Merced Municipal Code Art. IV General Procedures for Nuisance Abatement

All or any part of premises found as provided in this chapter to constitute a public nuisance shall be abated by rehabilitation, demolition, repair, removal, or other appropriate means as determined by the enforcement officer pursuant to the provisions set forth in this chapter. The procedures set forth in this chapter shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other city ordinances or abating public nuisances in any other manner provided by law.

(Ord. No. 2349, § 1, 3-1-2010)

An enforcement officer may enter and inspect or abate any building or premises whenever necessary to secure compliance with, or prevent violation of, any provision of this chapter, in accordance with Chapter 1.13 and as authorized by law. If required by law, the enforcement officer shall first obtain consent of the responsible person or an appropriate court order to inspect and/or abate a nuisance.

(Ord. No. 2349, § 1, 3-1-2010)

A. Whenever the enforcement officer determines that any premises within the incorporated city limits is maintained as a nuisance pursuant to the appropriate Merced Municipal Code section or other law, then an inspection shall be made, and written notice of inspection and findings provided to the responsible party.

B. The written notice shall contain the following information:

1. Date and the address or definite description of the location of the nuisance.

2. The Merced Municipal Code section(s) or other laws or conditions violated, all facts constituting the nuisance, and a declaration of nuisance.

3. A reasonable time limit, in no event less than seven (7) days, in which to take corrective action to remedy the nuisance, except as set forth in Articles V and VI of this chapter.

4. A date for reinspection of the premises.

5. A description of the consequences for failing to abate the nuisance.

6. Name and signature of the enforcement officer.

(Ord. No. 2349, § 1, 3-1-2010)

A. Notice shall be given by as follows:

1. If the nuisance relates to real property, by posting on the property; and

2. By personal delivery to the responsible party; or

3. To the property owner, by mailing a copy of the notice by certified mail, return receipt requested, postage prepaid, to his or her address shown on the last equalized assessment roll available on the date the notice is prepared, and by first class mail to the same address, and to other responsible parties at their address as known to the enforcement officer or at the property address. Service under this subsection shall be deemed complete after deposit in the United States mail.

4. If the corrective action may involve demolition of or significant expense to abate, the property, to all other persons with a legal interest in the property subject to abatement, by mailing a copy of the notice by United States mail, postage prepaid. Service under this subsection shall be deemed complete after deposit in the United States mail.

(Ord. No. 2349, § 1, 3-1-2010)

After the period of time specified in the declaration of nuisance served pursuant to Section 8.40.100, a reinspection of the premises shall be made to determine whether or not compliance has been achieved.

(Ord. No. 2349, § 1, 3-1-2010)

A. If, after reinspection on the indicated date, the nuisance has not been abated, a notice of the results of said reinspection shall be mailed to the involved parties. Said notice shall contain the following information:

1. Date and the address or definite description of the location of the nuisance.

2. The Merced Municipal Code section(s) or other laws or conditions violated, all facts constituting the nuisance, and a declaration of nuisance.

3. Specify the corrective action required.

4. A reasonable time limit, in no event less than seven (7) days, in which to take corrective action to remedy the nuisance, except as set forth in Articles V and VI of this chapter.

5. A date for reinspection of the premises.

6. A description of the consequences for failing to abate the nuisance.

7. Advise that failure to correct the violation will result in the city taking corrective action and collecting all charges related thereto, by pursuing appropriate civil remedies, including billing, obtaining a civil judgment, lien, or special assessment against the property.

8. Advise of the right to an appeal hearing before a hearing officer for the date set on the notice.

9. Advise of the right to present evidence, including written, oral, and testimony from witnesses at the administrative appeal hearing.

10. That failure to appear at the administrative appeal hearing shall constitute a waiver of the right to be heard at the hearing.

11. Name and signature of the enforcement officer.

(Ord. No. 2349, § 1, 3-1-2010)

A. Report and Recommendation. The enforcement officer shall prepare an administrative hearing packet for the hearing officer and provide for his/her review five (5) days prior to the hearing. The packet shall include a copy of the notice and order to abate public nuisance, a staff report, and any evidence of the violation(s).

B. Admissibility of Evidence at Administrative Appeal Hearing. At the administrative appeal hearing, the hearing officer shall review all evidence, documents and written testimony and hear all oral testimony offered either in support of appellant's claim or in support of the notice and order to abate public nuisance, provided such evidence and testimony is relevant to the issues of the hearing. The hearing officer has the authority to determine the relevance of any evidence to the issues of the hearing. The hearing officer also has the authority to exclude unduly repetitious and cumulative evidence, regardless of its relevancy. The formal rules of evidence shall not apply at the administrative appeal hearing.

C. Failure to Attend Administrative Appeal Hearing. If the responsible party(s) fails to attend the scheduled administrative appeal hearing, the hearing will proceed without the responsible party(s) and he or she will be deemed to have waived his or her rights to be orally heard at the administrative appeal hearing.

D. Hearing Officer's Determination on Appeal.

1. Following the appeal of a notice of order to abate public nuisance, the hearing officer may decide to uphold the notice and order, establish a modified schedule for compliance, overturn some or all of the findings of the enforcement officer and/or rescind the notice and order in part or in its entirety.

2. The hearing officer shall prepare and serve a written notice of decision ("decision") upon the responsible party(s), including the owner, by certified mail, return receipt requested, and by regular first-class mail to all other persons and entities who received notice of the original hearing, and to any other person requesting the same. The decision of the hearing officer shall be final, except as otherwise provided by Section 8.40.150. In the event the decision may require demolition of a structure, the decision must also be served on all persons with a legal interest in the property, in the manner specified in Section 8.40.110.

3. The hearing officer shall serve the written notice of decision five (5) days from the date the hearing is deemed closed. The hearing officer shall also provide or cause to be provided a copy of the decision to the enforcement officer.

4. The decision shall include the following:

(a) Whether the notice and order to abate public nuisance has been either upheld, in full or in part, or rescinded, in full or in part;

(b) A brief summary of the evidence considered;

(c) Findings of fact;

(d) A determination of the issues presented;

(e) The effective date of the decision;

(f) A compliance order, if applicable, which shall:

(1) Specifically describe the actions which shall be required to be taken to remedy the code violations indicated in the decision; and,

(2) Shall require the actions to be completed within a specified time period and by a specified deadline; and

(g) Specify the consequences for failure to comply with the order.

5. The decision of the hearing officer shall be final.

(Ord. No. 2349, § 1, 3-1-2010)

Any appeal of the decision of the hearing officer ordering the abatement of any public nuisance under the provisions of this chapter must be brought in accordance with California Code of Civil Procedure Sections 1094.5 and 1094.6.

(Ord. No. 2349, § 1, 3-1-2010)

At no cost to the city, the responsible party will comply with all of the provisions of an abatement order. If the responsible party fails, for any reason, to comply with an abatement order within the time required in the order, the city manager, or his or her designee, shall cause the nuisance described in the abatement order to be abated by city forces or by private contractor. The city attorney is authorized to take action as needed to gain entry upon the property where the public nuisance exists for purposes of abating a public nuisance.

(Ord. No. 2349, § 1, 3-1-2010)

The enforcement officer shall keep an account of all abatement costs, as defined in Section 8.40.030.B., for abating the nuisance on each separate lot or parcel of land where the work is done.

(Ord. No. 2349, § 1, 3-1-2010)

A. The enforcement officer shall give notice of the cost of abatement by certified mail (postage fully prepaid) addressed to the owner of the property at the address appearing on the last equalized assessment roll or the supplemental roll, whichever is more current, and to the responsible party. The cost notice will include a statement of hearing rights of the property owner and the responsible party (if not the property owner) concerning the cost of abatement. Upon written request for a hearing by the property owner received by the city manager within ten (10) days after mailing the cost notice, a hearing will be held by the city manager, or his/her designee, on the question of the cost of the abatement.

B. Notice of the hearing will be mailed at least ten (10) days before the hearing by certified mail, to the property owner and responsible party. The city manager or his/her designee will either confirm the costs of abatement or modify the amount. The decision of the city manager or his/her designee is final. The city manager or designee will give notice of the decision on the cost of abatement by registered or certified mail to the property owner and responsible party.

(Ord. No. 2349, § 1, 3-1-2010)

A. The city may pursue any available legal remedy to collect costs owed to the city for abatement of the nuisance.

B. Collection costs shall be in addition to any penalties, interest and/or late charges imposed on the delinquent obligation. Collection costs imposed under this section shall be added to and become part of the underlying obligation.

C. Interest. Any person who fails to remit payment to the city of all abatement costs required to be paid to the city pursuant to a nuisance abatement order under this chapter within sixty (60) days of the date such abatement costs are confirmed in accordance with Section 8.40.180, shall, in addition to the amount of the abatement costs, pay interest on the amounts due at the rate of ten (10) percent per annum, pro rata, from the date on which the amount due first became delinquent until the date that payment is received by the city.

(Ord. No. 2349, § 1, 3-1-2010)

A. Lien. Pursuant to California Government Code Sections 38773, 38773.1 and 38773.5, and any successor statutes, persons failing to abate a public nuisance as ordered pursuant to this article will be obligated to pay all city expenses of abating the nuisance and all administrative costs, as defined in Section 8.40.030.B., associated therewith. A nuisance abatement lien in favor of the city for the expenses of the city will be created and recorded, pursuant to this section, against the property on which the nuisance is maintained. The lien will specify the amount of the lien, the name of the city, the date of the abatement order, the street address, legal description and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.

B. Notice of Proposed Recordings. An itemized notice of the lien amount and proposed recording will be sent 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. The notice will be served in the same manner as a summons in a civil action in accordance with California Code of Civil Procedure Section 415.10 et seq., at least ten (10) days before recording the lien. 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.

C. Recording. The city's nuisance abatement lien will then be recorded in the Merced County Recorder's office, and from the date of recording, will have the force, effect, and priority of a judgment lien.

D. Special Assessment.

1. The city's total abatement costs may also be collected as a special assessment against the respective lot or parcel of land to which it relates, and upon recordation in the office of the county recorder of the County of Merced of a notice of lien, as so made and confirmed shall constitute a special assessment on the property for the amount of the assessment. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes.

2. The city clerk shall give written notice to the owner of the imposition of the special assessment by United States mail, postage prepaid, at the time of imposing the assessment. The notice shall contain the following information:

(a) That the property may be sold after three (3) years by the tax collector for unpaid delinquent assessments and that the tax collector's power of sale shall not be affected by the failure of the property owner to receive notice.

(b) That the assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected and subject to the same penalties and the same procedure and the sale in case of delinquency as provided for ordinary municipal taxes.

(c) That if the property is sold 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 to which the first installment of taxes would become delinquent, the cost of abatement shall not be a lien against the real property, but shall be transferred to the unsecured roll for collection.

E. Satisfaction. In the event that the lien or special assessment is discharged, released, or satisfied, either through payment or foreclosure, a notice of the discharge containing the information specified in the lien shall be recorded by the city.

F. Fees. Any fees incurred by the city for processing, recording of the lien and providing notice to the property owner may be recovered by the city as part of its foreclosure action to enforce the lien.

(Ord. No. 2349, § 1, 3-1-2010)

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 Article IV of this chapter, except conditions abated pursuant to California Health and Safety Code Section 17980, the court may order the owner to pay treble the costs of the abatement.

(Ord. No. 2349, § 1, 3-1-2010)

In all cases where the city attorney or his/her designee has determined to proceed with abatement proceedings either by filing a criminal or a civil action, initiating an administrative proceeding or special proceeding, recovery of attorney's fees shall be available to the prevailing party. However, recovery of attorney's fees shall only be available to those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorney's fees. In no action, administrative proceeding, or special proceeding shall an award of attorney's fees to a prevailing party exceed the amount of reasonable attorney's fees incurred by the city in the action or proceeding.

(Ord. No. 2349, § 1, 3-1-2010)

A. Nothing in this chapter will be deemed to prevent the city attorney from:

1. Commencing a civil action in the Superior Court to enforce all or any of the provisions of any abatement order;

2. Commencing a civil action to abate a public nuisance as an alternative to or in conjunction with an administrative proceeding pursuant to this chapter;

3. Filing a civil action to recover the amount of a confirmed accounting from an owner or occupant of the lot to which it relates; or

4. Filing a criminal action to enforce this code.

B. Where a civil action is filed, if the court issues an order or a judgment which finds a public nuisance to exist, and orders or approves the abatement of the public nuisance, or where the court validates an accounting, the court will also award the city its actual costs of abatement, including, without limitation, reasonable attorney's fees incurred by the city in the judicial proceeding.

(Ord. No. 2349, § 1, 3-1-2010)

Nothing in this chapter shall be so interpreted as to prevent prosecution under any other civil, penal, building, fire, or related codes or other sections in other titles of the Merced Municipal Code. The city reserves the right to employ any one (1) or any combination of any and all codes for prosecution.

(Ord. No. 2349, § 1, 3-1-2010)

Any person, firm, or corporation, whether as a principal, agent, employee or otherwise, violating any provision(s) of this chapter shall be guilty of a misdemeanor and upon conviction thereof, shall be punished in accordance with Chapter 1.12 of this code.

(Ord. No. 2349, § 1, 3-1-2010)

The city manager or any employee charged with the enforcement of this code, acting in good faith and without malice for the city in the discharge of his/her duties, shall not thereby render himself/herself liable personally and he/she is relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or by reason of any act or omission in the discharge of his/her duties. Any suit brought against the city manager or employee because of such act or omission performed by him or her in the enforcement of any provisions of this code shall be defended by the city attorney or designated counsel until final termination of the proceedings.

(Ord. No. 2349, § 1, 3-1-2010)