4-1. PUBLIC NUISANCES

CHAPTER 1. PUBLIC NUISANCES

ARTICLE 1. GENERAL PROVISIONS

4-01-1000 LEGISLATIVE AUTHORIZATION: TITLE:

Pursuant to the authority granted to it by sections 25845 and 25845.5 of the Government Code, the Board of Supervisors does enact this Chapter, which shall be known, and may be cited, as the Public Nuisance Ordinance.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1005 PURPOSE AND INTENT:

(a) It is the purpose of this Chapter to protect the health, safety, and welfare of the residents of the County of Tulare through the prevention of public nuisances in the County. It shall be construed liberally to that end.

(b) It is the intention of the Board of Supervisors to minimize the burden placed upon property owners and taxpayers in carrying out the purpose set forth in subsection (a) above. Accordingly, those methods of abatement are to be favored which are least costly and that are most directly related to protecting the public health, safety, and welfare.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1010 NOT EXCLUSIVE REGULATION:

This Chapter is not the exclusive regulation of public nuisances. It shall supplement and be in addition to the other regulating statutes and ordinances heretofore or hereafter enacted by the State, the County, or any other legal entity or agency having jurisdiction.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1015 APPLICATION:

This Chapter applies to all real property owned by an individual, firm, partnership, joint venture, association, corporation, estate, or trust. In addition, it applies to any real property owned by the United States and any agency of the United States, the State of California and any agency of the State, any city, and a public district or political subdivision of the State of California, insofar as it is legally possible to enforce this Chapter, or any portion thereof, against such entities.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1020 DEFINITIONS:

Except where the context otherwise requires, the following definitions shall govern the construction of this Chapter:

(a) "Agent" means a person or entity acting on behalf of and subject to the control of the owner of real property or of a person legally in possession of the real property.

(b) "Board" means the Board of Supervisors of the County.

(d) "Cost of administration" means the cost to the County of performing the various administrative acts required under this Chapter with regard to the abatement of a public nuisance, including, without limitation, the costs of investigating such nuisance and the cost of prosecuting the public nuisance, but not including the actual cost of physically abating the nuisance.

(e) "County" means the County of Tulare, acting by and through the Board, the County Administrative Officer, or any appropriate County agency, department, or division.

(f) "Department" means the County department that employs the enforcement officer.

(g) "Director" means the head of the Department that issued the notice of violation and order to abate a nuisance, or his or her designee.

(h) For the purposes of this Chapter, "enforcement officer" means and includes the following County officials and their deputies, assistants, or other duly authorized representatives:

(1) Director of Resource Management Agency;

(2) County Health Officer;

(3) Agricultural Commissioner;

(4) Fire Chief;

(5) Sheriff; and/or

(6) Such other persons as may be designated by the Board.

(i) "Owner" means the person in whom is vested the ownership, dominion, or title of real property.

(j) "Real property" includes all of the surface or subsurface areas described in the most recently recorded deed or deeds relating to such property, and all improvements on the real property.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1025 SEVERABILITY:

The provisions of this Chapter are hereby declared to be severable. If any section, subsection, subdivision, sentence, clause, phrase, portion, or application of this Chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, that portion shall be deemed a separate, distinct, and independent provision, and that holding shall not affect the validity of the remaining portions of this Chapter. The Board hereby declares that it would have enacted this Chapter, each section, subsection, subdivision, sentence, clause, phrase, and portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions be declared invalid.

(Added by Ord. No. 3564, effective 7-4-19)

4-01-1030 NO DUTY TO ENFORCE:

Nothing in this Chapter shall be construed as imposing any duty on the enforcement officer, or any other agency, department, or division of the County, to take any specific enforcement action with respect to alleged violations of this Chapter, including issuing citations or notices of violations pursuant to this Chapter. Neither the enforcement officer nor any other agency, department, or division of the County, or the County, shall be held liable for failure to take any specific enforcement action to correct an alleged violation of this Chapter.

(Added by Ord. No. 3564, effective 7-4-19)

ARTICLE 3. NUISANCE

4-01-1070 DECLARATION OF NUISANCE:

Without limiting any other provision of this Code, or of any other ordinance adopted by the Board, each of the following is hereby declared to be a public nuisance and a violation of this Code, which may be abated in accordance with the provisions of this Chapter:

(a) Anything or any use or condition of real property that poses a danger to human health, is unsafe or detrimental to the public health, safety, or welfare, or is indecent or offensive to the senses and interferes with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin, or any public park, street, or highway, and affects at the same time an entire community or neighborhood or any considerable number of persons, although the extent of annoyance or damage inflicted upon individuals may be unequal;

(b) Any condition that is specifically declared to be a public nuisance by any statute, any provision of this Code, or any other ordinance adopted by the Board;

(d) Any condition that constitutes a nuisance as defined in section 3479 of the Civil Code;

(e) Any use of land, buildings, or premises established, operated, or maintained contrary to the provisions of any statute, any provision of this Code, or any other ordinance adopted by the Board;

(f) Any condition that constitutes a visual blight to a reasonable person of average sensibilities. For purposes of this Chapter, "visual blight" is any unreasonable or unlawful condition or use of real property, premises, or building exteriors that by reason of its appearance as viewed at ground level from the public right-of-way, or from neighboring premises, is detrimental to the property of others or to the value of property of others, offensive to the senses, or significantly degrades the aesthetic appearance of the neighborhood. "Visual blight" may include, but is not limited to, the keeping, storing, depositing, scattering over, or accumulation on the premises of any of the following:

(1) Junk, trash, debris, scrap metal, wood, rubbish, or packing materials, or

(2) Abandoned, discarded, or unused objects or equipment, such as furniture, stoves, appliances, refrigerators, freezers, cans or containers, motor vehicles, or automotive parts and equipment;

(g) Any condition that constitutes an attractive nuisance, which are those dangerous objects or conditions that, by their nature, may attract children or other curious individuals. Attractive nuisances include, but are not limited to, unprotected hazardous or unfilled swimming pools, ponds, iceboxes, refrigerators, freezers, abandoned wells, shafts, septic tanks, or other excavations.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1075 INSPECTION WARRANT:

Where there is a report of the existence of a public nuisance or other reason to believe that a public nuisance exists on certain real property, but the owner or person legally in possession of the real property refuses consent for the enforcement officer to inspect it, or where circumstances justify the failure to seek consent to inspect, the County may proceed to obtain an inspection warrant pursuant to Code of Civil Procedure section 1822.50 et seq. to enter and inspect such real property.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1080 EXCEPTION:

No inspection warrant shall be required where there is an immediate threat or danger to the public health or safety, and immediate abatement of a public nuisance is justified as provided in section 4-01-1315 of this Chapter.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1085 OWNER’S DUTY:

It is the duty of every owner of real property within the unincorporated area of the County to prevent a public nuisance described in section 4-01-1070 of this Chapter from arising on, or existing upon, the owner’s real property.

(Amended by Ord. No. 3564, effective 7-4-19)

ARTICLE 5. NOTICE OF NUISANCE

4-01-1140 NOTICE OF VIOLATION AND ORDER TO ABATE: SERVICE:

Whenever an enforcement officer determines that a public nuisance described in section 4-01-1070 of this Chapter exists upon any real property within the County, the enforcement officer may prepare a notice of violation and order to abate ("notice/order"), and shall serve a copy thereof upon the owner of the real property upon which the nuisance exists, as shown on the last equalized assessment roll, or to the current owner if otherwise known to the enforcement officer.

(Amended by Ord. No. 3564, effective 7-4-19; amended by Ord. No. 3619, effective 1-12-23)

4-01-1145 NOTICE OF VIOLATION AND ORDER TO ABATE: CONTENTS:

(a) The notice/order described in section 4-01-1140 of this Chapter shall include the following:

(1) The name, address, and telephone number of the enforcement officer who issued the notice/order.

(2) The name of the owner of the real property upon which the nuisance exists, as the name appears on the records of the County Assessor/Clerk-Recorder.

(3) The street address, assessor’s parcel number, or any other description sufficient to identify the real property affected.

(4) A statement that the County has determined that a public nuisance exists on the real property.

(5) A description of the condition(s) constituting the nuisance, including any facts upon which the determination is based.

(6) Identification of the specific provisions of law the enforcement officer has determined are being violated.

(7) An order to completely abate the nuisance within a reasonable period of time after the notice is served. Except for nuisances where the time to respond or abate is otherwise determined by statute, another provision of this Code, or any other ordinance adopted by the Board, a reasonable amount of time to abate a nuisance shall not be less than ten (10) calendar days after service of the notice.

(8) If the enforcement officer determines that the condition causing the nuisance can be corrected or abated by repair or corrective action, an order specifying the repairs or corrective actions that are required.

(9) A statement of the right to request administrative review of the Notice of Violation by filing a written request for administrative review with the Director within ten (10) calendar days of service of the notice/order. The notice/order shall include a telephone number and an Internet website (if applicable) where a property owner may obtain a copy of the request form. A copy of the request form shall also be included with the notice/order.

(10) A statement explaining the consequences of failing to abate or request administrative review within the applicable time periods, including (i) that the notice/order will become a final order; (ii) that the County may abate the public nuisance at the owner’s expense; and (iii) that if the notice/order is not fully complied with within the applicable time period, the County may seek recovery of its civil, administrative and abatement costs, and may impose fines or penalties pursuant to this Chapter and any other applicable laws, including by means of liens and/or special assessments against the subject real property that will be collected at the same time and in the same manner as ordinary real property taxes.

(11) If the enforcement officer determines that sufficient information about the nuisance and subject property is available, then the notice/order shall be accompanied by an estimate of the potential total abatement costs that may be charged to the owner if the County abates the nuisance, as well as any related civil and administrative costs, and estimated fines and penalties, along with a statement that any such estimate is provided as a courtesy, is simply an estimate, and in no way limits the type or amount of costs and penalties the County may impose under this Chapter.

(12) A statement that, with respect to substandard housing, in accordance with sections 17274 and 24436.5 of the Revenue and Taxation Code, a tax deduction may not be allowed for interest, taxes, depreciation, or amortization paid or incurred in the taxable year.

(b) Any estimate furnished by the County to the property owner of potential abatement costs, civil and administrative costs, or fines and penalties that the County may impose under this Chapter if the County abates a nuisance is simply an estimate, and in no way limits the type or amount of costs, fines, and penalties the County may ultimately impose under this Chapter.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1150 METHODS OF SERVICE: RECORDING: TIMING OF SERVICE:

(a) Unless otherwise required by law, the notices/orders required by this Chapter shall be served by one or more of the following methods:

(1) Personal service by delivery to the party or attorney on whom the service is required to be made.

(2) Service by certified mail. Such service shall be deemed effective two (2) days after the date of mailing. The owner of a property may be served by certified mail at his or her address as it appears on the last equalized assessment roll, except that, if the records of the County Assessor/Clerk-Recorder show that the ownership has changed since the last equalized assessment roll was compiled, the notice shall be mailed to the new owner.

(3) Service by posting. If service cannot with diligent effort be accomplished by personal delivery or by mail, then notice may be given by posting copies of the notice/order along the subject real property not more than one thousand (1,000) feet apart, but in no event shall fewer than two (2) signs be posted.

(b) A copy of any notice/order served pursuant to this section shall be recorded against the subject real property in the office of the County Assessor/Clerk-Recorder.

(c) If the enforcement officer serves a notice/order pursuant to this Chapter in the manner and within the time limits required by this section, then the failure of any person to receive actual notice of any proceedings shall not affect the validity of any proceedings taken pursuant to this Chapter.

(Amended by Ord. No. 3564, effective 7-4-19)

ARTICLE 7. ADMINISTRATIVE REVIEW BY DEPARTMENT

4-01-1200 REQUEST TO DEPARTMENT:

(a) Any person affected by the determination of the County that a public nuisance exists may request administrative review of that determination by filing a written request with the Director of the County department that issued the determination on or before the tenth (10th) calendar day following the date of mailing, personal delivery, or posting of the notice, as required by Article 5 of this Chapter.

(b) Unless the nuisance is abated as specified in the notice/order, or the real property owner or other party with a legally protected interest in the real property requests administrative review of the determination that a public nuisance exists within ten (10) calendar days after the date the notice/order was served, then the enforcement officer’s notice/order shall constitute a final administrative order or decision. It cannot be appealed and cannot be judicially reviewed, because the aggrieved person failed to exhaust available administrative remedies.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1210 NOTICE:

The Director, or his or her designee, as administrative review officer, shall give notice to the person requesting the administrative review of the date, time and place when the administrative review will be held, which date shall not be less than five (5) calendar days after the date of mailing the notice. The notice shall be mailed to the address given by the person in his or her request for administrative review.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1220 ADMINISTRATIVE REVIEW:

(a) At the administrative review, the administrative review officer shall review the determination, any and all relevant documents, and such other relevant information as shall be presented. The administrative review shall be informal.

(b) After reviewing all of the available information, the administrative review officer shall determine whether to uphold the determination of the existence of a nuisance and the order to abate, modify the notice/order, or direct that the notice/order be withdrawn. This decision may be made orally at the administrative review, but the decision shall be reduced to writing and mailed to the person requesting the appeal at the address given by the person in his or her request for administrative review, unless otherwise requested in writing by the party to be served. The notice of decision shall also include a description of the right to appeal the decision to the County Hearing Officer, as provided in Article 9 of this Chapter.

(Amended by Ord. No. 3564, effective 7-4-19)

ARTICLE 9. APPEAL TO COUNTY HEARING OFFICER

4-01-1250 APPEAL TO COUNTY HEARING OFFICER: NOTICE:

(a) The person who requested the administrative review by the Department may appeal the decision of the administrative review officer to the County Hearing Officer, as provided by Chapter 31 of Part I of this Code. An appeal to the County Hearing Officer shall be in writing and shall be filed with the Clerk of the Board within ten (10) calendar days after mailing of the notice of decision by the administrative review officer. An appeal to the County Hearing Officer shall specifically set forth the grounds of the appeal.

(b) At the time of filing the appeal, the appellant shall pay a fee in an amount adequate to cover the cost of processing and hearing the appeal, as established from time to time by resolution of the Board of Supervisors. The appellant may request a waiver of the fee pursuant to section 1-31-1060 of this Code.

(c) The Clerk of the Board shall mail notice to the appellant of the date and time that the County Hearing Officer will hear the appeal, which date shall be not less than ten (10) calendar days after the date of mailing of the notice.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1255 HEARING ON APPEAL: DETERMINATION:

(a) At the time fixed by the Clerk of the Board, the County Hearing Officer shall hear the appeal from the administrative review officer’s decision.

(b) The written determination that a public nuisance exists shall be admitted into evidence. The owner shall bear the burden of proving that the determination is not accurate.

(c) The hearing shall be conducted, and the County Hearing Officer’s decision shall be issued, in the manner prescribed in Chapter 31 of Part I of this Code.

(Amended by Ord. No. 3564, effective 7-4-19)

ARTICLE 11. ABATEMENT

4-01-1300 ABATEMENT FOLLOWING JUDIICAL DECREE:

If a public nuisance is declared by judicial decree, after the defendant(s) receive(s) notice of entry of judgment as prescribed by law, and after the time within which an appeal may be filed has expired, then all procedures of this Chapter shall be applicable and may be followed in the same manner as if a decision by the County Hearing Officer had been made determining a public nuisance to exist.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1305 ABATEMENT BY OWNER:

(a) Any owner may voluntarily abate a nuisance described in section 4-01-1070 of this Chapter at any time prior to commencement of abatement by the County. The County shall have discretion to request such voluntary correction or abatement prior to proceeding with the formal abatement procedures provided by this Chapter.

(b) The enforcement officer is also authorized to enter into voluntary abatement settlement agreements with the owner of a property, to allow the County to enter onto an owner’s real property and to abate nuisances on behalf of the owner. Any such agreement must be approved as to form by County Counsel, and will require the owner to: admit the existence of the nuisance; consent to the County’s entry on the subject real property; consent to the County’s conducting abatement activities on the real property through the County’s representatives and/or independent contractors; accept all liabilities and costs related to the abatement; and allow the County to collect such abatement costs by liening the subject real property, or by pursuing a personal lien against the owner. Nothing in this paragraph is intended to require a property owner to enter into a voluntary abatement settlement agreement with the County.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1310 ABATEMENT: ENTERING PRIVATE PROPERTY:

If a public nuisance is not voluntarily corrected or abated by the owner or other responsible person, and if no request for administrative review has been made as provided in Article 7 of this Chapter, or if no appeal to the County Hearing Officer has been made as provided in Article 9 of this Chapter, or if the decision after an appeal to the County Hearing Officer so provides, the County may cause the public nuisance to be abated. The County or its representatives or independent contractors who are to perform the work may enter upon the real property on which the public nuisance exists for the purpose of abating the nuisance. If necessary, the enforcement officer shall apply to a court of competent jurisdiction for a warrant authorizing entry upon the subject real property for purposes of undertaking the work of abatement.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1315 SAME: EMERGENCIES:

Regardless of the provisions of section 4-01-1310 of this Chapter, if it appears to the County that a public nuisance represents an immediate threat or danger to the public health or safety, the County may abate such public nuisance to the extent necessary to eliminate such threat or danger to the public health or safety without following the notice and hearing requirements set forth in Articles 5, 7, and 9 of this Chapter.

(Amended by Ord. No. 3564, effective 7-4-19)

ARTICLE 13. PAYMENT OF COSTS

4-01-1370 RECOVERY OF ATTORNEYS’ FEES:

In any action, administrative proceeding, or special proceeding to abate a nuisance under this Chapter, attorney’s fees may be recovered by the prevailing party. Recovery of attorneys’ fees by the prevailing party is limited to those actions or proceedings in which the County elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees. 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 County in the action or proceeding.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1375 STATEMENT OF EXPENSES:

(a) Any County department which abates a public nuisance pursuant to this Chapter shall keep an accounting of the cost of each abatement, and shall prepare a statement of expenses in writing showing the cost of abatement and the applicable cost of administration. If real property under more than one ownership has been included in an overall abatement project, the statement of expenses shall show such costs for the property owned by each owner separately. The statement of expenses or its supporting attachments shall include the following information:

(1) Name(s) of the contractor(s) who performed the abatement;

(2) Dates when abatement activities were conducted on the real property, and information about what activities were conducted on which dates;

(3) Number of individuals who worked on each type of abatement activity on the property;

(4) Total number of hours the contractor’s employees/agents spent on each type of abatement activity;

(5) Rate for each type of abatement activity performed;

(6) Itemized list of other fees or charges incurred in conducting the abatement, including, but not limited to, dump fees or travel fees; and

(7) Costs of administration, including any applicable postage and attorneys’ fees.

(b) The County shall mail a copy of the statement of expenses, and a notice explaining the right to appeal the statement of expenses, to the County Hearing Officer as provided in section 4-01-1380 of this Chapter, to the owner of the affected real property at the address provided in section 4-01-1150 of this Chapter, unless the owner has otherwise requested in writing, and to any mortgagee, lienholders of record, or beneficiary under a deed of trust.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1380 APPEAL ON STATEMENT OF EXPENSES: NOTICE:

(a) The owner of the affected real property, or other individual with a legally protected interest in the affected real property, may appeal for a modification of the statement of expenses to the County Hearing Officer. Any appeal to the County Hearing Officer shall be in writing and shall be filed with the Clerk of the Board within ten (10) calendar days after the date of mailing of the notice and statement of expenses. An appeal shall specifically set forth the grounds of the appeal. At the time of filing the appeal, the appellant shall pay a fee adequate to cover the cost of processing and hearing the appeal as established from time to time by resolution of the Board of Supervisors. The appellant may request a waiver of the fee pursuant to section 1-31-1060 of this Code.

(b) The Clerk of the Board shall mail notice to the appellant of the date and time that the County Hearing Officer will hear the appeal, which date shall be not less than ten (10) calendar days after the date of mailing the notice.

(c) Unless otherwise expressly stated by the owner, payment of the cost of abatement and the cost of administration prior to said hearing shall be deemed a waiver of the right thereto and an admission that said statement of expenses is accurate and reasonable.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1385 HEARING ON APPEAL: STATEMENT OF EXPENSES:

(a) At the time fixed by the Clerk of the Board, the County Hearing Officer shall hear the appeal on the statement of expenses. The owner may appear and be heard on the questions of whether the statement of expenses and the costs included are accurate and reasonable.

(b) The report of the statement of expenses shall be admitted into evidence. The owner shall bear the burden of proving that the statement of expenses is not accurate or reasonable.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1390 MODIFICATIONS:

The County Hearing Officer may make such modifications in the statement of expenses as he or she deems necessary based on the evidence at the hearing, and thereafter shall confirm the statement of expenses in a written decision.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1395 LIABILITY FOR COST OF ABATEMENT: SPECIAL ASSESSMENT AND LIEN:

(a) The owner of the real property shall be liable for the cost of the abatement, including the cost of administration, and any applicable attorney’s fees, as so determined.

(b) The Board may order that the cost of abating public nuisances pursuant to this Chapter, and the applicable costs of administration, and any applicable attorney’s fees, be placed on the County tax roll by the County Auditor as special assessments against any applicable real property, or placed on the unsecured roll, and collected at the same time and in the same manner as ordinary county taxes are collected, if such costs and fees are not paid within five (5) days following service of the County Hearing Officer’s decision under section 4-01-1385 or 4-01-1390. The Board may also order that a notice of abatement lien be recorded against any applicable real property until such costs and fees have been paid in full.

(c) Recovery of costs and fees pursuant to this section shall be in addition to and shall not limit any prevailing party’s right to recover costs pursuant to Sections 1032 and 1033.5 of the Code of Civil Procedure or any other provision of law.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1400 PAYMENT OF COST OF ABATEMENT: CONDITIONS:

The Board may order that the payment of the cost of abating nuisances pursuant to this Chapter, and the applicable costs of administration, and any applicable attorney’s fees, become a condition precedent to the issuance of any and all pending or future permits or entitlements for use requested from the County by any person found responsible for the payment of such costs.

(Amended by Ord. No. 3564, effective 7-4-19)

4-01-1405 SECOND OR SUBSEQUENT ABATEMENT: TREBLE DAMAGES:

As authorized by Government Code section 25845.5, upon a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a condition that may be abated in accordance with this Chapter, except for conditions abated pursuant to section 17980 of the Health and Safety Code, a court may order the owner to pay treble the costs of the abatement.

(Amended by Ord. No. 3564, effective 7-4-19)