Imperial County Municipal Code Ch. 2 Nuisance; Abatement

Footnotes:

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Editor's note— Sec. 9 of Ord. No. 1454, adopted Oct. 27, 2009, rescinded Chapter 2, Sections 91302.00 through 91302.02, which pertained to similar subject matter, and derived from the prior code. Sec. 10 of Ord. No. 1454 enacted new provisions to read as herein set out.

This chapter is intended to be an alternative procedure for the abatement of any public nuisance. A violation of any statute, regulation or ordinance enforced by the county constitutes a nuisance. It is intended to provide a uniform procedure for notification, right of appeal and assessment of costs and collection thereof for the abatement of public nuisances. This chapter may be used in conjunction with procedures established in Title 1 of this code. The administrative abatement procedure herein is intended to provide due process for all those who are required to abate a public nuisance.

(Ord. No. 1454, § 10, 10-27-09)

"Nuisance," as defined in Civil Code Section 3479, is anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street or highway.

Any condition caused, maintained or permitted to exist in violation of any of the provisions of the county land use ordinances is declared unlawful and a public nuisance that may be abated consistent with the procedures provided for in this division, or in any other manner provided by law.

(Ord. No. 1454, § 10, 10-27-09)

Whenever a public nuisance is declared, it may be abated in accordance with the procedures provided in this chapter. Nothing in this chapter shall be construed to limit the right and duty of any county officer to take immediate action to preserve or protect public health or safety. The procedures set forth in this chapter are not exclusive but are cumulative to all other civil and criminal remedies provided by law. The seeking of other remedies shall not preclude the simultaneous commencement of proceedings pursuant to this chapter.

(Ord. No. 1454, § 10, 10-27-09)

This chapter is enacted pursuant to Government Code Section 25845 and is intended to be an alternative procedure for the abatement of any public nuisance declared to be a violation of any statute, regulation or ordinance enforced by the county. It is intended to provide a uniform procedure for notification, right of appeal, assessment of costs and collection thereof for the abatement of public nuisances.

(Ord. No. 1454, § 10, 10-27-09)

Pursuant to Government Code Section 25845(a), the code enforcement officer is authorized to summarily abate public nuisances determined by the code enforcement officer to constitute an immediate threat to public health or safety. The nuisance may be summarily abated by any reasonable means and without notice or hearing when immediate action is necessary to protect against the existence of a dangerous condition or imminent threat to life or safety on public or private property. Summary abatement actions shall not be subject to the notice and hearing requirements of this chapter. Summary abatement actions may be initiated after commencement of proceedings pursuant to this chapter, if immediate action becomes necessary to preserve or protect the public health or safety. Summary abatement shall be limited to actions that are reasonably necessary to immediately remove the threat. In the event a public nuisance is summarily abated, the code enforcement officer may keep an account of the cost of abatement and such costs shall be charged to the responsible party. If the bill is not paid within fifteen (15) days from the date of mailing, the code enforcement officer may proceed to obtain a special assessment and lien against the property in accordance with the procedures set forth in this code.

(Ord. No. 1454, § 10, 10-27-09)

A code enforcement officer may declare a public nuisance for any reason specified in any county ordinance. Upon a public nuisance being declared, the code enforcement officer shall issue a notice and order to abate substantially in the following form:

NOTICE AND ORDER TO ABATE

NOTICE IS HEREBY GIVEN THAT _______ [specify the condition constituting the nuisance] is in violation of Section ________ [insert section number] of the county of Imperial Codified Ordinances ________ [or other applicable statute]. The violation is declared a public nuisance. The public nuisance is on property located at _______ [insert address or other legal property description].

YOU ARE HEREBY ORDERED TO ABATE SAID PUBLIC NUISANCE within ___ (___) [insert a reasonable number of days (not less than ten)] consecutive calendar days from the issuance of this order. The issuance date is specified below. You may abate the nuisance by _______ [insert desired action which, if taken, will adequately remedy the situation (for example, removal, demolition or repair)]. The nuisance must be abated by ________ [insert date certain]. If you fail to abate the public nuisance by the above date, the county may order its abatement by public employees, private contractor or other means, and the cost of said abatement may be levied and assessed against the property as a special assessment lien or billed directly to the property owner.

YOU MAY APPEAL FROM THIS ORDER OF ABATEMENT but any such appeal must be brought prior to the expiration of the number of days specified above for completion of abatement. The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by an appeal fee of ___ dollars ($___); and be submitted to the Director of Planning and Development Services at the following address:

801 Main Street El Centro, CA 92243

ISSUANCE DATE: _______ insert date that the county issues the notice]

_____ (Name, address and telephone number of officer issuing this notice)

(Ord. No. 1454, § 10, 10-27-09)

_____

These procedures shall be followed when it is necessary to correct or remove the conditions giving rise to a nuisance.

A. First Notice. If the code enforcement officer determines that public or private property or any portion thereof is being maintained or permitted to exist in a manner prohibited by the provisions of any county land use ordinance, the code enforcement officer shall give written notice requiring abatement of the condition to all responsible parties concerned. The notice shall specify the following:

1. The manner in which the conditions on the property violate the provisions of county land use ordinances or other ordinances;

2. The corrective actions required to abate the violation;

3. Notice that failure to bring the property into compliance with the code could subject the owner and other responsible parties to civil and criminal penalties; and

4. Notice that failure to bring the property into compliance with the code could result in the imposition of a lien on the property for costs related to the enforcement of the ordinances and abatement of the conditions.

The failure of the notice to set forth all required contents shall not affect the validity of the proceedings.

B. Manner of Giving Notice. The code enforcement officer may give personal notice. Alternatively, the code enforcement officer shall send a copy of the notice by registered or certified mail, postage prepaid, return receipt requested, to the owner of the property, as such person's name and address appears on the county equalized assessment roll, to each mortgagee or beneficiary under any recorded deed of trust or holder of any recorded lease and to the holder of any other asset or interest in the property, at the last known address of such interest holders. Service by mail shall be deemed complete at the time of deposit in the mail. In the event that the code enforcement officer cannot give notice in the manner provided above, the code enforcement officer shall post a copy of the notice in a conspicuous place on the property. The failure of any owner or other person, including any mortgagee or beneficiary or lease holder as mentioned above, to receive such notice shall not affect the validity of the proceedings.

C. Second Notice. If the first notice is not complied with in a timely manner, a second notice shall be given. Such second notice shall be sent to all responsible parties. The notice shall direct all responsible parties to appear at a hearing before the planning commission at a stated date, time and place to show cause why the conditions on the property should not be abated. The hearing shall be set not less than fifteen (15) days after service of the second notice. Prior to the hearing, a copy of the first and second notices and proof of service shall be filed with the planning commission. The failure of any responsible party to receive such notice shall not affect the validity of the proceedings.

D. Hearing. At the time fixed in the second notice, the planning commission shall receive evidence regarding the conditions of the property or any other relevant matter presented by any interested person. In conducting the hearing, the planning commission shall not be limited by the technical rules of evidence. Upon the conclusion of the hearing, the planning commission shall make its decision and it may declare the conditions on the property to be in violation of county ordinances and, therefore, a public nuisance. The decision shall be mailed to all parties concerned or be posted on the property, in the same manner as the first notice. If the planning commission determines there is a public nuisance, it shall direct the responsible parties to abate the conditions on the property within forty-five (45) days after service of the decision. If the responsible parties fail to abate the conditions on the property within such time, the county may abate those conditions. If the county abates the conditions, after a hearing, the costs of abatement shall be a lien on the property which may be collected by an assessment against the property pursuant to Government Code Sections 25845 and 54988 or by any other means provided by law. The planning commission may grant any extension of time to abate such conditions that it may deem justifiable upon a showing of good cause.

E. Appeal to Board of Supervisors. The decision of the planning commission shall be final unless appealed to the board of supervisors within ten (10) days of the date of the service of the planning commission's decision.

F. Time to Bring Action. Unless a responsible party files a writ in a court of competent jurisdiction within ninety (90) days after the date of service of the board of supervisors' decision, all objections to the proceedings and decision shall be deemed to have been waived.

G. Time to Bring Action—Administrative Fines or Penalties; Notice; Time to Appeal to Superior Court. A final decision shall be issued by the board of supervisors or other authorized person. The date of mailing of the final decision to the party by first class mail, with certificate of service attached, shall constitute the date of the exhaustion of administrative remedies. A party shall be advised that it has ninety (90) days, pursuant to the California Code of Civil Procedure Section 1094.6, from that date in which to file for a writ of mandamus or other applicable judicial review, except that if the determination is made as to a decision imposing an administrative penalty, fine or charge either under Chapter 1.41 of this code or under this Title, the time to appeal to the superior court is limited to 20 days pursuant to California Government Code Section 53069.4. Failure to file for judicial review within the applicable time limit makes the final decision nonappealable and confirmed. Until a timely request for judicial review is filed, enforcement of the final decision may proceed in due course.

H. Jurisdiction to Abate. After the applicable ninety-five (95) days after service of the board of supervisors' decision or twenty-five (25) days in the case of administrative penalty, fine or charge, the county shall have jurisdiction to abate such conditions, unless the board of supervisors grants an extension of time.

I. Statement of Expense/Notice of Intent to Lien. The county shall mail, by certified and regular mail, and shall cause to be posted conspicuously on the property, a verified statement showing the abatement costs, together with a notice of the date, time and place for the hearing on the statement shall be heard by the board of supervisors. The statement of expense shall include a notice that failure to pay the expenses shall result in a lien upon the property. The date for such hearing shall be not less than fifty (50) days after the posting and mailing of the statement of expense. A copy of the statement of expense and notice shall be mailed to all responsible parties in the manner as prescribed for the first notice. All supporting documentation and proofs of service shall be filed with the clerk of the board prior to any hearing.

J. Hearing on Statement of Expense. At the time fixed for the hearing on the statement of expense, the board of supervisors shall consider the statement of expense, together with any objections that may be raised by the responsible parties. The board of supervisors may make any such revision, correction or modification in the statement of expense as it may deem just and thereafter shall render its decision on the statement of expense. The board of supervisors' decision on the statement of expense and all protests and objections that may be made shall be final and conclusive.

K. Payment - Lien. If payment of the amount due established in the statement of expense is not made within ten (10) days after the board of supervisors' decision, the county may transmit the statement of expense and the board of supervisors' decision to the county auditor-controller. The auditor-controller shall place the amount on the assessment roll as a special assessment on the property to be paid with county taxes, unless sooner paid. A notice of lien, including the following information, may be recorded with the county clerk/recorder:

1. A description of the real property affected, including the assessor's parcel number;

2. A summary of the action taken to abate the subject condition;

3. The date upon which abatement of the nuisance was ordered by the board of supervisors;

4. The date the abatement was complete; and

5. The amount of the lien claimed by the county.

L. Release of Lien. Upon payment of the abatement costs in full, or upon order of the board of supervisors, if a lien has been recorded, the county shall execute and record a release of the lien on the property. If an assessment has been placed on the assessment roll and is thereafter paid to the county, the auditor-controller shall cancel the assessment on the roll.

M. Incurring Expense. The county is authorized to pay the cost of a title search to determine the responsible parties, mailing expense and the expense of all work done or caused to be done by the county in the abatement of the subject condition. All such costs shall be included in the statement of expense.

N. Continuances - Decision. The board of supervisors may continue any hearing for any amount of time. Upon the conclusion of the hearing, the board of supervisors shall render its decision within fifteen (15) days.

O. Other Remedies. The provisions of this chapter are to be construed as an added remedy of abatement and not in derogation of any other actions, proceedings or remedies otherwise provided by law.

(Ord. No. 1454, § 10, 10-27-09)