Gustine Municipal Code Art. 2 General Prohibition and Abatement

Footnotes:

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Editor's note— Ord. No. 509, § 6(Exh. A), adopted Jan. 19, 2021, repealed art. 2, §§ 3-2-31—3-2-43, and reenacted a new art. 2, §§ 3-2-31—3-2-43, as set out herein. Formerly, art. 2 pertained to similar subject matter and derived from Code 1966, §§ 6-2.201—6-2.206.

For the purposes of this chapter, "nuisance" and/or "nuisance condition" means any condition or use of premises or property which is either: (i) detrimental to the premises or property of others; (ii) which poses an immediate or potential health, safety or fire hazard; or (iii) which violates any provision of this Code or other codes adopted by the city. Nuisance includes, but is not limited to, any of the following:

(a) Storing, keeping or maintaining weeds, dry or dead vegetation, papers or paper products, and other combustible and noncombustible refuse or waste;

(b) Storing, keeping or maintaining: vehicle parts; scrap metal; bottles; cans; wire; firewood; boxes; containers; wood and building materials no longer usable for their intended purpose; tools; machinery; equipment or parts thereof; or abandoned, discarded or unused household furniture or appliances;

(c) Storing, keeping or maintaining: rubbish; refuse; trash; junk; garbage; and other waste or discarded material, including, but not limited to, the accumulation of asphalt, concrete, plaster, tile, rocks, bricks, crates, cartons, boxes, dirt, sand or gravel;

(d) Storing, parking, keeping or maintaining: wrecked, dismantled, inoperative or abandoned vehicles, on private property which are in view from the public streets or neighboring properties;

(e) The existence of any condition which constitutes a fire hazard as defined in the California Fire Code (or as adopted by the city), and any condition related to fire protection as defined in the California Health and Safety Code;

(f) The existence of any building construction project which is abandoned, fire-damaged, partially destroyed or left in a state of partial construction for an unreasonable period of time. A "state of partial construction for an unreasonable period of time" exists if the project has been under construction for more than one year, its appearance from the public street or neighboring properties substantially detracts from the appearance of the immediate neighborhood, and there is no valid and active building permit authorizing the construction work;

(g) The existence of any dangerous building as defined in the Uniform Code for the Abatement of Dangerous Buildings (or as adopted by the city) or having any of the conditions or defects hereinafter described:

(1) Whenever any door, aisle, passageway, stairway or other means of exit is not of sufficient width or size or is not so arranged as to provide safe and adequate means of exit in case of fire or panic,

(2) Whenever the walking surface of any aisle, passageway, stairway or other means of exit is so warped, worn, loose, torn or otherwise unsafe as to not provide safe and adequate means of exit in case of fire or panic,

(3) Whenever the stress in any materials, member or portion thereof, due to all dead and live loads, is more than one and one-half times the working stress or stresses allowed in the California Building Code (as adopted in the city) for new buildings of similar structure, purpose or location,

(4) Whenever any portion thereof has been damaged by fire, earthquake, wind, flood or by any other cause, to such an extent that the structural strength or stability thereof is materially less than it was before such catastrophe and is less than the minimum requirements of the California Building Code (as adopted in the city) for new buildings of similar structure, purpose or location,

(5) Whenever any portion or member or appurtenance thereof is likely to fail, or to become detached or dislodged, or to collapse and thereby injure persons or damage property,

(6) Whenever any portion of a building, or any member, appurtenance or ornamentation on the exterior thereof is not of sufficient strength or stability, or is not so anchored, attached or fastened in place so as to be capable of resisting a wind pressure of one-half of that specified in the California Building Code (as adopted in the city) for new buildings of similar structure, purpose or location without exceeding the working stresses permitted in the building code for such buildings,

(7) Whenever any portion thereof has wracked, warped, buckled or settled to such an extent that walls or other structural portions have materially less resistance to winds or earthquakes than is required in the case of similar new construction,

(8) Whenever the building or structure, or any portion thereof, because of: (i) dilapidation, deterioration or decay, (ii) faulty construction, (iii) the removal, movement or instability of any portion of the ground necessary for the purpose of supporting such building, (iv) the deterioration, decay or inadequacy of its foundation, or (v) any other cause, is likely to partially or completely collapse,

(9) Whenever for any reason, the building or structure, or any portion thereof, is manifestly unsafe for the purpose for which it is being used or is intended to be used,

(10) Whenever the building or structure has been so damaged by fire, wind, earthquake or flood, or has become so dilapidated or deteriorated as to become: (i) an attractive nuisance to children; (ii) a harbor for vagrants or criminals; or as to (iii) enable persons to resort thereto for the purpose of committing unlawful acts,

(11) Whenever any building or structure has been constructed, exists or is maintained in violation of any specific requirement or prohibition applicable to such building or structure provided by the building regulations of the city, as specified in the California Building Standards Code or California Housing Code (as either is adopted in the city), or of any law or ordinance of this state or the city relating to the condition, location or structure of buildings,

(12) Whenever a building or structure, used or intended to be used for dwelling purposes, because of inadequate maintenance, dilapidation, decay, damage, faulty construction or arrangement, inadequate light, air or sanitation facilities, or otherwise, is determined by the building official to be unsanitary, unfit for human habitation, or in such a condition that is likely to cause sickness or disease,

(13) Whenever any building or structure, because of obsolescence, dilapidated condition, deterioration, damage, inadequate exits, lack of sufficient fire-resistive construction, faulty electric wiring, gas connections or heating apparatus, or other cause, is determined by the building official or fire chief to be a fire hazard,

(14) The presence of electrical wiring and/or equipment that was installed in violation of code requirements in effect at the time of installation, or not installed in accordance with generally accepted construction practices if no codes were in effect, or that has not been maintained in good condition or that is not being used in a safe manner,

(15) The presence of plumbing piping and/or fixtures that were installed in violation of code requirements in effect at the time of installation, or not installed in accordance with generally accepted construction practices if no codes were in effect, or that has not been maintained in good condition or that is not being used in a safe manner,

(16) The presence of mechanical equipment that was installed in violation of code requirements in effect at the time of installation, or not installed in accordance with generally accepted construction practices if no codes were in effect, or that has not been maintained in good condition or that is not being used in a safe manner,

(17) Whenever the horizontal and/or vertical weather protection of a structure, because of obsolescence, dilapidated condition, deterioration, damage, lack of painted surfaces, faulty construction or other cause, allows moisture to enter the structure.

(h) The existence of any building or portion thereof used as a dwelling, dwelling unit, apartment, guest room or lodging house defined as having any or all of the conditions or defects described in the California Housing Code and/or California Residential Code (as adopted in the city), or any of the following defects:

(1) Infestation of insects, vermin or rodents as determined by the county health officer or building official,

(2) Lack of functioning connection to required sewage disposal system,

(3) Presence of any plumbing drain pipe which leaks, is blocked or does not convey sanitary waste to a required sewage disposal system,

(4) Presence of any potable water supply pipe which leaks, is blocked or allows rust to enter the water supply.

(i) The existence of any structure, building, or a portion thereof, which is open or maintained for the use, storage, manufacture or distribution of "controlled substances" as defined in the California Health and Safety Code;

(j) The existence of any condition or use which unlawfully obstructs, injures or interferes with the free passage or use in the customary manner of property, any public park, street, highway, sidewalk, and any other portion of the public right-of-way;

(k) The existence of any improperly contained accumulation of manure, human or animal feces, garbage or refuse which may serve as a breeding ground for flies, mosquitoes, rodents or other vermin, or which may or does generate noxious or offensive odors;

(l) The existence of sewage, chemical, petroleum commercial or industrial waste which has the potential to leak into the groundwater or may or does generate noxious or offensive odors;

(m) The existence of any condition or use which poses a threat to the public health or safety.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

Every nuisance condition found to exist on any premises is declared to be unlawful. In addition to all other remedies available to the city, whether criminal, civil, at law or in equity, any nuisance may be abated by an enforcement officer, or any other appropriate city staff as designated by the city manager, in the manner provided in this chapter or in any other manner provided by law.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

It shall be the duty of the owner, and of each responsible party occupying or having charge or control of any parcel of land, improved or unimproved, to maintain such parcel of land free of any nuisance and/or nuisance conditions at all times. The same responsibility extends to the public rights-of-way or public land, related to any vehicle, vessel, structure, machinery, container, refuse, debris or other item found to be or having been under the charge or control of a property owner, responsible party, or last registered or documented owner. Any owner or responsible party shall be responsible for the removal or correction of any nuisance or nuisance conditions and the costs for such removal or correction.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

(a) When the enforcement officer finds that a nuisance condition exists upon any premises in the city, he or she may serve a notice to abate upon the owner or responsible party in possession or having control of the premises upon which the condition exists, directing him/her to abate or cause the nuisance condition(s) upon the premises to be abated on or before a specified compliance date. The notice shall also state that the responsible party may file a written request for a hearing with the city clerk to dispute the alleged conditions within 15 days of the notice.

(b) The enforcement officer shall post one copy of the notice in a conspicuous place on the property in question and shall deliver one copy of the notice to the owner or responsible party in possession or control of the property upon which the nuisance condition exists either in person or by certified mail, with a return receipt requested.

(c) The failure of the owner or responsible party to actually receive the notice shall not affect in any manner the validity of any proceedings pursuant to this chapter.

(d) In the event the responsible party files a timely request for hearing, the city clerk and hearing officer shall schedule the hearing. The hearing shall be conducted within 45 days of receipt of the request unless otherwise agreed to in writing by the parties. The city clerk shall send written notice of the location, time and date of the hearing at least ten days in advance of the hearing date.

(e) In the event the responsible party fails to appeal the notice, the nuisance conditions shall be deemed confirmed. Such failure shall also constitute a failure to exhaust available administrative remedies.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

In the event a hearing is timely requested pursuant to section 3-2-34, the hearing shall be conducted pursuant to the following procedures:

(a) At the time and place designated in the notice of hearing, the hearing officer shall hear and consider all relevant evidence, including, but not limited to, applicable staff reports, oral evidence, physical evidence and documentary evidence regarding the alleged nuisance, and proposed method of abatement. The hearing may be continued from time to time.

(b) Failure of the owner or responsible party to appear at the hearing shall be deemed a waiver of the right to a hearing and an admission by the owner or responsible party of the existence of the nuisance condition charged. In the event of such failure to appear, the hearing officer may order that the nuisance condition be abated by the enforcement officer. Such failure to appear shall also constitute a failure to exhaust available administrative remedies.

(c) The city shall bear the burden of proof to demonstrate, by a preponderance of the evidence, that a nuisance exists and that the proposed mechanism for abatement is appropriate. The city need not demonstrate that the proposed mechanism for abatement is either the most appropriate or least expensive.

(d) The hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. However, irrelevant or unduly repetitious evidence may be excluded.

(e) Prior to conclusion of the hearing, if the owner or responsible party is present, the hearing officer may request the owner or responsible party to sign a consent to enter and perform work. The permission given shall be used only if the nuisance condition is determined to exist and is not abated by the schedule of correction specified in the hearing officer's decision.

(f) If the owner or responsible party does not provide written consent, entry onto the property may be made by obtaining verbal permission from the owner or a responsible party, or by means of an inspection warrant, or by any other lawful manner.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

(a) Within ten days after the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall set forth the factual findings made by the hearing officer, a conclusion as to whether a nuisance condition exists, the manner of abatement, including an order that such nuisance (if one is found to exist) be abated by the city and a schedule of correction or the date by which the abatement shall be completed.

(b) If the hearing officer determines that a nuisance exists which has not been corrected within the time period specified in the notice to abate nuisance conditions, the hearing officer shall so find in the decision, and may include in the decision any or all of the following:

(1) An order to correct, including a schedule of correction where appropriate;

(2) An order to pay administrative costs as provided in this chapter.

(c) Failure to issue a decision in ten days shall not affect the validity of such decision.

(d) The decision shall be mailed by certified mail with a return receipt requested to the owner and shall be mailed to the enforcement officer. A copy of a summary of the decision and any order it contains shall also be posted on the property by the enforcement officer in a conspicuous location.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

Upon receipt of the hearing officer's decision if: (i) no schedule of correction has been issued, or (ii) upon the failure of the property owner to comply with such schedule if a schedule was included, if the nuisance condition has not been abated the enforcement officer shall forthwith abate, or cause to be abated, the nuisance condition upon the premises. The enforcement officer is authorized to enter upon private property for this purpose, consistent with the provisions of the U.S. Constitution.

The cost of abatement shall become a personal obligation of the property owner and responsible party and may be collected in any legal manner, expressly including as lien or special assessment pursuant to the procedures set forth in this chapter.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

(a) Any owner or responsible party may, at his/her/its own expense and prior to the scheduled abatement hearing, abate a declared nuisance condition in accordance with the provisions of the notice sent by the enforcement officer; provided that all necessary permits are first obtained. If the enforcement officer determines that the nuisance condition has been abated prior to the hearing, the hearing proceedings shall be terminated. If any abatement referenced in this section takes place after the specified compliance date, but prior to date set for hearing, termination of the hearing shall only take place upon the owner or responsible party's payment of outstanding penalties, administrative and/or abatement costs.

(b) Any owner or responsible party may also request the city to abate a declared nuisance condition on his/her/its property. However, the owner or responsible party making the request shall be responsible for the payment of all penalties, abatement costs and/or administrative costs incurred by the city. The request for the city to perform the abatement shall be in writing and include a written consent to enter and perform work. Any such request shall be deemed an agreement to pay for the costs of such abatement, including, but not limited to, any penalties, administrative costs, and an agreement that such costs may be collected as a lien upon the property. The abatement hearing proceedings shall thereafter be terminated.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

(a) In addition to liability for the costs of abatement itself, the owner and/or responsible party shall also be liable for any expenses and administrative costs incurred by the city, county or any related agency incurred after the initial inspection and identification of the nuisance.

(b) The administrative costs may include any and all costs incurred by the city in connection with the matter before the hearing officer, including, but not limited to, costs of investigation, city staffing costs incurred in preparation for the hearing and for the hearing itself, including, but not limited to, the fees and costs of the city's consultants, and costs for all re-inspections necessary to enforce the notice to abate nuisance conditions.

(c) In the event that the city is entitled to recover its attorneys' fees and costs pursuant to section 3-2-5, such fees and costs shall be collected at the same time and pursuant to the same procedures as administrative costs pursuant to this section.

(d) The enforcement officer or other authorized city official shall keep an itemized report of the costs incurred by the city in the abatement of any public nuisance in addition to any accrued fees and penalties due. The responsible party may be invoiced for the total. If payment is not received, the itemized report shall be submitted in writing to the city clerk no sooner than 20 days of the invoice date. Any such report may include the abatement costs, fees and penalties for any number of properties and abatements, whether or not such properties are contiguous. In the event, the invoice is not paid within 30 days, the city may collect all such costs, penalties and interest through a lien or special assessment pursuant to this article.

(e) All abatement costs shall bear interest at the rate of ten percent per annum from the date of abatement.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

In the event the city decides to collect abatement costs as a lien, it shall impose such lien pursuant to this section:

(a) Upon receipt of the itemized report, the city clerk, or his or her designee, shall serve notice of the lien in the same manner as summons in a civil action in accordance with California Code of Civil Procedure § 415.10 et seq. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation in Merced County. The period of notice commences upon the first day of publication and terminates at the end of the tenth day, including therein the first day. Publication shall be made on each day on which the newspaper is published during the ten-day period.

(b) The notice shall inform the owner of the pending lien and inform the property owner of the public hearing where the city council will consider imposing the itemized report as a lien against the property. The hearing shall be conducted no less than ten days from service of the notice.

(c) At the hearing and after considering the relevant evidence, the city council may adopt a resolution confirming the itemized report and directing the city clerk to record a lien against the property in the Merced County recorder's office and, from the date of recording, shall have the force, effect and priority of a judgment lien.

(d) The lien shall identify:

(1) The amount of the lien;

(2) The city as the agency on whose behalf the lien is imposed;

(3) The date of the abatement order or citation;

(4) The street address, legal description and assessor's parcel number of the parcel on which the lien is imposed; and

(5) The name and address of the recorded owner of the parcel.

(f) In the event that the lien is discharged, released or satisfied, through either payment or foreclosure, notice of the discharge containing the information specified in subsection D shall be recorded by the city clerk.

(g) A lien may be foreclosed by an action brought by the city for a money judgment.

(h) The city may recover from the property owner any costs incurred in the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

In the event the city decides to collect abatement costs as a special assessment, it shall impose such special assessment pursuant to this section:

(a) The enforcement officer or other authorized city official shall keep an itemized report of the costs incurred by the city in the abatement of any public nuisance in addition to any accrued fees and penalties due. The property owner may be invoiced for the total. If payment is not received, the itemized report shall be submitted in writing to the city clerk no sooner than 15 days of the invoice date. Any such report may include the abatement costs, fees and penalties for any number of properties and abatements, whether or not such properties are contiguous.

(b) If the invoice is not timely paid, the city clerk shall provide written notice to the property owner by certified mail, if the property owner's identity can be determined from the county assessor's or county recorder's records. The notice shall inform the owner of the pending special assessment, including the information set forth in subsection C, and the date, time and location of the public hearing where the city council will consider imposing the itemized report as a special assessment against the property. The hearing shall be conducted no less than ten days from service of the notice.

(c) At the hearing and after considering the relevant evidence, the city council may adopt a resolution confirming the itemized report and assessing the report as a special assessment against the property. The city clerk shall then provide all documentation necessary to the county to enter such assessment. After entry, 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 ordinary municipal taxes. 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. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if 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) Subject to the requirements applicable to the sale of property pursuant to California Revenue and Taxation Code § 3691, the city may conduct a sale of vacant residential developed property for which the payment of that assessment is delinquent.

(e) Notices or instruments relating to the special assessment shall be entitled to recordation.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

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 in accordance with the provisions of this chapter, except for conditions abated pursuant to California Health & Safety Code § 17980, relating to abandoned buildings, the court may order the owner to pay treble the costs of the abatement, as authorized by California Government Code § 38773.7. Costs of abatement shall include, without limitation by reason of enumeration, all administrative costs of the city.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)

(a) Any nuisance which the building official, police chief or fire chief, determines is immediately or imminently dangerous to the life, health or safety of the occupants of the property or to the public, may be summarily abated in accordance with the procedures set forth in this section.

(b) Actions taken to abate immediately or imminently dangerous nuisances may include, but are not limited to, repair or removal of the condition creating the danger and/or the restriction from use or occupancy of the property on which the condition exists or any other abatement action determined by the building official, police chief or fire chief to be necessary. Where a residential rental property is involved, this may require the moving and relocation of the occupants by the owner and/or responsible party to other habitable temporary or permanent accommodations. Any temporary accommodations will be maintained by the owner and/or responsible party, at his/her/its expense, until the corrections are done to the vacated residential property so that it is habitable and the occupants are returned.

(c) When summary abatement is deemed necessary by the building official, police chief or fire chief, it may be ordered only if the abatement order is confirmed and approved by the city manager.

(d) The building official, police chief or fire chief shall attempt to make contact through a personal interview, or by telephone, with the owner or responsible party, if any, occupying or otherwise in real or apparent charge and control of the premises. All attempts to make contact shall be documented. In the event contact is made, the building official, police chief or fire chief shall notify such person or persons of the danger involved and require that such condition be immediately removed, repaired or isolated so as to preclude harm to any person or property.

(e) In the event the building official, police chief or fire chief is unable to make contact as required by this section, or if the appropriate persons, after notification, do not take action as specified by such official within 72 hours, or a lesser period if deemed necessary, then the building official, police chief or fire chief may, with the approval of the city manager and in consultation with the city attorney if feasible, take all steps necessary to remove or isolate such dangerous condition, or conditions, with the use of city forces or a contractor retained pursuant to the provisions of this Code; provided, however, that summary abatement shall be limited solely to those matters which are imminently dangerous to life or other property, and additional abatement, if necessary, shall utilize the other enforcement provisions of this chapter.

(f) The city shall keep an itemized account of the costs incurred by the city in removing or isolating such condition or conditions. Such costs may be recovered to the same extent and in the same manner that other abatement costs are recovered pursuant to this article.

(Ord. No. 509, § 6(Exh. A), 1-19-2021)