Oceanside Municipal Code Art. I Real Property Nuisance Abatement

Footnotes:

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Editor's note— Ord. No. 98-23, § 1, adopted July 15, 1998, amended Art. I, in its entirety, to read as herein set out in §§ 17.1—17.15. See the Code Comparative Table.

(a) Attractive nuisance shall mean any condition, instrument or machine which is unsafe and unprotected and thereby dangerous to children by reason of their inability to appreciate the peril therein, and which may be reasonably expected to attract children to a property and thus risk injury by playing with, in or on it.

(b) Enforcement officer is the employee or agent of the city designated by the city manager to enforce city codes and ordinances, or specific provisions thereof.

(c) Garbage means all material capable of decomposition to a putrid state, such as kitchen and table refuse, animal or vegetable matter that attends or results from the preparation of, dealing with or handling of foodstuffs; swill; animal carcasses; offal; accumulation of excrement; leaves; trimmings from lawns, trees, gardens or shrubbery.

(d) Hazardous waste means any waste material or mixture of wastes which is toxic, corrosive, flammable, and an irritant, a strong sensitizer which generates pressure through decomposition, heat or other means, if such a waste or mixture of wastes may cause substantial personal injury, serious illness or harm to humans, domestic animals or wildlife during, or as an approximate result of any disposal of such wastes or mixtures of wastes as defined in Section 25117 of the California Health and Safety Code. The terms "toxic," "corrosive," "flammable," "irritant," and "strong sensitizer," shall be given the same meaning as in the California Hazardous Substance Act (Chapter 13, commencing with Section 28740 of the California Health and Safety Code).

(e) Junk, as used in this article, "junk" means any of the following objects or materials upon a property if such object or material is left, placed, kept, exposed or stored in public view. Materials described below which are upon the property of a properly zoned business and which constitute lawfully stored or displayed merchandise or service of said business are excluded from this article.

(1) A pile, mound, or stack of dirt, soil, rock, gravel, bark, humus, sod, or other similar natural material; providing, however, that an accumulation of such material which is assembled, gathered, or collected as an integral part of an organized landscape design, or which is collected during use of a building permit, is excluded from this definition if the excess or the residue of such accumulation is completely removed from the property by the completion of the building or landscaping project after a period of sixty (60) days during which there is no measurable or significance progress toward completion.

(2) Packing material or packing supplies; lumber, dry wall, roofing tile, cement, nails, irrigation or plumbing pipe, or other building materials, products, or supplies; provided, however, that a reasonable quantity of these materials and supplies is excluded from this definition during active construction upon the subject property provided that said materials and supplies are stored in an orderly manner. A project shall be deemed active if there is measurable or significant progress toward completion of the project in any sixty-day period.

(3) Discarded or scrap building materials; provided however, that a reasonable quantity of discarded or scrap building materials may be temporarily stored in an orderly manner on a construction site awaiting disposal. Disposal of discarded or scrap building materials shall occur on a regular basis, at reasonable intervals, and in a manner consistent with the provisions of this Code regulating solid waste disposal.

(4) Firewood maintained upon property in a disorganized or scattered heap, or pile.

(5) Any automobile parts, appliances, tools, equipment, furnishings or items of personal property of any size and of any quantity which are littered on or scattered upon or about property in a random, haphazard, disarrayed or disorganized manner.

(6) Any accumulation of cans, newspaper, plastic, glass or cardboard of any size and of any quantity which are littered on or scattered upon or about property in a random, haphazard, disarrayed or disorganized manner.

(f) Medical waste means waste matter originating from health care (human or animal) health care facilities, clinics, physicians' and dentists' offices.

(g) Nuisance vegetation, as used in this article, "nuisance vegetation" means any of the following:

(1) Dry grass, stubble, hay, brush, and dry or dead plant, bush, shrub, tree, or other flammable vegetative material or substance which constitutes a danger to public safety by creating a fire hazard.

(2) Overgrown vegetation, whether living, dormant, dead, cultured or uncultured, which is capable of harboring insects, rats, mice, or other vermin, or other similar conditions which are dangerous to the public health or welfare or which are hazardous to pedestrian or vehicular traffic.

(3) Any tree or other vegetation which is dead, decayed, infected, diseased, infested with or in danger of becoming infested with, objectionable insects, scale, or fungus, or which is otherwise a hazard to public safety and welfare.

(4) Any tree, plant, vine, or foliage, whether living, dormant, or dead, that is otherwise noxious, dangerous, or injurious to people or to city trees, or that interferes with the maintenance or inspection of a city tree, or that constitutes a danger to public safety by creating a fire and/or flood hazard, including, but not limited to, the following types of plants: arundo (Arundo donax), pampas grass (Cortaderia selloana and Cortaderia jubita) and tamarisk or salt cedar (Tamarix chinesis, Tamarix gallica, Tamarix parviflora and Tamarisk ramsissima).

(h) Polluted water shall include:

(1) Water on private property which contains bacterial growth, algae, remains of insects, remains of deceased animals, rubbish, refuse, dirt, debris, papers, hazardous chemicals, or other matter or material, which because of its magnitude, nature, or location, constitutes an unhealthy or unsafe condition, or

(2) Water within a swimming pool, pond or other body of water which is abandoned, unattended, unfiltered, stagnant or otherwise not maintained, and results in the water becoming unhealthy as described above.

(i) Property shall mean any lot or parcel of land within the city limits of the City of Oceanside identified on the last equalized assessment roll of the San Diego County Assessor. For the purpose of this definition property shall include the area of the public or private right-of-way between the lot line and the face of curb, or edge of pavement (commonly known as sidewalk and/or arkG), and to the centerline of any alley abutting the lot or parcel of land.

(j) Rubbish means solid wastes not capable of putrid decomposition, such as paper, cardboard, tin cans, wood, glass, bedding, crockery, plastic, rubber byproducts, ashes, steel, aluminum, copper or other natural or synthetic materials.

(k) Public view means visible from the public right-of-way, or from any public or private property.

(Ord. No. 98-23, § 1, 7-15-98; Ord. No. 08-OR0301-1, § 1, 5-7-08)

It shall be unlawful to maintain, or permit to be maintained, on any property within the city, the nuisances described in this chapter. Further, all violations of City Codes may be considered to be a nuisance as defined herein, and may be abated per the enforcement provisions of this chapter. Abatement of nuisances in accordance with the provisions of this chapter is in addition to any other administrative, civil, or criminal remedy permitted by law. The nuisances described in this article may be considered violations of this Code and be cited as such in the context of said administrative, civil, or criminal remedy.

(Ord. No. 98-23, § 1, 7-15-98)

A public nuisance within the scope of this article includes:

(a) The existence of any property in the city:

(1) In a condition which is adverse or detrimental to public, health, safety, or general welfare; or

(2) Maintained to permit the property to become so defective, unsightly, dangerous, or in a condition of deterioration or disrepair such that the property may cause harm to persons, cause appreciable diminution of property values in the immediate vicinity, or may be materially detrimental to property or improvements located in the immediate vicinity of such real property.

(b) Land that is in a state to cause or contribute to erosion, subsidence, or surface water drainage impacting adjacent public or private properties.

(c) The discharge of pollutants into receiving waters or into the city's stormwater conveyance system, as defined and prohibited under chapter 40, of the Oceanside City Code.

(d) The placement, maintenance, or existence of junk, garbage, rubbish, or nuisance vegetation in a manner which is offensive, unsightly, unsafe, unhealthy, a harborage for rodents or other vermin, an attractive nuisance to children, or in any other way detrimental to public health, safety, or welfare.

(e) The placement, maintenance, or existence of hazardous waste or medical waste, in a manner not consistent with applicable city, state or federal regulations.

(f) Attractive nuisances as defined under section 17.1(a) of this article.

(g) Buildings which have been partially constructed and have not made substantial progress towards completion for a period of six (6) months or longer, or buildings which have been partially destroyed or demolished by fire or other causes which remain in such a state for a period of six (6) months or longer.

(h) Buildings with deteriorating or peeling paint that exposes the exterior building coverings to deterioration, or permits the effects of sun and water penetration so as to encourage decay, dry rot, warping, or cracking.

(i) Polluted water as defined under section 17.1(h) of this article.

(j) Properties having adjacent sidewalks, parkways, and/or alleys not maintained in a clean and sanitary condition, including, but not limited to, trash, weeds, oil, or similar conditions which interfere with their use or appearance.

(k) The maintenance of any structure in a state of deteriorations, disrepair, or unsightliness, such as broken windows, roofs in disrepair, damaged porches, broken steps, damaged exterior wall coverings, or other such deterioration or disrepair not otherwise constituting a violation, and which is in public view, where such condition would contribute to blight, and appreciable diminution of the use, enjoyment, aesthetic or property values of surrounding properties.

(l) Graffiti which is not removed within the time limits as set forth in chapter 20 of this Code.

(m) Property upon which any violation of this Code, or other City Codes and ordinances exists, or property which is used in violation of this Code or other City Codes and ordinances.

(Ord. No. 98-23, § 1, 7-15-98; Ord. No. 02-OR100-1, § 1, 2-6-02)

All or any part of premises found to constitute a public nuisance shall be abated by rehabilitation, demolition, or repair pursuant to the procedures set forth in this article. The procedures set forth in this article shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other city ordinances or abating public nuisances in any other manner provided by law.

(Ord. No. 98-23, § 1, 7-15-98)

Enforcement of this article may be accomplished by an enforcement officer in any manner authorized by law. The procedures set forth in this chapter shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other city ordinances or abating public nuisances in any other manner provided by law.

(Ord. No. 98-23, § 1, 7-15-98)

Whenever an enforcement officer has inspected or caused to be inspected any property and has found and determined that conditions constituting a public nuisance exist thereon, said enforcement officer may use the procedures set forth in this section for the abatement of such nuisance.

(1) Issuance and contents of notice and order. The enforcement officer shall issue a notice and order and mail a copy of such notice and order to the property owner and the person, if other than the property owner, occupying or otherwise in actual or apparent possession and control of the property. The notice and order shall contain:

(i) The street address and a legal description sufficient for identification of the property on which the condition exists.

(ii) A statement that the enforcement officer has determined that a public nuisance is being maintained on the property with a brief description of the conditions which render the property a public nuisance.

(iii) An order to obtain all necessary permits, to physically commence abatement work, and to complete abatement of the nuisance within a proscribed period of time.

(iv) A statement advising that the disposal of material involved in abatement of the nuisance shall be carried forth in a legal manner.

(v) A statement advising that if the required work is not permitted, commenced, and completed within the time specified, the enforcement officer may proceed to cause the work to be done, and charge the costs thereof against the property or its owner.

(vi) A statement advising that any person having any record title or legal interest in the property may request a hearing before a hearing officer or board, as determined by the city manager, within ten (10) days from the date of service of the notice and order, and that failure to request such a hearing will constitute a waiver of all right to an administrative hearing or appeal.

(vii) A statement advising that the notice and order will be recorded against the property in the office of the county recorder.

(2) Service of notice and order. The notice and order, and any amended or supplemental notice and order, shall be served upon the record owner and posted on the property.

(3) Method of service. Service of the notice and order shall be made upon all persons entitled thereto personally or by mailing a copy of such notice and order by certified mail, postage prepaid, return receipt requested, to each such person at their address as it appears on the last equalized assessment roll of the county or as known to the enforcement officer. If no address of any such person so appears or is known to the enforcement officer, then a copy of the notice and order shall be so mailed, addressed to such person, at the address of the property involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this article. Service by certified mail in the manner herein provided shall be effective on the date of mailing.

(4) Proof of service. Proof of service of the notice and order shall be verified at the time of service by a written declaration under penalty of perjury executed by any persons effecting personal service, declaring the time, date and manner in which service was made. The declaration and/or any receipt card returned in acknowledgment of receipt by certified mail shall be affixed to the copy of the notice and order retained by the enforcement officer.

(5) Recordation of notice and order. If there has not been compliance within the time specified therein, and no appeal has been properly and timely filed, the enforcement officer shall file in the office of the county recorder a certificate describing the property and certifying, (a) that a violation of state or city codes exists on the property, and (b) that the owner has been so notified. Whenever the corrections ordered shall thereafter have been completed or the violation otherwise removed so that it no longer exists on the property described in the certificate, the enforcement officer may file a new certificate with the county certifying compliance.

(6) Appeals hearing. Within ten (10) days after the date of posting, publishing, serving, or mailing of a notice and order pursuant to this section, whichever shall be the last, the owner, agent of the owner, lessee, occupant, or person in possession of the premises who may have been served with a notice or any person interested in the property, building, structure, or improvement affected by such notice may request a hearing for the purpose of appealing the requirements of such notice and order to the city council. The appeal shall be filed with the director of the department issuing the notice and order, who, upon determination that the appeal is timely and pertains to the subject matter of the underlying action, shall schedule an appeals hearing for the earliest possible regular meeting of the city council.

(a) Notice of hearing — Form of notice. A notice of the time and place of the appeals hearing before the city council shall be forwarded to the appellant and shall be titled, "NOTICE OF HEARING," in letters not less than one inch in height and shall be substantially in the following form:

NOTICE OF HEARING — APPEAL OF AN ENFORCEMENT ACTION TO ABATE A PUBLIC NUISANCE

Notice is hereby given that on the _______ day of _______, 19___ at the hour of _______, the City Council of the City of Oceanside will hold a public hearing in the Council Chambers of the Oceanside Civic Center, 300 N. Coast Highway, Oceanside, California to consider an appeal of a declaration of a public nuisance pursuant to the Oceanside City Code. Said public nuisance was declared by the ___________ for the following reasons:

_____

_____

which constitute violations of the following codes _____

_____

The methods of abatement available are:

All persons having an objection to, or an interest in this matter are hereby notified to attend this meeting of the city council of the City of Oceanside when their testimony and evidence will be heard and given due consideration.

DATED: ___________

___________

Department Director City of Oceanside

(b) Notice of hearing — Posting and service. The enforcement officer, as designated by the city manager, shall cause the notice of hearing to be served upon the owner(s) of the affected premises, and shall cause a copy of the notice to be conspicuously posted on the premises. The notice shall be posted and served at least ten (10) days before the time set for the hearing. Proof of posting shall be made by declaration under penalty of perjury. The method of service of the notice shall be the same as specified in section 17.6(3).

(7) Failure to appeal. Failure of any person to file an appeal in accordance with the provisions of section 17.6(6)(a) shall constitute a waiver of the right to an administrative appeal and adjudication of the notice and order or to any portion thereof.

(Ord. No. 98-23, § 1, 7-15-98)

At the time stated in the notice, the city council shall hear and consider all relevant evidence, objections or protests, and shall receive testimony from owners, witnesses, city personnel and interested persons relative to the alleged public nuisance and to proposed rehabilitation, repair or demolition of such premises. The hearing may be continued from time to time.

(Ord. No. 98-23, § 1, 7-15-98)

At the conclusion of the hearing, the city council shall, based on the information received at the hearing, determine whether the premises, or any part thereof, constitutes a public nuisance as defined in the City Code. If the city council finds that a public nuisance does exist and that there is sufficient cause to rehabilitate, demolish or repair the property constituting the nuisance, the city council shall adopt a resolution setting forth its findings and ordering the owner or other person having possession of the premises to abate the nuisance as described in a notice to abate order prepared by the enforcement officer. The resolution shall set forth deadline dates by which the nuisance shall be abated by the owner or person having control or possession of the premises. The decision and order of the city council shall constitute a final determination on behalf of the City of Oceanside.

(Ord. No. 98-23, § 1, 7-15-98)

Any owner or other interested person having any objections or feeling aggrieved at any proceeding taken by the city council in ordering the abatement of any public nuisance under the provisions of this chapter must bring a court action to contest such decision within the statutory provisions of the California Code of Civil Procedure in order to challenge the decision of the city council. Otherwise all objections to such decision shall be deemed waived.

(Ord. No. 98-23, § 1, 7-15-98)

(1) A copy of the resolution of the city council ordering the abatement of the nuisance, and a notice to abate prepared by the enforcement officer shall be served upon the owners of the affected property in accordance with the provisions of section 17.6(3). Upon abatement in full by the owner, proceedings under the article shall terminate.

(2) If the nuisance is not completely abated by the owner as directed within the designated abatement period, then the city manager, or his or her designee, is authorized and directed to cause for the nuisance to be abated by city forces or private contract.

(Ord. No. 98-23, § 1, 7-15-98)

(1) The city manager, or his or her designee, shall keep an accounting of the cost (including incidental expenses) of abating the 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 costs of abatement and/or rehabilitation, demolition or repair of the premises, buildings or structures, including any salvage value; provided that before the report is submitted to the city council, a copy of the report shall be posted for at least five (5) days on the affected premises together with a notice of the time when the report shall be heard by the city council for confirmation.

(2) The city council shall set the matter for hearing to determine the correctness or reasonableness, or both, of the abatement costs.

(3) A copy of the abatement cost report and notice of the abatement cost hearing shall be served upon the owners of the affected property in accordance with the provisions of section 17.6(3), at least five (5) days prior to the date of the city council hearing.

(4) Proof of posting and service shall be made by declaration and filed with the city clerk. The term "incidental expenses" shall include, but not be limited to, the actual expenses and costs of the city in preparation of notices, specifications and contracts, the costs of printing and mailing required hereunder, and may include attorneys' fees.

(Ord. No. 98-23, § 1, 7-15-98)

At the time and place fixed for receiving and considering the report, the city council shall hear and consider the abatement cost report, together with any objections or protests. The city council may make such revisions, corrections or modifications to the report as the council deems necessary. The report, as submitted or as revised, corrected or modified, shall be confirmed by resolution. the decision of the city council on all protests and objections which may be made shall constitute a final administrative determination.

(Ord. No. 98-23, § 1, 7-15-98)

If unpaid, the total cost for abating the nuisance shall constitute a potential lien against the respective lot or parcel of land to which it relates. Upon recordation of a notice of lien in the office of the county recorder, the abatement cost assessment shall constitute a lien on the property.

(1) After confirmation and recordation, a certified copy of the city council's decision shall be sent to the tax division of the county auditor-controller's office, where it may be added to 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 as ordinary municipal taxes are collected, and shall be subject to the same penalties and same procedure under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes; or

(2) After recordation the lien may be foreclosed by judicial or other sale in the manner and means provided by law.

(3) The notice of lien for recordation shall be in the form substantially as follows:

NOTICE OF LIEN — CLAIM OF CITY OF OCEANSIDE

Pursuant to the authority vested by the provisions of Sections 17.1, et seq. of the Oceanside City Code, the City Manager of the City of Oceanside (or his or her designee) did or about the _______ day of _______, 19___, cause the premises hereinafter described to be rehabilitated, or the building or structure on the property herein after described to be repaired or demolished, to abate a public nuisance on real property herein after described to be repaired or demolished, to abate a public nuisance on real property; and the City Council of the City of Oceanside did on the _______ day of _______, 19___ assess the costs of the rehabilitation, repair or demolition upon the real property hereinafter described; and the costs or any part of the costs have not been paid. The City of Oceanside hereby claims a lien on the property in the amount of the assessment for rehabilitation, repair or demolition, to wit: the sum of $_______; and this amount shall be a lien upon the real property until the sum has been paid in full and discharged of record. The real property upon which a lien is claimed is that certain parcel of land lying and being in the City of Oceanside, County of San Diego, State of California, and more particularly described as follows: (LEGAL DESCRIPTION OF PROPERTY)

DATED:

CITY OF OCEANSIDE

_____ CITY MANAGER

(Ord. No. 98-23, § 1, 7-15-98)

Penalties and remedies under this chapter may be cumulative and in addition to other administrative, civil or criminal remedies. 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 or penal code provisions as an alternative to the proceedings set forth in this article.

(Ord. No. 98-23, § 1, 7-15-98; Ord. No. 07-OR0399-1, § 1, 7-11-07)

In any action, administrative proceeding or special proceeding to abate a nuisance brought pursuant to this chapter, the prevailing party may recover attorneys' fees. The recovery of attorneys' fees by the prevailing party is limited to those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.

(Ord. No. 07-OR0399-1, § 1, 7-11-07)

The owner(s), occupant(s), or other person(s) having possession or control of any buildings or premises which constitute a public nuisance as defined in this chapter, or anyone who violates any order of abatement made pursuant to this article commits a public offense which may be prosecuted as a misdemeanor offense as defined under this Code.

(Ord. No. 98-23, § 1, 7-15-98; Ord. No. 07-OR0399-1, § 1, 7-11-07)