Duarte Municipal Code Ch. 9.32 Property Maintenance—nuisances

It is a public nuisance for any person owning, leasing, occupying, or having charge (hereinafter, in this chapter, "responsible person") of any land, property, structure, building, wall, or fence (hereinafter in this chapter, "premises") in this city to maintain such premises in such manner that any of the following conditions is found to exist thereon:

(a) Land, the topography, geology, or configuration of which, whether in natural state or as a result of grading operations, excavation or fill, causes erosion, subsidence or surface water drainage problems of such magnitude as to be injurious or potentially injurious to the public health, safety and welfare, or to adjacent properties;

(b) Buildings, fences, walls, driveways, sidewalks, or any portion thereof which are abandoned, partially destroyed or permitted to remain unreasonably in a state of partial construction without an active permit for repair or demolition;

(c) The failure to close, by such means as are acceptable to the director of public safety, all doorways, windows, and other openings into vacant structures;

(d) Unpainted buildings causing dry rot, warping, and lack of weather protection;

(e) Broken windows, damaged doors, or gates constituting hazardous conditions and inviting trespassers and malicious mischief or constituting a harbor for vagrants, criminal, or immoral persons, or as to enable persons to resort thereto for the purpose of committing unlawful or immoral acts;

(f) Overgrown vegetation:

(1) Likely to harbor rats, vermin and other nuisances, or

(2) Having a tendency to depreciate the aesthetic and property values of surrounding property;

(g) Dead, decayed, diseased, or hazardous trees, weeds, and other vegetation:

(1) Dangerous or injurious to public safety and welfare, or

(2) Having a tendency to depreciate the aesthetic and property values of surrounding property;

(h) The accumulation and storage of abandoned, wrecked, dismantled, or inoperative automobiles, trailers, campers, boats, and other mobile equipment in yard areas;

(i) Attractive nuisances dangerous to children;

(j) Broken or discarded furniture and household equipment on the premises and visible from the street or from the sites of neighboring properties having a tendency to depreciate the aesthetic and property values of surrounding property;

(k) Packing boxes, lumber, trash, dirt, or other debris either inside or outside buildings and visible from public streets or from the sites of neighboring properties which has a tendency to depreciate the aesthetic and property values of surrounding property;

(l) The accumulation of dirt, litter, or debris in vestibules, doorways, or the adjoining sidewalks of commercial or industrial buildings;

(m) The maintenance of signs and/or sign structures relating to uses no longer conducted or products no longer sold on vacant commercial, industrial, or institutional buildings more than thirty days after such building becomes vacant;

(n) The maintenance of any structure in a state of substantial deterioration, such as peeling paint on a facade, broken windows, roofs in disrepair, damaged porches or broken steps, or other such deterioration or disrepair not otherwise constituting a violation and which is viewable from a public right-of-way or viewable from the sites of neighboring properties, when such condition would have a tendency to depreciate the aesthetic and property values of surrounding property;

(o) The substantial lack of maintenance of grounds within the city on which structures exist, when the grounds are viewable by the public from a public right-of-way or viewable from the sites of neighboring properties, when such condition would have a tendency to depreciate the aesthetic and property values of surrounding properties;

(p) Maintenance of premises in such condition as to be detrimental to the public health, safety, or general welfare or in such manner as to constitute a public nuisance as defined by Civil Code Section 3480;

(q) Maintenance of premises in a condition as to cause or have the potential to cause death or injury to persons or damage to property;

(r) Property maintained (in relation to others) so as to establish a prevalence of depreciated values, impaired investments, or social and economic maladjustments to such an extent that the capacity to pay taxes is reduced and tax receipts from such particular area are inadequate for the cost of public services rendered therein;

(s) Any excavation, pit, well, or hole maintained in a manner that is dangerous to life or limb;

(t) Any accumulation of dust, sand, gravel, refuse, or waste matter or discarded materials that endanger public health and safety;

(u) Any swimming pool, spa, pond, foundation, or other body of water which is abandoned, unattended, unfiltered, or not otherwise maintained resulting in polluted water;

(v) Premises so maintained as to cause the accumulation of polluted or stagnant water from any source which may cause a hazardous or unhealthy condition, breeding area for insects or erosion of foundation walls or soil;

(w) The use of any spray, paint, dye, chalk, or similar substance to mark or deface any building, structure, hillside, rock(s), storm channel, or any other surface open to public view which is commonly known as graffiti;

(x) Stockpiling fill dirt or other material without the benefit of a grading permit;

(y) Hazardous substances, hazardous materials, hazardous waste, gasoline, oil, grease, or hazardous or explosive or flammable gases, including but not limited to methane gas, existing in, on, or under the premises that are released or threatened to be released, or that are migrating from the premises;

(z) The violation or any federal, state, regional, or, local environmental law, ordinance, regulation, rule, or policy;

(aa) A violation of Chapter 6.15 of this code;

(bb) Any tree, shrubbery, or plant growing onto or over the public right-of-way which impairs pedestrian or vehicular traffic or prevents drivers from clearly observing safety signs and signals;

(cc) The existence of weeds, rubbish, or any material, substance, gas, or compound which may constitute any of the following:

(1) A fire hazard,

(2) Actual, threatened, or imminent injury to neighboring property,

(3) Provide a refuge for rats or other vermin,

(4) Producer of pollen,

(5) A safety hazard for children,

(6) A congregating place for transients, or

(7) Actual, threatened, or imminent injury to the health, safety or welfare of the residents of the vicinity;

(dd) The existence of buildings which have been damaged by fire, the elements, or by acts of God, and which are not structurally sound, or which may be structurally sound but upon which no repair work has been performed on a continuous basis within a period of six months;

(ee) On property at any corner formed by intersecting streets, the installation, setting out or maintenance of, or the allowing of the installation, setting out or maintenance of, any sign, hedge, shrubbery, fence, natural growth or other obstruction to the view, higher than two feet above the level of the roadway within that triangular area between the property lines and a diagonal line joining points on the property lines twenty-five feet from the point of their intersection, or in the case of rounded corners, the triangular area between the tangents to the curve and a diagonal line joining points on said tangents twenty-five feet from the point of their intersection. The tangents referred to are those at the beginning and at the end of the curve at the corner;

(ff) On property adjoining any public or private alley, the installation, setting out or maintenance of, or the allowing of the installation, setting out or maintenance of, any sign, hedge, shrubbery, fence, natural growth or other obstruction to the view, higher than twenty-four inches above the level of the roadway, within ten feet of any property line of the property on which the obstruction is located, which property line is at an approximate right angle to the alley, and which property line also adjoins a public street right-of-way;

(gg) On property adjoining any public or private driveway, the installation, setting out or maintenance of, or the allowing of the installation, setting out or maintenance of any sign, hedge, shrubbery, fence, natural growth or other obstruction to the view, higher than twenty-four inches above the level of the roadway, within ten feet of the front property line of the property on which the obstruction is located; or

(hh) Those offenses declared a public nuisance:

(1) Anywhere in federal, state, or city statutes, codes, rules, or regulations,

(2) Known at common law as nuisances when the same exist within the jurisdiction of the city, or

(3) Determined to be public nuisances after a hearing held by the city in accordance with Section 9.32.070.

(Ord. 798 § 2 (part), 2008)

If not timely abated, all or any part of premises found, as provided herein, to constitute a public nuisance may be abated, including by rehabilitation, demolition, repair, or removal, by the city pursuant to the procedures set forth in this chapter. The procedures set forth herein shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other city ordinances or abating public nuisances in any other manner provided by law.

(Ord. 798 § 2 (part), 2008)

(a) When an enforcement officer or other city official, employee, or agent so authorized determines that a nuisance exists, he or she shall serve on the responsible person(s) a written notice of such determination and a request to abate the nuisance. The request shall identify the address at which the nuisance exists; describe the nuisance to be abated; set forth a reasonable time to abate the nuisance; set forth appeal rights; and, if appropriate, request particular corrective actions to accomplish the abatement.

(b) Public nuisances shall be abated by the responsible person(s) no later than the time prescribed in the notice provided pursuant to subsection (a) of this section.

(c) Whenever a public nuisance exists which constitutes an emergency presenting imminent danger to life or serious injury to persons or property, an authorized representative of the city may order without notice or judicial action the immediate abatement of the public nuisance.

(d) Within ten days from the date of personal service or mailing of the notice of public nuisance, the responsible person(s) may appeal the determination that a public nuisance exists to the city manager or his/her duly authorized representative. The appeal shall be in a writing filed with the city clerk and shall be accompanied by the city's fee for appeals.

(Ord. 798 § 2 (part), 2008)

Upon receipt of a timely and complete request for appeal pursuant to Section 9.32.030(d), the city shall prepare and deliver to the requesting party a notice of the time and place of hearing before the city manager or his/her duly authorized representative entitled "Notice of Hearing" and shall be substantially in the following form:

NOTICE OF HEARING TO DETERMINE EXISTENCE OF PUBLIC NUISANCE AND TO ABATE IN WHOLE OR PART

NOTICE IS HEREBY GIVEN that on the _____ day of _______, _____, at the hour of _____.m. of said day, the City Manager of the City of Duarte, or his/her duly authorized representative, will hold a hearing in the Council Chambers of the Duarte City Hall, located at 1600 Huntington Drive, Duarte, California, to ascertain whether certain premises and/or conditions situated in the City of Duarte, State of California, known and designated as ___________ (street address), in said City, constitute a public nuisance subject to abatement by the rehabilitation, repair, or demolition or other manner of abatement of the premises including the buildings, structures, conditions, or portions of any the foregoing. If you wish to appear at this hearing, you must no later than ten days after the date of this letter notify the City in writing of your intention to do so. Failure to provide such notice in a timely manner to the City may result in the City, in its sole discretion, opting to forego holding the hearing and making a determination with respect to the existence of a nuisance based on the evidence in the City's possession.

If said premises, in whole or part, are found to constitute a public nuisance as defined by the Duarte Municipal Code and if the same are not promptly abated, such nuisances may be abated by municipal authorities and the rehabilitation, repair, or demolition will be assessed upon such premises and any costs and fees associated with the City's process will constitute a lien upon such land until paid.

Pursuant to sections 17274 and 24436.5 of the Revenue and Taxation Code, you are hereby placed on notice that a tax deduction may not be allowed for interest, taxes, depreciation, or amortization paid or incurred in the taxable year.

Said alleged violations consist of the following:

All persons having any objection to, or interest in said matters are hereby notified to attend said hearing, when their testimony and evidence will be heard and given due consideration.

DATED: This _____ day of _______, ___.

___________

City Manager (or title of his duly authorized representative)

(Ord. 798 § 2 (part), 2008)

(a) The director of public safety, or such other city official as may be designated by the city manager, shall cause to be mailed upon the responsible person(s) and the owner a copy of the notice described in Section 9.32.040.

(b) The notice shall be mailed at least ten days before the time fixed for such hearing.

(Ord. 798 § 2 (part), 2008)

Delivery of the notice described in Section 9.32.040 shall be made upon the responsible person, and upon the owner of the premises, by depositing a copy of such notice in U.S. mail enclosed in a sealed envelope with postage thereon fully prepaid. The notice may be registered or certified, with return receipt requested and, if there is no known address, then in care of the property address. The service is complete at the time of such deposit. The failure of any person to receive such notice shall not affect the validity of the proceedings under this chapter. As used in this chapter, the term "owner," means any person in possession and also the person(s) shown as owner(s) on the last equalized property tax assessment rolls.

(Ord. 798 § 2 (part), 2008)

At the time stated in the notice described in Section 9.32.040, the city manager or his/her duly authorized representative shall hear and consider all relevant evidence, objections or protests, and shall receive testimony from the responsible person, owners, witnesses, city personnel, and interested persons relative to the alleged public nuisance and to any proposed abatement of such alleged public nuisance. The hearing may be continued from time-to-time. If a notice by the responsible person(s) or another affected person is not provided to the city within the allotted time that said party intends to appear at the hearing, the city may, in its sole discretion, opt to forego holding the hearing and make a determination with respect to the existence of a nuisance based on the evidence in the city's possession.

(Ord. 798 § 2 (part), 2008)

(a) Upon or after the hearing described in Section 9.32.070, the city manager or his/her duly authorized representative shall, based upon the evidence presented at the hearing determine whether the premises, or any part thereof, as maintained, constitutes a public nuisance as defined herein. If the city manager or his/her duly authorized representative finds that such public nuisance does exist and that there is sufficient cause to abate the same, the city manager or his/her duly authorized representative shall make a written order setting forth his/her findings and ordering the responsible person(s) or other person having charge, control, or interest of such premises to abate such nuisance by having such premises, buildings, or structures rehabilitated, repaired, or demolished, or abated in the manner and by the means specifically set forth in the order. Such order shall set forth the times within which such work shall be commenced and completed. Such order shall be final unless appealed pursuant to subsection (b) of this section.

(b) Within ten days from the date of the mailing of the order, the responsible person(s) or owner may appeal the order to the city council. Such appeal shall be made in a writing filed with the city clerk and shall be accompanied by the city's fee for appeals. If properly appealed, the city council shall, at a meeting not more than forty-five days thereafter, proceed to hear and pass upon the appeal. Notice of the hearing date shall be mailed to the appellant at least ten days before the time fixed for the hearing. The decision of the city council thereupon shall be final and conclusive.

(Ord. 798 § 2 (part), 2008)

Any responsible person(s) or other interested person having any objections or feeling aggrieved at any proceeding taken on appeal by the city council in ordering the abatement of any public nuisance under the provisions of this chapter must bring an action to contest such decision within thirty days after the date of such decision of the city council. Otherwise, all objections to such decision shall be deemed waived.

(Ord. 798 § 2 (part), 2008)

(a) A copy of the order of the city manager or his/her duly authorized representative ordering the abatement of the nuisance shall be mailed to the responsible person(s) for the property and all other interested parties, and shall contain a detailed list of required correction items. Any interested party shall have the right to the premises abated in accordance with the order and at his/her own expense, provided the same is done prior to the expiration of the abatement period set forth in the order and in compliance with all applicable laws.

(b) If any nuisance is not completely abated by the responsible person(s) as directed within the designated abatement period, then the city manager, or such other city official as may be designated by him or her, is authorized to cause the same to be abated by city forces or private contract, and the city manager or his/her designated agents is expressly authorized to enter upon the premises for such purpose. Upon request of the designated official, other city departments shall cooperate fully and shall render all reasonable assistance in abating any such nuisance.

(Ord. 798 § 2 (part), 2008)

(a) The city manager or his/her designated agents shall keep an account of the cost and fees (including incidental expenses) of abating any nuisance on each separate lot or parcel of land where the work is done including any administrative related expenses incurred from the commencement of the city's involvement with the nuisance and shall render an itemized report in writing to the city council showing such costs and fees of abatement of the premises, including any salvage value relating thereto; provided that before the report is submitted to the city council, a copy of the same shall be mailed to the responsible person(s) and all interested parties, together with a notice of the time when the report shall be heard by the city council for confirmation.

(b) The city council shall set the matter for hearing to determine the correctness or reasonableness, or both, of such costs and fees.

(c) "Incidental expenses" includes, but is not limited to, the actual costs and fees of the city in the preparation of notices, specifications, and contracts, and in inspecting the work, and the costs of printing and mailing required under this chapter.

(d) "Fees" includes, but is not limited to, all staff, city attorney, and other city agent or independent contractor time and expense incurred in connection with the nuisance at issue.

(Ord. 798 § 2 (part), 2008)

At the time and place fixed for receiving and considering the report, the city council shall hear and pass upon the report of such costs and fees of abatement, together with any objections or protests. The city council may make such revision, correction, or modification to the report as it may deem just, after which, by motion, the report, as submitted or as revised, corrected or modified, shall be confirmed. The decision of the city council on all protests and objections which may be made shall be final and conclusive.

(Ord. 798 § 2 (part), 2008)

(a) The total cost and fees for abating any nuisance, as so confirmed by the city council, shall constitute a special assessment against the respective lot or parcel of land to which it relates and, upon recordation in the office of the county recorder of a notice of lien, as so made and confirmed, shall constitute a lien on the property for the amount of such assessment.

(b) After such confirmation and recordation, a certified copy of such decision may be sent to the tax division of the county auditor-controller's office, whereupon it shall be the duty of the auditor-controller to add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land for municipal purposes, and thereafter the amounts 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 penalties and the same procedure under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes.

(c) After such recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law.

(d) The notice of lien for recordation shall be in form substantially as follows:

NOTICE OF LIEN

(Claim of City of Duarte)

Pursuant to the authority vested by the provisions of Chapter 9.32 of the Duarte Municipal Code, the City Manager of the City of Duarte (or his/her designated agents) did, on or about the _____ day of _______, ___, cause the premises hereinafter described to be rehabilitated, or the building or structure on the property hereinafter described to be repaired or demolished, in order to abate a public nuisance on said real property; and the City Council of the City of Duarte did, on the _____ day of _______, ___, assess the cost and fees associated with such abatement upon said real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Duarte does hereby claim a lien on such abatement in the amount of said assessment, to wit: the sum of $_____; and the same shall be a lien upon said real property until the same has been paid in full and discharged of record.

The real property hereinbefore mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Duarte, County of Los Angeles, State of California, and more particularly described as follows:

(Description)

DATED: This _____ day of _______, ___.

___________

City Manager of the City of Duarte, California (Acknowledgment)

(Ord. 798 § 2 (part), 2008)

Nothing in this chapter shall be deemed to prevent the city from commencing civil and/or criminal proceedings to abate a public nuisance under applicable Civil Code or Penal Code provisions as alternative or supplemental proceedings to those set forth in this chapter.

(Ord. 798 § 2 (part), 2008)

(a) The responsible person(s) or other person having charge or control of any such buildings or premises who maintains any public nuisance defined in this chapter, or who violates an order of abatement made pursuant to Section 9.32.080, is guilty of a misdemeanor.

(b) Any occupant or lessee in possession of any premises or who fails to vacate the premises in accordance with an order given as provided in this chapter is guilty of a misdemeanor.

(c) Any person who removes any notice or order posted as required in this chapter, for the purpose of interfering with the enforcement of the provisions of this chapter, is guilty of a misdemeanor.

(d) No person shall obstruct, impede or interfere with any representative of the city council or with any representative of a city department or with any person who owns or holds any estate or interest in premises which has been ordered to be vacated, repaired, rehabilitated, demolished, removed, or abated, or with any person to whom any such premises has been lawfully sold pursuant to the provisions of this code, whenever any such representative of the city council, representative of the city, purchaser or person having any interest or estate in such premises, engaged in vacating, repairing, rehabilitating or demolishing, removing, or abating such premises pursuant to the provisions of this chapter, or in performing any necessary act preliminary to or incidental to such work as authorized or directed pursuant to this chapter.

(Ord. 798 § 2 (part), 2008)

In any action (including civil or criminal), administrative proceeding, or special proceeding to abate a nuisance, attorneys' fees may be recovered by the prevailing party; provided, however, that the award of attorneys' fees to a prevailing party shall not exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.

(Ord. 798 § 2 (part), 2008)