The term "public nuisance" or "nuisance" is defined to be:
A.
Any
condition declared by any statute of the state of California or by
any ordinance of the county of Stanislaus to be a nuisance.
B.
Any
public nuisance known or recognized in common law or equity.
C.
Any
use or condition of property that is dangerous to human life, unsafe
or detrimental to the public health or safety.
D.
Any
violation of a provision of the Stanislaus County Code.
(Ord. CS 659 §1, 1998)
The county department director, or his/her designee, shall use
the procedures set forth in this chapter to enforce the provisions
of the Stanislaus County Code, unless another procedure is provided
in this code, in which case the director may use the procedures in
this chapter. The term "department director" means the administrative
head of the county department responsible for enforcing the provisions
of the Stanislaus County Code that are being violated (hereafter,
"director"). In the case of multiple violations affecting two or more
county departments, a lead department shall be assigned the responsibility
of taking a lead role in coordinating enforcement action and activities.
The director or his/her designee, shall have the discretion to seek
the correction of any violation(s) through the use of administrative
citations, abatement, criminal prosecution, or civil litigation, alone
or in combination. The director of public works, director of planning
and community development, the director of environmental resources,
county counsel, district attorney, county sheriff, and fire warden
shall render such assistance in the enforcement of this chapter as
may from time to time be required.
(Ord. CS 659 §1, 1998)
Should the director or his/her designee, determine that a condition has been created or maintained on private or public property which constitutes a public nuisance as defined by Section 2.92.010 of this chapter, (s)he shall issue a notice and order to abate.
A.
The
notice and order to abate shall contain the following:
1.
The
street address and/or a legal description sufficient for identification
of the property where the condition exists or, if no property is involved,
the address of the person responsible for or committing the act that
constitutes a nuisance.
2.
A statement that the director has found the condition or use of the property or act of any person to be a public nuisance with a brief and concise description of the conditions or use of the property or act that constitutes a public nuisance under provisions of Section 2.92.010 of this chapter.
3.
A
list of needed corrections and abatement methods.
4.
The
date by which the nuisance must be abated, which shall be a reasonable
period of time, not less than two weeks nor more than two months,
as determined by the director or his/her designee, for the person
being cited to remedy the violation prior to the imposition of administrative
fines or penalties, when the violation pertains to building, plumbing,
electrical, or other similar structural or zoning issues, that do
not create an immediate danger to health and safety.
5.
A
statement of which remedy(s) (provided for by this chapter) will be
sought if compliance is not realized and the potential consequences
of that remedy.
B.
The
director or his/her designee, shall cause the notice and order to
abate to be served on the owner(s) of the property as shown on the
last equalized assessment roll, or upon the person responsible for
or committing the act that constitutes a nuisance, and upon the mortgagee,
lienor, lessee or holder of an interest of record in the subject property.
Service of the notice and order to abate may be made in the following
manner:
1.
By
personal service; or
2.
By
mail, certified, return receipt requested, to the owner of the property
at the address shown on the last equalized assessment roll, or to
the person responsible for or committing the act that constitutes
a nuisance at that person's permanent mailing address. Should the
service by certified mail, return receipt be returned as "refused
or unclaimed," service may be made by posting a copy of the notice
and order to abate prominently and conspicuously upon the property
where the nuisance exists and mailing a copy of the notice by regular
U.S. mail to the owner and any known tenant; and
3.
By
posting a copy of the notice on the property, if real property is
involved.
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For notices to correct violations of or to abate nuisances under
the State Housing Law (Health and Safety Code, Sections 17910 et seq.),
including the Uniform Housing Code, a second notice and order to abate
shall be served as required under California Code of Regulations,
Title 25, Section 60.
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C.
When
service of the notice and order to abate is made by personal service,
or posting, proof of service shall be certified to at the time of
service by a written declaration. When service is made via certified
mail, the card returned in acknowledgment of receipt shall be affixed
to a copy of the notice and order retained by the director or his/her
designee. The failure of any person to receive the notice does not
affect the validity of any proceedings taken under this chapter.
(Ord. CS 659 §1, 1998; Ord. CS 705 §5, 1999; Ord. CS 752 §2, 2001)
The owner or the person responsible for or committing the act
that constitutes a nuisance may request an extension of the date for
abatement of the nuisance specified in the notice and order to abate.
C.
If the
director or his/her designee, believes an extension of the date should
be granted, (s)he shall notify the party requesting an extension of
the new performance date.
(Ord. CS 659, §1, 1998)
Any person who shall fail to comply with a notice and order to abate within the time specified in the notice, or any extension of time granted pursuant to Section 2.92.040, having been properly served with a copy of the notice and order to abate, shall be guilty of a misdemeanor. The director or his/her designee, may, however, in his/her discretion, elect not to treat the violation as a misdemeanor, and seek enforcement pursuant to any other remedy provided in this chapter, in the Stanislaus County Code, or authorized by law.
If the owner, or person responsible for or committing the act
that constitutes a nuisance, fails to correct the violation(s) within
the time specified in the notice and order to abate, the director
or his/her designee, may cause to be recorded a notice of noncompliance
in the office of the county recorder, which subsequently shall be
withdrawn by recording a withdrawal of notice of noncompliance upon
the correction of the condition or use of property in conformance
with the notice and order to abate and payment of all costs of enforcement
incurred by the director.
The imposition of a penalty for violation(s) of this section
shall not excuse or permit such violation(s). Failure to abate the
nuisance within the time prescribed in the notice and order to abate
shall be deemed a separate offense for each day that the nuisance
is not abated after the expiration of the time specified to abate
the nuisance or the expiration of extension periods.
(Ord. CS 659, §1, 1998)
If the owner, or person responsible for or committing the act
that constitutes a nuisance, fails to correct the violation(s) within
the time specified in the notice and order to abate, the director
or his/her designee, may cause that person to be issued an administrative
citation (Government Code Section 53069.4).
B.
The Administrative Citation shall be served in the same manner as the notice of order to abate, as provided in Section 2.92.030. The amount of the penalty fee imposed shall be set by director or his/her designee; provided, however, where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Section 1.36.020. In determining the amount of civil penalty to be assessed against any person violating a provision of the Stanislaus County Code, consideration will be given to the following:
1.
The
extent to which the person had knowledge or reasonably should have
known that the action taken was a violation of the Stanislaus County
Code;
2.
The
magnitude of the violation;
3.
The
extent to which the person derived a financial benefit from the violation;
4.
Any
prior history of related violations by the same person on the subject
property or on other parcels within the County; and
5.
Any
corrective action, or lack thereof, taken by the person to eliminate
the violations, and any other mitigating circumstances justifying
a reduction of the amount of the penalties.
C.
Any
person receiving the administrative citation may request an appeal
hearing, in writing, within fifteen days from the date of service
of the administrative citation. The request for hearing shall be addressed
to the director and shall be deemed served only when received by the
county. Failure to properly serve the request for hearing within the
fifteen-day period shall be deemed a waiver of right to appeal the
matter, and the decision to impose the penalty fee will become final.
The appeal hearing shall be held before a hearing board, consisting
of two or more members, or a hearing officer appointed by the director
or his/her designee. A hearing officer shall be a member of the California
Bar admitted to practice no less than five years as required by Government
Code Section 27724. The hearing board or hearing officer shall give
written notice by mail to the person who has requested the appeal
of the date and time of the appeal hearing, which hearing should be
held not sooner than ten days from the receipt of the request for
hearing and not longer than thirty days. With the consent of both
parties, the appeal hearing may be conducted by telephone, or continued.
The appellant shall be allowed to present such witnesses and evidence
as (s)he may desire and may be represented by an attorney or other
representative of his/her choice. The county may be represented by
county counsel or his/her designee.
Upon conclusion of the hearing, the hearing board or hearing officer shall serve written notice of his/her decision in the manner provided by Section 2.92.030. The director shall present the decision of the hearing board or hearing officer to the board of supervisors, and the board may adopt such decision, with or without modification, without further notice of hearing.
D.
Notwithstanding Chapter 2.88 of the Stanislaus County Code or Sections 1094.5 or 1094.6 of the Code of Civil Procedure, within twenty days after the date action is taken by the board of supervisors on the decision of the hearing board or hearing officer, a person contesting that final administrative decision may seek review by filing an appeal in the Stanislaus County municipal court pursuant to subdivision (b) of Section 53069.4 of the Government Code. If no notice of appeal to the municipal court is filed within the period set forth in this section, the order or decision of the county shall be deemed confirmed.
E.
The
administrative fine or penalty imposed under this section, as confirmed
by the board of supervisors, 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 in appropriate legal form, as so made and confirmed, shall
constitute a lien on the property for the amount of such assessment.
After such confirmation and recordation, a copy may be turned
over to the auditor, whereupon it shall be the duty of the auditor
to cause the amounts of the respective assessments to be added to
the next regular tax bills levied against such respective lots and
parcels of land for municipal purposes, and thereafter such amounts
shall be collected at the same time and in the same manner as ordinary
municipal taxes are collected, and may be subject to the same penalties
and the same procedure under foreclosure and sale in case of delinquency
as provided for ordinary municipal taxes; or
After such recordation, such lien may be foreclosed by judicial,
or other sale in the manner and means provided by law.
(Ord. CS 659, §1, 1998)
If the owner, or person responsible for or committing the act
that constitutes a nuisance, fails to correct the violation(s) within
the time specified in the notice and order to abate, the director
or his/her designee, may (a) request the district attorney, or request
the board of supervisors to order the district attorney, to abate
a public nuisance pursuant to Government Code section 26528, or (b)
initiate abatement proceedings as provided for by law, including,
the Uniform Code for the Abatement of Dangerous Buildings or the Uniform
Housing Code, or (c) schedule a hearing for summary abatement proceedings
under the police powers of the county and pursuant to Government Code
Section 25845 as set forth in this section.
A.
Notice
of Hearing.
1.
The nuisance abatement hearing shall be a public hearing. Notice of the hearing shall be sent at least ten days prior to the hearing to the same persons and in the same manner as set forth in Section 2.92.030 for service of the notice and order to abate.
2.
Additional
notice of the hearing may be given at the discretion of the director
using one of the following methods:
(a)
By the mailing, at least ten days prior to the hearing, of postcard
notices through the United States mail, with postage prepaid, to all
property owners within three hundred feet of the property upon which
the violation exists, as shown on the current assessment roll of the
county and using addresses from the last adopted tax roll; or
(b)
By the publication of notice in a newspaper of general circulation
in accordance with Section 65090 of the Government Code and posting
the notice at least ten days before the hearing in a conspicuous place
on the property upon which the violation exists.
B.
Hearing
Procedure. The following sets forth the procedural rules applicable
to the nuisance abatement hearing:
1.
At
the time and place set for the hearing, an abatement hearing board,
consisting of two or more members, appointed by the board of supervisors
shall review the director's decision ordering cessation or abatement
of the alleged nuisance to determine whether the decision conforms
to the law and whether it is supported by substantial evidence. The
abatement hearing board shall tape-record the hearing and shall have
preserved the recording, all photographs and other documentary evidence
introduced at the hearing. The abatement hearing board may establish
rules for the orderly conduct of matters being heard by such board.
2.
Within
thirty days after the hearing is closed, the abatement hearing board
shall make a written recommendation to the board of supervisors on
each matter that is heard by the abatement hearing board which shall
contain a recommended decision, findings of fact and, if any need
be made, conclusions of law. A copy of the recommendation shall be
mailed by certified mail, to the owner(s) of the parcel and person
responsible for or committing the act that constitutes a nuisance
that is the subject of the hearing. The board of supervisors may adopt,
modify or reject the recommendation without further notice of hearing
or, in the discretion of the board of supervisors, may set the matter
for a de novo hearing.
3.
Default
Procedure.
(a)
In the event the respondent(s) fail to appear at the time and place
set for the hearing, the abatement hearing board may proceed in the
absence of the owner, person responsible for or committing the act
that constitutes a nuisance, or other person with a record interest
in the subject property.
(b)
The owner or other person with a record interest in the property
may petition for relief from default if application is made in writing
to the abatement hearing board within ten days of the decision. Such
application shall set forth the reasons constituting good cause for
the failure to appear at the hearing.
(c)
"Good cause" is defined as reasonable circumstances beyond the control
of the owner or person which prohibited attendance at the hearing.
(d)
If good cause is shown, a new date for a hearing will be set within
forty-five days.
C.
Grievance Procedure. Any aggrieved person with a record interest in the subject property may seek judicial review of the board of supervisor's decision no later than the ninetieth day following the date on which the decision of the board of supervisors becomes final as set forth in Chapter 2.88 of the Stanislaus County Code.
D.
Enforcement.
1.
Decisions
of the board of supervisors shall order abatement within a time certain
not to exceed six months. The order may authorize the county to abate
the nuisance and charge the cost of abatement to the owner(s) of the
abated property. The board of supervisors shall consider and determine
the reasonableness of the costs of abatement and, thereafter, shall
order the owner to pay the abatement costs. If the owner fails to
pay the cost of abatement upon demand by the county, a notice of abatement
lien shall be recorded and the cost of abatement shall become a lien
on the property pursuant to the provisions of California Government
Code Section 25845. The director is authorized to prepare and record
a notice of release of lien against the legal title of the subject
property(s), if the county is fully compensated for the amount of
the lien placed upon the property.
2.
The materials, equipment, vehicles or other personal property contained in any nuisance abated by the director may be disposed of in any manner deemed appropriate by the director, including, but not limited to sale or transfer to another department in the same manner as surplus county property pursuant to Sections 2.24.070, 2.24.080 and 2.24.090 is sold.
3.
Pursuant
to Government Code Section 25845.5, upon entry of a second or subsequent
civil or criminal judgment within a two-year period finding that an
owner of property is responsible for a condition that may be abated
in accordance with an ordinance enacted pursuant to Section 25845,
except for conditions abated pursuant to Section 17980 of the Health
and Safety Code, the court may order the owner to pay treble the costs
of the abatement.
E.
Summary
Abatement of Immediate Health And Safety Hazards.
Nothing in this section or other provision of the Stanislaus
County Code prohibits the summary abatement of a nuisance upon order
of the board of supervisors, if the board determines that the nuisance
constitutes an immediate threat to public health or safety.
(Ord. CS 659 §1, 1998; Ord. CS 705 §6, 1999)
If the owner or the person responsible for or committing the
act that constitutes a nuisance fails to correct the violation(s)
within the time specified in the notice and order to abate, the director
or designee, may:
(Ord. CS 659 §1, 1998)
If the owner, or tenant, fails to correct the violation(s) within
the time specified in the notice and order to abate, the director
or designee, may request the district attorney apply to such court,
or courts, as may have jurisdiction to grant such relief as will abate
the public nuisance, or restrain and enjoin any person from creating,
or maintaining a nuisance.
(Ord. CS 659 §1, 1998)
A.
Unsafe
Condition. The board of supervisors finds and declares that the following
"unsafe conditions" of property are a public nuisance that require
immediate abatement:
1.
Any
structure that is not secured from access by the general public;
2.
Any
open or abandoned excavation (mining shaft, pit, well, septic tank,
cesspool or any other open or abandoned excavation) determined by
the department director to be in violation of Part 9.5 (commencing
with Section 115700) of the California Health and Safety Code;
3.
The
accumulation or storage of waste, refuse, rubbish or debris on property
longer than one week, and/or the failure to regularly remove of such
material in a manner provided for by law, and/or the failure to properly
dispose of such material as required or allowed under applicable laws
and regulations;
4.
Any
other hazardous condition that is deemed by the department director
to constitute a substantial and imminent threat or risk to the health,
safety and welfare of any person or domestic animal.
B.
Notice
of Unsafe Condition. Upon verification that an unsafe condition exists
on property, the department director or designee may elect to deliver
a notice of unsafe condition to the owner, lessee, agent or other
person having charge or control of the property, or to any person
eighteen years of age or older at the residence or place of business
of such owner, lessee, agency or other person described above. Delivery
of the notice of unsafe condition may be made by personal service
or by mail, certified return receipt requested, addressed to the owner
at the address shown on the last equalized assessment roll. The notice
of unsafe condition shall contain:
1.
The
street address and/or location of the property, including the assessor's
parcel number;
2.
A
description of the unsafe condition(s) on the property that constitutes
a public nuisance;
3.
An
order to abate the unsafe condition within a time period designated
by the director or designee, not less than ten days after delivery
of the notice;
4.
A
statement that failure to abate the unsafe condition is a misdemeanor
violation, subject to criminal prosecution, pursuant to California
Government Code Section 25132. Said failure will result in abatement
by the county and all costs incurred by the county to abate the unsafe
condition shall be billed to the owner and, if not paid upon demand
by the county, shall become a lien on the property pursuant to California
Government Code Section 25845.
C.
Abating Unsafe Condition. In the event an owner, agent, lessee or other responsible person having charge or control of property where there exists an unsafe condition, fails, refuses or neglects to abate the unsafe condition within the time specified, the director or his/her designee may abate the unsafe condition and/or initiate other remedies authorized under Chapter 2.92 of the Stanislaus County Code. Abatement of an unsafe condition includes securing any structure from entry, removal and disposal of refuse on the property, and/or assisting the responsible person to abate the unsafe condition. The owner, lessee or responsible person may give the director or designee written authorization to abate the unsafe condition before the notice period has expired. If the director or designee reasonably determines that there is no responsible person to whom a notice of unsafe condition can be delivered, the director or designee may waive the ten-day notice and proceed immediately with abatement of the unsafe condition, provided that an affidavit is completed documenting the circumstances and reasons why the service of the notice would be futile.
D.
Appeal.
The owner, lessee, agent or other person having charge or control
of the property may appeal the order to abate the unsafe condition
by filing with the director a written notice of appeal containing
reasons for seeking relief from the order prior to the compliance
date designated in the notice of unsafe condition. The director shall
determine and issue a decision on the merits of the appeal within
two working days and may sustain, modify or overturn the notice of
unsafe condition. The decision of the director is final.
E.
Continuing
Abatement Without Notice. After initially following with the notice
procedures set forth in this section, the director and designee are
authorized to continue abatement of any unsafe condition on the property
without notice.
F.
Liability
for Costs of Abatement. The owner of record of the property shall
be responsible for all costs incurred by the county to abate the unsafe
condition, which costs may include, but are not limited to, administrative
costs, staff time, and all costs incurred in the physical abatement
of the unsafe condition. The director or designee shall identify these
costs on a statement of abatement costs, which costs shall be paid
on demand. The director or designee may enter into an agreement with
the owner, agent, lessee or other responsible person for reimbursement
of the cost incurred by the county to assist that person to abate
the unsafe condition. The cost of abatement shall become a lien on
the property pursuant to California Government Code Section 25845
if the landowner fails to pay the costs upon demand by the county.
1.
The property owner may protest the cost of abatement imposed pursuant to this paragraph by filing a written request for a hearing before the abatement hearing board on the abatement costs with the director or designee within five business days after receipt of the statement of abatement costs. If the property owner's request is timely, the director or designee shall give the property owner notice of the hearing in the same manner as provided in subsection A of Section 2.92.070. At the time fixed for the hearing on the statement of abatement costs, the abatement hearing board shall consider the statements, protests, or objections raised by the property owner.
2.
The
abatement hearing board may revise, correct, or modify the statement
as it considers just and thereafter shall confirm the cost.
3.
The
decision of the abatement hearing board shall be final.
4.
Appeal
of the abatement hearing board decision shall be governed by California
Code of Civil Procedure Section 1094.6, or such section as may be
amended from time to time.
G.
Emergency
Abatement. The director or designee may immediately abate any unsafe
condition without prior notice to the owner, lessee, agent or other
person having charge or control of the property, if the director or
designee find and determine that there exists on the property an extremely
hazardous unsafe condition that cannot be permitted to exist for ten
days. The director shall report to the board of supervisors at the
first regular meeting after taking action to abate the unsafe condition
explaining all actions taken and justifying the decision to proceed
immediately without prior notice.
(Ord. CS 752 §1, 2001; Ord. CS 1335 §§1, 2, 2022)
Nothing in this chapter shall be so interpreted as to prevent
prosecution under any other civil, penal, building, fire or related
statutes or codes or other sections in other titles of the Stanislaus
County Code. The county reserves the right to employ any one of any
combination of any and all authorities for prosecution.
(Ord. CS 659 §1, 1998)
Whenever necessary to make an inspection to enforce any provision
of this chapter, or whenever the director or designee, has reasonable
cause to believe that there exists in any building or upon any premises
any condition in violation of this chapter, the director or designee,
may enter such premises at all reasonable times to perform any duty
imposed upon such person by this chapter, provided that if the premises
are private and occupied, the director or designee, shall present
proper credentials, state the reasons for entry and request entry.
If entry is not granted, a court order should be secured. If premises
are unoccupied, the director or designee, should make a reasonable
effort to locate the owner, or tenant, and request entry. If entry
is refused, the director or designee, shall have recourse to the remedies
provided by law to secure entry.
(Ord. CS 659 §1, 1998)
If any section, subsection, sentence, clause, phrase or other
part of this chapter is for any reason held to be unconstitutional
or otherwise invalid, such decision shall not affect the validity
of the remaining portions of this chapter. The board of supervisors
declares that it would have enacted this chapter and each section,
subsection, sentence, clause and phrase thereof irrespective of the
fact that any one or more sections, subsections, sentences, clauses
or phrases or other parts be declared unconstitutional or otherwise
invalid.
(Ord. CS 659 §1, 1998)
Pursuant to Government Code Section 25845(c), in any action,
administrative proceeding, or matter commenced by the county to abate
a nuisance, or to collect the cost of abatement or any penalty or
fee related thereto, the prevailing party shall recover its attorneys'
fees.
The recovery of attorneys' fees under this section is limited
to those actions, administrative proceedings, or matters in which
the county chooses at the initiation of the action, administrative
proceeding, or matter to seek the recovery of its own attorneys' fees.
In no event shall an award of attorneys' fees under this chapter
exceed the reasonable amount of attorneys' fees incurred by the county
in the action or proceeding.
(Ord. CS 931 §1, 2005)
