Chapter 8.16
PROPERTY MAINTENANCE*

Sections:

8.16.010 Definitions.

8.16.020 Unlawful property nuisances.

8.16.030 Declaration of public nuisance.

8.16.040 Notification of nuisance.

8.16.050 Hearing to abate nuisance.

8.16.060 Notice of hearing.

8.16.070 Hearing by city manager.

8.16.080 Procedure, no appeal.

8.16.090 Appeal procedure, hearing by city council.

8.16.100 Decision by council.

8.16.110 Service of order to abate.

8.16.120 Hearing procedure before city manager and council.

8.16.130 Abatement by city.

8.16.140 Limitation of filing judicial action.

8.16.150 Demolition.

8.16.160 Notice of intent to demolish.

8.16.170 Record of cost of abatement.

8.16.180 Revolving fund.

8.16.190 Sale of materials.

8.16.200 Assessment lien.

8.16.210 Alternative actions available.

8.16.220 Violations.

* Prior legislation: Ord. 328.

8.16.010 Definitions.

As used in this chapter:

A. “Building” means any structure used or intended for supporting or sheltering any use or occupancy and includes any house, garage, duplex, apartment, condominium, stock cooperative, or other residential structure, and includes all retail commercial and industrial structures.

B. “City manager” means the city manager or the city manager’s designee.

C. “Owner” means any person owning property, as shown on the equalized assessment roll for the city taxes, or the lessee, tenant, or other person having control or possession of the property.

D. “Person” means any individual, partnership, corporation, association or other organization, however formed.

E. “Property” means all personal and real property within the city and shall include any building located on such real property.

F. “Unreasonable state of partial construction” means any unfinished building or structure which has been in the course of construction two years or more, and where the appearance or the conditions of said unfinished building or structure substantially detracts from the appearance of the immediate neighborhood or reduces the property value in the immediate neighborhood. (Ord. 90-557 § 7).

8.16.020 Unlawful property nuisances.

It is unlawful for any person owning, leasing, renting, occupying or having charge or possession of any property in the city to maintain or to allow to be maintained such property in such manner that any of the following conditions are found to exist thereon, except as may be allowed by this code:

A. Broken or discarded furniture, household equipment and furnishings or shopping carts stored on the property;

B. Overgrown vegetation likely to harbor rats, vermin or other nuisances or which obstructs the view of drivers on public streets or private driveways, or which impedes, obstructs or denies pedestrian or other lawful travel on sidewalks, walkways, or other public rights-of-way;

C. Dead, decayed, diseased or hazardous trees, weeds, or other vegetation constituting unsightly appearance and dangerous to public safety and welfare;

D. Packing boxes, cardboard boxes, lumber, junk, trash, barrels, drums, salvage materials, or other debris kept on the property for an unreasonable period;

E. Attractive nuisances dangerous to children and other persons, including abandoned, broken or neglected equipment, machinery, appliances, refrigerators and freezers, hazardous pools, ponds and excavations;

F. Personal property, such as vehicles, boats, trailers, or vehicle parts which are abandoned or left in a state of partial repair for an unreasonable period of time in front yards, side yards, driveways, sidewalks or walkways and visible from a public street;

G. Vehicles parked or stored in residential zoning districts on property, other than on driveways or other impervious surfaces, and visible from a public street;

H. Buildings which are abandoned, partially destroyed, left in an unreasonable state of partial construction, or have been declared substandard or dangerous by the building official;

I. Buildings having dry rot, warping or termite infestation. Any building on which the condition of the paint has become so deteriorated as to permit decay, excessive checking, cracking, peeling, chalking, dry rot, warping or termite infestation as to render the building unsightly and in a state of disrepair;

J. Buildings with windows containing broken glass or no glass at all, where the window is of a type which normally contains glass, which constitutes a hazard. Plywood or other material used to cover such window space, if permitted under this code, shall be painted in a color or colors compatible with the remainder of the building;

K. Building exteriors, walls, fences, driveways, sidewalks, or walkways which are maintained in such condition as to becomes defective or unsightly or are materially detrimental to nearby properties and improvements;

L. Construction equipment, farm machinery, or machinery of any type or description parked or stored on the owner’s property when it is visible from a public street, except (1) during excavation, construction or demolition operations covered by an active building permit are in progress on the subject property or an adjoining property; (2) during active farming operations; or (3) when such machinery in an agricultural or industrial zoning district is appropriately stored;

M. Property which lacks appropriate landscaping, turf or plant material so as to cause excessive dust;

N. The keeping, storing, depositing or accumulation for an unreasonable period of time of dirt, gravel, concrete, and other similar materials, which manner of keeping, storing, depositing or accumulation constitutes visual blight or reduces the aesthetic appearance of the neighborhood or is offensive to the senses;

O. Maintenance of property so out of harmony or conformity with the maintenance standards of adjacent properties as to cause substantial diminution of the enjoyment or use of such adjacent properties. (Ord. 90-557 § 7).

8.16.030 Declaration of public nuisance.

Any property found to be maintained in violation of the foregoing section is declared to be a public nuisance and shall be abated by rehabilitation, removal, demolition, or repair pursuant to the procedures for abatement set forth herein. However, the city shall take into consideration the overall character of the neighborhood in declaring a public nuisance. The procedures for abatement set forth herein shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other city ordinances or abating public nuisances in any other manner provided by law. (Ord. 90-557 § 7).

8.16.040 Notification of nuisance.

Whenever the city manager determines that any property within the city is being maintained contrary to one of the provisions of FMC 8.16.020, the city manager shall give written notice to the owner of said property stating the section(s) being violated. Such notice shall set forth a reasonable time limit, in no event more than 15 days unless granted a longer period of time by the city manager, for correcting the violation(s) and may also set forth suggested methods of correcting the same. Such notice shall be served upon the owner in accordance with provisions of FMC 8.16.060 covering service in person or by mail. (Ord. 90-557 § 7).

8.16.050 Hearing to abate nuisance.

In the event said owner shall fail, neglect, or refuse to comply with the “Notice to Abate,” the city manager shall conduct an administrative hearing to ascertain whether said violation constitutes a public nuisance. (Ord. 90-557 § 7).

8.16.060 Notice of hearing.

Notice of said hearing shall be served upon the owner not less than 15 days before the time fixed for hearing. Notice of hearing shall be served in person or by certified mail to the owner’s last known address. Service shall be deemed complete at the time notice is personally served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any proceedings hereunder. Notice shall be substantially in the format set forth below:

NOTICE OF ADMINISTRATIVE HEARING ON ABATEMENT OF NUISANCE

This is a notice of hearing before the City Manager (or his designees) to ascertain whether certain property situated in the City of Fortuna, State of California, known and designated as (street address) _________________________, in said City, and more particularly described as (assessor’s parcel number) _______________________ constitutes a public nuisance subject to abatement by the rehabilitation of such property or by the repair or demolition of buildings situated thereon. If said property, in whole or part, is found to constitute a public nuisance as defined in this Code and if the same is not promptly abated by the owner, such nuisance may be abated by municipal authorities, in which case the cost of such rehabilitation, repair or demolition will be assessed upon such property, and such costs, together with interest thereon, will constitute a lien upon such property until paid, in addition, you may be cited for violation of the provisions of the Municipal Code and subject to a fine.

Said alleged conditions consist of the following:

_________________________________

_________________________________

_________________________________

_________________________________

_________________________________

The method(s) of abatement are:

_________________________________

_________________________________

_________________________________

_________________________________

_________________________________

All persons having an interest in said matters may attend the hearing and their testimony and evidence will be heard and given due consideration.

Dated this __________________day of _______________________, 20_______

_________________________________

City Manager

Time and Date of Hearing:

_________________________________

Location of Hearing:

_________________________________

_________________________________

(Ord. 90-557 § 7).

8.16.070 Hearing by city manager.

A. At the time stated in the notice, the city manager shall hear and consider all relevant evidence, objections or protests, and shall receive testimony under oath relative to such alleged public nuisance and to proposed rehabilitation, repair, removal or demolition of such property. Said hearing may be continued from time to time.

B. If the city manager finds that such public nuisance does exist and that there is sufficient cause to rehabilitate, demolish, remove or repair the same, the city manager shall prepare findings and an order, which shall specify the nature of the nuisance, the method(s) of abatement, and the time within which the work shall be commenced and completed. The order shall include reference to the right to appeal set forth in FMC 8.16.090. A copy of the findings and order shall be served on all owners of the subject property in accordance with the provisions of FMC 8.16.060. In addition, a copy of the findings and order shall be forthwith conspicuously posted on the property. (Ord. 90-557 § 7).

8.16.080 Procedure, no appeal.

In the absence of any appeal, the property shall be rehabilitated, repaired, removed or demolished in the manner and means specifically set forth in the findings and order. In the event the owner fails to abate the nuisance as ordered, the city manager shall cause the same to be abated by city employees or by private contract. The costs shall be billed to the owner, as specified in FMC 8.16.130. The city manager, city employees, or private contractors are expressly authorized to enter upon said property for such purposes. (Ord. 90-557 § 7).

8.16.090 Appeal procedure, hearing by city council.

A. The owner may appeal the city manager’s findings and order to the city council by filing a written appeal with the city clerk within seven days of the date of service of the city manager’s decision. The appeal shall contain:

1. A specific identification of the subject property;

2. The names and addresses of all appellants;

3. A statement of appellant’s legal interest in the subject property;

4. A statement in ordinary and concise language of the specific order or action protested and the grounds for appeal, together with all material facts in support thereof;

5. The date and signature of all appellants; and

6. The verification of at least one appellant as to the truth of the matters stated in the appeal.

B. As soon as practicable after receiving the appeal, the city clerk shall set a date for the council to hear the appeal which date shall be no less than seven days nor more than 30 days from the date the appeal was filed. The city clerk shall give each appellant written notice of the time and place of the hearing at least five days prior to the date of the hearing, 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 his address shown on the appeal.

C. Continuances of the hearing may be granted by the council on request of the owner for good cause shown, or on the council’s own motion. (Ord. 90-557 § 7).

8.16.100 Decision by council.

Upon the conclusion of the hearing, the council shall determine whether the property or any part thereof, as maintained, constitutes a public nuisance. If the council so finds, the council shall adopt a resolution declaring such property to be a public nuisance, setting forth its findings and ordering the abatement of the same by having such property rehabilitated, repaired, removed or demolished in the manner and means specifically set forth in said resolution. The resolution shall set forth the time within which such work shall be completed by the owner, in no event more than 15 days unless additional time is granted by the council due to weather. The decision and order of the council shall be final. (Ord. 90-557 § 7).

8.16.110 Service of order to abate.

A copy of the resolution of the council ordering the abatement of said nuisance shall be served upon the owner(s) of said property in accordance with the provisions of FMC 8.16.060. Upon abatement in full by the owner, the proceedings hereunder shall terminate. (Ord. 90-557 § 7).

8.16.120 Hearing procedure before city manager and council.

A. There shall be a record made of all hearings.

B. Hearings need not be conducted according to the technical rules of evidence.

C. 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 in courts of competent jurisdiction in this state. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable 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 admission of any such evidence over objection in civil actions in courts of competent jurisdiction in this state.

D. Oral evidence shall be taken only on oath or affirmation.

E. Irrelevant and unduly repetitious evidence shall be excluded. (Ord. 90-557 § 7).

8.16.130 Abatement by city.

If such nuisance is not abated as ordered within said abatement period, the city manager shall cause the same to be abated by city employees or private contractor. The city manager, city employees, or private contractors are expressly authorized to enter upon said property for such purposes. The cost, including incidental expenses, of abating the nuisance shall be billed to the owner and shall become due and payable 30 days thereafter. The term “incidental expenses” shall include, but not be limited to, personnel costs, both direct and indirect; costs incurred in documenting the nuisance; the actual expenses and costs of the city in the presentation of notices, specifications and contracts, and in inspecting the work; and the costs of printing and mailing required hereunder. (Ord. 90-557 § 7).

8.16.140 Limitation of filing judicial action.

Any action appealing the council’s decision and order shall be commenced within 30 days of the date of service of the decision. (Ord. 90-557 § 7).

8.16.150 Demolition.

No property shall be found to be a public nuisance under FMC 8.16.020 and ordered demolished unless the order is based on competent sworn testimony and it is found that in fairness and in justice there is no way other than demolition reasonably to correct such nuisance. (Ord. 90-557 § 7).

8.16.160 Notice of intent to demolish.

A copy of any order or resolution requiring abatement by demolition under FMC 8.16.070 or under FMC 8.16.100 shall be forthwith recorded with the Humboldt County recorder. (Ord. 90-557 § 7).

8.16.170 Record of cost of abatement.

The city manager shall keep an account of the cost, including incidental expenses, of abating such nuisance on each separate lot or parcel of land where the work is done by the city and shall render an itemized report in writing to the city council showing the cost of abatement, including the rehabilitation, demolition, or repair of said property, including any salvage value relating thereto; provided, that before said report is submitted to the city council, a copy of the same shall be posted for at least five days upon such property, together with a notice for the time when said report shall be heard by the city council for confirmation. A copy of said report and notice shall be served upon the owners of said property in accordance with provisions of FMC 8.16.060 at least five days prior to submitting the same to the city council. Proof of said posting and service shall be made by affidavit filed with the city clerk. (Ord. 90-557 § 7).

8.16.180 Revolving fund.

The council may create a revolving fund or funds from which may be paid the costs of enforcing the provisions of this chapter and into which shall be paid the receipts from the collection of costs as set forth in this chapter. (Ord. 90-557 § 7).

8.16.190 Sale of materials.

The materials contained in any nuisance abated by the enforcement official may be sold in the same manner as surplus city personal property is sold, and the proceeds from such sale shall be paid into the revolving fund. (Ord. 90-557 § 7).

8.16.200 Assessment lien.

The total cost for abating such nuisance, as so confirmed by the city council, shall constitute a special assessment against the respective lot or parcel of land to which it relates, and upon recordation in the office of the county recorder of a notice of lien, as so made and confirmed, shall constitute a lien on said property for the amount of such assessment.

After such confirmation and recordation, a certified copy of the council’s decision shall be filed with the Humboldt County auditor-controller on or before August 1st of each year, whereupon it shall be the duty of said auditor-controller to add the amounts of the respective assessments to the next regular tax bills levied against said respective lots and parcels of land for municipal purposes and thereafter said amounts shall be collected at the same time and in the same manner as ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment.

In the alternative, after such recordation, such lien may be foreclosed by judicial, or other sale in the manner and means provided by law.

Such notice of lien for recordation shall be in form substantially as follows:

NOTICE OF LIEN

(Claim of City of Fortuna)

Pursuant to the authority vested by the provisions of Section ______________ of the Fortuna Municipal Code, the City Manager of the City of Fortuna did on or about the _______ day of _________________, 20______, cause the property hereinafter described to be rehabilitated or the building or structure on the property hereinafter described, to be repaired or demolished in order to abate a public nuisance on said real property; and the City Council of the City of Fortuna did on the _______day of _________________, 20______, assess the cost of such rehabilitation, repair or demolition upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Fortuna does hereby claim a lien on such rehabilitation, repair, or demolition in the amount $________________; and the same, shall be a lien upon said real property until the same has been paid in full and discharged of record.

The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Fortuna, County of Humboldt, State of California, and particularly described as follows:

(description)

Dated this ______day of ____________, 20_____.

_________________________________

City Manager

City of Fortuna

(Ord. 90-557 § 7).

8.16.210 Alternative actions available.

Nothing in this chapter shall be deemed to prevent the council or the city manager from ordering the commencement of a civil or criminal proceeding to abate a public nuisance or from pursuing any other means available to them under provisions of applicable ordinances or state law to correct hazards or deficiencies in real property in addition to or as alternatives to the proceedings herein set forth. (Ord. 90-557 § 7).

8.16.220 Violations.

A. The owner or other person having charge or control of any such building, structure or property who maintains any public nuisance defined in this chapter or who violates any chapter is guilty of an infraction.

B. Any person who removes or defaces any notice or order posted as required by this chapter is guilty of an infraction.

C. No person shall obstruct, impede or interfere with any representative of the city department or any private contractor engaged by the city, or with any person who owns or holds any estate or interest in the building or structure which has been ordered to be vacated, repaired, rehabilitated, or demolished and removed or with any person to whom such building has been lawfully sold pursuant to the provisions of this code whenever any such representative of the city, purchaser, or person having interest or estate in such building is engaged vacating, repairing, rehabilitating or demolishing and removing any such building pursuant to the provisions of this chapter or in performing any necessary act preliminary to or incidental to such work as authorized or directed pursuant hereto. (Ord. 90-557 § 7).