Aliso Viejo Municipal Code Art. III Abatement of Nuisances

A. Any violation of this code is hereby determined to constitute a public nuisance. The procedures set forth in this article for abatement of nuisances and the making of the cost of abatement of a public nuisance which exists on a parcel of land a special assessment or lien against that parcel are adopted pursuant to California Government Code Sections 38773 et seq. and 54988, California Penal Code Sections 11226 through 11230, and Article XI, Section 7 of the California Constitution.

B. In addition to any other remedy available to the city, in any civil, criminal or administrative action, proceeding or matter commenced by the city to abate a public nuisance, to enjoin a violation of any provision of this code, or to collect a civil or criminal penalty or other amount due to the city as the result of any such public nuisance, the city shall, if it is the prevailing party, be entitled to recover from the defendant in any such action costs incurred by the city in such action, proceeding or other matter.

C. As used in this section, “costs” shall have the meaning set forth in California Code of Civil Procedure Section 1033.5, including, without limitation, attorneys’ fees as provided in subsection (E) of this section. In addition to such items, all of the following shall be included within the definition of “costs”:

1. Personnel costs actually incurred by the city (for contractors and consultants) or based on established rates of employee costs as adopted by resolution of the city council from time to time. Such personnel costs shall include, but not be limited to, the costs incurred by the city to pay any contractor to abate a public nuisance.

2. Costs of administrative hearings, including hearing officer costs and reporter costs.

3. Any administrative fines or penalties.

4. Accrued interest at the maximum rate established by law.

D. 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 California Civil Code Section 3494, California Code of Civil Procedure Section 731, California Penal Code Sections 11226 through 11230, and any other applicable provision of law.

E. The prevailing party in any action, proceeding, or special proceeding to abate a nuisance, including but not limited to those taken pursuant to this chapter, and specifically including pursuant to this article (“Abatement of Nuisances”), in which the city has initiated the action, proceeding or special proceeding and in which city elects at the initiation of the action, proceeding or special proceeding to seek recovery of its own attorneys’ fees, all as provided by California Government Code Section 38773.5(b), may recover reasonable attorneys’ fees relating thereto.

F. In any civil or criminal action, the city may seek recovery of costs (including any costs incurred in any related administrative matter) as set forth in California Code of Civil Procedure Sections 1033.5(c)(5) and 3496.

In addition to the remedies set forth above, in nuisance abatement actions brought pursuant to AVMC 1.06.200(B), the city shall also seek a court order for:

1. One-year closure of any buildings or premises utilized in connection with the nuisance;

2. Payment of one year’s fair market rent to the city;

3. Sale of all fixtures in the building relating to the nuisance;

4. A civil fine of $25,000; and

5. Reimbursement of the city’s attorney’s fees.

G. These amounts and costs incurred by the city in connection with the enforcement of this article may be collected as a lien against the subject property as authorized by California Government Code Sections 38773.1 and 54988 and this chapter, through the special assessment procedure authorized by California Government Code Section 38773.5 and this article, or through any other legal means available to the city. The city may redirect amounts recovered pursuant to subsections (F)(2) through (4) of this section to victim’s assistance programs. [Ord. 2021-220 § 2; Ord. 2014-162 § 1; Ord. 2010-126 § 1 (Exh. A)].

A. The city manager or his or her designee may determine that any premises within the city may constitute a public nuisance pursuant to any provision of law and may initiate proceedings pursuant to this article. The determination of the city manager or his or her designee shall be set forth in a letter which shall identify the premises and state the conditions which constitute a nuisance and shall request that such conditions be corrected within a stated period of time. The letter of determination shall be served on the record owner of the premises. If the conditions are not remedied within the time stated in the letter, the city manager or his or her designee shall schedule a hearing to determine whether or not a nuisance exists.

B. The city attorney is hereby authorized and directed to present to the city council for consideration the initiation of a nuisance abatement action whenever the city attorney or city staff becomes aware of facts or circumstances suggesting that a building or property is being used for the purpose of illegal gambling, lewdness, prostitution, or human trafficking. Such initiation shall also include revocation proceedings to nullify any entitlement, permits, or licenses that a business operator or property owner knew or had reason to know were used in connection with said nuisance. [Ord. 2021-220 § 3; Ord. 2010-126 § 1 (Exh. A)].

The city manager shall serve on the record owner of the premises that are the subject of the letter of determination issued pursuant to AVMC 1.06.200 a notice of hearing in substantially the form set forth in AVMC 1.06.220, and a copy of this article. The notice shall be served not less than 30 calendar days before the date of the hearing. [Ord. 2010-126 § 1 (Exh. A)].

The notice of hearing required by AVMC 1.06.210 shall be in substantially the following form:

Notice is hereby given that on the ________ day of _______________, the City Manager of the City of Aliso Viejo, or his or her designee, determined that a nuisance may exist on the following described premises. On the ________ day of ________________, at the Aliso Viejo City Hall, located at 12 Journey in the City of Aliso Viejo, a hearing will be held before a hearing officer appointed to determine whether a public nuisance exists on the premises. If the premises, in all or in part, are found to constitute a public nuisance and if the same is not promptly abated by the owner, such nuisance may be abated by the City, in which case the costs of such abatement may be assessed upon such premises and if assessed, may constitute a lien upon such property until paid.

The premises are described as follows: _________________________________________________________________.

[Ord. 2010-126 § 1 (Exh. A)].

Service of notices and orders required under this article shall be made by posting a notice in a conspicuous place on or in front of the premises and by either one of the following methods:

A. By personal service on the record owner(s); or

B. By registered or certified mail addressed to the record owner(s) of the property at their last-known address. If there is no known address for the record owner, the notice or order shall be sent to the property address for the premises. Service shall be completed at the time of deposit into the United States mail. [Ord. 2010-126 § 1 (Exh. A)].

The hearing shall be heard by a hearing officer selected pursuant to AVMC 1.10.030 and shall be conducted in accordance with Chapter 1.10 AVMC. At the conclusion of the hearing, the hearing officer shall determine whether or not a nuisance exists; and, if the hearing officer so concludes, he may order the person owning or occupying the premises upon which the nuisance exists to abate it within a period of time as specified in the hearing officer’s decision. The hearing officer may grant an extension of time to abate the nuisance if, in the hearing officer’s opinion, good cause for an extension exists. The decision of the hearing officer shall be in writing and shall be final upon service of a copy of the decision and order by registered mail to those persons described in AVMC 1.06.210. [Ord. 2010-126 § 1 (Exh. A)].

If the nuisance is not completely abated within the time set forth in the hearing officer’s order, the city manager may immediately cause the same to be abated by city personnel or private contract, and the personnel or persons under contract are expressly authorized to enter upon the premises for such purposes. The owner of the premises shall be liable to the city for all costs of the abatement, including administrative costs. [Ord. 2010-126 § 1 (Exh. A)].

If the city has abated the nuisance in accordance with AVMC 1.06.250, the city manager or designee shall serve on the owner of the premises a written accounting of the costs incurred by the city to abate the nuisance, which shall include, in plain language, a description of the basis for the amounts comprising the proposed lien or assessment on the subject property, notice to the property owner of his or her obligation to pay such costs or to appeal the matter to the city council and be heard regarding the amount of the proposed lien, and that failure to so appeal shall constitute a waiver of the property owner’s right to an administrative determination of the matter. The notice and written accounting shall be mailed by certified mail to the last known address of the record owner of the property. In the event the owner does not appeal within 10 calendar days after service of the notice and written accounting, the amount of such unpaid costs may be made a lien or special assessment on the subject property to be sent to the county tax collector in order to be collected at the same time and in the same manner as property taxes are collected. [Ord. 2010-126 § 1 (Exh. A)].

A. An owner, occupant, or other party who has a legal or equitable interest in the premises may appeal the hearing officer’s decision finding and ordering the abatement of a nuisance pursuant to AVMC 1.06.240 to the city council. Said appeal must be in writing and must be filed with the city clerk no later than 10 days from the date the hearing officer’s order was served in accordance with AVMC 1.06.230. If the hearing officer’s order is not appealed in accordance with this section, the hearing officer’s order shall be deemed final and may no longer be appealed.

B. An owner, occupant, or other party who has a legal or equitable interest in the property may appeal the city’s written accounting of the costs to abate the nuisance provided pursuant to AVMC 1.06.260 to the city council. Said appeal must be in writing and must be filed with the city clerk no later than 10 days from the date the city’s written accounting was served in accordance with AVMC 1.06.230. If the city’s written accounting of the costs to abate the nuisance is not appealed in accordance with this section, the city’s written accounting shall be deemed final and may no longer be appealed.

C. All written appeals shall be filed with the city clerk and shall state the grounds for such appeal and the specific factual and/or legal errors committed.

D. The appeal shall be heard by the city council at the next available city council meeting. Notice of the meeting shall be served, in accordance with AVMC 1.06.230, on the person(s) who filed the appeal at least 10 days prior to the meeting. The city council’s determination on the appeal shall be in writing and shall be served, in accordance with AVMC 1.06.230, on the person(s) who filed the appeal. [Ord. 2010-126 § 1 (Exh. A)].

A. If the property owner fails to appeal the written accounting provided pursuant to AVMC 1.06.260 or if the city council upholds the written accounting, the city manager or designee may determine that the costs set forth in such written accounting shall become a lien on the premises and shall cause a notice of lien to be recorded against the property pursuant to California Government Code Section 38773.1. A lien recorded pursuant to this subsection shall attach upon recordation in the office of the county recorder and shall have the same force, priority, and effect as a judgment lien, not a tax lien.

B. As an alternative to the lien procedure set forth in subsection (A) of this section, the city manager or designee may determine that the costs set forth in the city’s written accounting shall become an assessment and may cause the assessment to be imposed against the property. An assessment imposed pursuant to this subsection may be collected at the same time and in the same manner as property taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as property taxes.

C. In addition to the remedies set forth herein or otherwise provided for by law, the obligation to pay any unpaid costs shall be made a personal obligation of the owner of property subject to this section. Such obligation may be recovered against the owner through a suit instituted by the city or its authorized collection agent, or in any other manner provided for by law. In any such action, the city shall be entitled to recover costs of such suit, including the city’s attorneys’ fees, as provided in AVMC 1.06.190. [Ord. 2010-126 § 1 (Exh. A)].

A. In the event that the city causes a notice of lien to be recorded pursuant to AVMC 1.06.280(A), the notice shall, at a minimum, identify the record owner of the property, set forth the last known address of the record owner, list the street address, legal description, and assessor’s parcel number of the property, set forth the date of the abatement order, list the city of Aliso Viejo as the agency on whose behalf the lien was imposed, set forth the date upon which the lien was created against the property, and include the amount of the lien.

B. In the event that the city imposes an assessment pursuant to AVMC 1.06.280(B), notice shall be provided to the property owner in accordance with California Government Code Section 38773.5, and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments. [Ord. 2010-126 § 1 (Exh. A)].

Notwithstanding any other provision of this code, the city may act to immediately abate any nuisance or violation of this article whenever the city manager determines that a condition poses a clear and imminent danger to, or requires immediate action to prevent or mitigate the loss or impairment of life, limb, health, property, safety or welfare of any person or essential public services. The abatement shall include all actions necessary to secure the premises to prevent further occurrences of the nuisance. The city may abate any nuisance pursuant to this section without providing prior notice or hearing to the record owner of the premises that are the subject of the nuisance; provided, that the city manager shall make a diligent good faith effort, reasonable under the circumstances, to contact the record owner prior to summarily abating the nuisance. The nature of the emergency requiring the summary abatement shall be documented in the file. The record owner shall be liable to the city for all costs of any emergency abatement. After abatement of the nuisance, the city manager shall follow the procedures set forth in AVMC 1.06.260 through 1.06.290. [Ord. 2011-136 § 1].