Newark Municipal Code Ch. 17.41 Enforcement and Abatement Procedures

This chapter establishes the responsibilities of various departments, officials, and public employees of the city to enforce the requirements of this title and establishes uniform procedures the city will use to identify, abate, remove, and enjoin uses, buildings, or structures that are deemed to be in violation of this title.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

All departments, officials, and public employees of the city vested with the duty or authority to issue permits or licenses shall conform to the provisions of this title, and shall issue no permit or license for uses, buildings or purposes in conflict with the provisions of this title, and any such permit or license issued in conflict with the provisions of this title shall be null and void. It shall be the duty of the building inspector of the city to enforce the provisions of this title pertaining to the erection, construction, reconstruction, moving, conversion, alteration, or addition to or of any building or structure.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Any permit granted under the zoning ordinance may be revoked in accordance with the provisions in Section 17.31.150, Revocation of Permits, if any of the conditions or terms of such permit are violated or if any law or ordinance is violated in connection therewith. Notwithstanding this provision, no lawful residential use can lapse regardless of the length of time of the vacancy.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Any deed of conveyance, sale or contract to sell made contrary to the provision of this title, is voidable at the sole option of the grantee, buyer, or person contracting to purchase, his heirs, personal representative or trustee in insolvency or bankruptcy, within one year after the date of execution of the deed of conveyance, sale or contract to sell but the deed of conveyance, sale or contract to sell is binding upon any assignee or transferee of the grantee, buyer or person contracting to purchase other than those above enumerated, and upon the grantor, vendor or person contracting to sell or his assignee, heir or devisee.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Any building, structure, or planting set up, erected, constructed, altered, enlarged, converted, moved, or maintained contrary to the provisions of this title, any use of any land, building, or premises established, conducted, operated, or maintained contrary to the provisions of this title, and failure to comply with any of the conditions of a permit granted under this title is declared to be unlawful and a public nuisance.

B. Any use, event, structure or building, whether nonconforming or otherwise, which meets any of the following criteria shall be deemed a public nuisance subject to abatement as set forth herein: disturbances of the peace, illegal drug activity including sales or possession thereof; public drunkenness, drinking in public, harassment of passers-by, gambling, prostitution, public vandalism, excessive littering, excessive noise (particularly between the hours of 11:00 p.m. and 7:00 a.m.), noxious smells or fumes, curfew violations, lewd conduct or police detention, citations or arrests or any other activity declared by the city to be a public nuisance; violation of any provision of this chapter or any other city, state or federal regulation, ordinance or statute.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Any person, firm, or corporation, whether as principal, agent, employee or otherwise, violating a provision of this title or failing to comply with a mandatory requirement of this title shall be guilty of an infraction. Upon conviction, such person shall be punished as set forth in Chapter 1.16, General Penalty, of the Newark Municipal Code. A person, firm, or corporation shall be deemed guilty of a separate offense for each and every day during any portion of which any violation of this title is committed, continued or permitted by such person, firm or corporation, and shall be punished accordingly.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

The remedies provided for herein shall be cumulative and not exclusive. Upon a finding of nuisance pursuant to this chapter, and after giving the property owner an opportunity to cure the nuisance and determining that the nuisance still exists, the planning commission or city council may impose any remedy available at law or in equity, which shall include, but is not limited to, any of the following or combination thereof:

A. Ordering the cessation of the use in whole or in part;

B. Imposing reasonable conditions upon any continued operation of the use, including those uses that constitute existing nonconforming uses;

C. Requiring continued compliance with any conditions so imposed;

D. Requiring the user to guarantee that such conditions shall in all respects be complied with; or

E. Imposing additional conditions or ordering the cessation of the use in whole or in part upon a failure of the user to comply with any conditions so imposed.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Initiation. Proceedings under this section to terminate, modify or condition (hereinafter abate or if context requires, abatement) any use, structure or building may be initiated by resolution of the planning commission or the city council on its own accord or following recommendation by the director. In either case, the resolution shall identify the use, building, or structure being considered, identify the property involved, set forth the reason or reasons for the proposed abatement, and fix a time and place for a public hearing on the proposed abatement. In the case of proceedings initiated by the council, the resolution shall refer the matter for a public hearing before the commission. A resolution initiating abatement proceedings may be adopted without a public hearing.

B. Notice. Upon initiation of abatement proceedings, the director shall give notice of a public hearing before the commission pursuant to the provisions in Chapter 17.31, Common Procedures. In addition, within the prescribed time period, the director shall also mail the notice of the hearing to the person or persons whose use, structure or building is the subject of the abatement proceedings, any person who requested initiation of abatement proceedings, and to any other person who has filed a written request with the planning division for such notice.

C. Public Hearing. The planning commission shall conduct a duly-noticed public hearing and shall provide for testimony by city staff and the owner of the use, structure, or property that is the subject of the proceeding. Any other interested person shall also be given an opportunity to provide testimony.

D. Action. The planning commission shall consider the staff report and the evidence, testimony, and facts presented at the hearing before taking action. If the commission finds that the use, building, or structure constitutes a nuisance, it may impose any remedy as provided for in this chapter.

E. Decision and Notice. After the commission takes abatement action to modify a permit, the director shall issue a notice of action describing the commission's action, with its findings. The director shall mail the notice to the permit holder and to any person who has requested such notification by filing a written request with the planning division, and shall file a copy of the notice of action with the city clerk. The clerk shall present said copy to the council at its next regular meeting.

F. Effective date; Appeal to Council. A decision to abate a nuisance shall become effective immediately after the date of decision unless appealed to the council within fifteen days. If the council finds, after a duly-noticed public hearing, that the use, structure or building constitutes a nuisance, it may impose any remedy provided for in this chapter. If the council finds that the use, structure or building is not a nuisance, it shall reverse the decision of the commission.

G. City Attorney Action. The city attorney shall, upon order of the city council, or on his or her own motion, immediately commence action or proceedings for the abatement and removal and enjoinment of said public nuisance in the manner prescribed by law, and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm, or corporation from setting up, erecting, building, maintaining, or using any such building contrary to the provisions of this title.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. If compliance is not had with an order of the director or the building official to correct violations of this title within the time specified therein, the city manager may file in the Office of the Alameda County Recorder, a certified statement describing the property and certifying that:

1. The property and/or structure is in violation of this title; and

2. The owner has been so notified. The notice shall specifically describe the violations and a proof of service shall also be recorded with the notice and order.

B. Whenever the corrections ordered have been completed, the director shall file a new certified statement with the county recorder certifying that all required corrections have been made so that the property and/or structure is no longer in violation of this title.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)