Chapter 134 — ABATEMENT OF CHRONIC NUISANCE PROPERTIES

This chapter may be cited as the "City of Eureka Chronic Nuisance Property Ordinance." (Ord. 817-C.S., passed 10-20-15)

Chronic nuisance properties present grave health, safety and quality of life concerns where the persons responsible for such properties have failed to take corrective action to abate the nuisance condition. Chronic nuisance properties have a tremendous negative impact upon the quality of life, safety and health of the neighborhoods where they are located. This chapter is enacted to remedy nuisance activities that are particularly disruptive to quality of life and repeatedly occur or exist at properties by providing a process for abatement. This remedy is not an exclusive remedy available under any state or local laws and may be used in conjunction with such other laws.

Also, chronic nuisance properties are a financial burden to the city by the repeated calls for service to the properties because of the nuisance activities that repeatedly occur or exist on such property. This chapter is a means to ameliorate those conditions and hold accountable those persons responsible for such property.

(Ord. 817-C.S., passed 10-20-15)

For purposes of this chapter, the following words or phrases shall have the meaning prescribed below:

ABATE means to repair, replace, remove, destroy, or otherwise remedy a condition, which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable city department director or designee(s) determines is necessary in the interest of the general health, safety and welfare of the community.

CONTROL means the ability to regulate, manage, restrain, dominate, counteract or govern property, or conduct that occurs on a property.

CHRONIC NUISANCE PROPERTY means property on which nuisance activities exceeding the threshold amount occur or exist during any 12-month period.

DRUG-RELATED ACTIVITY means any unlawful activity at a property which consists of the manufacture, delivery, sale, storage, possession, or giving away of any controlled substance as defined by state law.

NUISANCE ACTIVITY means the occurrence of any of the following classifications of activities, behaviors, or conduct

whenever engaged in by a responsible person on or at property owned, occupied or controlled by that person:

• (1) Class I. (1 Point)

• (a) Disturbing the peace in violation of Cal. Penal Code § 415.

• (b) Making, causing or suffering any unnecessary noises or sounds in violation of EMC § 94.02.

• (c) The occurrence or attempted occurrence of any gang-related crime.

• (d) Arrests for outstanding warrants.

• (2) Class II. (2 Points)

• (a) Arrests for possession of stolen property.

• (b) Any form of assault or battery, as defined in Cal. Penal Code §§ 240 and 242, respectively.

• (c) Unlawfully discharging a firearm, whether a handgun, long gun, and/or shotgun, within the city.

• (d) Parties or gatherings at which alcohol or controlled substances are illegally consumed or used by minors.

• (e) The occurrence or attempted occurrence of any other criminal activity that threatens the life, health, safety, or welfare of residents of the property, the neighborhood, or the public as determined by the Chief.

• (f) Anything that is injurious to health, or is indecent, or offensive to the senses, or is an obstruction to the free use of

property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, as provided in Cal. Penal Code §§ 370 and 371.

• (g) Any public nuisance as specified in EMC § 150.163:

1. If multiple nuisance violations are present, all such violations shall collectively be considered a single nuisance activity at the time of discovery.

2. If after proper notice the responsible party does not fully correct the violations, the continued presence of violations shall collectively count as an additional nuisance activity for the purposes of this chapter.

• (3) Class III. (3 Points)

1. The commission or attempted commission of any serious felony or violent felony as defined in Cal. Penal Code §§ 1192.7(c) and 667.5(c), respectively.

2. The manufacture, cultivation, sale, use, or possession of a controlled substance in violation of the Uniform Controlled Substances Act (Cal. Health and Safety Code §§ 11000 et seq.), or in violation of federal law.

3. The commission or attempted commission of any act of prostitution as defined in Cal. Penal Code § 647(b).

4. The manufacture, sale, possession, or use of a firearm in violation of the Dangerous Weapons Control Law (Cal. Penal Code §§ 12000 et seq.).

• (4) For purposes of this chapter, NUISANCE ACTIVITY shall not include conduct where the person responsible is the victim of a crime and had no control over the criminal act.

RESPONSIBLE PARTY and RESPONSIBLE PERSONS means, unless otherwise defined, any person who has titled

ownership of the property or structure which is subject to this chapter, an occupant in control of the property or structure which is subject to this chapter, a developer, builder, or business operator or owner who is developing, building or operating a business on the property or in a structure which is subject to this chapter and/or any person who has control over the property and allows a violation of this chapter to continue.

PERSON means natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them.

POINT shall mean a point that is counted against the threshold amount, with points assigned to the classifications of nuisance activities as set forth in the definition of “nuisance activity.”

PREMISES and PROPERTY may be used by this chapter interchangeably and means and public or private building, lot, parcel, dwelling, rental unit, real estate or land or portion thereof including property used as a residential or commercial property. RENTAL UNIT means any structure or that part of a structure, including but not limited to single-family home, room or apartment, which is rented to another and used as a home residence, or sleeping place by one or more persons. THRESHOLD shall be five points.

(Ord. 817-C.S., passed 10-20-15)

(A) The provisions of this chapter shall apply to all real property, whether residential, commercial, industrial, improved, or unimproved, within the boundary of the city.

(B) A criminal conviction is not required for establishing the occurrence of nuisance activity pursuant to this chapter. The occurrence of nuisance activity may be established by documented evidence that the nuisance activity was witnessed or responded to by a peace officer or other witness willing to testify.

(C) The remedies set forth in this chapter are cumulative and additional to any and all other legal remedies available whether set forth elsewhere in the Eureka Municipal Code, or in state or federal laws, regulations, or case law. (Ord. 817-C.S., passed 10-20-15)

The Chief of Police shall be responsible for administering and enforcing the provisions of this chapter. The Chief of Police shall have the authority to designate employees as enforcement officers in conformance with this chapter to assist with enforcement responsibilities of this chapter, including, but not limited to, the issuance of administrative citations. (Ord. 817-C.S., passed 10-20-15)

It shall be unlawful for any responsible person to cause or allow any real property owned, leased, rented, occupied or controlled by them to generate or be the subject of greater than the threshold amount of nuisance activity during any 12-month period. (Ord. 817-C.S., passed 10-20-15)

(A) Any property within the city which is a chronic nuisance property is in violation of this chapter and subject to its remedies including summary closure; and

(B) Any responsible party who permits property to be a chronic nuisance property shall be in violation of this chapter and subject to its remedies including any other available remedy such as administrative and civil fines and criminal prosecution pursuant to § 10.99.

(Ord. 817-C.S., passed 10-20-15)

When the Chief of Police, or his or her designee(s), receives documentation that the city has responded to nuisance activities that qualify for at least three points within a 12-month period, the Chief of Police or his or her designee(s), may review such documentation to determine whether it describes the nuisance activities enumerated in the definition of “Nuisance activity” in §

134.03. Upon such a finding, the Chief of Police, or his or her designee(s), shall serve or cause to be served written notice upon the responsible parties. The warning notice shall:

• (A) Identify the type and specific location of the nuisance activity;

(B) Summarize the evidence of the nuisance activity occurring on the property (including the documented observations of the peace officer or a witness willing to testify), and (if the property is occupied by a tenant who is a responsible party) information necessary to prosecute an eviction of that tenant;

(C) Provide the dates on which the nuisance activity was reported to the city and the dates of any prior responses by the city to nuisance activity on the property; and

(D) Notify all responsible parties of the required corrective actions, if any, and the date by which such corrective actions must be completed; and

(E) Warn the responsible parties that future nuisance activity on or at the property may cause the city to institute enforcement proceedings to abate the nuisance activities occurring on the property, and/or impose administrative fines on any or all responsible parties; and

(F) Include a statement describing that if declared a Chronic Nuisance, the property could be subject to closure for up to one year and civil penalties and/or fines assessed up to $1,000 per day.

(Ord. 817-C.S., passed 10-20-15)

(A) When the Chief of Police determines that the threshold amount of nuisance activity has occurred on any single property within any 12-month period, a written notice shall be issued to all responsible parties.

• (B) The notice of designation required by this chapter shall:

(1) State that the property constitutes a chronic nuisance property in violation of this chapter because the threshold amount of nuisance activity has occurred on the responsible person's property within a 12-month period;

• (2) Identify the type and specific location of the nuisance activity;

(3) Summarize the evidence of the nuisance activity occurring on the property (including the documented observations of the peace officer or a witness willing to testify), and (if the property is occupied by a tenant who is a responsible person) information necessary to prosecute an eviction of that tenant;

(4) Provide the dates on which the nuisance activity was reported to the Police Department and the dates of any prior responses by the Police Department to nuisance activity on the property;

(5) Notify all responsible persons that they may contact the Chief within ten days of the date of the notice to schedule a meeting within 30 days of the date of the notice to develop a plan for voluntary abatement of nuisance activities at the property;

(6) Notify all responsible persons that failure to respond within the allotted time will result in the property being designated as a Chronic Nuisance property and that administrative fines will be imposed by the city pursuant to § 10.36.

(C) If the person responsible fails to respond to the notice within the time prescribed, the Chief of Police or his or her designee(s) may:

(1) Issue the person responsible an administrative citation and fine pursuant to § 10.36, punishable by a fine as adopted by resolution of the City Council. Fines shall recur with each and every subsequent instance of Chronic Nuisance Activity at the property; and

(2) Refer the matter to the City Attorney for civil or criminal prosecution and abatement. (Ord. 817-C.S., passed 10-20-15)

(A) If the person responsible requests a meeting with the Chief and agrees to abate the nuisance activity, the Chief of Police or his or her designee(s), and the person responsible, may negotiate an agreed-upon course of action which would abate the nuisance activity. This Voluntary Abatement Plan shall be signed by both parties and shall include:

• (1) Specific corrective measures to abate nuisance activities at the property;

• (2) A reasonable timeframe for completion of corrective measures;

(3) Language stating that if all corrective measures are not completed within the agreed-upon timeframe, or are ineffective at eliminating and preventing nuisance activities at the property, that the property may at any time be designated a Chronic Nuisance property subject to fines and/or abatement. Corrective measures include, but are not limited to:

(a) Management changes such as hiring an on-site or off-site property manager, eviction of problem tenants, and adoption of strict background checks for new occupants;

(b) Improvements such as security lighting, cameras, fencing, locked gates, removal of vegetation, posting of signage and other physical changes intended to abate nuisance activity;

(c) Repair of broken windows, painting, landscaping, removal of junk and debris, increasing the size and/or frequency of garbage collection service removal of inoperable vehicles and any other measures intended to correct and prevent nuisance activities at the property.

(B) If a voluntary abatement plan cannot be negotiated, or if the measures are ineffective at eliminating nuisance activity at the property, the property shall be designated a Chronic Nuisance property and the matter shall be forwarded to the City Attorney for enforcement action. Provided, that in the event the Chief of Police or his or her designee(s) or the City Attorney determines that the person responsible has taken reasonable steps to abate the nuisance activity, the City Attorney shall not commence an enforcement action under this chapter, notwithstanding the continuance of the nuisance activity. (Ord. 817-C.S., passed 10-20-15)

(A) Once the matter is referred to the City Attorney, the City Attorney shall immediately review and make a determination to initiate legal action authorized under this chapter or state statute, or may seek alternative forms of abatement of the nuisance activity. The City Attorney may initiate legal action on the chronic nuisance property and seek civil penalties and costs in court for the abatement of the nuisance.

(B) In determining whether a property shall be deemed a chronic nuisance property and subject to the court's jurisdiction, the city shall have the initial burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance property. The city may submit official police reports and other affidavits outlining the information that led to arrest(s), and other chronic nuisance activity occurring or existing at the property. The failure to prosecute an individual, or the fact no one has been convicted of a crime is not a defense to a chronic nuisance action.

(C) Once a court determines the property to be a chronic nuisance, the court may impose a civil penalty against any or all of the persons responsible for the property, and may order any other relief deemed appropriate. A civil penalty may be assessed for no less than $500 and no more than $1,000 per day for each day the nuisance activity continued to occur following the date of the original warning by the Chief of Police or his or her designee(s), as described in § 134.08. In assessing the civil penalty, the court may consider the following factors, citing to those found applicable:

• (1) The actions taken by the person responsible to mitigate or correct the nuisance activity;

• (2) The repeated or continuous nature of the nuisance activity;

• (3) The statements of the neighbors or those affected by the nuisance activity; and

• (4) Any other factor deemed relevant by the court.

• (D) The court which determined the property to be a chronic nuisance property shall also assess costs against the person responsible in the amount it costs the city to abate, or attempt to abate, the nuisance property.

• (E) The court shall have jurisdiction of all civil infractions issued pursuant to this chapter.

(F) If the court determines the property to be a chronic nuisance property, the court shall order the property closed and secured against all unauthorized access, use and occupancy pursuant to § 134.12 below.

(Ord. 817-C.S., passed 10-20-15)

(A) If the court determines the property to be a chronic nuisance property, the court shall:

(1) Order the property closed and secured against all unauthorized access, use and occupancy for a period of not less than six months and up to one year, and may impose a civil penalty and costs.

(2) Order the property posted with a notice stating that occupants have 30 days to remove belongings prior to the property being closed. The notice shall state the reasons for the closure and shall give the approximate time and date of the closure.

(3) Authorize the city and its contractors to abate the nuisance by physically securing the premises against entry. Any abatement costs, civil penalty and/or costs awarded to the city may be filed as a lien or special assessment on the property. The city shall file a formal lis pendens notice when an action for abatement is filed in the court.

(4) The court shall retain jurisdiction during any period of closure or abatement of the property. If necessary, the court may authorize the city and its contractors to perform additional work as necessary to secure the property and prevent unauthorized access during the closure period. The costs of any such activity shall be the responsibility of the owner.

(B) Nothing in this chapter prohibits the city from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public welfare and safety as provided for in this code, the California Health and Safety Code, California Building Code, or other applicable laws.

(Ord. 817-C.S., passed 10-20-15)

(A) If any portion of this chapter, or its application to any person or circumstances, is held invalid, the validity of the chapter as a whole, or any other portion thereof, or the application of the provisions to other persons or circumstances is not affected.

(B) If any one or more sections, subsection, or sentences of this chapter are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this chapter and the same shall remain in full force and effect.

(C) Finally, that any Ordinance or Resolution or part thereof conflicting with the provisions of this chapter is hereby repealed so far as the same affects this chapter.

(Ord. 817-C.S., passed 10-20-15)