Chapter 17.02

GENERAL PROVISIONS - ABATEMENT OF NUISANCE ON PRIVATE PROPERTY

Parts:

• 1 General Abatement Provisions

• 2 Notice and Hearing

• 3 Abatement Actions Performed by City

• 4 Cost Recovery

• 5 Restriction From Use or Occupancy

• 6 Joint or Common Ownership

Part 1

prohibited within the City of San José and no person shall create or participate in the creation or maintenance of such a nuisance. (Ord. 21971.)

Whenever the city, pursuant to this title, takes any action to abate a nuisance or requires any person to abate any nuisance existing on private property, the procedures set forth in this chapter may be utilized, unless such use is specifically prohibited.

For the purpose of this chapter, property shall include parcels of land, and/or any building, structure or portion thereof. (Ord. 21971.)

GENERAL ABATEMENT PROVISIONS

Sections:

• 17.02.020 Applicability.

• 17.02.030 Property subject to inspection.

• 17.02.040 Entry for inspection authorized.

• 17.02.050 Obstruction or interference with work prohibited.

• 17.02.060 Time within which to commence abatement work.

• 17.02.070 Failure to comply - Abatement action by city authorized.

• 17.02.080 Extension of time permitted.

• 17.02.090 Injunctive relief and treble costs.

Any thing or condition, including but not limited to violations of this Code or state law, which threatens injury or damage to the health, safety, welfare or property of members of the public, which obstructs the free use of property of others or interferes with the comfortable enjoyment of life or property is a nuisance. Any thing or condition, including but not limited to violations of this Code or state law, which fails to provide minimum standards of safety and habitability in housing for any citizen of the city is a nuisance. Such nuisances are

Property is subject to inspection under this chapter whenever:

• A. There is reason to believe that a condition exists on such property which violates a provision of this Code, or which makes a property unsafe, dangerous, hazardous or a nuisance; or

• B. Such inspection is deemed necessary by any enforcement officer to carry out the provisions of this Code; or

• C. There is any abatement action being performed on any property pursuant to a provision of this Code or any order issued pursuant thereto requiring such action; or

• D. Such an inspection is conducted to determine if there has been completion of an abatement action pursuant to any abatement order.

(Ord. 21971.)

• A. Whenever it is necessary to make an inspection of property to investigate or enforce any of the provisions of this Code, any official authorized by the city to conduct such inspections may enter such property at all reasonable times to inspect the same provided that:

  1. If such property is occupied, the official shall first present proper credentials and request entry;

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§ 17.02.040

2. If such property is unoccupied, except in emergency circumstances, the official shall make a reasonable effort to contact the owner or other persons having charge or control of the property and request entry;

3. If such entry is refused or the owner or other persons having charge or control of said building or structure cannot be contacted, the official seeking entry shall have recourse to every remedy provided by law to secure entry.

• B. All inspections authorized for the purpose of investigation or enforcing the provisions of this Code shall be at the discretion of the city and nothing in this chapter shall be construed as requiring the city to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in this chapter shall be construed to hold the city responsible for any damage to persons or property by reason of making an inadequate or negligent inspection or by reason of any failure to make an inspection or reinspection.

• (Ord. 21971.)

No person shall obstruct, impede or interfere or cause another to obstruct, impede or interfere with any person who is engaged in abatement actions performed pursuant to the provisions of this Code or who is directing or performing any act necessary or incidental to such abatement. (Ord. 21971.)

• A. Whenever an abatement order is issued, the work shall commence as soon as reasonably possible under the circumstances.

  1. When an abatement action is performed due to imminently dangerous conditions, the work shall commence without delay.

  2. If no city permits are required for the abatement action and the conditions are not imminently dangerous, unless otherwise specified in the order, the abatement actions shall commence no later than fifteen days from the date of the decision of the commission designated pursuant to Section 17.02.160.

  3. If city permits are required for the abatement action, unless the period of time is extended by the city manager, a complete application for each such permit shall be submitted no later than fifteen days from the date of the decision of the designated commission. Work shall begin within thirty days of the issuance of the permit.

• B. The abatement actions shall be completed within such time as the city manager shall determine is reasonable under the circumstances.

• (Ord. 21971.)

Whenever there is a failure to comply with an abatement notice or order within the time specified in Section 17.02.060 or within the later time specified by the decision of the commission, the city manager is authorized to:

• A. Cause the property to be restricted from use or occupancy; and/or

• B. Cause the conditions which require abatement actions to be repaired, demolished or abated to the extent necessary to remedy the conditions causing the nuisance.

• (Ord. 21971.)

Any person, firm or corporation required to take abatement action pursuant to this Code may apply to the city manager for an extension of time in order to comply. The city manager may grant an extension of time, if the city manager, at his discretion, determines that such an extension of time is reasonable under the circumstances. The city man-

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§ 17.02.100

ager may require a written agreement by such person, firm or corporation that the order will be complied with, as a condition for such extension. The extension of time to complete an abatement action will not extend the time for any hearing hereunder unless the city manager expressly so states. (Ord. 21971.)

• A. Any use of, maintenance of or action taken with regard to any property which is contrary to the provisions of this chapter or any condition of any permit required by this title shall be, and is hereby declared to be unlawful and a public nuisance. As an alternative to any other remedy, the city may apply to any court having jurisdiction for any relief as will abate or remove such nuisance and restrain any person, firm or corporation from using, maintaining or taking any action regarding any property, contrary to the provisions of this title.

• B. This title may be enforced by an injunction issued by the superior court upon any suit by the city or by the owner or occupant of any property affected by any such violation or threatened violation.

• C. Upon entry of a second or subsequent civil or criminal judgment within a two-year period which finds that the owner of property is responsible for a condition that may be abated in accordance with this chapter, except for conditions abated pursuant to Section 17980 of the California Health and Safety Code, the court may order the owner to pay trebled costs of the abatement.

• (Ords. 21971, 23832.)

Part 2

NOTICE AND HEARING

Sections:

• 17.02.120 Recording of abatement order certificates.

• 17.02.140 Notice or order - Method of service.

Whenever it is determined that summary abatement action by the city is necessary due to any condition which is imminently dangerous, the city manager shall issue a notice of summary abatement directed to the record owner(s) of the property, which has been determined to need summary abatement action. The notice shall contain:

• A. The street address and a legal description sufficient for identification of the location of the property.

• B. A statement that the property was found to be imminently dangerous, with a brief and concise description of the conditions found to render the property imminently dangerous in accordance with the provisions of this title.

• C. A description of the summary abatement actions which were required and performed by the city to abate the imminent danger.

• D. Statements advising that a charge will be assessed for the work that was performed and a description of the cost recovery procedure of Part 4 of Chapter 17.02.

• E. An order specifying what additional actions, if any, are required to be taken by those persons receiving this notice and the time within which the actions must be

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§ 17.02.100

commenced and completed. Such order shall include the information required in Section 17.02.110.

• F. Statements advising:

  1. That any person having any record title or legal interest in the property as described in Section 17.02.130 may protest any abatement action taken or ordered by the city manager to the commission designated in Section 17.02.160, at a public hearing on the date certain specified in the notice; and,

  2. That failure to file a written protest or to appear at such hearing will constitute a failure to exhaust administrative remedies.

(Ord. 21971.)

Upon the determination that any condition exists on the property which requires abatement action, the city manager may issue a proposed abatement order directed to the record owner(s) of the property. The order shall contain:

• A. The street address and a legal description sufficient for identification of the location of the property;

• B. A statement that the property has been found to require abatement actions, with a brief and concise description of the conditions found to require such abatement actions;

• C. A statement that:

  1. The property needs abatement actions but does not have to be restricted from use or occupancy; or

  2. The property needs abatement actions but does not have to be restricted from use or occupancy if specified temporary or interim corrective measures are completed within a specified time; or

  3. The property needs abatement actions and must be restricted from

use or occupancy. The order shall specify what, if any, temporary or interim corrective measures are required prior to the commencement of either permanent repairs or demolition.

• D. Specification of any abatement actions to be taken and the time within which the actions must be commenced.

• E. A statement advising that if any ordered abatement action is not completed within the time specified by this chapter or in the decision of the designated commission, the city manager:

  1. May order the property, building or structure restricted from further use or occupancy and posted to prevent such further occupancy until the abatement work is completed; and/or

  2. May proceed to cause the abatement work to be done and charge the costs thereof against the property or its owner.

• F. A statement advising:

  1. That any person having any record title or legal interest in the building as described in Section 17.02.130 may appear and protest the notice or order of any action taken or required to be taken by the city manager to the commission designated in Section 17.02.160, at a public hearing at the time and place specified in the order; and

  2. That failure to file a written protest or to appear at such hearing will constitute a failure to exhaust the administrative remedies.

(Ord. 21971.)

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§ 17.02.150

• A. When a notice of abatement or proposed abatement order is issued, the city manager may file in the office of the county recorder a certificate describing the property and certifying:

  1. That the property, building or structure is a nuisance pursuant to the provisions of this Code;

  2. The actions proposed by the city manager to abate the conditions or defects causing the property to be a nuisance;

  3. That if the abatement actions required by the designated commission, after hearing, are not performed, the city may do so;

  4. That if the city performs the required abatement actions, the costs incurred for such performance may become a lien against the property; and

  5. That those persons entitled to service pursuant to Section 17.02.130 have been so notified.

• B. Whenever an abatement order certificate has been filed and the corrections ordered by the commission shall thereafter have been completed or the building or structure demolished so that it no longer exists as a nuisance pursuant to the provisions of this Code, the city manager shall file a compliance certificate with the county recorder certifying that all the required corrections have been made or that the building or structure has been demolished so that the property is no longer in violation of the notice or order of abatement, whichever is appropriate.

• (Ord. 21971.)

• A. Any notice or order, and any amended or supplemental notice or order, which is required shall be served upon the record owner(s) of the subject property. A copy of each notice or order, and any amended or supplemental notice and order, shall also be served

on each of the following as disclosed by official public records in the county recorder's office:

1. The holder of any mortgage or deed of trust or other lien or encumbrance of record;

2. The owner or holder of any lease of record; and

3. The holder of any other estate of legal interest of record in or to the property on which the nuisance is located.

• B. The lack of service to any person required to be served shall not invalidate any proceedings as to any other person duly served or relieve any such person from any duty or obligation imposed by the provisions of this chapter.

• (Ord. 21971.)

Service of any required notice or order shall be made either personally or by mailing a copy of such notice or order by certified mail, postage prepaid, to each person entitled to service at the address which appears on the last equalized assessment roll of the county or as known to the city manager. If no such address appears or is known to the city manager then a copy of the notice or order shall be 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 or order shall not affect the validity of any proceedings taken pursuant to this chapter. Service by certified mail shall be effective from the date of mailing.

(Ord. 21971.)

• A. Every abatement action or order by the city manager is subject to review by the commission designated for that purpose in Section 17.02.160.

• B. At the hearing the commission shall consider all evidence and testimony presented. The commission may also conduct an onsite inspection of the property.

• (Ord. 21971.)

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§ 17.02.160

For the purposes of this chapter, all hearings are to be conducted as follows:

• A. The code enforcement appeals commission shall conduct all hearings required by this chapter for abatement actions taken pursuant to the following chapters:

  1. Chapter 17.40 - Dangerous Building Code; and

  2. Chapter 17.44 - Abatement of Abandoned Service Stations.

• B. The appeals hearing board shall conduct all hearings required by this chapter for abatement actions taken pursuant to the following chapters of this Code:

  1. Chapter 17.20 - Housing Code; and

  2. Chapter 17.72 - Community Preservation.

affirming, modifying or overruling the order of the city manager. The decision of said commission shall be final and conclusive.

• B. If the commission finds that a summary abatement action has been taken where no abatement action was warranted pursuant to the provisions of this Code, no invoice shall be served pursuant to Section 17.02.310.

• (Ord. 21971.)

Part 3

ABATEMENT ACTIONS PERFORMED BY CITY

Sections:

• A. Every notice of summary abatement or proposed abatement order shall contain the date, time and place at which the abatement hearing shall be conducted by the designated commission.

• B. Such hearing shall be set for not less than fifteen days nor more than sixty days from the date of service of the notice or order unless the city manager determines that the matter is urgent or a time extension for the hearing is reasonable.

• C. The hearing shall be held at the date, time and place specified or, if continued or deferred, at the next regular meeting of the commission.

• (Ord. 21971.)

• A. Within a reasonable time following the conclusion of the hearing, the designated commission shall make written findings of fact, based on the evidence received at the hearing to support its decision and shall issue an order

Any abatement action performed by the city pursuant to this title shall be accomplished under the supervision of the city manager either:

• A. By city personnel; or

• B. By contract awarded by the city manager or by the city council.

• (Ord. 21971.)

Any contract for work pursuant to this chapter shall be contracted for and awarded pursuant to the applicable procedures of Title 4 of this Code. (Ord. 21971.)

Whenever the city performs any abatement action pursuant to this chapter, the city shall not be required to perform such abatement actions to the standard that the property, building or structure complies with all applicable provisions of this Code. The city shall perform such actions as are determined by the city manager or the designated commission to be necessary to abate or remedy the nuisance caused by such property, building or struc-

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§ 17.02.330

ture. Such limited abatement action by the city does not relieve the property owner from any requirement to bring the property into compliance with any applicable provisions of this Code. (Ord. 21971.)

Part 4

COST RECOVERY

Sections:

17.02.300 Procedures to recover costs or expenses.

• 17.02.310 Expenses - Accounting and report required.

• 17.02.320 Payment required.

• 17.02.330 Failure to pay.

• 17.02.340 Filing of protests to proposed charges.

• 17.02.350 Assessment and lien.

• 17.02.360 Notice of lien - Form and contents.

• 17.02.365 Designated body.

• 17.02.370 Assessments - Priority.

• 17.02.380 Notice of lien - Delivery to county assessor.

17.02.400 Assessments - Collection procedures.

Whenever costs or expenses are incurred by the city in doing or causing to be done the necessary work of repair, demolition or other abatement work performed pursuant to this title, the city may recover its costs or expenses through the procedures set forth in this part. The procedures in this part are in addition to all other remedies available to the city for collection of such costs or expenses. (Ords. 21971, 29259.)

The city manager shall keep an itemized account of the expense incurred by the city for abatement actions performed pursuant to the provisions of this Code. Upon the completion of any abatement action, the city manager shall prepare an invoice specifying the actions taken, the itemized and total cost of the actions and any allowable inspection fees, a description of the property where the abatement action was performed, and the names and addresses of the persons entitled to notice pursuant to Section 17.02.130. This invoice will be served on such persons in accordance with the provisions of Section 17.02.140. Such invoices may be served upon the completion of each abatement action or may be served upon the completion of all necessary abatement actions. (Ord. 21971.)

This invoice shall be paid within thirty days of the date it is served or within the time and in the manner specified by the director of finance. Such payment shall be made to the director of finance. (Ord. 21971.)

The director of finance shall notify the city manager of the failure of payment of an invoice after the time specified for such payment has expired. Upon such notification, the city manager shall prepare and file with the city clerk a report containing the information required in Section 17.02.310.

The city manager shall place such report on the city council agenda for consideration by the city council. The city council shall fix a time, date and place for hearing said report, and any protests or objections thereto. The city manager shall cause notice of said hearing to be posted upon the property involved and served by certified mail, postage prepaid, addressed to the owner(s) of the property as the name and address appears on the last equalized assessment roll of the county, if such so ap-

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§ 17.02.330

pears, or as known to the city manager. A copy of such notice shall also be served on those persons specified in Section 17.02.130. The city clerk shall cause said notice to be published once in a newspaper of general circulation in the city. Such notice shall be given at least ten days prior to the date set for hearing, and shall specify the day, hour and place when the council will hear and pass upon the city manager's report, together with any objections or protests which may be filed, as hereinafter provided, by any person interested in or affected by the proposed charge. (Ord. 21971.)

Any person interested in or affected by the proposed charges may file written protests or objections with the city clerk. Such written protests must be filed no later than twenty-four hours before the time set for the hearing on the report of the city manager. Each such protest or objection must contain a description of the property in which the protesting party is interested and the grounds of such protest or objection. The city clerk shall endorse on every such protest or objection the date it was received by the city clerk. Protests or objections shall be presented to the city council by the city clerk at the time set for the hearing, and no other protests or objections shall be considered. (Ord. 21971.)

• A. The city council may, after the hearing, modify the amount of the charges, discharge the amount of the charges or order that said charge shall he an assessed charge against the property involved.

• B. When the city council orders that the charge shall be assessed against the property it shall confirm the assessment, cause the same to be recorded on the assessment roll, and thereafter said assessment shall constitute a special assessment against and a lien upon the property.

• (Ord. 21971.)

Immediately upon the confirmation of the assessment by the city council, the city clerk shall file in the office of the county recorder of Santa Clara county, California, a certificate in substantially the following form:

"NOTICE OF LIEN

Pursuant to the authority vested in the Council of the City of San José by the provisions of Chapter 17.02 of Title 17 of the San José Municipal Code, said council did on or about , 19, cause the building (or structure) on the real property hereinafter described to be repaired (or demolished), (if other work is done, state nature of such other work) in order to abate a nuisance on said property. Also, the council of the City of San José, pursuant to the provisions of said Chapter 17.02, did on , 19, assess the cost of such repair (or demolition or other work, as the case may be) upon the real property hereinafter described. Said assessment has not been paid, and the City of San José does hereby claim a lien on said real property for its net expense of the doing of said repair (or demolition or other work, as the case may be) said net expense being the amount of said assessment to wit: the sum of $_________. The same is and shall be a lien upon said real property until said sum has been paid in full and discharged.

The real property hereinbefore mentioned, and upon which a lien is claimed, is that certain real property situate in the City of San José, County of Santa Clara, state of California, particularly described as follows:

(DESCRIPTIONS)

Dated: This _________ day of , 19

City Clerk

City of San José

(ACKNOWLEDGMENT)" (Ord. 21971.)

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§ 17.02.450

As an alternative to the procedures set forth in Sections 17.02.330 through 17.02.360, the public hearing before the city council and the imposition of a special assessment lien by the city council referenced in those sections may be conducted and imposed by a designated body pursuant to Chapter 1.18 of this Code.

(Ord. 25264.)

Immediately upon the recording of the notice of lien, the assessment shall be deemed to be complete. Any amounts assessed shall be payable, and the assessments shall be liens against the parcels of land assessed, respectively. The lien shall be subordinate to all existing assessment liens previously imposed upon the same property. The lien shall be paramount to all other liens except for state, county and municipal taxes with which taxes it shall be on a parity.

(Ord. 21971.)

After recording, the notice of lien, required by this chapter, shall be forthwith delivered by the city clerk to the county assessor of the County of Santa Clara, state of California. (Ord. 21971.)

The county assessor shall enter the amount set forth in said lien on the assessment roll opposite the description of the particular property affected as described on the county assessor's map books for the current year. (Ord. 21971.)

• A. The amount set forth in the notice of lien shall be collected at the same time and in the same manner as city taxes are collected. The assessment shall be subject to the same penalties and interest, and to the same procedure for fore-

closure and sale in case of delinquency, as provided for city taxes. All laws applicable to the levy, collection and enforcement of city taxes are hereby made applicable to such assessment.

• B. If the city council has determined that the assessment shall be paid in installments, each installment and any interest thereon shall be collected in the same manner as provided for city taxes in successive years. If any installment is delinquent, the amount thereof is subject to the same penalties and procedure for foreclosure and sale as provided for city taxes.

• (Ord. 21971.)

All such assessments remaining unpaid after thirty days from the date of recording on the assessment roll shall become delinquent. A delinquency penalty of ten percent shall attach to such assessments upon such delinquency. (Ord. 21971.)

Part 5

RESTRICTION FROM USE OR OCCUPANCY

Sections:

17.02.460 Restriction from use or occupancy notice - Posted.

For the purpose of this Code, an order to "restrict from use or occupancy" includes either total or partial restriction from use or occupancy of either all or some specified portion of a building, structure or property. The methods which may be used for such restriction from use or occupancy include, but are not limited to the construction, erection, installation and maintenance of such fencing, enclosures, barricades and/or other protective

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§ 17.02.450

devices, used for the purpose of closing, barring, boarding, locking and or otherwise securing all means of access to a property, building or structure as will effectively prevent entry into the building or structure or onto the property by unauthorized persons and effectively prevent any use or occupancy thereof.

(Ord. 21971.)

Whenever any property, building, or structure is ordered restricted from use or occupancy, the following notice shall be posted. Said notice may be posted at or upon each entrance or exit of the property, building, or structure in substantially the following form:

RESTRICTED DO NOT ENTER UNSAFE TO ENTER, USE OR OCCUPY

Part 6

JOINT OR COMMON OWNERSHIP

Section:

Whenever property, which is the subject of nuisance abatement pursuant to Chapter 17.02, is jointly owned, owned as common property or is otherwise subject to multiple ownership whether in fee or as an easement, the owners of the property shall be jointly and severally liable for the nuisance. The city may apportion each owner's liability in reasonable proportion to each individual's ownership interest in the subject property. (Ord. 23832.)