A hearing officer shall conduct the hearing on the order to
show cause. The hearing officer is authorized to take testimony and
in the course of so doing is authorized to administer oaths or affirmations
pursuant to
Code of Civil Procedure Section 2093. Hearings need not
be conducted according to the technical rules relating to evidence
and witnesses; however, the person(s) to whom the order to show cause
was directed shall have the right to present testimony and documentary
and physical evidence on his or her/its behalf and shall have the
right to cross-examine any witnesses and rebut any evidence presented
against him/her/it. The city manager shall have the burden of proving
the existence of a public nuisance, or other violations alleged, by
a preponderance of the evidence.
(Ord. 03-1 § 2; Ord. 12-11 § 3)
Failure of the owner or responsible party to either abate the
conditions specified in the order to show cause or to appear at the
hearing on the order to show cause after notice has been served shall
be deemed a waiver of the right to a hearing and an admission by such
owner or responsible party of the existence of the nuisance conditions
as specified. In the event of an owner's failure to appear, the hearing
officer shall proceed to consider the evidence as presented by the
city manager. Notwithstanding anything in this chapter to the contrary,
there shall be no right to appeal a decision and/or and order of abatement
issued following such failure to appear.
(Ord. 03-1 § 2; Ord. 12-11 § 3)
The hearing officer shall have discretion to, and in the furtherance
of justice may, relieve any person of any decision or order of abatement
entered as a result of a person's failure to appear at a hearing upon
a written finding, based on evidence submitted by the person seeking
such relief, that the failure to appear was the result of mistake,
surprise, inadvertence or excusable neglect. Any application for such
relief shall be submitted to the hearing officer by the person seeking
such relief no later than seven days after the date of any decision
or order of abatement issued following a person's failure to appear
at the hearing. After the passage of seven days after the date of
any such decision or order of abatement issued after a person's failure
to appear, the hearing officer shall have no power or authority to
grant the person relief from any such decision or order of abatement
pursuant to this subsection or otherwise. The hearing officer shall
schedule a timely request for relief under this section for a hearing
no later than thirty days after the application for relief. If relief
from the decision or order of abatement is granted pursuant to this
subsection, the hearing officer shall schedule and hold a hearing
on the merits no later than thirty days after the granting of such
relief.
(Ord. 03-1 § 2)
Upon the conclusion of the hearing on the order to show cause, the hearing officer shall determine whether the activity or the property, or any part thereof as maintained constitutes a public nuisance. If the hearing officer finds that a public nuisance does not exist, it shall dismiss the proceedings. If the hearing officer finds that a public nuisance does exist and that there is sufficient cause to order the abatement of the public nuisance the hearing officer shall issue an order of abatement, which shall contain findings of fact and shall direct and order the public nuisance abated within the time and in the manner set forth in the order. If the hearing officer consists of more than one individual, then the determinations made pursuant to this subsection shall be made by majority vote. Except in the circumstance when an order of abatement has been issued following a person's failure to appear at a hearing, and where no relief to such person has been granted pursuant to Section
19.05.011. of this chapter the order of abatement shall include notification of the right to appeal and shall be served in the manner set forth in Section
19.05.005.
In deciding whether to order abatement of the nuisance by requiring
either repair or demolition of any residential building the hearing
officer shall:
A. Give
preference to repair of the building whenever it is economically feasible
to do so without having to repair more than seventy-five percent of
the dwelling, as determined by the hearing officer; and
B. Shall
give full consideration to the needs for housing as expressed in the
city's housing element.
An order of abatement issued under the Nuisance Abatement Code
shall run with the land, and shall be binding on any subsequent owners,
lessees, successors in interest, or persons who acquire any interest
in the property. The owner of any property against which an order
of abatement has been issued shall notify any prospective purchaser,
lessees, successors, or persons who propose to acquire any interest
in the property of the order of abatement, of its application as against
the property, and of the terms of this section, prior to entering
into any contract or agreement for the sale or lease of any interest
in the property.
(Ord. 03-1 § 2; Ord. 04-5 § 3)
A. The
hearing officer's decision and any order of abatement issued by the
hearing officer pursuant to this chapter may be appealed in writing
to the appeals board by any interested person, by filing with the
city clerk a written appeal. This appeal must be filed no later than
fifteen days after the date of service of the hearing officer's decision
and must contain the following information:
1. A
specific identification of the property that is the subject of the
nuisance abatement proceeding.
2. A
caption reading: "appeal of [name of appellant(s)]."
3. A
brief statement setting forth the legal interest of each of the appellants
in the building or the land involved in the order of abatement.
4. A
statement in ordinary and concise language of the specific order or
action protested together with the contentions of the appellant and
any material facts supporting the contentions of the appellant.
5. The
address of each person appealing.
6. The
signatures of all parties named as appellants.
7. The
verification of at least one appellant as to the truth of the matter
stated in the appeal.
B. An
appeal shall be deemed filed upon receipt by the city clerk's office
and the payment of any appeal fee, which may be established by resolution
of the city council. Except as otherwise provided by this code or
other law, the filing of an appeal pursuant to this section shall
stay the hearing officer's decision. The city clerk shall set a date
on which the appeals board shall hear the appeal which shall be no
later than thirty days from the date the appeal was filed. Written
notice of the time and place of the appeal hearing shall be given
at least ten days prior to the date of the hearing to each appellant
and to all interested persons, either by causing a copy of such notice
to be delivered to the appellant personally or by mailing a copy thereof
by certified U.S. mail postage prepaid and return receipt requested
U.S. mail delivery confirmation, U.S. mail signature confirmation,
or such other delivery method that is reasonably calculated to provide
actual notice to the intended recipient at the address shown on the
appeal. Mailed service of the notice shall be deemed complete at the
time of deposit in the U.S. mail. Continuances of the hearing may
be granted for good cause in the sole discretion of the appeals board.
C. The
failure to file an appeal to the appeals board, pursuant to this chapter,
shall render the decision and any order of abatement of the hearing
officer final and conclusive, shall be deemed a failure to exhaust
administrative remedies, and shall act as a complete bar to any legal
proceeding challenging the city's abatement of the public nuisance.
D. At
the time of the appeal hearing the appeals board shall permit any
interested person to present written or oral arguments relating to
the appeal based upon the record presented at the hearing on the order
to show cause. The appeals board shall not permit the introduction
of any further evidence unless a showing is made by the offering party
that the evidence could not reasonably have been presented to the
hearing officer at the time and place of the prior hearing. Additionally,
the appeals board may permit the presentation of evidence if the evidence
is reasonably calculated to show that there has been substantial change
in the condition of the property since the time of the prior hearing.
Thereafter, based upon the prior administrative record, the evidence
that may be presented pursuant to the provisions of this section,
and the written or oral arguments of interested persons, the appeals
board shall determine whether the property, in its then condition,
constitutes a public nuisance within the meaning of this chapter.
E. If
the appeals board finds such nuisance conditions do not exist, it
shall dismiss the proceeding. If the appeals board finds that a public
nuisance exists, it shall issue an order of abatement requiring the
abatement thereof. The order of abatement shall take the form of a
written decision briefly setting forth the findings of facts relied
upon in making the order, the conditions constituting the nuisance,
the manner in which the nuisance may be abated, and the date by which
the nuisance must be abated.
F. The decision and any order of abatement of the appeals board shall be final and conclusive on the date it is issued. The decision shall be served in the manner set forth in Section
19.05.005. The decision shall include notification that any action to judicially review said decision and order of abatement must be commenced not later than ninety days following the date of the decision and order of abatement pursuant to
Code of Civil Procedure Section 1094.6.
(Ord. 03-1 § 2; Ord. 04-5 § 3)