Modesto Municipal Code Art. 12 Abatement of Public Nuisances in Buildings and Structures

Once the Building Official, or his or her designee, has followed the procedures set forth herein for the service of a notice on the person responsible for the erection, construction, alteration, extension, repair, moving, removal, demolition, or occupancy of a building or structure in violation of the provisions of this Code, and an order directing the discontinuance of the illegal action or condition and the abatement of the violation, and the time for compliance has lapsed, if the violations, or any of them, remain, the City may act to abate the nuisance condition(s) under one (1) of the following procedures:

(a) Where the person served has appealed the Notice and Order, the Board of Building Appeals has determined that the nuisance condition exists and ordered its abatement, and where the nuisance has not been abated within the time allotted by the Board, the City may cause the nuisance to be abated by its employees or by independent contractors. Entry to the property for the purpose of abatement under this procedure shall be made only upon the written consent of the owner, or, lacking such consent, pursuant to an administrative inspection warrant issued by a Judge of the Superior Court.

(b) Where the Notice and Order has not been appealed to the Board of Building Appeals, and the nuisance conditions have not been rectified within the time allotted in the Order, the City may seek an order from the Superior Court authorizing entry onto the property and the removal of any violation or the abatement of any nuisance specified in the Notice and Order.

(c) Where the Notice and Order has not been appealed to the Board of Building Appeals, and the nuisance conditions have not been rectified within the time allotted in the Order, the City may proceed administratively before the Board on an order to show cause why the building should not be condemned as a nuisance, and the nuisance be abated as provided in this article.

(Ord. 3513-C.S., § 2, effective 6-12-09)

If the Building Official decides to proceed with the abatement of a nuisance in a building or structure through administrative proceedings before the Board of Building Appeals, a second notice shall be given directing the owner of the building to appear before the Board at a stated time and place and show cause why the building should not be condemned as a nuisance, and the nuisance be abated as provided in this article. The notice shall be headed "Notice to Abate Nuisance." The Notice and Order shall be in the following form:

NOTICE TO ABATE NUISANCE

The owner of the building situated at ___________ is hereby notified to appear before the Board of Building Appeals of the City of Modesto at its meeting to be held on ________, 20___, at Room ___, 1010 Tenth Street, Modesto, California, at the hour of ___ o'clock ___.m., or as soon thereafter as the owner may be heard, and show cause, if any, why the building should not be condemned as a public nuisance and the nuisance be abated by reconstructing or properly repairing the building or by razing or removing it.

Dated: ________

By ___________

(Name) Chief Building Official

By: ___________

(Name) (Title of employee)

(Ord. 3513-C.S., § 2, effective 6-12-09)

Notice shall be given in the following manner. The Notice and Order shall be posted conspicuously on the building or structure where the nuisance condition(s) exist. In addition, the Notice and Order shall be served by registered mail, return receipt requested, postage pre-paid, to the person owning the land on which the building or structure is located as that person's name and address appear on the last equalized assessment roll, or as known to the Clerk of the Board of Building Appeals, and to any mortgagee or beneficiary. Those same persons shall also be served simultaneously by regular U.S. Mail.

Service by certified or regular mail in the manner described above shall be effective on the date of mailing.

The officer or employee giving such notice shall file a proof of service regarding the posting and mailing in the manner required herein, but the failure of any person with an interest in the property to receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under this article.

(Ord. 3513-C.S., § 2, effective 6-12-09)

(a) At the time fixed in said Notice, the Board of Building Appeals shall proceed to hear the testimony of the officers or employees of the City of Modesto and the owner or his representatives, if present at said hearing, and other competent persons who may be present and desire to testify, respecting the condition of said building or structure, the estimated cost of its reconstruction, repair or removal, and any other matter which the Board may deem pertinent thereto. Upon the conclusion of said hearing, the Board may, by resolution, declare its findings and, in the event that it so concludes, may declare said building to be a nuisance and direct the owner to abate the same within thirty (30) days after the date of posting on said premises a notice of the passage of said resolution by having said building properly reconstructed or repaired, or having the same razed or removed and notifying said owner that if said nuisance is not abated said building will be razed or removed by the enforcement agency and the expense recovered by the City in accordance with the procedures set forth in Article 7 of Chapter 6 of Title 1of the Modesto Municipal Code.

(b) At any time within sixty (60) days after the passage of any resolution directing the abatement of a nuisance, the Building Official shall cause to be posted a copy thereof conspicuously on the building so declared to be a nuisance and shall cause another copy to be mailed by registered mail, postage prepaid, return receipt requested, to the person owning the land on which the building is located as such person's name and address appear on the last equalized assessment roll of the County of Stanislaus or as known to the clerk of the Board, and a copy of said Notice shall be mailed to each mortgagee or beneficiary under any deed of trust, of record, at the last known address of such mortgagee or beneficiary, and if such address is unknown to the enforcement agency, then said fact shall be stated in said copy so mailed and it shall be addressed to him at the county seat of the County of Stanislaus.

The officer or employee of the enforcement agency, upon giving notice as aforesaid, shall file a proof of service regarding the posting and mailing in the manner required herein.

The Board may grant any extension of time to abate said nuisance that it may deem justifiable upon good cause therefor being shown.

(Ord. 3513-C.S., § 2, effective 6-12-09)

Any owner or other interested person having any objections, or feeling aggrieved at any proceedings taken by the Board of Building Appeals in ordering abatements of any nuisance, must bring an action in a court of competent jurisdiction within thirty (30) days after the date of posting on said premises a notice of the passage of the resolution declaring the nuisance to exist to contest the validity of any proceedings leading up to and including the adoption of the resolution; otherwise all objections will be deemed to have been waived.

(Ord. 3513-C.S., § 2, effective 6-12-09)

Thirty days after the posting of the copies of the resolution declaring any building a nuisance, the Building Official shall be deemed to have acquired jurisdiction to abate such nuisance by razing or removing the building, unless the nuisance is abated by the owner or other person interested within the thirty (30) day period or any extension thereof granted by the Board as provided for in this article. In the event that the nuisance is not abated within the time prescribed the City of Modesto may thereupon raze and remove the building so declared to constitute a nuisance or have the same done under its direction and supervision.

(Ord. 3513-C.S., § 2, effective 6-12-09)

The building materials contained in such building so razed or removed may be sold by the City of Modesto at public sale to the highest responsible bidder after not less than five (5) days' notice of intended sale published at least once in a newspaper of general circulation published in the City, either before or after said building has been razed or removed, and any amount received from the sale of such building materials shall be deducted from the expense of razing or removing said building. The Building Official shall keep an itemized account of the expense involved in the razing or removing of any such building and shall deduct therefrom the amount received from the sale of the building materials. The Building Official shall cause to be posted conspicuously on the property from which the building was razed or removed a statement verified by the officer of the enforcement agency in charge of doing the work showing the gross and net expense of the razing or removing of such building together with a notice of the time and place when and where said statement shall be submitted to the Board of Building Appeals for approval and confirmation, and at which time the Board shall consider any objections or protests, if any, which may be raised by any property owner liable to be assessed for the cost of such work and any other interested persons. A copy of said statement and notice shall be mailed in the manner prescribed in Section 9-8.1203 of this Code, and an affidavit of such posting and mailing shall be filed in the manner prescribed in said section. The time for confirmation shall be not less than five (5) days from the date of the posting and mailing of said statement and notice.

(Ord. 3513-C.S., § 2, effective 6-12-09)

(a) At the time fixed for the hearing of the statement of expense the Board of Building Appeals shall consider the statement, together with any objections or protests which may be raised by any of the property owners liable to be assessed for doing the work and any other interested persons; and thereupon the Board may make such revision, correction, or modification in the statement as it may deem just, after which, by motion or resolution, said report as submitted, or in the event any revisions, corrections or modifications have been ordered made by the Board, then said statement as revised, corrected or modified, shall be confirmed. The Board may adjourn said hearings from time to time and its decisions on said statement and on all protests and objections which may be made shall be final and conclusive.

(b) In the event that the cost for razing or removing the nuisance exceeds the proceeds received from the sale of any materials, then the amount of the net expense of abating the nuisance, if not paid within five (5) days after the decision of the Board on its statement, shall constitute a lien on the real property upon which the same was abated or removed, which lien shall continue until the amount thereof and interest thereon at the rate of six (6) percent per annum, computed from the date of confirmation of the statement until paid, or until it is discharged of record. This lien shall, for all purposes, be upon parity with the lien of state, county, and municipal taxes. In the event of nonpayment, the Board shall, at any time within sixty (60) days after its decision on the statement, cause to be filed in the office of the County Recorder of the County of Stanislaus a certificate substantially in the following form:

NOTICE OF LIEN

Pursuant to the authority vested in the undersigned by Division 13, Part 1.5 of the Health and Safety Code and California Code of Regulations, Title 25, Chapter 1, Subchapter 1, of the State of California, the undersigned did on the ___ day of ________, 20,___ cause a nuisance to be abated on the real property hereinafter described; and the undersigned did on the ___ day of ________, 20___, by action duly recorded in its official minutes as of that date, assess the cost of the abatement, less the amount received from the sale of any building materials upon the real property hereinafter described, and the same has not been paid nor any part thereof; and the City of Modesto does hereby claim a lien on the real property for the net expense of the doing of the work in the sum of $________, and the same shall be a lien upon the real property until the sum, with interest at the rate of 6 percent per annum, from the ___ day of ________, 20___, [insert date of confirmation of statement] has been paid in full and discharged of record. The real property hereinbefore mentioned, and upon which a lien is claimed, is that certain piece or parcel of land lying and being in the City of Modesto, County of Stanislaus, State of California and particularly described as follows:

[Insert legal description of the property here]

Dated:___________

CITY OF MODESTO

By: ___________

(Name) Chief Building Official

(c) From and after the date of the recording of said Notice of Lien all persons shall be deemed to have had notice of the contents thereof. The statute of limitations shall not run against the right of the enforcement agency to enforce the payment of said lien.

(d) In the event that the amount received from the sale of material exceeds the expenses of razing or removing such building, then such excess shall be deposited with the Finance Director of the City of Modesto to the credit of the owner of said property, or to such other person legally entitled thereto, and such excess shall be payable to said owner or other person on demand and upon producing evidence of ownership satisfactory to the Director of Finance.

(Ord. 3513-C.S., § 2, effective 6-12-09)

If the owner abates the nuisance conditions before the City performs the actual abatement pursuant to a Notice and Order to abate a public nuisance, the Building Official may still assess all costs incurred by the City against the owner pursuant to the procedure set forth herein.

(Ord. 3513-C.S., § 2, effective 6-12-09)