Costa Mesa Municipal Code Art. 2 Public Nuisance Abatement Procedures, Appeals and Cost Recovery

(a) The director may use all lawful means to enter upon any property in the city for the purpose of inspecting the property for a public nuisance and/or for the removal of any public nuisance from the property.

(b) If a property owner or occupant refuses to allow the director entry upon the property for inspection or abatement of a public nuisance, the director shall apply to a judge of a court of competent jurisdiction for a warrant authorizing the entrance upon such property to perform an inspection or abatement of such nuisance.

(Ord. No. 13-04, § 1, 10-1-13)

(a) Whenever the director finds that any premises or property within the city is maintained contrary to the provisions of this chapter, the director shall give notice to the responsible person, as reflected in the most recent Orange County Assessor's parcel roll.

(b) The notice to abate provided for in this section shall be headed "NOTICE OF PUBLIC NUISANCE" in letters not less than one inch in height and which shall, in legible characters, direct the abatement of the nuisance, referring to this chapter for particulars.

(c) The notice shall indicate the nature of the alleged nuisance, the assessor's parcel number and street address, if any, of the property involved, and shall contain a description of the property in general terms reasonably sufficient to identify the location and extent of the nuisance.

(d) The notice shall set forth a reasonable time limit for correction of the violation(s) and of the public nuisance, and may set forth suggested methods for correcting the public nuisance.

(e) Any notice to abate issued pursuant to a failure to maintain a residential property acquired through foreclosure shall provide notice of intent to abate pursuant to section 2929.3 of the California Civil Code.

(Ord. No. 13-04, § 1, 10-1-13)

(a) The notice, in form and content as required by section 20-15 shall be served by the following method:

(1) By posting the notice at a conspicuous place on the land, or upon the premises, or upon any structure thereon, or upon the abutting public right-of-way; and

(2) By sending a copy of the notice by certified or registered mail addressed to the owner or other person in charge or control of the property, at the address shown on the last available assessment roll. The notice shall be placed in the United States Mail, postage prepaid, and shall be deemed served upon verification of receipt.

(b) Failure of the owner or other person in charge of or control of the property to actually receive such notice shall not affect the validity of any proceedings under this chapter.

(Ord. No. 13-04, § 1, 10-1-13)

Appeals pursuant to this chapter shall be heard by the city council. The responsible person, owner, occupant or any person claiming any legal or equitable interest in the affected property shall have the right of appeal the director's decision.

(a) The appeal shall be filed with the director within 10 calendar days following the service of the notice of abatement on the responsible person. The appeal shall be in writing and shall state the grounds for the appeal. The appeal shall be accompanied by the fee required for the taking of any such appeal, which fee shall be set by city council resolution. The city council shall have the discretion to waive or modify the appeal fee if the responsible person demonstrates that no public nuisance existed at the time the notice to abate was issued.

(b) The director shall set the matter for a de novo hearing before the city council at a date and time not less than 10, nor more than 45 calendar days following the filing of the appeal. The director shall then notify the appellant, adjacent property owners and any other persons as may be deemed appropriate by the director by mail of the date and time of the hearing on appeal. The city council may, in its discretion, continue the hearing date for good cause.

(Ord. No. 13-04, § 1, 10-1-13)

(a) At the time and place set for the appeal, the city council shall hold a de novo hearing and shall afford the appellant and other interested parties a reasonable opportunity to be heard in connection therewith.

(b) To allow appellants the opportunity to fully present their arguments, the formal rules of evidence shall not apply and all relevant evidence may be considered. However, the city council has the discretion to exclude irrelevant evidence, i.e., evidence that does not pertain to the issue(s) on appeal. The city council also has the discretion to exclude evidence it deems needlessly repetitive.

(c) If the city council finds from the relevant evidence that a public nuisance exists and the notice of abatement was in conformance with the provisions of this chapter, it shall require the responsible person to comply with the order of abatement within 30 calendar days after the date of mailing of the city council's decision to the responsible person, unless a longer period of time to abate the nuisance is specifically authorized by the city council's order.

(d) If the nuisance is not abated within the thirty-day period, or within such longer period as the city council may provide, the director is expressly authorized and directed to obtain the proper legal authorization to enter upon the premises for the purpose of abating the nuisance, and/or request the city attorney to file a criminal complaint against the subject property owner and/or occupant.

(Ord. No. 13-04, § 1, 10-1-13)

The director shall mail by certified or registered U.S. Mail a copy of the city council's decision to the responsible person, and to any other person requesting the same within five working days after the adoption thereof. The city council's decision shall be final, and shall specify that any action to review its decision shall be commenced no later than the time period set forth in the California Code of Civil Procedure Sections 1094.5 and 1094.6.

(Ord. No. 13-04, § 1, 10-1-13)

(a) Whenever the director is required to cause the abatement of a public nuisance in accordance with the provisions of this chapter, the director shall keep an accounting of the costs thereof, including incidental expenses concerning such abatement. The term "incidental expenses" shall include, but not be limited to, the actual expenses and costs to the city in the preparation of notices, specifications and contracts, inspection of the abatement work, the costs of printing and mailing required under this chapter, and shall include the costs of attorneys' fees.

(b) Within 180 days of the abatement of the nuisance, the director shall cause to be prepared an itemized statement of costs and set the same for a hearing before the director. Upon receipt of the report itemizing the costs and expenses incurred in abating the nuisance, including incidental expenses, the director shall cause a notice of hearing to be issued, which form of notice shall be headed in letters not less than one inch in height as follows: "NOTICE OF COSTS OF ABATEMENT AND HEARING." The date and time for the cost of abatement hearing shall be within 45 days of the issuance of the itemized statement. The notice shall otherwise be in form and content as set forth in section 20-15 and shall be served upon the responsible person in the manner set forth in section 20-16, but in no event no later than 10 days prior to the date of the hearing.

(Ord. No. 13-04, § 1, 10-1-13)

(a) At the time, date and place set for the hearing on the costs of abatement, which hearing shall be at least seven business days after the date of the giving of the notice as set forth in section 20-16, the director shall conduct a hearing on the report. The responsible person shall be afforded an opportunity to be heard with respect to the costs and expenses set forth in the report. Any objections or protests raised by any of the persons liable to be assessed for the costs of abating the nuisance may be submitted orally or in writing.

(b) Upon conclusion of the hearing, the director shall make such revisions, corrections or modifications to the report as may be deemed appropriate, after which the report shall be confirmed as submitted, or as revised, corrected or modified. The hearing on the costs of the abatement may be continued upon good cause shown.

(c) The director shall give notice in accordance with the provisions of section 20-16 to the responsible person within five days after the conclusion of the hearing as to the director's final determination regarding the costs of abatement.

(d) Upon issuance of the report, the director shall set a hearing before the city council to receive and consider the report.

(Ord. No. 13-04, § 1, 10-1-13)

(a) At the time and place fixed for receiving and considering the report, the city council shall hear and pass upon the statement of costs, together with any objections or protests raised by any of the persons liable to be assessed for the cost of abating the nuisance. Thereupon, the city council shall make such revision, correction and modification to the statement as it may deem just, after which the statement is submitted, or as revised, corrected or modified shall be conformed.

(b) The city council shall adopt a resolution making its findings and determinations with respect to the amounts to be assessed with respect to the costs of abating the nuisance. The amounts so approved by the city council shall be a special assessment upon the property as that property is shown upon the last available assessment roll.

(c) The city clerk shall give notice in accordance with the provisions of section 20-16 to the responsible person within five days after the adoption of the city council's resolution regarding the costs of abatement. The city council's decision shall be final, and shall specify that any action to review the decision shall be commenced no later than the time period set forth in the California Code of Civil Procedure Sections 1094.5 and 1094.6.

(Ord. No. 13-04, § 1, 10-1-13)

The director shall provide the director of finance a certified copy of the resolution. The director of finance shall file the certified copy of the resolution and the amounts approved in the resolution with the county auditor. The assessment contained therein shall be filed in the form and manner required by the county auditor.

(Ord. No. 13-04, § 1, 10-1-13)

Any person liable for the costs of abatement may pay such costs of abatement at any time prior to the hearing before the director or the city council, as the case may be.

(Ord. No. 13-04, § 1, 10-1-13)

The total cost for abating the nuisance shall constitute a special assessment against the parcel of land to which it relates.

(a) Recordation of notice. A notice of the special assessment shall be recorded in the Orange County Recorder's Office.

(b) Manner of collection. After recordation, the special assessment may 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 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. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, before the date on which the first installment of the taxes would become delinquent, the cost of abatement shall not result in a lien against the real property, but instead shall be transferred to the unsecured roll for collection.

(c) Form of notice. The notice of special assessment shall be in a form substantially as follows:

(Ord. No. 13-04, § 1, 10-1-13)

(a) The procedure for abatement set forth in this chapter is an alternative procedure to any other procedure permitted by state or local law and shall neither prohibit the use of any other lawful abatement procedure nor be deemed to prevent the city council from ordering the commencement of any civil action to abate a nuisance as an alternative to or in conjunction with the proceedings set forth in this chapter. In addition thereto, any nuisance that is defined as a misdemeanor by any provision of any city code may be abated by criminal prosecution.

(b) The prevailing party in any action, administrative proceeding, or special proceeding to abate a nuisance pursuant to this chapter shall be entitled to its reasonable attorneys' fees if: (1) the city elected to seek recovery of its own attorneys' fees at the initiation of the action, administrative proceeding, or special proceeding; and (2) the award of attorneys' fees does not exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.

(c) Notwithstanding any other provision of this chapter, the costs of abatement, including incidental expenses, as confirmed either by the director or the planning commission after appeal, may be assessed against the owner(s) of the property subject to abatement as a debt personal to the owner(s) and as a lien on the property. In the event the director or the city council assesses the costs of abatement against the owner(s) personally, the assessment shall be due and payable within 20 days after service thereof in accordance with section 20-16. In the event such assessment is not paid with 20 days, the city may commence any legal proceeding available to it including, but not limited to, suit in small claims court, municipal court or superior court to recover the costs of abatement, or may permit the lien to be assessed against the property, or both. Any determination as to the method of collection shall not operate or be construed as an election of remedies.

(Ord. No. 13-04, § 1, 10-1-13)

If, after declaration of public nuisance, the director finds the subject property to contain substandard housing and this housing is generating revenue income, he may file a notice of noncompliance with the State Franchise Tax Board pursuant to section 24436.5 of the Revenue and Taxation Code to eliminate tax benefits generated by the property from the owner's California tax return.

(Ord. No. 13-04, § 1, 10-1-13)

(a) Notwithstanding any other provisions of this chapter with reference to the abatement of public nuisances, whenever the city manager determines that a property, a building or structure is structurally unsafe, or constitutes a fire hazard, or is otherwise dangerous to human life, and such condition constitutes an immediate hazard or danger, he may, without observing the provisions of this chapter with reference to abatement procedures, immediately and forthwith abate the existing public nuisance.

(b) Any abatement pursuant to this section shall be limited to the actions necessary to neutralize the immediate danger only. A post-abatement hearing shall be provided to the responsible person.

(Ord. No. 13-04, § 1, 10-1-13)

(a) In the event any structure which is rented or occupied for habitable dwelling purposes is determined to be a public nuisance and abated by the city due to unsafe or hazardous living conditions under the provisions of Titles 1 or 5 of the Costa Mesa Municipal Code, or due to illegal use or occupancy of the structure for habitable dwelling purposes, any tenant evicted as a result of such abatement, or notice of such abatement, who is not then in arrears or default of rent, and who has not caused or substantially contributed to the condition giving rise to the abatement, shall be entitled to receive from the property owner relocation assistance upon vacating the structure. For purposes of this section, relocation assistance shall consist of two months' rent and refund of any security deposit pursuant to Civil Code section 1950.5, or other arrangements agreeable to the tenant as evidenced by a written agreement between the tenant and the property owner.

(b) If the property owner is required to evict the tenants with less than 30 days' notice due to the condition of the structure, the owner shall provide the tenant with alternate, safe and legal housing for 30 days after notice of eviction. This requirement for alternate housing shall be in addition to relocation assistance provided for in subdivision (a) of this section.

(Ord. No. 13-04, § 1, 10-1-13)

The tenants' entitlement to relocation assistance provided by this chapter is conditioned upon the tenants' compliance with the eviction notice.

(Ord. No. 13-04, § 1, 10-1-13)

The property owner is not required to pay relocation assistance to tenants evicted from residential units that become unsafe or hazardous resulting from earthquake, flood, or other natural disaster except where such condition remains unrepaired for more than three years after the disaster, or from recent events that are beyond the control of the property owner, including, but not limited to, damage caused by tenants.

(Ord. No. 13-04, § 1, 10-1-13)

(a) In the event the property owner fails, neglects or refuses to pay to the tenant upon vacating such structure the relocation assistance as defined in section 20-29, the city may cause the payment of such relocation assistance, including any security deposit and alternate housing costs, and charge the costs thereof against the property or its owner.

(b) The cost of such relocation assistance, if provided, shall be paid from a reimbursable fund and may be made a special assessment against the property involved, and may be made a personal obligation of the property owner.

(Ord. No. 13-04, § 1, 10-1-13)

(a) The city council shall establish a special reimbursable fund to be designated for abatement relocation assistance for evicted tenants. Payments shall be made out of said fund upon the demand of the director or the building official to defray the costs and expenses which may be incurred by the city in causing the payment or relocation assistance to evicted tenants of abated structures.

(b) Maintenance of reimbursable fund. The city council may at any time transfer to the reimbursable fund, out of any money in the general fund of the city, such sums as it may deem necessary in order to expedite the performance of the abatement, and any sum so transferred shall be deemed a loan to the reimbursable fund and shall be repaid out of the proceeds of the collection thereof. All funds recovered from the property owner shall be paid to the finance director, who shall credit the same to the reimbursable fund.

(Ord. No. 13-04, § 1, 10-1-13)