters of not less than one inch in height and shall be substantially in the following form:
NOTICE OF HEARING TO ABATE NUISANCE
____________________, the owner(s) of real property located at ____________________ is notified to appear before _________________ (insert person designated to conduct hearing or city council) of the City of Pittsburg at a meeting to be held on _______________, 20________, at _________ o’clock, at _______________________ (place of meeting), and show cause, if any he has, why the nuisance should not be abated and the cost of abatement of the nuisance upon that parcel of land should not be made a special assessment against that parcel. A notice to you previously sent on _________ is attached for further details regarding the nuisance.
DATED:________
THE CITY OF PITTSBURG
By _______________________
Title_______________________
[Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.040 Hearing officer.
A. If the estimated cost of abatement is $50,000 or less, a hearing officer designated by the city manager may conduct the hearing. If the estimated cost of abatement is $50,001 or more, the hearing shall be held before the city council. However, the city manager or his/her designee may elect to hold a hearing in front of the city council when the abatement cost is less than $50,001.
B. A person may appeal the decision of the hearing officer to the city council by filing a written request with the city clerk within five days after notice of the hearing officer’s decision.
C. The city shall send a copy of the resolution or written statement to the property owner and shall post a copy on the property. [Ord. 06-1279 § 2, 2006; Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.050 Hearing.
At the time fixed in the notice, the council or other hearing officer shall hear the testimony of all competent persons desiring to testify respecting the condition constituting the nuisance, including the estimated cost of its abatement and any other matter which may be pertinent. At the conclusion of the hearing, the council may by resolution, or the hearing officer may by a written statement, declare its findings. The council or hearing officer may declare the person owning the real property upon which the nuisance exists to abate it within a specific time, which is reasonable under the circumstances, after the date of posting on the property a notice of the adoption of the resolution or written statement. [Ord. 935 § 7, 1987.]
1.24.060 Extension of time.
The council or hearing officer may grant an extension of time to abate the nuisance if, in its opinion, good cause for an extension exists and if the owner posts adequate security for the costs with the city. [Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.070 Abatement by city.
If the person fails to abate the nuisance within the time set forth, the city may proceed to abate the nuisance. The chief building official, city engineer, city planner, or code enforcement officer may have the work done by city staff or by purchase order or contract. [Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.080 Statement of expenses.
The city shall keep an itemized account of the expenses involved in abating the nuisance. The city shall post conspicuously on the property and shall also mail to the owner of the property a statement including:
A. What abatement action has been taken;
B. A statement of removal, administrative and other expenses incurred;
C. That the expenses are due and payable within 30 days from the date of this notice;
D. That if the owner fails to make payment within 30 days, the amount will be charged to the owner on the next regular tax bill and recorded as a lien against the property;
E. The date, time and place for a hearing before the city council or enforcement officer during which the owner may contest the amount charged;
F. If the hearing is before an enforcement officer, that the owner may appeal the decision on the amount charged; provided, that the owner attends the hearing and files a letter within five days of the hearing with the city clerk requesting a public hearing before the city council at its next regular meeting. [Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.090 Hearing on statement of expenses.
At the time fixed for the hearing on the statement of expenses, the council or hearing officer shall consider the statement and protests or objections raised by the person liable to be assessed for the cost of the abatement. The council or hearing officer may revise, correct or modify the statement as it considers just and thereafter shall confirm the statement by council resolution or hearing officer’s written statement. [Ord. 935 § 7, 1987.]
1.24.100 Expenses a special assessment against the property.
If the property owner does not pay the expense of abating the nuisance within 30 days after the council or hearing officer confirms the costs of abatement, the cost shall constitute a lien upon the real property and shall be collected as a special assessment against the real property. The assessment shall continue until it is paid, together with interest at the rate of 10 percent a year computed from the date of confirmation of the statement until payment. The assessment may be collected at the same time and in the same manner as ad valorem real property taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ad valorem real property taxes. All laws applicable to levy, collection and enforcement of ad valorem real property taxes apply to this special assessment. [Ord. 04-1221 § 5, 2004; Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.110 Notice of special assessment.
A. When a special assessment is charged against property as provided in this chapter, the city shall mail, by certified mail, to the property owner and file in the office of the county recorder a certificate substantially in the following form:
NOTICE OF SPECIAL ASSESSMENT
On ________, 20____, the City of Pittsburg abated a nuisance on the property located at _______________ (Assessor’s Parcel No. __________________). This property is owned by ________________ _____. The abatement was done under the authority of California Government Code Section 38773.5 and Pittsburg Municipal Code Chapter 1.24.
The City of Pittsburg claims a special assessment on the real property for the cost of the abatement in the amount of $______. This amount is a special assessment against the real property until paid with interest at the legal rate from _________, 20______ (insert date as determined in PMC 1.24.100) and discharged of record. This property may be sold after three (3) years by the tax collector for unpaid delinquent assessments.
The real property referred to in this notice is that parcel of land situated within the city of Pittsburg, County of Contra Costa, State of California, more specifically described as follows: (insert or attach legal description)
_________________________________
DATED: ____________, 20 _______
City of Pittsburg
By _____________________
B. The city shall file with the county auditor a certified copy of the notice of special assessment, a brief description of the abatement action taken and a request that the charges be added to the tax rolls and collected at the same time and in the same manner as ordinary municipal taxes. These documents shall be filed on or before the August 10th which follows the close of the tax year in which the abatement action was taken. [Ord. 04-1221 § 6, 2004; Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.120 Procedure in case of emergency.
A. Estimated Cost Less Than $50,001. If the code enforcement officer or chief building official determines that a nuisance on a parcel of real property poses a significant and immediate danger to the public health or safety, and the estimated cost of abatement is less than $50,001, the official may summarily abate the condition as provided in PMC 1.24.030 and 1.24.070. Before summarily abating an emergency condition, the official shall make a diligent good faith effort, reasonable under the circumstances, to contact the owner. When abating a condition under this section, the official shall document in the file the nature of the emergency requiring summary abatement. After summary abatement, the official shall follow the procedures provided in PMC 1.24.080, 1.24.090, 1.24.100 and 1.24.110.
B. Estimated Cost $50,000 or More. When the conditions which constitute a nuisance pose a significant and immediate danger to the public peace, health and safety, and the estimated cost of abatement is $50,000 or more, the city council may order the nuisance abated immediately or take steps to abate the nuisance after adoption of a resolution declaring the facts which constitute the emergency. When abating a condition under this section, the official shall document in the file the nature of the emergency requiring summary abatement. After summary abatement, the city manager or his/her designee official shall follow the procedures provided in PMC 1.24.080, 1.24.090, 1.24.100 and 1.24.110. [Ord. 06-1279 § 3, 2006; Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.130 Effect of failure to receive notice.
The fact that the owner or other person to whom notice is given under this chapter of the nuisance abatement proceedings does not receive notice, or a letter is returned by the post office as undeliverable, does not affect the validity of any abatement proceedings. [Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.140 Cost of abatement a personal obligation.
Instead of making the expenses of abating a nuisance a lien upon the real property under PMC 1.24.100, the city may make the expenses the personal obligation of the property owner, tenant or other person creating, causing, committing or maintaining the nuisance. In such a case, all of the procedures of this chapter apply except those specifically related to assessment of the property. [Ord. 935 § 7, 1987; Ord. 830 § 1, 1982.]
1.24.150 Treble costs of abatement.
A. Upon the entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a condition on the property which may be abated as a public nuisance, the court may order the owner to pay treble the costs of the abatement.
B. This section does not apply to court-ordered abatement of dangerous buildings pursuant to Health and Safety Code Section 17980. [Ord. 1014 § 1, 1991.]