Cupertino Municipal Code Ch. 1.09 Nuisance Abatement

This chapter shall be known as the "nuisance abatement ordinance of the City of Cupertino." It is adopted pursuant to the authority granted to city legislative bodies in Article 6, Division 3 of the Government Code (commencing with § 38771) of the State.

(Ord. 20-2203, § 3, 2020)

This chapter is enacted to protect the general public health, safety, and welfare from public nuisances and to promote the free use of property and the comfortable enjoyment of life or property within the limits of the city.

(Ord. 20- 2203, § 3, 2020)

A. "Abate" or "Abatement" means to repair, replace, remove, destroy, or otherwise remedy the condition in question by such means and in such manner and to such an extent as the Code Enforcement Officer in his or her judgment determines is necessary in the interest of the general health, safety, and welfare of the community.

B. "Appeal Hearing Officer" means a person, agency, or body designated by the City Manager to hear and decide appeals under this Chapter 1.09. The Appeal Hearing Officer shall not be any enforcement officer or supervisor. The employment, performance evaluation, compensation, and benefits of an Appeal Hearing Officer, if any, shall not be directly or indirectly conditioned upon the decisions of the Appeal Hearing Officer.

C. "Incidental Expenses" means the actual costs incurred by the city in the enforcement of this chapter, including, but not limited to hearing costs; staff costs; inspection costs; and costs of preparing, copying and mailing documents.

D. "Public Nuisance" means:

1. Any condition that affects 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. A public nuisance includes, but is not limited to:

a. A condition that is, or is likely to become, injurious to health, safety or welfare or indecent or offensive to the senses;

b. An obstruction to the free use of property, such as interference with the comfortable enjoyment of life or property;

c. An unlawful obstruction to the free passage or use of any public park, square, street, highway, right-of-way, navigable lake, river, bay, stream, canal or basin;

d. Any unlawful act identified in § 9.22.020;

e. A condition that diminishes property values and degrades the quality of life within the city; or

f. A substandard building as defined in the current Uniform Housing Code adopted by the city.

2. Any building or structure set up, erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of any zoning or building ordinance of the city, or any rule, regulation or order issued or promulgated pursuant thereto, and/or any use of any land, building or premises conducted, operated or maintained contrary to the provisions of any zoning or building ordinance of the city, or any rule, regulation or order issued or promulgated pursuant thereto.

3. Any failure to comply with the provisions of the below listed titles and chapters of this code:

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E. "Private Nuisance" means any nuisance condition that is not a public nuisance.

F. "Record Owner" means the person or persons described as the owner or owners of record of the parcel of land on which the nuisance is maintained, by the last equalized assessment roll or the supplemental roll, whichever is more current.

(Ord. 20-2203, § 3, 2020)

When the Code Enforcement Officer has inspected or caused to be inspected any condition on any parcel of land or structure and has found and determined that such condition on such parcel of land or structure constitutes a public nuisance, the Code Enforcement Officer may elect proceed as outlined in § 1.09.050 and § 1.09.100, in addition to other enforcement remedies authorized by this code.

(Ord. 20-2203, § 3, 2020)

A. Upon determining that a condition constitutes a public nuisance, the Code Enforcement Officer may elect to issue a notice and order directed to the record owner of the property on which the Code Enforcement Officer has determined that a public nuisance exists. The notice and order shall contain all of the following:

1. The street address and a description sufficient for identification of the property and any structures where the violation occurred or is occurring.

2. A statement that a condition deemed to be a public nuisance as defined in § 1.09.030 has been found to exist, with a brief and concise description of the conditions found to constitute a public nuisance under the applicable provisions of this code.

3. An order specifying:

a. The curative action required to be taken; and

b. The time, generally not less than seven days, in which completion of the curative action must occur, as determined by the Code Enforcement Officer. Any subsequent order, if issued, may require immediate compliance if a notice of violation has previously been served concerning the same violation of the code.

4. A statement advising that if the abatement work is not commenced within the time specified, and diligently pursued until completion, the city may proceed to cause the work to be done and charge the costs thereof against the parcel or its owner as a lien against the parcel and/or as a special assessment, and such lien or special assessment may be recorded, and that such property may be sold after three years by the Tax Collector for unpaid delinquent assessments, and that such remedy shall be in addition to any other rights, remedies, or actions available to the city by reason of the same violation as described in the notice and order.

5. A statement indicating whether the city has elected to seek, as a part of abatement costs, reasonable attorneys' fees incurred in abating the nuisance. Such notice shall also state that if the city elects to seek reasonable attorneys' fees, the prevailing party may be entitled to seek reimbursement of reasonable and necessarily incurred attorneys' fees, provided any such fees awarded against the city shall not exceed the amount of reasonable attorneys' fees incurred by the city.

6. A statement advising:

a. That the record owner may appeal the notice and order to abate nuisance pursuant to § 1.10.070;

b. Such appeal must be filed within ten business days from the date of service of the notice and order; and

c. That failure to appeal will constitute a waiver of all rights to an administrative hearing to contest the determination of nuisance and required abatement.

B. Service of the notice and order shall be made as provided in § 1.10.040.

(Ord. 20-2203, § 3, 2020)

A. The city shall keep an accurate and itemized account of the abatement costs incurred by the city, including incidental costs and all other reasonably related costs, including, if the city so elected, reasonable attorneys' fees incurred in abating the nuisance. Such account shall indicate, where appropriate and feasible, the costs attributable to each separate parcel of land upon which the abatement work is performed. Following completion of all abatement work, the city shall prepare a final itemized written report of costs showing the total abatement costs.

B. A notice accompanying the report of costs shall provide that the record owner must pay the city for the cost of abatement within 30 days of service of the report of costs, or appeal the reasonableness of the costs within ten business days of the date of service, pursuant to § 1.09.070.

C. The notice shall also provide that if the costs are not paid, the city may charge the costs against the parcel or its owner as a lien against the parcel and/or as a special assessment, and such lien or special assessment may be recorded, and that such property may be sold after three years by the Tax Collector for unpaid delinquent assessments, and that and such remedy shall be in addition to any other rights, remedies, or actions available to the city to recover such costs.

D. The notice and a copy of the report of costs shall be served on the record owner as provided in § 1.10.040.

(Ord. 20-2203, § 3, 2020)

A. The record owner may within ten business days of service of the notice and order to abate a nuisance or report of costs, or within ten business days after commencement of work to abate an emergency nuisance pursuant to § 1.09.100, appeal the notice and order to abate the nuisance, the reasonableness of the report of costs, or the need for an emergency abatement by requesting, in writing, an appeal hearing. The appeal must state briefly the appealing party's grounds for objection. Any appeal not timely filed shall be rejected and the applicant shall be deemed to have waived their right to appeal.

B. The city shall schedule an appeal hearing to be held within 30 days after an appeal is received by the city, before the Appeal Hearing Officer. The city shall provide notice of the hearing as provided in § 1.10.040. Such notice shall be served not less than five business days prior to the time set for the hearing. Service shall be deemed complete at the time notice is personally served or deposited in the mail.

C. Any person filing any protest or objection who is affected by the proposed charge in the report of costs may, instead of or in addition to appearing in person at the hearing, file a written report of the objections with the City Clerk at any time prior to the time set for the hearing on the report of costs. Each such objection must contain a description of the property in which the signer thereof is interested and the grounds of the objection. However, in the event that the appealing party fails to appear at the hearing or file written objections, the hearing shall be deemed waived and based on whether the appeal is for a notice and order to abate or report of costs, would constitute an admission by said party of the nuisance charge or correctness and reasonableness of the report of costs.

D. The Appeal Hearing Officer shall hear and rule on the appeal. The appellant may appear at the hearing by an attorney. The formal rules of evidence shall not apply. All witnesses shall be sworn, and each party shall have the right to cross-examine adverse witnesses. The hearing may be continued from time to time.

E. The Appeal Hearing Officer shall issue a final decision within ten business days of the appeal hearing, which shall rule on each of the appealing party's objections. The final decision may modify the report of costs if the Appeal Hearing Officer deems it appropriate.

1. For appeals of a notice and order to abate a nuisance, the final decision shall include a finding of whether any attorneys' fees incurred by the prevailing party were reasonably and necessarily incurred, provided, however, in no event shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city. The final decision shall direct the record owner to abate the nuisance within a specified, reasonable time period and notify the record owner that if he or she fails to do so, the city will do so at the record owner's expense. The final decision shall be served on the record owner and any other appealing party as provided in § 1.10.040.

2. For appeals of the reasonableness of a report of costs, the final decision shall determine whether any attorneys' fees incurred by the city and assessed for the abatement costs were reasonably and necessarily incurred. The final decision shall direct the record owner to pay the costs within 30 days of the date of the final decision and notify the record owner that if he or she fails to do so, the city shall cause to make the costs of such abatement a lien against the parcel and/or a special assessment against the parcel and that such parcel may be sold by the Tax Collector after three years for any unpaid delinquent assessment against the parcel. The final decision shall be served on the record owner as provided in § 1.10.040.

F. Any person aggrieved by the Appeal Hearing Officer's final decision may only seek judicial review pursuant to a timely petition for writ of administrative mandamus in accordance with California Code of Civil Procedure §§ 1094.5 and 1094.6.

(Ord. 20-2203, § 3, 2020)

A. If an appeal of the notice and order to abate nuisance is not filed, or if the Appeal Hearing Officer has upheld the determination of nuisance and proposed abatement, or for a nuisance pursuant to § 1.09.100, the Code Enforcement Officer is authorized to cause the nuisance to be abated, subject to a warrant issued by a court of appropriate jurisdiction.

B. The abatement work may be performed by the city's own employees or by independent contractors, or any combination thereof. Prior to commencement of the abatement work by or on behalf of the city, the record owner may abate the nuisance at his or her own expense.

C. If the record owner fails to consent to the city entering the property to abate the nuisance, the city may seek a warrant to the extent legally required and proceed with the abatement.

(Ord. 20-2203, § 3, 2020)

Upon completion of the abatement work and appeal proceedings related to the report of costs served, if the record owner does not pay the abatement costs within the specified time, the City Manager or his or her designee may either:

A. Pursuant to and in accordance with Government Code § 38773.1, cause a lien to be charged against the parcel. Once payment in full is received by the city, the city shall provide the record owner with a notice of satisfaction so they may record the notice with the County Recorder. Recordation of the notice of satisfaction shall cancel the city's lien; or

B. Pursuant to and in accordance with Government Code § 38773.5(a), cause a copy of the report of costs to be transmitted, together with a copy of the final decision (if applicable) confirming the same, to the County Tax Collector, who shall add the amount of abatement costs, or unpaid portion thereof, to the next regular tax bill as a special assessment, for the municipal purposes, against such parcel. The amount of the assessment shall be collected at the time and in the manner as ordinary municipal taxes. If such assessment is delinquent, the amount shall be subject to the same interest and penalties and procedure of foreclosure and sale provided for ordinary municipal taxes and the property may be sold after three years by the County Tax Collector for unpaid delinquent assessments. Notice shall be provided, by certified mail, to the property owner and 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.

(Ord. 20-2203, § 3, 2020)

A. Notwithstanding any other provision of this city code or other law, if, in the opinion of the City Manager, or his or her designee, any nuisance as defined in § 1.09.030(D) constitutes an immediate hazard to the public health, safety, or welfare or materially interferes with public travel or passage, the City Manager or his or her designee may summarily abate such nuisance pursuant to § 1.09.080.

B. Except as specified below, reporting of costs shall be conducted pursuant to § 1.09.060.

C. Once summary abatement action has been completed, the record owner may appeal the need for abatement and the report of costs in the manner provided in § 1.09.070.

D. After the city completes the report of costs, the City Manager shall also cause a notice to be conspicuously posted on the property on which the abated nuisance existed or from which the abated nuisance extended. The notice shall also be served on the record owner in the manner provided in § 1.10.040.

E. Payment of abatement costs and collection of the assessment shall proceed as provided in § 1.09.090.

(Ord. 20-2203, § 3, 2020)

Any person who violates the provisions of this chapter shall be guilty of a misdemeanor, which shall be punishable as provided in Chapter 1.12.

(Ord. 20-2203, § 3, 2020)