Berkeley Municipal Code Ch. 1.24 Abatement of Nuisances

A. The provisions in this chapter regarding pre-abatement notice and hearing requirements are hereby made applicable to all ordinances requiring the abatement of nuisances which are silent as to the procedures to be followed for the pre-abatement notice, summary abatement and/or hearing requirements, and to any other subsequently enacted ordinance declaring additional acts or omissions a nuisance.

B. The provisions in this chapter pertaining to the recovery of costs are applicable to the recovery of costs for all nuisance abatements effected by the City through its employees or by contract pursuant to any ordinance of the City unless an alternate procedure is specified in said ordinance or by other applicable law. (Ord. 6347-NS § 1, 1996; Ord. 6156-NS § 1, 1992)

This chapter provides authority for the City to recover the costs of inspection, enforcement and correction of violations of laws and ordinances to the full extent permitted by Government Code Section 54988 as it may be amended from time to time. Accordingly, provisions of this chapter which specify the process for creating, recording and collecting liens for abatement of nuisances may also be used for the recovery of said costs of inspection, enforcement and correction as well. (Ord. 6530-NS § 1, 2000)

A. The term "incidental expenses" as used in this chapter shall include, but not be limited to, the actual expenses and costs of the City in the conduct of proceedings under this chapter, preparation of notices, specifications and contracts, inspection of work, the costs of printing and mailings and administrative staff costs.

B. "Nuisance abatement lien" as used in this chapter means a lien on real property which may be foreclosed upon by the City in any court action.

C. "Owner" as used in this chapter, includes any person in possession of the affected premises, and any person having or claiming to have, any legal or equitable interest in the premises.

D. "Special assessment lien" as used in this chapter means a tax lien which may be recovered in the same manner as delinquent municipal taxes. (Ord. 6156-NS § 2, 1992)

Whenever the City determines that property in the City is maintained as a nuisance and declares said property a public nuisance pursuant to the appropriate Berkeley Municipal Code section or other law, the City shall:

A. Provide written notice to abate to the owner in the manner and in the form provided in this chapter.

B. The notice shall state the proper street address of the subject property and should be served personally or by first class mail, postage prepaid. Additionally, one copy of the notice shall be conspicuously posted on the property.

C. The notice shall advise the owner of a reasonable time limit, in no event less than seven calendar days, in which the owner shall take corrective action to remedy the nuisance, except as set forth in Section 1.24.040 of this chapter.

D. The notice shall specify the Berkeley Municipal Code sections or statute violated and state all the facts constituting the nuisance.

E. The notice shall specify the corrective action required, including temporary corrective action when appropriate.

F. The notice shall advise the property owner that failure to correct the violation will result in the City’s correcting the violation and collecting the charges by billing or by lien on the property.

G. The notice shall advise the owner of the right to file an appeal within 15 calendar days if the owner seeks to challenge the charge that a nuisance exists.

H. The notice shall advise the owner they must either correct the violation or request a hearing in order to avoid City abatement and liability for cost of abatement.

I. The notice shall advise the owner that failure to appeal shall constitute waiver of the right to an administrative hearing to contest the charge of nuisance. (Ord. 6530-NS § 2, 2000; Ord. 6156-NS § 3, 1992)

A. Any nuisance which the City reasonably determines to be imminently dangerous to the life, limb, health, or safety of the occupants of the property or to the public may be summarily abated in accordance with the procedures set forth in this section.

B. Actions taken to abate imminently dangerous property nuisances may include but are not limited to repair, removal or demolition of the condition creating the danger and/or the restriction from use or occupancy of the property on which the dangerous condition exists or any other abatement action determined by the City to be necessary.

C. Whenever the City determines that summary abatement is justified by an imminently dangerous condition, circumstance, or occurrence, the City shall give written notice to the property owner as to the nuisance. If the property owner cannot be located or the owner fails to take prompt appropriate action to abate the nuisance, the City may proceed to take abatement action authorized in this chapter to the extent necessary to remedy the immediate danger without further notice or right to a prior hearing.

D. Once summary abatement action has been completed, the property owner may contest the need for and cost of abatement action in the manner provided in this chapter. (Ord. 6156-NS § 4, 1992)

A. In the event the owner shall fail, neglect or refuse to comply with the notice to abate, within the prescribed time, and if no appeal has been filed, the City shall abate the nuisance.

B. Said abatement shall be pursued by City personnel or private contractor. The costs of abatement, including administrative and incidental expenses, shall be billed to the owner and shall be due and payable within 30 days thereafter.

C. The Council finds that an actual emergency exists, and that there is an urgent necessity for the preservation of life, health or property, whenever the City Manager summarily abates a public nuisance. In such cases, the City Manager may expend such sums as are necessary to abate the nuisance without the necessity of complying with the competitive bidding requirements of Section 67.4 of the City Charter, provided that nothing in this section changes or exempts the City Manager from any expenditure limit established by Chapter 7.18. (Ord. 6552-NS § 1, 2000; Ord. 6156-NS § 5, 1992)

In the event that the owner fails to consent to the City entering their property for the purposes of inspecting and/or abating a nuisance under this chapter, the City shall apply and be granted said warrants from the municipal court if cause exists pursuant to Code of Civil Procedure Section 1822.50 to issue said warrant. (Ord. 6156-NS § 6, 1992)

The owner may appeal the nuisance determination to the City by filing an appeal within 15 calendar days of the date of mailing of the notice to abate. The appeal shall identify the property and state the objections together with all material facts in support thereof. (Ord. 6156-NS § 7, 1992)

A. In the event the owner appeals the nuisance determination, the City shall schedule an administrative hearing before a hearing officer designated by the City.

B. Notice of hearing shall be served personally or by first class mail, postage prepaid. The notice shall specify the time and place when and where the designated hearing officer will hear and decide upon the objections raised by the owner. Such notice shall be served not less than five days, exclusive of Saturdays, Sundays, and holidays, prior to the time set for the hearing. Service shall be deemed complete at the time notice is personally served or deposited in the mail. (Ord. 6156-NS § 8, 1992)

Failure of the owner to appear at the hearing after notice has been served shall be deemed a waiver of the hearing and an admission by said owner of the nuisance charge. In the event of such failure to appear, the City may order that the nuisance be abated immediately thereafter. (Ord. 6156-NS § 9, 1992)

The hearing officer shall hear and rule on objections to abatement of the nuisance. The owner may appear at the hearing by counsel. The formal rules of evidence shall not apply. All witnesses shall be sworn and each party shall have the right to cross-examine adverse witnesses. The hearing may be continued from time to time. The ruling shall either allow or overrule the objections, or make such other determinations as are consistent with this chapter and shall be final except as provided in Section 1.24.130. (Ord. 6530-NS § 3, 2000; Ord. 6156-NS § 10, 1992)

The hearing officer shall notify the owner of their determination in writing, and may direct the owner to abate the nuisance at their expense within a specified time period to the extent the nuisance has been found to exist. The time period specified shall be subject to the limitations set forth in Section 1.24.030.C. (Ord. 6530-NS § 4, 2000; Ord. 6156-NS § 11, 1992)

A. If the nuisance is not abated within the time specified in the notice of decision, the City shall have the power to abate such nuisance without further notice, including the power to condemn, destroy, or demolish any property constituting the nuisance if the nuisance cannot feasibly be abated without destruction of such property. If the property owner fails to consent to the City’s entry on their property to abate the nuisance and has a reasonable expectation of privacy therein, the City shall seek an abatement warrant as set forth in Section 1.24.060.

B. Except as provided in Section 1.24.050.C, if sealed bids or proposals are required under Section 67 of the Charter to perform any abatement authorized by this section or any other provision of this code which authorizes abatement of nuisances or violations, the City may advertise for said bids by posting advertisements in the same manner and at the same location as required for ordinances, for five consecutive days. (Ord. 6552-NS § 2, 2000; Ord. 6530-NS § 5, 2000; Ord. 6156-NS § 12, 1992)

Review of the hearing decision shall be subject to judicial review pursuant to Ordinance No. 6087-N.S. (Chapter 2.96 of the Berkeley Municipal Code) and Code of Civil Procedure Sections 1094.5 and 1094.6. (Ord. 6156-NS § 13, 1992)

A. Notwithstanding any other provision of local law to the contrary, the costs incurred by the City in the abatement of a nuisance subject to the provisions of this chapter may be placed against the affected property as either a nuisance abatement lien or a special assessment lien pursuant to Government Code Section 38771, et seq. as amended from time to time or a lien pursuant to Government Code Section 54988 as amended from time to time.

B. The City may enforce a lien under this chapter in any manner permitted by law, including filing a civil action to either foreclose on its liens or to obtain a money judgment or both, or pursuing non-judicial foreclosure.

C. The City may elect, upon 30 days notice to all known and record owners of the affected property, to convert any nuisance abatement lien authorized by this chapter to a special assessment lien, or vice versa. Costs recoverable under this chapter shall include those categories of costs and fees set forth in Civil Code Section 3496, regardless of the type of nuisance involved. (Ord. 6776-NS § 1 (part), 2003; Ord. 6546-NS § 1, 2000; Ord. 6530-NS § 6, 2000; Ord. 6347-NS § 2, 1996; Ord. 6156-NS § 14, 1992)

The City shall keep an itemized account of the expenses, including incidental expenses, incurred by the City in the abatement. Upon completion of the abatement, the City will prepare a report specifying the work done, the itemized and total cost of the work, a description of the real property upon which the abatement was located and the names and addresses of the owner or owners. (Ord. 6156-NS § 15, 1992)

If the owner fails to pay the total costs demanded by the City for the abatement within 45 days after the demand for payment was mailed, the City may proceed to recover its costs pursuant to this chapter. (Ord. 6530-NS § 7, 2000; Ord. 6156-NS § 16, 1992)

A. If the owner fails to pay the total costs due within the time limit provided for in Section 1.24.160, the City shall provide the owner with a written notice:

1. of the proposed lien;

2. a description of the basis for the amounts comprising the lien;

3. giving the owner a minimum of 45 days to pay costs; and

4. notice that if the owner contests the costs, they have ten calendar days from the date of service of the notice to file objections to the costs and request a hearing on the reasonableness of the costs.

B. The failure of the owner to request a hearing within ten calendar days of the date of service of the notice shall constitute a waiver of the owner’s right to a hearing.

C. Service of notice under this section shall be by first class and certified mail to the last known address of the owner of the property, and may also be by any other means reasonably calculated to provide actual notice, including but not limited to fax, personal delivery, posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Government Code Section 6062, or any other comparable manner. (Ord. 7126-NS § 1, 2010; Ord. 6546-NS § 2, 2000; Ord. 6530-NS § 8, 2000; Ord. 6156-NS § 17, 1992)

A. If the owner files objections and requests a hearing in a timely fashion, a hearing shall be held before the City Council.

1. At least ten days prior to the date of the hearing, the City shall mail by certified mail, postage prepaid, the owner notice of the date, time and location of the hearing.

2. The City Council shall hear and pass upon the owner’s objections or protests.

3. The City Council’s decision shall be final and conclusive and subject to review pursuant to Code of Civil Procedure Sections 1094.5 and 1094.6. The City Clerk shall prepare and preserve a full record of the proceeding for 120 days after the close of the hearing. (Ord. 6156-NS § 18, 1992)

A. If the City Council determines that the proposed lien shall become a lien, it may also cause a notice of lien to be recorded. This lien shall attach upon recordation in the office of the County Recorder of the county in which the property is situated and shall have the same force, priority, and effect as a judgment lien, not a tax lien.

B. The notice shall, at a minimum, identify the record owner or possessor of the property, set forth in the last known address of the record owner or possessor, set forth the date upon which the lien was created against the property, and include a description of the real property subject to the lien and the amount of the lien.

C. The notice shall be served by any means reasonably calculated to provide actual notice, including but not limited to first class mail, fax or personal delivery. If the owner of record, after diligent search cannot be found, then notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Government Code Section 6062.

D. A nuisance abatement lien may be foreclosed by an action brought by the City.

E. The City may recover from the property owner all costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien. (Ord. 6530-NS § 9, 2000; Ord. 6156-NS § 19, 1992)

In addition to any other remedy, the City may recover the costs of the abatement by making the costs of the abatement a special assessment against the property on which the nuisance was abated pursuant to Government Code Section 38773.5. (Ord. 6546-NS § 3, 2000; Ord. 6156-NS § 20, 1992)

In addition to any other remedy, the City may recover the costs of the abatement by making the costs of the abatement a nuisance assessment lien against the property on which the nuisance was abated pursuant to Government Code Section 38771, et seq. as amended from time to time. (Ord. 6776-NS § 1 (part), 2003; Ord. 6546-NS § 4, 2000)

The City Attorney may bring an action under this section on behalf of the City for injunctive relief, including an action for public sale of the property to pay any outstanding liens. In any such action, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs; provided, that, pursuant to Government Code Section 38773.5, attorneys’ fees shall only be available in an action or proceeding in which the City has elected, at the commencement of such action or proceeding, to seek recovery of its own attorneys’ fees. In no action or proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the City in the action or proceeding. (Ord. 7172-NS § 1, 2011; Ord. 6156-NS § 21, 1992)

If any part or provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this chapter are severable. (Ord. 6156-NS § 22, 1992)