Chapter 23.414 — NUISANCE ABATEMENT

Sections: 23.414.010 Purpose. 23.414.020 Enforcement Responsibility. 23.414.030 Violations a Misdemeanor. 23.414.040 Nuisances Prohibited. 23.414.050 City Attorney Action. 23.414.060 Abatement Procedures. 23.414.070 Statements of Violations. 23.414.080 Remedies. 23.414.090 Recovery of Costs. 23.414.100 Private Right of Action.

This chapter establish procedures to abate public nuisances associated with land uses, structures, and events as regulated by the Zoning Ordinance. These procedures supplement generally applicable code enforcement provisions in Municipal Code Title 1 (General Provisions). (Ord. 7787-NS § 2 (Exh. A), 2021)

The City Manager, or their designee, shall enforce the requirements of this chapter. (Ord. 7787-NS § 2 (Exh. A), 2021)

Any violation of the Zoning Ordinance is a misdemeanor but may be cited or charged, at the City’s discretion, as an infraction. In all other respects, the provisions of Municipal Code Chapter 1.20 (General Penalty) apply. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Public Nuisance Prohibited. A land use, structure, or event shall not cause a public nuisance as defined in Subsection (B) below.

B. Public Nuisance Defined. A use, structure, or event that meets any of the following criteria is a public nuisance.

1. Any of the following activities: disturbances of the peace, illegal drug activity including sales or possession thereof, public drunkenness, drinking in public, harassment of passers-by, gambling, prostitution, public vandalism, excessive littering, excessive noise (particularly between the hours of 11:00 p.m. and 7:00 a.m.), noxious smells or fumes, curfew violations, lewd conduct or police detention, citations or arrests, or any other activity declared by the City to be a public nuisance.

2. A violation of any City, state, or federal ordinance, law, or regulation.

3. A use or activity, other than one that takes place at a dwelling and is sponsored by a resident of that dwelling, that is conducted in a manner that results in a disturbance of any kind that requires six Berkeley Police Department patrol officers after 11:00 p.m. and before 2:00 a.m., or three Berkeley Police Department patrol officers at any other time, to quell such disturbance. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Immediate Action. The City Attorney may take immediate action to abate, remove, and enjoin a public nuisance in the manner provided by law.

B. Judicial Relief. To abate a public nuisance, the City Attorney may apply for relief from the courts to:

1. Remove a use or structure;

2. Prevent the establishment of a use or structure;

3. Prevent the continued operation of a use or structure; or

4. Prevent the removal or demolition of a structure. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Initiation.

1. Proceedings to abate a nuisance may be initiated by Zoning Officer, Zoning Adjustments Board (ZAB), or
City Council referral.

2. A nuisance abatement referral shall identify the subject property, the nature of the violation, and the
reason for the proposed abatement.

3. After receiving a nuisance abatement referral, the Zoning Officer shall schedule the matter for a public
hearing.

B. ZAB Recommendation.

1. Public Hearing.

(a) The ZAB shall hold a public hearing on the proposed abatement in compliance with Section
23.404.050 (Public Hearing and Decision).

(b) The Department shall provide notice of the hearing to the property owner, property occupants, the
person who requested proceedings under this chapter (if any), and any person who has filed written
request of notice.

2. Recommendation.

(a) The ZAB shall recommend that the City Council determine whether a nuisance exists and, if so, the
appropriate remedy.

(b) The ZAB recommendation shall be:

i. Based on the evidence, testimony, and facts presented to the ZAB at the hearing;

ii. Supported by written findings; and

iii. Issued within 35 days after the conclusion of the hearing.

3. Final Decision. A ZAB recommendation to abate a nuisance shall be deemed a final decision if the
property owner consents to the recommendation within 10 days after the recommendation is made. In such
a case, there shall be no City Council review and action on the matter.

4. Report to City Clerk. The Department shall file the ZAB’s recommendation with the City Clerk within 14
days following the recommendation. The City Clerk shall present a ZAB recommendation to the City Council at
soonest possible regular City Council meeting.

C. City Council Action.

1. Public Hearing. The City Council shall hold a public hearing on the proposed abatement in compliance
with Section 23.404.050 (Public Hearing and Decision). The hearing shall occur within:

(a) 60 days of the ZAB recommendation if the ZAB recommends abatement; and

(b) 30 days of the City Clerk report to the City Council of the ZAB decision.

2. Decision. After hearing, the City Council may find that the use, structure, or event constitutes a public
nuisance and may impose any remedy provided for in this chapter, or take no action.

D. Notice of Decision.

1. If the City Council makes a nuisance determination, the City Clerk shall issue a Notice of Decision
describing the City Council’s action, with its findings.

2. The City Clerk shall mail the notice to any permit holder, the property owner, the person who requested proceedings under this chapter (if any), and any person who requests such a notification.

   3. The City Clerk shall file a copy of the Notice of Decision with the Zoning Officer. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Statement Filed with County Recorder.

1. If a person does not comply with an order of the Zoning Officer to correct a violation of this chapter
within the specified time as provided in Chapter 1.24 (Abatement of Nuisances), the City may file a statement
in the Office of the County Recorder that:

(a) Describes the property and nature of the violation; and

(b) Certifies that the property violates this chapter and that the owner has been so notified.

2. The City shall record proof of service with the filed notice and order.

B. Statement Filed after Correction. When a violation is corrected, the Zoning Officer shall file a new statement with the County Recorder certifying that the property is no longer in violation of this chapter. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Potential Remedies. If the City makes a nuisance determination, the City may impose any of the following remedies:

1. Enjoin the use in whole or in part.

2. Impose reasonable conditions upon any continued operation of the use, including existing non-
conforming uses.

3. Require continued compliance with newly imposed any conditions.

4. Require the permit holder to guarantee compliance with newly imposed conditions.

B. Administrative Penalty. In addition to or as an alternative to any other remedy, the City may impose an administrative penalty of up to $10,000 jointly and severally on persons responsible for the nuisance and/or the property owner. The City may also impose a condition that the property owners pay the costs of all City services (including but not limited to services for public safety and by the Department of Public Works) necessary to address continuing and unabated public nuisances once the City Council has determined that a public nuisance exists.

C. Remedies Are Cumulative. The procedures and remedies in Subsections (A) and (B) above are cumulative and in addition to any other procedures and remedies to which the City may be entitled by law or equity. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Abatement Proceedings.

1. The City may recover the costs to administer abatement proceedings in accordance with Sections 1.24.140 through 1.24.210 of Municipal Code Chapter 1.24 (Abatement of Nuisances), except as provided in Sub-paragraph (2) below.

2. The hearing provided by Section 1.24.180 shall be held by the City Manager or his/her designee and may be appealed to the City Council within ten days after a decision is mailed. The Council shall hold a hearing on appeals as specified in Section 1.24.180.

B. Remedies.

1. If the City imposes a remedy authorized in Section 23.414.080 (Remedies), the City may recover costs for
time spent administering the remedy.

2. Payment of City costs shall be a condition of continued operation of a use or structure subject to a
remedy.

3. Payments submitted under this Subsection B (Remedies) shall be deducted from any payments
submitted under Subsection A (Abatement Proceedings) above. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. General. Any resident of the City may bring a private action in a court of law for injunctive and compensatory relief to prevent or remedy a public nuisance as defined in this chapter.

B. Prior Notice Required. No action may be brought under this section unless and until the prospective plaintiff has given the City and the prospective defendant at least 30 days written notice of the alleged public nuisance and the City has failed to initiate proceedings under this chapter within that period, or after initiation, has failed to diligently prosecute.

C. Recovery of Costs. In any action prosecuted under this section a prevailing plaintiff may recover reasonable attorneys’ fees. (Ord. 7787-NS § 2 (Exh. A), 2021)

Division 5. Glossary