(a)
In
order to further the stated goals of the City of Dana Point and to
protect its citizens and their property from conditions which are
offensive or annoying to the senses, detrimental to property values
and community appearance, or hazardous or injurious to the health,
safety or welfare of the general public, the City Council has determined
that a Chapter is necessary to effectively abate or prevent the development
of such conditions in the City of Dana Point.
(b)
It
is the intention of the City Council, in adopting the Chapter codified
herein, to set forth guidelines for determining what conditions constitute
a public nuisance; to establish a method for giving notice of the
conditions and an opportunity to correct them; and finally in the
event the public nuisance is not abated or corrected, to provide a
procedure for a hearing and determination of the facts and manner
in which the conditions shall be corrected or removed.
(c)
It
is the purpose of this Chapter to provide a just, equitable and practical
method, in addition to any other remedy available at law, whereby
lands or buildings which are dilapidated, unsafe, dangerous, unsanitary,
cluttered with weeds, debris, abandoned vehicles, machinery or equipment,
or are a menace, or hazard to life, limb, safety, health, morals,
property values, aesthetic standards or the general welfare of the
City of Dana Point, may be required to be repaired, renovated, vacated,
demolished, made safe, or cleaned up by removal of offensive conditions.
(d)
It
is the purpose of this Chapter to provide a program for removal of
graffiti from walls and structures on both public and private property
and to provide regulations designed to prevent and control the further
spread of graffiti in the City.
(e)
It
is the purpose of this Chapter to provide a program for the removal
and/or abatement as public nuisances of abandoned, wrecked, dismantled,
or inoperative vehicles or parts thereof from private or public property.
(f)
In
addition to the abatement procedures provided herein, this Chapter
declares certain conditions to be public nuisances and that maintenance
of such conditions shall be a misdemeanor.
(g)
This
Chapter is not intended to enforce Conditions, Covenants and Restrictions
(CC&R's) on property, nor to supersede them. This Chapter will
be enforced uniformly within the City regardless of CC&R's. Therefore,
this Chapter does not abrogate the right of any homeowners association
or private citizen to take action, legal or as otherwise provided
in the CC&R's, to force compliance with the CC&R's applicable
to their tract or association even though the CC&R provisions
may be the same, more restrictive or may not be covered by this Chapter.
It shall be unlawful and a misdemeanor subject to punishment in accordance with Section 1.01.200 of this Code, and it is hereby declared to be a public nuisance, from any person owning, leasing, occupying, or having charge of any residential, agricultural, commercial, industrial, business park, office, educational, religious, vacant, or other property within the City of Dana Point, to maintain such property in such a manner that any of the following conditions are found to exist thereon:
(a)
Any
violation of any Section of the Dana Point Municipal Code or any section
of the City of Dana Point Ordinance No. 90-07 which adopted by reference
portions of the Codified Ordinances of the County of Orange ("Orange
County Code") and other noncodified Orange County Ordinances including,
but not limited to the following:
(1)
Division 2 through 14 of Title 3 of the Orange County Code relating
to Public Morals, Safety and Welfare; including property maintenance
and recreational vehicles on private property;
(2)
Division 1 through 7 and 9 of Title 4 of the Orange County Code relating
to Health, Sanitation, and Animal Regulation; including animal control
regulations and licensing, noise control;
(b)
Land,
the topography or configuration of which, in any man-made state, whether
as a result of grading operations, excavations, fill, or other alteration,
interferes with the established drainage pattern over the property
or from adjoining or other properties which does or may result in
erosion, subsidence or surface water drainage programs of such magnitude
as to be injurious to public health, safety and welfare or to neighboring
properties;
(c)
Buildings
or structures which are partially destroyed, abandoned or permitted
to remain in a state of partial construction for more than six months,
or during any period of extension, after the issuance of a building
permit;
(d)
The
failure to secure and maintain from public access all doorways, windows
and other openings into vacant or abandoned (not occupied or in use
for any purpose, no maintenance applied to the structure or grounds)
buildings or structures;
(e)
Painted
buildings that require repainting, and walls, retaining walls, fences
or structures, or building, walls, fences or structures upon which
the condition of the paint has become so deteriorated as to permit
decay, excessive checking, cracking, peeling, chalking, dry rot, warping
or termite infestation;
(f)
Any
building or structure, wall, fence, pavement, or walkway upon which
any graffiti, including paint, ink, chalk, dye or other similar marking
substances, is allowed to remain for more than 24 hours;
(g)
Broken
windows;
(h)
Overgrown,
dead, decayed or hazardous vegetation which:
(i)
For purposes of subdivision (h), it shall be a presumption that any property upon which weeds exceeding six inches in height create the conditions set forth in subsections (h)(1) through (4), although weeds of lesser height may also meet such criteria if so determined by the City's Code Enforcement Officer;
(j)
Building
exterior, roofs, landscaping, grounds, walls, retaining and crib walls,
fences, driveways, parking lots, sidewalks or walkways which are maintained
in such condition so as to become defective, unsightly or no longer
viable;
(k)
The
accumulation of dirt, litter, feces, or debris in doorways, adjoining
sidewalks, parking lots, landscaped or other areas;
(l)
Except
where construction is occurring under a valid permit, lumber, junk,
trash, garbage, salvage materials, rubbish, hazardous waste, refuse,
rubble, broken asphalt or concrete, containers, broken or neglected
machinery, furniture, appliances, sinks, fixtures or equipment, scrap
metals, machinery parts, or other such material stored or deposited
on property such that they are visible from a public street, alley
or neighboring property;
(m)
Deteriorated
parking lots, including those containing pot holes, or cracks;
(n)
Abandoned,
broken or neglected equipment and machinery, pools, ponds, excavations,
abandoned wells, shafts, basements or other holes, abandoned refrigerators
or other appliances, abandoned motor vehicles, any unsound structure,
skateboard ramps, or accumulated lumber, trash, garbage, debris or
vegetation which may reasonably attract children to such abandoned
or neglected conditions;
(o)
(1)
Construction equipment, buses, tow trucks, dump trucks, flatbed trucks,
grading equipment, tractors, tractor trailers, truck trailers, or
any other commercial vehicle over 25 feet long or eight feet in height
or 90 inches wide, supplies, materials, or machinery of any type or
description, parked or stored upon any street or property within a
residential zone.
(2)
Commercial vehicle, for the purposes of this section, shall be defined
as any motorized or non-motorized vehicle used or maintained to transport
property or goods for profit, or persons for hire or compensation.
Any commercial vehicle, when used as the primary source of transportation
by the person owning, leasing, occupying or having charge of any such
vehicle, shall be excluded from the provisions of this Subsection;
(p)
Construction
debris storage bins stored in excess of 15 days on a public street
or any front or sideyard setback area without the express approval
of the Director of Community Development and/or the City Engineer;
(q)
Refuse
or trash placed so as to be visible from neighboring properties or
streets, except for those times scheduled for collection, in accordance
with Section 6.10.016;
(r)
Any
property with accumulations of grease, oil or other hazardous material
on paved or unpaved surfaces, driveways, buildings, walls, or fences,
or from which any such material flows or seeps on to any public street
or other public or private property;
(s)
Any
front yard, parkway, or landscaped setback area which lacks turf,
other planted material, decorative rock, bark or planted ground cover
or covering, so as to cause excessive dust or allow the accumulation
of debris;
(t)
Any
condition of vegetation overgrowth which encroaches into, over or
upon any public right-of-way including, but not limited to, streets,
alleys, or sidewalks, so as to constitute either a danger to the public
safety or property or any impediment to public travel;
(u)
Use
of parked or stored recreational vehicles, as defined in Section 6-4-603(c)
of the Codified Ordinances of the County of Orange as adopted by the
City of Dana Point by Ordinance No. 90-07, as temporary or permanent
living space;
(v)
Animals,
livestock, poultry or bees kept, bred or maintained for any purpose
and in violation of any provision of the City Municipal Code;
(w)
Any habitation which is overcrowded, as defined by the Uniform Housing Code, as adopted by reference by the City of Dana Point Ordinance No. 89-29, or as defined in Section 6.16.018(a) of the Dana Point Municipal Code or which lacks adequate ventilation, sanitation or plumbing facilities, or which constitutes a fire hazard;
(x)
(1)
Except where construction is occurring under a valid permit, the
dumping of any waste matter in or upon any public or private highway
or road, including any portion of the right-of-way thereof, or in
or upon any private property into or upon which the public is admitted
by easement or license, or upon any private property without the consent
of the owner, or in or upon any public park or any public property
other than property designated or set aside for that purpose by the
governing board or body having charge of that property.
(2)
Except where construction is occurring under a valid permit, any
placing, depositing or dumping, whether by natural or man-made causes,
and whether intentionally or unintentionally, of any rocks, dirt or
debris in or upon any private highway or road, including any portion
of the right-of-way thereof, or any private property, without the
consent of the owner, or in or upon any public work or other public
property, without the consent of the state or local agency having
jurisdiction over the highway, road, or property.
(y)
Any
other condition declared by any State, County, or City statute, code
or regulation to be a public nuisance.
(z)
Trailers,
campers, boats or motor vehicles present on vacant property or in
front yards of developed lots other than driveways.
(aa)
Laundry, clothes or household linens viewable from the public right-of-way,
unless such laundry, clothes or household linens are on a clothes
line in the rear yard or side yard of a property or unless such clothes
or household linens are being sold at a legally permitted garage sale.
(bb)
Any violation of Title 8 or Title 9 of the City of Dana Point Municipal
Code.
(dd)
Operation of a facility without any required governmental permit,
approval or license (including, without limitation, a license required
by Health and Safety Code Section 11834.01 et seq., Health and Safety
Code Section 1505, or 9 CCR Section 10508).
(ee)
Failure to comply with any condition or term of any required governmental
permit, approval or license.
(Amended by Ord. 93-09, 5/11/93; Ord. 94-15, 9/27/94; Ord. 10-07, 7/26/10; Ord. 10-12, 11/8/10; Ord. 17-05, 10/3/17)
Whenever the Director of Community Development, hereinafter
"Director" or his/her duly authorized agent or representative reasonably
believes a public nuisance exists, he/she shall commence abatement
proceedings. The Director shall have responsibility for abating such
nuisances on any private property and shall cause a written notice
to be issued to abate such nuisance.
(a)
The
notice shall contain a description of the property in general terms
reasonably sufficient to identify the location of the property. Such
notice shall refer to this Section and to the violations of the Municipal
Code at issue, and shall direct compliance by removal or correction
of the condition which is in violation of the provisions of this Code
within the minimum time frames set forth in this Section from the
date of the notice. The notice shall further describe the consequences
for failure to comply with this Section.
(b)
As
a general matter, the notice of violation shall require the removal
or correction of the condition within a minimum of seven calendar
days and a maximum of 30 calendar days from the date of the notice
unless one of the following exists:
(1)
The City Code Enforcement Officer determines that the maintenance
of the condition of the property in its present state constitutes
an imminent threat to public health or safety and the Director of
Community Development concurs with such determination, the Code Enforcement
Officer and Director may order compliance within a shorter period
of time. Nothing herein shall limit the City's use of criminal nuisance
or other abatement proceedings to seek immediate redress for imminent
threats to public health and safety.
(2)
The City Code Enforcement Officer determines that the violation is
easily and simply correctable, the Code Enforcement Officer may require
compliance in less than seven days providing that such period of time
shall be reasonable. If this subsection is utilized, the notice shall
also state that the length of the compliance period is subject to
review by the Director whose decision shall be final.
(Ord. 94-15, 9/27/94)
The owner, lease holder, tenant, or occupant having charge of
any building, structure, or property alleged to be a public nuisance
as set forth above, may abate said nuisance at any time within the
abatement period by rehabilitation, repair, removal or demolition.
The Director/designee shall be advised of the abatement and shall
inspect the premises to ensure that the nuisance has in fact been
abated.
Upon failure of the owner or his agent or the person in possession
of the property to remove or correct the conditions described in the
notice by the date specified, the Director shall cause a hearing to
be held to determine whether said building, structure, or property
is being maintained in such a manner so as to constitute a public
nuisance. The Director shall give not less than seven days' written
notice of the hearing to the owner(s) of the affected properties as
shown on the latest equalized tax assessment roll by mailing the same
to the addresses as indicated thereon, to any persons holding permits
to the applicable property, building or structure, and further, within
the same time period, by conspicuously posting on the affected property,
building, or structure a copy of the notice. Notice may also be served
on the holder of any mortgage or deed of trust or other lien or encumbrance
of record; the owner or holder of any lease of record; and the holder
of any other state of legal interest of record of the building or
structure, or the land on which it is located.
(a)
The
notice shall indicate the nature of the alleged public nuisance, a
description of the property involved, and the designation of the time
and place of the hearing to determine whether the same constitutes
a public nuisance, and the manner of the proposed abatement if the
same is found to be a public nuisance.
(b)
The
notice and order of abatement shall be served on every party by registered
or certified mail. Delivery by first class mail shall be used when
delivery by registered or certified mail is refused.
(c)
The
failure of any person to receive this notice shall not affect the
validity of any proceedings under this Chapter.
(d)
Nothing
hereby shall prevent any property owner or other interested person
from abating the nuisance prior to the time of the hearing and notifying
the City of the same. Upon confirmation by the City that the nuisance
has been abated, the need for the hearing shall be deemed terminated.
The notice given shall be provided in substantially the following
format:
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"NOTICE OF HEARING ON ABATEMENT OF PUBLIC NUISANCE
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A hearing will be held at City Hall, 33282 Golden Lantern, Suite
210, Dana Point, before the City of Dana Point Hearing Officer, to
determine whether the premises at ___________ constitutes a public
nuisance.
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The conditions asserted to constitute a public nuisance include
the following:
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A hearing may be avoided if the following corrections are made
at least two calendar days before the date set for the hearing:
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If it is determined that the conditions on the property constitute
a public nuisance, the following abatement action may be taken by
the City if the owner has not taken corrective action within five
days after the hearing officer's determination:
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If abatement action is taken by the City, all costs of the abatement
will be assessed against the property and will attach as a lien until
paid. All persons having an interest in this matter may attend the
hearing and give testimony and evidence, which will be given due consideration
by the hearing officer. Call (714) 248-3560 for questions regarding
this notice."
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(a)
The
hearing to determine whether a public nuisance exists shall be conducted
by the hearing officer. The hearing officer shall be determined by
Resolution by the City Council. The hearing officer is authorized
to take testimony and in the course of so doing, is authorized to
administer oaths or affirmations pursuant to California Code of Civil
Procedure Section 2093(a).
(b)
At the hearing, the hearing officer shall consider all relevant evidence, including but not limited to applicable Staff Reports. He shall give any interested person the reasonable opportunity to be heard in conjunction therewith. Based upon the evidence so presented, the hearing officer shall determine whether a public nuisance within the meaning of this Chapter exists, and determine the assessment of costs to date, if any, in accordance with Section 6.14.008 hereof.
(Ord. 94-15, 9/27/94)
(a)
The
decision of the hearing officer shall be final and conclusive in the
absence of appeal as provided in this Chapter.
(b)
The hearing officer shall, within five working days, mail a copy of the written notice of decision by certified or registered mail to the owner, and by regular first-class mail to all other persons and entities who received notice of the original hearing, and to any other person requesting the same. The notice shall contain an order of abatement, if a public nuisance is determined to exist, and assessment of costs to date, if any, in accordance with subsection (d) hereof, and be directed to the owner of the affected property or the person in control and/or charge of the property, and shall set forth the nature of the nuisance, its location and the time and manner for its abatement.
(c)
Where
an appeal is filed as provided in this Chapter, the order of abatement
shall be suspended pending the review of the determination in the
manner set forth in this Chapter.
(d)
If
the hearing officer determines that a nuisance exists, then the hearing
officer shall, as part of his/her order, direct that the property
owner or person in control and/or charge of the property, pay the
City's costs of the nuisance proceedings to date. Such costs shall
include any and all City staff time and costs from the second notice/letter
of violation and include all noticing, city attorney, city staff time,
and hearing officer costs. If the hearing officer determines that
no violation exists, no costs shall be awarded or ordered.
Any costs awarded shall be deemed a debt owed to the City and
shall be paid within 30 days of invoice from the City. Any debt remaining
unpaid shall, at the City's option, be:
(Ord. 94-15, 9/27/94)
Any person entitled to notice of hearing, who has participated
in that hearing and who is dissatisfied by the order of the hearing
officer, may appeal that order by filing an appeal with the City Clerk
within five days of the date of the order and by paying the appeal
fee set by Resolution. The notice of appeal shall specify:
(a)
A
description of the property;
(b)
The
abatement proceedings appealed;
(c)
The
owner, or appealing party's, legal or equitable interest in the property;
(d)
A
statement of disputed and undisputed facts;
(e)
A
statement specifying which portion of the proceedings that are being
appealed, together with any evidentiary or supporting materials that
would support the appeal; and
(f)
A
verification of the truth of all matters asserted.
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Upon the timely filing of a notice of appeal in the proper form,
the City Clerk shall place said appeal upon the next regular meeting
to the City Council scheduled to be held not less than five business
days after said appeal is received.
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The City Clerk shall provide written notice of the appeal, including
the time, place, and date of the hearing on the appeal, to the appellant
and any other person to whom notice of the hearing officer's order
was sent. Said notice shall be sent in the same manner as notice of
the hearing officer's order.
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The City Council may limit the issues on appeal to those in
substantially the same form as that sent by the hearing officer and
shall be sent to all persons to whom notice of the hearing officer's
order was sent as well as to all persons requesting such notice, in
writing, at the time the appeal is heard.
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If the nuisance is not completely abated by the date specified
in the hearing officer's order, or in the City Council's determination,
as appropriate, the City Manager may immediately cause the same to
be abated by City personnel or under private contract. The hearing
officer and/or City Council are authorized to grant reasonable extensions
on the time period for abatement based on a proper showing by the
property owner of extenuating circumstances, made before the date
of City abatement. The owner of the premises shall be liable to the
City for all costs of such abatement.
City personnel, or any private contractor authorized to abate
the nuisance, shall keep an account of the cost, including incidental
expenses, of all abatement work performed on each separate lot or
parcel of land where work is done and shall render an itemized report
in writing to the City Council showing the total cost of abatement
by rehabilitation, demolition, or repair of the property, buildings,
or structure, including any salvage value relating thereto. A copy
of the report shall be posted at City Hall or other official location
for posting City notices for at least five days before it is considered
by the City Council. Proof of posting shall be made by affidavit of
the City Clerk or Deputy City Clerk. The term "incidental expenses"
includes but is not limited to the actual expenses and costs of the
City in preparation of notices, specifications and contracts, inspection
of the work, and the cost of printing and mailings required under
this Chapter, and any attorney fees expended in the abatement of the
nuisance, through civil action or otherwise. The City Attorney shall
be responsible for keeping an accounting of attorney fees and costs
and transmitting the same to the Director.
The total cost for abatement of the nuisance, as confirmed by
the City Council, shall constitute a special assessment against the
lot or parcel of land to which it relates and, upon recordation in
the office of the County Recorder of a Notice of Lien, shall constitute
a lien on the property for the amount of the assessment.
After confirmation and recordation, a copy of the Notice of
Lien may be turned over to the Tax Collector to add the amounts of
the assessments to the next regular tax bill levied against the respective
lots and parcels of land. Thereafter the assessment amounts shall
be collected at the same time and in the same manner as ordinary property
taxes are collected and shall be subject to the same penalties and
the same procedure for foreclosure and sale in case of delinquency
as provided for ordinary property taxes. After recordation, the lien
may be foreclosed by judicial or other sale in the manner and means
provided by law. The Notice of Lien for recordation shall be in a
form substantially as follows:
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"NOTICE OF LIEN
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Claim of the City of Dana Point
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Pursuant to the authority vested by Chapter 6.14 of the Dana Point Municipal Code, the City of Dana Point hearing officer [City Council] did on or about the ________day of ________, 20________, cause the property hereinafter described to be declared a public nuisance and order the same abated. The City Council of the City of Dana Point, did on the ________ day of ________, 20________, assess the cost of such abatement upon the property and the same has not been paid nor any part thereof. The City of Dana Point does hereby claim a lien for such abatement in the amount of the assessment, to wit: the sum of $ ________, and the same shall be a lien upon the real property until paid in full and discharged of record.
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The real property hereinabove mentioned, and upon which a lien
is claimed, is that certain parcel of land lying and being entirely
with the City of Dana Point, County of Orange, State of California,
particularly described as follows:
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(legal description)
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Dated: This________day of________, 20________.
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______________________________________________
City Manager, City of Dana Point"
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The owner of any premises within the City has responsibility
for keeping said premises free of public nuisances. Tenants and occupants
of the premises, for the purposes of this Chapter, shall be deemed
to be the agents of the owner.
(Amended by Ord. 93-09, 5/11/93)
Nothing in this Chapter shall be deemed to prevent the City
Council from:
(a)
Ordering
and directing the City Attorney to commence a civil action in the
Superior Court to enforce the provisions of a final order of abatement;
and/or
(b)
Ordering
and directing the City Attorney to commence a civil action to abate
a public nuisance as an alternative to an administrative proceeding
pursuant to this Chapter.
Where such a civil action is filed, if the Court issues an order
or a judgment directing and ordering the abatement of a public nuisance,
the Court shall also award the City its costs of abatement, determined
pursuant to the provisions of this Chapter, and, reasonable attorneys
fees incurred by the City in such civil proceeding.
(Amended by Ord. 93-09, 5/11/93)
Notwithstanding any other provision of this Code, whenever the City Manager determines that a public nuisance exists within the City, or that the condition of a building or structure constitutes a public nuisance, all as defined in this Chapter or pursuant to other applicable law, and that nuisance constitutes an immediate hazard or danger, the City Manager, without observing the provisions of this Chapter with regard to abatement procedures, shall immediately and forthwith order the abatement of such existing public nuisance, and forthwith report such circumstances to the City Council. Where such abatement is ordered by the City Manager, the Director of Community Development shall, after completing the abatement, comply with the provisions of Section 6.14.005 et seq. hereof.
(Added by Ord. 93-09, 5/11/93)
