Corning Municipal Code Ch. 8.08 Public Nuisances

Footnotes:

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Editor's note— Ord. No. 695, § 1, adopted Jan. 26, 2021, repealed the former Ch. 8.08, §§ 8.08.010—8.08.050, and enacted a new Ch. 8.08 as set out herein. The former Ch. 8.08 pertained to similar subject matter and derived from Ord. 535, § 5(part), adopted 1993; Ord. 578, § 2(1), (12)—(17), adopted 1998.

The city council finds, determines, and declares as follows:

A. That this city has a reputation for well-kept property and strict enforcement of zoning restrictions and building regulations; and

B. That there is a need for emphasis on the maintenance of a number of real properties, in that certain conditions which appear to constitute nuisances, as set forth in this chapter, have been found to exist in the city; and

C. That the existence of any real property in a condition constituting a nuisance as defined in this chapter, is injurious and inimical to the public health, safety, and welfare of the residents of this city; and

D. That the existence of public nuisances of the type referred to in this chapter, and the abatement thereof, is in protecting the health, safety, and welfare of the public, and the exercise of such power by the city is authorized by the Constitution of this state and other applicable law; and

E. That the abatement procedures set forth in this chapter are reasonable and afford a maximum of due process and procedural guarantees as to affected property owners.

(Ord. No. 695, § 1, 1-26-21)

The following definitions shall apply in this chapter:

"Appeals board." The city council of the city is designated to act as the appeals board.

"Enforcement officer." Unless otherwise specified, "enforcement officer" shall be the city administrator or his designee.

"Highway" means a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes streets and alleys.

"Marijuana" shall have the same meaning as that set forth in California Health and Safety Code Section 11018.

"Marijuana cultivation" means the planting, growing, harvesting, drying, or processing of all marijuana, including medical marijuana.

"Nuisance" means anything which is injurious to health, or is indecent or offensive to the senses, or 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 navigable lake, or river, bay, stream, canal or basin, or any public park, square, street or highway.

"Private nuisance" means every nuisance not defined as a public nuisance in this section.

"Public nuisance" means any nuisance affecting at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.

"Vehicle" means a device by which any person or property may be propelled, moved, or drawn upon a highway, except a device moved by human power or used exclusively upon stationary rails or tracks.

(Ord. No. 695, § 1, 1-26-21)

It is declared a public nuisance for any person owning, leasing, occupying, or having charge or possession of any premises in the city to maintain upon such premises, or to permit, cause or allow to exist on such premises, any condition which is detrimental to the public health, safety, or general welfare or which constitutes a public nuisance as defined in section 8.08.020 of this chapter. Such conditions shall include but shall not be limited to the following:

A. To maintain buildings or structures, or portions thereof, which are damaged, dilapidated, or inadequately or improperly maintained such that they are structurally unsafe, or do not provide adequate egress, or which constitute a fire hazard, or which are otherwise dangerous to human life or which in relation to existing use constitute a hazard to the public health, safety, or general welfare. This includes any building, structure or property which has been constructed or is maintained in violation of any specific requirement or prohibition applicable to the building, structure or property contained in the building regulations of this city or any law or ordinance of the city or state relating to the condition, location, maintenance or construction of buildings or property. Such buildings or structure shall include those which are abandoned, hazardously or inadequately boarded up, partially destroyed, or in a state of partial construction; or

B. To maintain other conditions related to buildings, structures, walls, fences or landscaping which are of a hazardous nature and require immediate correction, repair, or adequate and proper maintenance; including, but not limited to, the existence of broken glass in doors or windows which are located in an area of public access, surfaces showing evidence of dry rot, warping, termite infestation or graffiti; absence of paint, stain, varnish or similar coating intended to protect the weatherability of any structural member; doors, aisles, passageways, stairways, or other means of exit which do not provide a safe and adequate means of exit; any wall or other vertical structural member which lists, leans or is buckled to such an extent that a plumbline passing through the center of gravity does not fall inside the middle one-third of the base; or any other condition which because of lack of proper sanitation or soundness, or as a result of dilapidation decay, damage or faulty construction or arrangement, is likely to cause sickness, disease or threat to the public health, safety or general welfare; or

C. To maintain land, the topography, geology, or configuration of property which, whether in a natural state or as a result of grading operations, causes erosion, subsidence, or surface water runoff problems of such magnitude to be injurious or potentially injurious to the public health, safety, or general welfare; or

D. To maintain vegetation, including, but not limited to, trees, shrubbery, or grass, cultivated or uncultivated, which is overgrown, dead, decayed, or diseased such that it is likely to harbor rats, vermin, insects, or other nuisances which are dangerous to the public health, safety, or general welfare or that constitutes a fire hazard; or

E. To store any materials, equipment, vehicles, broken or discarded furniture, boxes, lumber, junk, trash, or debris in any yard area in such a manner or in such condition as to be detrimental to the public health, safety, or general welfare; or

F. To store trash or garbage cans, bins, boxes, or other such containers in other than single-family residential areas which are unclean, uncovered, or damaged in a front or side yard such that they may be visible from a highway as defined in section 8.08.020 on other than regularly scheduled pickup days and are detrimental to health, safety, or general welfare; or

G. To maintain attractive nuisances dangerous to children such as excavations, ponds, pools, or unenclosed or empty swimming pools; or

H. To store, discharge, hold, handle, maintain, use, or otherwise deal with hazardous or extremely hazardous wastes as defined by California Health and Safety Code sections 25117 and 25115. This includes the discharge or deposit of any source of hazardous or extremely hazardous waste into any sewer, storm drain or similar facility which will or may cause or result in the pollution of any underground or surface water. Examples include, but are not limited to, petroleum products, laboratory wastes, specimens (pathological or surgical), salt or equipment. Furthermore, any violation of federal, state, or local laws or regulations, including, but not limited to, California Health and Safety Code sections 25100 through 25185, and all their respective amendments, shall constitute a public nuisance under this part; or

I. To keep any animal, reptile, or insect in such a manner as to pose a threat, disturbance, danger or menace to persons or property of another or in a public right-of-way; or

J. To keep, operate or maintain any machinery which by reason of its dust, exhaust, noise, or fumes creates a health or safety hazard; or

K. To maintain or fail to maintain the property, or any building or structure thereon, in such condition so that it is defective, unsightly, or in such condition or deterioration or disrepair that it causes or will cause a health or safety hazard; or

L. To abandon or vacate any building or structure so that it becomes readily available to unauthorized persons; or

M. To maintain any building or structure in a state of partial construction where work is abandoned and for which a permit was issued and allowed to expire; or

N. To maintain on the property any accumulation of uncompacted fill over three feet in height over predominant grade and contrary to adjacent contour for any period of seventy-two hours; or

O. To maintain any of the following in front or side yards open to view from the street: packing boxes, broken or discarded furniture, household equipment or construction equipment/materials; or

P. Operation of any commercial activity in any zone without a business license and in direct violation of zoning, licensing, and building codes regarding locations, compatibility, and occupancy.

Q. To cultivate, maintain, process or store marijuana in violation of chapter 17.65 of this Code.

R. To engage in any activity which causes an unreasonably high noise.

Public nuisances ordered to be abated under the provisions of this chapter may be abated by rehabilitation, repair, demolition, removal, or other appropriate action as determined by the city administrator after compliance by the city with the procedures set forth in the following sections.

(Ord. No. 695, § 1, 1-26-21)

A. Whenever an enforcement officer has reason to believe that a nuisance exists or that an inspection is necessary to enforce any provision of this chapter, the officer may enter the premises at any reasonable time to perform the inspection or any other duty imposed by this chapter.

B. The enforcement officer shall present proper identification, state the purpose of the visit and request permission of the owner or responsible person to enter the premises. If entry is refused, the enforcement officer shall have recourse to every remedy provided by law to secure entry.

C. When the enforcement officer has first obtained a proper inspection warrant or other remedy provided by law to secure entry, no owner or responsible person shall fail or neglect, after proper request is made as provided in this chapter to promptly permit entry therein by the enforcement officer for the purpose of inspection and examination pursuant to this chapter.

(Ord. No. 695, § 1, 1-26-21)

A. Upon discovery of any public nuisance as defined in section 8.08.030, the enforcement officer shall notify the owner and any responsible person that the nuisance shall be abated by the city at such person's expense unless they appear at the stated time and place to show cause why there should be no abatement. The enforcement officer may delegate this authority under this section to such city officers and employees he or she deems appropriate.

B. The notice to appear or abate shall be substantially in the following form:

NOTICE TO APPEAR OR ABATE PUBLIC NUISANCE

YOU ARE HEREBY NOTIFIED as the Owner, Agent, Lessee or other person occupying or having control of the premises at (address), that pursuant to Section _______ of the Corning Municipal Code, the undersigned has determined that there exists upon the above-referenced premises a public nuisance, specifically (description of condition constituting nuisance). A copy of Section _______ is attached.

You are hereby required to abate this condition to the satisfaction of the undersigned within [30/10] days of the date of this notice or to appear at the office of the enforcement officer at 794 Third Street, Corning, California at _______; to show cause, if any exists, why the condition or use should not be abated by the city, and the expenses thereof charged to you as a personal obligation and/or made a lien upon the property.

Abatements to be accomplished in the following manner: (description of what needs to be done to remedy situation).

(Name of Department and Department Head)

By:

C. The enforcement officer shall post at least one copy of the notice in a conspicuous place on the property in question.

D. After giving notice as required above, the enforcement officer shall file a copy of the notice, together with an affidavit or certificate stating the time and manner in which such notice was given in the office of the city clerk. The failure of the owner or any other responsible person to receive such notice shall not affect in any manner the validity of any proceedings pursuant to this chapter.

Any owner or responsible person may, at their own expense and prior to the scheduled hearing, abate a declared nuisance in accordance with the provisions of the notice sent by the enforcement officer, provided that all necessary permits are first obtained. If the enforcement officer determines that the nuisance has been abated, the proceedings under this chapter shall be terminated.

(Ord. No. 695, § 1, 1-26-21)

A. At the time and place designated in the notice, the hearing officer shall hear and consider all relevant evidence, including, but not limited to, applicable staff reports, oral, physical, and documentary evidence regarding the alleged nuisance and proposed method of abatement. The hearing may be continued from time to time.

B. The enforcement officer shall bear the burden of proving by a preponderance of the evidence that a public nuisance exists.

C. All oral evidence shall be heard only on oath or affirmation.

D. The owner or any responsible person may be represented by anyone of their choice or may represent themselves.

E. The hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. However, irrelevant, or unduly repetitious evidence shall be excluded.

F. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but hearsay evidence shall not be sufficient by itself to support a finding unless it would be admissible over objections in civil actions in courts of competent jurisdiction in this state.

G. The parties in the hearing shall have the following rights:

1. To call and examine witnesses on any matter relevant to the issues of the hearing;

2. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;

3. To impeach any witness regardless of which party first called such witness to testify;

4. To rebut evidence against such parties;

5. To request the hearing officer to take official notice of any fact which would be subject to judicial notice by the courts of this state.

H. 1.

Within ten calendar days after the conclusion of the hearing, the hearing officer shall issue a written decision and where applicable, an order of abatement. This decision shall set forth the factual findings made by the hearing officer, a conclusion as to whether a public nuisance exists, the manner and timing of the abatement.

2. If the hearing officer determines that a nuisance exists which is likely to recur after abatement, the owner may be directed to take adequate precautions for a period of time not to exceed one year so that the nuisance will not recur. Copies of the decision shall be sent to the owner, responsible person and the enforcement officer and the city clerk.

(Ord. No. 695, § 1, 1-26-21)

The property owner or other responsible person may appeal the decision of the hearing officer to the city council within ten days of the date of the decision by submitting an appeal in writing to the city clerk. In the event of an appeal, the city council shall follow the procedure provided in section 8.08.080. Notice of the hearing shall be provided in accordance with the procedure set forth in section 8.08.060.

(Ord. No. 695, § 1, 1-26-21)

A. Any owner or responsible person may, prior to action by the city and at their own expense, abate the nuisance in the manner directed by the order of abatement. All necessary permits shall be obtained before any such abatement is carried out.

B. If the enforcement officer determines that the owner or responsible person has completely abated the nuisance, all proceedings under this chapter shall be terminated. If the nuisance has been completely abated by the property owner, the enforcement officer will document the termination of the abatement process with the city clerk.

C. If the enforcement officer determines that the nuisance still exists, it shall be abated by the city in the manner described in the order of abatement.

(Ord. No. 695, § 1, 1-26-21)

A. The enforcement officer shall keep an itemized statement of costs incurred by the city in inspecting and abating a public nuisance. Once the abatement is completed, the enforcement officer shall provide a copy of this statement to the owner of the property in question, to any responsible persons and the city administrator.

B. The owner or responsible person may request a hearing before the city council to contest the statement of costs. The request for a hearing shall be made within ten days of receipt of the statement to the city clerk or the right to hearing shall be deemed waived.

C. The city council shall review the statement of costs and any information presented by the owner or responsible person. The city council's decision shall be mailed to the owner and all responsible persons. The decision of the city council shall be final.

(Ord. No. 695, § 1, 1-26-21)

If the property owner does not pay the expense of abating the nuisance within thirty days after the city council confirms the costs of abatement, the cost shall become a special assessment against the real property upon which the nuisance was abated. The assessment shall continue until it is paid. The 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 procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection and enforcement of municipal taxes apply to this special assessment.

(Ord. No. 695, § 1, 1-26-21)

The city shall file in the office of the county recorder a certificate substantially in the following form:

NOTICE OF SPECIAL ASSESSMENT

Under the authority of Government Code section 38773.5, and sections 8.08.010 through 8.08.120 of the Corning Municipal Code, the city did on _______, 19 , abate a nuisance upon the real property hereafter described and then on _______, 19 , did assess the cost of the abatement upon the real property. The City of Corning claims a special assessment on the real property for the expense of doing the work in the amount of $_____. This amount is a special assessment against the real property until it is paid and discharged of record. The 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 procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection, and enforcement of municipal taxes apply to this special assessment. The real property referred to above, and upon which the special assessment is claimed is that certain parcel of land situated within the City of Corning, County of Tehama, State of California, more particularly described as follows:

CITY OF CORNING

Dated: _______

By: _______

(Ord. No. 695, § 1, 1-26-21)

A. Whenever any condition on, or use of property causes or constitutes, or reasonably appears, to cause or constitute an imminent or immediate danger to the health or safety of the public, the condition or use may be summarily abated by the city without notice or hearing. Reasonable attempts to contact the owner by phone or in person shall be made.

B. When summary abatement is necessary, it shall be ordered only by the city administrator, the Corning Police Chief, or the person performing their duties.

C. Summary abatement shall be limited to those actions necessary to eliminate the immediate threat to the public health and safety.

D. Notice of the summary abatement shall be provided to the owner or other responsible parties as provided for in section 8.08.060 as soon as practical.

E. The costs and expenses of a summary abatement shall be made a lien on the property and shall be collected pursuant to the procedure found in section 8.08.120.

(Ord. No. 695, § 1, 1-26-21)

Nothing in this chapter shall be deemed to prevent the city council from ordering the city attorney to commence a civil or criminal proceeding to abate a public nuisance under applicable Civil or Penal Code provisions as an alternative to the proceedings set forth in this chapter. Nothing in this chapter shall prevent the city from abating a nuisance pursuant to any other procedure established by city ordinance or state law.

(Ord. No. 695, § 1, 1-26-21)

A. It is unlawful for any person to remove, deface or mutilate any notice, order, statement, or resolution posted as required in this chapter.

B. It is unlawful for any person to obstruct, impede or interfere with any owner or his agent or with any representative of the city when engaged in performing any act reasonably necessary for the execution of the order of abatement.

C. Any person who shall violate this section shall be subject to the penalties set forth in chapter 8.25 of this Code.

(Ord. No. 695, § 1, 1-26-21)