El Cerrito Municipal Code Ch. 8.38 Abatement of Dangerous or Substandard Buildings

A. The abatement procedures described in this chapter shall be an alternative to the abatement procedures set forth in the Uniform Building Code or any other applicable uniform code, Chapter 8.34 of the El Cerrito Municipal Code, or any other civil, criminal or administrative enforcement tool authorized by law. The procedures for abatement contained herein repeat and implement the procedures set forth in Article 6 of Title 25 of the California Code of Regulations, and are determined to be equivalent to such procedures for the purpose intended therein.

B. All buildings or structures which are deemed to be substandard, unsafe or dangerous buildings by the building official pursuant to Section 17920.3 of the California Health and Safety Code and the above-stated codes shall be declared to be public nuisances, and may be abated in accordance with either the abatement procedures contained in the criminal and administrative enforcement tools identified above or in accordance with the provisions contained in this chapter.

C. Wherever in this chapter the term "building official" is used, it shall be deemed to include any comparable position designed to fulfill the responsibilities of the building official, and any designees of the building official or such other position.

(Ord. 2000-7 Div. 1 (part), 2001.)

A. Preliminary Title Report. To commence proceedings under this chapter, the building official shall examine or cause to be examined every building or structure or portion thereof reported dangerous, damaged, or substandard. If such is found to be a dangerous, damaged or substandard building, the building official shall obtain a preliminary title report as to the building or structure or land on which it is located which shall identify all owners of record, lessees of record, mortgagees, beneficiaries, and other holders of deeds of trust. The cost of said title report shall be charged to the owner in the same manner and using the same procedure as all other costs incurred by the city which are to be charged to the owner as set forth in this section.

B. Initial Notice to Abate Substandard Buildings. The building official shall serve upon each such person, by certified or registered mail, postage prepaid, return receipt requested, a written Notice to Abate Substandard Building stating the conditions rendering the building substandard, listing defects of the building or structure and ordering correction by repair or demolition within thirty days. If in the opinion of the building official the conditions can be abated by repair, the notice shall state the required repairs. The notice shall be sent in substantially the following form:

NOTICE TO OWNER TO ABATE SUBSTANDARD BUILDING

The building located at _______(street address and such other description as is required to identify the premises) has been determined to be a substandard building and public nuisance in violation of state and city law. You are hereby ORDERED to abate such nuisance within thirty days by either repairing the violations and substandard conditions, as indicated on the attached inspection report, or by obtaining a demolition permit and demolishing the building.

You must choose whether to repair or demolish the building and inform the City in writing as to such choice. You must submit for city approval a reasonable and feasible schedule for expeditious repair or demolition. In the absence of facts submitted by you in writing it is presumed that thirty (30) days is an adequate and reasonable period of time to complete abatement of the nuisance. Please call the undersigned for review of your abatement plan.

If (a) you do not make a timely choice of repair or demolition, or (b) the repair work is not done as scheduled, or (c) you select an option which cannot be completed in a reasonable period of time, as determined by the building official, a hearing may be scheduled before the City Council at which time the City Council may order that the building be repaired or demolished and all costs of abatement will be made a lien on the property. 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.

In accordance with Sections 17274 and 24436.5 of the state Revenue and Taxation Code, a tax deduction may not be allowed for interest, taxes, depreciation or amortization paid or incurred in this year if you fail to timely abate this nuisance.

This notice is sent under the authority of Title 25, Article 6 of the California Code of Regulations, and Chapter 8.38 of the El Cerrito Municipal Code.

C. Violations Affecting Tenant Health and Safety.

1. If the conditions rendering the building substandard affect the health and safety of occupants, and if the premises are not solely owner-occupied, add the following paragraph:

You are advised that Civil Code Section 1942.5 prohibits a landlord from retaliating against a tenant because of this Notice.

2. If vacation is ordered, add the following paragraph:

NOTICE TO VACATE

The building official of the City of El Cerrito has further found this building to be unsafe and unfit for continued human occupancy, and that this fact outweighs the needs for housing expressed in the city's housing element. This building or structure must be vacated not later than _______. Continued occupancy beyond such date is unlawful and constitutes an infraction.

D. Posting and Service of Notice.

1. The notice shall be sent to each such person at his or her address as it appears on the last equalized assessment roll of the county, or as known to the building official. If no address of any such person so appears or is known to the building official, then that fact shall be stated in the notice and a copy of the notice shall be so mailed, addressed to such person, at the address of the building or structure found by the building official to be dangerous, damaged, or substandard, and at the county seat. Service by certified mail shall be effective on the date of mailing. An affidavit of service and posting, and any receipt card, shall be retained by the building official. The failure of any owner or other person to receive such notice shall not affect in any manner the validity of the proceedings taken hereunder.

2. The building official shall cause at least one copy of the notice to be posted. conspicuously on the building, structure or portion thereof alleged to be dangerous, damaged or substandard.

3. If the conditions rendering the building substandard affect the health and safety of occupants, and if the premises are not solely owner-occupied, an additional copy of the notice shall be provided for each residential unit at the premises, either by posting a copy of the notice in a prominent place on each affected residential unit or by first-class mail to each affected residential unit.

E. Recordation of Notice. The building official shall also file a copy of such notice declaring a building or portion thereof to be a public nuisance with the recorder of Contra Costa County.

(Ord. 2002-9 Div. V1, 2003.)

Tenants in a residential building shall be provided notice of any notice, order or permit under this chapter. The notice may be provided either by first-class mail to each affected residential unit, or by posting a copy of the notice, order or permit in a prominent place on the affected residential unit, at the discretion of the building official.

(Ord. 2000-7 Div. 1 (part), 2001.)

Each notice under this chapter shall advise that, in accordance with Sections 17274 and 24436.5 of the state Revenue and Taxation Code, a tax deduction may not be allowed for interest, taxes, depreciation or amortization paid or incurred in the taxable year.

(Ord. 2000-7 Div. 1 (part), 2001.)

A. If the building or structure is occupied, and the building official finds, after having considered the need for housing as expressed in the city's housing clement, that protection of human safety necessitates that it be vacated, the notice shall also require that the building. structure or portion thereof be vacated not later than thirty days from the date of the notice. The building official shall serve by first class mall, postage prepaid, a notice to the occupant of each dwelling unit or unit under separate use in the building or structure found to be unsafe, stating that the building official has, as a result of an inspection, found the building or structure to be unsafe and unfit for human occupancy, and advising the occupant that he must vacate the building or structure by the date specified in the notice, and that further occupancy of the building or structure beyond the date required for vacancy is unlawful and constitutes an infraction. The building official shall cause to be posted at or upon each exit of the building or structure a notice in substantially the following form:

NOTICE TO VACATE

The building official of the City of El Cerrito has found this building to be unsafe and unfit for continued human occupancy, and that this fact outweighs the needs for housing expressed in the city's housing element. This building or structure must be vacated not later than _______. It is an infraction to occupy this building or structure beyond such date, or to remove or deface this Notice.

B. No person shall enter or remain in any building which has been posted with a notice to vacate, as specified in this section, after the date upon which such notice requires the building to be vacated, except that entry can be made: a) to repair, demolish, or remove such building under permit; b) by the building official or duly authorized representative for purposes of inspection; and c) alter any required repairs have been completed and a certificate of occupancy has been issued.

C. No person shall remove or deface any notice posted pursuant to this section until the required repairs, demolition or removal have been completed and a certificate of occupancy is issued.

D. Proof of service of notices shall be certified to at the time of service by written declaration under penalty of perjury executed by the person effecting service, declaring the time, date and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the notice and order and retained by the building official.

E. Violation of any provision of this section shall constitute an infraction.

(Ord. 2000-7 Div. 1 (part), 2001.)

In conformance with Health and Safety Code Section 17922, the building official shall permit the replacement, retention, and extension of original materials and the continued use of original method of construction as long as the building and structure complies with the provisions published in the state Building Standards Code and the other rules and regulations of the department or alternative local standards adopted pursuant to subdivision (b) of Section 17920.7 or 17958.5 of the California Health and Safety Code, and does not become or continue to be a substandard building.

(Ord. 2000-7 Div. 1 (part), 2001.)

A. Notice of Hearing. If the owner of the building or structure does not comply with the notice prescribed by Section 8.38.020 by making a timely choice between demolition and repair, and by commencing and completing the required work within the time allowed, or make such other arrangement as may be satisfactory to the building official, the building official may thereupon set a date with the city clerk and have the following notice, or one substantially similar thereto, sent by certified mail, postage prepaid, return receipt requested, to the owner, mortgage holder, deed of trust holder, beneficiary, or holder of any other lien, encumbrance, estate, or legal interest of record as to the building or structure, as disclosed by the preliminary title report obtained pursuant to Section 8.38.020. The heading of the following notice shall be in letters at least three-fourths of an inch high.

NOTICE TO ABATE NUISANCE

The owner of the building situated at is hereby notified to appear before the City Council of the City of El Cerrito at its meeting to be held at the Council Chambers, 7007 Moeser Lane, El Cerrito, CA at the hours of or as soon thereafter as she/he may be heard and show cause, if any she/he has, why (the building) (the following portion of the building: ) should not be declared to be a public nuisance, and the nuisance be abated by razing, demolishing and removing (said building), or by rehabilitation and repair of (said building) (said portion of the building), and charging the costs thereof to the owner.

Dated: ________

City of El Cerrito

By: ___________

B. Posting and Service of Notice. The building official shall post and serve this notice in the same manner as the Notice described in Section 8.38.020.

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

A. At the time fixed on the notice, the city council shall proceed to swear all witnesses and hear the testimony of the building official and his or her assistants or witnesses and the testimony of the owner or representatives, and other competent persons who may be present and desire to testify respecting the condition of the building, the estimated cost of its reconstruction, repair or removal, and any other matter which the city council may deem pertinent thereto. In determining whether to order demolition, the city council shall consider the need for housing as expressed in the city's housing element, and shall give preference to repair of the building Wit is economically feasible to do so without having to repair more than seventy-five percent of the dwelling, as determined by the building official.

B. Upon the conclusion of the hearing, the city council may by resolution declare its findings and, in the event it so concludes, may declare the building or the pertinent portion thereof to be a public nuisance and direct the owner to obtain the proper permits and abate the nuisance within thirty days after the date of posting on the premises of a notice of adoption of the resolution and a copy thereof. The notice and resolution shall be conspicuously posted as soon as possible after its adoption. The abatement shall be accomplished by having the building or pertinent portion thereof properly reconstructed or repaired, or by having the building or pertinent portion thereof demolished or removed.

C. The city council may extend the thirty-day period upon substantial evidence submitted by the owner that the owner has not had a reasonable time to choose whether to repair or demolish, that the time necessary for repair will exceed thirty days, or for any other reason the city council deems just or reasonable.

D. Such resolution shall state that it was adopted under the authority of Title 25, Article 6 of the California Code of Regulations, and Chapter 8.38 of the El Cerrito Municipal Code and, farther, shall notify the owner that if the nuisance is not abated, the building or pertinent portion thereof may be demolished or removed by the city, and that the expenses thereof and of safely securing the property shall be assessed against the property, and made a lien on the lot where the building or pertinent portion thereof is located.

E. On or about the day the premises are posted, the city clerk shall send copies of the resolution to the person owning the land on which the building is located, as such person's name and address appear on the last equalized assessment roll or as known to the city clerk, and to each lessee, mortgage holder, deed of trust holder, or holder of any other lien, encumbrance, estate, or legal interest of record as shown on the preliminary title report obtained pursuant to this section, at the last known address of each such person.

F. The city clerk shall file a certified copy of any resolution declaring a building or portion thereof to be a public nuisance with the recorder of Contra Costa County.

G. If the conditions rendering the building substandard affect the health and safety of occupants, and if the premises are not solely owner-occupied, the city clerk shall provide an additional copy of the resolution for each residential unit at the premises, either by posting a copy of the resolution in a prominent place on each affected residential unit or by first-class mail to each affected residential unit.

(Ord. 2002-9 Div VIII, 2003; Ord. 2000-7 Div. 1 (part), 2001.)

Any owner or other interested person having any objections, or feeling aggrieved at any proceedings taken by the city or city council in ordering abatement, must bring an action in a court of competent jurisdiction within thirty days after the date of posting on the premises of a notice of passage of the resolution declaring the nuisance to exist, to contest the validity of any proceedings leading up to and including the adoption of the resolution; otherwise all objections will be deemed to have been waived.

(Ord. 2000-7 Div. 1 (part), 2001.)

In the event the owner does not obtain the proper permits and abate the nuisance located on the identified site within the time prescribed, the building official is authorized to raze, demolish, and remove the building, or pertinent portion thereof in accordance with the resolution of the city council declaring the same to be a public nuisance, or have the work done under his or her supervision or direction, or pursuant to purchase order or contract prescribed in Section 8.38.120.

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

In any action or proceeding to abate a dangerous or substandard building under this chapter, the city may recover its full actual and reasonable costs of identifying, declaring, and abating the nuisance by following the procedures for cost confirmation and recovery set forth in Chapter 8.34.

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

Upon declaration of a public nuisance and adoption of a resolution ordering abatement, the building official is authorized to issue purchase orders or to enter into contracts on behalf of the city with private contractors in accordance with the procedures set forth in such ordinance or ordinances of the city governing the solicitation of bids for purchases and contracts, and such rules and regulations as have been or may be promulgated thereunder.

(Ord. 2000-7 Div. 1 (part), 2001.)

When the city council has, by resolution, declared that a building is a public nuisance pursuant to this chapter, and such resolution has been recorded, and thereafter such nuisance is abated by repair, rehabilitation, demolition, relocation, or otherwise, the building official shall prepare and file with the recorder of Contra Costa County, a certificate stating that such nuisance has been abated, and indicating the method of abatement.

(Ord. 2000-7 Div. 1 (part), 2001.)

Nothing in this chapter shall be construed to require the city to enforce the ordinance provisions in this chapter against any or all properties which may violate the ordinance. This ordinance may be enforced in the city's prosecutorial discretion as resources permit. Nothing in this section or the absence of any similar provision from any other city law shall be construed to impose a duty on the city to enforce either the provisions contained in this chapter or such other provision of law it being left to the city's prosecutorial discretion when, how and if to enforce such laws.

(Ord. 2000-7 Div. 1 (part), 2001.)