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HomeMy WebLinkAboutMINUTES - 07121988 - I.O.3 .©, J THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on July 12, 1988 by the following vote: AYES: Supervisors Powers, Fanden, McPeak, Torlakson, Schroder NOES: None ABSENT: None ABSTAIN: None ------------------------------------------------------------------ SUBJECT: Nuisance Abatement The Board received the attached report dated June 27, 1988 from the Internal Operations Committee (Supervisors McPeak and Torlakson) recommending certain actions relating to nuisance abatement. Charlotte Rude, 2727 Rollingwood Drive, San Pablo, on behalf of the Rollingwood Improvement Association, urged the Board to take action to assist homeowners in cleaning up neighborhoods. John Maloney, Crockett, urged the Board to adopt an ordinance to help resolve the problem. Supervisor Torlakson recommended that the proposed ordinance also include wood debris and yard and tree clippings, and weeds above 18 inches which, while not a fire hazard, are unsightly. Supervisor Schroder commented on the numerous real estate development signs along County roadways, and recommended that the Internal Operations Committee review the feasibility of including such signs in the ordinance. .Board members being in agreement, IT IS ORDERED that the recommendations contained in the attached Internal Operations Committee report are APPROVED as amended to add the following to Recommendation No. 2: E. Construction and wood debris, and yard and tree clippings; and F. Weeds over 18 inches which do not constitute a fire hazard but are unsightly. IT IS FURTHER ORDERED that the issue of real estate signs along roadways in the County is REFERRED to the Internal Operations Committee for review. hereby certify that this is a true and correct copy of cc: County Administrator nn action taken and entered on the minutes of the County Counsel Board of Supervi ATT -STED: ors on the date shown.. Sheriff E Community Development Director PH'2L DA ilEi_ R, Clerk of the Board Building Inspector of Supervisors and County Administrator Health Services Director By , Deputy TD� "80ARD OF SUPERVISORS I .O. 3 FROM: INTERNAL OPERATIONS COMMITTEE Contra June 27 , 1988 Costa DATE'. Uniform Procedures for Abating Nuisances SUBJECT: SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1. Request County Counsel to prepare a uniform general procedure for abating any violation of the County Ordinance Code and return the Ordinance amendment to the Board for further consideration. 2 . Request County Counsel to pre-pare and return to the Board an Ordinance which defines as a nuisance the following conditions when they occur on residential property: A. Attractive nuisances dangerous to children and visible from a public street, including abandoned, broken, or neglected equipment, machinery, refrigerators and freezers, hazardous pools, ponds and excavations. B. Broken or discarded furniture, household equipment and furnishings or shopping carts stored on the property for unreasonable periods and visible from a public street. C. Garbage or trash cans which are visible from a public street and are left out for more than 36 hours. D. Boats, trailers, vehicle parts or other articles of personal property which are abandoned or left in a state of partial construction or repair for an unreasonable period of time in front yards, sideyards, driveways, sidewalks or walkways and are visible from a public street. Exclude from this provision boats, trailers and recreational vehicles which are simply being stored on private property, even if visible from a public street. 3 . Request County Counsel to draft legislation which would allow a court to authorize the County to recover its costs when the County successfully :prosecutes a criminal violation of any of the prohibited conditions which constitute a nuisance. County Counsel should forward this language to the County Administrator for inclusion in the County' s 1989 Legislative Program. CONTINUED ON ATTACHMENT: ` YES SIGNATURE: RECOMMENDA ION OF COUNTY ADMINISTRATOR X RECOMMENDATION OF BOARD COMMITTEE APPROVE (� OTHER AN SIGNATURE s : Sunne W. Mcpeak Tom Torlakson TION OF BOARD ON July 12, 1988 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES'. AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: O PERVISORS ON THE DATE SHOWN. County Administrator cc: County Counsel ATTESTED Sheriff-Coroner PHIL BATC R. CLERK OF THE BOARD OF Director, Community Development SUPERVISORS A OUNTY ADMINISTRATOR Building Inspector Health Services Director BY TY M382/7-83 Page 2 4 . Remove both items as. referrals to our Committee'. BACKGROUND On February 9, 1988, the. Board referred . to our Committee a recommendation from Super.visor . Torlakson that the County consider, adoption of an ordinance similar to .the- San Leandro "neighborhood preservation .ordinance" , which defines a variety of conditions as nuisances when they occur on residential property and are .visible from the street. On March 15, 1988 , , the Board referred to our. Committee a recommendation from Supervisor Torlakson that the County consider the feasibility of adopting an 'Ordinance that would 'provide for a mechanism whereby nuisance abatement costs for zoning violations. could be . levied as special . assessments against the real property involved. On June 27, 1988, our Committee reviewed a March 9, 19.88 memo. from County Counsel which reviewed the San Leandro ordinance. . A copy of this memo is attached to our report.. We have agreed that some of the factual situations outlined in the. San , Leandro ordinance are- also problems in this County and should be defined as nuisances ( see recommendation 2 above) . On June 27, 1988,. our Committee also reviewed a March 22., 1988 ,memo from County Counsel indicating that San Diego County has enacted a uniform abatement procedure: for public nuisance elimination. Currently, the County has different procedures for abating different types of -violat.ions. County Counsel proposes. to prepare an ordinance providing for 'such a uniform abatement procedure in this County and then repeal conflicting provisions of the Ordinance Code as various :sections are revised from time . to time. Finally, our Committee believes it would be useful. to have . statutory authority for - courts. to allow the County to recover its costs when the County successfully prosecutes. a criminal violation of any 'of the nuisance provisions of the Ordinance Code. Currently, a defendant. who is convicted of a criminal violation of the Ordinance Code typically has a modest fine imposed. The County is left paying for all of the costs of prosecuting the case. , The .fine frequently is not large enough to convince the defendant not to violate the same provisions of the Ordinance Code ' again, requiring the County to start the whole process over again. COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: March 22, 1988 To: Phil Batchelor, County Administrator Attn: C.L. Van Marter, Assistant County Administrator From: Victor J. Westman, County Counsel Re: proposed Nuisance Abatement Procedure for Zoning Violations This is in response to your 3-17-88 memorandum concerning the above-noted matter . I believe the subject of a county standard abatement of nuisance procedure ordinance and the pending San Leandro Neighborhood Preservation Ordinance proposal should= in part, be considered together by the Internal Operations Committee. . Both ordinances are similar in many respects except that the San Leandro ordinance addresses specified factual situations. Attached is a copy of an ordinance adopted by San Diego County in 1986 which sets forth a uniform abatement procedure for public nuisance elimination. I do not have any knowledge of what success San Diego has had since the adoption of this ordinance or in what factual situations it utilizes the ordinance. I suggest that the Committee and involved county departments review the San Diego ordinance since it indicates the procedure and administrative structure which must exist and be followed in order to assure that property abatement proceedings do not violate due process and other .related constitutional requirements . If this County proposes to adopt a general nuisance abatement procedure similar to San Diego .County' s procedure, questions of which county department or staff will have administrative responsibility for the abatement ordinance and where funding is to be found will have to be addressed. VJW/jh cc: Harvey Bragdon, Community Development Director Mark Finucane, . Health Services Director Attn: Dan Bergman, Environmental Health Bob Giese, Building Inspector Richard Rainey, Sheriff-Coroner ORDINANCE NO. (NES,] SERIES ) AN ORDINANCE ADDING AND AMENDING SECTIONS OF THE SAN DIEGO COUNTY CODE TO ESTABLISH A UNIFORM ABATEMENT PROCEDURE FOR PUBLIC NUISANCES DECLARED TO BE IN VIOLATION OF THE SAN DIEGO COUNTY CODE AND REPEALING ALL CONFLICTING ABATEMENT PROCEDURES CONTAINED THEREIN The Board of Supervisors of the County of San Diego ordains as follows: Section 1 . Chapter 2 ishereby added to Division 6 , Title 1 of the San Diego County Code to read as follows: CHAPTER 2 UNIFORM PUBLIC NUISANCE ABATEMENT PROCEDURE Sec. 16.201 . UNIFORM PROCEDURE. This chapter shall be known and cited as the "Uniform Public Nuisance Abatemnent Procedure It is enacted pursuant to Government Code Section 25845 and is intended to be an alternative procedure for the abatement of any violation of this Code or any other county code or ordinance which is declared to be a public nuisance . Sec. 16 . 202. DEFINITIONS. Whenever the following words or phrases are used in this chapter, they shall have the meaning prescribed below: ( a) The "county abatement. board" shall vary depending upon the subject of abatement in accordance with the following designa- tions: ( 1 ) The county abatement board shall be the Noise Control Hearing Board for all public nuisances declared pursuant to Section 36.420 of this Code. ( 2) The county abatement. board shall be the Fly Abatement and Appeals Board for all public nuisances declared pursuant to Chapter 3 , . Division 4 , Title 6 ( commencing with Section 64. 301 ) of this Code. (3 ) The county abatement board shall be a county hearing officer appointed pursuant to Article .XXXIII ( commencing with Section 650 ) of the County Administrative Code for all other public nuisances declared pursuant to any other provision of this Code. -1- Appeals to a county abatement board may be made by filing the written appeal with the Clerk of the Board of Supervisors. The Clerk shall set the matter for hearing before the appropriate board or, if appropriately set before a hearing officer, the Clerk shall assign the appeal to a hearing officer selected by the Clerk on a rotating basis from a list of qualified hearing officers approved by the Board, of Supervisors. ( b) The "county abatement officer" .shall be the county officer responsible for enforcement "of the county ordinances being violated and who initially declares said violation to be' a public nuisance. Sec. 16 . 203 . SUMMARY ABATEMENT POWER. Whenever this Code or any other provision of law authorizes the Chief -Administrative Officer or any other county elective or appointive officer to declare a public nuisance, the nu.isance .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. Summary abatement actions shall not be subject to the ' requirements of this. chapter and a county abatement 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. In the event a publi'c nuisance is summarily abated, the county 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 fifteen ( 1 '5 ) 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 Sections 16.213 through 16 .217 of this chapter, except that, in addition to a review ,of the costs of abatement, the county abatement board shall also hear and deter- mine any issues relative to the necessity for or manner in which the property was declared to be a public nuisance and summarily abated. Sec.. 16 .204 . 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 con- strued to limit the right and duty of any county officer to take immediateaction 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 simul- taneous commencement of proceedings pursuant to this chapter. Sec. 16 . 205 . tIUISANCE DECLARED. A county abatement officer may declare a public nuisance for any reason specified in any county ordinance. Upon a public nuisance being declared, the -2- county abatement 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 (San Dieqo County Code , the Zoning Ordinance or other applicable code or ordinance) . The violation has been declared a public nui- sance by the ( county abatement 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 ) ( ) 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 situat=ion ) If you fail to abate the public nuisance within the number of days specified, the county 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 Clerk of the Board of Supervisors at the following address: Clerk of the Board of Supervisors County of Sari Diego 1600 Pacific Highway, Room 402 San Diego, California 92101 Tele. No. (619) 236-2321 ATTN: Chief Deputy Clerk One who is legally indigent may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accom- panying fee, or waiver, the Clerk of the Board will cause the matter to be set for hearing before a county abatement board and notify you of the date andlocation of the hearing. -3- If. yuu have, any questi01-1_: regarding this matter, you may direct them to the county officer issuing this notice at the address or telephone number listed below. ISSUANCE DATE: (Name, title , address and telephone number of the county abatement officer issuing this notice. ) Sec. 16 . 206 . SERVICE OF NOTICE AND ORDER TO ABATE. The Notice and Order to Abate shall be served in the folio-wing. manner: ( a) By certified mail , addressed to the owner, his or her agent, at the address shown on the l:::st equalized ass2ssiment roll or as otherwise known, and addressed to anyone known to the county 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, ( b) 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 county abatement officer to be in possession of the property. Sec. 16. 207. APPEAL PROCEDURE. Any owner or other person in possession of the property may appeal to the county abatement board within the number of days .. 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 and be :filed with the Clerk of the Board of Supervisors. Timely appeal shall stay any further abatement action until the hearing is concluded. The Clerk of the Board shall set the matter for hearing before the appropriate county abatement board and notify the parties in writing of the date and location of the hearing, at least ten ( 10) days prior to said date. Sec. 16 .208 . APPEAL FEE: DETERMINATION OF AMOUNT/WAIVER OF. PAYMENT/REFUND. The amount of the appeal fee shall be determined periodically by the Board of Supervisors based upon the costs k incurred by the county in processing an appeal pursuant to this f chapter. The calculation shall include .all costs of the county abatement officer, Clerk of the Board, and the county abatement board but shall exclude actual costs for any work of abatement calculated pursuant to Section 16 . 212. t -4- 4A 4 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 Clerk of the Bc)ard for that purpose. The forms shall be substantially similar to those required of litigants initiating court proceedings in forma . pauperis pursuant. to Section 68.511 . 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 informa- tion contained therein. Upon submittal -of the completed forms, the appeal feeshall be waived . Upon filing a timely appeal and for good cause shown, the Clerk of the . Board may grant the appellant a period of time beyond expiration of the appeal period in which to complete and submit the .waiver forms. In no event shall the additional time exceed two calendar days. 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 county abatement board finds there is no pubic nuisance, the appeal fee shall be refunded. to the appellant without the payment of any interest which could have accrued. Sec. 16 . 209 . HEARfNG PROCEDURE. The hearing before the' county abatement board shall be conducted in accordance with the following procedures: ( a) Oral evidence shall betaken only on oath or affirm- ation. The county abatement board 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 rele- vant 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; and to 'rebut the evidence. If. the appellant does not testify in hips 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 respon- sible persons are accustomed to rely in the conduct of serious affairs , regardless .of the existence of any common law or statu- tory rule which Night make improper the admission of such evidence -5- over objection in civil actions . FIearsay 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 . The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized 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 county abatement board conducting the proceeding as proficient in the :English language and the language in which the witness will testify, to serve as interpreter during the hearing . The cost of the interpreter shall be. paid by the party providing the interpreter. The Board of Supervisors may compile and publish a list of interpreters known to be proficient in various languages. Any person whose name appears upon such list shall be deemed to be approved by the county abatement board hearing the case. ( 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. Sec. 16 . 210 . DETERMINATION OF' THE COUNTY ABATEMENT BOARD . At the conclusion of the hearing , the county abatement board shall allow or overrule any or all objections and, reverse, modify or affirm the determinations of the county abatement officer and may direct the county abateiner. - officer to proc-eed 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 deci- sion shall be in writing, contain findings of fact and conclusions of law, and .be filed with the Clerk of the Board of Supervisors within - five (5 ) 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 county abatement board shall be final when filed with the Clerk of the Board of Supervisors. Sec. 16 .211 . TIME FOR COMPLIANCE. If the county abatement board 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 prescribed, and in the absence of any prescribed time, within thirty ( 30 ) days from the date of final determination. Sec. 16 . 212 . N0:47COMPLIANCE WITH ORDER TO .ABATE. Upon the failure, neglect or refusal to properly comply with the Order to Abate within the prescribed time period , the county abatement officer may cause to be done whatever work is necessary to abate -6- the public nuisance. An account of the co:;t oC abatri-ment shall be kept for each separate assessor' s parcel involved in the abate- ment . When the County has completed the work of abatement , or has paid for such work , the actual cost thereof , together with an administrative cost, including reasonable attorneys ' fees , shall be charged to the .owner of the property. To this amount shall be added the appeal fee if it had been waived pursuant to Section 16208 of this Code. 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 fifteen ( 15 ) days from the date of mailing may result in a lien - upon the property. Sec. 16 . 213 . REPORT AND NOTICE OF HEARING. If the bill is not paid within fifteen ( 15) days from the date of mailing , the county abatement officer shall render an itemized report in writing to the Clerk of the Board for submittal to the county abatement board 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 ten ( 10) days prior to said hearing, the Clerk of the Board shall give notice , by certi- fied 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 or some other description sufficient to enable identification of the property and contain a statement of the amount of the proposed assessment. Sec. 16 . 214 . HEARING ON REPORT. At the time fixed for receiving and considering the report, the county abatement board . shall hear it and any objections of any of the owners liable to be assessed for the work of abatement or any other persons who may .havea legal. interest in the property. The board shall add to the proposed assessment an amount equal to the cost of conducting the assessment confirmation hearing . The board may also make such other modifications in the .report as it deems necessary, after which , by resolution the report shall be confirmed. The, resolu- tion and modified report shall be filed with the Clerk of the Board. The resolution and modified report of the county abatement board shall be final and conclusive. Sec. 16. 215 . COST AS SPECIAL ASSESSMENT AND LIEN. A certi- fied copy of the. resolution shall be recorded by the Clerk of the Board 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 County .shall retain the alternative right to recover its costs -7- i - by way of. civil action against the o;aner and person in possession of control jointly and severally. Sec. 16 . 216 . TRANSMITTAL OF REPORT TO AUDITOR-INCLUSION IN TAX BIL.. . A copy of .the report as confirmed shall be turned over to the County Auditor on or before the tenth ( 10th) 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 taxeslevied against the respective parcels of land. Sec. 16. 217. MANNER OF COLLECTION-LAN APPLICABLE . There- after, the amounts of the assessment shall be collected at the same time and in the same manner as County taxes are collected, and are subject to the same penalties and the same procedure and sale in case of delinquent:;, as provided for ordinary County taxes. All laws applicable to the levy, collection and enforcement of County taxes are applicable to such assessments , except that if any real property to which such lien would attach has been trans- ferred or coni:eyed to a bona fide encumbrancer for value has been created and attaches thereon prior to the date on which the first installment of such taxes would become delinquent, then the lien which would otherwise be imposed shall not attach to such real . property and the cost of abatement and the cost of enforcing abatement as confirmed, relating .to such property, ,shall be trans- ferred to the unsecured roll for collection. Sec. 16 . 218 . VIOLATIONS . It shall be unlawful for any person to interfere with the performance of the duties herein specified for the county abatement officer or any authorized officer or employee thereof, or to refuse to allow any such officer or employee or approved private contractor, to enter u_non 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. Any person violating any of the provi- sions of this chapter shall be deemed guilty of a misdemeanor unless, in the discretion of the prosecutor, it is , charged as an . infraction. Each day or portion of a day that any'`person violates or continues to violate this chapter constitutes a separate offense and .may be charged and punished separately without awaiting conviction on any prior offense. Any person convicted of a misdemeanor under this chapter shall be punished by .imprisonment in the County Jail not exceeding six months , or by a fine not exceeding $1 ,000 or by both. Any person convicted of an infraction under this chapter shall be punished by a fine not exceeding $250 for the first violation and by a fine not exceeding $500 for each subsequent violation of the same provision of this chapter committed by that person on the same site. -8- i Y Internal Operations Committee March 9 , 1988 Attn: C. L. VanMarter structures. In some situations the accumulation of, dirt on residential real property may be difficult to defend as being a public nuisance. (b) Clotheslines.- Whether clotheslines or clothes hanging in the front of residential properties and visible from a public street is a public nuisance requiring abatement isl:a decision, of course, to be made by the _Board of Supervisors . California Civil Code § 3479, in part, defines nuisance as "anything which is injurious to health, or is indecent or offensive to the senses . so as to interfere with the comfortable enjoyment of life or property . (Emphasis added. ) If this type of prohibition is to be adopted;i the Board will have to make a legislative determination that 'it is satisfied that clothesline or clothes hanging 'in the front of residential property are "offensive to the senses .;. . . to as to interfere with comfortable enjoyment of the. life, or property" . (c) Trash cans . This section generally prohibits trash, garbage or refuse cans or .similar storage containers on residential property visible from a public street. .To the extent this section is concerned with trash or garbage not placed within proper storage cans (C.C.C. Ord. Code § 416-14 .204 ) , it would appear that the Health Services Department. would have power under Chapter 416-14 of the ordinance code to address that problem. Subsection (c) in addition, prohibits any garbage or refuse cans or storage containers (which may otherwise meet health regulations ) from being placed where visible from a public street. To my knowledge, Contra Costa County doesn't have a similar prohibition. If the Board desires such a .front yard placement prohibition, it would require that a new ordinance 'be adopted. . (d) Debris . This subsection appears to duplicate, in part, the provisions of subsection (a ) but it does define to some extent . what "debris" is .for the purposes; of the ordinance: (e) Children. In this subsection certain things are declared nuisances as dangerous to children where visible from a public street. There are provisions both in the County Ordinance Code and State law which would either prohibit or allow the abatement of many of the items mentioned in the: subsection. For example, the Health and Safety Code' s general nuisance abatement provisions for building inspectors (§ 17920. 3 ) or Government Code §§ 50230 ff. which sets forth a statutory scheme available to the County to abandon excavations. Internal Operations Committee March 9', 1988 Attn: C. L. VanMarter (f ) Unreasonable Storage. This subsection prohibits , in part, out of door (but visible from a public street) storage of broken furniture or equipment or shopping carts for "unreasonable periods" . Whether such conduct constitutes a public nuisance (C.C. § 3479 ) would be a matter for the legislative judgment of the Board. (g) Overgrown Vegetation. This subsection concerning overgrown vegetation is for the most part, already covered by provisions of the County' s Ordinance Code such as those administered by the Health Services Department concerning rats and similar situations or the weed abatement ordinances administered by the fire districts . (.h) Dead Vegetation. Generally this subsection covers an area which the County has not to date attempted to regulate. While the fire districts do abate weeds under certain circumstances and the Agricultural Department abates diseased plants and trees , the County has not otherwise attempted to impose specific regulations in this area . As noted, the Building Inspector would appear to already have general authority to abate this subsection' s specified and prohibited activities under the Health and Safety Code. (i ) Graffiti . This section, requiring the removal of graffiti and other written materials from the exterior of a building visible from a public street, could in certain situations, be characterized as a restriction on freedom of speech; therefore, invalid if applied in that manner. It is assumed that if the County adopts this type of regulation it would limit enforcement to those situations which did not- involve protected exercises of freedom of speech (political signs , etc. ) . ( j ) Boat and Car Part Storage. This subsection, in part, prohibits owners of property from leaving boats , trailers , vehicles or component parts. thereof for an "unreasonable period of time in and on their property where it is visible from a public street. " Except where it constitutes a zoning or health violation, the County doesn' t regulate these activities at this time. Some cities who regulate in this area prohibit boat and trailer storage in specified circumstances and, for this reason, don't have to determine or ' defend what is an "unreasonable period" . (k) Camper Shells . See comments to ( j ) above. Whether the storage of camper shells is to be prohibited for "an unreasonable period" of time on residential properties visible from public streets is a decision to be made by the Board of Supervisors . -4- Internal Operations Committee March 9 , 1988 . Attn: C. L. VanMarter (1 ) Buildings. This subsection is concerned with the abatement of substandard buildings and their maintenance or demolition. This is an area that. is already covered by Health and Safety Code provisions and the County Ordinance Code. It is suggested that the Building Inspector should indicate whether he desires additional regulatory provisions to address substandard buildings or if he is satisfied with the current State statutory and County Ordinance Code provisions and procedures available to. him. Please feel free to call me prior to the Internal Operations Committee' s 3-28-88 meeting to discuss any question you may have concerning this memorandum and the San Leandro ordinance. VJW:df cc: Mark Finucane, Health Services Director Attn: Dan Bergman, Environmental Health Bob Giese, Building Inspector Harvey Bragdon, Community Development Director Richard Rainey, Sheriff-Coroner _ r -5- • TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation ARTICLE 1 . DEFINITIONS ,SArti�n -1-100 :_ $UILDING. "Building" shall mean any house, garage, duplex, apartment, condominium, stock cooperative, or other residential structure . section 3-1-105 _ QTTY MANAGER. "City Manager" shall mean the Cit-y Manager or his designees . ' section 3-1-110 * QyZNFg,: "Owner"-.shall mean any P erson ownin � property, as shown on the- last.".'equaT` zed assessment roll for Cit' y taxes or the lessee, tenant or other person having control or possession of the property. :Section 3-1-1,15. PERSON. "Person" shall mean any individual, partnership, corporation, association or other organization, however formed: _ S _rion -1-120 : PROPERTY, "Property" shall mean all residential real property, including, but not limited to, front yards, side yards, back yards, driveways, walkways and sidewalks and shall incluee any building located on such property. (Legislative History: Ordinance No. 86-040, 1/12/87) ARTICLE 2 . NUISANCES Sentinn 3-1-200 • .UNLAWFUL PROPERTY NUISANCE. ,It shall be 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) The accumulation of dirt, litter or debris on the property which is visible from a public street; (b) Clotheslines or clothes hanging in front of vards, sideyards, porches or balconies and visible from a public street; (c) Trash, garbage or refuse cans, bins, boxes or other such containers stored in front or side yards and visible prom a public street.; (d) Packing boxes, lumber, junk, trash, salvage materials, or other debris kept on the property for an unreasonable pericc and visible from a public street; 1/12/87 3001 TITLE III HEALTH AND SAFETY Chapter 1 Neirhborhood -Preservation (e) Attractive nuisances dangerous to children and visible fre- a public street, including abandoned, broken or neglected equipment, machinery, refrigerators and freezers, hazardous pools, ponds and excavations; .(f) Broken or discarded furniture, household equipment and furnishings or shopping carts stored on the property for unreasonable periods and visible from a public street; . . (g) Overgrown vegetation l�ik'e-l'y': tca .harbor. rats; 'vermin and of_ nuisances causing .detriment to neighboring properties or property values or obstructing necessary view of drivers on public streets or private driveways and visible from a public street; (h) Dead; decayed, diseased or hazardous trees, weeds or other vegetation constituting unsightly appearance, dangerous to public safety and welfare or detrimental to neighboring properties or property values and visible from a public street; (i) Graffiti or other words, letters or drawings which remain on the exterior of any' buil'ding or fence for an unreasonable period and are visible from a public street; l (j) Boats, -trailers, vehicle part: or other articles of personal property which are abandoned 'or 'left 'in a state of partial construction or repair for an unreasonable period of time i^ front yards, sideyards, driveways, sidewalks or walkways and are visible from a 'public street; (k) Camper shells which are left for an unreasonableperiod o--'* time in front yardsdriveways, sideyards, sidewalks or walkways and are visible from a public street; and (1) Buildings which are abandoned, boarded up, partially destroyed, or left in a state of partial construction for an unreasonable period of time and such buildings which are unpainted or where the paint on the building. exterior is mostly. worn off . Sedt ion 13-i - 05 - DECLARATION OF PUBLT(' NUISANCE. Any property found to be maintained in .violation of the foregoing section is herebydeclared to 'be a and shall be 'abated b public nuisance. L_ y rehabilitation, removal, demolition, or repair pursuant to the procedures set forth herein. The procedures for abatement set forth herein.shall not be exclusive and shall not in any manner limit or 1/12/87 TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation restrict the City from enforcing other City ordinances or abating public nuisances in any other manner provided by law. (Legislative History: Ordinance No. 86-040, 1/12/87) ARTICLE 3 . ABATEMENT PROCEDURE Sacti_on 3-1-300 : NOTIFI .ATION OF NUISANCE . Whenever the City Manager determines that any property ,within the City is .being maintained contrary to one. (1).:or. more. of -the . provisions of .Section .;::: .: ;: 3-1-200, he shall give written notice ("Notice to Abate") to the owner of said property stating the section (s) being violated. Such notice shall set forth a reasonable time limit, in no event less tan seven (7) calendar days, 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 Section 3-1-310 covering service in person or by mail. S -c _inn 1-1-105: ADMINISTRATIVE 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 ah administrative hearing to ascertain whether said violation constitutes a public nuisance. Section 3-1-310: NOTICE OF HEARIN ,. Notice of said hearing shall I be served .upon. the owner not less than seven (7) calendar 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 San Leandro, State of California, known and designated a--- (street s(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. s.ituated. thereon. If said ,property,. : . in .whole or part, is found• to: constitute .a public nuisance: 'a_ s defined in this Code and if the same is not promptly abated by- . . the owner, such nuisance .may be abated by municipal authorities, t 1/12/87 3002.1 TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation 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 suc:: 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 methods) 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 19 City Manager Time and Date of Hearing:. Location of Hearing: Sect ion 3-1-1151 ADMINTSTRATT HEARTH(-, BY COY MANAGER . At the time stated in the notice, the City Manager shall. hear. and .consider all .relevanttevidence, 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 . 1/12/87 l 3002.2 TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation 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 Section 3-1-325 . A copy of the findings and order shall be served on all owners of the subject property in accordance with the provisions of Section 3-1-310 . In addition, a copy of the findings and order shall be forthwith conspicuously posted .om the property. Section 3-1-320 , 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 said 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 private contract . The costs shall be billed to the owner, as specified in Section 3-1-345 . The City Manager is expressly authorized to enter upon said property for such purposes . Section 3-1-325 : APPEAL PROCEDURE - HEART14 , BY CITY COUNCTT.. The owner may appeal the City Manager' s findings and order to the City Council ("Council") by filing an appeal with the City Clerk within seven (7) calendar days of the date of service of the City. Manager' s . decision. The appeal shall contain: -(a) A specific identification of the subject property;. (b) The names and addresses of all appellants; (c) A statement of . appellant ' s legal interest in the subject property; (d) 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; (e) The date and signature of all appellants; and (f) The verification of at .least one appellant as to the truth of the matters stated in the appeal. 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 hallbe not less than seven (7) calendar days nor more than thirty (30) 1/12/87 3002.3 TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation calendar days from the date the appeal was filed. The City Clerk shall give each appellant written notice of the time and the place of the hearing at least five (5) calendar days prior to the date of t'-.e 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. Continuances of the hearing may be granted by the Council en request of the owner for good cause shown, or on the Council ' s own motion . Section 3-1 -130 DECTSTON' BY- CO.UNCZ ' Upon the :conclusion of .'t're hearing, the Council shall determine whether the property or any parte thereof, as maintained, constitutes a •public nuisance . If the Counc'_1 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 fort: in said resolution. The resolution shall set forth the time within which such work shall be completed by the owner, in no event less than thirty (30) days . The decision and- order of the Council shall be final. Section 3-1-335 : SERVTCE 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 1 the provisions of Section 3-1-310 . Upon abatement in full by the owner, the proceedings hereunder . ;,hall terminate. Section 3-1-340 : HEARING PRO .EDURE RF.FOR . CITX MANAGER AND COUNCIL. All hearings shall be tape recorded. Hearings need -not be conducted according to the technical rules of evidence . Hearsay evidence may be used for the purpo:�e 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 . An•; 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 .•imp roper ,admission. of such evidence , over .objection' in� civil actions -in courts of competent jurisdiction in this state. 1/12/83 3002.4 TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation Oral evidence shall be taken only on oath or affirmation. Irrelevant and unduly repetitious evidence shall be excluded. Sent- inn 3-1-345 : ABATEMENT BY CTTY. If such nuisance is not abate as ordered within said abatement period, the City Manager shall cause the same to be abated by City employees or private contract . The . City Manager is expressly authorized to enter upon said property for such purposes . The cost, including incidental expenses, of abati.^.a the nuisance. shall .be billed to the owner and shall become .-due and payable thirty:. (30.) days thereafter The. term ""in*ciderital ,'exp.e ises;",„ shall include, but not be-litited to, personnel costs, both direct and indirect; costs incurred in documenting the nuisance; the actual expenses and costs of the City in the preparation of notices, specifications and contracts,... and in inspecting the work; and the costs of printing and mailing required hereunder. Se _tion 3-1-350_ L,TMITATION_ OF FILING JUDTCIAL ACTION. Any action appealing the Council 's decision and order shall be commenced within thirty (30) calendar days of the date of service of the. decision . Section 3-1-355 : DEMOL.TTION. No property shall be found to be a pubIlic nuisance under Section 3-1-200 (a) and ordered demolished C._ 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 . gPction 3-1-360 : NOTICE OF 2NTENT 'To DEMOLISH. . A copy .of -any order or resolution requiring abatement by demolition under Section 3-1-315 or Section 3-1-335 shall be forthwith recorded with the Alameda County Recorder. (Legislative History; Ordinance No. 86-040, 1/12/87) ARTICLE 4 . LIEN PROCEDURE . Spntinn 3-1 -400 : 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 reporz .is 'submitted to. the City 'Council, a copy of the.:sAme shall be..posted. for at least five (5) days 'upon such property, together with a notice of the time when said report shall be heard by the City Council for 1/12/87 30025 TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation confirmation. A copy of said report and notice shall. be served L=c- the owners of said property in accordance with the provisions of Section 3-1-310 at least five (5) calendar 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.... Section 'A-1-405 : ASSESSMENT LIEN. The total cost for abating suc nuisance, as so corffirmed 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 Alameda County Auditor- Controller on or before August 1 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 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 . �. In the alternative, after such recordation, such lien may be foreclosed by judicial .or other sale in the manner and means provide- .by rovide.by law.. Such Notice of Lien 'for recordation shall be in form substantially as follows : "NOTICE OF LIEN (Claim of City of San Leandro) Pursuant to the authority vested by the provisions of Section of the San Leandro Municipal Code, the City Manage= of the -City of San Leandro did on or about the day o 19 , . 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 San Leandro did on the day of , 19 assess the cost of such rehabilitation, repair or demolition upon the real 1/12/87 3002.6 TITLE III HEALTH AND SAFETY Chapter 1 Neighborhood Preservation 10 property hereinafter described; and the same has not been paid nor any part thereof; and that said City of San Leandro does hereby claim a lien on such rehabilitation, . repair, or demolition in the amount of said assessment, to wit : the sum of S 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 Cit of: San Leandro, , County of Alameda-,.-:State_ of California, atd-"p'articularly described as follows : (description) Dated this day of , 19 City Manager, City of San Leandro (Legislative History: Ordinance No. 86-040, 1/12/87) ARTICLE. $.: MISCELLANEOUS . .. S .c ion 3-1-SQO ALTERNATIVE AC IONS AVAILABLE: VIOLATION AN INFRACTION. Nothing in this Chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to -abate a public nuisance pursuant to applicable law or from pursuing any other remedy available under applicable law. Violation of the provisions of this Chapter constitutes an infraction, as set forth in Title VIII, Chapter 1 . The City Manager is designated as the enforcement authority. (Legislative History: Ordinance No. 86-040, 1/12/87) 1/12/.87 3002.7