Chapter 9.04 — NUISANCES

Editor's note— Ord. No. 928, § 1, adopted May 3, 2011, repealed Ch. 9.04, in its entirety and enacted new provisions to read as herin set out. Prior to this amendment, Ch. 9.04 pertained to similar subject matter. See Disposition of Ordinance Table for derivation.

A.

This chapter is enacted in order to define the conditions that constitute a public nuisance and provide procedures for the abatement of such nuisances. Nothing contained in this chapter is intended to preclude the town from pursuing any other lawful civil or criminal remedies in the place of or in addition to the remedies provided in this chapter.

B.

Nothing contained in this chapter shall prevent the town council from ordering the town attorney to commence a civil or criminal proceeding to abate a public nuisance in any manner authorized by state or local law as an alternative to, or in conjunction with, the remedies provided in this chapter.

C.

In any administrative, civil or special proceeding to abate a public nuisance, the prevailing party shall be entitled to reasonable attorneys' fees if the town elects, at the initiation of the administrative, civil or special proceeding to seek recovery of its own attorneys' fees.

D.

This chapter is intended as a remedy available to the town for enforcement of violations which may be the same or similar to violations that have also been the subject of administrative citation proceedings under Chapter 9.05 prior to the commencement of proceedings under this chapter.

E.

No provisions establishing appeal rights or appeal procedures that are contained within any other chapter of this Code shall be applicable to proceedings under this chapter.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

A.

Anything that is injurious to health, is indecent or offensive to the senses, obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property, or obstructs the free passage or use in the customary manner of any public park, square, street or highway, is a public nuisance.

B.

A public nuisance further includes any unlawful obstruction or encroachment upon any public property, including but not limited to any public street, highway, right-of-way, park, building or any other condition that is injurious of the health, safety or general welfare.

C.

Every day a public nuisance continues to exist shall be regarded as a new and separate offense.

(Ord. No. 932, 1, 5-1-2012)

A.

Any violation of the municipal code constitutes a public nuisance and may be abated in the manner provided for in this chapter. Therefore, this section is not the exclusive definition of what constitutes a public nuisance. This section supplements and is in addition to, other regulatory codes, statutes and ordinances enacted by the town, the state or any other legal entity or agency having jurisdiction.

B.

It is a public nuisance for any person, firm, or entity owning, leasing, occupying, or having charge or possession of any private property within the town, to maintain such property in such a manner that any of the conditions listed below are found to exist:

Any property, or any building or structure thereon, maintained in a condition that is so defective, unsightly, or in such condition of deterioration or disrepair as to be:

(a)

A health, fire or safety hazard to occupants of the property, adjacent or nearby properties or the general public; or

(b)

Visible from a public street, highway or private roadway, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of an adjoining or nearby property; or

(c)

Visible from an adjoining or nearby property, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of that adjoining or nearby property from which such condition is visible.

Building exteriors, roofs, landscaping, grounds, walls, retaining and crib walls, fences, gates, driveways, parking lots, planters, sidewalks, or walkways which are maintained in a condition that is so defective, unsightly, or in such condition of deterioration or disrepair as to be:

(a)

A health, fire or safety hazard to occupants of the property, adjacent or nearby properties or the general public; or

(b)

Visible from a public street, highway or private roadway, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of an adjoining or nearby property; or

(c)

Visible from an adjoining or nearby property, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of that adjoining or nearby property from which such condition is visible.

Any building or structure with broken, cracked or missing windows or doors, or which is partially destroyed, damaged, abandoned, boarded up, or otherwise dilapidated, as to be:

(a)

A health, fire or safety hazard to occupants of the property, adjacent or nearby properties or the general public; or

(b)

Visible from a public street, highway or private roadway, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of an adjoining or nearby property; or

(c)

Visible from an adjoining or nearby property, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of that adjoining or nearby property from which such condition is visible; or any building or structure which is permitted to remain in a state of partial or unfinished construction for more than sixty days without a valid building permit being in effect.

Any vacant or abandoned building or structure in which doorways, windows or other openings are not secured or maintained in a manner that would prevent access to the building or structure by members of the public.

Building materials, lumber used in construction, rubble, broken asphalt, concrete or similar construction materials visible from a public street, highway, or private roadway or an adjacent or nearby property, which remains for a period of more than sixty days without a valid building permit being in effect so as to be:

(a)

A health, fire or safety hazard to occupants of the property, adjacent or nearby properties or the general public; or

(b)

Visible from a public street, highway or private roadway, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of an adjoining or nearby property; or

(c)

Visible from an adjoining or nearby property, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of that adjoining or nearby property from which such condition is visible.

Except when lawfully stored or displayed in connection with a valid and licensed business, salvage materials, scrap metals, sinks, fixtures, abandoned refrigerators or other appliances that are so defective, unsightly, or in such a condition of deterioration or disrepair as to be:

(a)

A health, fire or safety hazard to occupants of the property, adjacent or nearby properties or the general public; or

(b)

Visible from a public street, highway or private roadway, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of an adjoining or nearby property; or

(c)

Visible from an adjoining or nearby property, and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of that adjoining or nearby property from which such condition is visible.

Abandoned, broken, unused, neglected, or unprotected equipment or machinery, remaining on the property for more than thirty days and visible from the public street, highway, or private roadway.

The stockpiling of dirt (except as permitted by a grading permit issued under Chapter 15.20) or accumulation of litter, trash, junk, feces or debris on any portion of the property that is unenclosed or semi- enclosed as to be:

(a)

A health, fire or safety hazard to occupants of the property, adjacent or nearby properties or the general public; or

(b)

Visible from a public street, highway or private roadway and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property or materially detrimental to the use and enjoyment of an adjoining or nearby property; or

(c)

Visible from an adjoining or nearby property and of such a nature or character that it may reasonably be concluded that such condition would tend to be materially detrimental to the value of nearby or adjoining property, or materially detrimental to the use and enjoyment of that adjoining or nearby property from which such condition is visible.

Construction debris boxes placed on a public street (except when allowed by an encroachment permit issued pursuant to Chapter 12.08) or on private property when visible from a public street, highway, or private roadway for more than fifteen days while no construction is occurring under a valid permit.

Dead, decayed, diseased or hazardous trees, weeds or vegetation which constitute a fire hazard or threat to the life, health, or safety of the occupants of the property, adjacent or nearby properties, or the general public.

Refuse, debris, and waste materials which by reason of location, size, or character may constitute a fire hazard or threat to the life, health or safety of the occupants of the property, adjacent or nearby properties, or the general public.

Any condition of vegetation overgrowth (including weeds, trees or brush) which:

(a)

Encroaches into, over, or upon any public right-of-way including, without limitation, streets, alleys, or sidewalks, so as to constitute either a danger to public safety or property or an impediment to public travel; or

(b)

Because of its size, location, or character constitutes a fire hazard or other threat to the life, health, or safety of the occupants of the property, adjacent or nearby properties, or the general public.

Any property with accumulations of grease, oil or hazardous material on paved or unpaved surfaces, driveways, buildings, walls or fences, or from which any such material flows or seeps onto any public street or other public or private property, or which is likely to seep or migrate into any water body or into the underground water table.

C.

It is the policy of the town that when there are special situations as described by this subsection which may cause or contribute to any of the conditions described by subsection 9.04.030(B) that the town give special consideration to the circumstances surrounding the violation in its abatement and administrative fines proceedings in accordance with the guidelines set forth by this subsection:

Definitions. As used by this subsection the following shall apply:

(a)

"Elderly individual" shall mean an individual over the age of sixty-five (65) years old, and who does not reside with a person that has the physical and/or mental capability to maintain the property where the elderly individual resides in a condition that is not described by subsection 9.04.030(B) of this section.

(b)

"Disabled individual" shall mean an individual that meets the definition of a person having a physical or mental disability under the California Fair Employment and Housing Act set forth by Part 2.8 of Division 3 of Title 2 of the California Government Code (Government Code Section 12900 et seq.), as it may be amended from time to time, and because of which disability experiences great difficulty in keeping the individual's property free from any condition that is in violation of any of the provisions of subsection 9.04.030(B) of this section.

(c)

"Low income individual" shall mean, an individual who both owns and occupies a residence that is deemed or alleged to be in violation of any condition described by subsection 9.04.030(B) of this section, and has an income below the highest level of lower income and contained within, or incorporated by, the Corte Madera Housing Element of the general plan, as it may be amended or modified from time to time.

(d)

"Enforcement officer" shall mean the town manager or designee for proceedings under this chapter, and the citation officer for proceedings under Chapter 9.05.

(e)

"Hearing board" shall mean the town council for proceedings under this chapter, and the planning commission for proceedings under Chapter 9.05.

Upon any person who is in violation of any of the conditions in subsection 9.04.030(B), or any person upon that person's behalf, establishing to the satisfaction of the enforcement officer that he/she is an elderly individual, disabled individual or a low income individual, the town may afford the violator an additional period of time or additional notice to the time and notice provisions established by this chapter or Chapter 9.05 that the officer deems appropriate to remove or correct the conditions that the officer believes to be violated. It is the intent of the town council in adopting this ordinance that the enforcement officer provide a violator that is covered by this section with guidance, suggestions, and an additional opportunity to implement such guidance or suggestions which may better enable the violation to be removed or corrected by the responsible party at its own expense without the need for coercive action to be taken by the town.

If, despite the efforts made by the Enforcement Officer under this subsection 9.04.030(C), the violation continues, then the enforcement officer shall have the discretion to consider the special circumstances giving rise to the violation and its continued existence in determining the fine to be imposed under Chapter 9.05. The enforcement officer shall also have the discretion to waive the deposit of the administrative penalty required by Section 9.05.070(B) if the elderly individual, disabled individual, or low income individual demonstrates a financial hardship in making the deposit.

If the violation becomes a subject of a public hearing under this Chapter or an appeal hearing under Chapter 9.05, and an elderly individual, disabled individual, or low income individual is the owner or other person alleged to be responsible for the violation, the hearing board shall have the discretion to take into consideration the special circumstances giving rise to the violation and its continued existence, in making its determination and abatement orders under this chapter, or reducing or waiving any fines under Chapter 9.05.

The authority provided by this subsection 9.04.030(C) shall be entirely discretionary with the enforcement officer or hearing board, whichever may be applicable. Nothing in this subsection 9.04.030(C) shall create any rights not already provided under any other provision of this chapter, Chapter 9.05, or as may otherwise be provided by state law. Nothing in this subsection 9.04.030(C) shall require the enforcement officer or hearing board, whichever may be applicable, to perform any inquiry or investigation to determine whether a person is qualified under this subsection, and nothing in this subsection is intended to compel any person to provide any information regarding age, disability, or income that the person chooses not to release or volunteer to any member of the town.

Nothing in this subsection 9.04.030(C) is intended to apply to a violation that is deemed or alleged by the town to be a fire, health, or safety hazard to the occupants of the property, adjacent or nearby properties, or the general public.

This subsection 9.04.030(C) is merely a statement of policy. Nothing in this subsection is intended to create a mandatory duty upon the town or any of its members or create a right of action against the town or any of its members.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

Whenever it is determined that any property within the town is being maintained in a manner that constitutes a public nuisance, the town manager or designee may send written notice to the owner of the property ordering the owner to abate the public nuisance. The written notice shall provide the property owner 30 days to abate the nuisance. A shorter time period may be provided if the nuisance condition represents an immediate threat to the health or safety of the public or to the residents of the property. Service shall be deemed complete at the time notice is personally served or deposited in the mail by first class mail, postage prepaid. Notice shall be mailed to the property address and to the owner and other responsible persons at the address that appears on the last equalized assessment roll, or the supplemental roll, of the county, whichever is more current. Failure of any person to receive notice shall not affect the validity of any proceedings taken hereunder. The town manager or designee may grant extensions of time to complete the abatement if the town manager or designee determines that good cause exists for an extension and such extension will not create or perpetuate a situation imminently dangerous to life or property. Reasonable restrictions may be placed on any extension.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

A.

If the owner of the property fails or refuses to comply with the notice to abate the public nuisance within the time provided by such notice, the town manager or designee shall cause notice of a public hearing before the town council to be given in the manner provided for in this chapter. The hearing date shall be no less than ten days after service of the notice.

B.

The notice shall inform the property owner of the date, time and location of the hearing and shall be substantially in the following form:

NOTICE OF PUBLIC HEARING

NOTICE IS HEREBY GIVEN that on the ___ day of ___, at the hour of _______, the Town Council of the Town of Corte Madera shall hold a public hearing in the council chambers located at ______________.

The purpose of the hearing is to determine whether the property located at _______ constitutes a public nuisance subject to abatement. You are hereby ordered to appear to show cause why this property should not be declared a public nuisance and the conditions abated in accordance with Chapter 9.04 of the Corte Madera Municipal Code. Failure to appear shall constitute a waiver of your rights to appear and present evidence.

The conditions constituting the nuisance are: _______.

The methods of abatement available are: _______.

If you voluntarily abate the conditions described above, you must advise the town manager in writing of the date of completion of such abatement and arrange for an inspection of the property by the town. You may request a continuance of the hearing in writing if, for good cause, the voluntary abatement cannot be completed prior to the hearing date.

If the property is found to constitute a public nuisance, you shall be ordered to abate the conditions constituting the public nuisance by rehabilitation, removal, repair, demolition, or by some other appropriate method.

If the conditions constituting the public nuisance are not abated by the time established by order of the town council, such nuisance may be abated by town authorities and the cost of such abatement made a lien or special assessment on the property.

The hearing procedures and provisions applicable to this nuisance abatement proceeding are set forth by Chapter 9.04 of the Corte Madera Municipal Code which is attached to this notice for your reference.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

The town clerk, or such other town official as may be designated by the town manager, shall serve a copy of the notice of public hearing in the manner and method set forth by Section 9.04.040 and shall cause a copy of the notice to be conspicuously posted on the property. The notice shall be posted and served at least ten days before the date fixed for the public hearing. Proof of posting and service of such notices shall be made by declaration under penalty of perjury filed with the town clerk.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

A.

At the time stated in the notice, the town council shall hear and consider all relevant evidence, objections or protests, and shall receive testimony from owners, witnesses, persons who reside at the property, town personnel and other interested persons relative to the alleged public nuisance and the abatement of the public nuisance. The hearing may be continued from time to time by the town council.

B.

As soon as practicable following the close of the hearing, the town council shall render a decision by resolution supported by findings. If the town council finds that a public nuisance exists, and there is sufficient cause to order abatement, the town council shall order the abatement of the public nuisance within the time and in the manner set forth in the decision.

C.

The resolution of the town council shall inform the property owner that the time for judicial review is governed by Section 1094.6 of the state Code of Civil Procedure. The resolution and order of the town council shall be final.

D.

A copy of the town council resolution shall be posted on the property and served upon the owner or owners of the property in accordance with the provisions of Section 9.04.040. Upon abatement in full by the owner, confirmation by the town, and the owner's payment of all ordered costs and expenses, the proceedings hereunder shall terminate.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

A.

If the nuisance is not abated in the time and manner set forth in the resolution ordering abatement, the town manager or designee shall cause the nuisance to be abated by town forces or by private contractor. The town attorney is authorized to take such action as may be necessary to gain entry upon the property for purposes of abating the public nuisance.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

A.

The town manager or designee shall keep an itemized report showing the full costs of abatement. Such costs shall include the cost of identifying, declaring and abating the public nuisance and shall include inspection costs, investigation costs, costs to repair and abate the conditions constituting the public nuisance and the costs of levying an abatement lien or special assessment on the property. The costs shall also include attorneys' fees if elected by the town as provided for in Section 9.04.010C.

B.

The town manager or designee may invoice the property owner for the full costs of abatement. If full payment is not received within fifteen days of the date the invoice was mailed to the property owner, the town manager or designee shall forward an itemized report in writing to the town clerk specifying the full costs of abatement. The town clerk shall set a hearing before the town council so that the council can determine the correctness and reasonableness of the abatement costs. The town clerk shall cause a copy of the itemized report, with notice of the town council hearing, to be posted on the property and served on the owner of the property in the manner required by Section 9.04.040, at least ten days before the date set for the hearing.

C.

At the time and place fixed for the hearing, the town council shall consider the itemized report together with any objections or protests. The town council may revise, correct or modify the itemized report, and shall confirm the itemized report as revised, corrected or modified, by resolution. The decision of the town council shall be final and conclusive.

D.

The town may collect its full costs of abatement as set forth in the itemized report confirmed by council resolution from the responsible person or persons identified in the resolution in any manner authorized by law including: (1) recording a nuisance abatement lien against the property on which the public nuisance was maintained; or (2) imposing a special assessment against the property on which the public nuisance was maintained.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

A.

Before recording a nuisance abatement lien against the property on which the public nuisance was maintained, the town manager or designee shall give notice to the owner of record. The notice of lien shall be served on the owner at the address that appears on the last equalized assessment roll, or the supplemental roll, whichever is more current. The notice shall be served in the same manner as a summons in a civil action in accordance with sections 415.10 et seq. of the state Code of Civil Procedure. If the owner of record after diligent search cannot be found, notice may be served by posting a copy thereof in a

conspicuous place upon the property for a period of ten days, and by publication thereof in a newspaper of general circulation published in Marin County, pursuant to Government Code section 6062.

B.

The nuisance abatement lien shall be recorded in the Marin County Recorder's Office and from the date of recording shall have the force, effect and priority of a judgment lien.

C.

The nuisance abatement lien shall specify the amount of the lien; that the lien is imposed on behalf of the Town of Corte Madera; the date of the abatement order as set by the town council; the street address, legal description and assessor's number of the parcel on which the lien is imposed; and the name and address of the recorded owner of the parcel.

D.

In the event the lien is discharged, released or satisfied, either through payment or foreclosure, the town shall record a notice of discharge containing the information specified in subparagraph C above.

E.

The nuisance abatement lien may be foreclosed by the town in an action for a money judgment. As part of its foreclosure action, the town may recover its costs incurred in processing and recording the lien and in providing notice to the property owner.

(Ord. No. 928, § 1(Exh.A), 5-3-2011)

A.

As an alternative to recording a nuisance abatement lien, the town may make the cost of abatement a special assessment against the property on which the nuisance was maintained. After adoption of the resolution by the town council pursuant to Section 9.04.090, a copy of the resolution shall be transmitted to the tax collector. It shall be the duty of the tax collector to add the full amount of the abatement costs to the next regular bill of taxes levied against the property. The abatement costs shall be collected at the same time and same manner as ordinary municipal taxes and shall be subject to the same penalties and procedure for foreclosure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment.

B.

Notice shall be given by certified mail to the property owner if the property owner's identity can be determined from county assessor or county recorder records. Notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments. The tax collector's power of sale shall not be affected by the failure of the property owner to receive notice.

(Ord. No. 928, § 1(Exh. A), 5-3-2011)

Upon entry of a second or subsequent civil or criminal judgment within a two year period finding that an owner of property is responsible for a condition that may be abated in accordance with this chapter, except conditions abated pursuant to Health and Safety Code section 17980, the court may order the owner to pay treble the costs of the abatement.

(Ord. No. 928, § 1(Exh. A), 5-3-2011)

A.

Notwithstanding the provisions of this chapter, whenever the town manager or designee determines that a public nuisance as defined in this chapter or in any other applicable law, constitutes an immediate threat or hazard or danger to persons or property, the town manager or designee may institute the following procedures.

B.

The town manager or designee shall attempt to make contact by personal interview, telephone or any other manner with the owner of the property or the person occupying or otherwise in real or apparent charge and control of the property. If such contact is made, the town manager or designee shall notify such person of the danger involved and require that such condition be immediately abated so as to prevent harm to persons and property.

C.

In the event the town manager or designee is unable to make contact, or if after notification, the person or persons contacted do not take the action specified by the town manager or designee to abate the public nuisance in the period provided by the town manager or designee, then the town manager or designee shall abate the public nuisance with the use of town forces or a contractor retained by the town.

D.

The town manager or designee shall keep an itemized account of the costs incurred by the town in abating the public nuisance. Such costs may be recovered by the town as provided for in Section 9.04.090D.

(Ord. No. 928, § 1(Exh. A), 5-3-2011)