Article 2 — Appeals and Abatement

Any person who disputes an administrative order or determination contained in a "Declaration of Public Nuisance and Notice of Intent to Abate," may obtain review of the administrative order or determination before the Public Nuisance Hearing Officer in the manner set forth in this article.

(§ 8, Ord. 687-C.S., eff. June 28, 2001)

(a)

All appeal hearings properly requested pursuant to the provisions of this chapter shall be heard before an unbiased Public Nuisance Hearing Officer selected in accordance with the requirements of this chapter.

(b)

The City Manager shall prepare and maintain a current list, updated monthly, of approved Public Nuisance Hearings Officer applicants, in the manner required by this section and its subparts, with all such approved applicants meeting the following minimum criteria:

(1)

The applicant must be an attorney currently licensed with the State Bar;

(2)

The applicant must have at least three (3) years experience as an active member of the State Bar of California;

(3)

The applicant must bill at a rate competitive and consistent with current market rates for such services.

(c)

The City Manager shall certify the list of approved applicants by the following method:

(1)

He or she shall include in the list all qualified, unbiased applicants meeting the requirements of this section and its subparts;

(2)

He or she shall list the approved applicants in numerical order of acceptance, and shall not change the order except to add newly approved applicants to the bottom of the list from time to time as needed;

(3)

He or she shall post the approved list at City Hall in a location accessible to the public, after which time any member of the public may seek to demonstrate in writing to the City Manager that any approved applicant is biased or otherwise unacceptable. The posted list shall include a statement describing the right to submit a written challenge. The City Manager shall review any such challenges within a reasonable time period, not to exceed thirty (30) days, and shall make a written determination whether on the basis of the challenge the individual should be eliminated from the approved list;

(d)

Approved Public Nuisance Hearing Officers shall thereafter be appointed to hearings as needed by the City Manager or designee, and shall be selected in numerical order, beginning with the person whose name is listed immediately following the name of the hearing officer who most recently served;

(e)

In the event no hearing officer from the approved list is available, or in the event of a cancellation within twenty-four hours of the scheduled hearing, or in the event there are no qualified applicants yet listed with the City, the City Manager may select an alternate hearing officer from the list in order of placement, or from any organization which customarily provides hearing officers.

(§ 8, Ord. 687-C.S., eff. June 28, 2001)

(a)

The owner or tenant receiving an administrative order contained in a "Declaration of Public Nuisance and Notice of Intent to Abate," may request an appeal hearing before the Public Nuisance Hearing Officer by filing his or her request with the City Clerk within ten (10) calendar days of the date of service of the administrative order. The request shall contain:

(1)

A specific identification of the subject property;

(2)

The names and addresses of all parties requesting the hearing;

(3)

A statement of the parties legal interest in the subject property;

(4)

A statement in ordinary and concise language of the specific order or action protested and the grounds for the hearing, together with all material facts in support thereof;

(5)

The date and signature of all requesting parties; and

(6)

The verification of at least one party as to the truth of the matters stated in the request.

(b)

As soon as practicable after receiving the request, the City Clerk shall set a date for the Public Nuisance Hearing Officer to hear the appeal, which date shall be not less than ten (10) calendar days nor more than forty-five (45) calendar days from the date the appeal was received. The City Clerk shall give each party written notice of the time and place of the hearing at least ten (10) calendar days prior to the date of the hearing, either by causing a copy of the notice to be delivered to the party personally, or by mailing a copy thereof, postage prepaid, addressed to each appealing party at the address('s) shown on the request. Continuances of the hearing may be granted by the Public Nuisance Hearing Officer on request of the property owner or tenant for good cause shown, or upon request of the City Manager or his or her designee for good cause shown, or on the Public Nuisance Hearing Officer's own motion.

(c)

The appeal hearing shall be heard de novo, and all parties will be permitted to introduce all evidence or testimony as permitted in this chapter.

(d)

At the place and time set forth in the notification of appeal hearing, the Public Nuisance Hearing Officer shall proceed to hear the testimony of the appealing parties and/or their witnesses, and thereafter, shall hear the testimony Code Enforcement Officer or other official issuing the "Declaration of Nuisance and Notice of Intent to Abate," and other competent persons respecting the condition of the premises declared to constitute a nuisance, the estimated cost of abatement, and any other relevant information.

(e)

The Public Nuisance Hearing Officer shall administer the oath or affirmation.

(f)

Evidence Rules- although formal rules of evidence and discovery will not apply to the appeal hearing, each party shall have the following rights among others:

(1)

To call and examine witnesses on any matter relevant to the condition of the premises constituting a nuisance;

(2)

To introduce documentary and physical evidence;

(3)

To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;

(4)

To impeach any witness, regardless of which party first called that witness to testify;

(5)

To rebut the evidence against him or her;

(6)

To represent himself or herself or to be represented by anyone of his or her choice.

(g)

If a party does not proficiently speak or understand the English language, an interpreter may be utilized, at the party's own expense, to translate for the party. An interpreter shall not have had and shall not have any involvement in the proceeding.

(h)

The proceedings at the hearing shall be recorded by a tape recorder. Either party may provide a certified shorthand or stenographic reporter to maintain a written record of the proceedings at the party's own expense.

(i)

When required, preparation of a record of the proceeding shall be governed by California Code of Civil Procedure Section 1094.6, as presently written or hereinafter amended.

(§ 8, Ord. 687-C.S., eff. June 28, 2001)

(a)

Within a reasonable time, not to exceed fifteen (15) calendar days, following the conclusion of the hearing, the Public Nuisance Hearing Officer shall make findings regarding the sufficiency of the City's prior determination with respect to each violation. The findings shall be supported by any oral and/or documentary evidence received at the hearing. The Hearing Officer shall issue his or her determination as follows:

(1)

If the Public Nuisance Hearing Officer finds by a preponderance of the evidence that no violation has occurred or that the violation was corrected within the time period specified in the "Declaration of Nuisance and Notice of Intent to Abate," the Public Nuisance Hearing Officer shall issue a written finding of those facts.

(2)

If the Public Nuisance Hearing Officer finds by a preponderance of the evidence that a violation occurred which was not corrected within the time period specified in the "Declaration of Nuisance and Notice of Intent to Abate," the Hearing Officer shall issue a written administrative order which:

(a)

Affirms the decision(s) and order(s) of the City Manager or his or her designees; or,

(b)

Modifies the decision(s) and order(s) of the City Manager or his or her designees.

(3)

In the event the prior determination is upheld in whole or in part, the Public Nuisance Hearing Officer's written administrative order shall set forth the time within which all specified corrective work shall be completed, which time shall in no event be less than thirty (30) days from the date of service of the written order.

(4)

In addition to the findings of fact required by this chapter, the written "Order of the Public Nuisance Hearing Officer and Notice of Intent to Abate" shall contain information regarding judicial review, potential abatement costs, and potential destruction of materials abated without regard to salvage value. To comport with the requirements of this Section, said Order shall be written in a format similar to, or consistent with, the following:

ORDER OF THE PUBLIC NUISANCE HEARING OFFICER AND NOTICE OF INTENT TO ABATE

Notice is hereby given that based upon the evidence and testimony presented at the appeal hearing on [date] at the property known and designated by the street address of [street address], and more particularly described as [legal description or other information], the Public Nuisance Hearing Officer has made the following findings of fact:

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Based upon these findings and the evidence and testimony presented, violations of Section(s) [ ] of the Pacifica Municipal Code exist, and therefore the determination of the City that a public nuisance exists thereon which is subject to abatement pursuant to the procedures set forth in Pacifica Municipal Code, is upheld [as issued] or [with the following modifications].

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YOU ARE HEREBY DIRECTED TO ABATE THE NUISANCE within [ ] calendar days of the date of mailing of this notice by performing the following corrective action:

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You are further notified that if the violations are not abated within the time specified, such nuisance may be abated by municipal authorities, or their designees and contractors, in which case all costs of the abatement, including, but not limited to, those listed in Article 3 of Chapter 25 of the Pacifica Municipal Code, shall be assessed against such property as a lien, or as a special assessment, and may collected by any means available under law.

You are further notified that in the event of abatement by City forces, materials abated shall be removed and destroyed, without regard to salvage value.

This decision is the final determination of the City of Pacifica.

Judicial review of the Public Nuisance Hearing Officer's order is subject to the time limits set forth in Code of Civil Procedure Section 1094.6.

Dated: This _______ day of ____, 20.

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City Manager, or Designee

(5)

The decision and order of the Public Nuisance Hearing Officer shall be final.

(§ 8, Ord. 687-C.S., eff. June 28, 2001)

Judicial review of the Public Nuisance Hearing Officer's order is subject to the time limits set forth in Code of Civil Procedure Section 1094.6.

(§ 8, Ord. 687-C.S., eff. June 28, 2001)

In the event the prior determination and order of the City is upheld in whole or in part, a copy of the written findings and order of the Public Nuisance Hearing Officer shall be served upon the owner(s) and tenant(s) of the property within fifteen (15) calendar days of the conclusion of the hearing by either by causing a copy of the notice to be delivered to the party personally, or by mailing a copy thereof, postage prepaid, addressed to each appealing party at the address('s) shown on the request in accordance with the provisions of this Chapter. Upon abatement in full by the owner and payment to the City of all outstanding costs, if any, the proceedings hereunder shall terminate.

(§ 8, Ord. 687-C.S., eff. June 28, 2001)

(a)

If such nuisance is not abated as ordered within the abatement period, the City Manager, or his/her designee may cause the same to be abated by city employees or private contract. The City Manager, or his/her designee is expressly authorized to use all legal means to enter upon said property for this purpose.

(b)

No person shall obstruct, impede, or interfere with the City Manager, or his/her designed, or his/her representative, or with any person who owns, or holds any interest or estate in, any property in the performance of any necessary act, preliminary to or incidental to, carrying out an abatement order issued pursuant to this chapter.

(c)

The City Manager, or his/her designee is expressly authorized to contract with or retain persons, contractors or franchisees to provide services necessary to effectuate any abatement action pursued under this chapter. In such an event, any such person, contractor or franchisee shall be authorized to use all legal means to enter upon private or public property to remove or cause the removal of the nuisance pursuant to this chapter. Any such materials removed shall be lawfully disposed of and destroyed without regard to salvage value. Any such materials removed shall be lawfully disposed of and destroyed without regard to salvage value.

(§ 8, Ord. 687-C.S., eff. June 28, 2001)