Banning Municipal Code Art. III Abatement—Hearing on Abatement

Any person may abate the nuisance by rehabilitation, repair, removal, or demolition at any time within the abatement period provided in the notice to the property owner. Once advised of such abatement, the city shall inspect the premises to verify that the condition has been abated. This section does not grant right of entry and control of premises to any person not otherwise having such right.

(Code 1965, § 11C-35.)

Within ten days of the service, mailing, publishing, or posting of the notice to abate public nuisance, whichever is later, the owner, lessee, or occupant in control of the premises described in the notice to abate may request a hearing before the nuisance abatement hearing officer regarding the requirements of the notice to abate. Such request shall be made in writing, shall state the objections of the person filing the request, shall state the interest in the property of the person filing the request, the name and address of all persons and businesses known to such applicant to have an interest in the real property and shall be filed with the city clerk. The matter shall be assigned to the nuisance abatement hearing officer and set for hearing. The person filing the request shall be entitled to one continuance of up to fourteen additional days. The person filing the request, and all others having interest in the premises, shall be notified of the time and place of the hearing before the nuisance abatement hearing officer by a notice of hearing to abate public nuisance as set forth below.

(Code 1965, § 11C-36.)

Any and all requests pursuant to Section 8.48.430 shall be heard by the nuisance abatement hearing officer who shall be the city manager or his designee. The decision of the nuisance abatement hearing officer shall be final unless an appeal to the city planning commission is filed pursuant to Section 8.48.540.

(Code 1965, § 11C-37.)

If a request for hearing is filed pursuant to section 8.48.430, a notice of hearing to abate public nuisance shall be prepared in substantially the following form:

NOTICE OF HEARING TO ABATE PUBLIC NUISANCE

To all persons having any interest in the premises having assessor's parcel number _______-_______-_______ and known and described as ___________ in the City of Banning:

Notice is hereby given that you may appear before the Nuisance Abatement Hearing Officer at the hearing being held on the _______ day of ________, 20___, at City Hall located at 99 E. Ramsey Street, Banning, California, at _______ A.M./P.M., or as soon thereafter as the matter may be heard, on the appeal of ___________ ___________ from a finding by the City of Banning that certain unsafe, dangerous, hazardous or obnoxious conditions exist on said premises, should be declared a public nuisance and said nuisance should be abated by removal or repair of said unsafe, dangerous, hazardous or obnoxious conditions.

Upon the Nuisance Abatement Hearing Officer's finding that the same constitutes a public nuisance, the nuisance shall be abated by the City of Banning, in which case the cost of such removal or repair and abatement shall be assessed upon the premises on which said conditions exist, and such costs will constitute a lien upon such premises unless and until paid in full and shall alternatively be placed on the equalized assessment roll as a special assessment against the property.

The conditions upon said premises which are alleged to cause them to be a public nuisance are as follows:

_____ _____ _____ _____

Date:___________

______________

Code Enforcement Manager

City of Banning

(Code 1965, § 11C-38.)

The nuisance abatement hearing officer shall, at the scheduled time as specified in the notice of hearing to abate public nuisance, proceed to hear and consider any relevant testimony or evidence offered by the building official, chief, health officer, other officials or employees of the city or other qualified witnesses, as well as the owner, a responsible person in charge and control of the premises, his representatives, a mortgagee or beneficiary under any trust deed, lessee, any other person having any estate or interest in such premises, and any other competent person who may be present and desire to testify, respecting:

A. The condition of the affected premises;

B. The estimated cost of abating the alleged nuisance by repair or removal; and

C. Any other pertinent matters.

The nuisance abatement hearing officer may continue the hearing from time to time as he shall deem advisable.

(Code 1965, § 11C-39.)

The hearing shall be conducted informally, and the technical rules of evidence shall not apply, except that irrelevant and unduly repetitious evidence shall be excluded. During the course of the hearing, the hearing officer may visit and inspect any premises involved in the proceeding and may receive oral testimony of any sworn or unsworn witness.

(Code 1965, § 11C-40.)

Upon conclusion of the hearing, the nuisance abatement hearing officer shall consider the evidence presented and shall, make written findings of fact, based upon the evidence, to support his or her decision and shall make his or her determination and conclusion with respect to the alleged public nuisance. The ruling shall be made by the nuisance abatement hearing officer within thirty days of the close of such hearing, and copies thereof shall be served upon all interested parties in the same manner as set forth in Sections 8.48.390 through 8.48.410. Failure of the owner or other persons having interest in the affected premises to appear at or be represented at the hearing shall in no way affect the validity thereof. The ruling shall contain a notice that appeal to the city planning commission, if desired, must be sought by filing a notice of appeal with the city clerk within fifteen days from the date of the decision in accordance with this chapter.

(Code 1965, § 11C-41.)

If, from evidence received at the hearing, the nuisance abatement hearing officer determines that the premises or any portions thereof are unsafe or dangerous and a public nuisance, then he shall, by written ruling, order the nuisance abated. The order to abate public nuisance shall set forth the following:

A. A statement of the particulars which render the premises obnoxious or unsafe and a public nuisance;

B. A statement of the things required to be done to abate the nuisance;

C. The time within which the work required to abate must be commenced;

D. A reasonable time within which the required abatement shall be completed;

E. That the occupant, lessee, or other person in possession or charge, or any mortgagee, beneficiary under any deed of trust, or other person having interest or estate in such premises, may at his own risk, abate the nuisance;

F. That appeal to the city planning commission, if desired, must be sought by filing a notice of appeal with the city clerk within fifteen days from the date of the decision in accordance with Section 8.48.540.

(Code 1965, § 11C-42.)

Any commercial use which is permitted, grandfathered, or not otherwise currently required to have a conditional use permit to conduct its current operations as of the effective date hereof, may be made subject to the requirements to obtain a conditional use permit for its continued operation by the nuisance abatement hearing officer upon finding by that hearing officer that such use has been conducted in a manner which is detrimental to the health, safety, or welfare of the community. Such findings are not required to be limited to violations of any specific provisions of this Code. By way of this example, commercial uses include but are not limited to: motels, mini-marts, rentals of facilities in multifamily dwellings. The requirements for a conditional use permit may be imposed only after written notice to the owner of the subject parcel and a public hearing before the hearing officer in the manner set forth in this chapter for notice and hearing.

(Code 1965, § 11C-42.1.)

The city manager shall cause copies of the order to abate to be posted upon the premises involved and served in the manner and upon the persons prescribed in Sections 8.48.390 through 8.48.410.

(Code 1965, § 11C-43.)

The property owner, lessee, occupant, or person having charge or control of the property, may, at his own expense, abate the nuisance as prescribed by the order to abate prior to expiration of the abatement period set forth in the order. If the nuisance has been inspected by the representative of the city and has been abated in accordance with the order, proceedings shall be terminated.

(Code 1965, § 11C-44.)

Whenever no appeal has been taken for a notice to abate public nuisance or such notice or an order to abate public nuisance upon a premises, or any portion thereof, has not been complied with within the time set, the city manager shall have the power, in addition to any other remedy provided for in this chapter, to:

A. Cause the premises to be vacated until such time as the nuisance has been abated;

B. Cause the nuisance upon the premises, or any portion thereof, to be abated and the premises restored to a safe condition. Immediately upon completion of such abatement, the city manager shall cause a notice of such completion to be recorded in the office of the county recorder, Riverside County, state of California. Nothing herein shall prevent the city from contracting with an independent contractor to perform such work as may be necessary to abate the nuisance.

(Code 1965, § 11C-45.)

A. Whenever any person is aggrieved by any final order of the hearing officer issued pursuant to this chapter, such person may appeal to the planning commission the issuance of said order by filing a written notice of appeal therefrom no later than fifteen days from the date of decision. A written notice of appeal shall be filed with the city clerk and shall state the objections of the person filing the notice and shall state the interest in the property of the person filing the notice.

B. The city clerk shall set the matter for hearing at the next regular city planning commission meeting at least twenty-one days after the date of the mailing of the notice of hearing on the appeal. The person filing the appeal shall be entitled to one continuance of up to fourteen additional days. The city clerk shall give notice of the time and place of the hearing before the planning commission to all interested parties in the same manner as set forth in Sections 8.48.390 through 8.48.410. The hearing shall be conducted de novo. The planning commission may assign an ad hoc committee to take evidence in the matter. The decision of any such ad hoc committee shall be final.

C. The hearing before the planning commission, or its assigned ad hoc committee shall be conducted in a manner consistent with the provisions of Sections 8.48.460 and 8.48.470. After the hearing, the planning commission may, by written resolution, affirm, reverse or modify, in whole or in part, any final decision or order of the hearing officer which is appealed from. The written resolution shall be issued within thirty days of the close of the hearing. Failure of the owner or other persons having interest in the affected premises to appear at or be represented at the hearing shall in no way affect the validity thereof.

D. The city clerk shall serve the written resolution representing the decision of the planning commission on the appeal on all interested parties in the same manner as set forth in Sections 8.48.390 through 8.48.410.

(Code 1965, § 11C-46.)