Modoc County Municipal Code Ch. 8.20 Nuisance Abatement and Civil and Criminal Penalties for Code Violations

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Editor's note— Ord. No. 308-B, § I, adopted Nov. 14, 2017, amended ch. 8.20 in its entirety to read as herein set out. Former ch. 8.20, §§ 8.20.010—8.20.160 pertained to similar subject matter, and derived from Ord. No. 308, § 1, adopted in 1995; Ord. No. 308-A, § 1, adopted in 2006.

A. Pursuant to Government Code Section 25845, the board of supervisors of Modoc County established the following procedures for the purpose of abatement of public nuisances.

B. Purpose. The Modoc County Board of Supervisors (hereinafter referred to as "the board") finds that the enforcement of Modoc County Codes ("code") throughout the county is an important public service, and enforcement of the code is vital to the protection of the public's health, safety and quality of life. The board finds that enforcement starts with the implementation of regulations that can be applied fairly and evenly. The board further finds that code enforcement requires a variety of administrative remedies for the effective enforcement of violation of the code. The procedures established in this section shall be in addition to any civil or any other legal remedy established by law, which may be pursued to address violation of the code. The use of procedures established in this chapter, except as specifically provided otherwise, shall be in lieu of criminal sanctions.

C. Compliance Required. No person shall develop or use any land, building, or structure within Modoc County in violation of this code, regulations authorized under this code, or the terms and conditions of permits issued under this code.

D. Administrative Authority. This code shall be enforced by or under the direction of the director of the department of planning, or his or her successor. The director may designate one or more other staff as an enforcement officer. The enforcement officer shall have the authority and powers necessary to determine whether a violation of the code exists and the authority to take appropriate action to gain compliance with the provisions of the code. The enforcement officer shall further have authority to issue notices to correct, administrative citations, notices and orders, the power to inspect public and private property subject to limitations expressed herein and use the administrative remedies that are available under the code.

E. For the purposes of this chapter, "enforcement officer" means and includes the following and their designated agent(s), if any:

1. Director of environmental health;

2. Public health branch director;

3. Agricultural commissioner;

4. Director of county planning;

5. Modoc County Building Official;

6. Modoc Sheriff.

(Ord. No. 308-B, § I, 11-14-2017)

A. Whenever in this code or in any ordinance of the county, law of the state, or rule or regulation promulgated pursuant thereto, any act or failure to act is prohibited or made or declared to be unlawful or an offense or a misdemeanor, the doing of any act or failure to act shall constitute a public nuisance subject to abatement pursuant to the provisions of this chapter.

B. The provisions of this chapter pertaining to abatement of public nuisances shall also apply to any specific condition, act, or failure to act declared to be a public nuisance by the board of supervisors by resolution following a noticed hearing as set forth in this chapter where such condition, act or failure to act involves:

1. Any unlawful obstruction of or encroachment upon any public property, including but not limited to any public street, highway, or right-of-way, park or building;

2. Any condition, act or failure to act which is dangerous to human life, unsafe or detrimental to the public health or safety;

3. Any use or operation of buildings, land or premises established, operated or maintained contrary to the provisions of the ordinances of the county; or

4. Any condition, act or failure to act constituting a public nuisance known at common law or equity.

C. In addition to abatement by the enforcement officer pursuant to this chapter, the district attorney or the county counsel is also authorized to take, initiate, conduct and conclude any actions at law or equity that he deems necessary to abate any public nuisance as defined in this section.

D. The remedies provided in this chapter are nonexclusive, and cumulative of any other remedies available by law.

(Ord. No. 308-B, § I, 11-14-2017)

If a public nuisance has been declared by judicial decree, after the defendant(s) receive(s) notice of entry of judgment as prescribed by law, and the time within which an appeal may be filed has expired, all procedures of this chapter shall be applicable and shall be followed in the same manner as if a resolution by the board of supervisors had been passed declaring a public nuisance to exist.

(Ord. No. 308-B, § I, 11-14-2017)

Potential violations can be identified through a complaint provided to the county by any person or through evidence visible to county staff from a vantage point that county has a legal right to occupy. Such vantage point may include physical locations or information available in the public domain. Complaints provided by a person shall describe the nature and location of the alleged violation and shall identify the identity of the person making the complaint. Complaints may be accepted in writing, via email or by telephone call. It shall be a misdemeanor to knowingly file a false complaint.

a. Confidentiality. Enforcement officers shall take all reasonable steps to ensure that the identity of any person making a complaint to the county concerning a violation of the code or other applicable laws shall remain confidential. It is declared and found by the board of supervisors that the public interest served by not making the identity of the person making a complaint public clearly outweighs the public interest served by disclosure of the information as may be required by the Public Records Act.

b. Inspection of Property. If a complaint is received and the alleged violation is not visible without entry upon the property, it is necessary to first obtain the occupant or property owner's permission to enter the property. Where such permission is not granted, it shall be necessary for enforcement officers to obtain an inspection warrant from the court authorizing the enforcement officer to enter the property to inspect and address the condition.

A. Informal Contact. Upon discovering or observing any violation of county regulations, the enforcement officer, at his or her discretion, may contact the person who caused the violation and/or the property owner and discuss the nature of the violation and possible ways to correct or resolve the matter. Informal contact shall not be required before a notice of violation or administrative citation is issued.

B. Notice of Violation. Upon the determination by the enforcement officer that a public nuisance exists, a notice of violation shall be prepared, with copies thereof served by personal service or certified mail upon the owner of the parcel upon which the violation exists, as shown on the last equalized assessment roll, and upon anyone known to the enforcement officer to be in possession of the parcel. Where the enforcement officer has determined that the condition causing the violation is imminently dangerous to human life or limb, or to the public health or safety, the enforcement officer may include in the notice of violation an order that the property, building or structure affected can be vacated, pending correction or abatement of the conditions causing the violation.

C. Content of Notice of Violation. The notice of violation shall contain the following:

1. A legal description and street address, assessor's parcel number, and other description sufficient to identify the premises affected;

2. A description of the condition causing the violation. Where the enforcement officer has determined that the condition causing the violation can be corrected or abated by repair or corrective action, the notice shall state the repairs or corrective actions that will be required;

3. An order to complete abatement of the violation within seven calendar days. A longer period may be specified, in the discretion of the enforcement officer, where the violation can be corrected or abated by repair or other corrective action;

4. A statement that the responsible party may appeal the notice of violation to the board of supervisors or hearing officer which will hold a hearing to consider good cause from the responsible party as to why the notice of violation should not be executed;

5. A statement that if the notice of violation is not appealed or abated as specified, the enforcement officer shall refer the violation to either or a combination of any of the below:

a. County counsel for civil action;

c. The district attorney for possible criminal prosecution;

d. To the board of supervisors for board hearing to consider whether to order abatement of nuisance by the owner or responsible party, and/or alternatively by the county, and to Section 25845 of the Government Code to recover the cost of such abatement by a specific assessment to be collected in the same time and manner, including penalties, interest and procedures for foreclosure and sale, as are provided for the collection of ordinary county taxes.

(Ord. No. 308-B, § I, 11-14-2017)

A. Notice of Abatement. If, upon expiration of the period specified in the notice of violation, action to abate the violation has not been commenced, or, if commenced, has not been pursued with due diligence by the responsible party nor completed within the time specified, the enforcement officer shall prepare an administrative citation, and serve such notice by certified mail, return receipt requested, or personal service upon the owner of the parcel upon which the nuisance exists, as shown in the last equalized assessment roll, and upon anyone known to the enforcement officer to be in possession of the parcel.

B. Content of Administrative Citation. The administrative citation shall contain the following:

1. A heading, "Notice of Administrative Citation";

2. A statement that the individual receiving the citation must notify the clerk of the board within 15 business days of the date the citation was issued if they would like to schedule a hearing before the board. If they request a hearing, the county will attempt to set the hearing not less than ten calendar days and not more than 45 calendar days after the notice is received.

3. A copy of the notice of violation, as specified in section 8.20.040(C) of this chapter.

4. The date, time and location where the citation was issued; and

5. Any administrative fines imposed under authority of this code, including accrual determinations and payment options.

C. Immediate Administrative Citation Authority. The enforcement officer may immediately issue an administrative citation without having issued a notice of violation and without allowing for a correction period in the cases listed below:

1. Any violation that, in the judgment of the enforcement officer, has a reasonable potential to create an immediate danger to health or safety of the occupants of the property or the general public; or

2. Any time a person responsible for any violation repeats that same violation within 365 days on the same property.

Any administrative citation issued pursuant to this authority must include all information required in a notice of violation as well as all the information required in an administrative citation.

D. Public Nuisance. Any violation that is continued in disregard of a notice of violation or administrative citation issued by the enforcement officer is hereby declared to be a public nuisance and may be abated in any manner prescribed by law.

(Ord. No. 308-B, § I, 11-14-2017)

A. If the enforcement officer determines it to be appropriate, persons living in the neighborhood near the nuisance shall also receive notification of the hearing.

B. At the time stated in the administrative citation, the board of supervisors, or hearing officer appointed by the board of supervisors, shall hear and consider all objections or protests, if any, to the proposed abatement of the public nuisance and/or violation. The hearing may be continued from time to time with a showing of good cause. Upon the conclusion of the hearing, the supervisors, or hearing officer appointed by the board of supervisors, may terminate the abatement proceedings, or it may order the owner or other affected person to abate the nuisance, prescribing a reasonable time for completion of abatement, unless it finds that in order to protect the public health, safety and welfare, a shorter time period is required. The order shall also provide further that in the event abatement is not commenced, conducted and completed in accordance with the terms set by the board, the enforcement officer may thereafter summarily abate the nuisance and charge the responsible party and affected parcel for the costs thereof pursuant to the procedure set out in this chapter. The order of the board is to be served within ten calendar days on the affected party via certified mail to the last known address. The time limits set by the board are to begin upon service of the notice. A copy of the notice shall be mailed to all lienholders of record.

C. The decision of the board of supervisors, or hearing officer appointed by the board of supervisors, to abate and assessment of any fines shall be final. Judicial review shall be pursuant to Sections 1094.5 and 1094.6 of the Code of Civil Procedure. The order and decision of the appeal body shall be the final administrative action of the county.

D. Procedure. At the hearing, the parties may be represented by counsel and may present pertinent evidence and argument. The technical rules of evidence shall be relaxed for this hearing and hearsay is admissible, although the weight given to any evidence or statements is determined by the board of supervisors or hearing officer.

E. Burden of Proof. The burden of proof in this administrative hearing shall be by a preponderance of the evidence.

(Ord. No. 308-B, § I, 11-14-2017)

The board of supervisors is authorized to establish reasonable fees for the filing, processing, and handling of the administrative hearing authorized by section 8.20.060. The board of supervisors shall comply with the requirements of Government Code Section 54985 et seq. in establishing and annually updating the amounts of these fees.

(Ord. No. 308-B, § I, 11-14-2017)

In the event abatement is not commenced, conducted and completed by the owner, lienholder or person in possession of the property within the time prescribed by the board of supervisors pursuant to section 8.20.060(B) of this chapter, the county enforcement officer or his assistant, deputy, employee, contracting agent, or other representative may enter upon the property for the purpose of abating the public nuisance. Pursuant to such abatement, the officer shall carry out the activities set out in sections 8.20.080 through 8.20.130 of this chapter, as appropriate.

(Ord. No. 308-B, § I, 11-14-2017)

Notwithstanding any other provision of this chapter, when any violation constitutes an immediate threat to the public health or safety, and where there is insufficient time to 1) obtain an inspection warrant, and 2) comply with the abatement procedures set out, to mitigate that threat; the enforcement officer may direct any officer or employee of Modoc County to summarily abate the nuisance.

Prior to summarily abating, the county enforcement officer shall make reasonable efforts to notify the owner and/or the alleged violator of the violations.

The county may recover its costs for summarily abating the nuisance in the manner set forth and may include any costs on the property owner's tax bill.

(Ord. No. 308-B, § I, 11-14-2017)

The disposition, if necessary, of any material involved in or constituting any nuisance which is abated by the enforcement officer pursuant to this chapter shall be as prescribed by the board of supervisors in its order of abatement made pursuant to section 8.20.060 of this chapter.

(Ord. No. 308-B, § I, 11-14-2017)

A. Administrative fines shall accrue in an amount not to exceed the following:

a. One hundred dollars per day per violation from the date of the transmittal of the notice of violation for a first offense;

b. Two hundred dollars per day per violation from the date of the transmittal of the notice of violation for a second offense occurring within 12 calendar months of a previous violation;

c. Five hundred dollars per day per violation from the date of the transmittal of the notice of violation for a third offense occurring within 12 calendar months of a previously noticed second violation;

d. One thousand dollars per day per violation from the date of the transmittal of the notice of violation for a fourth offense occurring within 12 calendar months of a previously noticed third violation; and fines shall continue to accrue for each calendar day thereafter that the violation exists on the property through a period of 90 calendar days at which time they will become final.

B. The enforcement officer, or designee, shall determine fines in the first instance. In making the determination, the enforcement officer may take into account the facts and circumstances of the violation, including without limitation:

1. The length of time violations existed;

2. The culpability of the violator and the willfulness of the violation;

3. The number of previous violations of the same or related type committed by the violator within the preceding 36 months;

4. The extent of the violation and the effect of the violation on neighboring properties;

5. Attempts, if any, to comply with the applicable ordinances; and

6. The time necessary to abate the violation.

C. In making a determination of the fine, the enforcement officer may consider any information submitted by the property owner, tenant, lessor, and/or other occupant of the property. In the event that the enforcement officer determines that the violation was not caused by, or with the knowledge of, the current owner, tenant, lessor, and/or occupant the director may reduce or eliminate the fine. In the event the enforcement officer determines that the correction of the violation is not feasible, and the violation does not present a threat to public health or safety, the director may reduce or eliminate the fine.

D. Any administrative fine and penalty shall accrue interest at the same annual rate as any civil judgment. Interest shall accrue commencing on the 20th day after the penalty becomes a final decision or order.

(Ord. No. 308-B, § I, 11-14-2017)

The enforcement officer shall keep an itemized account of the cost of enforcing the provisions of this chapter, and of the proceeds of the sale of any materials connected therewith. Upon completion of abatement, the enforcement officer shall prepare and serve a notice of assessment upon the owner of the parcel as shown on the last equalized assessment roll, all lienholders, and the person in possession of the parcel, specifying:

A. The work done;

B. An itemized account of the costs and receipts of performing the work;

C. An address, legal description, or other description sufficient to identify the premises;

D. The amount of the assessment proposed to be levied against the premises, or the amount to be refunded, if any, due to excess proceeds over expenses;

E. The time and place where the enforcement officer will submit the account to the board of supervisors for confirmation. The time and place specified shall be not less than 15 business days after service of the notice;

F. A statement that the board of supervisors will hear and consider objections and protests to the account and proposed assessment or refund, at the above-designated time.

Recovery of costs is authorized through any applicable provisions of the Modoc County Code, through California law (including, but not limited to, Government Code Section 54988), and any applicable federal laws.

(Ord. No. 308-B, § I, 11-14-2017)

At the time and place fixed in the notice, the board shall hear and consider the account and proposed assessment, together with objections and protests thereto. At the conclusion of the hearing, the board may make such modifications and revisions of the proposed account and assessment as it deems just, and may order the account and proposed assessment confirmed or denied, in whole or in part, or as modified and revised. The determination of the board as to all matters contained in the order is final. Judicial review shall be pursuant to Sections 1094.5 and 1094.6 of the Code of Civil Procedure.

(Ord. No. 308-B, § I, 11-14-2017)

Upon confirmation of the assessment by the board of supervisors, the enforcement officer shall prepare and record in the office of the county recorder a notice of lien. The notice shall contain:

A. A legal description, address, APN, and/or other description sufficient to identify the premises;

B. A description of the proceeding under which the special assessment was made, including the order of the board confirming the assessment;

C. The amount of the assessment;

D. A claim of lien upon the described premises.

(Ord. No. 308-B, § I, 11-14-2017)

Upon the recordation of the notice of lien, the amount claimed shall constitute a lien upon the described premises, pursuant to Section 25845 of the Government Code. Such lien is to be at a parity with the liens of state and county taxes.

(Ord. No. 308-B, § I, 11-14-2017)

After recordation, the notice of lien shall be delivered to the county treasurer/tax collector who shall enter the amount of the lien on the assessment roll as a special assessment. Thereafter, the amount set forth shall be collected at the same time and in the same manner as ordinary county taxes, and shall be subject to the same penalties, interest, and same procedures for foreclosure and sale in case of delinquency as provided for ordinary county taxes. Should any subsequent amendment to California Government Code Section 25845 be in conflict with any provision herein, such amendment shall prevail.

(Ord. No. 308-B, § I, 11-14-2017)

A. No person shall hinder, interfere with or impede the enforcement officer in his performance of duties assigned by this title, or other titles of this code.

B. A violation of this section constitutes a misdemeanor.

(Ord. No. 308-B, § I, 11-14-2017)

Pursuant to Section 25845.5 of the Government Code of the state of California, if a second or subsequent civil or criminal judgment is entered within a two-year period which finds that an owner of property is responsible for a condition constituting a public nuisance as defined in this chapter, other than a condition which may be abated pursuant to Section 17980 of the Health and Safety Code of the state of California, the court entering the second or subsequent judgment may order the owner to pay treble the costs of abatement if the condition is then abated by the county pursuant to the procedures set forth in sections 8.20.040 through 8.20.130 of this chapter. The amount of such treble damages shall be determined, levied and collected in accordance with the procedures set forth in sections 8.20.070 through 8.20.130 of this chapter.

(Ord. No. 308-B, § I, 11-14-2017)

Whenever in this code or in any ordinance of the county or state or in any rule or regulation promulgated pursuant thereto any act is prohibited or made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, where no specific penalty is provided, the violation of any such provision of this code, or any other ordinance, rule or regulation of the county, shall be a misdemeanor punishable by a fine not exceeding one thousand dollars, or imprisonment for a term not exceeding six months, or by both such fine and imprisonment.

(Ord. No. 308-B, § I, 11-14-2017)

Each and every day any violation of this code or any other ordinance, rule or regulation of the county shall continue, unless otherwise provided, constitute a distinct and separately punishable offense.

(Ord. No. 308-B, § I, 11-14-2017)