Laguna Niguel Municipal Code Art. 3 Enforcement and Abatement

(a) The procedure set forth in this article for abatement of nuisances and the making of the cost of abatement of a public nuisance which exists on a parcel of land a special assessment against that parcel is adopted pursuant to Government Code § 38771 et seq. and article 11, section 7 of the State Constitution. The procedure set forth in this article for abatement applies to any matter which is determined to be a nuisance.

(b) The procedure set forth in this article is cumulative and not exclusive, and is in addition to the procedure for abatement which is conferred upon the city by Civil Code § 3494, Code of Civil Procedure § 731, and any other applicable provision of law.

(Ord. No. 2020-205, § 3, 8-4-20)

All conditions or uses that constitute a public nuisance as defined in article I of this division, or that are contrary to, or in violation of, any other provision or requirement of this Code, or of any applicable county or state law, or regulation thereof, which shall also constitute a public nuisance, shall be abated by repair, rehabilitation, demolition, removal or termination. The procedures for abatement in this article are cumulative and non-exclusive and shall not, in any manner, limit or restrict the city from pursuing any other remedies available at law, whether civil, equitable or criminal, or from enforcing city codes and adopted ordinances, or from abating or causing abatement of public nuisances, in any other manner provided by law.

In addition to this section, title 1, division 3, article 2, Administrative Citations, may be utilized when applicable to abate nuisances and/or code violations.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) No person shall allow, cause, create, permit, suffer or maintain a public nuisance to exist on their premises. If public nuisances do arise or occur, responsible persons shall promptly abate them by repair, rehabilitation, demolition, removal or termination with all required city approvals, permits and inspections, when applicable.

(b) The city may exercise all available city and state administrative, civil/injunctive and criminal remedies, or any one or combination of these remedies, available under this Code or otherwise provided by law to compel responsible persons to abate a public nuisance when, in its judgment, such persons have not completed nuisance abatement actions in a timely or proper manner, or when responsible persons have failed to prevent an occurrence or recurrence of a public nuisance.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) The director of community development, or their designee, may determine that any property within the city may constitute a nuisance pursuant to article 2 of this division or any other provision of law, including but not limited to Civil Code §§ 3479 and 3480, and may initiate proceedings pursuant to this article. The procedure set forth in this section 11-14-102 shall not apply to public nuisances constituting an imminent hazard. In such instances, the provisions of section 11-14-124 (Emergency Abatement) shall apply.

(b) The director of community development shall set forth his or her determination in a letterwhich shallinclude the following:

(1) The address of the real property on which the nuisance condition(s) exist(s);

(2) The conditions which may constitute the nuisance;

(3) A citation to the law describing or prohibiting the nuisance condition(s);

(4) A brief description of the required corrective action(s);

(5) A stated period of time in which to complete the nuisance abatement actions (with all required city approvals, permits, and inspections, when applicable).

(6) A statement that if the nuisance is not abated, the city will seek recovery of all administrative costs, including but not limited to reasonable attorneys' fees, incurred in connection with abating the nuisance and a statement that if the nuisance is not promptly abated, such nuisance may be abated by the city, in which case the costs associated with such abatement, including but not limited to reasonable attorneys' fees incurred in connection with such abatement, may constitute a special assessment or lien against the property.

(7) A statement that the city may record a notice of substandard property with the county recorder's office against the premises if the public nuisance is not fully abated or corrected (with all required approvals, permits, and inspections), as determined by the city, within a 30-day period after service of the letter and provided that a timely appeal therefrom has not been made.

(8) The period and manner in which the nuisance determination may be contested as set forth in section 11-14-106 of this article. No such right shall exist when the city is not seeking to establish the right to abate a public nuisance with city forces or contract agents.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) Except as otherwise expressly required by this division, any notice required by this division may be served by personal delivery to any responsible person or by first class mail. The date of service shall be the date it is personally delivered or placed in a U.S. Postal Service receptacle. Failure of any responsible person to receive a properly addressed notice by mail shall not invalidate any action or proceeding pursuant to this division.

(b) Except as otherwise expressly required by a provision of this division, any notice issued to an owner of real property shall be sent to the mailing address on the last equalized assessment roll and posted prominently on the premises. The notice shall be served and posted not less than 30 calendar days before the date of the hearing. Failure of any owner to receive a properly addressed notice by mail shall not invalidate any action or proceeding pursuant to this division.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) A responsible person may contest a nuisance determination by filing a written request for an appeal with the city clerk's office within ten calendar days of service of the letter of determination. No fee shall be due for the filing of the appeal. The request shall contain the following information:

(1) Name, address, and telephone number of each responsible person who is appealing the notice of abatement (hereinafter, "appellant").

(2) Address and description of real property upon which the city intends to enter and abate a public nuisance.

(3) Date of notice of abatement being appealed.

(4) Specific action or decision being appealed.

(5) Grounds for appeal in sufficient detail to enable the hearing officer to understand the nature of the controversy.

(6) The signature of at least one appellant.

(b) If a timely appeal is not received by the city clerk, the right to appeal is waived and the letter of determination is final and binding. In such instances, the city may, but shall not have the obligation to, cause the abatement with city personnel of any or all of the nuisance conditions or activities stated in the letter of determination without any administrative hearing. Entry onto private property that is both improved and occupied shall, excepting instances of an imminent hazard, be pursuant to a warrant from a court of competent jurisdiction.

(c) An administrative appeal shall be scheduled no later than 60 calendar days, and no sooner than 15 calendar days, of a timely appeal filing. The notice of hearing shall be in substantially the following form:

Notice is hereby given that on the ____________ day of ____________ , the director of community development of the city determined that a nuisance subject to abatement may exist on the following described premises. On the ____________ day of ____________ , at the ____________ , located at ____________ , a hearing will be held before a hearing officer appointed by the city manager to determine whether a public nuisance exists on the premises. If the premises, in all or in part, are found to constitute a public nuisance and if the same is not promptly abated by the owner, such nuisance may be abated by the city, in which case the costs of such abatement will be assessed upon such premises and such costs will constitute a lien upon such land until paid.

The premises are described as follows:

[Provide property address]

The hearing will address the following public nuisance conditions on the premises:

[Describe condition or activities]_______________________________________ ________________________________________in violation of the Laguna Niguel Municipal Code [as well as County and State laws, if applicable] Section(s) _____________________________.

The foregoing public nuisance conditions are subject to abatement by repair, rehabilitation, demolition, removal, or termination.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) The city shall provide responsible persons with a reasonable period to elect between options of repair, rehabilitation or demolition as well as a reasonable period of time to complete any of these options, before the city abates a public nuisance by demolishing a building or structure.

(b) The city shall serve a Notice of Abatement on all secured lien holders of record with the Orange County Recorder's Office in the event abatement actions include demolition of a building or structure.

(c) Notwithstanding any other provisions of this division, entry onto any real property to abate a public nuisance by demolition of a building or structure excepting in cases involving an imminent hazard shall be pursuant to a warrant issued by a court of competent jurisdiction.

(d) The provisions of this section shall not apply if demolition is required to address an imminent hazard. In such situation, the provisions of section 11-14-124 (Emergency Abatement) shall apply.

(Ord. No. 2020-205, § 3, 8-4-20)

A notice of intention to abate and remove an abandoned, wrecked, dismantled, or inoperative vehicle, or parts thereof, as a public nuisance, shall be mailed by registered mail to the owner of the land on which the vehicle exists.

(Ord. No. 2020-205, § 3, 8-4-20)

A hearing officer shall be appointed by the city manager to conduct hearings pursuant to this division as necessary.

(Ord. No. 2020-205, § 3, 8-4-20)

The rules of evidence set forth in section 5-2-19 shall apply to hearings conducted pursuant to this division, and the hearing officer and property owner or occupant may request the city council to issue subpoenas as set forth therein.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) At the time fixed in the notice provided for in section 11-14-5106, a hearing officer appointed by the city council shall hear the testimony of all competent persons, subject to reasonable limitations of cumulative testimony and other procedures as set forth in section 11-14-111, desiring to testify respecting conditions constituting the alleged nuisance, including the estimated cost of its abatement and any other matter which may be pertinent. Not later than fifteen (15) calendar days following conclusion of the hearing, the hearing officer shall determine if any nuisance condition exists at the subject property. If the hearing officer determines that each nuisance condition described in the notice of abatement is non-existent, the notice of abatement shall be deemed cancelled. If the hearing officer determines that one or more of the nuisance conditions described in the notice of abatement exists, he/she shall issue a written order of abatement which shall contain the following:

(1) A finding and description of each nuisance condition existing at the subject property.

(2) The name of each person responsible for a nuisance condition or conditions at the subject property, as well as the name of any person who is not responsible therefor.

(3) The required corrective action and a compliance period for each unabated nuisance condition.

(4) Any other finding, determination or requirement that is relevant or related to the subject matter of the hearing.

(b) A copy of the decision shall be served by first class mail on each responsible person to whom the notice of abatement was issued. If the owner is not an appellant, a copy of the order of abatement shall also be served on the owner by first class mail to the address shown on the last equalized assessment roll. Failure of a person to receive a properly addressed decision shall not invalidate any action or proceeding by the city pursuant to this division.

(c) The failure of any responsible person to comply with an order of abatement by completing each of the requisite corrective actions in the manner and time set forth in the order of abatement constitutes a misdemeanor offense.

(d) The decision of the hearing officer shall be in writing and shall be final upon service of a copy of the decision and order by first-class mail to each responsible person and owner in accordance with subsection (b).

(Ord. No. 2020-205, § 3, 8-4-20)

(a) The city council shall constitute the board of appeals for any decision of the hearing officer under this article.

(b) Any decision of the hearing officer may be appealed to the city council by the responsible person or the owner or occupant of the property or called up for review any member of the city council. Notice of the appeal or review shall be filed with the city clerk within ten calendar days after the decision becomes final. Late notices will not be considered. Hearings on appeal shall be limited to those issues raised in the notice of appeal. The director of community development shall give notice of the hearing on the appeal or review in the manner and to the persons described in section 11-14-4205, not less than ten calendar days prior thereto.

(c) The filing of a timely notice of appeal or council review shall stay any further proceedings under the determination appealed from until the board of appeals has made its determination.

(d) The city council may uphold, reverse or modify any determination appealed. The decision of the city council shall become final upon service thereof by registered mail upon those persons described in section 11-14-103.

(Ord. No. 2020-205, § 3, 8-4-20)

The hearing officer may grant an extension of time to abate a nuisance under this division if, in his opinion, good cause for an extension exists.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) Any responsible person shall have the right to fully abate a nuisance in accordance with the hearing officer's decision prior to the date of entry of the city upon the subject real property, provided that all corrective actions are completed with all required city permits, approvals and inspections, prior to said entry date. In such instances, all administrative proceedings shall be cancelled, with the exception of the city's right to seek recovery of its incidental expenses, code enforcement fees, and attorney's fees incurred prior to abatement by such responsible person.

(b) Once the city enters a subject real property to abate a public nuisance, it shall have the right to complete the abatement action.

(c) It is unlawful and a misdemeanor for any person to obstruct, impede, or interfere with city personnel in the performance of any act that is carried out to abate a public nuisance.

(d) Any building, structure, and/or personal property that is removed by city personnel from premises in the abatement of a nuisance shall be lawfully disposed of or destroyed without regard to its actual or salvage value.

(e) All abandoned, wrecked, dismantled, or inoperative vehicles or parts thereof, that are removed from real property shall be transported to a scrap yard or automobile dismantler's yard. After a vehicle has been removed, it shall not thereafter be reconstructed or made operable, unless it is a vehicle which qualifies for historical vehicle license plates pursuant to Section 5004 of the California Vehicle Code, in which case the vehicle may be reconstructed or made operable. Within five days after the date of the removal of the vehicle, or parts thereof, notice shall be given to the Department of Motor Vehicles identifying the vehicle, or parts thereof, removed. At the same time, there shall be transmitted to the Department of Motor Vehicles any evidence of registration available, including registration certificates of title, and license plates.

(Ord. No. 2020-205, § 3, 8-4-20)

The director of community development shall keep an itemized account of the costs involved in abating a nuisance under this article. The director shall post conspicuously on the property, and shall also mail to the owner and occupant of the property, a statement showing the cost of the abatement. The statement shall be accompanied by a notice to the owner and occupant that the cost of abatement may be contested as set forth in section 11-14-116. If the cost is not contested within ten calendar days after service, it shall be deemed final.

(Ord. No. 2020-205, § 3, 8-4-20)

The responsible person, or the owner or occupant may contest the cost of abatement by the city under this article by requesting a hearing before the hearing officer within ten calendar days of service of the statement of costs described in section 11-14-9208. Upon receipt of such a request, the director of community development shall schedule a hearing, upon at least ten calendar days' notice to the persons and in the manner provided in section 11-14-4203. At the time fixed for the hearing on the statement of costs, the hearing officer shall consider the statement and contests or objections raised by the person liable to be assessed for the cost of the abatement. The hearing officer may revise, correct or modify the statement as he considers just, and thereafter shall confirm the cost. The decision of the hearing officer shall be in writing and shall be served by mail as described in section 11-14-4203. The decision shall be final upon mailing.

(Ord. No. 2020-205, § 3, 8-4-20)

If the property owner or other responsible person does not pay the cost of abating the nuisance pursuant to this article within 30 calendar days after the cost becomes final or the hearing officer confirms the cost of abatement, or after the cost has been confirmed by the city council, if appealed, the city council may order that the cost shall become a special assessment against the property on which the nuisance was abated and that a notice of lien shall be filed. The assessment shall continue until it is paid, together with interest at the rate of seven percent a year computed from the date of confirmation of the statement until payment. 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 taxes. All acts applicable to levy, collection and enforcement of property taxes shall apply to this special assessment.

(Ord. No. 2020-205, § 3, 8-4-20)

In the event of an assessment pursuant to section 11-14-11115, the city clerk shall file in the office of the county recorder a notice in substantially the following form:

Under the authority of Government Code § 25845, the City of Laguna Niguel did on _________(date), order abatement of a nuisance and on _________(date), did abate such nuisance upon the real property hereafter described and then on _________(date) , did assess the cost of the abatement upon the real property. The record owner (or possessor) of such property was ____________ (name and address). The city claims a special assessment on the real property for the cost of doing the work in the amount of $ ____________ . This amount is a special assessment against the real property until it is paid, with interest at the rate of seven percent a year from ____________ (insert date of confirmation of statement), and discharged of record. The real property referred to above, and upon which the special assessment is claimed is that certain parcel of land situated within the City of Laguna Niguel, County of Orange, State of California, more particularly described as follows: _____________________________________________.

(Ord. No. 2020-205, § 3, 8-4-20)

Pursuant to California Government Code § 38773.7 (or any subsequent amendment thereto), upon entry of a second or subsequent civil or criminal judgment within a two (2) year period finding that an owner of property is responsible for a public nuisance except for public nuisance conditions abated pursuant to California Health & Safety Code Section 17980 ("State Housing Law"), the court may order that person to pay treble the costs of the abatement.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) Notwithstanding any provision of the Laguna Niguel Municipal Code to the contrary, if the city determines that any property, building or structure, or any part thereof, is in violation of any provision of the Laguna Niguel Municipal Code and said violation has not been fully abated or corrected, as determined by the city, in the manner and time provided in a written notice to a responsible person, then the city, in its sole discretion, may record a notice of substandard property with the Orange County Recorder's Office against said premises. As used herein, "fully abated or corrected" includes the procurement of all required city approvals, permits, licenses and the passage of all city required inspections.

(b) The city may record a notice of substandard property without the issuance of a notice of abatement provided that a written notice of violation or a written notice of correction to a responsible person previously disclosed that a substandard notice may be recorded against a property if a violation is not fully abated or corrected in the manner and time delineated in said notice.

(c) A notice of substandard property may be recorded after service of a notice of abatement provided that: (i) the notice of abatement contained this disclosure, (ii) the public nuisance was not, as determined by the city, fully abated or corrected in the manner and time specified in the notice of abatement, and, (iii) a timely and proper appeal to the notice of abatement was not made.

(d) The form that constitutes a notice of substandard property shall be approved by the city attorney or the city prosecutor.

(e) The city shall record a notice of rescission of substandard property with the Orange County Recorder's Office within ten business days of its determination that a violation or a public nuisance has been fully abated or corrected.

(f) The city shall cause copies of recorded notices of substandard property and notices of rescission of substandard property to be served on all persons having an ownership interest in the subject real property as shown in the last equalized assessment roll of the Orange County Assessor's Office. Service thereof shall be by first class mail. Failure of any person to receive such notices shall not invalidate any action or proceeding pursuant to this division.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) Pursuant to California Health and Safety Code § 17951, and any successor statute thereto, responsible persons, who cause, allow, permit, suffer, or maintain a violation in, or upon, residential properties, shall be charged fees (hereafter "code enforcement fees") by the city to defray its costs of code enforcement actions, as hereafter defined. Such fees shall not exceed the amount reasonably required to achieve this objective and are chargeable whether the city's code enforcement actions occur in the absence of formal administrative or judicial proceedings, as well as prior to, during, or subsequent to, the initiation of such proceedings.

(b) The amount(s) or rate(s) of code enforcement fees for city personnel time and other resources that are used for code enforcement actions shall be established, and may thereafter be amended, by resolution by the city council.

(c) The city manager, or a designee thereof, is authorized to adopt regulations for the uniform imposition of code enforcement fees, and for related administrative actions pertaining to such fees.

(d) The fees imposed pursuant to this section shall be in addition to any other fees or charges that responsible persons may owe in accordance with any other provision of the this Code, or which are imposed pursuant to county, state or federal laws or regulations.

(e) Code enforcement fees shall be recoverable in conjunction with any civil, administrative or criminal action to abate, cause the abatement or cessation of, or otherwise remove a violation or a public nuisance.

(f) Failure to pay code enforcement fees shall constitute a debt that is collectible in any manner allowed by law.

(Ord. No. 2020-205, § 3, 8-4-20)

A prevailing party in any administrative, civil or equitable judicial action to abate, or cause the abatement of a public nuisance as defined in this division, or in any appeal or other judicial action arising therefrom, may recover reasonable attorney's fees in accordance with the following subsections:

(1) Attorney's fees are not recoverable by any person as a prevailing party unless the city manager, or a designee thereof, or an attorney for, and on behalf of, the city, elects in writing to seek recovery of the city's attorney's fees at the initiation of that individual action or proceeding. Failure to make such an election precludes any entitlement to, or award of, attorney's fees in favor of any person or the city.

(2) The city is the prevailing party when an administrative or judicial determination is made or affirmed by which a person is found to be responsible for one or more conditions or activities that constitute a public nuisance. A person is the prevailing party only when a final administrative or judicial determination completely absolves that person of responsibility for all conditions or activities that were alleged, in that action or proceeding, to constitute a public nuisance. An administrative or judicial determination that results in findings of responsibility and non-responsibility on the part of a person for conditions or activities that were alleged in that action or proceeding to constitute a public nuisance, shall nevertheless result in the city being the prevailing party.

(3) Provided that the city has made an election to seek attorney's fees, an award of attorney's fees to a person shall not exceed the amount of reasonable attorney's fees incurred by the city in that action or proceeding.

(Ord. No. 2020-205, § 3, 8-4-20)

The owner of any property within the city has the primary responsibility for keeping the property free of public nuisances. Tenants and occupants of the property, for the purposes of this division, shall be deemed to be the agents of the owner.

(Ord. No. 2020-205, § 3, 8-4-20)

(a) Notwithstanding any provision of the Laguna Niguel Municipal Code to the contrary, the city manager, director of community development, the police chief, the fire chief, or the building official, or any of their designees, may cause a public nuisance to be summarily abated if it is determined that the nuisance creates an imminent hazard to a person or persons, or to other real or personal property.

(b) Prior to abating a public nuisance that creates an imminent hazard, the city manager shall attempt to notify a responsible person by telephone or in writing of the imminent hazard and request its abatement by said person; provided however, that the city manager may dispense with any attempt at prior notification of a responsible person if, in the sole discretion of the city manager, the nature or severity of the hazard justifies such inaction. If notice has been so given, but, in the sole discretion of the city manager, the responsible person(s) fail(s) to take immediate and meaningful steps to abate the imminent hazard, the city may abate the nuisance with city personnel without further notice, and charge the costs and fees thereof to the responsible person(s).

(c) Within ten business days following emergency action of city personnel to abate an imminent hazard, the city shall serve any responsible person with a notice of emergency abatement by city personnel of an imminent hazard by first class mail. Notice to a property owner shall be mailed to the mailing address set forth in the last equalized assessment roll of the Orange County Assessor's Office. Failure of any responsible person to receive a properly addressed notice of emergency abatement by city personnel of an imminent hazard by mail shall not invalidate any action or proceeding pursuant to this division.

(d) A notice of emergency abatement by city personnel of an imminent hazard shall contain the following provisions:

(1) The name of all known responsible persons who are being served with the notice of emergency abatement by city personnel of an imminent hazard and the address of the real property on which the imminent hazard was present.

(2) A brief description of the condition(s) and reasons why it constitutes an imminent hazard.

(3) A brief description of the law prohibiting or pertaining to the imminent hazard.

(4) A brief description of the action's city personnel took to abate the imminent hazard.

(e) Omission of any of the foregoing provisions in a notice of emergency abatement by city personnel of an imminent hazard, whether in whole or in part, or the failure of a responsible person to receive this document, shall not render it defective or render any proceeding or action pursuant to this division invalid.

(f) Emergency abatement of an imminent hazard by city personnel shall not preclude the city from recording a notice of substandard property in accordance with the provisions of section 5-1.24 of this article, if conditions thereafter remain at the premises that constitute a violation of law or a public nuisance.

(g) The city shall be entitled to recover its fees and costs (incidental or otherwise) for the abatement of an imminent hazard. In such instances, the city shall follow the procedures set forth in this division.

(Ord. No. 2020-205, § 3, 8-4-20)