Montague Municipal Code Ch. 8.08 Nuisances

NUISANCES

Sections: 8.08.005 Definitions.

For the purpose of this chapter, certain words and phrases are defined and certain provisions are to be construed as herein set out, unless it shall be apparent from the context that a different meaning is intended:

A. “Abate” means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such manner and to such an extent as the planning commission in their judgment shall determine is necessary in the interest of the general health, safety and welfare of the community.

B. “Building” means any house, garage, duplex, apartment, condominium, stock cooperative and other residential and nonresidential structures.

C. “Owner” means any person owning property, as shown on the last equalized assessment roll for city taxes, or the lessee, tenant or other person having control or possession of the property.

D. “Person” means any individual, partnership, corporation, association or other organization however formed. (Ord. 89-7 (part), 1989)

A. The city council finds and determines that certain detrimental conditions, as set forth in this chapter, are becoming increasingly prevalent and substantial in significance and effect within the city and are injurious or potentially injurious to the public health, safety and welfare of the community by contributing to the problems of, and the necessity for, excessive and disproportionate expenditures for protection against hazards, diminution of property values, prevention of crime, accidents, fire and disease, and the protection of the community in a manner which is not offensive to the senses and which does not interfere with the comfortable enjoyment of life and property.

B. The city council further finds and determines that the uses and abuses of property as described in this chapter reasonably relate to the proper exercise of police power to protect the health, safety and welfare of the public, and are reasonably encompassed within the purview of the authorization granted by the California Government Code and State Constitution, and that unless corrective measures are undertaken to alleviate such present conditions, and particularly to avoid future problems in this regard, the socioeconomic standards of this community will be depreciated.

C. It is further found and determined that the abatement of such conditions will enhance the appearance, appreciate the values and appearances of neighboring properties and benefit the use and enjoyment of properties in the city and will ultimately improve the tax base, and that the abatement procedures set forth in this chapter are reasonable and afford the required due process. (Ord. 4-86 §§ 1, 2, 3, 1986)

The following acts and conditions, when performed or existing upon land within the city, are hereby defined and declared to be public nuisances when of such magnitude as to be injurious or potentially injurious to the public health, safety and welfare or which have a tendency to degrade the appearance and property values of surrounding property, or which cause damage to public rights-of-way, or which affect at the same time an entire community or neighborhood, or any considerable number of persons although the extent of the annoyance or damage inflicted upon individuals may be unequal:

A. Fire Hazards. Any combustible refuse or waste or any material growing or placed upon a street, sidewalk or private property within the city which, by reason of its size, manner of growth, placement, or location, constitutes a fire hazard to a building, improvement, crop or other property or, when dry, will in reasonable probability constitute a fire hazard. Also, any dry, dead, decayed, diseased, hazardous or overgrown trees, weeds or other vegetation, including, but not limited to, any of the following:

1. Vegetation likely to harbor rats, vermin and other nuisances

2. Vegetation causing or adding to a fire hazard;

3. Vegetation causing detriment to neighboring properties, or out of conformity with neighboring community standards to such an extent as to result in appreciable diminution of property values.

B. Hazardous Obstructions. An obstacle, landscaping or thing installed or maintained in the corner setback area reaching a height higher than four feet above the adjoining top of curb at the applicable corner of the street intersection, or four feet above the nearest pavement surface where there is no curb, or the existing traveled roadway at the corner in question where there is no curb or pavement. Hazardous obstructions do not mean existing or future permanent buildings, otherwise constructed or maintained in accordance with applicable building and zoning regulations, public utility poles, trees trimmed at the trunk at least nine feet above the level of the ground surface; provided, trees are spaces so that trunks do not obstruct the vision of motorists;

C. Polluted Water. A swimming pool, pond or other body of water which is abandoned, unattended, unfiltered, or not otherwise maintained, resulting in the water becoming polluted. “Polluted “Owner,” means water contained in a swimming pool, pond or other body of water, which includes but is not limited to, bacterial growth, including algae, remains of deceased animals, reptiles, rubbish, refuse, debris, papers and other foreign matter or material which because of its nature or location constitutes an unhealthy, unsafe or unsightly condition; remains of deceased animals, reptiles, rubbish, refuse, debris, papers and other foreign matter or material which because of its nature or location constitutes an unhealthy, unsafe or unsightly condition;

• D. Land where erosion, subsidence or surface water drainage problems exist;

• E. 1. Debris, rubbish and trash. The accumulation or storage of junk, trash, rubbish, garbage, salvageable materials or debris including, but not limited to: tires, lumber, household appliances or parts thereof, furniture, sinks, toilets, cabinets or other household fixtures, equipment or parts thereof, packing boxes, pallets, trimmings from lawns, trees and flower gardens, ashes, rags, paper, straw, bottles, crockery, metal vessels, brick, stones or any other combustible or noncombustible waste material; which constitute a fire or safety hazard and/or are stored or accumulated in such a manner as to constitute visual blight or to be visible from a public right-of-way or adjoining property or likely to harbor rats, vermin or other nuisances.

  2. Automobile motors, transmissions and all other automotive parts or accessories stored anywhere other than a fully enclosed space, carport, garage (public or private) or an approved automobile wrecking yard.

• F. Material or items of any nature stored on rooftops when visible from the public rights-of-way;

G. Maintenance of Property. It is declared a public nuisance for any person owning, leasing, occupying or having charge of any premises in this city to maintain or to allow to be maintained such property in such manner that any of the following conditions are found to exist thereon:

1. Buildings or structures which are abandoned, boarded up, partially destroyed or left in a state of partial construction for a period of more than thirty days,

2. Unpainted buildings or structures causing dry rot, warping and termite infestation,

3. Broken windows constituting hazardous conditions and inviting trespassers and malicious mischief,

4. Building or structure exteriors, walls, fences, driveways, walkways and parking areas which are maintained in such condition of disrepair or deterioration that they cause depreciation of the values of surrounding property or are materially detrimental to nearby properties and improvements.

5. Any device, decoration, design, fence, structure, clothesline or vegetation, which is unsightly by reason of its condition or its inappropriate location. This includes any fence that is in a condition of dilapidation or disrepair, which severely leans or is in danger of collapse due to the elements, pest infestation, dry rot or other damage.

6. Obstruction or encroachment on any pubic property, including but not limited to any public street, public alley, highway, right-of-way, park, building, or other land dedicated to public use.

7. Stacking or storage of any combustible material, including but not limited to wood, wood chips, tree trimmings or cuttings, composting, firewood, and any material which would increase or may cause an increase of the hazard or menace of fire, in front yards or side yards, or prohibited portions of rear yards or on any portion of public property. Stacking or storage of such materials should be stacked in the rear yard at a distance of at least three feet or more from any and all sides of a habitable building.

• H. Attractive nuisances dangerous to children in the form of:

  1. Abandoned and/or broken equipment,

  2. Hazardous pools, ponds and excavations,

  3. Neglected machinery, broken or discarded furniture and household equipment, stoves, refrigerators, freezers, cans, packing boxes and similar debris,

4. Any attractive nuisance which may prove detrimental to children whether in a building, on the premises of a building, or upon an unoccupied lot or parcel. This includes, but is not limited to, any abandoned wells, shafts, basements or excavations; abandoned refrigerators and motor vehicles; any structurally unsound fences or structures; or any lumber, trash, fences, debris or vegetation to inquisitive minors,

   5. Clotheslines in front yards,

   6. Garbage or trash cans or containers stored in front yards should be covered and not visible from public streets and not cause offensive odors to neighbors;

• I. Maintenance of premises in such condition as to be detrimental to the public health, safety or general welfare or in such a manner as to constitute a public nuisance as defined in Civil Code Section 3480;

J. Unoccupied buildings which have been left unlocked or otherwise open or unsecured from intrusion by persons, animals or the elements and constitute a fire hazard;

• K. Temporary signs which advertise or are related to events which have already taken place;

• L. Maintenance of premises so out of harmony or conformity with the maintenance standards of adjacent

properties as to cause substantial diminution of the enjoyment, use or property value of such adjacent properties;

M. Property maintained (in relation to surrounding property) so as to establish a prevalence of depreciated values, impaired investments, and social economic maladjustments to such an extent that the capacity to pay taxes is reduced and tax receipts from such particular area are inadequate for the cost of public services rendered therein;

N. Any building, driveway or structure which has any of the following conditions or defects to a significant degree:

1. Whenever any portion thereof has been damaged by earthquake, wind, flood, or by any other cause, in such a manner that the structural strength or stability thereof is appreciable less than the minimum requirements of this code for a new building or similar structure, purpose or location,

2. Whenever any portion or member or appurtenance thereof is likely to fall or to become detached or dislodged or to collapse and thereby injure persons or damage property,

3. Whenever any building, portion of a building or any member, appurtenance or ornamentation on the exterior thereof is not of sufficient strength or stability or is not so anchored, attached or fastened in place so as to be capable of resisting wind pressure, earthquake forces, live load or deadload as specified in the Uniform Building Code without exceeding the stressed permitted in the Uniform Building Code,

4. Whenever any portion thereof has settled to such an extent that walls or other structural portions have materially less resistance to winds or earthquake that is required in new construction,

5. Whenever the building or structure or any portion thereof, because of dilapidation, deterioration, decay, faulty construction or because of the removal or movement of some portion of the ground necessary for the purpose of supporting such building or portion thereof, or some other cause is likely to completely collapse or some portion of the foundation or underpinning is likely to fall or give way,

6. Whenever, for any reason whatsoever, the building or structure, or any portion thereof is unsafe for the purpose for which it is used,

7. Any building which meets the definitions of a substandard building in Chapter 10 of the Uniform Housing Code,

8. Buildings or structures maintained in violation of Section 203 (a) of the Uniform Building Code. (Ord. 01-02, 2001; Ord. 89-7 (part), 1989; Ord. 4-86 § 4, 1986)

It shall be the duty of the planning commission to periodically patrol within the city limits to determine and report upon whether or not a nuisance, as defined by Section 8.08.020, exists on any premises within the city. Whenever the planning commission finds that a nuisance, as defined by Section 8.08.020, exists on any premises within the city, it shall advise the property owner of the nuisance and direct him to abate the nuisance. The property owner shall be notified of the existence of the nuisance in writing by registered mail. The notification shall detail the violations and establish a reasonable abatement period, which, if not otherwise specified, shall be fifteen days. (Ord. 90-3, 1990; Ord. 89-7 (part), 1989; Ord. 4-86 § 5, 1986)

The owner or tenant of any building, structure or property found to be a nuisance under the provisions of this chapter may abate the nuisance at any time within the abatement period by rehabilitation, removal or demolition. The planning commission shall be advised of the abatement and shall inspect the premises to insure the nuisance has, in fact, been abated. (Ord. 4-86 § 6, 1986)

If a nuisance is not properly abated within the period established under the provisions of Section 8.08.030, the planning commission shall hold a public hearing to determine if the nuisance should be abated under the police powers of the city. (Ord. 4-86 § 7, 1986)

A written notice of public hearing, substantially in the form established in Section 8.08.070, shall be served on the property owner at least ten days prior to the date set for the planning commission public hearing. Service shall be made by personal service upon the owner or by certified or registered mail. If there is no known address for the owner, the notice shall be sent in care of the property address. “Owner,” as used in this chapter, means any person(s) shown as the property owner on the latest equalized property tax assessment rolls. The failure of any person to receive such notice shall not affect the validity of the proceedings. (Ord. 4-86 § 8, 1986)

Notice substantially in the following form shall be given as provided in Section 8.08.050:

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

Notice is hereby given that on the_ day of __ 19_, the Planning Commission of the City of Montague will hold a public hearing at _____ to ascertain whether certain premises situated within the City of Montague, State of California, known as ___ constitutes a public nuisance subject to abatement by rehabilitation of such premises or by the repair or demolition of buildings or structures situated thereon. If said premises, in whole or in part, are found to constitute a public nuisance as defined by Section 4 of Ordinance No. 4-86 and if same are not promptly abated by the owner such nuisance may be abated by municipal authorities, in which case the cost of such rehabilitation, repair or demolition will be assessed upon such premises and such cost will constitute a lien upon such land until paid.

Said alleged violations consist of the following:

---

Said methods of abatement available are:

---

All persons having any objections to, or in said matters are hereby notified to attend a hearing before the Planning Commission of the City to be held on the_ day of__ 19_, at the hour of M. when their testimony and evidence will be heard and given due consideration. Dated: This day of_ 19__.

CHAIRMAN OF THE PLANNING COMMISSION

(Ord. 4-86 § 9, 1986)

At the time and place stated in the notice of pubic hearing, the planning commission shall hear and consider all relevant evidence, objections or protests and shall receive testimony for owners, witnesses, city personnel and interested persons relative to such alleged public nuisance and to propose abatement measures. The hearing may be continued from time to time. (Ord. 4-86 § 10, 1986)

A. The owner may appeal the planning commission's findings and order to the city council by filing an appeal with the city clerk within seven calendar days of the date of the service of the planning commission decision. The appeal shall contain:

1. A specific identification of the subject property;

2. The names and addresses of all appellants;

3. A statement of appellant's legal interest in the subject property;

4. A statement in ordinary and concise language of the specific order or action protested and the grounds for appeal, together with all material facts in support thereof;

5. The date and signatures of all appellants; and

6. The verification of at least one appellant as to the truth of the matters stated in the appeal.

B. As soon as practicable after receiving the appeal, the city clerk shall set a date for the council to hear the appeal which date shall be not less than seven calendar days nor more than thirty calendar days from the date the appeal was filed. The city clerk shall give each appellant written notice of the time and the place of the hearing at least five calendar days prior to the date of the hearing, either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at his address shown on the appeal. Continuance of the hearings may be granted by the council on request of the owner for good cause shown, or on the council's own motion. (Ord. 89-7 (part), 1989; Ord. 4-86 § 11, 1986)

• A. All hearings shall be tape recorded.

• B. Hearings need not be conducted according to the technical rules of evidence.

C. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil action in courts of competent jurisdiction in this state.

• D. Oral evidence shall be taken only on oath or affirmation.

• E. Irrelevant and unduly repetitious evidence shall be exc1uded.

F. Upon the conclusion of the hearing, the council shall determine whether the property or any part thereof, as maintained, constitutes a public nuisance. If the council so finds, the council shall adopt a resolution declaring such property to be a public nuisance, setting forth its findings and ordering the abatement of the same by having such property rehabilitated, repaired, removed or demolished in the manner and means specifically set forth in said resolution. The resolution shall set forth the time within which such work shall be completed by the owner, in no event less than thirty days. The decision and order of the council shall be final (Ord. 89-7 (part), 1989)

Any owner or other interested person having any objections or feeling aggrieved at any proceedings taken on appeal by the city council in ordering the abatement of any public nuisance under the provisions of this chapter must bring an action to contest such decision within fifteen days after the date of such decision of the city council. Otherwise, all objections to such decisions shall be deemed waived. (Ord. 89-7 (part), 1989; Ord. 4-86 § 12, 1986)

Within five days following the commission decision, the property owner and/or person having charge or control of the premises shall be served with a copy of the written order of the commission in the manner provided in Section 8.08.060. (Ord. 4-86 § 13, 1986)

The property owner, or person having charge or control of the property, may at his own expense, abate the nuisance as prescribed by the order of the planning commission prior to the expiration of the abatement period set forth in the order. If the nuisance has been inspected by the planning commission and has been abated in accordance with the order, proceedings shall be terminated. (Ord. 4-86 § 14, 1986)

A. If such abatement is not abated as ordered with the abatement period, the city clerk shall cause the same to be abated by city employees or private contract. The city clerk or the clerk's representative is expressly authorized to enter upon said property for such purposes. The city clerk or the clerk's representative is authorized to remove from the premises and dispose of or destroy such property as is necessary and take such other actions as required to fulfill the purposes of the abatement order. The cost, including incidental expenses of abating the nuisance shall be billed to the owner and shall become due and payable thirty days thereafter. The term “incidental expenses” means and includes, but is not limited to, personnel costs, both direct and indirect, including attorney's fees for the prevailing party if the city should request attorney's fees at the initiation of the action; costs incurred in documenting the nuisance; the actual expenses and costs of the city in preparation of notices, specifications and contracts, and in inspecting the work; and the cost of printing and mailing required hereunder.

B. A person shall not obstruct, impede, or interfere with the city clerk or his representative, or with any person who owns, or holds any interest or estate in any property in the performance of any necessary act, preliminary to or incidental to, carrying out an abatement order issued pursuant to Sections 8.08.090 and 8.08.110. (Ord. 02-02, 2002; Ord. 89-7 (part), 1989; Ord. 4-86 § 15, 1986)

A. No property shall be found to be a public nuisance under Section 8.08.020 and ordered demolished unless the order is based on competent sworn testimony and it is found that in fairness and in justice there is no way other than demolition reasonably to correct such nuisance.

B. A copy of any order or resolution requiring abatement by demolition under Section 8.08.090 shall be forthwith recorded with the county recorder. (Ord. 89-7 (part), 1989)

A. The planning commission, or such other city official as may be designated, shall keep an account of the costs (including incidental expenses) of abating such nuisance on each separate lot or parcel of land where the work is done and shall render an itemized report in writing to the city council showing the cost of abatement or repairing of such premises, buildings or structures, including any salvage value relative thereto; provided, that before the report is submitted to the city council, a copy of the same shall be served in accordance with Section 8.08.060, together with a notice of the time when the report will be heard by the city council for confirmation.

B. The city council shall set the matter for public hearing to determine the corrections or reasonableness, or both, of such costs.

• C. Proof of service shall be made by declaration under penalty of perjury filed with the city clerk.

D. “Incidental expenses” includes, but is not limited to, the actual expenses and costs to the city in the preparation of notice, specifications and contracts, and in inspecting the work, and the costs of printing and mailing required under this chapter. (Ord. 4-86 § 16, 1986)

At the time and place fixed for receiving and considering the report the city council shall hear and pass upon the report of such costs of abatement, together with any objections or protests. Thereupon, the city council may make such revision, corrections or other modifications in the report as it may deem just, after which, by motion, the report, as submitted or as revised, corrected or modified, shall be confirmed. The decision of the city council on all protests and objections which may be made shall be final and conclusive. (Ord. 4-86 § 17, 1986)

A. Any person liable to be assessed for the cost of an abatement action may file a written protest or objection to the planning commission statement with the city clerk at any time prior to the time set for hearing. The city clerk shall endorse each protest or objection received and shall present such protests or objections to the city council at the time set for hearing. No other protests or objections shall be considered.

B. Upon the day and hour fixed for the hearing of protests and objections by the city council, the council shall hear and act upon the planning commission statement and upon the protests or objections of those liable to be assessed for the cost of abatement. The modifications to the statement as it may deem just and thereafter shall confirm the statement by motion or resolution. The decision of the city council on all protests and objections which may be made shall be final and conclusive. (Ord. 89-7 (part), 1989)

A. The total cost for abating such nuisance, as so confirmed by the city council, shall constitute 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 a notice of liens, as so made and confirmed, shall constitute a lien on the property for the amount of such assessment.

B. After such confirmation and recordation, a copy may be turned over to the tax collector for the city, whereupon it shall be the duty of the tax collector to add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land for municipal purposes, and thereafter the amounts shall be collected at the same time and in the same manner 8.08.155 as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedures under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes; or, after such recordation, such liens may be foreclosed by judicial or other sale in the manner and means provided by law.

• C. Such notice of lien for recordation shall be in form substantially as follows:

NOTICE OF LIEN

(Claim of City of Montague)

Pursuant to the authority vested by the provisions of Section 15 of Ordinance Number 4-86 of the City of Montague, The Planning Commission of the City of Montague did on or about the _ day of __ 19_, cause the premises hereinafter described to be rehabilitated or the building or structure on the property hereinafter described to be repaired or demolished in order to abate a public nuisance on said property; and the City Council of the City of Montague did on the_ day of__ 19_, assess the cost of such rehabilitation, repair or demolition upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Montague does hereby claim lien on such rehabilitation, repair or demolition in the amount of said assessment, to wit: the sum of $ , and the same shall be a lien upon said real property until same has been paid in full and discharged of record.

The real property hereinafter mentioned and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Montague, State of California, and particularly described as follows: (DESCRIPTION) DATED: This_ day of__ 19_,

CITY OF MONTAGUE MAYOR

(Ord. 4-86 § 18, 1986)

All notices required to be in writing under this chapter shall be by certified mail requiring a return receipt. (Ord. 4-86 § 21, 1986)

A. The owner or other person having charge or control of any such buildings or premises who maintains any public nuisance defined in this chapter, or who violates any order of abatement served as provided in Section 8.08.110, is guilty of a misdemeanor.

B. Any occupant or lessee in possession of any such building or structure who fails to vacate the building or structure in accordance with an order given as provided in this chapter is guilty of a misdemeanor.

C. Any person who removes any notice or order posted as required in this chapter, for the purpose of interfering with the enforcement of the provisions of this chapter, is guilty of a misdemeanor.

D. Any person who obstructs, impedes or interferes with any representative of the city council or with any representative of a city department or with any person who owns or holds any estate or interest in a building which has been ordered to be vacated, repaired, rehabilitated or demolished, or with any person to whom the building has been lawfully sold pursuant to the provisions of this chapter, when any of the aforementioned individuals are lawfully engaged in proceedings involving the abatement of a nuisance, is guilty of a misdemeanor. (Ord. 4-86 § 19, 1986)

Nothing in this chapter shall be deemed to prevent the city council from ordering the city attorney to commence a civil or criminal proceeding to abate a public nuisance under applicable Civil Code or Penal Code provisions as an alternative to the proceedings set forth in this chapter. (Ord. 4-86 § 20, 1986)

A. Whenever any nuisance as defined herein constitutes an immediate hazard to life, health or property and, in the opinion of the planning commission or their designee, abatement must be undertaken within less than the designated period, the planning commission may abate or cause to be abated all or any portion of the nuisance as may be necessary to protect life, health or property after giving such notice to the parties concerned as the circumstances will permit or without any notice whatever when, in the opinion of the planning commission or their designee, immediate action is necessary.

B. Whenever an emergency abatement action is taken pursuant to the preceding section, the planning commission or their designee shall submit to the city council a written report indicating the location of the nuisance and the reasons requiring emergency abatement thereof. A copy of this report shall be attached to or included as a part of notice to the owner of record when notice is given as previously provided in this chapter. (Ord. 89-7 (part), 1989)