Tracy Municipal Code Ch. 1.32 Public Nuisance Abatement

(a) The City may direct a property owner to remove a nuisance on the property, and if the owner fails to do so, to remove the nuisance at the owner's expense.

(b) The procedure set forth in this chapter for the abatement of a nuisance and the making of the cost of abatement a special assessment against that parcel is adopted under Government Code section 38773.5. The procedure set forth in this chapter for abatement applies to any nuisance which the City declares is a nuisance either under this Code or by another ordinance which the City may adopt.

(c) The procedure set forth in this chapter is not exclusive and is in addition to the procedure for abatement which is conferred upon the City by Civil Code section 3494, Code of Civil Procedure section 731, Government Code section 38773, or other lawful authority.

(Ord. 1040 § 3 Exh. C (part), 2002)

In this chapter, the following definitions apply.

"Costs" or "expenses" to abate the nuisance shall include the actual cost of abatement plus all administrative expenses, including direct and indirect personnel costs; costs incurred in documenting the nuisance; the actual expenses and costs of the City in the preparation and dissemination of notices, specifications, and contracts and in inspecting the work; the costs of printing and mailing the required notices, and the costs of imposing a lien, if a lien becomes necessary.

"Enforcement officer" shall mean any City employee or agent of the City with the authority to enforce a provision of this Code.

"Hearing officer" shall mean a person designated by the City Manager to conduct an administrative hearing. The designated hearing officer shall be an impartial person, such as (1) a City employee from a department which has no involvement in Code enforcement, or (2) someone selected randomly from a panel of law students and/or local attorneys willing to volunteer as a hearing officer, or (3) someone hired from an organization which provides hearing officers, in which case the cost will be shared equally by the City and the person cited.

"Owner" shall mean the person owning property, as shown on the last equalized assessment roll or the supplemental roll (whichever is more current), or as known to the enforcement officer; the lessee, tenant or other person having control or possession of the property; and the mortgagee under a recorded deed of trust.

(Ord. 1040 § 3 Exh. C (part), 2002)

(a) Determination. Whenever the enforcement officer determines that property within the City is being maintained as a nuisance, the enforcement officer shall give written notice to the owner. The notice is referred to as a "Notice to Abate or Show Cause."

(b) Contents of notice. The notice to abate or show cause shall include the following:

(1) A Statement directing the owner to abate the nuisance within a specified period of time or to request an administrative hearing pursuant to section 1.32.040 to show cause why the condition should not be abated;

(2) The length of time permitted for voluntary abatement, which shall be at least ten (10) days;

(3) The length of time within which the owner must file a written request for a show cause hearing, which shall be at least seven (7) days;

(4) The street address, legal description or other description sufficient to identify the property affected;

(5) A description of the conditions which constitute the nuisance and the Code section(s) being violated;

(6) A Statement of what must be done to eliminate the nuisance; and

(7) A Statement that if the owner does not abate the nuisance or request a hearing in a timely manner, the City will enter the property and abate the nuisance, and that the cost of abatement will become a charge against the owner and a lien against the property.

(c) Manner of giving notice. The notice to abate or show cause shall be given to the owner in person or by regular, first class mail, postage prepaid, to the owner's address as it appears on the last equalized assessment roll or as known to the enforcement officer. Notice is deemed complete at the time notice is personally delivered or deposited in the mail, although any time limits for compliance in this section shall be extended by three working days for mailed notice. In addition to mailed notice, the enforcement officer shall post conspicuously at least one copy of the notice on the property where the nuisance exists. The failure of a person to receive notice shall not affect the validity of proceedings under this chapter.

(d) Time periods for compliance. The notice to abate or show cause shall specify the time periods within which the owner must comply. The time for voluntary abatement shall be a reasonable time under the circumstances, and shall be at least ten (10) calendar days. The time for filing a written request for an administrative hearing shall be at least seven (7) calendar days. When preparing the notice, the enforcement officer shall add three (3) days to the minimum time periods if the notice will be given by mail.

(Ord. 1040 § 3 Exh. C (part), 2002)

(a) A written request for hearing must be received by the enforcement officer within the time specified in the notice to abate or show cause.

(b) If a hearing is timely requested, the hearing officer shall set a time and date for hearing and notify the person requesting the hearing of the time, date, and place.

(c) At the time of the hearing, the hearing officer shall hear and consider all relevant evidence from the owner, enforcement officer and any other interested person. The hearing is an opportunity for the person requesting the hearing to present his or her arguments against the requirement to abate the nuisance. The hearing may be continued from time to time.

(d) At or after the hearing, the hearing officer shall render a decision either upholding, modifying or denying the requirement of abatement. The decision of the hearing officer shall be in writing, shall include the reasons for the decision, and shall be served by mail to the person requesting the hearing. If the requirement is upheld, the decision shall contain an order to abate and a deadline for abatement. The decision of the hearing officer is final.

(Ord. 1040 § 3 Exh. C (part), 2002)

If the nuisance is not completely abated within the time prescribed by the notice to abate or show cause, or by date set forth in the hearing officer's notice of decision if a hearing is held, the enforcement officer may proceed to abate the nuisance by City personnel or private contractor. The City personnel and private contractor are expressly authorized to enter upon the property for this purpose. The enforcement officer shall obtain a warrant from the court to enter the property when required to do so by law.

(Ord. 1040 § 3 Exh. C (part), 2002)

The enforcement officer shall keep an account of the costs and expenses, and shall prepare a report to the City Council.

At least ten (10) days before the Council meeting at which the cost report is considered, the enforcement officer shall mail the owner a copy, together with a notice of the time and place of the Council meeting at which the report will be considered, and advising the owner that he or she may appear and protest any cost item contained in the report. The report and notice shall also be posted conspicuously on the property. Failure to receive the notice shall not invalidate the proceedings.

(Ord. 1040 § 3 Exh. C (part), 2002)

At the time fixed for hearing on the report of expenses, the Council shall consider the report and protests or objections raised by the person liable to be assessed for the cost of abatement. The Council may revise, correct or modify the report as it considers just. Thereafter, the Council shall by resolution confirm the report and approve the nuisance abatement lien, making the cost of abatement a lien against the property if not paid.

The hearing is limited to the amount of costs and shall not include the validity of the abatement. (See section 1.32.040(d).)

(Ord. 1040 § 3 Exh. C (part), 2002)

(a) The nuisance abatement lien shall specify the amount of the lien, the name and address of the City (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.

(b) The City Clerk shall serve a copy of the resolution and the nuisance abatement lien on the owner in accordance with Government Code section 38773.1(b) and Code of Civil Procedure section 415.10 and following.

(c) If all or any portion of the costs incurred by the City in abating the nuisance remain unpaid after thirty (30) days, the portion that remains unpaid shall constitute a lien on the real property which was the subject of the notice to abate and may be collected as a nuisance abatement lien. The City Clerk shall record a certified copy of the nuisance abatement lien in the San Joaquin County Recorder's Office. From the date of recording, the lien has the force, effect and priority of a judgment lien.

Alternatively, the City may make the cost of abatement a special assessment against the property. The notice of the special assessment shall be recorded. All laws and ordinances applicable to the levy, collection and enforcement of City taxes are hereby made applicable to the special assessment. 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. (Government Code section 38773.5.)

(d) If the lien (or assessment) is discharged, released or satisfied, either through payment or foreclosure, the City shall record a notice of that fact in the recorder's office. The notice shall include all of the information set forth in subsection (a) above.

(e) The validity of an assessment or lien made under this chapter shall not be contested in any action or proceeding unless it is begun within thirty (30) days after the assessment is placed on the assessment roll or the lien is recorded. Such contest shall involve only the amount of assessment or lien and shall not involve any question of the validity of the abatement.

(Ord. 1040 § 3 Exh. C (part), 2002)

Instead of making the cost of abating a nuisance a lien or assessment upon the real property under section 1.32.080, the City may make the cost the personal obligation of the property owner, tenant, or other person creating, causing, committing, or maintaining the nuisance. In such a case, all of the procedures of this chapter apply except those specially related to assessment of the property.

(Ord. 1040 § 3 Exh. C (part), 2002)

When the conditions which constitute the nuisance pose an immediate threat to the public peace, health, or safety, the City Council may order the nuisance abated immediately or take immediate steps itself to abate the nuisance after adoption of a resolution declaring the facts which constitute the emergency. The resolution to be effective shall be adopted by a four-fifths vote of the Council. This section shall not limit the City's police power in any manner and is not the exclusive means by which the City may immediately abate a nuisance that poses such an immediate threat.

(Ord. 1040 § 3 Exh. C (part), 2002)

Nothing in this chapter prevents the City Council from authorizing the commencement of any other available civil or criminal proceeding to abate a public nuisance under applicable provisions of State law.

(Ord. 1040 § 3 Exh. C (part), 2002)