Anderson Municipal Code Ch. 8.28 Nuisance Abatement

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Editor's note— Sec. 5 (Exhibit B) of Ord. No. 775, adopted September 6, 2011 amended Ch. 8.28 in its entirety to read as herein set out. Former Ch. 8.28 pertained to the same subject matter, consisted of §§ 8.28.010—8.28.230, and derived from Ord. 612, 1993; and Ord. 646, 1996.

This chapter is adopted for the purpose of defining those conditions of real property in the city which constitute nuisances; and for the further purpose of establishing procedures for ordering the abatement of a nuisance; authorizing city personnel to undertake the work necessary to abate such nuisance in the event of noncompliance with such abatement order; levying an assessment against the owner of the property on which such nuisance abatement work was performed in the amount of city's abatement costs; and either causing a lien to be recorded against such property in the amount of such assessment costs or causing such assessment to be added to the county assessment rolls and collected at the same time and in the same manner as property taxes.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

The city council finds as follows:

A. That there are numerous buildings, structures and other conditions on or pertaining to real property located in the city which constitute nuisances as defined in this chapter;

B. That the continued existence of such nuisances is injurious to the public health, safety and welfare;

C. That abatement of such nuisances in the manner provided by this chapter is a proper exercise of the city's police powers and is specifically authorized by Government Code (commencing with Section 38771); and

D. That abatement of such nuisances in the manner provided by this chapter is reasonable and affords to the owner of the property on which the nuisance is located all of the due process rights guaranteed by the federal and state constitutions.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

A. Any condition caused or permitted to exist in violation of any of the provisions of this code, or its adopted codes, shall be deemed a public nuisance and may be abated by the city.

B. It shall be unlawful and a public nuisance for any person owning, occupying, leasing or having charge or possession of any property in the city to maintain or allow to be maintained on such property any of the conditions set forth in this section, regardless of whether the property or any structure thereon is vacant or occupied.

1. The exterior accumulation of weeds, rank growths, dirt, litter, rubbish or debris.

2. Broken, abandoned or discarded furniture or other household equipment or fixtures, packing boxes, lumber, junk, trash, rubbish, or other materials or debris, including the dumping, spillage or storage of solids or liquids which may negatively impact the visual or olfactory nature of the area.

3. Buildings, fences or other structures, the exterior walls or windows containing graffiti or other inscribed material or which are cracked, broken, leaning, fallen, decayed, deteriorated or defaced.

4. Any dangerous, unsightly or blighted condition. For purposes of this section, "blighted" shall mean characterized as being in a condition of decay, deterioration, disrepair, neglect or inadequate maintenance, including, but not limited to, conditions constituting a public nuisance, contributing to the diminution of the property values of surrounding properties, undermining the economic vitality of a neighborhood or creating health or safety dangers.

5. Neglected or improperly maintained landscaping, including, but not limited to, dead, debris laden, weed infested or overgrown vegetation, such as trees, shrubs, hedges, grass and ground covers, or vegetation dying as a result of physical damage, disease, insect infestation or lack of water, or the removal or failure to maintain in good condition any landscaping required as a condition to any permit or development approved or included in the project plans or application, without city approval; provided, however, that the provision as to dead or dying vegetation due to lack of water shall not to be enforced during a drought year, as determined by the city. For purposes of this subdivision, a lawn area shall be deemed overgrown if fifty percent or more of its area exceeds twelve inches in height.

6. A failing septic tank and/or leach field system.

7. An unprotected excavation and/or abandoned and uncovered well.

8. An unfenced or otherwise unprotected swimming pool.

9. Storage or maintenance in a residential zone, visible from a street, sidewalk or right-of-way, of metal storage bins or containers larger than one hundred twenty square feet.

10. The exterior storage or maintenance of parts or machinery of any type or description unless specifically authorized by a city license or permit; building materials or merchandise unless specifically authorized by use permit; or construction equipment or garbage bins except while excavation, construction or demolition operations covered by an active building permit or other city permit are in progress on the subject or adjoining property. Provided, however, that Chapter 8.16 of the Anderson Municipal Code shall apply to situations involving abandoned, wrecked, dismantled or inoperative vehicles, or parts thereof, on private or public property, and the abatement thereof.

11. The exterior storage of any number of tires in a manner that allows any accumulation of water or creates a fire hazard.

12. The parking or storage of any boat, trailer, camper, motor home, unregistered or nonoperable vehicles or other mobile equipment, whether or not motorized, or portions or parts and components thereof, on property used or zoned for residential purposes, if either:

a. Located on any front lawn or front yard or driveway within the front yard setback measured from the property boundary line; or

b. Located in any side yard, so as to prevent a three-foot wide continuous fire access way from the front of the property; or

c. Located on any side yard within the required side yard setback measured from the property boundary line of any corner lot.

13. The use of any trailer, camper or motor home for residential occupancy except on property zoned for mobile home parks or camping.

14. Land, the topography, geology or configuration of which, whether in natural state or as a result of grading operations, excavation or fill, causes erosion, subsidence, or surface water drainage problems of such magnitude as to be injurious or potentially injurious to the public health, safety and welfare or to adjacent properties.

15. Obstruction or encroachment upon any public property, including, but not limited to, any public street, sidewalk, highway, right-of-way, park or building, without prior city consent. Such obstructions or encroachments include, but are not limited to, overgrown trees and shrubs; building materials; merchandise or other personal property; and buildings or portions of buildings or structures protruding onto public property.

16. A building or structure which is constructed, maintained or used in violation of the building, fire or zoning regulations adopted by or pursuant to this code.

17. Maintenance of any substance which because of its quantity, concentration or physical, chemical or infectious characteristics may either cause or substantially contribute to an increase in mortality or serious illness or pose a significant present or potential hazard to human health or the environment if improperly managed.

18. Any condition recognized in law or in equity as constituting a public nuisance.

19. Any condition constituting a "substandard building" under section 17920.3 of the California Health and Safety Code.

20. The existence of any property condition which is unlawful or declared to be a public nuisance pursuant to any other provision in this code.

This subsection shall be construed to place an affirmative duty on property owners and occupants to maintain their property in conformity with all applicable codes. The city shall have the power to require property owners and occupants to bring their property into compliance with applicable codes, regardless of whether or not the building is occupied.

Each day that any condition which constitutes a public nuisance continues shall be deemed to be a separate violation of this chapter.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

A. In General. Whenever any property is found by the code enforcement officer to contain a public nuisance as declared by this chapter, he or she shall notify the owner of such property in writing by issuing a notice to abate. The notice shall state the conditions which constitute the public nuisance, and shall order the owner to abate said conditions within thirty days after the date of notice. The notice may provide for a shorter period of time in which to abate the public nuisance in the event that (1) the condition which constitutes the public nuisance is not one which makes the property substandard housing as defined by Health and Safety Code section 17920.3, or (2) prior notices to abate the same condition have been sent within the last ninety days and the condition has not been abated.

B. Substandard Housing. Whenever the condition which constitutes a nuisance is a substandard residential building, as defined by Health and Safety Code section 17920.3, then the notice to abate required by this section shall be sent not only to the owner, but also to any mortgagee or beneficiary under any deed of trust of record. The notice shall state the conditions which render the building unfit for human habitation and shall order the building or the affected portion of it vacated, and further order that it be either repaired or demolished within thirty days after the date of notice.

If such building is encumbered by a mortgage or deed of trust of record, and the owner does not comply with the notice to abate on or before the expiration of thirty days after its mailing and posting, the mortgagee or beneficiary may, within fifteen days after the expiration of said thirty-day period, comply with the requirements of the notice to abate, in which event the cost of the mortgagee or beneficiary in so doing shall be added to and become a part of the lien secured by the mortgage or deed of trust and shall be payable as provided by Title 25 of the Code of California Regulations, section 54.

C. Manner of Giving Notice.

1. General. The notices shall be mailed by certified U.S. mail, postage prepaid and return receipt requested, to the owner of the property at the address for the owner shown on the last equalized assessment roll of Shasta County. The names and addresses of owners appearing on the assessment roll shall be conclusively deemed to be the proper person and address for the purpose of mailing such notices. In addition, if the property is other than vacant property, a copy of the notice shall be mailed to the property address.

2. Substandard housing. Whenever the condition which constitutes a nuisance also constitutes a substandard residential building, as defined by Health and Safety Code section 17920.3, then at least one copy of the notice to abate shall be posted conspicuously on the building alleged to be substandard; and an additional copy shall be mailed by registered or certified mail, postage prepaid and return receipt requested, to any mortgagee or beneficiary on any note or deed of trust of record. If the address of a mortgagee or beneficiary is unknown, then that fact shall be stated on the copy so mailed, and the notice to abate shall be sent to the mortgagee or beneficiary addressed to him or her at Redding, California.

3. Affidavits. The employee sending such notice to abate shall file an affidavit with the city clerk certifying the time and manner in which notice was given and shall also file with the city clerk any receipt card returned in acknowledgment of the notice to abate.

4. Failure to Receive Notice. The failure of any owner or other person to receive the notice to abate or other notices required by this chapter shall not affect in any manner the validity of any proceeding taken under this chapter.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

Tenants in a residential building shall be provided a copy of any notice served under this chapter concerning any violation which affects the health and safety of the occupants and which violates Civil Code section 1941.1, any order declaring the premises to be substandard, the city's decision to repair or demolish, or the issuance of a building or demolition permit following the abatement order. Copies may be provided either by first class mail to each affected residential unit, or by posting a copy in a prominent place on the premises at the discretion of the code enforcement officer.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

A. It shall be unlawful to fail, neglect or refuse to comply with a notice to abate issued pursuant to this chapter.

B. In the event the owner fails, neglects or refuses to comply with the notice to abate, the code enforcement officer may serve an "order to show cause" which shall order such person to either abate the conditions specified in the notice to abate or appear before a hearing officer, at a stated time and place, not less than fifteen days from the date of the order, to show cause why the conditions should not be abated by the city at the owner's expense. The order to show cause shall be served and posted, and an affidavit filed with the city clerk, in the manner specified in Section 8.28.040.

(Ord. No. 775, § 5(Exh. B) 9-6-2011)

The order to show cause shall be in substantially the following form:

NOTICE TO ABATE NUISANCE AND ORDER TO SHOW CAUSE

Heating Date:

Time:

Location:

An initial determination has been made that there exists upon the building, structure, lot or premises located at _______, Anderson, California, condition(s) constituting a public nuisance(s) under Section 8.28.030, Subdivision(s) of the Anderson Municipal Code.

The conditions constituting the nuisance are: _______. The methods of abatement available are: _______. You have previously received a written Notice to Abate dated ________ requiring you to abate these conditions and have failed to do so. YOU ARE HEREBY ORDERED to either: (1) ABATE THE ABOVE CONDITION(S) by repairing, replacing, removing, destroying or otherwise remedying the condition(s) to the satisfaction of the undersigned enforcement officer within ________ days of the date of this order; OR, alternatively, (2) TO APPEAR AND SHOW CAUSE before a hearing officer at the offices of the _______ located at _______, on at ___ o'clock ___m., why these condition(s) should not be abated by the city and the expenses of doing so be charged to you as a personal debt and/or made a special assessment and lien upon the premises.

All persons having an interest in said matters are notified to attend the hearing, and their testimony and evidence will be given due consideration. WARNING! (1) If you do not either abate the conditions or attend the hearing, you will have waived your right to a hearing regarding the existence of the nuisance. In that case, the city will abate the nuisance and the expenses of doing so will be made a special assessment and lien upon the property. In addition, you may be cited for violations of the Anderson Municipal Code and subject to a fine. (2) Once vehicles or other property are abated by the city, they may be destroyed or otherwise disposed of as provided by law. (3) In accordance with Revenue and Taxation Code sections 17274 and 24436.5, a tax deduction may not be allowed for interest, taxes, depreciation or amortization paid or incurred in the taxable year if these conditions are not abated.

Dated: ________

Code Enforcement Officer

The portion of the heading entitled "Notice to Abate Nuisance and Order to Show Cause" shall be in letters not less than three-fourths (¾) inch in height.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

The show cause hearing to determine whether a nuisance exists shall be conducted by a hearing officer as set forth in Section 8.28.150. The hearing officer's decision shall be final unless challenged in superior court. Any action brought in superior court challenging the hearing officer's decision and order shall be commenced within thirty calendar days of the date of service of such decision.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

Failure of the owner or responsible party to either abate the conditions specified in the Order to Show Cause or to appear at the hearing on the Order to Show Cause after notice has been served shall be deemed a waiver of the right to a hearing and an admission by such owner or responsible party of the existence of the nuisance conditions as specified. In the event of an unexcused failure to appear, the hearing officer may issue an Order of Abatement permitting the conditions to be abated by the city . Notwithstanding anything in this chapter to the contrary, there shall be no right to appeal such order following both a failure to appear and a failure to abate.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

Upon the conclusion of the hearing on the order to show cause, the hearing officer shall determine whether the activity or the premises, or any part thereof, as maintained, constitutes a public nuisance. If the hearing officer finds that a public nuisance does not exist, he or she shall dismiss the proceedings. If the hearing officer finds that a public nuisance does exist and that there is sufficient cause to order the abatement of the public nuisance, the hearing officer shall issue an order of abatement, which shall contain findings of fact and shall direct and order the public nuisance abated within the time, and in the manner set forth in the order. The order of abatement shall be served in the manner set forth in Sections 8.28.040.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

It shall be unlawful to fail, neglect or refuse to comply with an Order of Abatement issued pursuant to this chapter.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

A. If the nuisance is not completely abated by the owner in the time and manner set forth in the order of abatement, the nuisance shall be abated by city forces or private contractors retained in accordance with the provisions of this code; and entry upon the premises to which the order of abatement relates is expressly authorized for such purposes. No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the city whenever such person is engaged in the work of abatement, or in performing any necessary act preliminary to or incidental to such work, as authorized or directed pursuant to this chapter. The cost, including incidental expenses, of abating the nuisance shall become a civil debt of the owner and other responsible persons and shall be billed to the owner and become due and payable fifteen days thereafter. The term "incidental expenses" shall include, but not be limited to, personnel costs, both direct and indirect; attorney's fees; costs incurred in documenting the nuisance; the actual expenses and costs of the city in the preparation of notices, specifications, and contracts and in inspecting the work; the costs of printing and mailing the notices required hereunder; and any administrative or recording costs charged by the county.

B. In the event that the owner or occupant fails to consent to the city entering his or her property for the purposes of inspecting and/or abating a nuisance under this chapter, the city may, if legally required, apply for and be granted a court warrant if cause exists, pursuant to Code of Civil Procedure section 1822.52 or any other authority.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

Notwithstanding any other provision of this chapter to the contrary, whenever it is determined that a public nuisance is so imminently dangerous to life or other property that such condition must be immediately corrected or isolated, the city may institute the following procedures:

A. Notice. The enforcement officer shall attempt to make contact through a personal interview, or by telephone, with the landowner or the person, if any, occupying or otherwise in real or apparent charge and control thereof. The enforcement officer shall document all attempts to make contact. In the event contact is made, the enforcement officer shall notify such person or persons of the danger involved and require that such condition be immediately removed, repaired or isolated so as to preclude harm to any person or property.

B. Abatement. In the event the enforcement officer is unable to make contact as required by this section, or if the appropriate persons, after notification by the enforcement officer, do not take action as specified by such official within seventy-two hours, or a lesser period if deemed necessary, then the enforcement officer may, with the approval of the city manager and in consultation with the city attorney if feasible, take all steps necessary to remove or isolate such dangerous condition, or conditions, with the use of city forces or a contractor retained pursuant to the provisions of this code. Provided, however, that summary abatement shall be limited solely to those matters which are imminently dangerous to life or other property, and additional abatement, if necessary, shall utilize the other enforcement provisions of this chapter.

C. Costs. The enforcement officer shall keep an itemized account of the costs incurred by the city in removing or isolating such condition or conditions. Such costs may be recovered to the same extent and in the same manner that abatement costs incurred pursuant Section 8.28.120 are recovered.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

The costs of abatement incurred under this chapter shall be recouped through a civil action pursuant to Section 8.29.040, a lien pursuant to Section 8.29.070, or a special assessment pursuant to Section 8.29.080.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

The city council shall appoint hearing officers to conduct proceedings under this chapter. The hearing officer may be a city employee, but in that event the hearing officer shall not have had any responsibility for the investigation, prosecution or enforcement of this chapter and shall not have had any personal involvement in the proceeding to be heard within the past twelve months or possess any disqualifying interest in the outcome of the proceeding.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

In addition to any other remedies provided for in this chapter or under applicable law, violation of this chapter or a failure to comply with an order of abatement or notice to abate issued pursuant to this chapter shall be unlawful and an offense. Such violations shall be punishable as provided by Chapter 8.29.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

Any city employee authorized to enforce this code may record a "notice of violation" against any property on which a public nuisance exists declaring the existence of the nuisance and describing it. In any case where such a notice has been recorded and the nuisance is later abated, the city employee shall record a further notice declaring the nuisance abated.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

Any condition found to constitute a public nuisance may be abated pursuant to the procedures set forth in this chapter, other provisions of this code or other applicable law.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)

Nothing in this chapter shall be construed as requiring the city to enforce its prohibitions against any or all properties which may violate it. The city envisions that this chapter will be enforced, in the city's prosecutorial discretion, only as to a limited number of problem properties, as resources permit. Nothing in this section or the absence of any similar provisions from any other city law shall be construed to impose a duty on the city to enforce such other provision of law. This chapter is not intended to and shall not be construed or given effect in a manner that imposes upon the city or any officer or employee thereof a mandatory duty of care towards persons and property within or without the city so as to provide a basis of civil liability for damages, except as otherwise imposed by law.

(Ord. No. 775, § 5(Exh. B), 9-6-2011)