Chapter 7.07 — NUISANCE ABATEMENT

This chapter shall be known as the Nuisance Abatement Ordinance.

(Ord. No. 350, § 1, 1-26-2011)

A.

The city council finds and determines as follows:

Property values and the general welfare of the community are founded, in part, upon the appearance and maintenance of private properties;

There is a need for further emphasis on property maintenance and sanitation in that certain conditions, as described in this chapter, have been found from place to place throughout the city;

That the existence of such conditions as described in this chapter, is injurious and inimical to the public health, safety and welfare of the residents of the city and contributes substantially and increasingly to the deterioration of the community;

That unless corrective measures are undertaken to alleviate such existing conditions and assure the avoidance of future problems in this regard, the public health, safety and general welfare and specifically the social and economic standards of the community will be depreciated;

That the abatement of such conditions will improve the general welfare and image of the city; and

That the abatement procedures set forth in this chapter are reasonable and afford due process to all affected persons.

B.

The purposes of this chapter are to safeguard, remedy and prevent the decay and deterioration of our community by elimination of public nuisances. The procedures established in this chapter are cumulative and in addition to any other remedy established by law.

(Ord. No. 350, § 1, 1-26-2011)

A.

Authority. The city manager or his or her designee shall have principal responsibility for enforcing this chapter and shall be referenced as enforcement officer. Any provision of this chapter which refers to the city manager shall be interpreted to include a reference to a designee of the city manager. Additionally, this chapter may be enforced by code enforcement officers as authorized by city law.

B.

Right of Entry; Consent; Warrant. Whenever necessary to make an inspection to enforce any provision of this chapter, or whenever the city manager has reasonable cause to believe that there exists in any building or upon any premises, any condition which makes the building or premises a public nuisance as defined in this chapter, the city manager may enter the building or premises at all reasonable times to inspect the same or to perform any duty imposed upon the city manager by this chapter, including the abatement of any public nuisance, provided all inspections, entries, and abatements shall be done in a reasonable manner and with the consent of the owner, agent, or occupant. If an owner, occupant or agent refuses permission to enter, or inspect, or abate, the city manager may seek an administrative warrant pursuant to the procedures provided for in Cal. Code of Civil Procedure § 1822.50 through 1822.59, as amended, to perform the duties imposed upon the city manager.

C.

Responsibilities Defined. Owners remain liable for violations of duties imposed by this chapter even though an obligation is also imposed on the occupants of the building. Buildings, structures, premises and parts thereof shall be responsible for such maintenance. To determine compliance with this section, the building or premises may be re-inspected.

(Ord. No. 350, § 1, 1-26-2011)

A.

It is unlawful for any person, corporation, or other entity owning, leasing, occupying or having charge or possession of any property in this city, whether commercial, industrial or residential, to keep, maintain or deposit, on the property any public nuisance, described as follows:

Any condition as described in the Uniform Code for the Abatement of Dangerous Buildings. Reference to that code is not intended to, nor shall it reduce, supersede, diminish, or otherwise affect enforcement through the provision of that Uniform Code.

Any condition as described in the Uniform Fire Code. Reference to that code is not intended to, nor shall it reduce, supersede, diminish, or otherwise affect enforcement through the provision of that Uniform Code, or any other code.

Any building or structure which has been abandoned for a period in excess of two months, such that it constitutes an attractive nuisance or hazard to the public, or which has been so damaged by fire, wind, earthquake, flood, neglect or which has become so dilapidated or deteriorated as to:

a.

Become an attractive nuisance to children;

b.

Become a harbor for a person or persons appearing to engage or engaging in criminal activity; or

c.

Enable persons to resort thereto or utilize the property for the purpose of acts threatening safety of oneself, other persons, or the property.

Gasoline service stations which are not in operation and are boarded up, abandoned, or have removed dirt and other materials from the ground and left open excavations, even if the open excavations have been fenced, for a period of sixty days, unless the station has sought and received remediation plans from a local, state or federal agency relative to the management of hazardous or toxic waste and the actions are pursuant to the remediation plan.

Any building or structure which, because of obsolescence, dilapidated conditions, deterioration, damage, unsafe electrical wiring, unsafe gas connections, or other causes, is in such a condition as to constitute a fire hazard.

Where there is any unauthorized accumulation of lumber, junk, garbage, trash, debris, or salvage materials over and above the required receptacles or other approved containers, or otherwise in violation of this Code and which are visible from public or private property when the observer is standing in a normal or customary place from which to observe the alleged nuisance or which is found when observed during an inspection pursuant to a warrant. Junk consists of any cast-off, damaged, discarded, junked, obsolete, salvaged, scrapped, stored, unusable, worn-out, or wrecked object, thing or material composed in whole or in part of asphalt, brick, carbon, cement, plastic or other synthetic substance, fiberglass, metal, paper, piles of earth, plaster, plaster of paris, rubber, terra cotta, wool, cotton, cloth, canvas, organic matter or other substance.

Where there is abandoned or unused furniture, appliances, sinks, toilets, cabinets or other fixtures, or equipment stored in a place and which is visible from public or private property when the observer is standing in a normal or customary place from which to observe, or which is found when observed during an inspection pursuant to a warrant. This section does not prohibit authorized commercial storage and display of products and/or goods.

Where there is an attractive nuisance to children, including but not limited to, appliances, equipment, machinery, unenclosed pools or ponds, vehicles, uncapped wells or excavations which may be hazardous to children.

Notwithstanding any other provision of this Code addressing weeds and weed abatement, including but not limited to chapter 8.28, any property with dead, decayed, diseased or hazardous trees, weeds, overgrown vegetation, any of the items described herein by subsections 6., 7. or 8. above, which is likely to harbor rats, vermin or other pests, or protrudes over or across a city street or sidewalk so as to substantially obstruct the clear passage of vehicles or pedestrians, or which impairs safe sight distances for the operation of motor vehicles, or otherwise constitutes a blight to the neighborhood.

Vehicles which are parked upon or protrude over or across a city street, sidewalk, or right of way so as to substantially obstruct the clear passage of vehicles or pedestrians or impair safe sight distances for the operation of other vehicles.

Any vehicle parked or stored upon a yard or unimproved surface in a residentially zoned district.

Where any pooled oil, hazardous or toxic waste substances, or processed water are stored or accumulated in any unapproved container or are in violation of any federal, state, county or city statute; or when any such substance heretofore mentioned is allowed to flow onto a public right-of-way, storm drain, or onto or into any public improvement; or where excessive accumulation of grease or oil on paved surfaces, buildings, walls, fences or other structures has occurred.

Any unpermitted obstruction of or encroachment on public property, including, but not limited to, any public street, highway, sidewalk, curb, gutter, park, building or any other public improvement.

Any abandoned, inoperative, wrecked or dismantled vehicle as specified in chapter 10.23. Reference to those sections is not intended to, nor shall it reduce, supersede, diminish, or otherwise affect enforcement through the provision of those sections, or any other code or statute.

Notwithstanding any other provision of this Code addressing graffiti and graffiti abatement, including but not limited to chapter 9.09, any building or structure that is marked or defaced with spray paint, dye, or like substance in a manner commonly described as graffiti consistent with the term "graffiti" and which is visible from public or private property when the observer is standing in a normal or customary place from which to observe the alleged nuisance or which is found when observed during an inspection pursuant to a warrant. This chapter is not the only regulation regarding the enforcement of anti-graffiti regulations in the city. The city may pursue any other enforcement option as authorized by state law.

Any building or structure that is maintained with broken or cracked exterior windows or doors which are visible from public or private property when the observer is standing in a normal or customary place from which to observe the alleged nuisance or which is found when observed during an inspection pursuant to a warrant if the condition exists for more than thirty days.

Vacant lots not maintained free of weeds, trash, clutter, litter, junk, discarded vehicles or vehicle parts, or which have become a parking area resulting in dirt/mud tracking onto the public right-of-way.

The occurrence of excessive noise, as defined herein. "Excessive noise" is that noise or sound emanating from any property which is loud, unusual or unnecessary and which disturbs the peace or quiet of nearby property or which would cause annoyance or discomfort to a reasonable person of normal sensitivity in the area. Excessive noise includes the use or operation of any radio receiving set, television set, musical instrument, phonograph or stereo, or any other machine or device which produces or reproduces sound in such a manner as to unreasonably disturb the peace, quiet and comfort of neighboring residents.

Excessive noise also includes the sound, cry, bark or other vocal behavior of any animal or fowl that is kept or maintained, or allowed to be kept or maintained, on any property and which causes two or more persons from residences to complain.

Any condition recognized in law or in equity constituting a public nuisance.

Any violation of the State Housing Code. It is unlawful for any person(s) to occupy a dwelling in violation of the State Housing Code regarding the maximum number of occupants allowable for the dwelling.

Any violation of the city's zoning ordinance.

Any violation of a City Code provision which deems certain activities or conditions a public nuisance.

A violation of any provision of this Code wherein said violation is declared to be a public nuisance.

A violation of the city water conservation ordinance as set forth in chapter 13.17.

B.

In addition, the following special noise regulations shall constitute nuisances whenever they occur between the hours of 10:00 p.m. and 6:00 a.m. the next morning. This limitation shall extend until 8:00 a.m. on Sunday mornings.

Noise from Construction Activities. It is unlawful for any person within five hundred feet from any occupied residence to operate equipment or perform any out-of-doors construction or repair work on any building, structure or other building or repair project.

Noise from Commercial Activities. It is unlawful for any person within five hundred feet from any occupied residence to operate equipment, including, but not limited to parking lot cleaning and sweeping machines, leaf blowers, and mowing machines. This section does not prohibit the loading or unloading of commercial vehicles.

Noise from Vehicles. It is unlawful for any person to violate any section of the Cal. Vehicle Code as to the use of an automobile horn.

(Ord. No. 350, § 1, 1-26-2011)

A.

Declaration of Public Nuisance. Any property found to be maintained, used or allowed to be maintained or used in violation of the foregoing section is declared to be a public nuisance and shall be abated by rehabilitation, removal, demolition or repair pursuant to the procedures set forth herein. The declaration of a nuisance and the procedures for abatement set forth here 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.

B.

Interference with Abatement. Any person who obstructs, impedes, or interferes with any officer, employee, contractor, or authorized representative of the city, or with any person who owns or holds any estate or interest in any premises on which a nuisance exists and which must be abated under the provisions of this Code, whenever such officer, employee, contractor or authorized representative of the city, or person having an interest or estate in the premises is engaged in the work of abating any nuisance as required by the provisions of this Code, or in performing any necessary act preliminary to or incidental to such work authorized or directed pursuant to this Code, is guilty of a misdemeanor.

(Ord. No. 350, § 1, 1-26-2011)

Notwithstanding any other remedies available by law and except as otherwise provided in chapter 10.23 relating to the removal of inoperative, wrecked, dismantled or abandoned vehicles, whenever the city manager has inspected or caused to be inspected any property and has determined that there exists a public nuisance upon the property, the city manager may commence any of the following proceedings, to cause the abatement of the public nuisance:

A.

Issuance of a notice of violation;

B.

Issuance of a notice and order;

C.

Emergency abatement;

D.

Issuance of an administrative citation; and/or

E.

Request the city attorney to institute legal action including but not limited to injunctive or criminal action.

(Ord. No. 350, § 1, 1-26-2011)

A.

The city manager, in his or her discretion, may issue a notice of violation to the record owner and/or occupant of the property upon which a public nuisance exists. The issuance of a notice of violation is not a prerequisite to any other action, including issuance of a notice and order or administrative citation. The notice of violation is a non-appealable warning with direction to correct the violation. The notice of violation shall include all of the following:

Name of the property's record owner;

Street address of the property in violation;

The code sections in violation;

A description of the property's condition which violates the applicable codes;

A deadline or specific date to correct the violations listed in the notice of violation; and

Reference to the potential consequences should the property remain in violation after the expiration of the compliance deadline, including but not limited to: administrative remedies, criminal prosecution, civil action, administrative abatement, civil penalties, revocation of permits, and/or recordation of notice of violation.

B.

Service of a notice of violation may be served upon the record owner by regular first class mail or personal service.

(Ord. No. 350, § 1, 1-26-2011)

A.

Issuance. Whenever the city manager has inspected or caused to be inspected any property and has found and determined that conditions consisting a public nuisance exist thereon, the city manager may serve a notice and order. The notice and order shall contain:

The street address and/or assessor's parcel number, sufficient for identification of the property;

Reference to all code sections violated together with a brief description of the condition which constitutes the public nuisance;

Establish a reasonable time to secure any required permits, commence and complete required work permanently eliminate the public nuisance identified in the notice and order;

A statement that materials involved in public nuisances shall be disposed of in a legal manner;

A statement that if the abatement is not commenced and completed within the time specified, the city manager will proceed with further action, including administrative abatement at the expense of the responsible party, and/or administrative citation, and/or legal action;

A statement that any person having any interest in the property or in the materials located thereon has a right to appeal the notice and order, provided the appeal is made in accordance with the provisions of the city's administrative hearing procedures ordinance; and

That a "notice of pending administrative action" may be immediately filed against the property in the office of the county recorder of the County of Fresno. If the notice and order becomes final, and described in this article, the notice and order may be recorded against the property in the office of the county recorder.

B.

Service.

The notice and order, or any amended notice and order, shall be served upon the following parties:

a.

The record owner of the property; and

b.

Any person, entity or corporation occupying or in apparent control of the property.

Service shall be completed in the following manner:

a.

Personal service;

b.

Posting the notice conspicuously on or in front of the property; or

c.

By regular mail.

Proof of service of the notice and order shall be documented at the time of service by a declaration under penalty of perjury executed by the person effecting service, declaring the time and manner in which the service was made.

C.

Recording. At the time the notice and order is served, the city manager may file in the office of the county recorder, a notice of pending administrative action. If the notice and order becomes final, the city manager shall file in the office of the county recorder a certificate legally describing the property and certifying that a public nuisance exists on the property and the owner has been so notified. Whenever the corrections ordered shall have been completed so that there no longer exists a public nuisance and the property described in the certificate; or the notice and order is rescinded by the third party neutral appointed by the city manager upon appeal; or whenever the city abates the nuisance and the abatement costs have been paid, the city manager shall file a new certificate with the County Recorder that the nuisance has been abated.

(Ord. No. 350, § 1, 1-26-2011)

A.

Whenever the city manager determines that a public nuisance is an imminent threat to life, health, safety or adjacent property such that is requires immediate correction or elimination, the city manager may remove or otherwise abate the public nuisance without prior notice to the responsible person. The city manager

shall pursue only the minimum level of correction or abatement as necessary to eliminate the immediacy of the nuisance, including but not limited to the following actions:

Remove tall weeds and grass or other material creating the imminent threat to life, health, safety or adjacent property;

Physically remove or eliminate a condition or conditions creating the imminent threat to life, health, safety, or adjacent property;

Suspend a particular use of property creating the imminent threat to life, health, safety or adjacent property;

Post the premises as unsafe or dangerous with an order against occupancy and/or use; and/or

Take any other action appropriate under the circumstances.

B.

Upon completion of the emergency abatement, the city manager shall notify the record owner of the property and the occupant if any, of the following:

The property location;

The condition of the property;

The violation;

Any action taken to summarily abate the immediate threat to life, health, safety or adjacent property and the costs incurred therein; and

The right to appeal the action taken by the city manager, in accordance with the appropriate provisions of city law. If no appeal is filed within the time prescribed, the action of the city manager shall be final.

C.

The costs incurred by the city's emergency abatement may be recovered by the city as authorized by this Code.

(Ord. No. 350, § 1, 1-26-2011)

Any person entitled to service under subsection 7.07.080B. may appeal from any notice and order to the city manager. A third party neutral hearing officer shall be appointed pursuant to relevant provisions of this Code. The hearing shall be conducted in accordance with applicable provisions of this Code. If no appeal is filed within the time prescribed, the action of the city manager shall be final.

(Ord. No. 350, § 1, 1-26-2011)

Upon receipt of a written request from any person required to comply with the notice and order or final order, the city manager, in his or her discretion, may grant an extension of time within which to complete the abatement, if the city manager determines that such an extension of time will not create or perpetuate a situation imminently dangerous to life or property. The city manager shall have the authority to place reasonable conditions on any extensions he or she may grant pursuant to this section.

(Ord. No. 350, § 1, 1-26-2011)

A.

After any notice and order issued under this chapter shall have become a final order, either by decision of the hearing officer affirming or modifying the same, or by failure to file an appeal within the time prescribed herein, no person or entity shall fail, neglect, or refuse to obey any such order. Any person or entity who fails to comply with any such order is guilty of a misdemeanor.

B.

If, after the notice and order of the city manager made pursuant to this chapter has become a final order, as described in subsection A., and the responsible party has failed to timely comply with the final order, the city manager may:

Issue administrative citations as may be authorized under this Code;

Request the city attorney to exercise his or her discretion in the alternative, or cumulatively, to institute court action;

Proceed with administrative abatement by removing the public nuisance at the expense of the responsible party;

Except where abatement will require the demolition or removal of a structure, the city manager may proceed with administrative abatement by removing the public nuisance at the expense of the responsible party;

Where abatement will require the demolition or removal of a structure, the city or its agent shall not abate the nuisance without first obtaining an order from the hearing officer. An order approving abatement in such circumstances may be obtained either:

a.

After an appeal of the notice and order, if the notice and order is appealed to the hearing officer and the hearing officer so grants; or

b.

By the city scheduling and noticing a nuisance abatement hearing before the hearing officer.

Notice of a nuisance abatement hearing shall be served in the same manner as the notice and order. The notice shall state the time, place and location for hearing, how the city intends to abate the nuisance, the estimated cost of abatement, including administrative time, and that the abatement will be done at the expense of the owner. The hearing shall be set no earlier than ten calendar days from the date of service. At the time and place set for hearing, the city shall establish the existence of the condition constituting a public nuisance as defined in this chapter, that a notice and order was properly served on the person(s) responsible, that the person(s) have failed to timely abate the nuisance, and that notice of the abatement hearing was properly served on the person(s) responsible. The hearing officer shall make findings regarding the existence of the nuisance, the proper service of the notice and order and the notice of abatement hearing and shall confirm or deny the request to abate.

(Ord. No. 350, § 1, 1-26-2011)

A.

Abatement of the nuisance may in the discretion of the city manager be performed by city forces or by a contractor retained pursuant to the provisions of this Code.

B.

The city manager may enter upon private property to abate the nuisance as authorized by section 7.07.030. No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the city whenever the person is engaged in the work of abatement, pursuant to the provisions of this chapter, or in performing any necessary act preliminary to or incidental to such work or authorized or directed pursuant to this chapter.

C.

No officer, agent, or employee of the city shall be personally liable for any damage incurred or alleged to be incurred as a result of any act required, permitted or authorized to be done or performed in the discharge of his or her duties pursuant to this chapter.

D.

Upon completion of the abatement, the costs of abatement may be collected as authorized by this Code or state law.

(Ord. No. 350, § 1, 1-26-2011)

The provisions of this chapter shall in no way adversely affect the right of the owner, lessee or occupant of any such lot to recover all costs and expenses required by this chapter from any person causing the nuisance.

(Ord. No. 350, § 1, 1-26-2011)

A.

The owner or other person having charge or control of any building or premises, who maintains any public nuisance defined in this chapter, or who violates any order of abatement served as provided in this chapter is guilty of a misdemeanor. Each day the violation is committed or permitted to continue after notification to cease and desist shall constitute a separate offense and each subsequent violation shall, upon conviction, be punishable as prescribed by law.

B.

Any occupant or lessee in possession of any 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. Each day the violation is committed or permitted to continue after notification to cease and desist shall constitute a separate offense and each subsequent violation shall, upon conviction, be punished as prescribed by law.

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. Each day the

violation is committed or permitted to continue after notification to cease and desist shall constitute a separate offense and each subsequent violation shall, upon conviction, be punishable as prescribed by law.

(Ord. No. 350, § 1, 1-26-2011)