Brisbane Municipal Code Ch. 8.36 Abatement of Public Nuisances

Each and every one of the following conditions, circumstances, things, matters and acts is deemed a threat or detrimental to the public health, safety, or general welfare and is hereby declared to constitute a public nuisance:

A. Any building or structure, or portion thereof, which is in a substandard, dilapidated, or dangerous condition or state of disrepair so as to be unfit, unsafe, or unsuitable for human occupancy.

B. Any abandoned building or structure, which shall include any of the following:

1. A building or structure which is not occupied, inhabited, used or secured. For the purposes of this section, a structure shall be deemed unsecured when it is unlocked or the public can gain entry without the consent of the owner.

2. Any partially constructed, reconstructed, or demolished building or structure upon which work is abandoned. Work shall be deemed to have been abandoned when there has been no substantial activity on the project for one hundred twenty consecutive days.

3. Any damaged or partially destroyed building or structure which has not been removed or repaired within one hundred twenty (120) days after the date on which the damage or destruction occurred, or, if the removal or repair cannot reasonably be accomplished within one hundred twenty (120) days, such work shall not have been commenced within such period of time and prosecuted diligently toward completion.

C. Any property maintained in such condition as to become so defective, unsightly, or in a state of such deterioration, disrepair or neglect that the same causes, or may cause, a health, safety or fire hazard, or a blight upon the aesthetic quality or appearance of the neighborhood, or an attractive nuisance to children, including, but not limited to, any of the following:

1. Accumulation of debris, junk, garbage or refuse.

2. Storage in areas visible to public view of inoperative or dismantled motor vehicles or vehicle parts, building materials not currently being used for the construction of improvements on the site, abandoned and broken equipment or machinery, or parts thereof, and broken or discarded furniture, appliances or household furnishings.

3. Roadways, parking lots, driveways, paths or other paved surfaces with cracks, potholes or other deficiencies which pose a risk of harm to the public, or are in such state of deterioration or disrepair that the same cannot be safety utilized by emergency response vehicles or personnel.

D. Any building or structure which is constructed, altered, or maintained in violation of any specific requirement or provision applicable to such building or structure contained in the building codes or zoning regulations of the city or the state, or any other law or ordinance of the city or state relating to the condition, location or use of any building or structure. As used herein, the term "building codes" includes all administrative and technical uniform codes adopted by reference by the city or otherwise made applicable pursuant to state law.

E. Property, whether improved or in a natural state, having a topography, geology or configuration which causes or threatens to cause erosion, subsidence, unstable soil conditions, surface or subsurface drainage problems, damage to streets or roadways or to public utility installations, that will, or may, be injurious to the public or to adjacent properties.

F. Any violation of a statute, ordinance, rule, regulation or condition which is specifically declared therein as constituting the creation or existence of a public nuisance subject to abatement by the city.

G. Any other condition or circumstance, in addition to those described above, which, within the meaning of Section 3479 of the California Civil Code or Section 370 of the California Penal Code, is injurious to health, or is indecent or offensive to the senses, or constitutes an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any public highway, street, sidewalk, pathway, park, square, or other public place.

(Ord. 420 § 2(part), 1997).

A. It is unlawful for any person owning, leasing, occupying or having charge or possession of any real property in the city to cause or permit the establishment, maintenance, or continuation thereon of any nuisance, as defined in Section 8.36.010 of this chapter; provided, however, that any condition which would constitute a nuisance but is duly authorized by any city, state, or federal law, or by any governmental agency having jurisdiction, shall not be deemed a violation of this chapter.

B. Any nuisance found to exist upon any real property, or any building or structure located thereon, may be abated by the procedures set forth in this chapter. Such procedures shall be cumulative and in addition to any other rights, remedies or proceedings available to the city under any law by reason of the existence of the nuisance, including commencement of civil proceedings for injunctive or other judicial relief, imposition of civil penalties, and the filing and prosecution of criminal charges.

C. Any person, whether as owner, tenant or occupant of any premises, who violates any of the provisions of this chapter shall be guilty of an infraction, punishable by the fines, penalties and enforcement provisions set forth in Chapters 1.14, 1.16 and 1.18 of this code.

D. In addition to any other penalties specified in this chapter or otherwise provided by law, upon entry of a second or subsequent civil or criminal judgment within any period of twenty-four months finding that an owner of property is responsible for a condition that may be abated in accordance with this chapter, except for conditions abated pursuant to Section 17980 of the Health and Safety Code, the owner shall be liable to the city for treble the amount of any costs incurred by the city for abatement of such conditions, as provided in Section 38773.7 of the Government Code.

(Ord. 420 § 2(part), 1997).

(Ord. No. 554, § 22, 1-18-11)

Whenever the chief of police, or the city planning director, or the city engineer, or their duly authorized representatives, or any person designated as a city code enforcement officer or building official, reasonably believes that a nuisance exists, that city official or representative may commence abatement proceedings under this chapter.

(Ord. 420 § 2(part), 1997).

Whenever necessary to make an inspection to enforce any of the provisions of this chapter or whenever any city official having authority to commence abatement proceedings hereunder has reasonable cause to believe that there exists in any building or upon any premises any condition or violation which makes such building or premises unsafe or constitutes a public nuisance as defined in this chapter, the city official, or his or her duly authorized representatives, may enter such building or premises at all reasonable times to inspect the same or to perform any action authorized to be taken pursuant to the provisions of this chapter; provided, that if such building or premises be occupied, the city official shall first present proper credentials and request entry; and if such building or premises be unoccupied, the City official shall first make a reasonable effort to locate the owner or other persons having charge or control over the operation or management of the building or premises and request entry. If such entry is refused, the city official, or his or her duly authorized representatives, shall have recourse to every remedy provided by law to secure entry, including an inspection warrant issued by any court having jurisdiction.

(Ord. 420 § 2(part), 1997).

A. The city official or representative initiating the abatement proceedings, hereinafter referred to as the "hearing officer" shall give written notice to each owner of the affected property, as indicated by the latest available county tax assessment roll, of a hearing to determine whether a nuisance does in fact exist upon the property which is subject to abatement under this chapter.

B. The notice shall be given by regular mail, postage prepaid, addressed to each owner at the address shown on said tax assessment roll, and by conspicuously posting a copy of the notice on the affected property, at least ten (10) days prior to the scheduled hearing date. The failure by any person to receive a notice shall not affect the validity of any proceedings conducted under this chapter.

C. The notice shall contain the following information:

1. A description of the property sufficient for identification;

2. A description of the conditions upon the property which are alleged to constitute a public nuisance;

3. A statement of the time and place of the hearing to determine whether the described condition constitutes a nuisance and the proposed abatement actions that must be taken if the nuisance is found to exist;

4. A statement as to whether the city has elected to seek, as a part of the abatement costs, reasonable attorney's fees incurred with regard to any portion or all of the abatement proceedings, in which case the notice shall also state that attorneys fees would be awarded to the prevailing party.

The notice shall further advise that each owner has the option to voluntarily abate the nuisance and to inform the hearing officer that such action has been completed prior to the hearing date. Upon receipt of such information from a property owner, the hearing officer shall conduct an inspection of the premises and if the nuisance is found to have been satisfactorily abated, the hearing shall be canceled and written notice of such cancellation shall be given to the same persons who received notice of the abatement hearing.

(Ord. 420 § 2(part), 1997).

(Ord. No. 554, § 23, 1-18-11)

A. The hearing to determine whether a nuisance exists shall be conducted by the hearing officer. The hearing officer shall consider all relevant evidence, including, but not limited to, applicable staff reports, objections or protests relative to the existence of the alleged nuisance or the manner proposed for abatement thereof. The hearing may be continued from time to time by the hearing officer, without further written notice.

B. Upon the conclusion of the hearing, the hearing officer shall, based upon the evidence presented at the hearing, determine whether the property, or any portion thereof, constitutes a nuisance. If the hearing officer finds that a nuisance does exist, the hearing officer shall issue an order of abatement which shall direct and order the nuisance abated within the time and in the manner as specified in such order. The hearing officer shall serve a copy of the abatement order upon each owner of the property by mailing the same to the address utilized for mailing notice of the abatement hearing, or to such other address as may be known to the hearing officer. If the hearing officer determines that no nuisance, as defined by this chapter, exists upon the property, the hearing officer shall terminate the abatement proceedings and give written notice of such action to the property owner.

C. The decision of the hearing officer with respect to the existence of a nuisance or the time and manner of abatement shall be final and conclusive in the absence of an appeal to the city manager being filed in accordance with Section 8.36.070 of this chapter.

(Ord. 420 § 2(part), 1997).

A. The owner of the affected property or any other interested person may appeal any decision or determination by the hearing officer to the city manager by filing a written notice stating the grounds for the appeal with the city manager within seven (7) days after the date on which the decision or determination is rendered by the hearing officer.

B. The city manager shall set the matter for a hearing to be conducted within fourteen (14) days after receipt of the notice of appeal and shall mail notice of such hearing to the property owner and to the appellant, if other than the owner. The hearing may be continued to a later date, at the discretion of the city manager.

(Ord. 420 § 2(part), 1997).

A. The city manager shall review the decision of the hearing officer and shall afford the property owner and any other interested persons an opportunity to be heard in connection with the appeal. If the city manager finds from the relevant evidence presented at the hearing that the alleged nuisance exists upon the affected property, the city manager shall issue an order for the abatement thereof within the time and in the manner as shall be specified in such order. The abatement order shall inform the property owner that if the nuisance is not satisfactorily abated in accordance with the terms and requirements of the order, the nuisance may be abated by the city and all costs and expenses incurred by the city in connection therewith will be made a lien against the property.

B. The city clerk shall mail a copy of the abatement order to the property owner and to any other person submitting a request therefor. The city clerk may also record a certified copy of the abatement order in the office of the San Mateo County recorder.

C. If the city manager finds that the alleged nuisance does not exist, or that such nuisance has voluntarily and successfully been abated by the property owner prior to the hearing date, the city manager shall terminate the abatement proceedings.

D. Pursuant to Section 1094.6 of the California Code of Civil Procedure, any action or proceeding to attack, review, set aside, void or annul a decision by the city manager on an appeal taken pursuant to this section, or any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any abatement order issued pursuant to this chapter, shall be commenced within ninety (90) days after the date such decision is rendered by the city manager.

(Ord. 420 § 2(part), 1997).

In the event the property owner fails to abate the nuisance within the time or in the manner as specified in the abatement order issued by the hearing officer, or by the city manager in the case of an appeal, the city manager may cause the nuisance to be abated by the city's forces or by private contractors retained by the city, or any combination thereof. Entry upon the property is expressly authorized for the purpose of performing such abatement work. Ord. 420 § 2(part), 1997).

A. If, in the reasonable opinion of the city manager, or the chief of police, or the city planning director, or the city engineer, there exists a condition which constitutes an imminent threat of serious injury or harm to any persons or property that is likely to occur during the pendency of abatement proceedings, such official may cause the condition to be summarily abated in accordance with the following procedure, without compliance with the provisions of the preceding sections of this chapter:

1. The city official shall attempt to contact the owner, or other person having charge or control over the operation or management of the property, in person or by telephone to notify the responsible party that the condition must immediately be removed, repaired, corrected, or isolated so as to eliminate the imminent threat of serious injury or harm.

2. If the attempt at personal contact is unsuccessful, or if the responsible party fails or refuses to take immediate and effective action to eliminate the threat after being requested to do so, the city official shall summarily abate the nuisance utilizing the city's own forces or independent contractors, or any combination thereof.

3. All abatement costs incurred by the city shall be determined, confirmed and collected in accordance with the provisions of Sections 8.36.110 through 8.36.150 of this chapter.

B. Nothing in this chapter shall prevent public safety officials from taking any and all actions in emergency situations they deem necessary or appropriate in order to protect the public health, safety, and general welfare.

(Ord. 420 § 2(part), 1997).

A. The city finance director shall keep an accounting of all costs and incidental expenses incurred by the city in connection with any nuisance abatement proceedings or actions conducted pursuant to this chapter. Such account shall indicate, where appropriate, the costs attributable to each separate parcel of land with respect to which abatement proceedings have been commenced or upon which abatement work has been performed by the city or its contractors. The term "incidental expenses" includes, but is not limited to, the actual expenses and costs of the city for conducting proceedings under this chapter; the preparation of specifications and contracts; inspection of the work; the cost of preparing and serving notices; attorneys fees and the fees of any other consultants providing professional services in connection with the abatement of the nuisance; and administrative staff costs. Costs and expenses may be recovered even if the nuisance is abated by the property owner.

B. Costs shall be determined and assessed at the conclusion of the abatement proceedings; provided, however, in the case of an abatement by any method that takes more than six (6) months, costs may be determined and assessed at any time after six (6) months from the issuance of the final abatement order and periodically thereafter until all abatement proceedings have been fully completed.

C. The finance director shall submit an itemized report of abatement costs to the city manager for confirmation. The city clerk shall serve a copy of such report upon the property owner by certified mail addressed to the owner as shown on the latest available county assessment roll, or as otherwise known to the city clerk. The report of abatement costs shall be accompanied by a notice of the time and place when a hearing will be conducted by the city manager to consider confirmation of such report and levy or assessment of a lien against the affected property for collection of abatement costs. The notice shall specify that the property may be sold after three (3) years by the tax collector for unpaid delinquent assessments. The report and notice shall be served upon the property owner at least ten (10) days prior to the scheduled date of the hearing.

(Ord. 420 § 2(part), 1997).

(Ord. No. 554, § 24, 1-18-11)

A. At the time and place fixed in the notice of the confirmation hearing, the city manager shall consider the report of abatement costs submitted by the finance director and hear any protests or objections thereto by the property owner or any other interested persons. The hearing may be continued from time to time without further written notice.

B. Upon the conclusion of the hearing, the city manager shall make such revisions, corrections or modifications to the report as may be necessary or appropriate, based upon the evidence presented at the hearing, and shall thereafter confirm the report as submitted or modified by issuing an order for collection of the abatement costs pursuant to either Section 8.36.140 or Section 8.36.150 of this chapter. The decision of the city manager shall be final and conclusive, in the absence of an appeal to the city council being filed in accordance with Section 8.36.130 of this chapter.

(Ord. 420 § 2(part), 1997).

A. The owner of the affected property may appeal to the city council the order for collection of abatement costs issued by the city manager by filing a notice of appeal with the city clerk within ten (10) days after the date on which such order was rendered. The notice shall set forth the grounds for the appeal and shall be accompanied by the payment of a processing fee in such amount as may be established from time to time by resolution of the city council.

B. The city clerk shall set the matter for hearing at a regular meeting of the city council as determined by the city clerk and shall mail notice of such hearing to the appellant and to any other interested person requesting the same.

C. The city council shall either affirm the collection order issued by the city manager or make such modifications, amendments or corrections thereto as the council deems appropriate. A final order for the collection of abatement costs, as determined by the city council, shall thereupon be rendered by the council providing for the collection of such costs pursuant to either Section 8.36.140 or Section 8.36.150 of this chapter.

D. Pursuant to Section 1094.6 of the California Code of Civil Procedure, any action or proceeding to attack, review, set aside, void or annul a decision by the city council on an appeal taken pursuant to this section, or any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, propriety, legality or validity of any abatement costs levied or assessed as lien against any real property pursuant to this chapter, or any proceedings relating to such levy or assessment, shall be commenced within ninety (90) days after the date such decision is rendered by the city council.

(Ord. 420 § 2(part), 1997).

A. Pursuant to Section 38773.1 of the California Government Code, the order for collection of abatement costs issued by the city manager, or by the city council on appeal, may provide for such costs to be levied as an abatement lien against the property on which the nuisance was abated. In such event, notice of intent to record such lien shall be served upon the owner of the property, as shown by the latest available county assessment roll, in the same manner as service of a summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4, Title 5, Part 2 of the Code of Civil Procedure. If the property owner, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper having general circulation in the city.

B. Following service of the notice in accordance with subsection A of this section, the city clerk shall record the nuisance abatement lien against the affected property in the office of the San Mateo County recorder. From and after the date of such recording, the nuisance abatement lien shall have the same force, effect and priority as a judgment lien on real property and shall continue in effect until discharged by the city.

C. The nuisance abatement lien recorded pursuant to this section shall identify the city as the agency for whose benefit the lien is established, the amount of the lien, the date of the order for abatement of the nuisance, the date of the order for collection of abatement costs, the address, legal description and assessor's parcel number of the property on which the lien is imposed, and the name and address of the recorded owner of the property.

D. The nuisance abatement lien may be foreclosed by an action brought by the city for a money judgment. All costs and expenses relating to the processing, recording and enforcement of the abatement lien, including recording fees, noticing costs and attorney's fees, shall be added to the amount of the lien and shall be secured thereby.

E. Upon payment or other satisfaction of the abatement lien, a notice of discharge shall be prepared and recorded by the city clerk in accordance with Section 38773.1(c)(2) of the Government Code.

(Ord. 420 § 2(part), 1997).

A. As an alternative to the recording and foreclosure of an abatement lien pursuant to Section 8.36.140 of this chapter, the order for collection of abatement costs may provide that such costs shall, upon recording a certified copy of the order in the office of the San Mateo County recorder, be imposed as a special assessment against the property on which the nuisance was abated, in accordance with Section 38773.5 of the Government Code.

B. A certified copy of the order for collection of abatement costs shall be transmitted to the county tax assessor and tax collector, whereupon it shall be the duty of the tax assessor and tax collector to add the amount of abatement costs as a special assessment on the next regular bills for real estate taxes levied against the respective properties identified in the order. Thereafter, the special assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in the case of delinquency as provided by law for ordinary municipal taxes.

(Ord. 420 § 2(part), 1997).

In addition to, or in lieu of, the methods of collection set forth in Sections 8.36.140 and 8.36.150 of this chapter, the city may bring a civil action against the owner of the property on which the nuisance is abated for recovery of all abatement costs as a personal indebtedness of such owner to the city.

(Ord. 420 § 2(part), 1997).