Concord Municipal Code Art. I Public Nuisances

Cross references: Nauseous odors, accumulations of waste and similar nuisances, § 8.10.030; nuisance trees and shrubs, § 8.40.070.

(a) In order to further the stated goals of the city and protect the health, safety and welfare of its citizens and their property, the City Council has determined that an ordinance is necessary to regulate, prevent and prohibit disorderly, disturbing, unsightly, unsafe, unsanitary conditions or objects in the city.

(b) The City Council intends, by adopting this article, to define the conditions that constitute a nuisance; and to provide a procedure for a hearing in the event the condition is not corrected, removed or otherwise abated.

(c) This article is not intended to enforce nor supersede conditions, covenants and restrictions (CC&R’s) on property. This article will be enforced uniformly within the city regardless of CC&R’s. Therefore, this article does not abrogate the right of any homeowners’ association or private citizen to take action, legal or as otherwise provided in the CC&R’s, to force compliance with the CC&R’s applicable to their tract or association even though the CC&R provisions may be the same, more restrictive or may not be covered by this article.

(Code 1965, § 5440; Code 2002, § 62-31. Ord. No. 00-3)

It shall be unlawful and hereby declared a public nuisance for any person owning, controlling, occupying or having charge of property within the city, not in public ownership, to maintain such property in a manner that any of the following conditions are found to exist thereon:

(1) Property maintained, permitted, or allowed to remain in such a condition so as to be defective, unsightly, or in a state of deterioration, disrepair or neglect whereby the condition causes, or may cause, a health, safety or fire hazard, or diminution of surrounding property values, or a blight upon the aesthetic quality or appearance of the neighborhood, or an attractive nuisance to children. This includes but is not limited to any of the following:

a. Maintaining, permitting, or allowing an unsecured, abandoned, unfiltered, or polluted swimming pool, pond, well, body of water or container of water in an unhealthy or unsafe condition.

b. Polluting or contaminating any water supply or watercourse with sewage, chemical, oil, junk, debris, waste or any other similar product.

c. Burning any substance, releasing chemicals, or allowing a condition that causes smoke, fumes, gas, dust, soot, cinders, or noxious, foul or offensive odors to exist and render the property unhealthy to occupy or use.

d. Storing, leaking, releasing, or using explosive, flammable liquid, or other dangerous, toxic, or hazardous substance in a manner that would constitute a fire, health or safety hazard.

e. A building or structure containing inoperative, defective, deteriorated or no fire prevention or fire extinguishing equipment, systems or devices as required by law or regulation.

f. Rainwater, well water or drainage water diverted from any building, structure, well, or paved area upon any sidewalk or public pedestrian way.

g. Dangerous, unguarded machinery, equipment, implements, tools, or appliances left in a public place or operated or situated on private property so as to be accessible to the public.

h. Dead, decayed, diseased, infected, overgrown, hazardous, or dying tree(s), root(s), branch(es), limb(s), shrub(s), or weeds on any property.

i. Trees and shrubbery that overhang onto streets and sidewalks must be kept trimmed as follows so as to not impede traffic or pedestrians:

1. At least 12 feet above the street and gutter;

2. At least eight feet above the entire sidewalk; and

3. At least 16 feet above the street and gutter along bus routes.

j. Generating intense glare or aiming a strobe light onto a street, sidewalk, or off-street parking area.

k. An excavation, hole, or pond that is open and unsecured from public access.

l. Potholes in driveways and off-street parking areas. All such surfaces and similar areas shall be kept free from potholes.

m. Cracked or buckled sidewalks and walkways. All such surfaces and similar areas shall be kept free from cracking and buckling.

n. A wall or fence that is poorly maintained, sagging, leaning, fallen, decayed or is otherwise structurally unsound or unsafe.

o. A building or other structure that is:

1. Abandoned for a period of 90 days or more; or

2. Allowed to remain in a state of partial construction, unless pursuant to a valid permit.

p. Unsecured doorways, windows, or other openings into vacant or abandoned buildings or structures from public access.

q. Unpainted or untreated exterior wood surfaces (other than natural decay-resistant wood(s)) on any building (or any portion thereof), or structure in which the condition of the paint has become so deteriorated as to permit decay, excessive checking, cracking, peeling, chalking, dry rot, warping, or insect infestation.

r. Maintaining windows, building exteriors, roofs, and gutters in a defective, deteriorated, or damaged condition.

s. Wrecked, disabled, inoperative, broken, discarded, salvaged, dismantled vessels, equipment, machinery, or appliances. Tarps or other covers placed over the above-mentioned items shall not constitute compliance with this section.

t. Unused and broken equipment, machinery, or parts thereof.

u. Maintaining, permitting, or allowing construction materials, tools, equipment, machinery and/or debris in the public view for more than 30 days at a location other than a site where work is being performed pursuant to a valid building permit.

v. Garbage and recycling receptacles maintained, permitted, or allowed to remain at a collection point for more than 24 hours before pickup or more than 24 hours after the scheduled pickup. Garbage and recycling receptacles in residential districts must be stored in a manner so as not to be visible to the public.

w. Commercial trash receptacles, in excess of one cubic yard capacity, that are not enclosed by an opaque, six-foot-tall enclosure of wood or masonry construction with a gate.

x. Home businesses or occupations that create a nuisance.

y. Construction activities during hours other than those listed below, unless otherwise indicated on the use permit or building permit or imposed under an environmental mitigation and monitoring program pursuant to CDC 18.515.010:

1. Monday through Friday – Citywide (applies to all districts): 7:30 a.m. to 6:00 p.m.

2. Saturday – Citywide (applies to all districts): 8:00 a.m. to 5:00 p.m.

3. Sunday – Residential districts (by homeowner, homeowner’s contractor, and/or tenant) and commercial districts: 8:00 a.m. to 5:00 p.m.

Unless otherwise restricted by an environmental mitigation and monitoring program, the Building Official is authorized to modify the permitted hours of construction under any issued building permit.

z. Littering. Business owners must maintain their property in a neat and orderly manner, free of loose trash, debris, or litter. Vestibules, doorways, adjoining sidewalks, passages or breezeways shall be maintained in a sanitary condition.

aa. Any other act, occupation, condition and use of property that endangers, jeopardizes, or is a menace to the public peace, welfare, health and safety.

bb. Any violation of statute, ordinance, rule, regulation or condition that is specifically declared as constituting or creating a public nuisance, or a substandard building, as defined in the Uniform Housing Code, Uniform Code for the Abatement of Dangerous Buildings, the California Model Building Codes, and California Health and Safety Code Section 17920.3.

cc. Any other condition or circumstance, in addition to those described above, which, within the meaning of Civil Code Section 3479 or Penal Code Section 370, is injurious to the public health, safety, or general welfare, 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 stream or any public park, square, sidewalk, pathway, street, highway, or other public place.

(Code 1965, § 5441; Code 2002, § 62-32. Ord. No. 00-3; Ord. No. 06-4, § 1)

Cross references: Definitions generally, § 1.05.100.

In addition to the aforementioned public nuisances and pursuant to Section 1.05.210, any violation of this Code shall constitute a public nuisance and shall be subject to the civil, criminal, and administrative remedies set forth in this article.

(Code 1965, § 5442; Code 2002, § 62-33. Ord. No. 00-3; Ord. No. 06-4, § 1)

Issues concerning animal noise will be referred to the county animal service department.

(Code 1965, § 5443; Code 2002, § 62-34. Ord. No. 00-3; Ord. No. 06-4, § 1)

The owner of any premises within the city has the primary responsibility to keep said premises free of any public nuisance.

(Code 1965, § 5444; Code 2002, § 62-35. Ord. No. 00-3; Ord. No. 06-4, § 1)

Violation of this article shall constitute a misdemeanor punishable as provided in Section 1.05.230.

(Code 1965, § 5445; Code 2002, § 62-36. Ord. No. 00-3; Ord. No. 06-4, § 1)

(a) Authorized. Administrative citations are available as a remedy, in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this article. Whenever it is determined that a violation of this article has occurred, an administrative fine may be imposed on any person responsible for the violation. If the violation pertains to a building, plumbing, electrical, or other similar structural or zoning issue, that does not create an immediate danger to health or safety, the person responsible for the continuing violation shall be afforded a reasonable time not to exceed 90 days to correct or otherwise remedy the violation prior to the imposition of administrative fines or penalties. In determining a reasonable time, the city may consider the estimate of local professionals including licensed contractors. In the case of such violations, the time within which the violation must be corrected in order to avoid a fine shall be specified on the notice of violation.

(b) Issuance of citation; contents. The administrative fine will be issued in the form of a citation. The citation shall contain the following information:

(1) The date of the violation;

(2) The address or a description of the location where the violation occurred;

(3) The section of the Code that was violated along with a description of the violation;

(4) The amount of the fine;

(5) An order prohibiting the continuation or repeated occurrence of the Code violation described in the administrative citation;

(6) An explanation of the payment and hearing process.

(c) Amount of fine. The amount of the fine, as well as any late charges, shall be set forth in the schedule of fines established by the Resolution Establishing Fees and Charges for Various Municipal Services. The schedule of fines shall also specify any increased fines for repeat violations of the same Code provision by the same person within 12 months from the date of an administrative citation.

(d) Service of citation. The citation shall be served on the owner or the person(s) responsible for the violation in the following manner:

(1) Delivered personally;

(2) Sent by certified or first class mail addressed to the last known address;

(3) If the notice is returned showing that the letter was not delivered, a copy thereof shall be posted in a conspicuous place on or about the structure affected by such notice.

(e) Payment of fine. The fine must be paid within 30 days from the date the administrative citation is issued. Payment of a fine under this article shall not excuse or discharge any continuation or repeated occurrence of the Code violation that is the subject of the administrative citation. If the fine is not paid within 30 days, the city may use all available legal means to collect any past-due administrative citation fines or late payment charges.

(f) Hearings.

(1) Requests. Any person who receives an administrative citation may contest the violation(s) and may request a hearing pursuant to the following procedure:

a. A request for hearing form shall be obtained from the department specified on the administrative citation. This request shall be filed with the department within 10 days of the date of issuance of the citation.

b. After a completed request for hearing form has been filed with the department, the department shall set the date, time and place for the hearing. The hearing shall be set for a date not less than 15 days nor more than 60 days after the department receives the request.

c. The person requesting the hearing shall be notified by first class mail and certified mail, return receipt requested, of the time and place set for the hearing. The notice shall be sent to the address provided on the request for hearing form by the person requesting the hearing. Service shall become effective on the date of first class mailing. Failure of the person requesting the hearing to receive such notice shall not affect the validity of any proceedings taken.

d. The person requesting the hearing, or the city, may request one continuance, but in no event may the hearing be continued more than 30 days after the date of the originally scheduled hearing unless the Hearing Officer finds that circumstances warrant a longer continuance not to exceed 60 days after the date of the originally scheduled hearing.

e. The failure of any person to file a request for hearing in accordance with the provisions of this section shall be deemed to be a waiver of his or her right to an administrative hearing and shall constitute a failure to exhaust administrative remedies.

(2) Hearing procedure.

a. Administrative hearings are informal, and formal rules of evidence and discovery do not apply.

b. The city representative and the person contesting the administrative citation shall be given an opportunity to testify and present evidence concerning the administrative citation. The person may represent themselves or be represented by any person of their choice.

c. The administrative citation and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.

d. The Hearing Officer may continue the hearing and request additional information from the enforcement officer and/or the person contesting the administrative citation or may conduct an inspection of the building and/or property involved in the hearing prior to concluding the hearing and issuing a written decision.

e. The Hearing Officer may inspect the building and/or property involved in the hearing prior to or during the hearing.

f. The failure of the person contesting the administrative citation to appear at the administrative citation hearing shall be deemed to be a waiver of his or her right to an administrative hearing and shall constitute a failure to exhaust administrative remedies.

(3) Decision of the Hearing Officer.

a. The Hearing Officer shall issue a written decision within 15 business days of the conclusion of the hearing stating the reasons for that decision. The Hearing Officer’s decision shall be final.

b. A copy of the Hearing Officer’s written decision shall be sent by first class mail to the address provided on the request for hearing form.

(Code 1965, § 5446; Code 2002, § 62-37. Ord. No. 00-3; Ord. No. 06-4, § 1)

(a) Authorized. In addition to the civil, criminal, and administrative remedies available, if a property owner and/or person responsible for the violation fails to voluntarily abate the nuisance within the time and in the manner specified in the abatement notice, the city may abate the nuisance under the procedure set forth in this section. Illegal vehicles on private or public property shall be abated pursuant to the provisions set forth in Article V of this chapter, Division IV of CDC Title 18, or the California Vehicle Code.

(1) Notice to abate.

a. In the event of a violation of this article, the City Manager, or his or her designee, may give written notice to the owner of real property on which the violation occurred.

b. The notice shall state:

1. The nature of the violation;

2. An abatement period deemed reasonable under the circumstances, but in no event shall the abatement period exceed 60 days;

3. That if the owner fails to abate the condition, it may be abated by the City Manager, or his or her designee, and the owner shall be liable for all costs involved in the investigation and abatement;

4. The notice shall also state that the owner may request a hearing in writing within 10 days from the date that the notice was served.

c. Service. The notice required by this section shall be served in the following manner:

1. Delivered personally to the real property owner and/or operator, occupant, or other person responsible for the property;

2. Sent by certified mail or first-class mail to the address shown on the most recent equalized assessment roll of the county, in which case service of such notice shall be effective on the date the notice is mailed; or

3. In the event the post office is unable to deliver the notice, the City Manager, or his or her designee, shall cause the notice to be posted on the real property.

(2) Hearing.

a. Requests. The property owner and/or operator, occupant, or other person responsible for the property may contest that there was a violation pursuant to this chapter or that he or she is the responsible person and may request a hearing as follows:

1. A request for hearing form shall be obtained from the Neighborhood Services Division. This request shall be filed with the Division within 10 days from the date that the notice was mailed via certified mail.

2. After a completed request for hearing form has been filed with the Division, the Division shall set the date, time and place for the hearing. The hearing shall be set for a date not less than seven days nor more than 30 days after the Division receives the request.

3. The property owner and/or operator, occupant, or other person responsible for the property shall be notified by first class mail and certified mail, return receipt requested, of the time and place set for the hearing at least 10 days prior to the date of the hearing. The notice shall be sent to the address provided on the request for hearing form. Service shall become effective on the date of first class mailing. Failure of the property owner to receive such notice shall not affect the validity of any proceedings taken.

4. The property owner and/or operator, occupant, or other person responsible for the property, or the City Manager, or his or her designee, may request one continuance, but in no event may the hearing be continued more than 30 days after the date of the originally scheduled hearing unless the Hearing Officer finds that circumstances warrant a longer continuance not to exceed 60 days after the date of the originally scheduled hearing.

5. The failure of any responsible person to file a request for hearing in accordance with the provisions of this section shall be deemed to be a waiver of his or her right to an administrative hearing and shall constitute a failure to exhaust administrative remedies.

b. Hearing procedure.

1. Administrative hearings are informal, and formal rules of evidence and discovery do not apply.

2. The city and the property owner shall be given the opportunity to testify and present evidence. The property owner may represent themselves or be represented by any person of their choice.

3. Any report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.

4. The Hearing Officer may continue the hearing and request additional information from the enforcement officer and/or the property owner or conduct an inspection of the building and/or property involved in the hearing prior to concluding the hearing and issuing a written decision.

5. The Hearing Officer may inspect the building and/or property involved in the hearing prior to or during the hearing.

6. The failure of the property owner to appear at the administrative hearing shall be deemed to be a waiver of his or her right to an administrative hearing and shall constitute a failure to exhaust administrative remedies.

c. Decision of the Hearing Officer.

1. The Hearing Officer shall issue a written decision within 15 business days of the conclusion of the hearing stating the reasons for that decision. The Hearing Officer’s decision shall be final.

2. The responsible person shall be served with a copy of the Hearing Officer’s written decision sent by first class mail to the address provided on the request for hearing.

(3) Abatement authorized. If the condition is not abated by the owner in accordance with the notice or following a decision by the city’s Hearing Officer on the violation, the City Manager, or his or her designee, may abate the condition and shall charge the owner for all costs involved in the investigation and abatement of the violation.

(b) Summary abatement. If, in the reasonable opinion of the City Manager, or his or her designee, there exists a condition which constitutes an imminent threat of serious injury or harm to any persons or property, such official may cause the condition to be summarily abated in accordance with the following procedure. Nothing in this article shall prevent public officials from taking any and all actions in emergency situations they deem necessary to protect the public health, safety, and general welfare.

(1) The City Manager, or his or her designee, shall post a notice on or near the dangerous condition. If the City Manager, or his or her designee, determines that the circumstances and time reasonably permit, the City Manager, or his or her designee, shall also attempt to directly notify the property owner and any other party of record with an equitable or legal interest in the property by telephone, telegraph, hand-delivery, facsimile or other reasonable means. Failure to give such additional notice shall not affect the adequacy of the posted notice or otherwise constitute a defect in the process authorized by this article. The notice shall contain:

a. A statement that the property was found to be imminently dangerous with a brief and concise description of the conditions found to render the property imminently dangerous.

b. A description of what actions are required to be taken by those persons receiving the notice and the time within which the actions must be commenced and completed.

c. A statement that the City Manager, or his or her designee, may cause the abatement work to be done and charge the costs thereof against the property or its owner.

(2) If the attempt to contact the person 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 within the time set forth in the notice, the City Manager, or his or her designee, may proceed to take abatement action to the extent necessary to remedy the immediate danger without further notice or right to a prior hearing.

(3) Once summary abatement action has been completed, the property owner may appeal the need for abatement action and/or the abatement costs pursuant to the following procedure:

a. A request for appeal must be received by the department within 10 days after service, by first class mail postage prepaid, of the statement of abatement costs. Service shall become effective on the date of first class mailing.

b. After a completed request for hearing form has been filed with the Department, the Department shall set the date, time and place for the hearing. The hearing shall be set for a date not less than 15 days nor more than 60 days after the department receives the request.

c. The person requesting the hearing shall be notified by first class mail and certified mail, return receipt requested, of the time and place set for the hearing. The notice shall be sent to the address provided on the request for hearing form by the person requesting the hearing. Service shall become effective on the date of first class mailing. Failure of the person requesting the hearing to receive such notice shall not affect the validity of any proceedings taken.

d. The person requesting the hearing or the city may request one continuance, but in no event may the hearing be continued more than 30 days after the date of the originally scheduled hearing unless the Hearing Officer finds that circumstances warrant a longer continuance not to exceed 60 days after the date of the originally scheduled hearing.

e. The failure of any person to file a request for a hearing in accordance with the provisions of this section shall be deemed to have waived his or her right to an administrative hearing and shall constitute a failure to exhaust administrative remedies.

f. The administrative hearing is informal, and formal rules of evidence and discovery do not apply.

g. The city and the person contesting the summary abatement action and/or summary abatement costs shall be given an opportunity to testify and present evidence. The person may represent themselves or be represented by any person of their choice.

h. The Hearing Officer may continue the hearing and request additional information from the enforcement officer and/or the person contesting the summary abatement action and/or costs.

i. The failure of the person contesting the summary abatement action and/or costs to appear at the hearing shall be deemed to be a waiver of his or her right to an administrative hearing and shall constitute a failure to exhaust administrative remedies.

j. The Hearing Officer shall issue a written decision within 15 business days of the conclusion of the hearing stating the reasons for that decision. A copy of the Hearing Officer’s written decision shall be sent by first class mail to the address provided on the request for hearing form. The Hearing Officer’s decision shall be final.

(Code 1965, § 5447; Code 2002, § 62-38. Ord. No. 00-3; Ord. No. 06-4, § 1)

The city may pursue any and all legal and equitable remedies for the recovery of fines and/or associated charges owed to the city. Pursuit of one remedy does not preclude the pursuit of any other remedies until the total fines and abatement charges have been recovered.

(1) Liens.

a. The amount of any unpaid fine and/or associated charge may be made a lien on the real property on which the violation occurred.

b. The lien shall attach when the City Manager, or his or her designee, records a lien listing delinquent unpaid fines and/or associated charges with the County Recorder’s Office. The lien shall specify the amount of the lien, the street address, legal description, and assessor’s parcel number of the parcel on which the lien is imposed, and the name and address of the record owner of the parcel.

c. In the event that the lien is discharged, released, or satisfied, through payment, notice of the discharge containing the information specified above shall be recorded by the City Manager, or his or her designee.

(2) Foreclosure. The lien may be foreclosed by an action brought by the city for a money judgment.

(3) Special assessments. All costs incurred by the city to abate a public nuisance shall be charged against the owner of the parcel of land in accordance with the provisions of this article. If the costs are not paid within 30 days of the receipt of the invoice from the city’s Finance Department, such costs shall be assessed against the parcel pursuant to Government Code Section 38773.5 following a hearing before the City Council and shall be transmitted to the Tax Collector for collection. Said assessment shall have the same priority as other city taxes.

(4) Civil action. The city may recover any costs incurred through civil action.

(Code 2002, § 62-38.5. Ord. No. 06-4, § 1)

If a second or subsequent civil or criminal judgment is entered against an owner of property or person(s) responsible for a condition that may be abated in accordance with this article within a two- year period a court may order the owner to pay treble the costs of the abatement. These costs shall not include conditions abated pursuant to Health and Safety Code Section 17980.

(Code 1965, § 5448; Code 2002, § 62-39. Ord. No. 00-3; Ord. No. 06-4, § 1)

In an action, administrative proceeding, or special proceeding to abate a nuisance, the prevailing party may recover attorneys’ fees. Recovery of attorneys’ fees is limited to those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees. An award of attorneys’ fees to a prevailing party shall not exceed the amount of reasonable attorneys’ fees incurred by the city in an action, administrative proceeding, or special proceeding.

(Code 1965, § 5449; Code 2002, § 62-40. Ord. No. 00-3; Ord. No. 06-4, § 1)

This article shall not be construed to replace or supersede any other section of this Code, except where expressly provided herein, but shall supplement such provisions. In the event that there is an express conflict between the provisions of this article and another provision of this Code, the more stringent provisions shall prevail so as to carry out the intent of the City Council.

(Code 1965, § 5449.1; Code 2002, § 62-41. Ord. No. 00-3; Ord. No. 06-4, § 1)

If for any reason a court of competent jurisdiction finds any section of this article, or a portion thereof, to be unenforceable, that section, or portion thereof, shall be deleted as though it never existed and the remainder of the article shall continue in full force and effect.

(Code 1965, § 5449.2; Code 2002, § 62-42. Ord. No. 00-3; Ord. No. 06-4, § 1)