Selma Municipal Code Ch. 21 Administrative and Summary Abatement

The purpose of this chapter is to establish a procedure for the administrative and summary abatement of public nuisances and city code violations. The procedures established in these sections are in addition to any other legal remedy, criminal or civil, established by law which may be pursued to address violations of this code or applicable laws of the state of California. These sections govern the abatement of all nuisances and city code violations or laws of the state of California unless other procedures are established in other chapters of this code or laws of the state of California and are specifically stated to apply. (Ord. 2013-8, 11-4-2013)

Pursuant to Government Code section 38771 et seq., any condition caused, maintained, or permitted to exist in violation of any provision of this code or applicable state codes which constitute a public nuisance may be abated by the city of Selma pursuant to the procedures set forth in this chapter. (Ord. 2013-8, 11-4-2013)

For the purposes of this chapter, the following definitions shall apply:

CITY: The city of Selma.

CITY MANAGER OR MANAGER: The city manager for the city of Selma or his or her designated representative.

DAYS: Calendar days.

HEARING OFFICER: A hearing officer appointed pursuant to this chapter.

OFFICIAL, ENFORCEMENT OFFICIAL OR PUBLIC OFFICIAL: The city manager, building official, building director, building inspector, community development director, public works director, police chief, fire chief, health officer or designees, or any other individual or body appointed or designated by the city council or the city manager to enforce violations of this code.

ORDINANCE OR CITY CODE: Any provision of this code.

PERSON: Any natural person, firm, association, business, trust, organization, corporation, partnership, company, or any other entity.

PROPERTY OWNER: The owner of record of the parcel of land on which a nuisance is maintained based on the last equalized assessment roll or supplemental roll, whichever is more current.

RESPONSIBLE PARTY: A person who is responsible for violating the provisions of this code. (Ord. 2013-8, 11-4-2013)

(A) Issuance Of Abatement Notice: Whenever the city manager or his or her designee determines that a public nuisance as defined or declared in any section of this code or applicable state codes, exists on any public or private property within the city of Selma, an abatement notice may be issued to the "property owner" or "responsible party" (as defined by section 1-21-3 of this chapter) to abate the public nuisance.

(B) Contents Of Notice: The abatement notice shall be in a form determined by the city manager and shall include, but is not limited to, the following:

1. A description of the property reasonably sufficient to identify the location of the property including address and/or assessor's parcel number, if available;

2. The city code or state code violation(s) which render the property a public nuisance;

3. The action required to abate the nuisance which may include, but is not limited to: repairs, removal, demolition, correction, vacation of tenants, obtaining necessary permits, or other appropriate actions necessary to abate the nuisance;

4. Establish a time frame to abate the nuisance;

5. Explain the consequences for failure to comply within the terms of the notice, including, but not limited to, administrative or summary abatement or administrative citation;

6. State whether as part of the abatement action, a penalty may be assessed or a nuisance abatement lien recorded on the parcel of land on which the nuisance is maintained; and

7. Identify all applicable hearing and appeal rights.

(C) Service Of Abatement Notice: The service of abatement notice shall be made in the same manner as an administrative citation (subsection 1-20-6(D) of this title). (Ord. 2013-8, 11-4-2013)

(A) Any property owner or responsible party receiving a notice to abate a public nuisance shall, within ten (10) calendar days from the date of service of said notice, file an appeal of the notice to abate a public nuisance with the city manager.

(B) A notice of appeal of a notice to abate a public nuisance shall be in writing on a form approved by the city manager and/or shall identify the notice to abate a public nuisance being appealed, specify the basis for the appeal in sufficient detail so that a hearing officer can understand the grounds for the appeal, and an address where further notices may be delivered to the property owner or responsible party by first class mail. The notice of appeal of a notice to abate a public nuisance must be received by the city manager at city hall prior to the expiration of ten (10) calendar days from the date of service of the notice to abate a public nuisance.

1. The notice of appeal may be mailed or delivered to:

City Of Selma

Attn: City Clerk

1710 Tucker Street

Selma, CA 93662

(C) If the deadline for filing an appeal falls on a Saturday, Sunday or city holiday, the deadline for filing an appeal shall be extended until the next regular business day.

(D) As soon as practicable after receiving a written notice of appeal of a notice to abate a public nuisance, the city manager shall appoint a hearing officer and fix a date, time and place for a hearing. Written notice of the time and place of the hearing shall be served at least fifteen (15) calendar days prior to the date of the hearing to the party appealing the notice to abate a public nuisance by first class mail, postage prepaid, to the address given in the notice of appeal.

(E) The failure of any person to receive such notice shall not affect the validity of any proceedings taken under this chapter.

(F) Failure of any person to file an appeal in accordance with the provisions of this section shall constitute a waiver of that person's right to an administrative hearing confirming the existence of a public nuisance.

(G) Failure of any person to attend the hearing appealing the notice to abate a public nuisance shall constitute a waiver of his or her rights to appeal the existence of a public nuisance.

(H) Abatement of the public nuisance shall not proceed until the hearing officer issues an order, unless the city manager or his or her designee concludes that an imminent threat to the public's health and safety exists.

(I) The hearing of the appeal of the notice to abate a public nuisance shall be conducted in the same manner as an appeal of an administrative citation defined in chapter 20 of this title except that:

1. At the conclusion of the hearing, the hearing officer may confirm or deny the existence of a public nuisance, may extend or may impose conditions and deadlines by which the public nuisance may be abated;

2. In any event, the decision of the hearing officer shall be in writing and issued within ten (10) days of the conclusion of the hearing. The decision shall be served upon the appealing party by United States mail, first class, postage prepaid, and addressed to the address provided by the applicant in the notice of appeal.

(J) The decision of the hearing officer regarding an appeal of a notice to abate a public nuisance is the final administrative order and decision. There are no appeals to the city council. Judicial review in the superior court of the state of California may only be had in accordance with the provisions of Government Code section 53069.4.

(K) If the hearing officer issues an order confirming the existence of a public nuisance, the city may immediately abate the public nuisance pursuant to the procedures of this code. The hearing officer's decision shall become effective upon the date of the order. (Ord. 2013-8, 11-4-2013)

(A) Authority: Whenever the city manager or enforcement officer determines that such conditions exist that the life, health, property or safety of the public or the occupants of any building or site are endangered such that immediate correction or elimination of such condition exists, the city manager or enforcement officer may exercise the following powers without prior notice to the property owner or responsible party:

1. Post the premises as unsafe, substandard, or dangerous; or

2. Board, fence, or secure the building or site; or

3. Order the immediate vacation of any tenants in accordance with applicable law and prohibit occupancy of any building or site until all repairs are completed; or

4. Make any minimal emergency repairs, as necessary, to eliminate such conditions which endanger the life, health, property or safety of the public or occupants; or

5. Raze and grade that portion of the building or site to prevent collapse or remove any hazard to the occupants or public; or

6. Take any other action as appropriate under the circumstances.

(B) Right Of Way: The city manager or enforcement officer is authorized to exercise any summary abatement powers listed in this chapter to remove any items placed or stored on city property, sidewalks, or public rights of way.

(C) Procedures:

1. The city manager or enforcement officer shall pursue only the minimum level of correction or abatement, as necessary, to eliminate the immediacy of the hazard. The costs incurred by the city during the summary abatement process, including costs associated with relocating tenants, shall be assessed and recovered against the property owner or responsible party through the procedures outlined in this chapter.

2. The city manager or enforcement officer may also pursue any administrative or judicial remedy to abate any remaining public nuisance. (Ord. 2013-8, 11-4-2013)

(A) The city may abate the conditions causing a public nuisance when:

1. The property owner or responsible party fails to abate the public nuisance as required by the notice to abate a public nuisance and an appeal has not been timely filed; or

2. A hearing officer has issued an order confirming the existence of a public nuisance after an appeal, pursuant to this chapter, by the property owner or responsible party. (Ord. 2013-8, 11-4-2013)

(A) Subject to the procedures set forth in this chapter, the city may abate a public nuisance as follows:

1. The nuisance may be abated by city personnel or by a private contractor;

2. The city personnel or a private contractor may enter upon private property in a reasonable manner to abate the public nuisance as specified in the notice to abate a public nuisance or an order issued by the hearing officer following an appeal of a notice to abate a public nuisance;

3. If the property owner or responsible party abates the public nuisance before the city personnel or private contractor performs the actual abatement specified in the notice to abate a public nuisance or hearing officer order, the city manager or his or her designee may, nonetheless, assess all costs incurred by the city against the property owner or responsible party pursuant to this chapter;

4. Upon completion of the abatement, a report describing the work performed including an itemized account of the total abatement costs, including, but not limited to, the actual costs and administrative costs including staff time to investigate, document, photograph, and conduct the appeal of the notice to abate a public nuisance. (Ord. 2013-8, 11-4-2013)

The city may, pursuant to this chapter, summarily abate any nuisance resulting from the defacement of property of another by graffiti or any other inscribed material at the expense of a minor or other person creating, causing, or committing the nuisance and may make the expense of abatement of the nuisance a lien against property of the minor or other person and a personal obligation of the minor or other person pursuant to the provisions of Government Code sections 38772, 38773.2 and/or 38773.6. Further, the parent or guardian having custody and control of a minor creating, causing, or committing such nuisance shall be jointly and severally liable for the expense of abatement with the minor pursuant to the provisions of Government Code section 38772. The city shall also provide the names and addresses of the parent or guardian having custody and control of the minor, if known, to the probation officer of the county of Fresno or other official pursuant to Government Code section 38772. This section shall be an alternative to and in addition to the abatement procedures set forth in title VI, chapter 21 of this code. (Ord. 2013-8, 11-4-2013)

Costs of abating a nuisance pursuant to this chapter shall include, but are not limited to, court costs, recorder's fees, attorney fees, and administrative costs. (Ord. 2013-8, 11-4-2013)

In addition to any other penalty available at law, the city may request, pursuant to Government Code section 38773.7, that the property owner or responsible person for a condition abated in accordance with this chapter pay treble the costs of the abatement for a second or subsequent civil or criminal judgment within a two (2) year period. (Ord. 2013-8, 11-4-2013)

The city manager or designee shall determine whether the cost of abating the public nuisance shall be recovered as a personal obligation or a special assessment upon the property.

(A) Personal Obligation Of Recovery:

1. A demand for payment of recovery costs for the abatement of the public nuisance shall be served upon the property owner or responsible party by posting the notice in a conspicuous place on the property and by mailing a copy of the notice to the property owner. The notice shall include, but is not limited to, the following:

(a) A description of the property sufficient to identify the property including address or assessor's parcel number, if available;

(b) The total amount to be paid associated with the abatement of the public nuisance at the property along with a copy of the accounting of the charges; and

(c) A demand for payment within thirty (30) days from the date of service of the notice that if payment is not made within thirty (30) days from the date of the demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of one hundred dollars ($100.00) and such unpaid amounts including any penalty shall be made a lien upon the property of the responsible party pursuant to Government Code sections 38773, 38773.1 and 38773.2.

2. If the responsible party fails to pay all or part of the costs associated with the abatement of the public nuisance, the city may then record a lien on the parcel of land on which the public nuisance was abated pursuant to Government Code section 38773.1 or in the case of graffiti abatement section 38773.2.

3. In the event that the city should initiate any action or proceeding in accordance with Government Code section 38773.1 or 38773.2, the prevailing party in such action or proceeding shall be entitled to recover costs of such action including reasonable attorney fees.

(B) Recovery Of Abatement Costs By Special Assessment:

1. As an alternative to the recovery of abatement costs as a personal obligation, the city may recover the cost of abatement of a public nuisance upon a parcel of land by special assessment against the parcel pursuant to Government Code section 38773.5 or in the case of graffiti abatement section 38773.6.

2. If the city manager or his or her designee determines that the abatement costs shall be charged against the property, the city manager or his or her designee shall prepare a notice of special assessment.

3. The city manager or his or her designee shall deliver the notice of special assessment to the county auditor/tax collector pursuant to Government Code section 38773.5 or 38773.6.

4. The notice of special assessment shall be sent to the property owner pursuant to the notice requirements of Government Code section 38773.5 or 38773.6.

5. In the event that the city should initiate any action or proceeding in accordance with Government Code section 38773.5 or 38773.6, the prevailing party in such action or proceeding shall be entitled to recover costs of such action including reasonable attorney fees. (Ord. 2013-8, 11-4-2013)

Nothing in this chapter is intended to be an exclusive penalty or remedy and does not prohibit the application of any other penalty or remedy available under federal, state or local law. (Ord. 2013-8, 11-4-2013)