Chapter 5.28
ABATEMENT, APPEALS AND ADMINISTRATIVE HEARINGS
Sections:
Article 1. Property Abatement Procedures
5.28.102 Notification of nuisance.
5.28.105 Procedures for conduct of appeal.
5.28.107 Method of abatement by City.
Article 2. Administrative Hearings
5.28.202 Filing notice of appeal.
5.28.203 Procedures for conduct of appeal.
5.28.204 Supplemental rules and regulations.
Article 3. Severability
Article 1. Property Abatement Procedures
5.28.101 Purpose.
The purpose of this article is to provide for a uniform and consistent procedure for the abatement of property related public nuisances. This article shall apply to any property related public nuisance set forth in Chapter 27 of Title 5, a code incorporated by reference, including Uniform Building and related codes, Civil Code Section 3480, or any State law over which the City has enforcement authority. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.102 Notification of nuisance.
(a) Notice to owner. Whenever the Director of Planning and Development Services or such other City official having enforcement authority over the nuisance determines that property within the City is being maintained as a public nuisance, the enforcement official shall give written notice to the owner of the property stating the violations with reference to the applicable code sections.
(b) Time to correct. The notice shall set forth a reasonable time limit for correcting the violation(s) and may also set forth suggested methods of correcting the same. Reasonable time shall be dependent on the type and severity of the nuisance and may, at the discretion of the enforcement official, be extended. Absent an emergency requiring a shorter time, the following shall be presumed to be reasonable timelines for correction of the violations: (i) forty-eight (48) hours for graffiti; (ii) seventy-two (72) hours for a clear and present danger related to public health, safety and welfare; (iii) twenty (20) days for weeds, rubbish, and dangerous material; and (iv) thirty (30) days to commence substantial work with a completion date determined by the enforcement official subject to the governing code. If the governing code calls for a shorter time period to abate, the shorter time period shall control.
(c) Service of notice. Notice shall be given either by personal service or by depositing the notice in the United States mail, postage prepaid, addressed to the owner of such lot or parcel of land as it appears on the last available equalized assessment roll, supplemental roll of the County, or as otherwise known to the enforcement official or his/her designee by virtue of more recent or reliable information. If no address appears or is known to the enforcement official, then a copy of the notice may be mailed to the property address. A copy of the notice may also be posted on the property in a conspicuous place. Where known, a copy may also be provided by email. The failure of any person to receive the notice required by this section shall not affect the validity of any proceedings taken under this article.
The notice shall bear the date of personal service or mailing and shall be in substantially the following form:
NOTICE TO ABATE PROPERTY NUISANCE
Site Address:
Assessor Parcel Number:
Date:
Notice is hereby given that the above-described property is a public nuisance in violation of the following codes: [set forth applicable code(s)]. A nuisance exists because [describe the nuisance]. You must abate the nuisance within [set forth applicable days]. There will be no further notice.
If the nuisance is not removed within the required time, the nuisance may be abated by the City of Clovis or a contractor hired by the City to remove the nuisance. The property owner will be billed for the cost of such abatement plus administrative fees. In addition, the property owner or other responsible party may be issued a citation and/or billed for the City’s enforcement costs.
If you receive an invoice from the City for abatement, you will have fifteen (15) days from the issuance to pay the invoice. If you do not to pay the invoice within 15 days, the unpaid amount will be added to your property taxes as a special assessment against your property.
All persons having any objections to the proposed abatement may file an appeal in accordance with Section 5.28.104. The appeal must be in writing, filed with the City Clerk at 1033 Fifth Street, Clovis, California, and received within [specify number of days] from the date of this Notice. The appeal must state the basis for the appeal with sufficient specificity so that the hearing officer or Board of Appeals can understand the basis for the appeal and must include the name, address, and telephone number of the person filing the appeal. Failure to file a timely appeal will result in the City proceeding with the work required at your expense in a timely fashion without further notice or hearing.
If the nuisance condition(s) create an imminent danger to the public, the appeal may be considered after abatement of the nuisance.
DATED: this ________day of _____________, 20__.
[ENFORCEMENT OFFICIAL NAME AND TITLE]
CITY OF CLOVIS, CALIFORNIA
(d) Calendar days. Unless otherwise specified, days as used in this article shall mean calendar days. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.103 Recording.
At the time the abatement notice is served, the enforcement official may file in the Office of the County Recorder a notice of pending administrative action and include a copy of the abatement notice. After the nuisance is abated and abatement costs have been paid, the enforcement official shall cause the recorded notice to be removed. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.104 Appeals.
The owner or any other person interested in the property, land, or lots affected by the abatement notice set forth in Section 5.28.102 may file an appeal with the City Clerk subject to the following procedures:
(a) Appeal in writing. The appeal shall be in writing. The appeal shall state the basis for the appeal with sufficient specificity so that the hearing officer or Board of Appeals can understand the basis for the appeal and shall include the name, address, and telephone number of the person filing the appeal.
(b) Time to appeal: Weeds, rubbish, and dangerous material. For weeds, rubbish, and dangerous material the appeal shall be received by the City Clerk within ten (10) days after the date of the notice.
(c) Time to appeal: Other nuisances. For all other violations, the appeal shall be received by the City Clerk within thirty (30) days after the date of the notice.
(d) Dismissal of appeal. Appeals not timely filed or not setting forth the basis for the appeal shall be dismissed.
(e) Board of Appeals. For building and fire code violations, including codes incorporated by reference, appeals shall be heard by a Board of Appeals established as follows:
(i) Board of Appeals for California Fire Code. The Board of Appeals shall consist of three (3) members who are qualified by experience and training to pass on matters pertaining to hazards of fire, explosions, hazardous conditions or fire protection systems, and are not employees of the City. The Board of Appeals shall be appointed by the City Council and shall hold office at its pleasure. The Fire Code Official shall serve as Clerk to the Board.
(ii) Board of Appeals for California Building and Related Codes incorporated by reference and for dangerous buildings. The Board of Appeals shall consist of three (3) members who are qualified by experience and training to pass on matters pertaining to building construction and are not employees of the City. The Board of Appeals shall be appointed by the City Council and shall hold office at its pleasure. The Building Official shall serve as Clerk to the Board.
(f) Hearing officer. For all other violations, appeals shall be heard by a hearing officer appointed by the City Manager.
(g) Timing of appeal and abatement. The hearing on an appeal from an abatement notice shall be held prior to the abatement except in those circumstances where the enforcement official has determined that the nuisance condition(s) present an imminent danger to the public, including, but not limited to, hazardous materials, or where the time of year increases the potential for a fire. In those circumstances the appeal hearing may be held after the abatement. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.105 Procedures for conduct of appeal.
(a) Scheduling of hearing. The City Clerk shall schedule a hearing before the hearing officer or Board of Appeals no sooner than ten (10) days and not more than sixty (60) days from the date the appeal was filed with the City Clerk.
(b) Notice of hearing. Written notice of the date, time and place of the hearing shall be given at least ten (10) days prior to the date of the hearing to the appellant 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 the appellant’s address shown on the appeal, or, if no address is provided on the appeal, at the address to which the official’s decision was previously sent. Where known, a copy may also be provided by email. The failure of any person to receive such notice shall not affect the validity of any proceedings taken under this chapter. Service by normal delivery mail in the manner described above shall become effective on the date of mailing.
(c) Scope of hearing and burden of proof. At the date, time and place stated in the notice, the hearing officer or Board of Appeals shall hear and consider all relevant evidence, objections or protests, and shall receive testimony from the appellant, the enforcement official and his/her designees, and interested persons relative to the issues of the hearing. Except where otherwise provided by the governing code or statute, the burden of proof and production of evidence shall be with the City and the burden of proof shall be preponderance of the evidence.
(d) Hearing procedures. The hearing shall be conducted in accordance with the following procedures:
(i) All hearings shall be recorded. Any party may, at their sole expense, have the hearing transcribed by a certified shorthand reporter.
(ii) Hearings need not be conducted according to the technical rules of evidence.
(iii) Any relevant evidence shall be admitted if it is of the type of evidence in which reasonable persons are accustomed to rely on 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 in courts of competent jurisdiction in this State.
(iv) Oral evidence shall be taken only on oath or affirmation. The hearing officer or representative of the Board of Appeals shall have the power to administer oaths.
(v) Irrelevant and unduly repetitious evidence shall be excluded.
(vi) Each party shall have the right to: (1) call and examine witnesses on any matter relevant to the issues of the hearing; (2) introduce documentary and physical evidence; (3) cross-examine opposing witnesses on any matter relevant to the issues of the hearing, subject to the control of the hearing officer or Board of Appeals, including the imposition of reasonable alternatives to cross-examination; (4) impeach any witness regardless of which party first called the witness to testify; (5) rebut the evidence; and (6) be represented by anyone who is lawfully permitted to do so.
(vii) The hearing officer or Board of Appeals may take official notice, either during the hearing or after submission of the matter for decision, of any fact which may be judicially noticed by the courts of this State or of official records, regulations, rules, and decisions of State and local agencies, boards and departments and of City ordinances. In addition, the hearing officer or Board of Appeals may take official notice of matters in its own files and of prior proceedings under this chapter involving the same issues. If applicable, the hearing officer or Board of Appeals may also take official notice of any generally accepted technical or scientific matter within their expertise. The parties present at the hearing shall be informed of the matters to be noticed, and those matters should be noted in the record, referred to therein, or appended thereto. Any such party shall be given a reasonable opportunity on request to refute the officially noticed matters by evidence or by written or oral presentation of authority.
(e) Orders and subpoenas. Upon a showing of good cause, relevance to the proceedings, that there is no reasonable alternative means of gathering the information, and that the requesting party is not engaged in a fishing expedition, the hearing officer and Board of Appeals may do the following:
(i) At the request of either the City or the appellant, issue orders for attendance of witnesses at the hearing, or production of documents on a date certain. In no event shall the date for the production of documents be less than ten (10) days after the date the order was issued. Failure by a party to comply with an order of attendance or production may be considered a violation of this Code and, at the petition of a party, the hearing officer may impose a civil fine of up to one hundred and no/100ths dollars ($100.00) at the time of the hearing and may take such failure into consideration in making his or her determination of the hearing.
(ii) At the request of either the City or the appellant, direct the City Clerk, on behalf of the City, to issue subpoenas for attendance of witnesses at the hearing or production of documents on a date certain. In no event shall the date for production of documents be less than ten (10) days from the date the subpoena was issued. Disobedience of such subpoena or the refusal to testify, upon other than constitutional grounds, shall constitute a misdemeanor.
(f) Inspections. Inspect the premises involved in the hearing at any time prior to a decision, to investigate or confirm the existence of the violation(s) or conditions which are on appeal; provided, that: consent is granted by a person with the lawful right to grant consent or an inspection warrant is obtained; reasonable notice of such inspection is given to the owner before the inspection is made; the parties are given an opportunity to be present during the inspection; the hearing officer or Board of Appeals shall place in the record the material facts and the conclusions drawn from the inspection either orally at the time of the hearing or in writing after the hearing; and each party then shall have a right to rebut or explain the matters so stated by the hearing officer for the record either at the hearing or by filing a written statement within ten (10) calendar days after the hearing.
(g) Continuance of hearing. The hearing officer or Board of Appeals may provide for reasonable continuances of the hearing, on its own initiative or at the request of a party, as necessary to properly conduct the appeal.
(h) Decision. At the conclusion of the hearing, the hearing officer or Board of Appeals shall deliberate and reach a decision within fifteen (15) days. The decision and the reason(s) for the decision shall be reduced to writing. The hearing officer or Board of Appeals may affirm, reverse, modify, or set aside the abatement order, suspension or revocation of a permit or license, citation, decision or order issued pursuant to this Code as the facts and law warrant, subject to the following limitations:
(i) The hearing officer or Board of Appeals shall not have authority to waive any requirements of the Code or law.
(ii) Nothing in these procedures shall be deemed to authorize the hearing officer or Board of Appeals to deviate from unambiguous provisions of the governing code or statute, or well established interpretations of the same, based upon expert opinions or other reliable evidence.
(i) Service and filing of decision. A copy of the decision shall be sent by mail or otherwise to the appellant. Where known, a copy may also be provided by email.
(j) Finality of decision. The decision of the hearing officer or Board of Appeals shall be final with no further administrative appeals. Unless the governing ordinance or statute provides otherwise, if the appellant seeks further relief, the appellant shall file a petition for writ of mandate in superior court pursuant to Code of Civil Procedure Sections 1094.5 and 1094.6 within ninety (90) days of the date of the decision. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.106 Abatement.
(a) Abatement with no appeal. Where no appeal has been timely filed, and the nuisance condition(s) have not been abated as directed by the abatement notice, the enforcement official shall thereupon cause the same to be removed and may enter upon private property for the purpose of so doing.
(b) Abatement after appeal. Where an appeal has been timely filed and the hearing officer or Board of Appeals has finally determined that removal or abatement shall be required, and the nuisance condition(s) have not been removed as directed by the hearing officer or Board of Appeals, the enforcement official shall thereupon cause the same to be removed and may enter upon private property for the purpose of so doing.
(c) Property owner abatement. At any time prior to the actual abatement, any property owner may remove nuisance condition(s) at his/her own expense. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.107 Method of abatement by City.
City abatement of the nuisance may be performed by contract or by City crews. When the abatement is performed by contract, the contractor shall keep an account of the cost of the abatement on each separate parcel of land where work is performed, including adjoining sidewalk and street/alley areas, and shall submit an itemized written report showing such cost to the enforcement official for verification. When the abatement work is performed by City crews, the Public Utilities Director shall keep an account of the cost of the abatement on each separate parcel of land where work is performed, including adjoining sidewalk and street/alley areas, and shall submit an itemized report showing such cost to the enforcement official for verification. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.108 Costs of abatement.
The City may recover its abatement and enforcement costs in accordance with Chapter 29 of Title 5. (§ 2, Ord. 14-02, eff. March 5, 2014)
Article 2. Administrative Hearings
5.28.201 Purpose.
The purpose of this article is to provide for a uniform and consistent procedure for the conduct of administrative hearings that are not part of a property nuisance abatement action. This article is also designed to identify the appeal and hearing procedures to be followed where procedures are not otherwise identified in the governing code, statute, rule, or regulation, or where there is a reference to following the procedures in this article, whether expressly or by implication.
Types of decisions that might be subject to these procedures include the denial, suspension, or revocation of a permit, license, or other entitlement, orders to correct violations of this Code, the seizure of property, and the issuance of a monetary penalty, whether through an administrative citation or otherwise. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.202 Filing notice of appeal.
(a) Standing. Only a person who has a legal existing interest in the property, right or entitlement subject to the City order, citation, decision or determination sought to be appealed from has standing and a right to appeal under this article. A notice of appeal that fails to allege standing may be rejected as defective.
(b) Notice of appeal. A notice of appeal shall be filed in writing with the City Clerk within fifteen (15) days after the service of the order, citation, decision, or determination appealed from. The appeal shall contain the following:
(i) The name, address, and telephone numbers of the appellant;
(ii) A statement describing the appellant’s legal existing interest in the property, right or entitlement subject to the City order, citation, decision or determination sought to be appealed from;
(iii) A brief description of the specific order, citation, decision, or determination being appealed;
(iv) A statement of the relief sought;
(v) The reasons why such relief should be granted;
(vi) A statement of the appellant, “under penalty of perjury,” that the facts stated in the appeal are true of the appellant’s own knowledge, except as to matters which are not within the appellant’s knowledge and are not of public record, and as to those matters that the appellant believes the facts stated to be true.
(c) Late appeal. Upon a showing of good cause, the City Clerk, or his or her designee, may, in his or her discretion, permit the filing of an appeal, or an amended appeal, after fifteen (15) days, in which case the appeal shall be considered in the same manner as if it had been timely filed.
(d) Deficient appeal. If, in the opinion of the City Clerk, the appeal or an amended appeal fails to comply substantially with the requirements of this section, the City Clerk may give written notice of such insufficiency to the appellant at any time within fifteen (15) days after the appeal is presented, stating with particularity the defects or omissions therein. Failure of the appellant to file an amended appeal within fifteen (15) days of the date of service of such notice of insufficiency shall constitute a waiver of the appeal. Failure of the City Clerk to give notice of any insufficiency within fifteen (15) days shall result in the appeal being heard on its merits, without regard to any insufficiency. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.203 Procedures for conduct of appeal.
Upon receipt of an appeal, or if notice of insufficiency is given in accordance with this section, upon receipt of an amended appeal within the time specified, the City Manager or his or her designee shall appoint a hearing officer and the procedures set forth in Section 5.28.105 shall apply to the conduct of the appeal. (§ 2, Ord. 14-02, eff. March 5, 2014)
5.28.204 Supplemental rules and regulations.
The City Manager may adopt written rules, regulations, policies and procedures that are consistent with the intent or provisions of this article, as may be necessary or desirable to aid in the administration or enforcement of the provisions of the Municipal Code. (§ 2, Ord. 14-02, eff. March 5, 2014)
Article 3. Severability
5.28.301 Severability.
If any article, section, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this chapter. The Council hereby declares that it would have adopted this chapter and adopted each article, section, sentence, clause or phrase thereof, irrespective of the fact that any one or more articles, sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. (§ 2, Ord. 14-02, eff. March 5, 2014)