Chapter 8.04
ABATEMENT OF NUISANCES1
Sections:
8.04.010 General provisions.
8.04.020 Abatement – Notice.
8.04.030 Notice – Posting.
8.04.040 Effect of failure to receive notice.
8.04.050 Noncompliance – Second notice.
8.04.060 Hearing.
8.04.070 Extension of time.
8.04.080 Noncompliance – Abatement by city.
8.04.090 Abatement by city – Record of expenses – Statement.
8.04.100 Statement of expense – Hearing.
8.04.110 Nonpayment of expenses – Assessment and collection.
8.04.120 Notice of special assessment.
8.04.130 Emergency abatement procedure.
8.04.010 General provisions.
A. The procedure set forth in this chapter for the abatement of a nuisance and the making of the cost of abatement of a nuisance which exists upon a parcel of land 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 by another provision of this code or any other ordinance which the city may adopt.
B. 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. (Prior code § 1-401).
8.04.020 Abatement – Notice.
When the city council declares that something constitutes a nuisance, it shall mail a notice to the owner of the property and the mortgagee or beneficiary under a recorded deed of trust. The notice shall state the conditions which constitute the public nuisance and shall order the abatement of the nuisance within 30 days after the date of notice. (Prior code § 1-402).
8.04.030 Notice – Posting.
In addition to the mailed notice under BMC 8.04.020, the city shall post conspicuously at least one copy of the notice upon the property where the nuisance exists. (Prior code § 1-403).
8.04.040 Effect of failure to receive notice.
The fact that the owner or other person to whom notice is given of the nuisance abatement proceedings does not receive notice does not affect the validity of the proceedings. (Prior code § 1‑404).
8.04.050 Noncompliance – Second notice.
If the nuisance is not abated within the period given in the notice, the council may determine to proceed with the abatement. When it determines to proceed, the council shall give a second notice in the same manner set forth in BMC 8.04.020 and 8.04.030. The second notice shall direct the person to appear before the council or such other person as the council specifies in the notice at a stated time and place and show cause why the nuisance should not be abated. The notice shall be headed "notice to abate nuisance" in letters of not less than one inch in height and shall be substantially in the following form:
NOTICE TO ABATE NUISANCE
__________________ (name of person to whom notice is given) is notified to appear before __________________ (insert person designated to conduct hearing) of the City of Benicia at a meeting to be held on _________________, 20____, at the hour of _____ o’clock, at _________________ (place of meeting), and show cause, if any he has, why the nuisance should not be abated and the cost of abatement of the nuisance upon the parcel of land should not be made a special assessment against that parcel.
Dated: __________________
City Council of the City of Benicia
BY: ______________________
(Prior code § 1-405).
8.04.060 Hearing.
At the time fixed in the notice, the council or other person specified to hear the matter shall hear the testimony of all competent persons desiring to testify respecting the condition constituting the nuisance, including the estimated cost of its abatement and any other matter which may be pertinent. At the conclusion of the hearing, the council may, by resolution, declare its findings.
If the council so concludes, it may declare the condition existing to be a nuisance and direct the person owning the property upon which the nuisance exists to abate it within 30 days after the date of posting on the premises a notice of the adoption of the resolution. (Prior code § 1-406).
8.04.070 Extension of time.
The council may grant an extension of time to abate the nuisance if, in its opinion, good cause for an extension exists. (Prior code § 1-407).
8.04.080 Noncompliance – Abatement by city.
If the person fails to abate the nuisance within the time set forth, the city may proceed to abate the nuisance. (Prior code § 1‑408).
8.04.090 Abatement by city – Record of expenses – Statement.
The city shall keep an itemized account of the expenses involved in abating the nuisance. The city shall post conspicuously on the property and shall also mail to the owner of the property a statement showing the expense of the abatement, together with a notice of the time and place when the statement will be submitted to the council for approval and confirmation and at which time the council shall consider objections or protests to the cost of the work. (Prior code § 1‑409).
8.04.100 Statement of expense – Hearing.
At the time fixed for the hearing on the statement of expense, the council shall consider the statement and protests or objections raised by the person liable to be assessed for the cost of the abatement. The council may revise, correct or modify the statement as it considers just and thereafter shall confirm the statement by motion or resolution. (Prior code § 1‑410).
8.04.110 Nonpayment of expenses – Assessment and collection.
If the property owner does not pay the expense of abating the nuisance within five days after the council confirms the costs of abatement, the cost shall become a special assessment against the real property upon which the nuisance was abated. The assessment shall continue until it is paid, together with interest, at the rate of six percent a year computed from the date of confirmation of the statement until payment. 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 levy, collection and enforcement of municipal taxes apply to this special assessment. (Prior code § 1-411).
8.04.120 Notice of special assessment.
The city shall file in the office of the county recorder a certificate substantially in the following form:
NOTICE OF SPECIAL ASSESSMENT
Under the authority of Government Code Section 38773.5 and Chapter 8.04 BMC, the city did on __________________, 20____, abate a nuisance upon the real property hereafter described and then on __________________, 20____, did assess the cost of the abatement upon the real property. The City of Benicia claims a special assessment on the real property for the expense of doing the work in the amount of $______. This amount is a special assessment against the real property until it is paid, with interest at the rate of six percent a year from _________________, 20____, (insert date of confirmation of statement), and discharged of record. The real property referred to above, and upon which the special assessment is claimed is that certain parcel of land situated within the City of Benicia, County of Solano, State of California, more particularly described as follows:
Dated: __________________, 20____.
City of Benicia
By: _________________________
(Prior code § 1-412).
8.04.130 Emergency abatement procedure.
When the conditions which constitute the nuisance pose an immediate threat to the public peace, health or safety, the council may order the nuisance abated immediately or take 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 four-fifths vote of the council. (Prior code § 1-413).
1 For statutory provisions authorizing cities to declare and abate nuisances, see Government Code § 38771 et seq.