San Marcos Municipal Code Ch. 10.04 Nuisance Abatement Procedure—real Property

For the purposes of this chapter, a nuisance is declared whenever there exists real property within the City:

(a)

In a condition which is adverse or detrimental to public peace, health, safety or general welfare;

(b)

Which is maintained so as to permit the same to become so defective, unsightly, dangerous or in a condition of deterioration or disrepair so that the same will, or may cause harm to persons, or which will be materially detrimental to property or improvements located in the immediate vicinity of such real property, is declared to constitute a public nuisance.

(c)

Which is used or upon which a structure or use exists contrary to any zoning, land use or other provision of the San Marcos Municipal Code.

Whenever an enforcement officer determines that a nuisance exists upon a parcel of land in violation of the Municipal Code, he or she may serve on the responsible party a Notice of Violation and Compliance Order under San Marcos Municipal Code Sections 1.12.010 or

1.12.020 which may include a charge for the cost of issuance of the Notice. In addition to these remedies, or any other remedy provided under the Municipal Code, the enforcement officer may issue an administrative citation under Municipal Code Chapter 1.14 which may include a charge for the cost of issuance of the citation.

If an owner, occupant or agent refuses permission to enter, inspect or abate nuisance on a property, the enforcement officer may seek a warrant pursuant to court order or an administrative inspection warrant pursuant to the procedures provided for in the California Code of Civil Procedure Sections 1822.50 through 1822.59 or any other procedure as authorized by law.

(a)

A City code enforcement officer or official (hereinafter "enforcement officer") may record with the County Recorder's Office a notice against a property which is the subject of an administrative enforcement action pending with the City of San Marcos.

(b)

A notice of pending administrative action shall be on a form approved by the City Manager and shall describe the nature of the administrative action and refer to the Municipal Code governing the pending administrative action.

The prevailing party in any judicial action, administrative proceeding and/or special proceeding to abate a nuisance shall recover the incurred attorneys' fees as follows:

(a)

The recovery of attorneys' fees shall be limited to those individual actions or proceedings in which the City elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees.

(b)

In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding.

In addition to the findings required in Section 1.14.110 of this Municipal Code, the hearing officer in an action to abate nuisance on real property shall issue an Administrative Abatement Order including the following:

(a)

An Administrative Abatement Order shall address each contested violation in the citation, and contain findings of fact for each such violation. The findings shall be supported by evidence received at the hearing.

(b)

An Administrative Abatement Order shall affirm, reject, or modify the terms of the citation. The Administrative Abatement Order may impose or order any or all of the following:

(1)

Administrative penalties;

(2)

An order to abate the nuisance within a specific time;

(3)

Administrative costs, including, but not limited to, costs of investigation, staffing costs incurred in preparation for the hearing and the hearing itself, all costs and charges for notice or citation, and costs for all reinspections necessary to enforce the compliance order;

(4)

Attorney's fees pursuant to Section 10.04.050, above;

(5)

Interest on the penalties and costs imposed at the legal rate from the date of the order.

(c)

The Administrative Abatement Order shall also state that if the responsible party fails, refuses, or neglects to abate the condition constituting the violation within the time set forth therein, the City may abate the condition at the expense of the responsible party, and the expense thereof may be recovered by way of special assessment or lien on the property or any other legally authorized means.

If an enforcement officer determines that compliance with the Notice of Violation and Compliance Order or Administrative Abatement Order has been achieved, the enforcement officer shall notify the responsible party and file a report with the City Manager indicating that compliance has been achieved and the date of the City's final inspection of the property.

In the event such public nuisance is not abated on or before the date described in the Notice of Violation and Compliance Order or Administrative Abatement Order, or compliance with the Order is not achieved, the enforcement officer shall, and is hereby authorized to direct the City Attorney to secure the appropriate court order for the abatement thereof by City agents, employees or by private contract. Any such abatement action shall be conducted in accordance with the current statutory and decisional law and the order of the issuing court.

The enforcement officer shall cause to be kept an itemized account of the cost of such abatement. Unless waived in writing by the parties, the enforcement officer shall schedule an Administrative Cost Hearing to certify abatement costs pursuant to Chapter 1.14 of this Municipal Code. At least ten days prior to the Administrative Cost Hearing certifying costs, a Notice of Administrative Cost Hearing shall be served by certified mail on the parties and the property owner, if the property owner's identity can be determined from the county assessor's or county recorder's records, and shall include a copy or copies of the itemized account of the cost of abatement. A party or the property owner may contest the abatement costs at the Administrative Cost Hearing. Pursuit of such a contest by a party or property owner is necessary to exhaust the administrative remedies in challenging the validity of any lien or special assessment against the property.

On the date and time set for the Administrative Cost Hearing, the Hearing Officer shall consider the abatement cost report of the enforcement officer together with any appropriately made objections, and shall confirm, reject, or modify the report by issuing a written abatement costs order in accordance with this chapter and Section 1.14.110.

The City Council may issue a Cost Recovery Order which assesses all costs of notice or citation, the cost of abatement, as confirmed, and any attorneys' fees as a:

(a)

Personal obligation of the person creating, causing, committing or maintaining the nuisance abated;

(b)

Lien against the subject property;

(c)

Personal obligation of the property owner of the subject property; and

(d)

Special assessment against the subject property.

The costs assessed under the Cost Recovery Order may be collected by the City by any or all of the following or any other lawful means:

(a)

Recordation of a lien or special assessment pursuant to Section 10.04.130 or Section 10.04.140;

(b)

Civil action by the City; and/or

(c)

Any other legally authorized procedure for the abatement of nuisance or collection of costs associated therewith.

(a)

Upon determination by the enforcement officer that the amounts assessed under the Cost Recovery Order have not been satisfied in full, the enforcement officer may prepare a nuisance abatement lien to be recorded with the San Diego County Recorder.

(b)

Prior to recording the nuisance abatement lien, the enforcement officer shall serve notice to the property owner of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current.

(c)

The nuisance abatement lien shall be served in the same manner as summons in a civil action in accordance with Code of Civil Procedure Section 415.10 et seq. If the owner of record, after diligent search cannot be found, the lien may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in San Diego County.

(d)

Following proper notice to the owner of record as provided in subsection (c) of this section, the nuisance abatement lien shall be recorded with the San Diego County Recorder. Once recorded, the nuisance abatement lien shall have the force, effect and priority of a judgment lien.

(e)

The nuisance abatement lien shall specify the amount of the lien, the City of San Marcos as the name of the agency on whose behalf the lien is imposed, the date of the abatement order, the street address, legal description and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.

(f)

In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in paragraph (e) shall be recorded by the City. A nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index.

(g)

A nuisance abatement lien may be foreclosed by an action brought by the City for a money judgment.

(h)

A copy of the nuisance abatement lien shall be filed in the office of the City Clerk.

(i)

Interest shall accrue on the principal amount of the lien at the maximum rate permitted by law until the amount of the lien, inclusive of accrued interest and costs of recovery, is paid in full.

(j)

A lien pursuant to this section may be foreclosed by an action brought by the City for a money judgment.

(a)

As an alternative to the procedure authorized by Section 10.04.120 of this chapter, the City may make any unpaid amounts under the Cost Recovery Order a special assessment against the real property that was the subject of the Cost Recovery Order issued in accordance with this chapter.

(b)

Upon determination by the enforcement officer that the amounts contained in the Cost Recovery Order have not been satisfied in full by the date specified in the Order, the enforcement officer may prepare a notice of special assessment.

(c)

The enforcement officer shall serve the notice of special assessment by certified mail to the property owner, if the property owner's identity can be determined from the County Assessor's or County Recorder's records. The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments. The tax collector's power of sale shall not be affected by the failure of the property owner to receive the notice.

(d)

The 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 assessment relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then 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.

(e)

The City may, subject to the requirements applicable to the sale of property pursuant to Section 3691 of the Revenue and Taxation Code, conduct a sale of vacant residential developed property for which the payment of the assessment is delinquent.

(f)

A copy of the notice of assessment shall be filed in the office of the City Clerk.

(g)

Interest shall accrue on the past due assessments at the maximum rate permitted by law until the amount of the assessment, inclusive of accrued interest and any costs of recovery, is paid in full.

For any special assessment imposed under this chapter, once payment in full has been received by the City, the City Clerk shall either record a notice of satisfaction or provide the property owner or applicable financial institution with a notice of satisfaction so they may record such notice with the San Diego County Recorder. The notice of satisfaction shall cancel the City's special assessment.

The procedures provided in this chapter shall be cumulative and in addition to any other procedure or legal remedy provided for in the San Marcos Municipal Code or by state law for the abatement of nuisance related activities, premises, conditions or conduct. Nothing in

this chapter shall be deemed to prevent the City from commencing alternative administrative, civil or criminal proceedings to abate or penalize a nuisance under applicable civil, criminal or Municipal Code provisions as an alternative to the proceedings set forth in this chapter.

(Ord. No. 2010-1330, 2-9-10)