Chapter 9.34

MOSQUITO ABATEMENT

Sections:

• 9.34.125 Designated body.

• 9.34.130 Cost report - Filing with director of finance.

• 9.34.140 Costs constitute special assessment - Confirmed as lien when.

• 9.34.150 Cost assessment - Laws applicable. 9.34.160 Cost assessment - Entry on tax roll.

• 9.34.170 Cost assessment - Collection - Penalty for delinquent payment.

• 9.34.180 Cost assessment - Collection by separate bills and receipts.

• 9.34.190 Payment of abatement costs - Receipts.

• 9.34.200 Refunds.

• 9.34.210 Additional remedies.

The city council expressly finds and declares that mosquito breeding places constitute a hazard to public health. It is the intent of this chapter to establish procedures for abating mosquito breeding places and provide for the recovery of the cost of abatement.

(Ord. 21679.)

9.34.010 Declaration of findings, intent and policy.

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§ 9.34.020

As used in this chapter, the term "health officer" means the health officer of the county of Santa Clara or any other person duly authorized to act in his behalf, and the term "health department" means the health department of the county of Santa Clara. (Ord. 21679.)

Neither the owner nor party in possession of a lot or parcel shall permit any breeding place for mosquitoes to exist upon any property. Any breeding place for mosquitoes is a public nuisance and a hazard to public health. The presence of mosquito larvae or pupae in any accumulation of water, whether upon the ground surface, pond, pool or in a container of any description shall constitute prima facie evidence that such place is a breeding place for mosquitoes. (Ord. 21679.)

The health officer shall have the authority to enforce the provisions of this chapter and may conduct inspections, at his discretion, for the purpose of ascertaining compliance with this chapter. Whenever necessary for the purpose of investigating or enforcing the provisions of this chapter or whenever the health officer has reasonable cause to believe that there exists upon any property any condition which constitutes a violation of this chapter, the health officer may enter upon such property at all reasonable times to inspect the property, or to perform any duty imposed by law. In the event the property is occupied, the health officer shall first present proper credentials and request entry. In the event the property is unoccupied, the health officer shall first make a reasonable attempt to contact the owner and party in possession, or the agent of either, of the property and request entry.

If such entry is refused, the health officer seeking entry shall have recourse to every remedy provided by law to secure entry. (Ord. 21679.)

Whenever a public nuisance specified in this chapter exists upon any property, the health officer may notify in writing the owner or party in possession or both, or the agent of either, of the existence of the nuisance. All notices shall be sent by certified mail, postage prepaid, to the owner or party in possession or both, or the agent of either. The contents of the written notice shall conform to the requirements of Section 9.34.060. (Ord. 21679.)

The notice to abate shall:

• A. State the finding of the health officer that a public nuisance exists on the property and the location of such nuisance on such property.

• B. Direct the owner or party in possession to abate the nuisance within a specified time by destroying the larvae or pupae that are present.

• C. Direct the owner or party in possession to perform, within a specified time, the work necessary to prevent the recurrence of breeding in the places specified in the notice.

• D. Inform the owner or party in possession that before complying with the requirements of the notice, the owner or party in possession may appear at a hearing before the health officer, pursuant to Section 9.34.070, at a time and place stated in the notice.

(Ord. 21679.)

Before complying with the requirements of the notice to abate, the owner or party in possession may appeal the finding that a public nuisance exists by appearing at a hearing before the health officer at a time and place fixed by the health officer and stated in the notice. At the hearing the health officer shall permit any person to present testimony. If, after hearing all the facts, the health officer makes a

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§ 9.34.120

determination that a nuisance exists on the property, the health officer shall order compliance with the requirements of the notice or with alternate requirements issued by the health officer. (Ord. 21679.)

Any recurrence of the nuisance within ninety days of the time specified for abatement in the notice or the order of the health officer may be deemed to be a continuation of the original nuisance.

(Ord. 21679.)

In the event the nuisance is not abated within the time specified in the notice or by the order of the health officer, the health department may abate the nuisance by destroying the larvae or pupae and by taking appropriate measures to prevent the recurrence of further breeding. (Ord. 21679.)

In the event the health officer should find that any breeding place for mosquitoes, within or upon any lot or parcel of land, is so serious and aggravated, and presents such an immediate menace or danger to the public health, safety and welfare that it is essential that such nuisance be immediately abated, the health officer may immediately abate said nuisance in the manner provided in Section 9.34.090, without first mailing any notices, and without giving the owner or owners or party in possession of the lot or parcel of land further time to abate said nuisance. However, the health officer shall prepare and file in the department of health a written report describing the location, nature and extent of the public nuisance and setting forth the reasons why such breeding place had to be abated immediately, and shall cause a copy of such report to be mailed, within ten days after completion of such abatement, to the owner or owners or person in possession, or both, or agent of either, of the lot or parcel within or upon which said nuisance ex-

isted, as said owner or owners are shown on the last equalized assessment roll of the county of Santa Clara, at their addresses as shown on said assessment roll.

(Ord. 21679.)

• A. The health officer shall keep a record of the cost and expense incurred in abating or causing to be abated each public nuisance within or upon each lot or parcel of land.

• B. The health officer shall then submit to the city council, for confirmation, an itemized written report showing all costs and expenses incurred by the health officer for abating each such nuisance and shall add thereto a one hundred percent charge for overhead and administrative and incidental expenses.

• C. For at least ten days prior to its submission to the city council, a copy of the report shall be posted on the bulletin board situated outside and near the chamber door of the city council in the City Hall of the City of San José together with a notice of the time and place when and where it will be submitted to the city council for hearing. A notice that the report has been so posted, as well as the time and place when and where property owners may appear and object to any matter contained therein, shall be published once in a daily newspaper of general circulation published in the city.

(Ord. 21679.)

At the time fixed for receiving and considering the report, the city council shall hear any objections of any property owner liable to be assessed for the abatement. The city council may accept the report as presented or may modify it based on the evidence presented. The city council shall then confirm the report as modified by either motion or resolution. (Ord. 21679.)

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§ 9.34.125

As an alternative to the procedures set forth in Sections 9.34.110 through 9.34.120, the public hearing before the city council and the imposition of a special assessment lien referenced in those sections may be conducted by a designated body pursuant to Chapter 1.18 of this Code. (Ord. 25264.)

After confirmation of the report, a copy of the same shall be given to the director of finance, who in turn shall file a certified copy thereof with the county auditor of the county of Santa Clara, on or before September 1st. The description of the parcels reported shall be those used for the same parcels on the county assessor's map books for the current year. (Ord. 21679.)

The cost of abatement upon each parcel of land, as confirmed, constitutes a special assessment against that parcel, and based on such confirmation, it is a lien on the parcel. (Ord. 21679.)

Laws relating to the levy, collection and enforcement of county taxes apply to such special assessments.

(Ord. 21679.)

The county auditor shall enter each assessment on the county tax roll opposite the parcel of land.

(Ord. 21679.)

The amount of the assessment shall be collected at the time and in the manner of ordinary

municipal taxes. If delinquent, the amount is subject to the same penalties and procedure of foreclosure and sale provided for ordinary municipal taxes. (Ord. 21679.)

As an alternative method, the county tax collector, in his discretion, may collect the assessments without reference to the general taxes by issuing separate bills and receipts for the assessments. (Ord. 21679.)

The health officer or director of finance of the City of San José may receive the amount due on the abatement cost and issue receipts at any time either prior to or after confirmation of the report and until August 1st of the calendar year in which the report is confirmed.

(Ord. 21679.)

The city council may order refunded all or part of a special assessment paid pursuant to this chapter if it finds that all or part of the special assessment has been erroneously levied. A special assessment or part shall not be refunded unless a claim is filed with the clerk of the city council on or before March 1st after the tax became due and payable. The claim shall be verified by the person who paid the tax, or his guardian, executor or administrator.

(Ord. 21679.)

Any abatement action by the health officer shall not be construed to limit any other right or remedy otherwise available in law to any party, nor shall any abatement action by the health officer in any way limit the city's right to enforcement under Chapter 1.08 of this Code. (Ord. 21679.)

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§ 9.36.040