Monterey County Municipal Code Ch. 16.30 Uniform Public Nuisance Abatement Procedure

This Chapter shall be known and cited as the "Uniform Public Nuisance Abatement Procedure." It is enacted pursuant to Government Code Section 25845 and is intended to be an alternate procedure for the abatement of any violation of the Monterey County Code or any other ordinance which is declared to be a public nuisance.

(Ord. 3209, 1987)

Whenever this Code or any other provision of law authorizes the Board of Supervisors or any other county elective or appointive officer to declare a public nuisance, the nuisance may be summarily abated by any reasonable means and without notice or hearing when immediate action is necessary to preserve or protect the public health or safety. Summary abatement actions shall not be subject to the requirements of this Chapter nor shall summary abatement actions be prohibited after initiation of proceedings pursuant to this Chapter if immediate action at any time becomes necessary to preserve or protect the public health or safety.

In the event a public nuisance is summarily abated, the County officer who had declared the public nuisance may nevertheless keep an account of the cost of abatement and bill the property owner therefor. If the bill is not paid within fifteen (15) days from the date of mailing, the County officer may proceed to obtain a special assessment and lien against the owners property in accordance with the procedures set forth in Sections 16.30.110 through 16.30.150 of this Chapter, except that, in addition to a review of the costs of abatement, the Board of Supervisors shall also hear and determine any issues relative to the necessity for or manner in which the property was declared to be a public nuisance and summarily abated.

(Ord. 3209, 1987)

Whenever a public nuisance is declared, it may be abated in accordance with the procedures provided in this Chapter. Nothing in this Chapter shall be construed to limit the right and duty of any county officer to take immediate action to preserve or protect public health or safety. The procedures set forth in this Chapter are not exclusive but are cumulative to all other civil and criminal remedies provided by law. The seeking of other remedies shall not preclude the simultaneous commencement of proceedings pursuant to this Chapter.

(Ord. 3209, 1987)

A public nuisance may be declared for any reason specified in any county ordinance by the County officer given the authority to enforce the ordinance. Upon a public nuisance being declared, the County officer given the authority to enforce the ordinance shall issue a Notice and Order to Abate substantially in the following form:

Notice and Order to Abate

Notice is hereby given that (specify the condition constituting the nuisance) is in violation of Section of the (Monterey County Code, the Zoning Ordinance or other applicable code or ordinance). The violation has been declared a public nuisance by the (___________) and must be abated immediately. The public nuisance is on property located at (insert address or other legal property description).

You are hereby ordered to abate said public nuisance within (insert a reasonable number of days) consecutive calendar days from the issuance of this order. The issuance date is specified below. You may abate the nuisance by (insert desired action which, if taken, will adequately remedy the situation). If you fail to abate the public nuisance within the number of days specified, the County may order its abatement by public employees, private contracts, or other means, and the cost of said abatement may be levied and assessed against the property as a special assessment lien or billed directly to the property owner.

You may appeal from this order of abatement but any such appeal must be brought prior to the expiration of the number of days specified above for completion of abatement. The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by an appeal fee of _______ dollars ($_______); and be submitted to the Clerk of the Board of Supervisors at the following address:

Clerk of the Board of Supervisors County of Monterey Post Office Box 1728 Salinas, California 93902 (408) 755-5066

One who is legally indigent may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accompanying fee, or waiver, the Clerk of the Board will cause the matter to be set for hearing before the Board of Supervisors or the person or body authorized to act on its behalf and notify you of the date and location of the hearing.

If you have any questions regarding this matter, you may direct them to the County officer issuing this notice at the address or telephone number listed below.

Issuance date:

_____

_____

_____ (Name, title, address and telephone number of the County officer issuing this notice.)

(Ord. 3209, 1987)

The notice and order to abate shall be served in the following manner:

A. By certified mail, addressed to the owner, his or her agent, at the address shown on the last equalized assessment roll or as otherwise known, and addressed to anyone known to the County officer to be in possession of the property at the street address of the property being possessed. Service shall be deemed to have been completed upon the deposit of said Notice and Order, postage prepaid, in the United States mail; and,

B. By posting such Notice and Order to Abate conspicuously in front of the property on which, or in front of which, the nuisance exists, or if the property has no frontage, upon any street, highway, or road then upon the portion of the property nearest to a street, highway, or road, or most likely to give actual notice to the owner and any person known by the County officer to be in possession of the property.

(Ord. 3209, 1987)

Any owner or other person in possession of the property may appeal to the Board of Supervisors or the person or body authorized to act on its behalf within the number of days allowed in the Notice and Order to Abate. The appeal shall be submitted in writing, specify the grounds upon which the appeal is taken, contain the name, address and telephone number of the appellant, be accompanied by the payment of any appeal fee and be filed with the Clerk of the Board of Supervisors. Timely appeal shall stay any further abatement action until the hearing is concluded. The Clerk of the Board shall set the matter for hearing before the Board of Supervisors and notify the parties in writing of the date and location of the hearing, at least ten (10) days prior to said date.

(Ord. 3209, 1987)

The amount of the appeal fee shall be determined periodically by the Board of Supervisors based upon the costs incurred by the County in processing an appeal pursuant to this Chapter.

If the appellant claims an economic hardship in paying the appeal fee, he or she may submit an application for waiver of the appeal fee on forms provided by the Clerk of the Board for that purpose. The forms shall be substantially similar to those required of litigants initiating court proceedings in forma pauperis pursuant to Section 68511.3 of the Government Code. The forms shall be executed under penalty of perjury and contain a declaration as to the truthfulness and correctness of the information contained therein. Upon submittal of the completed forms, the a fee shall be waived.

Upon filing a timely appeal and for good cause shown, the Clerk of the Board may grant the appellant a period of time beyond expiration of the appeal period in which to complete and submit the waiver forms. In no event shall the additional time exceed two calendar days.

If the appeal fee is paid and the Board of Supervisors or the person or body authorized to act on its behalf finds there is no public nuisance, the appeal fee shall be refunded to the appellant without the payment of any interest which could have accrued.

Failure to submit the waiver forms or pay the appeal fee in a timely manner shall cause the appeal request to be automatically denied. Enforcement of the order to abate may then proceed as if no appeal request had been submitted.

If no demand for a hearing is made within the time provided in the abatement notice, the Board of Supervisors or the person or body authorized to act on its behalf may set the matter for hearing to be held pursuant to Section 16.30.080 whenever a hearing is deemed necessary to substantiate the need for abatement by the County or the public interest will be served. The Board of Supervisors or the person or body authorized to act on its behalf may dispense with a public hearing and elect to proceed under the provisions of Section 16.30.100 if it determines that a sufficient factual basis exists to warrant abatement by the County.

(Ord. 3209, 1987)

A. Pursuant to Government Code Section 25170, the Board of Supervisors or the person or body authorized to hear the matter on its behalf may issue subpoenas as necessary to require the attendance at the hearing of persons or the production of books, papers or other things related to the subject matter of the hearing.

B. The County officer with jurisdiction to cause the abatement of the alleged nuisance shall first describe the acts or conditions constituting a nuisance and shall respond specifically to the grounds set out in the demand for hearing. Thereafter, the objector shall present whatever evidence is relevant to refute the allegation.

C. A hearing held under this Chapter shall be conducted pursuant to rules of procedure adopted or approved by the Board of Supervisors. Formal rules of evidence or procedure in any proceeding subject to this Chapter shall not apply except to the extent that the Board of Supervisors otherwise provides by rule or procedure. Any relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Any failure to make a timely objection to offered evidence constitutes a waiver of the objection.

D. The hearing shall be conducted in the English language. The proponent of any testimony to be offered by a witness who does not proficiently speak the English language shall provide an interpreter who has been certified an interpreter by either the State of California or the County of Monterey.

E. The hearing may be continued from time to time upon request of a party to the hearing and upon a showing of good cause therefor.

(Ord. 3209, 1987)

A. At the conclusion of the hearing, the Board of Supervisors or the person or body authorized to act on its behalf shall determine, based on the evidence before it:

1. Whether the acts or conditions specified in the notice of abatement exist;

2. Whether those acts or conditions constitute a nuisance; and

3. If a nuisance is determined to exist, whether it should be abated by the County.

B. If the Board or the person or body authorized to act on its behalf finds that the alleged nuisance does exist and should be abated, abatement of the nuisance shall be ordered. An order to abate a nuisance is final immediately, unless the order or a provision of this code expressly provides otherwise.

(Ord. 3209, 1987)

A. A copy of the written findings of fact and order of abatement shall be served personally or by mail upon each objector and all other persons upon whom the notice of abatement was served. The order may direct that any occupancy, use or activity cease immediately if its existence or continuation is found to be an immediate threat to health or safety. Otherwise, abatement shall be commenced by the owner within five calendar days of the service of the findings of fact and the order, or any longer period provided in the order, and shall continue with reasonable diligence until complete.

B. Upon the failure, neglect or refusal to properly comply with the Order of Abatement within the prescribed time period, the County officer authorized to enforce the ordinance or other designated county employee may cause to be done whatever work is necessary to abate the public nuisance. An account of the cost of abatement shall be kept for each separate assessors parcel involved in the abatement.

C. When the County has completed the work of abatement, or had paid for such work, the actual cost thereof, together with an administrative cost, including reasonable attorneys fees, shall be charged to the owner of the property. To this amount shall be added the appeal fee if it had been waived pursuant to Section 16.30.070 of this Code. The combined amounts shall be included in a bill and sent by mail to the owner, or his or her agent for payment, if not paid prior thereto. The bill shall apprize the owner that failure to pay the bill within fifteen (15) days from the date of mailing may result in a lien upon the property.

(Ord. 3209, 1987)

If the bill is not paid within fifteen (15) days from the date of mailing, the County officer authorized to enforce the ordinance shall render an itemized report in writing to the Clerk of the Board for submittal to the Board of Supervisors or the person or body authorized to act on their behalf for hearing and confirmation. To the report shall be attached the names and addresses of persons having any record interest in the property. At least ten (10) days prior to said hearing, the Clerk of the Board shall give notice, by certified mail, of said hearing to the record owner of each assessors parcel involved in the abatement, the holder of any mortgage or deed or trust of record, if known, and any other person known to have a legal interest in the property. Said notice shall describe the property by street number or some other description sufficient to enable identification of the property and contain a statement of the amount of the proposed assessment.

(Ord. 3209, 1987)

At the time fixed for receiving and considering the report, the Board of Supervisors or the person or body authorized to act on its behalf shall hear it and any objections of any of the owners liable to be assessed for the work of abatement or any other persons who may have a legal interest in the property. The Board shall add to the proposed assessment an amount equal to the cost of conducting the assessment confirmation hearing. The Board may also make such other modifications in the report as it deems necessary, after which, by resolution the report shall be confirmed. The resolution and modified report of the Board shall be final and conclusive.

(Ord. 3209, 1987)

A certified copy of the resolution shall be recorded by the Clerk of the Board in the Office of the County Recorder. The amounts and the costs of abatement mentioned in the report as confirmed shall constitute a special assessment against such property and are a lien on the property for the amount of the respective assessment.

In addition to its rights to impose said special assessment, the County shall retain the alternative right to recover its costs by way of civil action against the owner and person in possession of control jointly and severally.

(Ord. 3209, 1987)

A copy of the report as confirmed shall be turned over to the County Auditor on or before the tenth day of August following such confirmation, and the Auditor shall enter the amounts of the respective assessments against the respective parcels of land as they appear on the current assessment roll. The Tax Collector shall include the amount of the assessment on bills for taxes levied against the respective parcels of land.

(Ord. 3209, 1987)

Thereafter, the amounts of the assessment shall be collected at the same time and in the same manner as County taxes are collected, and are subject to the same penalties and the same 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 are applicable to such assessments, except that if any real property to which such lien would attach has been transferred or conveyed to a bona fide encumbrancer for value has been created and attaches thereon prior to the date on which the first installment of such taxes would become delinquent, then the lien which would otherwise be imposed shall not attach to such real property and the cost of abatement and the cost of enforcing abatement as confirmed, relating to such property, shall be transferred to the unsecured roll for collection.

(Ord. 3209, 1987)

It shall be unlawful for any person to refuse to allow any officer, employee, agent, or contractor of the County to enter upon any premises for the purpose of abating the public nuisance or to interfere in any manner whatever with such officer, employee, agent, or contractor.

(Ord. 3659 § 14, 1993)