Soledad Municipal Code Ch. 9.04 Noticed Nuisance Abatement Procedure

Each and every one of the following conditions or acts is hereby declared to be a public nuisance:

A. Dangerous or Substandard Building. The maintenance on any premises within the city of a building or structure which:

1. After an inspection by the fire department, is found to be a fire hazard or in a condition likely to cause fire or contribute to its spread, or

2. Is defined as substandard under the provisions of the State Housing Law set forth in Section 17920.3 of the Health and Safety Code;

B. Unsanitary Building and Premises. Building and premises maintained in an unsanitary condition, or in a condition likely to cause sickness or disease or other injury to occupants, or to endanger the public health, safety and general welfare, as determined by the building official under applicable state and city laws, ordinances, rules or regulations;

C. Fire Hazards. Dry or dead trees, shrubs, weeds, grass and other vegetables matter, combustible refuse or waste, and any other type of material growing, placed, or allowed to remain on streets, sidewalks or private property which, as determined by the fire chief or fire marshal, by its nature and location, constitutes a fire hazard endangering other property, real or personal, in the vicinity;

D. Rubbish, Refuse and Waste. Rubbish, refuse and waste, which by reason of its location, character or visibility, interfere with the reasonable enjoyment of the life and property by others living in the vicinity, or creates a danger to the public health, safety and general welfare. As used in this subsection, "rubbish, refuse and waste" means all kinds of used or discarded matter and material having no substantial market value, including, but not limited to, rubble, broken building material and paving material, used building material and used household goods and appliances, used commercial fixtures and appliances, inoperative machinery and equipment of all kinds, inoperative vehicle or parts thereof, used bottles, crates and containers of any kind, scrap metal, scrap lumber, and paper goods, trees and garden trimmings, and any other items of a like nature, whether or not specifically described in this subsection;

E. Hazardous Obstructions. Any obstacle, fence, sign, landscaping or other object installed or maintained in the front or side setback area of a corner lot, reaching a height of more than three feet above the nearest street curb (or street surface if there is no curb); excepting, however, permanent buildings and structures constructed with all applicable zoning and building regulations, public utilities poles and installations, and tree trimmed at the trunk at least eight feet above the level of the nearest curb (or street surface if there is no curb) which are spaced so that their trunks do not obstruct the vision of motorists;

F. Polluted Water. Any pool, pond, stream, canal or other body of water which is unattended, unfiltered or otherwise maintained, resulting in the pollution or contamination of the water from algae or other bacteria growth, from animals or insects or the remains of the same, or other rubbish, refuse, debris and other foreign matter or other material placed or allowed to remain in the same, or which is allowed to become stagnant or a breeding place for mosquitoes or other insects, thereby creating a health danger to the public health, safety and general welfare;

G. Air and Noise Pollution. Any condition or activity which creates or causes noxious odors, excessive smoke or dust, noise or vibrations, or which otherwise is offensive to the senses, so as to interfere with the comfortable enjoyment of life or property in the vicinity;

H. Defective Sidewalks and Driveways. Sidewalks and driveway which are broken, damaged, severely worn, or raised to such a degree as to create a danger of injury to persons using the same;

I. Attractive Nuisances. The maintenance on any premises within the city of a building, structure, pool, pond, excavation, piece of equipment, or other artificial device or condition which the owner, lessee or occupant thereof knows or should know that children will trespass upon, and which involves a reasonable foreseeable risk of death or injury to children, which they, because of their youth, cannot be expected to understand, apprehend or discover;

J. Failure to Remove Graffiti. The failure of an owner, lessee, or occupant of any premises in the city to remove graffiti from any building, wall, fence or other structure on said premises within thirty days after receipt of written notice to do so from the building official;

K. Nuisance Abatement by Statute. Any and all other conditions in and upon, and uses of, buildings and premises in the city which are defined as a public nuisance by Part 3 of Division IV of the Civil Code (commencing with Section 3479), or any other applicable state or city law, ordinance, rule or regulation, specifically including, but not limited to, the construction codes adopted by reference, with local amendments, in Chapter 15.08 of this code.

(Ord. 557 § 1 (part), 1999)

This article is adopted pursuant to the provisions of Section 38773.5 of the Government Code.

(Ord. 557 § 1 (part), 1999)

For purposes of interpreting the various provisions of this chapter, whenever specific duties, powers or responsibilities are assigned to the city manager, such duties, powers and/or responsibilities shall be interpreted as being subject to delegation by the city manager to any appropriate number of designees.

(Ord. 557 § 1 (part), 1999)

When it is necessary to make an inspection to enforce the provisions of this code, or when the city manager or the city manager's authorized representative has reasonable cause to believe that there exists a parcel of land or structure upon a premises a condition which makes the parcel of land or structure a nuisance or vexation as defined in this code, the city manager may enter the building or premises at reasonable times to inspect or to perform the duties imposed by this code, provided that if such building or premises be occupied that credentials be presented to the occupant and entry requested. If such building or premises be unoccupied, the city manager shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. If entry is refused, the city manager shall have recourse to the remedies provided by law to secure entry.

(Ord. 557 § 1 (part), 1999)

When the city manager has inspected or caused to be inspected any condition on any parcel of land or structure and has found and determined that such condition on such parcel of land or structure is a nuisance, the city manager shall commence proceedings to cause the abatement of such nuisance and to make the costs of such abatement a special assessment against the parcel upon which such nuisance exists. If the city manager, pursuant to Section 9.04.200 of this code, declares an emergency nuisance, such emergency nuisance may be abated in accordance with said section.

(Ord. 557 § 1 (part), 1999)

A. The city manager shall issue a notice and order directed to the record owner of the parcel of land. The notice and order shall contain:

1. The street address and a legal description sufficient for identification of the parcel of land and structures thereon;

2. A statement that the city manager has found the premises or structures to be nuisance with a brief and concise description of the conditions found to render the building dangerous under the provisions of Soledad City Code;

3. A statement of the action required to be taken as determined by the city manager;

4. Statements advising that if the abatement work (without vacation also being required) is not commended within the time specified, the city manager may proceed to cause the work to be done and charge the costs thereof against the property or its owner;

5. Statements advising (i) that any person having any record title or legal interest in the parcel of land may appeal from the notice and order or any action of the city manager to the board of appeals, provided the appeal is made in writing as provided in this code and filed with the city manager within fifteen days from the date of service of such notice and order; and (ii) that failure to appeal will constitute a waiver of all right to an administrative hearing and determination of the matter.

B. Service of Notice and Order. The notice and order, and any amended or supplemental notice and order, shall be served upon the record owner and posted on the property; and one copy thereof shall be served on each of the following if known to the city manager or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance of record; the owner or holder of any lease of record; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located. The failure of the city manager to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served to relieve any such person from any duty or obligation imposed by the provisions of this section.

C. Method of Service. Service of the notice and order shall be made upon all persons entitled thereto either personally or by mailing a copy of such notice and order by certified mail, postage prepaid, return receipt required, to each such person at their address as it appears on the last equalized assessment roll of the county or as known to the city manager. If no address of any such person so appears or is known to the city manager, then a copy of the notice and order shall be so mailed, addressed to such person, as the address of the parcel of land involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this section. Service by certified mail in the manner herein provided shall be effective on the date of the mailing.

D. Proof of Service. Proof of service of the notice and order shall be certified to at the time of service by a written declaration under penalty of perjury executed by the persons affecting service, declaring the time, date and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail shall be affixed to the copy of the notice and order retained by the city manager.

(Ord. 557 § 1 (part), 1999)

In addition to posting the notice and order required by Section 9.04.050, the city manager shall direct the city clerk to publish such notice once in a newspaper of general circulation in the city.

(Ord. 557 § 1 (part), 1999)

A. Whenever the city manager has knowledge of a violation of any provision of this code, or any other ordinance of the city, or any rule, regulation or order promulgated or issued pursuant to this code, or the provisions of any code adopted by reference by the city, or any condition of an approval, permit or license granted pursuant to this code, the city manager shall notify the owner of the property upon which the violation is located on the city's intent to record a notice of code violation in the office of the recorder of the county. Such notice of intent shall be mailed to the owner at the address shown on the latest available assessor's roll, or as otherwise known to the city manager, and a copy thereof shall be posted upon the property. The notice of intent shall describe the nature of the violation and inform the owner that a notice of code violation will be recorded unless (i) a hearing before the city manager is requested within twenty days of the date of the notice or (ii) the violation removed within a time specified by the city manager.

B. In the event that a hearing is not requested and the violation has not been corrected, or in the event that after a hearing is conducted and consideration of all evidence presented thereat by the owner, the city manager determines that a violation of one or more of the aforementioned codes, ordinances, rules, regulations, orders or conditions in fact exists, the city manager may record the notice of code violation in the office of the recorder of the county. The determination by the city manager, following a hearing, that a violation exists, may be appealed to the board of appeals in accordance with the procedure set forth in Section 9.04.080 of this code.

C. At the request of the owner or any other interested person and upon determination by the city manager that the violation has been fully corrected and no longer exists, the city manager shall furnish to the owner or other interested person a notice of expungement of the previous recorded notice of code violation.

D. The recording of a notice of code violation pursuant to this section shall be in addition to any other rights, remedies or actions available to the city by reason of the same violation as described in the notice.

(Ord. 557 § 1 (part), 1999)

A. In order to hear and decide appeals of orders, decisions or determinations made by the city manager relative to the application and interpretations of this article, there shall be and is hereby created a board of appeals consisting the planning director, assistant city manager and planning commissioner who is qualified by experience and training to pass upon matters pertaining to nuisance abatement and who is not employed by the city. The city manager shall be an ex officio member and shall act as secretary to said board but shall have no vote upon any matter before the board. The member not employed by the city shall be appointed by the city council and shall hold office at its pleasure. The board shall adopt rules of procedures for conducting its business and shall render all decisions and findings in writing to the appellant, with a duplicate copy to the city manager. Appeals to the board shall be processed in accordance with the provisions contained in Chapter 6 of the most current adopted edition of the Uniform Code for the Abatement of Dangerous Buildings. Copies of all rules or regulations adopted by the board shall be delivered to the city manager, who shall make them freely accessible to the public.

B. The board of appeals shall have no authority relative to interpretation of the administrative provisions of this code nor shall the board be empowered to waive requirements of city codes.

(Ord. 557 § 1 (part), 1999)

A. Any person entitled to service under this article may appeal from any notice and order or any action of the city manager under this code by filing at the office of the city manager a written appeal containing:

1. A heading in the words: "Before the Board of Appeals of the.....of....;"

2. A caption reading: "Appeal of.....," giving the names of all appellants participating in the appeal;

3. A brief statement setting forth the legal interest of each of the appellants in the building or the land involved in the notice and order;

4. A brief statement in ordinary and concise language of the specific order of action protested, together with any material facts claimed to support the contentions of the appellant;

5. A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed the protested order or action should be reversed, modified or otherwise set aside;

6. The signatures of all parties named as appellants and their official mailing addresses;

7. The verification (by declaration under penalty of perjury) of a least one appellant as to the truth of the matters stated in the appeal;

The appeal shall be filed within fifteen days from the date of service of such notice and order or action of the city manager; provided, however that if the parcel of land or structure is in such condition as to make it immediately dangerous to the life, limb, property or safety of the public or adjacent property, such appeal shall be filed within ten days from the date of the service of the notice and order of the city manager.

B. Upon receipt of any appeal filed pursuant to this section, the city manager shall present it as the next regular or special meeting of the board of appeals.

C. As soon as practicable after receiving the written appeal, the board of appeals shall fix a date, time and place for the hearing of the appeal by the board. Such date shall not be less than five days nor more than thirty days from the date the appeal was filed with the city clerk. Written notice of the time and place of the hearing shall be given at least five days prior to the date of the hearing to each appellant by the secretary of the board either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal.

D. Failure of any person to file an appeal in accordance with the provisions of the city code shall constitute a waiver of the right to an administrative hearing and adjudication of the notice and order or any portion thereof.

E. Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.

(Ord. 557 § 1 (part), 1999)

A. Enforcement of any notice and order of the city manager issued under this code shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.

B. Procedures for the conduct of the appeals hearing shall comply with the provisions of the most current adopted edition of the Uniform Code for the Abatement of Dangerous Buildings, Chapter 9.

(Ord. 557 § 1 (part), 1999)

After any order of the city manager or the board of appeals made pursuant to this code shall have become final, no person to whom any such order is directed shall fail, neglect or refuse to obey any such order. Any person who fails to comply with any such order is guilty of a misdemeanor and shall be prosecuted for said crime in accordance with this code.

(Ord. 557 § 1 (part), 1999)

Abatement work may be performed by the city's own employees or by independent contractors, or any combination thereof. The city manager and his authorized representatives and contractors may enter upon private property as may be necessary or appropriate in order to abate the nuisance declared to exist upon such property. Prior to commencement of the abatement work by or on behalf of the city, the property owner may abate the nuisance at his own expense.

(Ord. 557 § 1 (part), 1999)

The city manager shall keep an accurate account of the abatement costs incurred by the city, including attorney's fees. Such account shall indicate, where appropriate, the costs attributable to each separate parcel of land upon which the abatement work is performed. Following completion of all abatement work, the city manager shall prepare a final itemized written report showing the total abatement costs and shall submit such report for confirmation by the city council at its next available regular meeting after the notice period set forth herein. At least ten days prior to the date of such meeting, a copy of the report together with a written notice of the date on which the same shall be considered by the city council shall be mailed to the persons to whom notice was mailed pursuant to Section 9.04.050(B), (C) and (D) of this code and a copy thereof shall also be posted upon the property involved and at city hall.

(Ord. 557 § 1 (part), 1999)

At the time fixed for considering the report of costs provided for in Section 9.04.130, the city council shall hear any objections of the owners of the property to be assessed for abatement costs. Any person filing any protest or objection who is affected by the proposed charge shall file a written report of protests or objections with the city clerk at any time prior to the time set for the hearing on the report of costs. Each such protest or objection must contain a description of the property in which the signer thereof is interested and the grounds of the protest or objection. City council may modify the report of cost if deemed necessary. The city council may then, by resolution, confirm the report as submitted or modified.

(Ord. 557 § 1 (part), 1999)

The city manager may receive payment in full of the abatement costs charged against a parcel of land at any time after confirmation of the report by the city council pursuant to Section 9.04.130 and prior to the filing of such report with the county tax collector pursuant to Section 9.04.170.

(Ord. 557 § 1 (part), 1999)

When the owner has fully abated a public nuisance pursuant to an order of abatement made and serves as provided in Section 9.04.050(B), (C) and (D) and when the work of abatement has been approved by the building official, all proceeding taken against such owner arising out of the nuisance shall be terminated and the owner shall be relieved of all penalties under the provisions of this chapter, except as provided in this section. The owner shall pay the city a fee, to be fixed by resolution of the city council, sufficient to reimburse the city for its costs incurred in investigating the matter and taking action under the provision of this chapter or any other relief to abate pursuant to any other code, ordinance, law, or statutes enforce by the city.

(Ord. 557 § 1 (part), 1999)

After the city council has confirmed the report of costs to abate the nuisance declared to exist upon a parcel of land, and if such costs have not been paid in full, the city clerk shall transmit a copy of the report together with a copy of the resolution confirming the same to the county tax collector, who shall add the amount of abatement costs, or unpaid portion thereof, to the next regular tax bill as a special assessment for municipal purposes levied against such parcel. The amount of the assessment shall be collected at the time and in the manner as ordinary municipal taxes. If such assessment is delinquent, the amount shall be subject to the same interest and penalties and procedure of foreclosure and sale provided for ordinary municipal taxes.

(Ord. 557 § 1 (part), 1999)

The city council may order refunded all or any part of a tax paid pursuant to the provisions of this article if the city council finds that all or any part of the tax has been erroneously levied. A tax, or any part thereof, shall not be refunded unless a claim is filed with the city clerk 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, administrator, personal representative or successor in interest.

(Ord. 557 § 1 (part), 1999)

Nothing in this chapter limits the city to the remedies provided for in this chapter, or prevents the city from initiating and prosecuting any other remedy available to it for the abatement of a public nuisance, or for the recovery of costs for the abatement, under civil or criminal statutes of the state or under ordinances of the city.

(Ord. 557 § 1 (part), 1999)

If in the opinion of the city manager, any nuisance, as defined in Section 9.04.010 constitutes an immediate hazard to the public health, safety or welfare or materially interferes with public travel or passage, the city manager may declare a nuisance an emergency and cause such nuisance to be abated immediately. The abatement work may be performed by the city's own employees or by independent contractors, or any combination thereof. The city manager and city authorized representatives and contractors may enter upon private property as may be necessary or appropriate in order to perform the abatement work. The collection of costs associated with such emergency abatement work shall be recovered as set forth in this chapter for nonemergency nuisance abatement.

(Ord. 557 § 1 (part), 1999)

The owner, lessee or occupant of any premises within the city who permits or allows the existence of a public nuisance, as defined in this chapter, upon a lot or premises owned, occupied or controlled by him or her, or who violates the provisions of this chapter, is guilty of a misdemeanor.

(Ord. 557 § 1 (part), 1999)

The procedure set forth in this chapter for the abatement of a nuisance is not exclusive but in addition to any other procedure for abatement available to the city under the provisions of Section 3494 of the Civil Code, Section 731 of the Code of Civil Procedure, Section 38773 of the Government Code, or any other lawful authority.

(Ord. 557 § 1 (part), 1999)

Whenever the city manager is authorized or directed to commence or sustain proceedings, either in law or in equity, to enforce the provisions of the code, or any other ordinance of the city, or any rule, regulation or order promulgated or issued pursuant to this code, or the provision of any code adopted by reference by this code, or any condition of approval, permit or license granted pursuant to this code, or to enjoin or restrain any violation of the same, or to otherwise abate any public nuisance, or to collect any sum of money on behalf of the city, then the city shall be entitled to collect all costs and expenses of the same, including, without limitation, reasonable attorney fees and reasonable investigation costs, which shall be set by the city council, by resolution, and made part of any judgement in any such action or proceeding.

(Ord. 557 § 1 (part), 1999)