Lomita Municipal Code Ch. 16 Nuisance Abatement

Footnotes:

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Editor's note— Ord. No. 720, § 3, adopted Dec. 15, 2008, amended ch. 16 in its entirety and enacted similar provisions as set out herein. The former ch. 16 derived from Ord. No. 661, § 1, adopted April 5, 2004; and Ord. No. 699, § 1, adopted April 2, 2007.

(A) Pursuant to authority provided in article 6, chapter 10, part 2, division 3 of title 4 of the Government Code of the state (commencing at Government Code § 38771), including any successor statutes, the city hereby establishes its procedure for abatement of public nuisances except as otherwise mandated by law or specifically provided by city ordinance.

(B) The intent of this chapter is to provide a comprehensive mechanism for the identification and abatement of public nuisances within the city.

(C) The remedies provided for in this chapter are supplemental and complementary to all of the provisions of this Code, state law, and any law cognizable at common law or in equity; and nothing herein shall be read, interpreted or construed in any manner to limit any existing right or power of the city to abate any and all public nuisances.

(Ord. No. 720, § 3, 12-15-08)

Abandoned—Conditions on a property or portion thereof that demonstrate that the property is vacant and not properly maintained, including, but not limited to, overgrown and or dead vegetation, accumulation of mail, past-due utility notices, disconnected utilities, accumulation of debris, broken doors and windows, statements by neighbors, passers, delivery agents and governments employees that the property is vacant. For residential property, such conditions could further be demonstrated by the following additional issues including, but not limited to, accumulation of newspapers, flyers, and the absence of furnishings and personal items consistent with residential habitation.

Abate—An action to terminate, remove, stop, cease, repair, replace or otherwise remedy a public nuisance related activity or condition by such means and in such manner as is necessary to the interest of the health, safety, or general welfare of the public.

Property—A lot or parcel of land together with all the structures located thereon.

(Ord. No. 720, § 3, 12-15-08)

It is unlawful, and it is declared to be a public nuisance for any person owning, leasing, occupying, or having charge or possession of any property within the city to maintain such property in a manner that any of the conditions listed below are found to exist. This section is not the exclusive definition or designation of what constitutes a nuisance within this city. It supplements and is in addition to other regulatory codes, statutes, and ordinances enacted by the city, state, or any other legal entity or agency having jurisdiction. Designated public nuisances include the following:

(A) A violation of any provision of applicable law including, without limitation, the Lomita Municipal Code, including any codes incorporated by reference therein;

(B) Any land, the topography, geology, or configuration of which, whether in a natural state or as a result of grading operations, excavations, fill, or other alteration, interferes with the established drainage pattern over the property or from adjoining or other properties which does or may result in erosion, subsidence, or surface water drainage problems of such magnitude as to be injurious to public health, safety and welfare or to neighboring properties;

(C) Any building or structure which is partially destroyed, damaged, abandoned, dilapidated or permitted to remain in a state of partial construction;

(D) The failure to secure and maintain against public access all doorways, windows, and other openings into vacant or abandoned buildings or structures;

(E) Painted buildings and walls, retaining walls, fences or structures that require repainting, or buildings, walls, fences, or structures upon which the condition of the paint has become so deteriorated as to permit decay, excessive checking, cracking, peeling, chalking, dry rot, warping or termite infestation;

(F) Any wall, fence, gate, or hedge that is damaged, broken, or a hazard or is maintained in violation of this code so as to constitute either a danger to the public safety or public property or an impediment to public travel;

(G) Broken windows;

(H) Any overgrown, dead, decayed, diseased or hazardous tree, weeds, vegetation, or debris which:

1. May harbor rats, vermin, or other disease carriers;

2. Is maintained so as to cause an obstruction to the vision of motorists or a hazardous condition to pedestrians or vehicle traffic;

3. Creates a danger or attractive nuisance to the public;

4. Detrimentally affects neighboring properties or property values; or

5. Constitutes a fire hazard.

(I) Building exteriors, roofs, landscaping, grounds, walls, retaining and crib walls, fences, driveways, parking lots, planters, sidewalks, or walkways which are maintained in such condition so as to become defective, unsightly, cracked or no longer viable or in need of insect extermination;

(J) The accumulation of dirt, litter, trash, junk, feces, or debris in doorways, adjoining sidewalks, walkways, courtyards, patios, parking lots, planters, landscaped or other areas;

(K) Any property upon which there is or is permitted to be:

1. Lumber, building materials, rubble, broken asphalt or concrete, containers, or other similar materials, except where construction is occurring under a valid permit;

2. Junk, solid waste, vegetation, salvage materials, scrap metals, hazardous waste, broken or neglected machinery, dirt or fill material deposited or stored contrary to any law, automobile parts, except within a commercial business lawfully engaged in retail sales;

3. Sinks, fixtures or equipment, appliances or furniture, except lawn furniture in residential yards and new or used furniture lawfully stored or displayed in connection with a valid business engaged in the sale or purchase of the same;

4. Inoperative vehicles, except where permitted by the zoning ordinance;

5. Deteriorated driveways and parking lots, including those containing pot holes, or cracks;

6. Abandoned, broken, unused, neglected or unprotected equipment and machinery, ponds, reservoirs and pools, whether or not the same contains any water or liquid, excavations, abandoned wells, shafts, basements, foundations, or other holes, abandoned refrigerators or other appliances, abandoned motor vehicles, any unsound structure, skateboard ramps, or accumulated lumber, solid waste, junk, or vegetation which may reasonably attract children to such abandoned or neglected conditions;

7. Temporary service bins or construction debris storage bins stored on a public street or on private property, except where permitted by this Code;

8. Any garbage can, solid waste container, solid waste, packing box or junk placed or maintained so as to be visible from the public right-of-way, except for those times scheduled for collection, in accordance with this Code;

9. Any property with accumulations of grease, oil, or other hazardous material on paved or unpaved surfaces, driveways, buildings, walls, or fences, or from which any such material flows or seeps on to any public street or other public or private property, or which is likely to seep or migrate into the underground water table;

10. Any front yard, parkway, or landscaped setback area which lacks turf, other planted material, decorative rock, bark, or planted ground cover or covering, so as to cause excessive dust or allow the accumulation of debris;

11. Any condition of vegetation overgrowth which encroaches into, over, or upon any public right-of-way including, without limitation, streets, alleys, or sidewalks, so as to constitute either a danger to the public safety or property or an impediment to public travel; or

12. Animals, livestock, poultry, or bees kept, bred, or maintained for any purpose and in violation of this Code.

(L) Any property, or any building or structure thereon, maintained in such condition so that it is defective, unsightly or in such condition of deterioration or disrepair that it causes or will cause an ascertainable diminution of the property values of surrounding properties or be otherwise materially detrimental to adjacent and nearby properties and improvements;

(M) Any building or portion thereof maintained in a manner which constitutes a substandard building pursuant to Health and Safety Code § 17920.3 or in the Los Angeles County Building Code, or any successor provision, adopted pursuant to Lomita Municipal Code section 10-1.01;

(N) Any building or structure which meets the definition of an unsafe building or structure as provided in the Los Angeles County Building Code, or any successor provision, adopted pursuant to Lomita Municipal Code section 10-1.01;

(O) Any building or structure which meets the definition of a dangerous building as provided in the Los Angeles County Building Code, or any successor provision, adopted pursuant to Lomita Municipal Code section 10-1.01;

(P) Any imminent life safety hazard which creates a present and immediate danger to life, property, health or public safety;

(Q) Any condition which constitutes an attractive nuisance on a property or portion thereof;

(R) Any property or portion thereof that has been operated or maintained in a manner that has resulted in repeated disruptive activities including, but not limited to, disturbances of the peace, public drunkenness, drinking in public, harassment of passers, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, illegal parking, loud noises (particularly in late-night or early-morning hours), traffic violations, curfew violations, or police detentions and arrests;

(S) Any condition which renders air, food or drink unwholesome, unsanitary or detrimental to health;

(T) Any property or portion thereof used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing or giving away any controlled substance (as defined in division 10 of the California Health and Safety Code) and every building or place wherein or upon which those acts take place;

(U) Any property or portion thereof used for the purpose of unlawfully selling, serving or giving away alcoholic beverages and every building or place in or upon which alcoholic beverages are unlawfully sold, served or given away;

(V) Any property or portion thereof used for the purpose of illegal gambling as defined by state or local law, lewdness or prostitution, and every building or place in or upon which such activities are held or occur;

(W) Any garage utilized as a living space as prohibited by the Los Angeles County Building Code, or any successor provision, adopted pursuant to Lomita Municipal Code section 10-1.01; or

(X) Any public nuisance as defined in Civil Code §§ 3479 and 3480 and Penal Code §§ 370 and 371 or otherwise recognized in law or in equity as constituting a public nuisance.

(Ord. No. 720, § 3, 12-15-08)

A public nuisance as defined in section 3-16.03 may be abated by the city in accordance with the provisions set forth in this chapter.

(Ord. No. 720, § 3, 12-15-08)

(A) Declaration of nuisance. Whenever the community development director determines that any property, or portion thereof, within the city is being maintained contrary to one (1) or more provisions cited in section 3-16.03 above, then the community development director may cause notice to be given in the manner provided in this chapter for the holding of a public hearing to ascertain whether the same does in fact constitute such public nuisance, the abatement of which is appropriate under the police power of the city.

(B) Form and notice of hearing. Notice of the time and place of hearing before the city manager's designee shall be titled "NOTICE OF HEARING," and shall be substantially in the following form:

NOTICE OF HEARING TO DETERMINE EXISTENCE OF PUBLIC NUISANCE AND TO ABATE IN WHOLE OR IN PART:

NOTICE IS HEREBY GIVEN that on the ________ day of ________, 20___, at the hour of ________, the [City Manager's designee] will hold a public hearing in the ___________ of Lomita City Hall, located at 24300 Narbonne Avenue, Lomita, California, to ascertain whether certain property situated in the City of Lomita, State of California, designated as (street address), in said City, and more particularly described as ___________ constitute a public nuisance subject to abatement. If said property, in whole or in part, is found to constitute a public nuisance as defined by the Lomita City Code and if the same are not properly abated by the owner, such nuisances may be abated by municipal authorities or an independent contractor, and the rehabilitation, or repair will be assessed upon such property and such costs will constitute a lien upon such land until paid.

The alleged violations consist of the following:

_____

_____

_____

_____

The methods of abatement available are:

_____

_____

_____

_____

All persons having any objections to, or interest in the matters are hereby notified to attend a hearing before the [City Manager's designee] to be held on the ________ day of________, 20 ___, at the hour of ________, when their testimony and evidence will be heard and given due consideration.

DATED: This ________ day of ________, 20 ___.

Community Development Director

(C) Posting and serving notice of hearing.

1. The community development director shall cause to be served upon the owner as shown on the latest equalized tax assessment roll of each of the affected properties a copy of the notice and shall cause a copy thereof to be conspicuously posted on each of the affected properties in accordance with the provisions of subsection (B) above.

2. The notice shall be posted on the property and served to the property owner by either personal service or by both regular and certified mail at least ten (10) days before the time fixed for such hearing; proof of posting and service of such notice shall be made by declaration under penalty of perjury filed with the city clerk.

3. The failure of any person to receive the notice shall not affect the validity of any proceedings under this chapter.

(D) Hearing—Conduct. The hearing to determine whether a nuisance exists shall be conducted by the city manager's designee, which shall act as the hearing officer. At the hearing, the city manager's designee shall consider all relevant evidence, including but not limited to, applicable staff reports. The city manager's designee shall give any interest person a reasonable opportunity to be heard in conjunction therewith. Based upon the evidence so presented, the city manager's designee shall determine whether a nuisance within the meaning of this chapter exists.

(E) Order of abatement.

1. The decision of the city manager's designee shall be final and conclusive.

The city manager's designee, within ten (10) working days of the hearing shall give written notice of his or her decision to the owner and to any other person requesting the same. The notice shall contain an order of abatement, if a nuisance is determined to exist, directed to the owner of the affected property or the person in the control and/or charge of the property, and shall set forth the nature of the nuisance, its location and the time and manner for its abatement. The city manager's designee may impose such conditions as are reasonably necessary to abate the nuisance. The order, and any amended or supplemental order or notice, shall be delivered to the property owner by either personal service or by both regular and certified mail, based on the last equalized assessment roll or supplemental roll, whichever is more current.

(F) Voluntary abatement of nuisance. The property owner of any property alleged to be a public nuisance may abate said condition at any given time within the abatement period set forth in the order of abatement issued pursuant to subsection (E) above. The community development director shall be advised of the abatement and shall inspect the property to ensure that the public nuisance has in fact been abated.

(G) Time extension. The community development director may grant a reasonable time extension to the period set forth in the order of abatement issued pursuant to subsection (E) above at the request of the property owner. The property owner shall provide evidence of extenuating circumstances for a time extension to be approved.

(H) Abatement. If the owner, or person in the control and/or charge of the property, fails or neglects to remove or otherwise take action to abate the public nuisance, as provided in this chapter, the city manager, through city employees or an independent contractor, may cause such public nuisance to be abated as directed in the city manager's designee's order. The city manager or his or her designee shall keep a record of the cost of work performed by city forces and/or the independent contractor(s) to abate the nuisance.

(Ord. No. 720, § 3, 12-15-08)

Notwithstanding section 3-16.05 above, whenever the condition giving rise to the public nuisance is an imminent threat to life, property, health or public safety requiring immediate action, the city manager shall have immediate jurisdiction to abate a public nuisance and may order or direct such action as is necessary to immediately abate the public nuisance. The city manager shall only pursue remedial actions as are reasonably necessary to eliminate the immediacy of the hazard. The cost of such abatement, to the extent that they are not part of any regularly provided city service, shall be recoverable against the property owner and/or responsible persons through the steps outlines in section 3-16.07.

(Ord. No. 720, § 3, 12-15-08)

(A) The cost of abating a public nuisance shall either be a lien on the property, a special assessment against the property, or the personal obligation of the owner and/or the person responsible for creating, causing, committing or maintaining the public nuisance.

(B) The city manager or his or her designee shall keep an itemized account of the expenses incurred by the city in abating the nuisances under the provisions of this chapter, including all administrative costs upon the completion of the work of abatement. The city manager or his or her designee, shall prepare and file with the city council a report specifying the abatement measures undertaken, the itemized and total cost of the abatement, a description of the real property on which the abatement was done, and the names and addresses of the persons entitled to notice pursuant to subsection 3-16.05(E). This report shall be verified by the city official in charge of overseeing the abatement work.

(C) The city manager or his or her designee shall cause notice of the cost of abatement to be given in the same manner as prescribed in subsection 3-16.05(E). Such notices shall be given at least ten (10) days prior to the date set for hearing shall specify the day, hour and place when the city council will hear and pass upon the report of the city manager or his or her designee. The notice shall specify that the property may be sold by the tax collector or by the City for unpaid delinquent assessments.

(D) At the time fixed for the hearing, the city council shall hear and pass upon the report, together with any objections or protests which may be raised by any property owner liable to be assessed for the abatement work. The protests heard pursuant to this subsection shall relate only to the charge to be made for abatement. No protest shall be heard concerning the action of the city manager or his or her designee in ordering the abatement of the nuisance, unless such abatement order was issued as a result of an emergency. Written protests may also be filed with the city clerk at any time prior to the time set for the hearing on the report. Each written protest or objection must contain the property address and the grounds for such protest or objection. After hearing all oral protests and reviewing all written protests, the city council may make such revisions, corrections or modifications to the report as it may deem just, after which, by resolution, the report, as submitted, revised, corrected or modified, shall be confirmed. The city council may adjourn the hearings from time to time. The decisions of the city council on all protests and objections which may be made shall be final and conclusive.

(E) Pursuant to Government Code § 38773.1, the cost of abatement of a public nuisance under this chapter can be a lien on the property or against the owner of the property. Further, the City shall be entitled to interest at the rate of seven (7) percent per annum from the date of confirmation of costs by the city council.

Notice of proposed recordation and an itemized notice of the lien will be sent by certified mail at least ten (10) days before recording the lien by certified mail to the property owner of record of the parcel of land on which the nuisance was abated by the city, based on the last equalized assessment roll or the supplemental roll, whichever is more current before recordation of the lien. In addition, the notice will be served in the same manner as a summons in a civil action in accordance article 3 (commencing with section 415.10) of chapter 4 of title 5 of part 2 of the Code of Civil Procedure. 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 (10) days, and publication thereof in a newspaper of general circulation published in the county in which the property is located pursuant to Government Code § 6062. If the cost of abatement is not paid within ten (10) days after service of the notice of recordation is complete, the city may file in the office of the county recorder a certificate in substantially the following form:

NOTICE OF LIEN

Pursuant to the authority vested by the provisions in the Lomita Municipal Code, the City Manager or his or her designee of the City of Lomita did on or about the ________ day of ________, 20 ___, cause a public nuisance to be abated on the real property hereinafter described pursuant to an abatement order of the City Manager or his her designee ________ dated ________, 20 ___.

The City of Lomita did on the ________ day of ________, 20 ___, by action duly recorded in its official minutes, assess the cost of such abatement and related administrative costs; and the same has not been paid nor any part thereof. The City of Lomita hereby claims a lien on said real property for the net expense of the doing of said work plus related administrative costs in the sum of $________, and the same shall be a lien on said property until said sum, with interest at the rate of seven (7) percent per annum, from the ________ day of ________, 20___ (date of confirmation of statement by City Council), has been paid in full and discharged of record.

The real property herein before mentioned, and upon which a lien is claimed, is that certain piece or parcel of land lying and being in the City of Lomita, County of Los Angeles, State of California, and particularly described as follows:

(Description of Property)

Street Address

Legal Description

Parcel Numbers

(Name of owner and address)

Dated:

________ City Manager

(F) From and after the date of recording the notice of lien, all persons shall be deemed to have had notice of the contents thereof. If any such lien is not paid, the city may file and maintain an action to foreclose such lien or take any other action as provided by law.

(G) As an alternative to the procedure authorized in subsection (E) above and pursuant to Government Code § 38773.5, the cost of abatement, if not paid within ten (10) days after its confirmation by the city council, may constitute a special assessment against that parcel of property which shall be recorded as follows:

1. After the city council determines that the charge will be assessed against the property, the city shall record a notice describing the abatement action and the total costs with the county recorder.

2. After confirmation of the report prepared pursuant to subsection (B) above and recordation of the notice, certified copies of the report and the city council resolution shall be given to the county auditor or assessor who shall add the amount of the assessment to the next regular tax bill levied against the parcel in the same manner as ordinary municipal taxes.

3. The amount of the assessment shall be collected at the same time and in the same manner as ordinary municipal taxes, and shall be subject to the same penalties and procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of property taxes shall be applicable to such assessment.

4. The assessment liens shall be subordinate to all existing special assessment liens previously imposed upon the same property and paramount to all other liens except state, county and municipal taxes with which it shall be on parity. The lien shall continue until the assessment and all interest due and payable thereon has been paid.

(H) The city council may also order that the cost for the abatement be made a personal obligation of the property owner and/or the person responsible for causing, committing or maintaining the public nuisance. The city council shall then direct the city attorney and the finance department to collect the cost of abatement.

(I) The city council may direct the city attorney or designee institute a lawsuit to collect any amounts due by reason of the abatement of a nuisance by the city and to foreclose any existing liens for such amounts. Notwithstanding the provisions of this chapter, the city attorney may bring any appropriate civil and criminal action for abatement of any nuisance within the city pursuant to any other provision of the law. Upon entry of a second or subsequent civil or criminal judgment within a two-year period, finding that the owner or possessor of a property, place or area is responsible for a condition that may be abated in accordance with this chapter, except for conditions abated pursuant to Health and Safety Code § 17980, the court may order the owner or possessor to pay treble the costs of the abatement to the city.

(J) All monies recovered by payment of the charge, obligation, assessment or lien shall be paid to the City treasurer and deposited into the general fund.

(Ord. No. 720, § 3, 12-15-08)

(A) Nothing in this chapter shall be deemed to prevent the city council from authorizing the city attorney to commence a civil action to abate the nuisance in addition to, alternatively to, or in conjunction with the proceeding set forth in this chapter, nor shall anything in this chapter be deemed to prevent the city from commencing a criminal action with respect to the violation of this chapter.

(B) This chapter is not the exclusive regulation of property maintenance. It shall be supplemental in addition to other regulatory codes, statutes and ordinances heretofore or hereinafter enacted by the city, state, or any other legal agency having jurisdiction.

(Ord. No. 720, § 3, 12-15-08)

Attorney's fees shall be awarded to the prevailing party in any action or administrative proceeding to abate a nuisance instituted by the city, if the city elects, at the beginning of each individual action or proceeding, to seek recovery of its own attorney's fees. If the city does not elect to recover its attorney's fees, no party shall be entitled to seek to recover the fees. In no action or administrative proceeding shall an award of attorney's fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.

(Ord. No. 720, § 3, 12-15-08)