Rancho Santa Margarita Municipal Code Ch. 8.03 Administrative Public Nuisance Abatement Procedures, Appeals and Cost…

Footnotes:

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Editor's note— See editor's note to Title 8 pertaining to the replacement of this Chapter.

State Law reference— Nuisance abatement, Government Code § 38771 et seq.; abatement of nuisances by public agencies, Civil Code § 3494.; civil actions to abate nuisances, Code of Civil Procedure § 731.

(a) An Enforcement Officer may use all lawful means to enter upon any premises in the City for purposes of inspecting the premises for a public nuisance and/or for the removal of a public nuisance from the premises.

(b) If the owner or any occupant of a premises refuses to allow the Enforcement Officer to enter onto the premises for inspection or abatement of a public nuisance, or otherwise fails to respond to a request from the Enforcement Officer for consent to enter onto the premises for purposes of nuisance inspection and/or abatement, the Enforcement Officer shall apply to a court of competent jurisdiction for a warrant authorizing entry onto such premises for purposes of performing an inspection or abatement of a public nuisance.

(Ord. No. 17-05, § 1, 10-11-2017)

(a) Whenever an Enforcement Officer declares or finds that any nuisance activity or condition is being maintained or carried on at any premises in the City in violation of the provisions of this Title, the Enforcement Officer shall give written "notice of abatement" to any and all responsible persons or parties setting forth a brief description of the activity or condition constituting the nuisance as well as the section(s) of this Title, or other relevant federal, state, or local law, that are being violated.

(b) The notice shall set forth a reasonable time limit not to exceed 30 days for correcting or abating the nuisance and may also set forth:

(1) Suggested methods of correction or abatement and the fact that the City will take steps to abate the nuisance if the person fails to do so; and

(2) That administrative penalties and/or administrative costs will be assessed against the responsible person in the event the nuisance activity or condition is not corrected or abated within the time frame established by the notice for correcting or abating the nuisance.

(c) An Enforcement Officer may grant a reasonable extension of time to abate a nuisance if, in his or her opinion, good cause for an extension exists.

(Ord. No. 17-05, § 1, 10-11-2017)

Any person who receives a notice of abatement, or any person with a legal or equitable interest in a premises that is the subject of a notice of abatement, shall have the right to appeal the notice of abatement. Appeals of any notice of abatement shall be conducted pursuant to the provisions of this Section.

(a) Any request for an appeal of a notice of abatement must be made, in writing, to the City Manager within ten calendar days of the date of service of the notice of abatement, and may request a hearing on the question(s) of: (1) whether a nuisance activity or condition in fact exists; (2) whether the person to whom the notice was directed is responsible for the creation or maintenance of such nuisance; and/or (3) whether the Enforcement Officer has provided sufficient time to correct or abate the nuisance condition or activity.

(b) Upon receipt of a timely written request for an appeal, the City Manager shall establish the date, time and place of the hearing and shall so notify the applicant in writing. The hearing shall be set for a date not more than 60 calendar days from the date of receipt of the written request for an appeal. Any order of abatement contained within a notice of abatement shall be stayed pending the outcome of the appeal. Notwithstanding the foregoing, for any public nuisance condition or activity that is expressly identified by the notice of abatement as constituting an immediate danger to life, limb, or property, the abatement order shall not be stayed pending the outcome of appeal and must be abated immediately or as otherwise stated in the notice of abatement.

(c) The appellant shall be entitled to a copy of any documents or evidence upon which the Enforcement Officer's decision to issue a notice of abatement was based.

(d) Written notice of the date, time and location scheduled for the appeal as set forth in Subsection (b) of this Section, and the documentation and evidence provided for in Subsection (c) of this Section, shall be mailed at least ten calendar days prior to the date of the hearing, by U.S. Mail, with proof of service attached, addressed to the address listed on the Notice of Abatement, or the address given in the request for appeal, as the case may be.

(e) Failure to submit a timely written request for an appeal as provided for in this Section shall constitute a failure to exhaust available administrative remedies, and shall be deemed a conclusive admission that: (1) the nuisance activity or condition described in the notice of abatement does or did exist, (2) that the person(s) to whom the notice was directed is, in fact, the person(s) responsible for creating or maintaining the nuisance condition or activity, and (3) that the time specified in the notice for the correction or abatement of the nuisance is, in fact, reasonable under the circumstances.

(f) The hearing provided for in this Section shall be conducted by a City-appointed Administrative Hearing Officer. At the time stated in the notice of hearing, the Hearing Officer shall hear and consider all relevant evidence, including, but not limited to, testimony from the appellant, owners, City personnel, neighbors, witnesses or other interested parties, and may consider staff reports or other written materials relative to the matter. The hearing may be continued from time to time as appropriate. Proof of the existence of a nuisance condition or activity must be by a preponderance of the evidence, and the burden of proof on this issue is upon the City.

(g) The following rules of evidence shall apply to administrative hearings conducted pursuant to this Chapter:

(1) The notice of abatement shall be received by the hearing officer and shall be made a part of the record on appeal. The notice of abatement shall constitute prima facie evidence of the nuisance condition and of the facts stated in the notice of abatement.

(2) Oral evidence shall be taken only under oath or affirmation. The Hearing Officer shall have authority to administer oaths, and to receive and rule on admissibility of evidence.

(3) Each party shall have the right to call and examine witnesses, to introduce exhibits, and to cross-examine opposing witnesses who have testified under direct examination. The Hearing Officer may call and examine any witness.

(4) Technical rules relating to evidence and witnesses shall not apply to administrative hearings provided for in this Chapter. Any relevant evidence may be admitted if it is material and is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay testimony may be admissible and used for the purpose of supplementing or explaining any evidence given in direct examination, but shall not be sufficient in itself to support a finding unless such testimony would be admissible over objection in civil actions. The rules of privilege shall be applicable to the extent they are now, or are hereafter permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony shall be excluded.

(h) At the conclusion of the hearing, the Hearing Officer may do any of the following: (1) uphold the notice of abatement as issued by the Enforcement Officer, (2) deem the notice of abatement as invalid on the grounds that the evidence presented did not establish, by a preponderance of the evidence, that the nuisance condition or activity described in the notice of abatement does or did exist, and/or that the person(s) to whom the notice to abate was directed was responsible for the nuisance activity or condition, or (3) extend the time for compliance with the notice of abatement. The decision of the Hearing Officer shall be final. Written notice of the Hearing Officer's findings and decision shall be given within ten calendar days of the conclusion of the appeal hearing, and said notice shall state clearly and concisely the basis for the Hearing Officer's findings with respect to the existence of the nuisance activity or condition. The notice of decision shall further state that unless the responsible person or party shall cause the abatement of the nuisance activity or condition, pursuant to the orders contained in the notice of abatement or as amended by the decision of the Hearing Officer, the nuisance shall be abated, if appropriate, by the City at the expense of the owner or responsible person(s), and that administrative penalties and/or costs will be assessed against the person(s) for noncompliance with the order as set forth in this Code.

(Ord. No. 17-05, § 1, 10-11-2017)

Upon the failure of any person to abate any nuisance as required by this Title, the Enforcement Officer may, subject to the requirements of Section 8.03.010, enter onto the premises upon which the nuisance exists for purposes of abating the nuisance, which abatement may be performed by City forces or by private contractor retained by the City.

(Ord. No. 17-05, § 1, 10-11-2017)

(a) Whenever the Enforcement Officer is required to cause the abatement of a public nuisance in accordance with the provisions of this Title, payment of the cost of abatement shall be assessed to the responsible party and shall reflect the actual costs incurred by the City in effecting the abatement.

(b) The Enforcement Officer shall keep an itemized account of any cost incurred by the City in abating a nuisance, including but not limited to cost incurred to perform any abatement work, costs to the City for preparation of notices, specifications and contracts, costs of inspection of the abatement work, costs of printing and mailing as required under this Title, and the costs of any attorney's fees incurred by the City associated with the public nuisance activity.

(c) Within 180 calendar days of the abatement of the nuisance, the Enforcement Officer shall cause to be prepared an itemized statement of costs which shall be provided to the responsible party or parties and, if different from the responsible party or parties, to the owner of the premises (as identified in the most recent county assessor or county recorder's records), together with a notice of the time and place when a hearing will be held by the City Council to determine the appropriateness of the costs assessed. The notice described in this Subsection shall be sent via certified mail and first class mail.

(d) At the time fixed for the hearing concerning the appropriateness of the abatement costs assessed, the City Council shall hear and consider all relevant evidence, including, but not limited to, testimony from the person assessed, City personnel or other interested parties, and may consider staff reports or other written materials relevant to the matter. Proof of the appropriateness of the costs or penalties assessed must be by a preponderance of the evidence and the City shall have the burden of proof on this issue. At the conclusion of the hearing, the City Council shall confirm, correct, or modify the amount of the costs assessed as deemed appropriate by the City Council after consideration of the evidence, and shall adopt a resolution making its findings and determinations with respect to the amounts to be assessed. The amounts so approved by the City Council shall be a special assessment on the property upon which the nuisance activity or condition existed.

(e) Within five calendar days of the adoption of the City Council's resolution regarding the assessment of costs, the Enforcement Officer shall provide written notice to the responsible party or parties of the abatement costs assessed as confirmed, corrected, or modified by the City Council, and shall demand that said costs be paid within ten calendar days of the date of the notice.

(Ord. No. 17-05, § 1, 10-11-2017)

If any costs assessed pursuant to Section 8.03.050 are not paid within ten calendar days of the notice required by Section 8.03.050(e), the costs shall constitute a special assessment against the parcel of land to which it relates.

(a) Recordation of notice. A notice of the special assessment shall be recorded in the Orange County Clerk-Recorder's Office.

(b) Manner of collection. After recordation, and pursuant to Government Code § 38773.5, the special assessment may 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 the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, before the date on which the first installment of the taxes would become delinquent, the cost of abatement shall not result in a lien against the real property, but instead shall be transferred to the unsecured roll for collection.

(c) Form of notice. The notice of special assessment shall be in a form substantially as follows:

NOTICE OF SPECIAL ASSESSMENT FOR NUISANCE ABATEMENT

(Claim of the City of Rancho Santa Margarita)

In compliance with the provisions of Title 8 of the Rancho Santa Margarita Municipal Code, the City Manager of the City of Rancho Santa Margarita, on or about the [DAY] day of [MONTH], [YEAR], did cause the premises hereinafter described to be rehabilitated or the structure(s) or improvement(s) on the premises to be demolished or repaired in order to abate a public nuisance on the real property. The abatement was conducted in compliance with a Notice of Abatement dated the [DAY] day of [MONTH], [YEAR]. The City Council of the City of Rancho Santa Margarita did, on the [DAY] day of [MONTH], [YEAR], assess the cost of the abatement, demolition, rehabilitation, or repair upon the real property, and the same has not been paid nor has any part thereof. Therefore, the City of Rancho Santa Margarita does hereby declare the costs of the abatement, demolition, rehabilitation, or repair in the amount so assessed, to wit, the sum of [DOLLAR AMOUNT] dollars ($[ ]), to be a special assessment against the real property.

The special assessment 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 the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. If delinquent assessments remain unpaid, the property may be sold after three (3) years by the tax collector. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.

However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, before the date on which the first installment of the taxes would become delinquent, the cost of abatement shall not result in a lien against the real property, but instead shall be transferred to the unsecured roll for collection.

The real property upon which the special assessment is levied, is that certain parcel of land located in the City of Rancho Santa Margarita, County of Orange, State of California, commonly known as [STREET ADDRESS], and more particularly described as follows:

[Legal description, including assessor's parcel number]

The owner of record of the parcel of land is:

[Name and address of recorded owner of the parcel]

(Ord. No. 17-05, § 1, 10-11-2017)

(a) Notwithstanding any other provisions of this Title with respect to the abatement of public nuisances, whenever the Enforcement Officer determines that a premises, a building, or a structure is structurally unsafe, constitutes a fire hazard, or otherwise creates an immediate danger to human life, he or she may, without observing the provisions of this Chapter with respect to abatement procedures, immediately and forthwith abate the existing public nuisance.

(b) Any abatement pursuant to this Section shall be limited to the actions necessary to neutralize the immediate danger only. Within five calendar days of any emergency abatement conducted pursuant to this Section, the Enforcement Officer shall notify the responsible person(s) of the nature of the emergency abatement undertaken and the grounds therefore. The notice required by this Subsection shall comply with Section 8.01.050 and shall notify the responsible person(s) of the right to a post-abatement hearing upon written request.

(c) Any person who receives a post-abatement notice as described in Subsection (b) of this Section, or any person with a legal or equitable interest in a premises that is the subject of such a post-abatement notice, may request a post-abatement hearing. Any request for a post-abatement hearing must be made, in writing, to the City Manager within ten calendar days of the date of service of the post-abatement notice. Upon receipt of a timely written request, a post-abatement hearing shall be provided to the responsible person(s), which hearing shall be conducted in the manner described in Section 8.03.030, except that in a post-abatement hearing, the Hearing Officer shall also decide whether the City has established, by a preponderance of evidence, that emergency abatement was necessary under the circumstances.

(d) Failure to submit a timely written request for post-abatement hearing as provided for in this Section shall constitute a failure to exhaust available administrative remedies, and shall be deemed a conclusive admission that: (1) the nuisance activity or condition described in the post-abatement notice did exist, (2) that the person(s) to whom the notice was directed is/are, in fact, the person(s) responsible for creating or maintaining the nuisance condition or activity, and (3) that emergency abatement was necessary under the circumstances.

(e) The required hearing regarding assessment of costs associated with any emergency abatement shall be conducted in accordance with the provisions of this Title.

(Ord. No. 17-05, § 1, 10-11-2017)