Chapter 8.10
PUBLIC NUISANCES AND ABATEMENT PROCEDURES

Sections:

8.10.010    Purpose.

8.10.020    Declaration of public nuisance.

8.10.030    Definitions.

8.10.040    Enforcement.

8.10.050    Service of notice.

8.10.060    Notice and order to abate.

8.10.070    Request for hearing.

8.10.080    Request for hearing form.

8.10.090    Hearing.

8.10.100    Exchange of information.

8.10.110    Administrative hearing – Procedures.

8.10.120    Hearing decision.

8.10.130    Abatement.

8.10.140    City expenses – Record of costs.

8.10.150    Nuisance abatement lien and special assessment procedures.

8.10.160    Triple costs.

8.10.170    Emergency abatement.

8.10.180    Judicial and other remedies.

*    Prior legislation: Ords. 478 and 725.

8.10.010 Purpose.

This chapter is adopted pursuant to the City’s police powers and California Government Code Sections 38771 through 38773.7, including any successor statutes, for the purpose of defining public nuisances and establishing nuisance abatement procedures. Nothing contained in this chapter is intended to, nor shall it, preclude the City from pursuing any other available administrative, civil or criminal remedies concurrently or in addition to the proceedings established by this chapter to enforce this code. (Ord. 1324 § 1, 2007)

8.10.020 Declaration of public nuisance.

The following are hereby declared to be public nuisances within the City of Palmdale:

(A) Any public nuisance known at common law or in equity jurisprudence;

(B) Any public nuisance as defined by state law;

(C) Any condition caused or permitted to exist in violation of any provision of the Palmdale Municipal Code;

(D) Any condition or use of property in violation of the provisions of the Palmdale Zoning Ordinance;

(E) Any attractive nuisance which may prove detrimental to children whether in a building, on the premises of a building, or upon an unoccupied lot. This includes any abandoned wells, shafts, basements or excavations; abandoned refrigerators and motor vehicles; or any structurally unsound fences or structures; or trash, garbage, rubbish, refuse, fences, debris or vegetation which may prove a hazard for inquisitive minors;

(F) Inadequate or unsanitary sewerage or plumbing facilities;

(G) Any condition or use of premises or of building exteriors which is detrimental to the property of others. This includes, but is not limited to, the keeping or the depositing on or the scattering over the premises of any of the following:

(1) Rubbish including, without limitation, waste matter, litter, trash, refuse, debris or dirt which is or may become a menace to health, or which is or may become offensive to the senses;

(2) Lumber, junk, trash or debris;

(3) Abandoned, discarded or unused objects or equipment such as automobiles, furniture, stoves, refrigerators, freezers, cans or containers;

(4) Stagnant water or excavations;

(5) Any device, decoration, design, fence, structure, clothesline or vegetation which is unsightly by reason of its condition;

(H) Any condition of vegetation overgrowth, dirt or land erosion which encroaches into, over or upon any public right-of-way, including, but not limited to, streets, alleys or sidewalks, so as to constitute either a danger to the public safety or an impediment to public travel;

(I) Excessive overgrowth of vegetation, dead, decayed or diseased trees, growth of weeds or deposit of garden waste that are likely to harbor rats or vermin, constitute a fire or health hazard, or may be dangerous to the public health, safety or welfare. Weeds include plants which bear seeds of a downy or wingy nature and any other plants, including tumbleweeds, which attain such large growth as to become, when dry, a fire menace to adjacent property, plants which are otherwise noxious or dangerous when the conditions of growth are such as to constitute a menace to the public health, dry grass, stubble, brush, refuse or other combustible material which endangers the public safety by creating a fire hazard;

(J) Any swimming or architectural pools or spas not properly maintained so as to create a safety hazard or harbor insect infestation, or create a visible deteriorated or blighted appearance, including but not limited to: water in such pools or spas which has been allowed to stagnate, or to become stale or foul through lack of circulation; pools in which the bottom and sides of the pool or spa are not reasonably free of sediment, dirt, slime and algae; water not sufficiently clear so that the main drain outlet is clearly visible to an adult standing on the pool deck; a lack of fencing or other barriers required for swimming pool and spa enclosures as required by Chapter 8.08 PMC; and premises constituting a safety hazard inclusive of, but not limited to, lack of security, water stagnation, or abandoned pools, regardless of whether or not there is water in the pools;

(K) Poison oak and poison ivy when the condition of growth is such as to constitute a menace to the public health;

(L) Any dangerous land conditions or land instability on private property;

(M) Real property that repeatedly has been the situs of nuisance activity, including but not limited to: disturbing the peace, illegal drug activity, public drunkenness, harassment of passersby, illegal gambling, prostitution, sale of stolen goods, acts of violence, public urination, acts of lewd conduct, unreasonably loud noise, or excessive littering; and

(N) Graffiti. (Ord. 1324 § 1, 2007)

8.10.030 Definitions.

The definitions set forth in Chapter 1.20 PMC are applicable to this chapter. (Ord. 1324 § 1, 2007)

8.10.040 Enforcement.

Whenever a City enforcement officer, building official, health officer, or such other City official as may be designated by the City Manager determines that any condition, building or premises within the City is being maintained in violation of the provisions of this code and/or constitutes a public nuisance, the officer shall give a written notice and order to abate to the owner of record as shown on the last equalized assessment roll and also to any other owner or responsible person known to the officer. (Ord. 1324 § 1, 2007)

8.10.050 Service of notice.

The notice and order to abate shall be served in the manner described in PMC 1.20.050 for service of administrative citations and conspicuously posted on the property containing a nuisance. (Ord. 1324 § 1, 2007)

8.10.060 Notice and order to abate.

The notice and order to abate shall notify the responsible persons that the officer has determined a public nuisance to exist; specify the condition or conditions to be corrected or remedied or actions required to abate, correct or bring the condition into compliance; specify a reasonable period within which this must be accomplished; describe the process to contest the officer’s determination by requesting a hearing; notify the responsible persons that failure to request a hearing will constitute a waiver of the right to a hearing and an admission that the public nuisance does exist and that the abatement order is reasonable and justified; and notify the responsible persons that in the event of the owner’s failure to correct the nuisance within the time prescribed, the City may cause the nuisance to be abated and the cost incurred on behalf of the City to become a lien on the property, in accordance with the provisions of this chapter. The notice and order to abate may be served as part of or in conjunction with an administrative citation. (Ord. 1324 § 1, 2007)

8.10.070 Request for hearing.

Any interested person may contest the officer’s determination that a public nuisance exists or the reasonableness of the abatement order by filing a request for an administrative hearing on a City-approved form with the Office of the City Clerk, 38300 Sierra Highway, Palmdale, CA 93550, within 20 calendar days from the issuance date of a notice and order to abate. Any responsible person who does not file a request for a hearing in the office of the City Clerk within the required period shall have waived the right to a hearing and admitted that the public nuisance described in the notice and order to abate does exist and that the abatement order is reasonable and justified. In that event the order to abate issued by the Enforcement Officer is final. (Ord. 1324 § 1, 2007)

8.10.080 Request for hearing form.

A request for a hearing shall state: the date and number of the notice and order to abate; the address or location of the property; the name, address, telephone and any facsimile numbers, where the person requesting the hearing may be contacted; a statement explaining why the notice and order to abate is being contested; and the date and signature of the person requesting the hearing. (Ord. 1324 § 1, 2007)

8.10.090 Hearing.

The hearing will be conducted within 60 days of the date a timely and complete request is received by the office of the City Clerk. The City will notify the persons requesting the hearing in writing by first class mail of the date, time and place set for the hearing at least 10 calendar days prior to the date of the hearing. Service of this notice is deemed complete at time of mailing. The failure to receive a properly addressed notice of hearing shall not invalidate any hearing, City action or proceeding conducted pursuant to this chapter. (Ord. 1324 § 1, 2007)

8.10.100 Exchange of information.

At least three calendar days prior to the date set for hearing, the officer and the persons requesting the hearing shall mail a copy of all reports, statements or pictures to be provided to the hearing officer, to the other (by the officer to each person requesting the hearing and by each person requesting the hearing to the City Clerk), by first class mail. Failure to receive such documents shall not invalidate any hearing, City action or proceeding conducted pursuant to this chapter. (Ord. 1324 § 1, 2007)

8.10.110 Administrative hearing – Procedures.

(A) The hearing officer designated or appointed by the City Manager shall hear all requests for hearings pursuant to this chapter in accordance with the procedures established herein.

(B) The person requesting a hearing may appear at the hearing in person or by written declaration executed under penalty of perjury. Said declaration and any documents in support thereof shall be tendered to and received by the office of the City Clerk at least three City business days prior to the hearing. If such person fails to attend the scheduled hearing, and does not submit a written declaration in a timely manner, he or she shall be deemed to have waived the right to a hearing. In such an instance, the hearing officer shall issue an abatement order and judgment in favor of the City.

(C) At the hearing, the hearing officer shall accept reliable evidence from any person if such evidence bears on the issue of whether a public nuisance exists on the subject property. The hearing officer is authorized to take testimony and is authorized to administer oaths or affirmations pursuant to California Code of Civil Procedure Section 2093(a).

(D) Administrative hearings are informal and formal rules of evidence and discovery do not apply. The City bears the burden of proof to establish, by competent evidence, the existence of a public nuisance and responsibility therefor, by a preponderance of evidence. The person requesting the hearing and officer shall have an opportunity to present evidence and witnesses and to cross-examine witnesses. A person requesting the hearing may bring an interpreter to the hearing, provided there is no expense to the City therefor. The hearing officer may question any person who presents evidence or who testifies at any hearing.

(E) Hearings may be continued once at the request of a person requesting the hearing or the officer who issued the citation. The hearing officer may also continue the hearing for cause. (Ord. 1324 § 1, 2007)

8.10.120 Hearing decision.

Based upon the evidence regarding the alleged nuisance, the hearing officer shall determine whether or not a public nuisance exists on the subject property. As soon as is practicable following the close of such hearing, the hearing officer shall render a written decision on the matter. If a public nuisance is found to exist, the hearing officer shall issue an order requiring the abatement of the public nuisance in a reasonable time and manner as set forth in the order and shall also notify the owner(s) that in the event the responsible person(s) fail to correct the nuisance within the time prescribed, the City will cause the nuisance to be abated and the cost of such abatement will be recorded as a lien on the property, in accordance with the provisions of this code. The hearing officer shall promptly give written notice to the person requesting the hearing and to the owner(s) and any other interested person who requests, in writing, notice of such decision, including a copy of the order. The order issued by the hearing officer shall be deemed a final order and may be judicially reviewed pursuant to California Code of Civil Procedure Section 1094.6. There is no right to an appeal to the City Council. (Ord. 1324 § 1, 2007)

8.10.130 Abatement.

At no cost to the City, the owner and other responsible person shall comply with all of the provisions of any final abatement order. If such persons fail, for any reason, to comply with a final abatement order within the time required in the order, the City Manager/designee shall cause the nuisance described in the abatement order to be abated by City forces or by private contractor. The City Attorney is authorized to take such action as needed to gain entry upon the property where the public nuisance exists for purposes of abating a public nuisance. (Ord. 1324 § 1, 2007)

8.10.140 City expenses – Record of costs.

The City shall keep an account of the costs, including incidental expenses, of abating the nuisance on each separate lot or parcel of land where the work is done. (Ord. 1324 § 1, 2007)

8.10.150 Nuisance abatement lien and special assessment procedures.

(A) Lien. Pursuant to California Government Code Sections 38773, 38773.1, and 38773.5, and any successor statutes, persons failing to abate a public nuisance as ordered pursuant to this chapter shall be obligated to pay all City expenses of abating the nuisance and all administrative costs associated therewith. A nuisance abatement lien in favor of the City for such expenses of the City shall be created and recorded, pursuant to this section. The lien shall specify the amount of the lien, the name of the City, 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) Notice of Proposed Recordings. Prior to the recordation of the lien, an itemized notice of the lien amount and proposed recording shall be served on the property owner of record of the parcel of land on which the nuisance was abated by the City, based on the last equalized assessment roll or the supplemental roll, whichever is more current. The notice shall be served in the same manner as a summons in a civil action in accordance with California Code of Civil Procedure Section 415.10, et seq. If the owner of record, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days, and publication thereof in a newspaper of general circulation published in the county in which the property is located.

(C) Recording. If the owner fails to pay the lien amount within 10 days of the notice, the City’s nuisance abatement lien shall then be recorded in the Los Angeles County recorder’s office, and from the date of recording shall have the force, effect, and priority of a judgment lien and may be collected in any manner provided by law for collection of judgment liens.

(D) Special Assessment. The City’s total costs described in this chapter may, as an alternative to lien procedure provided above, be collected as a special assessment against the lot or parcel on which the nuisance existed in accordance with the procedures specified in California Government Code Section 38773.5.

(E) Satisfaction. In the event that the lien or special assessment is discharged, released, or satisfied, either through payment or foreclosure, a notice of the discharge containing the information specified in the lien shall be recorded by the City.

(F) Fees. Any fees or costs incurred by the City for processing, recording of the lien and providing notice to the property owner may be recovered by the City as part of its foreclosure action to enforce the lien.

(G) Attorneys’ Fees. The prevailing party is entitled to recover its costs and attorneys’ fees in any action, administrative hearing or proceeding, or special proceeding to abate a nuisance, but only if the City requests attorneys’ fees when bringing a nuisance abatement action. If the City does not include such a request for attorneys’ fees in its initial moving papers, then neither party shall be awarded attorneys’ fees. The award of attorneys’ fees shall not exceed the reasonable amount of attorneys’ fees incurred by the City in such action. (Ord. 1324 § 1, 2007)

8.10.160 Triple costs.

Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a condition that may be abated in accordance with this chapter, except conditions abated pursuant to Health and Safety Code Section 17980, the court may order the owner to pay treble the costs of the abatement. (Ord. 1324 § 1, 2007)

8.10.170 Emergency abatement.

Notwithstanding any other provision of this code, whenever the City Manager/designee determines that a public nuisance, as defined in this chapter, or in any other applicable law, exists, and that such public nuisance constitutes an immediate threat, hazard or danger to persons or property, the City Manager, without observing the procedures set forth in this chapter with reference to public nuisance abatement, may forthwith immediately cause the abatement of such public nuisance in such manner as the City Manager/designee determines is reasonably required. If the City Manager/designee deems it feasible, the City Manager/designee shall attempt to give the owner and occupant verbal notice of the existence of the public nuisance, and the proposed timing and method of abatement thereof. The City Manager shall, forthwith, report such circumstances to the City Council. The City shall notify in writing the owner or possessor of the property, place or area upon which a nuisance has been abated by the City of the cost of the abatement. Such notification shall be given in the same manner as required by PMC 8.10.050. The provisions of PMC 8.10.140, 8.10.150 and 8.10.160 shall be applicable. (Ord. 1324 § 1, 2007)

8.10.180 Judicial and other remedies.

(A) Nothing in this chapter shall be deemed to prevent the City Attorney from:

(1) Commencing a civil action in the superior court to enforce all or any of the provisions of any abatement order;

(2) Commencing a civil action to abate a public nuisance as an alternative to or in conjunction with an administrative proceeding pursuant to this chapter;

(3) Filing a civil action to recover the amount of a confirmed accounting from an owner or occupant of the lot to which it relates;

(4) Filing a criminal action to enforce this code; or

(5) Issuing an administrative citation to enforce this code.

(B) Where a civil action is filed, if the court issues an order or a judgment which finds a public nuisance to exist, and orders or approves the abatement of the public nuisance, or where the court validates an accounting, the court may also award the City its actual costs of abatement, including, without limitation, reasonable attorneys’ fees incurred by the City in such judicial proceeding as provided in PMC 8.10.150(G). (Ord. 1324 § 1, 2007)