Morgan Hill Municipal Code Ch. 1.18 Abatement of Nuisances

Unless a statute or another ordinance exclusively requires another method of abatement, the provisions of this section as to the manner of abatement of a nuisance shall be applicable to the abatement of any nuisance heretofore or hereafter described as a nuisance by an ordinance of the city of Morgan Hill, Chapter 9.15 of the Morgan Hill Municipal Code or any other applicable municipal code provision or resolution of the city council of Morgan Hill or statute of the state of California.

(Ord. 1362 N.S. § 2 (part), 1997)

The remedies provided in this section for the abatement of a nuisance are in addition to such civil or criminal remedies as may exist by law for abatement of nuisances. The use of this chapter for the abatement of nuisances shall not preclude resort to other remedies authorized by law for the abatement of nuisances.

(Ord. 1362 N.S. § 2 (part), 1997)

Unless otherwise specified, all notices required by this section shall be given in writing, and shall be served as follows:

By personal service, or by certified mail, postage prepaid and return receipt requested, addressed to the party to whom said notice is to be given as his or her address appears on the last equalized assessment roll of the county of Santa Clara, California, or as is known to the city manager of the city of Morgan Hill. If said address cannot be ascertained from said assessment roll or is not known to the city manager, a copy shall be mailed to the party to whom said notice is given addressed c/o General Delivery, Morgan Hill, California and at least one copy of said notice shall be posted in a conspicuous place upon real or personal property which constitutes said nuisance or on which said nuisance is located.

(Ord. 1362 N.S. § 2 (part), 1997)

The person giving notice on behalf of the city of Morgan Hill shall file with the city manager an affidavit of service of mailing or posting of said notice.

(Ord. 1362 N.S. § 2 (part), 1997)

A. In addition to such other remedies as the law allows, the city may cause the abatement of a nuisance by:

1. Judicial action (see Section 1.18.060); or

2. Administrative action (see Sections 1.18.070 through 1.18.110).

B. The city may recover the cost of abatement by:

1. Imposing the cost of abatement as a special assessment against the property on which the nuisance is maintained;

2. Imposing the cost of abatement as a lien upon the land on which the nuisance is maintained; or

3. Causing suit to be filed for the cost of abatement against the person or persons creating or maintaining the nuisance and the person or persons who own, possess and control the land on which said nuisance is maintained.

(Ord. 1362 N.S. § 2 (part), 1997)

For purposes of this chapter, "cost of abatement" shall include, but is not limited to:

A. Any staff time spent to process, prosecute or abate said nuisance;

B. Any costs incurred to process, prosecute or abate said nuisance;

C. Any staff time or costs incurred to impose a lien or special assessment against the land upon which the nuisance is maintained to recover such time or costs;

D. Any costs or fees for consultants and/or contractors to perform such tasks; and

E. Any costs or fees for attorneys to perform such tasks. Recovery of reasonable attorneys' fees shall be limited to those obtainable by the prevailing party and only in those individual actions or proceedings in which the city elects, at the initiation of that action or proceeding, to seek recovery of its own attorneys' fees.

(Ord. 1657 N.S. § 1, 2004)

The city attorney is empowered to institute proceedings in an appropriate court to seek abatement of the nuisance by appropriate remedy as allowed by law and for damages, if any, caused by said nuisance.

(Ord. 1362 N.S. § 2 (part), 1997)

The city manager or his or her designee shall serve as the hearing officer to hear nuisance complaint(s) brought by authorized city personnel.

(Ord. 1362 N.S. § 2 (part), 1997)

Notice shall be given directing the owner of the land on which a nuisance is located to appear before the hearing officer at a stated time and place and show cause why said nuisance should not be abated as herein provided. Said notice shall be headed "Order to Show Cause Re Abatement of Nuisance" and shall be in substantially the following form:

ORDER TO SHOW CAUSE RE: ABATEMENT OF NUISANCE

To: ________

You are hereby notified to appear before the Hearing Officer of the City of Morgan Hill on _______, 20___, at City Hall, 17555 Peak Avenue, Morgan Hill, California, at the hour of _____ o'clock ___.m., and show cause, if any you have, why that certain (description of nuisance) should not be declared to be a public nuisance and said nuisance be abated in the manner provided by law.

DATED:_______

By________

(Ord. 1362 N.S. § 2 (part), 1997)

At the time fixed in said notice, the hearing officer shall hear the testimony of city employees, the testimony of the respondent, if present and the testimony of other persons respecting the alleged nuisance.

The hearing may, upon the request of the respondent or with the respondent's consent, be continued to a time, place and date subsequent to that given in the original notice. After the hearing is opened, the hearing officer may grant continuances from time to time for good cause shown or upon his or her own motion.

Upon conclusion of the hearing, the hearing officer may determine that the alleged nuisance exists and declare it a nuisance. The hearing officer may order its abatement by the city or by the respondent by a date certain to be determined by the hearing officer (which shall be not less than fifteen days following the giving of notice of said order of abatement), or by the city if respondent subsequently fails to abate the nuisance by the date certain.

(Ord. 1362 N.S. § 2 (part), 1997)

The determination of the hearing officer pursuant to Section 1.18.090 may be appealed in writing to the council as set forth in Section 1.20.010.

(Ord. 1362 N.S. § 2 (part), 1997)

All persons owning, possessing or controlling land on which a nuisance is created, caused, committed or maintained and all persons creating, causing, committing or maintaining a nuisance shall be jointly and severally responsible for its removal. The cost of abatement of a nuisance shall be the personal obligation of each person owning, possessing or controlling land on which a nuisance is created, caused, committed or maintained and each person creating, causing, committing or maintaining a nuisance who shall be jointly and severally liable therefor.

(Ord. 1362 N.S. § 2 (part), 1997)

A. The hearing officer may direct the abatement of the nuisance by the city, and the city shall be empowered to use its own staff to abate the nuisance or to cause the actual work of abatement to be undertaken by an independent contractor.

B. The city employee charged with the responsibility for the abatement of the nuisance shall follow all laws regarding abatement warrants and shall keep an itemized account of the cost of abating the nuisance which shall be filed in a report with the city clerk. Such costs shall include fully burdened personnel costs for city employees, which may include time spent by administrative staff.

C. Notice of Report. The city clerk shall then post a copy of such report in a conspicuous place in the main lobby of the city offices, together with a notice of the filing thereof. The posting of said notice shall be made at least three days before the time such report shall be heard by the city council. Such notice shall be substantially in the following form:

NOTICE OF HEARING ON REPORT AND ASSESSMENT

NOTICE IS HEREBY GIVEN that on ________, 19___, there was filed with the City Clerk a report on abatement of a nuisance, located at ___________, Morgan Hill, California, consisting of _____ copies of which are posted in the main lobby of the City Hall.

NOTICE IS FURTHER GIVEN that on ________, 19___, at the hour of _____ o'clock ___, in the Chambers of the City Council, City Hall, 17555 Peak Avenue, Morgan Hill, California, said report will be presented for consideration and confirmation. The City Council may cause all or a portion of the costs of abating said nuisance to be made a special assessment or lien on the land referred to in said reports to be collected in the same manner as taxes, all as provided by law. Any and all persons interested, having any objections to said report may appear and be heard.

Dated this _____ day of ________ 19___

City Manager

City of Morgan Hill

D. Mailing Notice. A copy of said report and notice of hearing shall be mailed at least fifteen days before the hearing to confirm and assess costs to the owner of the land on which the nuisance is maintained and to all persons known to the city manager to have an interest therein.

E. Hearing and Confirmation. At the hearing, the city council shall hear the report together with any objections of the property owners liable to be assessed. The council may make such modifications in the proposed assessments therefor as it may deem necessary, after which such assessment shall be confirmed.

(Ord. 1362 N.S. § 2 (part), 1997)

A. The city council may impose the cost of abatement as a special assessment pursuant to Government Code Section 38773.5. The amount of the cost of abating such nuisance upon the property referred to in such report, shall constitute special assessments against such respective parcels of land.

B. Recordation—Transmittal to Tax Collector Collection with Taxes. The city clerk shall cause a certified copy of a notice of assessment to be filed with the county tax assessor and collector's office and with the county auditor's office on or before August tenth of each year. Thereafter, such amount shall be collected at the same time and in the same manner as general taxes are collected on said property and shall be subject to the same penalties and interest and the same procedure for sale in the case of delinquency as provided for said taxes. All laws and ordinances applicable to the levy collection, and enforcement of taxes are hereby made applicable to such special assessment.

C. Reimbursement of Costs. The city may add to the special assessed amount and thereby recover from the property owner any costs incurred by the city for processing and/or recording of the assessment.

D. Form of Notice of Assessment. The notice of assessment shall be in substantially the following form:

NOTICE OF ASSESSMENT FOR COSTS OF ABATING NUISANCE

On _______ a Hearing Officer of the City of Morgan Hill, California, ordered a nuisance to be abated on the real property hereafter described. On _______ the City Council of the City of Morgan Hill determined that the costs of abating said nuisance were to be assessed in the sum of $_____. Neither said sum nor any part thereof has been paid, and the City of Morgan Hill hereby claims an assessment against the real property hereafter described for the sum of $_____ which sum shall be collected at the same time and in the same manner as general taxes are collected on said realty and shall be subject to the same penalties and same interest and the same procedure for sale in the case of delinquency as said taxes. Said property may be sold after three years by the tax collector for unpaid delinquent assessments.

The real property upon which said assessment is claimed is the real property in the City of Morgan Hill, County of Santa Clara, State of California known as "Assessor's Parcel Number _______ Santa Clara County Assessor" (_______ Street, Morgan Hill, California) and more particularly described as follows:

The owners of said real property as appearing on the last equalized assessment roll in Santa Clara County, California are

(State names of all owners in fee)

Date________

City Council of Morgan Hill

By___________ City Manager

E. Notification of Property Owner. A copy of the notice of assessment shall be sent to the property owners named therein.

(Ord. 1362 N.S. § 2 (part), 1997)

As an alternate to special assessment, the city council may impose the cost of abatement as a lien pursuant to Government Code Section 38773.1.

A. Notice. Notice shall be served in a manner consistent with this chapter, and the lien shall be recorded in the county recorder's office in the county in which the parcel of land is located.

B. Specifications. The lien shall specify the amount of the lien, the name of the agency on whose behalf the lien is imposed, the date of the abatement order, the street address, legal description and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.

C. Notice of Discharge. In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge shall be recorded by the city. A lien and the release ofthe lien shall be indexed in the grantor-grantee index.

D. Foreclosure of Lien. A nuisance abatement lien may be foreclosed by an action brought by the city for a money judgment.

E. Reimbursement of Costs. The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

(Ord. 1362 N.S. § 2 (part), 1997)

As an alternative to imposing the cost of abatement as a special assessment or a lien, the city may order the city attorney to institute an action in any court of competent jurisdiction against persons owning, possessing and controlling the land on which the nuisance was located for the cost of abatement thereof as a personal obligation. If there are other persons who created, caused, committed or maintained said nuisance, and if said other persons were named in and given notice as required by Section 1.18.030, the city may also institute action in any court of competent jurisdiction against said other persons for the cost of abatement thereof as a personal obligation.

(Ord. 1362 N.S. § 2 (part), 1997)

In the event of:

A. A nuisance defined by statute, ordinance or resolution as a public nuisance which constitutes an immediate danger to persons or property; or

B. A nuisance defined by statute, ordinance or resolution as a public nuisance which is located or maintained on public property including, but not limited to, any street, highway, easement, park or building; or

C. Any obstruction or encroachment to free passage upon any public property (which is hereby declared to be a public nuisance) including, but not limited to, any street, highway, easement, park or building the city (acting by or through the city manager, the city engineer, the chief of police, the fire chief or the building official or any of their authorized deputies) may, forthwith and without notice or prior order of the city council, abate said nuisance. No notice need be given to the person or persons who created, caused, committed or maintained said nuisance or to any landowner of any land on which said nuisance was located prior to abatement thereof. The giving of any notice, however, in any form whatsoever shall not be a waiver of the provisions of this section. The city employee causing the abatement of a nuisance under this section shall file a written report with the city manager, setting forth the circumstances which justified the abatement.

(Ord. 1362 N.S. § 2 (part), 1997)

The materials contained in any structure abated by the process described in Section 1.18.140 may be used or destroyed if their value to the city is less than twenty-five dollars; otherwise, they shall be sold at public sale or delivered to the person owning the property constituting the nuisance upon payment by him of costs of abatement. In the event that the cost of abatement exceeds the money received from the sale of any material, the city may maintain an action in any court of competent jurisdiction against the person or persons who created, caused, committed or maintained said nuisance; in the event that the amount received from any sale of any material exceeds the cost of abatement, the excess shall be disposed of as provided by law.

(Ord. 1362 N.S. § 2 (part), 1997)