Chapter 10. Nuisance Abatement

Sec. 4-10.01 Purpose.

Pursuant to Government Code Section 38771 et seq., the City Council establishes, as an alternate to procedures otherwise provided for by law, procedures that may be used for the purpose of abating a public nuisance. It shall be a violation of this Chapter for any person, firm, partnership or corporation owning, renting, leasing, occupying or having charge of any premises to permit a nuisance as herein defined to exist. (Ord. 499 § 2 (part), 2016: Ord. 252 Div. 1 (part), 1987)

Sec. 4-10.02 Public Nuisances Included.

The provisions of this Chapter shall be applicable to any nuisance defined as a nuisance by any City of Hercules ordinance, section of the Hercules Municipal Code, resolution of the City Council, statutes of the State, or by the conditions or activities set forth in Section 4-10.04. (Ord. 499 § 2 (part), 2016: Ord. 252 Div. 1 (part), 1987)

Sec. 4-10.03 Owner’s Responsibility.

The owner of the property or properties in question remains liable to the City for violations of duties imposed upon him by this Chapter even though:

(a) An obligation is also imposed on the occupant; or

(b) The owner has, by agreement, imposed upon the occupant the duty of complying with this Chapter. (Ord. 499 § 2 (part), 2016: Ord. 252 Div. 1 (part), 1987)

Sec. 4-10.04 Nuisance Conditions.

It is declared a public nuisance for any person owning, leasing, occupying or having charge of any premises in this City to maintain such premises in such manner that any one (1) or more of the following conditions or activities are found to exist:

(a) Land, the topography, geology or configuration of which, whether in natural state or as a result of grading operations, excavation or fill, causes erosion, subsidence, or surface water drainage problems of such magnitude as to be injurious or potentially injurious to the public health, safety and welfare or to adjacent properties;

(b) Buildings which are abandoned, partially destroyed, or permitted to remain unreasonably in a state of partial construction;

(c) The failure to close, by means acceptable to the City, all doorways, windows and other openings into vacant structures;

(d) Unpainted buildings causing dry rot, warping or termite infestation;

(e) Broken windows constituting hazardous conditions or inviting trespassers and malicious mischief;

(f) Overgrown vegetation: (1) likely to harbor rats, vermin and other nuisances, (2) causing detriment to neighboring properties, or (3) causing a fire hazard;

(g) Dead, decayed, diseased or hazardous trees, weeds and other vegetation: (1) constituting a danger to public safety and welfare, or (2) detrimental to nearby property;

(h) Attractive nuisance dangerous to children in the form of: (1) abandoned and broken equipment, (2) hazardous pools, ponds and excavations, and (3) neglected machinery;

(i) Broken or discarded furniture and household equipment on the premises for unreasonable periods, visible from the street or nearby property, which constitutes visual blight or is detrimental to nearby property or property values;

(j) Garbage cans located in front or side yards and visible from public streets;

(k) Packing boxes, lumber, trash, dirt and other debris deposited for unreasonable periods either inside or outside buildings, visible from the street or nearby property, which constitutes visual blight or is offensive to the senses or is detrimental to nearby property or property values;

(l) The accumulation of dirt, litter or debris in vestibules, doorways or the adjoining sidewalks of commercial or industrial buildings;

(m) Neglect of premises: (1) to spite neighbors, or (2) to influence zone changes, or (3) to cause detrimental effect upon nearby property or property values;

(n) Maintenance of premises in such condition as to be detrimental to the public health, safety or general welfare or in such manner as to constitute a public nuisance as defined by Civil Code Section 3479;

(o) Property maintained in such condition as to become so defective, unsightly, or in such condition of deterioration or disrepair that the same causes appreciable diminution of the property values of surrounding properties or is materially detrimental to proximal properties and improvements;

(p) Maintenance of premises so out of harmony or conformity with the maintenance standards of adjacent properties as to cause substantial diminution of the enjoyment, use, or property values of such adjacent properties;

(q) Property maintained (in relation to others) so as to establish a prevalence of depreciated values, impaired investments, and social and economic maladjustments to such an extent that the capacity to pay taxes is reduced and tax receipts from such particular area are inadequate for the cost of public services rendered therein;

(r) Any automobile service station which is closed, vacant or inoperative for a period exceeding sixty (60) days is declared to be a public nuisance. “Inoperative” is defined as the failure to sell gas, either retail or wholesale, during the sixty (60) day period;

(s) Specialty structures which have been constructed for a highly specific single use only, and which are not enclosed or shielded and which are unfeasible to convert to other uses, and which are abandoned, partially destroyed or are permitted to remain in a state of partial destruction or disrepair and constitute a hazardous condition including, but not limited to: tanks for gas or liquid, boat housing and storing facilities, boat hoisting and docking facilities, boat mooring pilings, lateral support structures and bulkheads, utility high-voltage towers and poles, utility high-rise support structures, electronic transmitting antennas and tower, structures which support or house mechanical and utility equipment and are located above the roof lines of existing buildings, high-rise freestanding chimneys and smokestacks, drive-in movie screens, recreational structures such as tennis courts and cabanas, and all other specialty structures not listed in this subsection but determined to be a specialty structure by the City;

(t) Any vehicle, as defined in Section 670 of the California Vehicle Code, or parts thereof, when such vehicle or parts are not currently registered as operational with the Department of Motor Vehicles, or when such vehicle or parts are dismantled, partially dismantled, inoperative, or being repaired or restored in areas other than those permitted in the Hercules Municipal Code. Storage of dismantled motor vehicles, motorcycles, recreational vehicles, trailers, campers, boats or parts thereof in the yard of any commercial or residential property. This Section shall not apply to vehicles or parts thereof which are completely enclosed within a building, or by a wall or fence, or other public or private property;

(u) Storage containers, storage pods, or moving containers intended for the temporary storage of building materials, machinery, parts, household items, furniture, clothing, and personal effects, placed in the front or side yard of a residence or business for longer than thirty (30) days, or placed in the rear yard of a residence for longer than sixty (60) days;

(v) Obstruction or encroachment of any public property, including but not limited to any public street, highway, right-of-way, park or building;

(w) Parking or storage of any commercial vehicle or recreational vehicle having a manufacturer’s rated capacity in excess of one (1) ton, or any boat, boat trailer, school bus, semi-truck, semi-trailer, truck tractor, unmounted camper or camper shell, camp trailer or trailer, or motor home in the front or front-side yard of a residence. Front-side for purposes of this Section is the area from the front corners of either side of the primary structure on the property to the side property line. Parking or storage of any of the above described vehicles or parts is permitted if parked on either side or rear of the primary structure, behind a solid fence or enclosure;

(x) Any violation of any provision of the Hercules Municipal Code;

(y) Storage of hazardous materials in such a manner as to be injurious or potentially injurious to the public health, safety and welfare or to adjacent properties;

(z) Any condition recognized in law or in equity as constituting a public nuisance;

(aa) Any residential structure or commercial business that experiences five (5) or more calls for law enforcement service in any fourteen (14) day period;

(bb) Anything that unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal or basin;

(cc) Any alteration of property, excluding water, from its natural condition which results in or supports the development, attraction or harborage of vectors; provided, that the presence of vectors in their developmental stages on such property shall be prima facie evidence that the property is a public nuisance;

(dd) Any water that is a breeding place for vectors, with the presence of vectors in their developmental stages in the water being prima facie evidence that the water is a public nuisance;

(ee) Any activity that supports the development, attraction, or harborage of vectors, or that facilitates the introduction or spread of vectors.

For the purpose of subsections (cc), (dd), and (ee) of this section, “vector” means any animal or insect capable of transmitting the causative agent of human disease or capable of producing human discomfort or injury, including but not limited to mosquitoes, flies, mites, ticks, other arthropods, and rodents and other vertebrates;

(ff) Any loud and unreasonable noise that maliciously and willfully disturbs another person. (Ord. 499 § 2 (part), 2016: Ord. 402 § 1, 2005; Ord. 359 §§ 1, 2, 2000; Ord. 252 Div. 1 (part), 1987)

Sec. 4-10.05 Abatement by Repair, Rehabilitation, Demolition or Removal.

All or any part of premises found to constitute a public nuisance shall be abated by rehabilitation, demolition, or repair pursuant to the procedures set forth herein. The procedures set forth herein shall not be exclusive and shall not in any manner limit or restrict the City from enforcing City ordinances or abating public nuisances in any other manner provided by law. (Ord. 499 § 2 (part), 2016: Ord. 252 Div. 1 (part), 1987)

Sec. 4-10.06 Nuisance Declared—Abatement by Enforcement Officer.

Whenever a nuisance exists, the Enforcement Officer, as defined under Section 4-10.07, may give notice ordering the owner(s) (as shown by the last equalized assessment roll) of such property to remedy or otherwise abate the nuisance. Service of the notice shall be made by: (1) personal service by any of the methods for service of a summons in a civil action pursuant to California Code of Civil Procedure Section 415.10; or (2) first class mail addressed to the owner at the address shown on the last equalized assessment roll with service deemed complete at the time the citation is deposited into the United States mail; or (3) if personal service or service by first class mail is not possible, service shall be provided by publishing a notice in a newspaper of general circulation and posting an eight and one-half (8-1/2) inch by eleven (11) inch enlargement of the notice in a conspicuous location on the property.

The notice shall contain the following, at a minimum:

(a) The notice shall describe the property by reference to its address and assessor’s parcel number and shall describe the nuisance declared to exist thereon, including the specific violation of this Code, if applicable.

(b) The order of abatement contained in the notice shall provide a reasonable time period for abating the nuisance, in no event less than fifteen (15) days and not more than thirty (30) days therefrom.

(c) The notice shall also specify the necessary actions required to reasonably abate the nuisance.

(d) The notice shall warn that failure to comply with the order within the time provided may result in the City abating the nuisance and assessing the owner the costs of abatement unless the owner requests a hearing held before a Hearing Officer and the Hearing Officer determines that the City should not be allowed to enter the property to abate the nuisance and assess the costs thereof to the owner. A hearing fee of two hundred dollars ($200.00) must be submitted with the hearing request.

(e) If such nuisance is not completely abated by the owner as directed within the designated abatement period and the owner does not request a hearing pursuant to Section 4-10.08, then the City Manager, or such other City official as may be designated, may, after consultation with the City Attorney, cause the same to be abated by the City either through the use of its own employees or private contract. The owner shall be responsible to the City for the cost of abating the nuisance. (Ord. 499 § 2 (part), 2016: Ord. 359 § 4 (part), 2000. Formerly 4-10.23)

Sec. 4-10.07 Enforcement Officer—Defined.

For purposes of this Chapter, “Enforcement Officer” shall mean any City employee or agent of the City with the authority to enforce any provision of this Code as determined by the City Manager. (Ord. 499 § 2 (part), 2016: Ord. 359 § 4 (part), 2000. Formerly 4-10.21)

Sec. 4-10.08 Request for Hearing and Notice of Administrative Hearing.

(a) Whenever the Enforcement Officer finds that a public nuisance exists, the City shall include in the abatement order that the owner has the right to a hearing before a Hearing Officer. If the owner desires a hearing he or she shall so advise the City within the time specified in the notice from the City. The notice shall advise the owner that if legal action is instituted by either the owner or City in any manner relating to the abatement of the nuisance, the City shall seek recovery of its costs and attorneys’ fees if it is determined to be the prevailing party.

(b) Procedure for Requesting a Hearing.

(1) Any person issued an abatement order pursuant to this Section may contest the Enforcement Officer’s determination by filing a written request for hearing no later than fifteen (15) calendar days from the effective date of the notice. The written request shall include a detailed written explanation of the reasons for contesting the determination.

(2) The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) calendar days prior to the date of the hearing. The hearing shall be set for a date that is not less than fifteen (15) calendar days from the date that a completed request for administrative hearing is filed in accordance with the above provisions.

(c) Whenever the Enforcement Officer finds that a nuisance has recurred following abatement of that nuisance by the owner, the Enforcement Officer may set the matter for public hearing before the Hearing Officer. The City shall give the owner notice of the hearing as required where the hearing is requested by the owner. Where the hearing was set by the Enforcement Officer, costs of abatement assessed shall include the two hundred dollar ($200.00) hearing fee. (Ord. 499 § 2 (part), 2016)

Sec. 4-10.09 Hearing Officer—Defined.

The City Manager shall designate the Hearing Officer for the nuisance abatement hearing. The Hearing Officer will not be a member of the City staff. (Ord. 499 § 2 (part), 2016: Ord. 359 § 4 (part), 2000. Formerly 4-10.22)

Sec. 4-10.10 Hearing by Hearing Officer.

At the time fixed in the notice, a Hearing Officer appointed under Section 4-10.09 shall proceed to hear evidence relating to the nuisance. The Hearing Officer may continue the hearing from time to time. Based upon the administrative record, the evidence as may be presented pursuant to this subsection, and the written or oral arguments of interested persons, the Hearing Officer shall determine whether the property, in its then-current condition, constitutes a public nuisance. If the owner fails to appear at the time fixed for the hearing, or at any time to which the hearing may be continued, such failure to appear shall not deprive the Hearing Officer of his jurisdiction to determine the matter, but shall constitute a failure of the owner to exhaust its administrative remedies.

The abatement order and any additional report submitted by the Enforcement Officer shall constitute prima facie evidence of the violation. The Enforcement Officer may present additional evidence at the hearing.

At the hearing, the person contesting the validity of a notice to abate shall be given the opportunity to testify and present evidence. Both parties may question the witnesses.

The Hearing Officer may provide the person with additional time to remedy the violation. In addition, the Hearing Officer may request additional information or evidence from the Enforcement Officer or the recipient of the notice to abate prior to issuing a written decision.

All hearings shall be recorded by a video or audio device, unless the City decides to utilize a court reporter. If a court reporter is not utilized, the City is not required to provide a transcription of the hearing, but shall make the video or audio recording available within thirty (30) days after the hearing. The City may charge a reasonable fee for reproducing the recording. If a court reporter is utilized, the recipient of the notice to abate may obtain a copy of the transcript upon payment of any applicable reasonable fees or costs. The City may destroy such recordings or transcripts after all appeals are exhausted.

The hearing need not be conducted in accordance with technical rules of evidence. Any relevant evidence shall be admitted if it is the type 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 that might consider such admission improper in a civil action. Oral evidence shall be taken only on oath or affirmation. Irrelevant or unduly repetitious evidence shall be excluded.

At the conclusion of the hearing, the Hearing Officer shall render a written decision regarding the nuisance and whether or not the City is authorized to cause the nuisance to be abated and assess its costs thereof to the owner as a special assessment against the property. The Hearing Officer may include the manner and scope of abatement in the decision.

If the Hearing Officer determines that the nuisance condition is one which is susceptible of recurring after abatement if further precautions are not taken, he or she may also direct that the owner take adequate precautions for a period of up to one (1) year so that the nuisance is not permitted to recur for such time.

If the Hearing Officer determines that the evidence presented does not support the issuance of the abatement order, the abatement order shall be deemed null and void and the City shall not assess hearing costs. (Ord. 499 § 2 (part), 2016: Ord. 359 § 4 (part), 2000. Formerly 4-10.25)

Sec. 4-10.11 Appeal of Hearing Officer’s Decision.

Judicial review of a decision of the Hearing Officer may be had pursuant to California Code of Civil Procedure (CCP) Section 1094.5, only if the petition for writ of mandate pursuant to such section is filed within the time limitations contained in CCP Section 1094.6. (Ord. 499 § 2 (part), 2016: Ord. 359 § 4 (part), 2000. Formerly 4-10.26)

Sec. 4-10.12 Special Assessment and Lien on Property for Costs of Abatement by the City.

(a) The costs of abatement by the City shall be levied as a special assessment against the subject property and certified to the Auditor of the County of Contra Costa. Such special assessments shall be recorded as a lien on the property and shall 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 the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment taxes.

(b) After recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law.

(c) Such notice of lien for recordation shall be substantially as set out in Form 4-10.12. (Ord. 499 § 2 (part), 2016: Ord. 252 Div. 1 (part), 1987. Formerly 4-10.16)

FORM 4-10.12


(Claim of City of Hercules)

Pursuant to the authority vested by the provisions of Section 4-10.01 et seq. of the City of Hercules Municipal Code, the City of Hercules did on the ___ day of ________, 20___, order the premises 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 (Final Determination Attached).

Pursuant to Section 4-10.13 et seq. of the Hercules Municipal Code, the City Manager (or designated agents) did on or about the ___ day of _______, 20___, cause the premises 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.

The City of Hercules does hereby claim a lien for such rehabilitation, repair or demolition in the amount of said assessment in the sum of $____, 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 herein mentioned and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Hercules, County of Contra Costa, State of California, and more particularly described as follows:


DATED: This __ day of _____, 20___


City Manager

Sec. 4-10.13 Abatement of Certain Vehicles.

Pursuant to California Vehicle Code Section 22660, procedures to remove abandoned, wrecked, dismantled or inoperative vehicles or parts thereof, as public nuisances, are found in Chapter 4-7. (Ord 499 § 2 (part), 2016: Ord. 252 Div. 1 (part), 1987. Formerly 4-10.17)

Sec. 4-10.14 Alternative Remedies.

(a) Administrative Citations—Issuance of Administrative Citations. Whenever an Enforcement Officer finds that a provision of this Chapter has been violated, the Enforcement Officer may issue an administrative citation to the person responsible for the violation pursuant to Section 1-4.02. The administrative citation shall state the fine imposed by the City as a result of the violation. If the violation pertains to building, plumbing, electrical, or other similar structural or zoning issues that do not create an immediate danger to health or safety, the citation shall provide for a reasonable period of time to correct the violation prior to the imposition of an administrative fine. Said reasonable period of time shall be at least five (5) days, but not more than forty-five (45) days, unless the Enforcement Officer finds that a greater length of time for compliance is necessary. The Enforcement Officer may also provide for the same reasonable period of time to correct other types of violations.

(b) Remedies in Equity; Injunctions. Nothing in the foregoing Chapter shall be deemed to prevent the City Council from ordering the City Attorney to commence a civil or criminal proceeding to abate a public nuisance under the applicable Civil or Penal Code provisions as an alternative to the proceedings set forth herein. The City Council may also order the City Attorney to seek remedies in equity, including preliminary or permanent injunctions ordering violators to correct violations of the Hercules Municipal Code. The City shall keep an account of any costs of abatement, including incidental expenses, made in connection with an order of a court to abate a public nuisance.

(c) Emergency Nuisance Abatement.

(1) Notwithstanding any other provisions in this Chapter, the City shall be able to abate immediately all public nuisances, which, in the judgment of the City Engineer, Public Works Administrator or any other City or other official, pose an imminent hazard to public health or safety. Such abatement will include, but not be limited to, the removal of fallen trees and other objects that obstruct or threaten to obstruct public rights-of-way.

(2) Field employees of the Contra Costa Mosquito and Vector Control District shall be authorized, upon the specific, prior request of the City in circumstances constituting an immediate threat to public health or safety, to abate public nuisances supporting the development, attraction or harborage of mosquitoes and other vectors as described in Sections 4-10.04(bb) through (ee).

(3) Whenever reasonably feasible, the City Engineer, Public Works Administrator or any other City or other official shall provide notice prior to entering onto private property or otherwise incurring expenses related to emergency nuisance abatement which are chargeable to a private property owner under this Section. Failure to provide such prior notice shall not affect the City’s authority to recover costs of emergency nuisance abatement.

(4) Recovery of costs for emergency nuisance abatement shall take place in the manner prescribed in Section 4-10.12. (Ord. 499 § 2 (part), 2016: Ord. 359 § 3, 2000: Ord. 252 Div. 1 (part), 1987. Formerly 4-10.18)

Sec. 4-10.15 Attorneys’ Fees.

In nuisance abatement actions, the prevailing party shall be entitled to recover reasonable attorneys’ fees, but only if the City elects in writing, at the initiation of an individual abatement action, to seek recovery of its own attorneys’ fees. In no event shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the City in the abatement action. The remedies provided for in this Chapter shall not be exclusive and shall be in addition to all other remedies for the abatement of nuisances provided under State law or City ordinances. (Ord. 499 § 2 (part), 2016: Ord. 348 § 1, 1998. Formerly 4-10.20)