Berkeley Municipal Code Ch. 12.92 Anti-Blight

The purpose of this chapter is to promote the health, safety and general welfare of the citizens by requiring a level of maintenance of residential and commercial property which will promote healthy neighborhoods and protect and preserve the livability and appearance of the City. (Ord. 6303-NS § 1, 1995; Ord. 6157-NS § 1, 1992)

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

A. "Building Official" shall mean, for the purposes of this code, the City Manager or their designee.

B. "Commercial building/structure" shall mean any commercial, industrial or other establishment, warehouse, kiosk, or other structures affixed to or upon real property used for the purpose of conducting a business, storage, or other activity, whether or not such structure is occupied.

C. "Low income owner" shall mean an owner whose annual family income is less than eighty percent of the median annual income for the SMSA as calculated by the Department of Housing and Urban Development.

D. "Owner" shall mean any person owning at least a fifty percent ownership interest of record in the property, as shown on the last equalized assessment roll of the county of Alameda.

E. "Small property" shall mean any residential property with four or fewer units in which an owner of record of at least a fifty percent ownership interest in the property resides in one of the units as their principal place of residency.

F. "Person" shall mean any individual, firm, partnership, corporation, association, or any other organization or entity, however formed.

G. "Property" shall mean all residential, industrial, commercial, and other real property, including but not limited to vacant lots, front yards, side yards, back yards, driveways, walkways, alleys, and sidewalks, and shall include any building or other structure whether fixed or movable, located on such property.

H. "Residential building/structure" shall mean any structure including but not limited to any house, garage, duplex, apartment, condominium, stock cooperative, mobile home, or other residential structure, whether or not such structure is occupied. (Ord. 6303-NS § 2, 1995; Ord. 6169-NS § 2, 1993; Ord. 6157-NS § 2, 1992)

This section shall not be applicable to a single dwelling, intended for use by one family, where the dwelling is located by itself on a single parcel of property which is occupied by the owner(s) thereof. This exemption shall apply even where the owner is temporarily absent therefrom during the period necessary to complete needed repairs to such dwelling. This exemption shall only be applicable if the owner intends to return to occupy such dwelling upon completion of such repairs.

Except as exempted above, it shall be an unlawful nuisance for any person owning, leasing, renting, occupying or having charge or possession of any commercial and/or residential property to maintain or allow to be maintained such property in such manner that at least two or more of the following conditions, A through F, are found to exist thereon and where, with respect to conditions A through E, such conditions are visible from a public right-of-way and/or neighboring property and such conditions have both a significant adverse visual impact on the neighborhood and substantially contribute to the dilapidated or deteriorated appearance of the neighborhood.

A. Property which is not kept substantially clean and free from accumulations including, but not limited to, overgrown, dead or decayed trees, weeds or other vegetation, rank growth, rubbish, junk, garbage, litter, debris, flyers or circulars.

B. Buildings or structures which are unpainted or the exterior paint is substantially worn off, provided, however, that nothing in this section shall be construed to require an owner to paint a building where the architectural style indicates it was intended to be unpainted, such as a brown shingle building.

C. Buildings or structures or significant sections thereof including, but not limited to, exterior stairs, roof, foundation, walls, fences, signs, retaining walls, driveways, or walkways which are substantially broken, deteriorated, or defaced, or windows which are missing or broken. For the purposes of this section "defaced" includes, but is not limited to, writings, inscriptions, figures, scratches, or other markings commonly referred to as "graffiti."

D. Property used or intended to be used for residential purposes which contains, in the outdoor area, any refrigerator, washing machine, sink, stove, heater, boiler, tank or any other household equipment, machinery, furniture, or item, appliance or appliances, boxes, lumber, dirt or debris, trash, garbage or refuse cans, or any items other than those commonly stored outdoors, or any parts of such items, for a period of time in excess of seventy-two consecutive hours. This subsection does not prohibit machinery installed in the rear setback areas for household or recreational use, furniture designed and used for outdoor activities, trash cans in the front yard during the twenty-four hour period allowed for garbage pick-up and garbage bins when employed in construction for which a valid building permit has been issued by the City.

E. Where property is vacant and otherwise required to be boarded up, the boarding shall be done in a manner approved by the building official and which does not itself have a significant adverse visual impact on the neighborhood nor substantially contribute to the dilapidated or deteriorated appearance of the neighborhood. To the extent feasible, the boarding up shall cause the property to have the appearance of an occupied residence as determined by the building official.

F. Buildings designed for residential use that stand vacant for more than 120 consecutive days, unless the city manager finds in writing that any of the following applies:

1. The building is the subject of an active zoning or building permit application or permit for repair or rehabilitation and the owner is progressing diligently to obtain such zoning or building permit or to complete the repair or rehabilitation.

2. The building meets all codes, is ready for occupancy, and is actively being offered for sale, lease, or rent.

3. The City Manager may grant an extension of the 120 day period of vacancy to one year for properties inherited or under probate.

4. The City may waive the time limit to remedy a blighted building in cases where an event such as fire, flood, or earthquake interferes with the owner’s ability to complete the corrective action within the specified time. (Ord. 7622-NS § 2, 2018; Ord. 6303-NS § 3, 1995; Ord. 6169-NS § 3, 1993; Ord. 6157-NS § 3, 1992)

All or any part of any real property, or any building or structure located thereon, found to be maintained in violation of Section 12.92.030 of this chapter are hereby declared a public nuisance and may be abated pursuant to the procedures set forth in this chapter. The procedures for abatement set forth herein shall not be exclusive and shall not in any manner limit or restrict the City from enforcing other City ordinances or abating public nuisances in any other manner provided by law. (Ord. 6303-NS § 4, 1995; Ord. 6157-NS § 5, 1992)

Whenever the City determines that property in the City is maintained as a nuisance as provided for in this chapter and that abatement of such nuisance is to be required, it 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 on the owner 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 which the owner shall take corrective action to remedy the nuisance. In no event shall the owner be given less than seven calendar days, and no more than sixty calendar days to take corrective action, except where there is an immediate threat to public health or safety when shorter notice may be prescribed. The owner must commence the corrective action requested in the notice within thirty days of the date of the notice. The City may waive the time limits of this subsection only if a natural disaster, such as, fire, flood or earthquake interferes with the owner’s ability to complete the corrective action within the specified time, the work to be performed is inherently of a nature which cannot reasonably be completed within the time limits, or except as provided in Section 12.92.060.

D. The notice shall specify the section of law violated and state all the facts constituting the nuisance.

E. The notice shall specify the corrective action required, including temporary corrective action when appropriate and inform the owner of City programs, if any, available to assist low-income property owners with repairs to their property. The corrective action shall be such that it eliminates the significant adverse visual impact of the property on the neighborhood and eliminates the contribution of that property to the dilapidated or deteriorated appearance of the neighborhood as determined by the building official.

F. The notice shall advise the property owner that failure to correct the violation may 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 fifteen 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 an appeal 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.

J. As to any small property, the notice shall advise the owner that in addition to requesting a hearing, they may elect to mediate the dispute with any party complaining of the nuisance, other than the City, and that if such mediation is elected and agreed to by the complainant, the cost, if any, of such mediation shall be borne equally by the owner and complainant and the mediation must be completed within thirty (30) days. If mediation is elected, any hearing requested by the owner will be scheduled as provided under Section 12.92.070 only after the period of mediation has expired. (Ord. 6303-NS § 5, 1995; Ord. 6169-NS § 4, 1993; Ord. 6157-NS § 6, 1992)

As to a small property, if the owner of such property is a low-income owner, the City may extend or waive the time limits specified in Section 12.92.050C. of this chapter, if the owner does all of the following:

A. Demonstrates to the building official that complying with the City’s order to abate would create an undue financial hardship.

B. The owner makes a good faith effort, as determined by the building official, to comply with that portion of the order to abate that may be completed without a significant expenditure of funds.

C. The owner makes a good faith effort, as determined by the building official, to obtain financial assistance. (Ord. 6303-NS § 6, 1995; Ord. 6169-NS § 5, 1993; Ord. 6157-NS § 7, 1992)

The owner may appeal the nuisance determination to the City by filing an appeal within fifteen 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. If mediation has been elected and agreed to pursuant to Section 12.92.050J., the appeal shall so state and shall request that the hearing be postponed for thirty days to allow for such mediation to be completed. (Ord. 6303-NS § 7, 1995; Ord. 6157-NS § 8, 1992)

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

B. Notice of hearing shall be served personally or by first class mail on the owner, 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. 6303-NS § 8, 1995; Ord. 6157-NS § 9, 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. 6303-NS § 9, 1995; Ord. 6157-NS § 10, 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 hearing officer shall either allow or overrule the objections, or make such other determinations as are consistent with this chapter and their decision shall be final except as provided in Section 12.92.120. If the owner has elected to mediate the charges of nuisance with a private complainant, if any, and the mediation has resulted in a proposed resolution, the proposed resolution may be submitted to the hearing officer for consideration. The hearing officer may order the proposed resolution if it is consistent with this chapter. (Ord. 6303-NS § 10, 1995; Ord. 6157-NS § 11, 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 12.92.050C. (Ord. 6303-NS § 11, 1995; Ord. 6157-NS § 12, 1992)

The hearing officer’s decision shall be final and shall only be subject to judicial review pursuant to Ordinance No. 6087-NS and Code of Civil Procedure sections 1094.5 and 1094.6. (Ord. 6303-NS § 12, 1995; Ord. 6157-NS § 13, 1992)

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, or the owner appeals the notice to abate and fails to abate the nuisance within the time specified by the hearing officer in the notice of decision, the City 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. Said abatement may 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 thirty days thereafter. (Ord. 6303-NS § 13, 1995; Ord. 6157-NS § 14, 1992)

The costs of abatement, including incidental expenses, incurred by the City shall constitute a nuisance abatement lien or a special assessment lien on the property whereon the nuisance existed as determined by the City and shall be recorded as such pursuant to the procedures set forth in the City’s recovery of abatement costs ordinance or any other procedures at law which provide for the recovery of abatement costs. (Ord. 6303-NS § 14, 1995; Ord. 6157-NS § 15, 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 1822.52 to issue said warrants. (Ord. 6303-NS § 15, 1995; Ord. 6157-NS § 16, 1992)

Nothing in this chapter shall be construed as requiring the City to enforce the prohibitions in this chapter against all or any properties which may violate the ordinance. Nothing in this section or the absence of any similar provision from any other City law shall be construed to impose a duty on the City to enforce such other provision of law. (Ord. 6303-NS § 16, 1995; Ord. 6157-NS § 18, 1992)

A. The remedies provided for under this section, are in addition to any the City or any person might have under applicable law.

B. Any person violating or causing the violation of this chapter, shall be guilty of an infraction as provided for in Berkeley Municipal Code Section 1.20.020, in addition to any other remedies provided for in this chapter or under applicable law. Except that any owner cited for violation of Section 12.92.030C. because of the existence of graffiti on their property shall not be liable for any fines provided for under this section if the graffiti is caused by vandals and the owner makes a good faith effort to maintain the property free of graffiti and removes graffiti.

C. Any property owner ordered by the City to abate a property nuisance pursuant to this chapter on two or more separate occasions within a one year period, shall be liable to the City for a civil penalty of five hundred dollars for each separate order to abate beginning with the second such order within a one year period, except as provided in Section 12.92.170B.

D. The City Attorney may bring an action under this section on behalf of the City for injunctive or other relief, including an action for public sale of the property to pay any outstanding liens. In such an action, the City shall recover its costs of abatement, and court costs in addition to civil penalties.

E. Any person who owns or occupies any premises on the same City block on which the nuisance exists under this chapter or who lives within five hundred feet of such a nuisance (hereafter "aggrieved person") may file a civil action to abate such nuisance only if pursuant to Section 12.92.050 of this chapter the City has notified the owner to abate the nuisance, the aggrieved person offered to mediate the dispute with the small property owner as provided in Section 12.92.050J., and the owner either refused or mediation did not resolve the matter and the owner has failed to abate the nuisance in the manner required by the City. In any action brought under this subsection, the court may grant all appropriate relief against the property owner causing the nuisance, including public sale of the property, damages and costs which the aggrieved person may have incurred as a result of such nuisance.

F. In any action brought under this section, the court shall award reasonable attorney’s fees to any prevailing plaintiff, including the City. Any aggrieved person who initiates a civil action under this section, shall file a copy of their complaint against the property owner and a copy of the court’s decision with the City Clerk. (Ord. 6303-NS § 17, 1995; Ord. 6169-NS § 6, 1993; Ord. 6157-NS § 19, 1992)

One year after the effective date of this chapter, and every year thereafter, the City Manager shall prepare and submit to the City Council a report detailing the number of complaints received regarding properties alleged to be in violation of this chapter, the number of properties inspected and ordered to abate and the cost to the City of enforcing this chapter. (Ord. 6303-NS § 18, 1995; Ord. 6157-NS § 20, 1992)

The City Council may, by resolution, establish fees for inspection of properties found to be in violation of this ordinance. (Ord. 6303-NS § 19, 1995)