Berkeley Municipal Code Ch. 11.40 Abatement Procedures

*See Chapter 1.24 for abatement of nuisance by City.

The procedures set forth in this chapter shall apply to abatement of public nuisances as declared in this title. The proceedings provided by this chapter are alternatives to each other, except that emergency abatement proceedings in Sections 11.40.130 through 11.40.160 may be utilized only in those certain circumstances as therein set forth. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 1 § 1, 1976)

Each condition of property which is a violation of this code is hereby declared to be a public nuisance and may be abated by the procedures set forth in this chapter. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 1 § 2, 1976)

Whenever it comes to the attention of the chief of environmental health that any public nuisance, as defined in this title, exists on any premises within the City, the chief of environmental health may request the City Manager to direct the City Attorney to bring a civil action to abate the nuisance. Such action may be brought in the name of the City of Berkeley on behalf of the people of the City of Berkeley. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 2 § 1, 1976)

Whenever it comes to the attention of the chief of environmental health that any condition exists within the City which may constitute a public nuisance, as defined in this title, the chief of environmental health shall cause the matter to be investigated and, if the investigation so warrants, shall declare such condition to be a public nuisance. The declaration shall specify the nature and location of the condition, the measures necessary to abate such condition, and the date of the declaration. In the event the property owner fails to abate the nuisance as requested by the chief of environmental health and when additional work by the City is required, a fee for investigation and inspection will be charged, which fee is set forth in Section 12.04.030 of this code. Said fee shall be included with other costs of abatement incurred by City, and said costs shall be deemed a lien as set forth in Section 11.40.120 of this code. (Ord. 5460-NS § 1, 1982; Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 1, 1976)

The chief of environmental health shall notify, in writing, the occupant and the owner or agent of the premises whereon the nuisance exists of the existence of such nuisance, and require the abatement of such nuisance. The declaration of public nuisance issued under Section 11.40.040 may be utilized as the notice provided it contains all information required to be in the notice. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 2, 1976)

In addition to the information specified in Sections 11.40.040 and 11.40.050, the notice to abate shall also designate a date for hearing on objections not less than ten nor more than thirty days after service of the notice to abate. The time and place of such hearing shall also be stated in the notice. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 3, 1976)

The notice to abate may be served personally upon, or may be sent by prepaid certified United States mail to, the occupant and the owner or agent of such premises. Service by mail shall be deemed completed upon deposit of the mail in a United States mailbox. The notice to abate shall also be posted on the premises in a conspicuous manner at the same time. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 4, 1976)

Before the date of the hearing on objections, the occupant and owner or agent of the premises whereon the public nuisance exists may read and copy (at their own expense) any written reports or other memoranda which were relied upon by the chief of environmental health in declaring the public nuisance in question, or which may be introduced by the City at the hearing on objections. The occupant and owner or agent of the premises shall also have the right to request and receive a list of witnesses who may testify for the City at the hearing. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 5, 1976)

At the time and place specified in the notice to abate, the chief of environmental health or their designee shall hear and rule on objections to abatement of the nuisance. The occupant and/or owner or agent of the premises may appear at the hearing by counsel. 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, and shall be final. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 6, 1976)

If the objections are overruled, the occupants and owner or agent of the premises shall be so notified in writing and directed to abate the nuisance at their expense within a specified time period. The time so specified shall be reasonable given the magnitude and severity of the nuisance. If some or all objections are allowed, the order to abate shall be modified as necessary. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 7, 1976)

If the nuisance is not abated within the time specified in the notice of decision, the chief of environmental health shall have the power to abate such nuisance without further notice including the power to condemn and destroy any property constituting the nuisance if the nuisance cannot be abated without destruction of such property. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 8, 1976)

The cost of abatement by the chief of environmental health shall constitute a lien on the property whereon the nuisance existed and shall be recorded as such. Thereafter it may be collected in the same manner as taxes upon such property. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 3 § 9, 1976)

Whenever the chief of environmental health has probable cause to believe that a condition exists within the City which constitutes an immediate and severe health hazard to the populace of the City, they shall declare the condition to be a public nuisance and shall notify the City Manager of the emergency. The City Manager may order immediate abatement of the nuisance by City personnel, including destruction of any property constituting such a nuisance if the nuisance cannot be abated otherwise. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 4 § 1, 1976)

The owner occupant and owner or agent of the premises from which a nuisance has been abated under Section 11.40.130 shall be so notified in writing as soon as possible, either personally or via prepaid certified United States mail. Such notice shall state the nature and location of the health hazard, the date it was declared a public nuisance, the date it was abated, the cost of abatement, and the fact that such cost shall be recorded and assessed as a lien against the property from which the nuisance was abated if not paid within a specified period of time. This notice shall also set forth the right to protest under Section 11.40.150 below. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 4 § 2, 1976)

The occupant and owner or agent of the premises from which the nuisance was abated, if aggrieved by abatement of the nuisance, may protest in writing to the City Manager within ten days of receipt of the notice of abatement. The City Manager shall designate a hearing officer and schedule a hearing within thirty days. The protesting party shall have the rights and the hearing shall be conducted under the procedures set forth in Sections 11.40.080 and 11.40.090 of this chapter. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 4 § 3, 1976)

If some or all objections raised by the protesting party are allowed, the City shall endeavor to settle the matter as equitably and expeditiously as possible. (Ord. 4883-NS § 1 Exhibit A, Ch. 2 Art. 4 § 4, 1976)