El Cerrito Municipal Code Ch. 8.34 Nuisance Abatement

Pursuant to state Government Code Section 38770 et seq., the council establishes, as an alternate to procedures otherwise provided for by law, procedures that may be used for the purpose of abating a public nuisance. It shall be a violation of this chapter for any person owning, renting, leasing, occupying or having charge of any premises to permit a nuisance as defined in this chapter to exist.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

The provisions of this chapter shall be applicable to any nuisance defined as a nuisance by any city ordinance, section of this code, resolution of the council, statutes of the state, or by the conditions or activities set forth in Section 8.34.040 of this chapter.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

The owner of the property or properties in question remains liable to the city for violations of duties imposed upon him by this chapter even though:

A. An obligation is also imposed on the occupant; or

B. The owner has, by agreement, imposed upon the occupant the duty of complying with this chapter.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

It is declared a public nuisance for any person owning, leasing, occupying or having charge of any property in this city to maintain such property in such manner that any one or more of the following conditions or activities are found to exist:

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 which are abandoned, partially destroyed, or permitted to remain unreasonably in a state of partial construction;

C. The failure to close by means acceptable to the city, all doorways, windows and other openings into vacant structures;

D. Unpainted buildings causing dry rot, warping or termite infestation;

E. Broken windows constituting hazardous conditions or inviting trespassers and malicious mischief;

F. Overgrown vegetation:

1. Likely to harbor rats, vermin and other nuisances,

2. Causing detriment to neighboring properties, or

3. Causing a fire hazard;

G. Dead, decayed, diseased or hazardous trees, weeds and other vegetation:

1. Constituting a danger to public safety and welfare, or

2. Detrimental to nearby property;

H. Attractive nuisance dangerous to children in the form of:

1. Abandoned and broken equipment,

2. Hazardous pools, ponds and excavations, and

3. Neglected machinery;

I. Broken or discarded furniture and household equipment on the premises for unreasonable periods, visible from the street or nearby property, which constitutes visual blight or is detrimental to nearby property or property values;

J. Garbage cans located in front or side yards and visible from public streets;

K. Packing boxes, lumber, trash, dirt and other debris deposited for unreasonable periods either inside or outside buildings, visible from the street or nearby property, which constitutes visual blight or is offensive to the senses or is detrimental to nearby property values;

L. The accumulation of dirt, litter, or debris in vestibules, doorways or the adjoining sidewalks of commercial or industrial buildings;

M. Neglect of premises:

1. To spite neighbors, or

2. To influence zone changes, or

3. To cause detrimental effect upon nearby property or property values;

N. 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 state Civil Code Section 3479;

O. Property maintained in such condition as to become so defective, unsightly, or in such condition of deterioration or disrepair that the same causes appreciable diminution of the property values of surrounding properties or is materially detrimental to proximal properties and improvements;

P. Maintenance of premises so out of harmony or conformity with the maintenance standards of adjacent properties as to cause substantial diminution of the enjoyment, use or property values of such adjacent properties;

Q. Property maintained (in relation to others) so as to establish a prevalence of depreciated values, impaired investments, and 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;

R. Any automobile service station which is closed, vacant or inoperative for a period exceeding sixty days is declared to be a public nuisance. Inoperative is defined as the failure to sell gas, either retail or wholesale, during the sixty-day period;

S. Specialty structures which have been constructed for a highly specific single use only, and which are not enclosed or shielded, and which are unfeasible to convert to other uses, and which are abandoned, partially destroyed or are permitted to remain in a state of partial destruction or disrepair and constitute a hazardous condition, including, but not limited to, tanks for gas or liquid, boat housing and storing facilities, boat hoisting and docking facilities, boat mooring pilings, lateral support structures and bulk-heads, utility high-voltage towers and poles, utility high-rise support structures, electronic transmitting antennas and tower structures which support or house mechanical and utility equipment and are located above the roof lines of existing buildings, high rise freestanding chimneys and smoke stacks, drive-in movie screens, recreational structures such as tennis courts and cabanas, and all other specialty structures not listed in this subsection but determined to be a specialty structure by the city;

T. Presence of abandoned, dismantled, wrecked or inoperable motor vehicles, motorcycles, recreational vehicles, trailers, campers, boats or parts thereof, except:

1. When completely enclosed within a building in a lawful manner where it is not visible from the street or other public or private property, or

2. When stored or parked in a lawful manner on private property in connection with the business of a licensed dismantler, licensed vehicle dealer, a junk dealer, or when such storage or parking is necessary to the operation of a lawfully conducted business or commercial enterprise;

U. Obstruction or encroachment of any public property, including but not limited to any public street, highway, right-of-way, park or building;

V. Parking or storage of operable vehicles, boats or recreational vehicles in side yards, unless such vehicle or boat is adequately screened and any such vehicle or boat is five feet or more within the side yard;

W. Any violation of any provision of this code;

X. Storage of hazardous materials in such a man-ner as to be injurious or potentially injurious to the public health, safety and welfare or to adjacent properties;

Y. Any condition recognized in law or in equity as constituting a public nuisance.

Z. The failure to maintain commercial structures or their parking areas, landscaping, lighting or common areas thereby resulting in conditions which may constitute a danger to the public health, safety or welfare, or resulting in conditions which may be detrimental to nearby properties;

A.A.

The failure to maintain structures or their parking areas, landscaping, lighting or common areas in conformance with conditions imposed by use permit, variance, design review approval, or other city discretionary approvals.

(Ord. 96-4 Div. 1 §§ 1—4, 1996; Ord. 92-13 Divs. 1, 2 (part), 1992.)

All or any part of premises found to constitute a public nuisance shall be abated by rehabilitation, removal, demolition, or repair pursuant to the procedure set forth in this chapter. However, such procedure shall not be exclusive and shall not in any manner limit or restrict the city from abating public nuisances in any other manner provided by law, including a situation in which, due to emergency conditions, the city manager or his designee, in consultation with the city attorney, determines that a public nuisance must be abated summarily without proceedings before the council, as set forth herein. In such situation, the city may nevertheless abate the nuisance and seek judgment from a court of competent jurisdiction to confirm that a public nuisance had existed and to recover, based on the authority of this section, the expenses of summarily abating the nuisance, including any attorney fees or administrative costs associated therewith, from the persons who created, caused, committed or maintained the nuisance.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

Whenever the city manager or such other city official as may be designated by the city manager, determines that any premises within the city are being maintained contrary to one or more of the provisions of Section 8.34.040, then he/she shall cause notice to be given as provided in this chapter, of a public hearing before the council to ascertain whether the same does in fact constitute such public nuisance, the abatement of which is appropriate under the police power of the city. The hearing date shall be no less than twenty days after service of the notice.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

Notice of the time and place of hearing before the city council shall be titled "NOTICE OF HEARING," and shall be substantially in the following form:

NOTICE OF HEARING TO DETERMINE EXISTENCE OF PUBLIC NUISANCE AND ORDER ABATEMENT TO:

1. Hearing to Determine Existence of Public Nuisance

NOTICE IS HEREBY GIVEN that on the _____ day of _____,20_____, at the hour of , the city council of the City of El Cerrito will hold a public hearing in the council chambers of the El Cerrito City Hall, El Cerrito, California, to determine whether certain premises situated in the City of El Cerrito, known and designated as (street address and such other description as is required to identify the premises) constitute a public nuisance subject to abatement. You are hereby ordered to appear to show cause why the premises should not be declared a public nuisance and the same abated in accordance with the El Cerrito Municipal Code.

Failure to appear shall be deemed a waiver of your right to appear and present evidence. Said alleged violations consist of the following:

_____

_____

_____

Said methods of abatement available are:

_____

_____

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

2. If So Determined, Order of Abatement.

If said premises, in whole or in part, are found to constitute a public nuisance, you shall be ordered to abate the conditions constituting the nuisance by rehabilitation, removal, repair or demolition.

3. Abatement by City Authorities.

If said conditions constituting the nuisance are not abated within the time schedule as established by order of the city council, such nuisance may be abated by city authorities.

4. Reimbursement of Costs to the City of El Cerrito.

In addition, if said premises, in whole or in part, are found to constitute a public nuisance, you may be required to reimburse the City of El Cerrito for its full actual and reasonable costs of identifying this nuisance and ordering its abatement, or, if necessary, conducting such abatement. The City of El Cerrito (has/has not) elected to include its full actual and reasonable attorney's fees, if any, as part of the costs for which you may be responsible.

5. Notice of Hearing Before City Council.

All persons having any objection to, or interest in, said matters are hereby notified to attend a meeting of the city council of the City of El Cerrito to be held on the _____ day of _____, 20_____, at the hour of when their testimony and evidence will be heard and given due consideration.

DATED: This _____ day of _____, 20_____.

(Ord. 2002-9 Div. II [I], 2003.)

A. The city clerk or such other city official as may be designated by the city manager, shall cause to be served upon the owner of the affected premises a copy of the notice of public hearing and shall cause a copy of the notice to be conspicuously posted on each of the affected premises.

B. The notice shall be posted and served at least twenty days before the time 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 city clerk.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

Service of the notice shall be by personal service upon the owner of the affected premises or by mail. If notice is served by mail, it shall be sent by first class mail, postage prepaid, registered or certified, return receipt requested, addressed to the owner, and if there is no known address for the owner, then to the owner at the property address. The service is complete at the time of such deposit. "Owner," as used in this chapter, means any person in possession and also any person having or claiming to have any legal or equitable interest in the premises, as disclosed by a current title search from any accredited title company. The failure of any person to receive such notice shall not affect the validity of the proceedings hereunder.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

At the time stated in the notice, the council shall hear and consider all relevant evidence, objections or protests, and shall receive testimony from owners, witnesses, city personnel and interested persons relative to such alleged public nuisance and to the proposed rehabilitation, removal, repair, demolition, or other abatement appropriate under the legal powers of the city. The hearing may be continued from time to time.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

A. Upon or after the conclusion of the hearing, the council shall determine whether the premises, or any part thereof, as maintained constitutes a public nuisance. If the council finds that such public nuisance does exist and that there is sufficient cause to rehabilitate, remove, demolish or repair the same, the council shall adopt a resolution setting forth its findings. This resolution shall order the owner and any other person having charge or control of such premises to abate the conditions determined to be a nuisance and shall state the abatement methods. Such resolution shall set forth the time within which such abatement work shall be commenced and completed. The resolution shall inform the owner or owners that if the nuisance is not abated within the specified time, the nuisance may be abated by the city and the expense thereof made a lien on the property involved.

B. The resolution shall also inform the owner that the time for judicial review is governed by Section 1094.6 of the state Code of Civil Procedure. Otherwise, all objections to the order shall be deemed waived.

C. The decision and order of the council shall be final.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

A. A copy of the resolution of the council ordering the abatement of the nuisance shall be served upon the owner or owners of the property in accordance with the provisions of Section 8.34.090. Any property owner shall have the right to have any such premises rehabilitated in accordance with the resolution and at his own expense provided the same is done prior to the expiration of the abatement period set forth in the resolution. Upon abatement in full by the owner, then proceedings hereunder shall terminate.

B. If the council should determine that the abatement of the nuisance is likely to cause a significant depreciation in the value of the property upon which the nuisance is located, the council may order that all mortgages and/or beneficiaries under any deeds of trust of record on the property be served a copy of the resolution in the manner prescribed in this section.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

If such nuisance is not completely abated by the owner as directed within the designated abatement period, then the city manager, or such other city official as may be designated, may, after consultation with the city attorney, cause the same to be abated by the city either through the use of its own employees or pursuant to private contract, and the city manager, or his/her designee, is expressly authorized to enter upon the premises for such purpose.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

A. The identification, declaration, and abatement of any public nuisance by the city as prescribed in this chapter or elsewhere in this code shall be at the sole expense of the persons creating, causing, committing, or maintaining such nuisance. The cost of identifying, declaring, and abating any public nuisance shall include, without limitation, inspection costs; investigation costs; attorney's fees and costs, if elected by the city as set forth in subsection B of this section, below; costs to repair and eliminate all conditions constituting a public nuisance; and costs of levying a special assessment on the property, if such assessment is necessary.

B. In any action or administrative proceeding to abate a public nuisance, the prevailing party shall be entitled to recover its reasonable attorney's fees, but only if the city elects in writing, at the initiation of the action or proceeding, to seek recovery of its own attorney's fees. In no event shall an award of attorney's fees to a prevailing party exceed the amount of reasonable attorney's fees incurred by the city in the action or proceeding.

C. Should the proceeds of the sale of any salvage material exceed the cost of such abatement, the balance if any, shall be paid to the owner of the premises from which the nuisance was abated, when his property claim is established.

(Ord. 2002-9 Div. II, 2003; Ord. 92-13 Divs. 1, 2 (part), 1992.)

A. The city official responsible for enforcing abatement of a public nuisance shall keep and verify an itemized written report showing the full actual cost of abatement, including attorney's fees if elected by the city under Section 8.34.140B, and including any salvage value of material from the abatement.

B. When the nuisance is abated, the official shall forward this report to the city clerk. The city clerk shall set the report of abatement costs for hearing by the city council to determine the correctness and reasonableness of such costs. The city clerk shall cause a copy of this report, with notice of the city council hearing, to be posted upon the property and served at least ten days before the date set for the hearing, as set forth in Section 8.34.090.

C. At the time and place fixed for the hearing on the report, the city council shall hear and pass upon the report of such costs of abatement, together with any objections or protests. The city council may revise, correct, or modify the report, and shall at the conclusion of the hearing adopt a resolution identifying the person or persons responsible for creating, committing, causing, or maintaining the nuisance and setting forth the sum for which this person or persons is or are individually or jointly liable. The decision of the city council on all protests and objections shall be final and conclusive.

D. The city may collect these costs from the responsible person or persons, as set forth in the city council's resolution confirming costs, by (i) obtaining a court order stating that this reimbursement requirement is a personal obligation of any person upon whom the city council resolution imposes a reimbursement obligation, recoverable in the same manner as any civil judgment; (ii) recording a nuisance abatement lien against the parcel of land on which the nuisance is or was maintained; or (iii) imposing a special assessment against the parcel of land on which the nuisance is or was maintained.

(Ord. 2002-9 Div. III, 2003.)

A. Before recording any nuisance abatement lien against a parcel of land on which a nuisance is or was maintained, the city shall give notice to the owner of record. The notice of lien shall be served on the owner of record of the parcel of land, based on the last equalized assessment roll, or the supplemental roll, whichever is more current. Such notice shall be served in the same manner as summons in a civil action, in accordance with Sections 415.10 et seq. of the 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 Contra Costa County, pursuant to Government Code Section 6062.

B. A nuisance abatement lien shall be recorded in the Contra Costa County recorder's office and from the date of recording shall have the force, effect, and priority of a judgment lien.

1. A nuisance abatement lien shall specify the amount of the lien; the imposition of the lien on behalf of the city; the date of the abatement order; the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed; and the name and address of the recorded owner of the parcel.

2. In the event the lien is discharged, released, or satisfied, either through payment or foreclosure, the city shall record notice of the discharge, containing the information specified in subsection B1 of this section.

3. A nuisance abatement lien and the release of lien shall be indexed in the grantor—grantee index.

4. The city may foreclose a nuisance abatement lien as a money judgment. As part of its foreclosure action, or as a condition of removing the lien upon payment, the city may recover from the property owner any costs incurred for processing and recording the lien and providing notice to the property owner.

(Ord. 2002-9 Div. IV, 2003.)

A. As an alternative to recording a nuisance abatement lien, the city may make the cost of abatement a special assessment against the parcel of land on which the nuisance is or was maintained.

B. Notice shall be given by certified mail, to the property owner, if the property owner's identity can be determined from the county assessors s or county recorder's records. Notice pursuant to this section 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 pursuant to this section.

C. The 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 with ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. If, however, 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, prior to the date on which the first installment of the taxes would become delinquent, then 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.

D. The city may conduct a sale of vacant residential developed property for which the payment of that assessment is delinquent, subject to the requirements applicable to the sale of property pursuant to Section 3691 of the Revenue and Taxation Code.

E. Notices or instruments relating to the abatement proceeding or special assessment shall be entitled to recordation.

F. 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 as a nuisance pursuant to this section, the court may order such person to pay treble the costs of the abatement. The recovery of treble the costs of abatement of such nuisances as provided in this section shall not apply to city efforts to abate Violations of the Building Code pursuant to Section 17980 of the Health and Safety Code.

(Ord. 2002-9 Div. V, 2003.)

Pursuant to state Vehicle Code Section 22660, procedures to remove abandoned, wrecked, dismantled or inoperable vehicles or parts thereof, as public nuisances, are found in Title 11, Chapter 11.44 and Chapter 11.46 of this code.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)

Nothing in the foregoing chapter shall be deemed to prevent the council from ordering the city attorney to commence a civil or criminal proceeding to abate a public nuisance under applicable state Civil or Penal Code provisions as an alternative to the proceedings set forth in this chapter. The city shall keep an account of any costs of abatement, including incidental expenses, made in connection with an order of a court to abate a public nuisance.

(Ord. 92-13 Divs. 1, 2 (part), 1992.)