Fresno County Municipal Code Ch. 10.62 Abatement of Public Nuisances Created by Cultivation of Medical…

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Editor's note— Ord. No. 15-003, § 3, adopted Feb. 24, 2015, amended Ch. 10.62 in its entirety, §§ 10.62.010—10.62.150, in effect repealing and reenacting said chapter as set out herein. Former Ch. 10.62 pertained to similar subject matter and derived from Ord. No. 14-001, § 4, adopted Jan. 7, 2014.

This chapter is enacted pursuant to Government Code § 25845 and complies with Health and Safety Code § 17980. Notwithstanding any other provision of this code, whenever a condition or use exists upon private land which is a public nuisance, the procedures set out in this chapter may be used as an alternative to any other way or proceeding to abate or manner of obtaining abatement which is set forth in this code. The procedures in this chapter are in addition to and concurrent with the provisions of chapter 10.64 of this ordinance code and do not preempt or prevent a citation being issued pursuant to chapter 10.64 immediately upon confirmation of the violation of chapter 10.60 of this ordinance code.

(Ord. No. 15-003, § 3, 2-24-2015)

As used in this chapter:

A. "Days" means calendar days.

B. "Property" means and includes property, structures and the abutting half of the street, and/or alley, between the sidelines thereof as extended.

C. "Public nuisance" means any cultivation of marijuana in violation of chapter 10.60 of this ordinance code.

D. "Public official" means the building official, code enforcement official or sheriff, or any other individual or body appointed by the board of supervisors to enforce codes and which is authorized to administer this chapter.

E. "Responsible party" means an individual, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, firm, organization, partnership, joint venture or any other entity whatsoever whose action or actions caused or contributed to violations of codes specified in this chapter.

(Ord. No. 15-003, § 3, 2-24-2015)

The public official, upon receipt of information leading him/her to believe that a public nuisance, subject to this chapter, exists upon private property in the unincorporated area of the county, shall make a reasonable investigation of the facts and if possible inspect the property to determine whether or not a public nuisance exists. Inspections may include photographing the conditions or obtaining samples or other physical evidence. If an owner, occupant or agent refuses permission to enter or inspect, the public official may seek an inspection warrant pursuant to the procedures provided for in the California Code of Civil Procedure § 1822.50 through § 1822.59.

(Ord. No. 15-003, § 3, 2-24-2015)

A. Upon making a reasonable determination that a public nuisance exists, the public official shall notify the property owner(s), as such persons' names appear on the last equalized assessment roll, and any lessees that a public nuisance exists upon such persons' property. Notice shall be given by means of first class mail postage prepaid. If the address of any such person is unknown to the public official, then a copy shall be posted on the property. A copy of the notice shall also be sent by first class mail postage prepaid to the last known address of any responsible party if the public official determines that such responsible party directly or indirectly contributed to the condition creating the nuisance.

B. The notice shall describe the use or condition which constitutes the public nuisance, and the notice shall also state what repair or other work is required in order to abate the nuisance.

C. The notice shall order that the uses or conditions constituting the nuisance be abated within a reasonable time as determined by the public official, normally being fifteen days from the date such notice is mailed.

D. The notice shall contain instructions to the property owner describing procedures for scheduling a hearing for the purpose of presenting information as to why the property should not be considered a public nuisance.

E. The notice shall also state that if the work is not completed within the number of days specified on the notice, or hearing has not been requested in accordance with section 10.62.070, the county may abate the nuisance without further notification and the property owner may be responsible for all costs associated with the investigation and abatement of the public nuisance and the additional administrative penalty of one hundred dollars per violation per day that said violation continues past the abatement deadline.

F. The notice shall also state that if the property owner fails to request a hearing, all rights to appeal any action of the county to abate the nuisance are waived.

A. The board of supervisors of the County of Fresno has found and determined that the cultivation of marijuana creates an immediate and imminent threat or danger to the health, safety or welfare of the occupants or the public.

B. The public official may order a summary abatement or require immediate action on the part of the property owner or lessee to eliminate the nuisance constituting the violation of chapter 10.60. Summary abatement pursuant to this section 10.62.050 is an alternative to the notice of abatement order process set forth in section 10.62.040 and the remaining sections of chapter 10.62 of this ordinance code. Summary abatement procedures pursuant to this section 10.62.050 are in addition to and concurrent with the provisions of chapter 10.64 of this ordinance code and do not preempt or prevent a citation being issued pursuant to chapter 10.64 immediately upon confirmation of the violation of chapter 10.60 of this ordinance code.

1. The public official shall make a reasonable attempt to notify the lessees and owners of the property or other responsible party of the dangers which require the immediate vacation, repair, cleanup and/or securing of the property or structures thereof, either by telephone, or by personally visiting the premises; and

2. If the imminently dangerous condition can be substantially relieved by the performance of minor repairs, disconnection of certain utility services, or other acts, then the public official may perform or direct such acts of work without the prior consent of, or notice to, the owners, occupants, or responsible party; and

3. If such danger cannot be substantially relieved by such work and upon the failure or refusal of the occupants to voluntarily vacate such premises, then the public official may personally disconnect the electrical, gas and other utility services to such premises or may request the appropriate utility companies to do so; and

4. The public official determines that it is unhealthy or hazardous to delay abatement action, he/she may order county staff or contractors to abate the condition. Abatement may be, but is not limited to, removal of plants that are the subject of the violation, disconnection or shutting off substandard utility connections, clean-up and disposal of rubbish or other materials which threaten public health; and

5. The responsible party shall be liable for all costs associated with this abatement, including administrative, labor, material and other costs; and

6. If necessary to the protection of occupants or members of the public, the public official shall post warnings to all persons not to enter the premises stating the reasons therefor.

(Ord. No. 15-003, § 3, 2-24-2015)

A. A hearing regarding an abatement order may be requested by filing a written request for a hearing with the main office of the public official identified in the abatement order prior to such date set for the abatement of the nuisance.

B. The filing of such request for hearing shall stay the effectiveness of the order of abatement until such time as the case has been decided by the board of supervisors.

C. If a request for a hearing is not filed within the number of days to abate the nuisance as specified on the abatement order, the public official may order the work to be performed.

(Ord. No. 15-003, § 3, 2-24-2015)

A. Upon receipt of a request for hearing, filed in accordance with section 10.62.060, the public official shall schedule a hearing before the board of supervisors. Notice of the hearing shall be sent by first class mail postage prepaid to the persons filing the request and to those persons identified under section 10.62.040(A).

B. The notice shall state the date, time and place of the hearing (which in no event shall be sooner than ten days from the date of mailing and posting such notice unless mutually agreed to by the property owner or responsible party and the public official), the specific conditions or uses which constitute the public nuisance, and shall direct the owner(s) and/or lessees to appear and show cause why the specified condition or use should not be declared a public nuisance and abated.

C. The failure of any property owner, lessee, responsible party, or other person to receive any notice required to be given or posted pursuant to the provisions of this chapter shall not affect in any manner the validity of any proceedings taken thereunder.

(Ord. No. 15-003, § 3, 2-24-2015)

A. At the time fixed in the notice, the board of supervisors shall proceed to hear testimony from any interested person regarding the specified condition or use deemed by the public official to be a public nuisance, the estimated cost of its reconstruction, repair, removal or other work, and any other matter which the board of supervisors may deem pertinent thereto.

B. Upon the conclusion of the hearing, the board of supervisors will make a determination based on the evidence presented at the hearing. In the event that the board of supervisors declares the condition or use is a public nuisance, the board may direct the owner(s) to abate the same within thirty days after posting and mailing and impose an administrative fine as provided for in chapter 10.64 if such administrative fine has not already been issued

C. After the determination of the board directing the abatement of a public nuisance, the public official shall conspicuously post a copy thereof on the building, structure or other property declared a public nuisance and shall mail a copy to the owner(s) thereof as well as to the lessees and to the mortgagees of record and trust deed beneficiaries of record.

D. The board of supervisors may grant reasonable extensions of time to abate the nuisance upon good cause therefor being shown.

E. Any interested person being aggrieved by the determination and final actions of the board of supervisors in the public nuisance abatement proceeding may, within thirty days after the date of notice to the owner(s) of the decision, bring an action in a court of competent jurisdiction to contest the validity of the proceeding.

(Ord. No. 15-003, § 3, 2-24-2015)

If the property owner, lessee or other responsible party fails to abate the nuisance within the time specified in the notice by the public official, or after appeal of the notice, by the board of supervisors, and is not granted a time extension, the public official is authorized to secure, remove, demolish, raze or otherwise abate the nuisance at the expense of the owner(s).

(Ord. No. 15-003, § 3, 2-24-2015)

Any materials other than marijuana plants or parts thereof obtained from the nuisance abatement may be sold by the county at public sale to the highest responsible bidder after not less than ten days' notice of the intended sale, published at least once in a newspaper of general circulation in the county, either before or after the nuisance is abated. The county may allow contractors to consider the salvage value of the materials in the preparation of abatement bids.

(Ord. No. 15-003, § 3, 2-24-2015)

The public official shall keep an itemized account of the expenses incurred in abating the nuisance and shall deduct therefrom the amounts receivable from the sale of such materials.

(Ord. No. 15-003, § 3, 2-24-2015)

A. The public official shall cause to be conspicuously posted on the property from which the nuisance was abated a statement verified by the public official in charge of abating the nuisance showing the gross and net expenses of abatement, together with a notice of the time and place that the statement will be submitted to the board of supervisors for approval and confirmation.

B. At such time and place the board of supervisors shall consider objections or protests, if any, which may be raised by any person liable to be assessed for the cost of such abatement work, and any other interested person. A copy of the statement and notice shall be mailed to owner(s) and lessees in the manner prescribed in section 10.62.050. The time of submitting the statement to the board of supervisors for confirmation shall be not less than ten days from the date of posting and mailing the statement notice.

(Ord. No. 15-003, § 3, 2-24-2015)

At the time fixed for hearing objections or protests to the statement of expense the board of supervisors shall consider the statement together with any objections or protests which may be raised. The board of supervisors may make such revision, correction or modification in such statements as it may deem just. The board's decisions on the statement, protests and objections shall be final and conclusive. Notice of the board's decision shall be mailed to owner(s) and lessees in accordance with the provisions of section 10.62.050.

(Ord. No. 15-003, § 3, 2-24-2015)

A. In the event that the cost of abating the nuisance exceeds the proceeds received from the sale of materials, such unrecovered costs, if not paid within ten days after the board's decision, shall constitute a special assessment on the real property from which the nuisance was abated.

B. The assessment may be collected at the same time and in the same manner as ordinary county taxes are collected and shall be subject to the same penalties and the same procedure for sale in case of delinquency as provided for ordinary county taxes. All laws applicable to the levy, collection and enforcement of county taxes shall be applicable to such special assessment, except that if any real property to which such cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attached thereon prior to the date on which the first installment of such taxes would become delinquent, then such cost of abatement shall not result in a lien against such real property but instead shall be transferred to the unsecured roll for collection.

C. The public official shall file a notice of a lien in the office of the recorder of the county in an amount no greater than the total cost of abatement appearing in the statement of expense earlier approved by the board of supervisors. The notice of lien shall be in a form approved by county counsel.

D. From and after the date of recording the notice of lien, all persons shall be deemed to have notice of the contents thereof. The statute of limitations shall not run against the right of the county to enforce the payment of the lien.

E. Amounts owed to the county for abatement shall bear interest at the maximum rate allowed by law per year from the date of the abatement.

(Ord. No. 15-003, § 3, 2-24-2015)

In the event that the amounts received from the sale of materials exceed the expenses of razing, removing or otherwise abating the nuisance, such excess shall be deposited with the treasurer of the county to the credit of the owner of such property or to such other person legally entitled thereto. Such excess shall be payable to the owner or other person upon production of evidence of ownership, or other interest, satisfactory to the treasurer.

(Ord. No. 15-003, § 3, 2-24-2015)