Belvedere Municipal Code Ch. 8.12 Nuisance Abatement

Sections:

• 8.12.010 Nuisances designated.

• 8.12.015 Abatement by repair, rehabilitation, demolition or removal.

• 8.12.020 Abatement procedures—Established—Statutory authority.

• 8.12.025 Recovery of attorneys’ fees.

• 8.12.030 Notice—Posting and service requirements—Form.

• 8.12.040 Proposed abatement—Hearing required—City Council authority.

• 8.12.050 Abatement by City — Procedures generally—Proceeds from sale or salvage.

• 8.12.060 Abatement by City—Costs—Report—Hearing—Assessed as lien when.

• 8.12.070 Abatement by City—Authority to have work performed by contract — Requirements.

• 8.12.080 Summary abatement.

• 8.12.090 Declaration of nuisance by judicial decree.

• 8.12.100 Judicial relief.

• 8.12.110 Alternative remedy.

The provisions of this Chapter shall be applicable to any condition defined as a nuisance by this Code, by any other ordinances or resolutions of the City Council, or by statutes of the state. Additionally, it shall be unlawful and it is declared to be a public nuisance for any person owning, leasing, occupying or having charge of any residential or commercial property in the City to maintain the property in such a manner that any of the following conditions are found to exist thereon:

A. Land, the topography, geology, or configuration of which, whether in a man-made state or as a result of grading operations, excavation, removal of a structure, or fill, causes erosion, subsidence, or surface water drainage problems of such magnitude as to be injurious to the public health, safety and welfare or to adjacent properties, or which violates state or federal regulations or local ordinances regarding stormwater runoff;

B. Buildings or structures constructed without applicable permits or approvals, or which are partially destroyed or are permitted to remain in a state of partial construction for more than twelve months from initial issuance of the building or demolition permit without evidence of substantial construction activity leading to the completion of the permitted work in a timely manner;

• C. Doorways, windows or other openings into vacant structures which are not secured and maintained from public access;

• D. Accumulated trash and debris;

• E. Dead, decayed, diseased or hazardous trees, weeds and other vegetation on developed property which:

  1. Creates a danger to public health, safety and welfare, or

  2. Blocks or obstructs a sidewalk, street, driveway or alley;

• F. Landscape features failing to meet minimum levels of maintenance and care as follows:

  1. Landscape irrigation pipes and sprinkler heads, where installed, shall be maintained in good working order so as to cover all landscaped areas without creating excessive runoff,

2. All walls, fences, trash enclosures and other structures shall be maintained free of significant surface cracks, dry rot, warping, missing panels or blocks which either (i) threaten structural integrity, or (ii) result in a dilapidated, decaying, disfigured or partially ruined appearance;

G. Maintenance of the premises in a manner so out of harmony or conformity with the maintenance standards of adjacent properties as to cause material diminution of the enjoyment, use or property values of such adjacent properties;

H. Storage on private property of products which are items of commerce that are stored as part of conducting a private business, and which are visible from a public right-of-way or neighboring properties;

I. Except in fully enclosed garages, the parking or storage of abandoned or nonoperational motor vehicles, boats, trailers or motorcycles, or operational motor vehicles, boats, trailers, or motorcycles which have been placed on blocks or otherwise immobilized;

• J. Private sewer lines which have been determined to be illegally connected or in a leaking, broken or clogged condition;

• K. Any attractive nuisance dangerous to children including, but not limited to:

  1. Any swimming pool, pond, spa or other body of water or excavation which is abandoned, unattended, unfiltered, or is otherwise unsafe, or does not conform to City or state statutes regulating pool safety enclosures,

  2. Buildings which are abandoned, partially destroyed or left for a period of over twelve months in a state or partial construction without substantial construction activity,

  3. Abandoned, neglected or broken motor vehicles, boats, machinery or equipment;

L. Performance of work, other than emergency repairs or minor maintenance which will be completed in seventy-two hours or less, on motor vehicles, vehicle engines or parts, boats, trailers, or household fixtures or appliances, on a public right-of-way, or performance of such work in yard areas of residential properties so as to be visible from a public right-of-way or neighboring properties;

• M. Use of the public right-of-way for temporary or permanent storage and/or cleaning of commercial kitchen appliances or utensils;

N. Docks which are in a deteriorated condition resulting in the threat of breaking loose from their moorings, or which have broken loose from their moorings, or which have loose, broken or missing planks;

• O. Storage on private property of construction vehicles or materials for more than thirty days without evidence of substantial construction activity taking place;

• P. Abandoned utility lines. (Ord. 95-3 § 1, 1995; Ord. 76-4 § 1, 1976; prior code § 13A-2.)

All or any part of private property found, as provided herein, to constitute a public nuisance shall be abated by repair, rehabilitation, demolition or removal pursuant to the procedures set forth herein, or, when applicable, pursuant to other provisions of state or local law, including the Uniform Housing or Building Codes adopted by the City in Title 16 of this Code. (Ord. 95-3 § 2, 1995.)

Pursuant to Sections 38771 and 38773, et seq., of the Government Code of the state, the City Council establishes the procedures set forth in this Chapter for the purpose of abatement of public nuisances. The procedures set forth herein shall not be exclusive and shall not in any manner limit or restrict the City from enforcing other City ordinances or state laws when applicable, including but not limited to the Uniform Housing Code, or abating public nuisances in any other manner provided by law. (Ord. 95-3 § 3, 1995; Ord. 76-4 § 1, 1976; prior code § 13A-1.)

At the initiation of any action, administrative proceeding or special proceeding to abate a nuisance under this Chapter, the City may elect to seek recovery of its attorneys’ fees incurred in such action or proceeding. If the City so elects, then the prevailing party in such action or proceeding shall be entitled to recover its attorneys’ fees from the other party; provided, however, that in no event shall any prevailing party be entitled to recover an amount of attorneys’ fees which exceeds the amount of reasonable attorneys’ fees which the City has incurred in the action or proceeding. (Ord. 98-7 § 1, 1998.)

A. Upon determining that a nuisance may exist, the City Manager, building official or other appropriate enforcement authority may conspicuously post notices on the property on which the nuisance exists, as follows:

1. One notice to each separately owned parcel of property of not over fifty feet frontage;

2. Not more than two notices to any such parcel of one hundred feet frontage or less;

3. Notices at not more than one hundred feet apart if the frontage of such a parcel is greater than one hundred feet.

• B. The notice shall also be mailed to each person to whom such described property is assessed on the last equalized municipal assessment roll available on the date the resolution was adopted by the City Council

C. The notices posted shall be posted and mailed at least fifteen days prior to the time for hearing objections by the City Council.

• D. Such notice shall be substantially in the following form:

“ORDER TO SHOW CAUSE RE: ABATEMENT OF PUBLIC NUISANCE.

“TO: :

“YOU ARE HEREBY NOTIFIED to appear before. the Belvedere City Council on the day of 19 , at 450 San Rafael Avenue, Belvedere, California, at the hour of o’clock m., or as soon thereafter as the matter may be heard, and show cause, if any you have, why that certain , should not be condemned as a public nuisance and said nuisance be abated by its removal or , and why the cost of such abatement should not be assessed upon the property from which the nuisance is abated, such cost to constitute a lien upon said property until paid.

“DATED this day of , 19___. “City Clerk”

E. If the City elects to seek recovery of its attorneys’ fees incurred in the nuisance abatement action or proceeding, the notice required by this Section shall also give notice that such attorneys’ fees will be included in the costs of abatement to be assessed upon the property. (Ord. 98-7 § 2, 1998; Ord. 76-4 § 1, 1976; prior code § 13A-3.)

At the time stated in the notice given pursuant to this Chapter, the City Council shall hear and consider all evidence, objections or protests, if any, regarding the existence and proposed abatement of such public nuisance. The hearing may be continued from time to time. The City Council shall, after considering all evidence, protests or objections, render a decision as to the existence of a nuisance, such decision to be by resolution and shall contain findings of fact and a determination of the issues presented. After final action is taken by the City Council finding that a public nuisance exists, the council shall by resolution order an appropriate City officer to abate the nuisance. The City Council may further order that the costs of any such abatement will be assessed upon the property from which the nuisance is abated and that such costs shall constitute a lien upon such property until paid. If, pursuant to Section 8.12.030(E), the City has given notice that it will seek to recover its attorneys’ fees incurred in the nuisance abatement action or proceeding, then the City Council may include the amount of attorneys’ fees incurred by the City as part of the costs to be assessed upon the property under this Section. The decision of the City Council is final. (Ord. 98-7 § 3, 1998; Ord. 76-4 § 1, 1976; prior code § 13A-4.)

Following the passage of any resolution directing the abatement of a nuisance, the City officer authorized to abate such nuisance may direct any officer or his assistant, deputy, employee, contracting agent or other representative to enter upon private property for the purpose of abating the public nuisance. Should it be practicable to sell or salvage any material procured from such abatement, it may be sold at private or public sale at the best price obtainable, and an itemized account of the proceeds shall be maintained by the authorized City officer. Such proceeds, if any, shall be deposited in a general fund of the City and shall be credited against the cost of abatement as provided for in this Chapter. (Ord. 76-4 § 1, 1976; prior code § 13A-5.)

A. The City officer abating a nuisance under this Chapter shall keep an account of the cost of abatement and shall render an itemized written report to the City Council, showing the cost of removing or abating the nuisance.

B. Before the report is submitted to the City Council, a copy shall be posted for at least three days in the manner provided for in Section 8.12.030, with a notice of the time when the report will be submitted to the City Council for confirmation. A copy of the account and notice shall also be mailed to the owner of the property at the address shown on the last equalized assessment roll at least ten days prior to submission to the City Council.

C. At the time fixed for receiving and considering the report, the City Council shall hear it and any objections by the property owners liable to be assessed for the work of abatement. Thereupon the City Council may make such modifications in the report as it deems necessary, after which, by order or resolution, the report shall be confirmed.

D. The cost of such abatement upon confirmation by the City Council, constitutes a special assessment against the property and a personal liability of the owner of such property. After, the assessment is made and confirmed, it is a lien upon the parcel. Such lien shall attach upon recordation in the office of the county recorder of a certified copy of the resolution of confirmation.

E. After confirmation of the report, a certified copy shall be given to the assessor and tax collector, who shall add the amount of the assessment to the next regular tax bill levied against the property for municipal purposes.

F. A certified copy shall also be given to the county auditor, who shall enter the assessment on the county tax roll opposite the parcel of land. The amount of the assessment shall be collected at the time and in the manner of ordinary municipal taxes. If delinquent, the amount is subject to the same penalties and procedure of foreclosure and sale provided for ordinary municipal taxes.

G. All laws relating to the levy, collection and enforcement of county taxes shall apply to such special assessment taxes. The City Council may enforce the personal liability of the owner, as aforesaid, by directing the City attorney to file suit in a court of competent jurisdiction to collect the cost of abatement. (Ord. 76-4 § 1, 1976; prior code § 13A-6.)

Abatement of the nuisance may, in the discretion of the City Council, be performed by contract awarded by the council on the basis of competitive bids let to the lowest responsible bidder pursuant to Sections 37903, 37904, 37905 and 37935, inclusive, of the Government Code of the state. In such event, the contractor shall keep the account and submit the itemized written report for each separate parcel of land, required by Section 8.12.060. (Ord. 76-4 § 1, 1976; prior code § 13A-7.)

A. Notwithstanding any of the provisions of this Chapter, a public nuisance which is an emergency and which, if unabated, constitutes a threat to the public safety, health and welfare, may be summarily abated upon the determination of the City Manager-Police Administrator that such nuisance exists and does, in fact, constitute a threat to the public safety, health and welfare.

B. Upon such determination, the City Manager-Police Administrator may direct any officer of the City, or his assistant, deputy, employee or contracting agent, or other representative, to enter upon private property for the purpose of abating the public nuisance. Should it be practicable to sell or salvage any material procured from such abatement, it may be sold at public or private sale at the best price obtainable, and an itemized account of the proceeds shall be maintained by the City Manager-Police Administrator. Such proceeds, if any, shall be deposited in a general fund of the City and shall be credited against the cost of abatement as provided for in this Chapter.

C. Such summary abatement is not subject to the procedures set forth in Sections 8.12.030 through 8.12.050. (Ord. 76-4 § 1, 1976; prior code § 13A-8.)

If a public nuisance has been declared by judicial decree, after the defendant receives notice of entry of judgment as prescribed by law, and the time within which an appeal may be filed has expired, all procedures of Sections 8.12.050 and 8.12.060 shall be applicable and shall be followed in the same manner as if a resolution of the City Council had been passed declaring a public nuisance to exist. (Ord. 76-4 § 1, 1976; prior code § 13A-9.)

Following the passage of any resolution finding that a nuisance exists, the City Council, in lieu of directing the abatement by the appropriate City officer, as provided above, may direct the City attorney to file an action in a court of competent jurisdiction seeking judicial relief to abate the nuisance. (Ord. 76-4 § 1, 1976; prior code § 13A-10.)

The procedures and remedies set forth in this Chapter are an alternative to any other procedure allowed by law. (Ord. 76-4 § 1, 1976; prior code § 13A-11.)