Chapter 1.30
ABATEMENT OF PUBLIC NUISANCE
Sections:
1.30.010 Purpose.
1.30.020 Definitions.
1.30.030 Summary abatement power.
1.30.040 Scope of chapter.
1.30.050 Nuisance declared.
1.30.060 Service of notice and order to abate.
1.30.070 Appeal procedure.
1.30.080 Appeal fee – Determination of amount/waiver of payment/refund.
1.30.090 Hearing procedure.
1.30.100 Determination of the hearing examiner.
1.30.110 Time for compliance.
1.30.120 Noncompliance with order to abate.
1.30.130 Report and notice of hearing.
1.30.140 Hearing on report.
1.30.150 Cost as special assessment and lien.
1.30.160 Transmittal of report to auditor – Inclusion in tax bill.
1.30.170 Manner of collection – Laws applicable.
1.30.180 Violations.
1.30.010 Purpose.
This chapter is enacted pursuant to Civil Code Section 3491 et seq. and Government Code Section 38771 et seq., and is intended to be an alternative procedure for the abatement of any public nuisance declared to be a violation of any statute, regulation or ordinance enforced by the city. It is intended to provide a uniform procedure for notification, right of appeal and assessment of costs and collection thereof for the abatement of public nuisances. This chapter may be used in conjunction with procedures established in Chapters 1.40 and 1.41 CVMC. The procedure herein is supplemental to the general penalty provision found in Chapter 1.20 CVMC, and is intended to provide due process for all those required to abate a public nuisance. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.020 Definitions.
Whenever the following words or phrases are used in this chapter, they shall have the meaning prescribed below:
The “city abatement officer” shall be the city officer responsible for enforcement of the city ordinances being violated and who initially declares said violation to be a public nuisance. (Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.030 Summary abatement power.
Whenever this code or any other provision of law authorizes the city manager or any other city officer to declare a public nuisance, the nuisance may be summarily abated by any reasonable means and without notice or hearing when immediate action is necessary to preserve or protect the public health or safety because of the existence of a dangerous condition or imminent threat to life, safety on public or private property. Summary abatement actions shall not be subject to the notice and hearing requirements of this chapter, and a city code enforcement officer shall not be prohibited from summary abatement actions after initiation of proceedings pursuant to this chapter, if immediate action at any time becomes necessary to preserve or protect the public health or safety. Summary abatement is to be limited to those actions which are reasonably necessary to immediately remove the threat.
In the event a public nuisance is summarily abated, the city abatement officer may nevertheless keep an account of the cost of abatement and bill the property owner therefor. If the bill is not paid within 15 days from the date of mailing, the abatement officer may proceed to obtain a special assessment and lien against the owner’s property in accordance with the procedures set forth in CVMC 1.30.130 through 1.30.170. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.040 Scope of chapter.
Whenever a public nuisance is declared, it may be abated in accordance with the procedures provided in this chapter. Nothing in this chapter shall be construed to limit the right and duty of any city officer to take immediate action to preserve or protect public health or safety. The procedures set forth in this chapter are not exclusive but are cumulative to all other civil and criminal remedies provided by law. The seeking of other remedies shall not preclude the simultaneous commencement of proceedings pursuant to this chapter. (Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.050 Nuisance declared.
A city code enforcement officer may declare a public nuisance for any reason specified in any city ordinance. Upon a public nuisance being declared, the city code enforcement officer shall issue a notice and order to abate substantially in the following form:
NOTICE AND ORDER TO ABATE
NOTICE IS HEREBY GIVEN THAT _____ _________________________________ [specify the condition constituting the nuisance] is in violation of Section ____ of the Chula Vista Municipal Code [or other applicable code or ordinance]. The violation has been declared a public nuisance by the city code enforcement officer and must be abated immediately. The public nuisance is on property located at _______ _________________________ [insert address or other legal property description].
YOU ARE HEREBY ORDERED TO ABATE SAID PUBLIC NUISANCE within _____ (___) [insert a reasonable number of days (not less than ten)] consecutive calendar days from the issuance of this order. The issuance date is specified below. You may abate the nuisance by _______ _________________________ [insert desired action which, if taken, will adequately remedy the situation]. If you fail to abate the public nuisance within the number of days specified, the city may order its abatement by public employees, private contractor, or other means, and the cost of said abatement may be levied and assessed against the property as a special assessment lien or billed directly to the property owner.
YOU MAY APPEAL FROM THIS ORDER OF ABATEMENT but any such appeal must be brought prior to the expiration of the number of days specified above for completion of abatement. The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by an appeal fee of _________ dollars ($_____); and be submitted to the city manager at the following address:
City Manager
276 Fourth Avenue
Chula Vista, California 91910
Tel. No. (619) 691-5031
One who is legally indigent, as determined by guidelines prepared by the city manager and after consultation with the city attorney, may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accompanying fee, or waiver, the city manager will cause the matter to be set for hearing and notify you of the date and location of the hearing.
If you have any questions regarding this matter, you may direct them to the city officer issuing this notice at the address or telephone number listed below.
ISSUANCE DATE: _________________
________________________________
(Name, title, address and telephone number of the city abatement officer issuing this notice)
(Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.060 Service of notice and order to abate.
The notice and order to abate shall be served in the following manner:
A. By personal service; or
B. By certified mail, addressed to the owner, or his or her agent, at the address shown on the last equalized assessment roll or as otherwise known, and addressed to anyone known to the city abatement officer to be in possession of the property at the street address of the property being possessed. Service shall be deemed to have been completed upon the deposit of said notice and order, postage pre-paid, in the United States mail; and
C. By posting such notice and order to abate conspicuously in front of the property on which, or in front of which, the nuisance exists, or if the property has no frontage upon any street, highway, or road, then upon the portion of the property nearest to a street, highway, or road, or most likely to give actual notice to the owner and any person known by the city abatement officer to be in possession of the property. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.070 Appeal procedure.
Any owner or other person in possession of the property may appeal any notice and order to abate issued pursuant to this chapter to the city manager or designee within 10 days, as allowed in the notice and order to abate. The appeal shall be submitted in writing; specify the grounds upon which the appeal is taken; contain the name, address, and telephone number of the appellant; be accompanied by the payment of an appeal fee as set forth in the master fee schedule and be filed with the city manager. Timely appeal shall stay any further abatement action until the hearing is concluded. The city manager or designee shall set the matter for hearing before a hearing examiner and notify the parties in writing of the date and location of the hearing at least 10 days prior to said date. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.080 Appeal fee – Determination of amount/waiver of payment/refund.
At the time of filing an appeal, the appellant shall pay the required fee(s) as set forth in the city’s master fee schedule.
If the appellant claims an economic hardship in paying the appeal fee, he or she may submit an application for waiver of the appeal fee on forms provided by the city manager for that purpose. The forms shall be substantially similar to those required of litigants initiating court proceedings in forma pauperis pursuant to Section 68511.3 of the Government Code. The forms shall be executed under penalty of perjury and contain a declaration as to the truthfulness and correctness of the information contained therein. Upon submittal of the completed forms, the appeal fee shall be waived, if justification is demonstrated.
Failure to submit the waiver forms or pay the appeal fee in a timely manner shall cause the appeal request to be automatically denied. Enforcement of the order to abate may then proceed as if no appeal request had been submitted.
If the appeal fee is paid and the hearing examiner finds there is no public nuisance, the appeal fee shall be refunded to the appellant without the payment of any interest which could have accrued. (Ord. 2718 § 1, 1998; Ord. 2506 § 1, 1992; Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.090 Hearing procedure.
Hearings before a hearing examiner appointed from a list of qualified persons approved in writing by the city manager shall be conducted in accordance with the following procedures:
A. Oral evidence shall be taken only on oath or affirmation. The hearing examiner is authorized to issue subpoenas, administer oaths, and conduct the hearing.
B. Each party shall have these rights: to be represented by legal counsel; to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues, even though the matter was not covered in the direct examination; to impeach any witness regardless of which party first called the witness; to testify in his or her own behalf. He or she may be called and examined as if under cross-examination.
C. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions and irrelevant and unduly repetitious evidence shall be excluded.
D. The hearing shall be conducted in the English language. The proponent of any testimony to be offered by a witness who does not proficiently speak the English language shall provide an interpreter approved by the hearing examiner conducting the proceeding as proficient in the English language and the language in which the witness will testify. The cost of the interpreter shall be paid by the party providing the interpreter.
E. The hearing may be continued from time to time upon request of a party to the hearing and upon a showing of good cause therefor.
F. The administrative procedures of Chapter 1.40 CVMC may be utilized to supplement the above. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987; Ord. 1655 § 1, 1975).
1.30.100 Determination of the hearing examiner.
The city hearing examiner shall allow or overrule any or all objections, and reverse, modify or affirm the determinations of the city code enforcement officer, and may direct the city code enforcement officer to proceed and perform the work of abatement if not performed by the owner or the person in possession of the property within the prescribed time. The decision of the hearing examiner shall be in writing, contain findings of fact and conclusions of law, and be filed with the city clerk within five working days of the conclusion of the hearing. A copy of the decision shall be sent to each party appearing at the hearing, and if no appearance was made by the appellant, to him or her by mail at the address specified in the appeal. The decision of the hearing examiner shall be final when filed with the city clerk and constitutes the exhaustion of administrative remedy. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987).
1.30.110 Time for compliance.
If the hearing examiner decides that the order to abate should be enforced, the owner, his or her agent or person in possession of the property shall comply with the order within such period of time as may be therein prescribed, and in the absence of any prescribed time, within three days from the date of final determination. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987).
1.30.120 Noncompliance with order to abate.
Upon the failure, neglect or refusal to properly comply with the order to abate within the prescribed time period, the city abatement officer may cause to be done whatever work is necessary to abate the public nuisance. An account of the cost of abatement shall be kept for each separate assessor’s parcel involved in the abatement.
When the city has completed the work of abatement or has paid for such work, the owner of the property shall pay the costs of abatement (see CVMC 1.41.140). To this amount shall be added the appeal fee, if it was previously waived. The combined amounts shall be included in a bill and sent by mail to the owner or his or her agent for payment, if not paid prior thereto. The bill shall apprise the owner that failure to pay the bill within 15 days from the date of mailing may result in a lien or assessment being placed upon the property. (Ord. 2718 § 1, 1998; Ord. 2506 § 1, 1992; Ord. 2187 § 2, 1987).
1.30.130 Report and notice of hearing.
If the bill is not paid within 15 days from the date of mailing, the city code enforcement officer shall render an itemized report in writing to the city manager for hearing and confirmation. To the report shall be attached the names and addresses of all persons having any record interest in the property. At least 10 days prior to said hearing, the city manager or designee shall give notice, by certified mail, of said hearing to the record owner of each assessor’s parcel involved in the abatement, the holder of any mortgage or deed of trust of record, and any other person known to have a legal interest in the property. Said notice shall describe the property by street number, legal description and tax assessor’s parcel number sufficient to enable identification of the property and contain a statement of the amount of the proposed assessment. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987).
1.30.140 Hearing on report.
At the time fixed for receiving and considering the report, the city manager shall hear the report or cause it to be heard by a hearing examiner for the purpose of considering any objections of any of the owners liable to be assessed for the work of abatement, or any other persons who may have a legal interest in the property. The city manager or hearing examiner shall add to the proposed assessment an amount equal to the cost of conducting the assessment confirmation hearing. The city manager, or designee, may also make such other modifications in the report as are deemed necessary, after which the report shall be confirmed and be final and conclusive. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987).
1.30.150 Cost as special assessment and lien.
A certified copy of the assessment shall be recorded by the city clerk in the office of the county recorder. The amounts and the costs of abatement mentioned in the report as confirmed shall constitute a special assessment against such property, and are a lien on the property for the amount of the respective assessment.
In addition to its rights to impose said special assessment, the city shall retain the alternative right to recover its costs by way of civil action against the owner and person in possession or control jointly and severally. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987).
1.30.160 Transmittal of report to auditor – Inclusion in tax bill.
A copy of the report as confirmed shall be turned over to the county auditor on or before the tenth day of August following such confirmation, and the auditor shall enter the amounts of the respective assessments against the respective parcels of land as they appear on the current assessment roll. The tax collector shall include the amount of the assessment on bills for taxes levied against the respective parcels of land. (Ord. 2187 § 2, 1987).
1.30.170 Manner of collection – Laws applicable.
A. Thereafter, the amounts of the assessment shall be collected at the same time and in the same manner as city taxes are collected, and are subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary city taxes. All laws applicable to the levy, collection and enforcement of city taxes are applicable to such assessments.
B. As an alternative, the city manager or hearing examiner may impose an abatement lien upon the property in accordance with CVMC 1.41.160. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987).
1.30.180 Violations.
It is unlawful for any person to interfere with the performance of the duties herein specified for the city code enforcement officer or any authorized officer or employee thereof, or to refuse to allow any such officer or employee or approved private contractor to enter upon any premises for the purpose of abating the public nuisance or to interfere in any manner whatever with said officers or employees in the work of abatement.
Paying a fine or serving a jail sentence shall not relieve any person from responsibility for correcting any condition which violates any provision of a code being enforced pursuant to this chapter. (Ord. 2718 § 1, 1998; Ord. 2187 § 2, 1987).