Mono County Municipal Code Ch. 7.20 Abatement of Nuisances

The following terms, as used in this chapter, shall have the meanings ascribed to them in this section, as follows:

A. "Board" means the board of supervisors of the county.

B. "Clerk" means the clerk of the board of supervisors of the county.

C. "Director" means any county code enforcement officer or director or his or her designee.

D. "Public nuisance" means any of the following:

1. Any violation of any provision of the Mono County Code, the Mono County General Plan, any county area or specific plan, airport land use plan, any variation or subpart of the foregoing, or any other land-use planning document duly approved by the board of supervisors or the planning commission;

2. Any violation of a term or condition of any license or permit duly issued by the county, including but not limited to any building or grading permit, conditional use permit, or any form of land-use approval governing real property in the county;

3. Any violation of any ordinance or resolution of the Mono County board of supervisors, whether or not codified;

4. Any violation of state law, including but not limited to the State Housing Law (commencing with Section 17910 of the California Health and Safety Code);

5. Any violation of the State Building Standards Code, codified in Title 24 of the California Code of Regulations, as the same may be amended from time to time by the State Building Standards Commission, and subject to any local variances duly adopted by the county;

6. Any condition in the county constituting a public nuisance under Sections 3479 or 3480 of the California Civil Code;

7. Any condition in the county that is declared or determined by a court of competent jurisdiction to constitute a public nuisance;

8. Any condition in the county that is declared or determined by resolution, ordinance or other formal action of the board of supervisors to constitute a public nuisance.

(Ord. 98-01 §§ 1, 2, 1998; Ord. 411 § 1, 1971.)

No person shall commit, create or contribute to the creation of a public nuisance in the county, nor shall anyone allow a condition constituting a public nuisance to exist on property in the county that is within their ownership or control. Whenever there is cause to believe that a public nuisance exists within the unincorporated area of the county, the board, director, county counsel, district attorney and their designees are each empowered to the fullest extent permitted by law to initiate and pursue administrative and judicial enforcement actions to determine and abate the public nuisance and/or to punish any person responsible for creating or maintaining the nuisance. Any and all legal or equitable remedies may be pursued, including but not limited to: criminal prosecution under Section 370 et seq. of the California Penal Code or Section 1.12.010 of the Mono County Code or both, civil injunctive relief, civil penalties, proceedings under this chapter, or summary abatement to the extent permitted by law. Such remedies are cumulative, not mutually exclusive: the county may pursue any one or a combination of them, individually or simultaneously, and shall not be obligated to exhaust any particular remedy before pursuing other remedies.

(Ord. 98-01 § 3, 1998: Ord. 411 § 2, 1971.)

A. Standard Procedure. The board shall adopt a resolution alleging the existence of a public nuisance which includes a description of the conditions believed to constitute the nuisance, the location of the property, including the street address (if any) and assessor's parcel number, and the name(s) of the owner(s) and known or reasonably identifiable occupant(s) of the property. The resolution shall direct the clerk of the board to schedule a hearing on a date ordered by the board or set by the clerk. The resolution shall further direct the director to prepare and submit a report as set forth in Section 7.20.040(A).

B. Expedited Procedure for Cannabis Cultivation. For violations involving cannabis cultivation, processing, manufacturing, testing, possession, distribution or sale ("cannabis activities"), in lieu of the procedures described above, the director may issue a declaration of nuisance, administrative citation, order to abate and notice of hearing ("notice") to the owner(s) and any known or reasonably identifiable occupant(s) of the property which contains the information set forth in Section 7.20.040(B).

(Ord. 411 § 3, 1971.)

(Ord. No. 18-06, § 1, 5-8-2018)

A. Standard Procedure. The director shall prepare a report which shall be submitted to the clerk of the board and served on the owner(s) and any known or reasonably identifiable occupant(s) of the property in accordance with Section 7.20.050 no later than seven calendar days prior to the date set for the hearing. The report shall contain the following:

1. The name of the owner of the property upon which the violation exists, as stated in the latest equalized assessment roll and any known or reasonably identifiable occupants;

2. The location of the property by street address (if any) and assessor's parcel number;

3. A statement that one or more violations of county code or other applicable law exist on the property and describing the violation(s);

4. A description of the methods proposed to be used the abate the alleged nuisance;

5. An estimate of the cost of abatement, including staff time;

6. The date, time and location of the hearing and a statement that the owner(s) and/or occupant(s) will be given an opportunity at the hearing to present and elicit testimony and/or other evidence regarding whether the conditions existing on the property constitute a public nuisance under the Mono County Code or whether there is any other good cause why those conditions should not be abated.

B. Expedited Procedure for Cannabis Activities. The director shall prepare a Notice which shall be served on the owner(s) and any known or reasonably identifiable occupant(s) of the property in accordance with Section 7.20.050. The Notice shall contain the following:

1. The name of the owner of the property upon which the violation exists, as stated in the latest equalized assessment roll and any known or reasonably identifiable occupants;

2. The location of the property by street address (if any) and assessor's parcel number;

3. A statement that one or more violations of county code or other applicable law exist relating to the cultivation of cannabis on the property and describing the violation(s) and the actions required to abate;

4. A statement that the owner(s) or occupant(s) of the property are required to abate the violation within ten calendar days after the date of the service of the notice or that daily fines will accrue as set forth in Chapter 5.60 of the Mono County Code;

5. Notice that unless the owner(s) or occupant(s) abate the listed violation(s) and provide proof of abatement satisfactory to the director within ten calendar days, a hearing will be scheduled and held before the board of supervisors or an administrative hearing officer to determine if there is any reason why the violation(s) should not be abated;

6. The date, time and location of the hearing before the board of supervisors or a hearing officer, as described in Section 7.20.060, and a statement that the owner(s) and/or occupant(s) will be given an opportunity at the hearing to present and elicit testimony and/or other evidence regarding whether the conditions existing on the property constitute a public nuisance under the Mono County Code or whether there is any other good cause why those conditions should not be abated.

7. A statement that unless the owner(s) or occupant(s) abate the violation(s) or show good cause before the board or administrative hearing officer why the conditions should not be abated, the director will abate the nuisance.

8. A statement that the costs of abatement, including administrative costs, may be made a special assessment added to the county assessment roll and become a lien on the real property.

(Ord. 411 § 4, 1971.)

(Ord. No. 18-06, § 2, 5-8-2018)

A. Service shall be made by first class mail, postage prepaid to the address of the owner(s) as listed on the latest equalized assessment roll and to the address of any known or reasonably identifiable occupant(s) of the property, if such address may be reasonably determined, or by personal delivery on same, and by posting in two conspicuous location on the property. Service shall be deemed complete upon the later date of: (1) five calendar days after mailing or the date personal service is made; or (2) five calendar days after posting.

B. The failure of any owner(s) or occupant(s) to allow posting or to receive a report or Notice served as provided in this section shall not affect the validity of proceedings under this chapter.

(Ord. No. 18-06, § 3, 5-8-2018)

Editor's note— Ord. No. 18-06, § 3, adopted May 8, 2018, amended § 7.20.050 in its entirety to read as herein set out. Former § 7.20.050 pertained to nuisance existence—hearing—notice—generally, and derived from Ord. No. 411, 197.

A. Establishment of Office. For the purposes of hearing and determining expedited proceedings related to cannabis activities which are not otherwise heard by the board of supervisors, there is hereby established the office of county hearing officer, pursuant to Chapter 14 (commencing with Section 27720) of Part 3 of Division 2 of Title 3 of the California Government Code, to which office the board of supervisors may by resolution appoint one or more administrative hearing officers and establish a process for assigning hearings.

B. Selection of Hearing Officer. The county administrative officer, in consultation with county counsel, shall be responsible for recruiting, selecting and contracting with qualified neutral hearing officer[s] who may be private attorneys or professional hearing officers from the California Office of Administrative Hearings. The compensation and/or future appointment of any hearing officer shall not be directly or indirectly conditioned upon the substance of his or her rulings, including but not limited to the amount of administrative fines levied. Any private attorney hearing officer shall be an independent contractor appointed for a period of not less than one year. If the board of supervisors appoints more than one hearing officer, each hearing required under this chapter shall be assigned to a hearing officer set by the clerk of the board using a random selection process. Whether a hearing officer or the board acts as the administrative hearing body for any matter shall be determined by the clerk based solely on which is available sooner or, if the board has established a process for assigning hearings under subsection A., in accordance with that process.

C. Qualifications of Hearing Officer. Each hearing officer shall be an attorney at law in good standing who has been admitted to practice before the courts of the State of California for at least five years or a designated hearing officer from the California Office of Administrative Hearings.

D. Powers of Hearing Officer. Hearing officers shall have all powers set forth in Government Code Sections 27721 and 27722, as well as the power to continue a hearing one time for no more than ten calendar days upon a showing of good cause by a party, the power to prepare a record of proceedings and the power to uphold fines and abatement orders and order that the cost of the abatement and any unpaid fines be specially assessed against the property upon which the violation occurred.

(Ord. No. 18-06, § 4, 5-8-2018)

Editor's note— Ord. No. 18-06, § 4, adopted May 8, 2018, amended § 7.20.060 in its entirety to read as herein set out. Former § 7.20.060 pertained to nuisance existence—hearing—notice—contents, and derived from Ord. No. 411, 197.

Pursuant to Government Code Sections 25845(i) and 27721(A), the board of supervisors or designated hearing officer shall hold an administrative hearing to determine whether the conditions described in the notice constitute a nuisance under the Mono County Code or other relevant law, or whether there is any other good cause why the conditions should not be abated. The hearing shall be held no less than ten calendar days and no more than twenty calendar days after service of the notice. Upon written request by an owner or occupant, received by the clerk of the board no less than five calendar days before the scheduled hearing date, the hearing may be continued one time for good cause at the discretion of the Board or hearing officer, for not longer than ten calendar days.

A. General. Administrative hearings are intended to be informal in nature. Formal rules of evidence and discovery do not apply. Witnesses shall be sworn. The board or hearing officer may question witnesses at any time and recall them as necessary. All participants, including parties, counsel and witnesses are expected to maintain a civil demeanor and to present only relevant evidence. The hearing officer may refuse to admit into the record any evidence which he or she determines to be irrelevant.

B. Hearing Procedures.

1. The director shall post the notice and any staff report, or other relevant evidence to be considered by the hearing officer, on the Mono County Code Compliance webpage at least five days before the scheduled hearing date.

2. The owner or occupant shall be given an opportunity at the hearing to present and elicit testimony or other evidence regarding whether the conditions existing on the property constitute a nuisance under this chapter, whether there is any other good cause why those conditions should not be abated, or whether any fines were levied inappropriately.

3. In the event that the owner or occupant does not appear and present evidence at the hearing, the board or hearing officer may base the decision solely upon the evidence submitted by the director. Failure of the owner or occupant to appear and present evidence at the hearing shall constitute a failure to exhaust administrative remedies.

4. The board or hearing officer shall consider the matter de novo, and may affirm, reverse, or modify the determinations contained in the notice.

C. Post-Hearing Procedures.

1. The board or hearing officer shall issue a written decision, which shall include findings relating to the existence or nonexistence of the alleged violation(s), findings related to the appropriateness of the fines levied, and findings concerning the propriety and means of abating the conditions described in the notice.

2. The decision shall be mailed in accordance with Section 7.20.050 to, or personally served upon, the party requesting the hearing, any other parties upon whom the notice was served, and the director. If an owner or occupant was represented by counsel at the hearing, a copy of the decision shall instead be mailed in accordance with Section 7.20.050 to or personally served upon his/her counsel. The decision shall constitute the county's final administrative decision when signed by the board chair or hearing officer and served as provided herein.

3. The written decision must contain a statement of the violation(s) and/or nuisance(s) requiring abatement, findings of fact on material issues and the grounds in the record for those findings; any related conclusions of law or policy; any aggravating or mitigating circumstances that are pertinent to the decision; costs, fines and penalties and the reasons therefor; if requested by the director, an order authorizing the county to abate the nuisance and for the cost of the abatement to be specially assessed against the parcel; and a statement that the decision is final and may be appealed to the superior court as set forth below.

D. Appeal. All final administrative decisions or orders may be appealed pursuant to Government Code Section 53069.4.

(Ord. 411 § 7, 1971.)

(Ord. No. 18-06, § 5, 5-8-2018)

Upon the day and hour fixed for the hearing, the board shall first hear and pass upon the determination of the existence of a public nuisance, together with any objections or protests which may be raised by any property owners liable to be assessed for the work of abatement of the nuisance or any other interested party. Should a public nuisance be found to exist, the board shall then hear and pass upon the report of the director, together with any objections or protests thereto, which may be raised by any property owners liable to be assessed for the work of abatement of the nuisance or any other interested persons. Thereupon, the board may make such revision, correction or modification in the report as it may deem just, after which, by resolution, the report as submitted, or as revised, corrected or modified, shall be confirmed. The board may adjourn the hearing from time to time. The decision of the board on all protests and objections which may be made shall be final and conclusive. Should the board find that a public nuisance does not exist, no further proceedings shall be had.

(Ord. 411 § 8, 1971.)

(Ord. No. 18-06, § 5, 5-8-2018)

A. Standard Procedures. Upon confirmation of the director's report through resolution directing abatement, the director shall obtain an abatement warrant from the superior court and, pursuant thereto, cause the abatement of the nuisance in the manner authorized or, if no specific manner is authorized, in the manner determined by the director to be most reasonable and expeditious. The cost of abatement, including all administrative costs, shall be added to the county assessment roll as a special assessment on the property and become a lien on the real property upon confirmation by the board of supervisors in accordance with the procedures set forth in Sections 7.20.100 through 7.20.130.

B. Expedited Procedure for Cannabis Activities. Upon issuance of the written decision by the board or hearing officer ordering abatement, the director shall obtain an abatement warrant from the superior court and, pursuant thereto, cause the abatement of the nuisance in the manner authorized or, if no specific manner is authorized, in the manner determined by the director to be most reasonable and expeditious. The cost of abatement, including all administrative costs, if not paid within ten calendar days of service of the invoice in accordance with Section 7.20.050, shall be added to the county assessment roll as a special assessment on the property and become a lien on the real property. The procedures set forth in Sections 7.20.100 through 720.130 shall not apply.

(Ord. 411 § 9, 1971.)

(Ord. No. 18-06, § 6, 5-8-2018)

In any action to abate a nuisance, whether by administrative proceedings, judicial proceedings or summary abatement, the owner of the parcel on which the nuisance is found to exist shall be liable to the county for all costs of abatement incurred by the county to the fullest extent permitted by Government Code Section 25845 or any other statute, including, but not limited to, any and all administrative costs and any and all costs incurred in the physical abatement of the nuisance. In addition, as authorized by Government Code Section 25845.5, 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 this chapter, except for conditions abated pursuant to Section 17980 of the California Health and Safety Code, the court may order the owner to pay treble the costs of the abatement. For purposes of this chapter, administrative costs, which may also be referred to in this chapter as costs of abatement, begin accruing when the county first discovers or otherwise learns of the existence of an alleged public nuisance and includes all costs and expenses incurred by the county in abating a public nuisance, including but not limited to: the actual expenses and costs to the county in the preparation and mailing or service of notices, specifications and contracts; any county staff time; inspection of the alleged nuisance and abatement work; any costs for which the county may be liable under state or federal law arising from the nuisance; all costs or expenses to which the county may be entitled pursuant to Section 520 of the California Health and Safety Code and other statutory entitlements; and also attorneys' fees if the county elects to recover them under this section.

As authorized by Government Code Section 25845, the prevailing party in any action, administrative proceeding, or special proceeding brought by the county to abate a nuisance shall be entitled to recover their attorneys' fees, but only if the county has first expressly elected at the initiation of that individual action or proceeding to seek recovery of its own attorneys' fees. For purposes of this provision, recoverable attorneys' fees shall begin to accrue when the county has provided actual or constructive notice to the party against whom the abatement action or proceeding is brought that the county is electing to seek recovery of its own attorneys' fees under this section. Unless otherwise provided by law, in the event that legal services to the county are provided by the county counsel, district attorney, or other attorney who is a county officer or employee, the county's attorneys' fees may be based on either the reasonable fair market value of such legal services or their actual estimated cost to the county (including a pro rata share of salary, benefits, overhead, and the cost of any staff support for that attorney-employee).

Furthermore, unless otherwise specified by statutory or case law, the county shall be deemed the prevailing party in any action where it succeeds in obtaining a determination or declaration that at least one nuisance exists on property and/or an order directing the property owner (or authorizing the county) to abate at least one nuisance; the county shall not be required to prevail with respect to all nuisances alleged to exist on a particular property. Similarly, a property owner or other person against whom an action or proceeding is brought to abate an alleged nuisance shall be deemed to prevail only if the county fails to obtain a determination that at least one alleged nuisance exists or an order directing at least one nuisance to be abated. Finally, as specified by Government Code Section 25845, in the event that the county is not the prevailing party, the award of attorneys' fees shall in no event exceed the amount of reasonable attorneys' fees incurred by the county itself.

(Ord. 98-01 § 4, 1998.)

Upon the completion of the abatement, the director shall prepare and file with the clerk a report specifying the cost of be abatement, a description of the real property upon which the nuisance existed, and the assessment against each parcel of land proposed to be levied to pay the cost of such abatement. Such report may include any number of parcels of property whether contiguous to each other or not. The board shall set the report of the director for hearing.

(Ord. 411 § 10, 1971.)

Upon the filing of the report of the director, the clerk shall cause notice of the cost of the abatement as shown in the report to be given as provided in Section 7.20.050, which notice shall specify the day, hour and place when the board will hear and pass upon the report by the director of the cost of the abatement, together with objections or protests, if any, which may be raised by any property owner liable to be assessed for the cost of such abatement, or any other interested person.

(Ord. 411 § 11, 1971.)

The board shall hear and consider such report and protests and have such powers as are provided in Section 7.20.080.

(Ord 411 § 12, 1971.)

The cost of the abatement may be assessed by the board against the property upon which such abatement was made, and such cost so assessed, if not paid within ten days after its confirmation by the board, constitutes a special assessment against the parcel of property and is a lien on the property for the amount thereof which lien continues until the assessment and all interest thereon is paid or until it is discharged of record.

(Ord. 411 § 13, 1971.)

The director may file in the office of the county recorder for recording, a certificate substantially in the following form:

NOTICE OF LIEN

Pursuant to the authority vested in me by Chapter 7.20 of the Mono County Code [and/or by court order in the following proceeding (specify case name and number):_______] I did on the _____ day of ________, [date], cause the abatement of a public nuisance, namely: ___________ [specify] upon the real property hereinafter described, and the Board of Supervisors of the County of Mono [and/or the following court: _______] did on the _____ day of ________ [date] by resolution [and/or by court order, if applicable] assessed the costs of such abatement, including any recoverable attorneys fees, upon the real property hereinafter described, and the same has not been paid, and does hereby claim a lien on said real property in the sum of _______ Dollars ($_____), and the same shall be a lien upon said real property until the said sum, with interest at the maximum legal interest rate from said date of ________, the day of confirmation of the assessment, has been paid in full and discharged of record. The real property hereinbefore mentioned and upon which a lien is claimed is that certain real property lying and being in the County of Mono, State of California, and more particularly described as follows:

[Insert legal description, APN, and/or street address]

Dated this _____ day of _____.

(Ord. 98-01 § 5, 1998: Ord. 411 § 14, 1971.)

From and after the date of recording the notice of lien, all persons shall be deemed to have had notice of the contents thereof. The notice of lien may include claims against one or more separate parcels of property, whether contiguous or not, together with the amounts due, respectively, from each parcel. If any such lien is not paid, the amount shall be collected at the same time and in the same manner as ordinary county taxes are collected and shall be subject to the same penalties and the procedure and sale in case of delinquency as provided for ordinary county taxes. All laws applicable to the levy, collection and enforcement of county taxes shall be applicable to such special assessment.

(Ord. 411 § 15, 1971.)

All objections to any matter before the board relating to the determination of the existence of a public nuisance or to any methods proposed to be used for the abatement of any public nuisance found to exist as provided in this chapter, or to any other act or proceeding occurring prior to the time within which such objections are permitted to be filed, not made in the manner specified, shall be waived.

(Ord. 411 § 16, 1971.)

The board may establish a special revolving fund to be designated as the abatement fund. Payments shall be made out of the fund upon the demand of the director to defray the costs and expenses which may be incurred by the county in doing or causing to be done the necessary work of abatement.

(Ord. 411 § 17(A), 1971.)

The board at any time may transfer to the abatement fund, out of any money in the general fund of the county, such sums as it may deem necessary in order to expedite the performance of the work of abatement, and any sum so transferred shall be deemed a loan to the abatement fund and shall be repaid out of the proceeds of the collections heretofore provided for. All funds collected under the proceedings heretofore provided for shall be paid to the county treasurer, who shall credit the same to the abatement fund.

(Ord. 411 § 17(B), 1971.)

The ordinance codified in this chapter is enacted pursuant to the provisions of Section 25845 of the Government Code of the state.

(Ord. 411 § 18, 1971.)