City of Desert Hot Springs, CA Chapter 4.16 PUBLIC NUISANCES

§ 4.16.010 Unlawful acts—Public nuisances.

A. The following shall be designated as unlawful acts and public nuisances:

1. Attractive Nuisances. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain on any such premises or property any condition that constitutes an attractive nuisance including, but not limited to, the following:

a. Abandoned, damaged or broken equipment, machinery or household items;

b. Unprotected hazardous or unfilled pools or ponds; and

c. Unfenced or otherwise unprotected wells or excavations.

2. Landscaping. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain any front and visible side yards without acceptable landscaping, except for improved surfaces such as walks and driveways. Acceptable landscaping shall include any groundcover, decorative rock, redwood bark, lawn and/or other material as determined to be acceptable or required by the City’s Community Development Director or designee.

3. Weeds. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in a manner that has resulted in overgrown weeds to be present on any front and visible side yards and sidewalks.

4. Trees and Shrubs. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in such a manner that has resulted in:

a. Trees and shrubs with dead or fallen limbs or branches to present a safety hazard or restrict, impede or obstruct the use of a public right-of-way, easement, sidewalk or roadway; or

b. Trees, shrubs and plants to grow out into or over a public right-of-way, easement, sidewalk or roadway where such growth restricts, impedes or obstructs pedestrian or vehicular use of said public right-of-way, easement, sidewalk or roadway.

5. Fire Hazard. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in such a manner that has resulted in the accumulation of dry or dead plant matter, combustible refuse and waste or any other matter which by reason of its size, manner of growth and location, constitutes a fire hazard to any building, improvement, crop or other property.

6. Vehicle Parking. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any residential premises or residential property in the City to permit on such premises or property any operable vehicle, recreational vehicle, motor home, trailer, camper, camper shell and boat to be parked or stored outside of a garage or carport on an unpaved surface. “Paved” means covered by concrete, asphalt, brick, pavers, or a similar material as approved by the Director.

7. Occupied Vehicles. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to permit on such premises or property any parked operable vehicle, recreational vehicle, motor home, trailer, camper, camper shell and boat to be occupied by any person or persons overnight.

8. Maintenance of Private Walkways, Driveways and Other Improved Surfaces. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain on such premises or property any walkway, driveway or other improved surface in a manner that results in the disrepair of such surfaces or creates unsafe conditions.

9. Parking Lot Striping and Handicapped Markings. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to fail to maintain in good condition any parking lot striping and handicapped markings on such premises or property.

10. Termites, Insects, Vermin or Rodents. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property that results in creating a habitat for termites, insects, vermin or rodents that presents a threat to the health and safety of the public and/or a threat to property.

11. Sewage. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to fail to properly connect any inhabited improvements on such premises or property to a sewage disposal system or sanitary sewer and/or to permit sewage seepage.

12. Abandoned or Vacated Buildings or Structures. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to abandon or permanently vacate or cause to be abandoned or permanently vacated, any building or structure, so that it becomes accessible to unauthorized persons including, but not limited to, juveniles and vagrants, for unlawful or hazardous use, or to allow the same to become infested with vermin or rodents, or to become a menace to the health or safety of the public.

13. Offensive Odors. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to permit or maintain on such premises or property stagnant water, refuse, rubbish, garbage, dead animal carcasses, offal, animal excrement or other waste materials which emit odors that are unreasonably offensive to the physical senses of a reasonable person of normal sensitivity or which may cause or attract insects.

14. Reserved.

15. Hazardous Substances and Waste. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to permit any hazardous substances or hazardous waste to be unlawfully released, discharged, placed or deposited upon any premises or onto any City property.

16. Visibility Hazard. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in such a manner as to cause a hazard to the public by obscuring the visibility of any public right-of-way, road intersection or pedestrian walkway.

17. Illegal, Nonconforming Building or Structure. It is unlawful and it shall be declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain upon any such premises or property any building or structure, or any part thereof, which has been constructed or is maintained in violation of any applicable state or local law or regulation relating to the condition, use or maintenance of such building or structure.

18. Maintenance, Repair, Restoration or Dismantling Vehicle or Large Machinery or Equipment. It is unlawful and it shall be declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to allow or perform on such premises or property the maintenance, repair, restoration or dismantling of any vehicle, large machinery, or large equipment upon any residential property, walkway, or easement visible from a public street or sidewalk or from an adjoining property. This prohibition shall not apply to work which is specifically authorized by state or local law or regulation and shall not apply to minor repair or maintenance of vehicles, machinery or equipment which belong to the person residing at the property, and which is either performed inside an enclosed structure such as a garage or performed outside but is not visible for longer than 72 consecutive hours.

19. Visual Blight. It is unlawful and it shall be declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain any such premises or property or improvement thereon in such a manner as to cause or to allow the premises, property or improvement to become defective, unsightly, or in such other condition of deterioration or disrepair as the same may cause substantial depreciation of the property values or similar detriment to surrounding properties, as well as an adverse effect on the health, safety, and welfare of the citizens of the City. Visual blight conditions include, but are not limited to, any of the following conditions:

a. The presence of any improvement, including, but not limited to, buildings, garages, carports, wooden fences, block walls, roofs or gutters in which the condition of the patio, stucco, siding or other exterior coating has become so deteriorated as to permit decay, excessive checking, cracking or warping so as to render the improvement or property unsightly and in a state of disrepair;

b. The presence of any improvement with cracked or broken windows, roofs in disrepair, damaged porches or broken steps;

c. The presence of any improvement which is abandoned, boarded up, partially destroyed or left in a state of partial construction or repair for more than 90 days;

d. The presence of abandoned, damaged or broken equipment or machinery which is visible from a public street or sidewalk or from an adjoining property; or

e. The presence of excessive junk, refuse and garbage which is visible from a public street or sidewalk or from an adjoining property.

20. Swimming Pools, Ponds and Other Bodies of Water. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain upon any such premises or property any swimming pool, pond, or other body of water which is abandoned, unattended, unfiltered, or not otherwise maintained resulting in the water becoming polluted.

21. Public Toilets. It is unlawful and it shall be a public nuisance for any person to fail to maintain the floors, walls, ceilings, lavatory, urinal and toilet bowl of any public toilet free from any accumulation of dirt, filth or corrosion and/or to fail to supply a public toilet with toilet paper, hand washing facilities, soap and individual towels with a receptacle for their disposal.

22. Privies. It is unlawful and it shall be a public nuisance for any person to construct or maintain a privy within the City in any manner that does not comply with the Health and Safety Code.

23. Safety Hazard. It is unlawful and it shall be a public nuisance for any person to maintain any premises or property within the City in a manner that presents an imminent safety hazard and/or which creates a present and immediate danger to life, property, health or public safety.

24. Disruptive Activities. It is unlawful and it shall be a public nuisance for any person to operate or maintain any premises or property within the City in a manner that has resulted in repeated disruptive activities including, but not limited to, disturbances of the peace, public drunkenness, drinking in public, harassment of passersby, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, illegal parking, noises disturbances as defined in Chapter 8.12 of this Code, traffic violations, curfew violations, or police detentions and arrests.

25. Land Use Entitlements. It is unlawful and it shall be a public nuisance for any person to maintain any premises or property within the City which fails to comply with any condition imposed on any entitlement, permit, contract, or environmental document issued by or approved by the City in connection with said premises or property or improvement located thereon.

26. Public Burning. It is unlawful and it shall be a public nuisance for any person to engage in the intentional burning of any material, structure, matter or thing on any premises or property within the City without a validly issued permit allowing such burning.

27. Air Pollution. It is unlawful and it shall be a public nuisance for any person to:

a. Establish, operate or allow any activity on any premises or property within the City which pollutes the atmosphere with any unwholesome, offensive, or deleterious gas, fumes, dust, smoke, or odors; or

b. Allow any offensive odors to be emitted from offal, garbage, dead animal carcasses or any animal or vegetable matter.

28. Mosquito Breeding Places. It is unlawful and it shall be a public nuisance for any person to maintain any premises or property within the City upon which there is stagnant or still water or a marshy condition which harbors and breeds mosquitoes or other poisonous or objectionable insects.

29. Discharge of Sewage. It is unlawful and it shall be a public nuisance for any person to permit on any premises or property within the City any matter or substance from a private vault, cesspool, septic tank, water closet, privy vault, urinal, pipe, sewer line or any sewage, effluent, slop water or any other filthy water, matter or substance to flow or discharge upon the ground or upon any public sidewalk, street or other public place.

30. Animal Manure—Use and Storage. It is unlawful and it shall be a public nuisance for any person to use or store non-domesticated animal manure on any premises or property within the City unless the manure has been processed or treated so as to render it substantially free of unpleasant odor.

31. Hauling of Offensive Substances. It is unlawful and it shall be a public nuisance for any person to use, park or store a vehicle or any receptacle used for hauling or transporting any offal, manure, or the contents of a privy vault, cesspool or sink or any nauseous or offensive substances, within the City if the contents of such vehicle or receptacle are leaking or spilling from such vehicle or receptacle.

32. Clotheslines. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City in the plain view from a public sidewalk or public street a clothes line or other object or structure, on a front yard or side yard, for purposes of hanging clothing and/or laundry.

33. Stormwater Drainage. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City any drainage facility, such as terrace drains, down drains and catch basins, in such a condition so as to cause the drainage water to spill onto adjoining properties or other areas not intended or approved for the collection of stormwater.

34. Water Disposal. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City where water from swimming pools, ornamental ponds, waterfalls, and similar facilities is permitted to be disposed over or onto adjoining property or onto any street, alley or public way without written permission from the affected property owner or property owners and/or a validly issued permit from the requisite agency.

35. Signs. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City any sign, including its supporting structure, which is damaged to the point of presenting a possible safety hazard.

36. Encroachment. It is unlawful and it shall be a public nuisance for any person to cause or permit any encroachment onto public property for which no encroachment permit has been issued or which is in violation of the provisions of an encroachment permit or any applicable provision of the municipal code.

37. Water Drainage. It is unlawful and it shall be a public nuisance for any person to cause or permit water, including, but not limited to, excess irrigation runoff, to drain over or onto adjoining property or onto any street, alley or public way in a manner which causes damage to the adjoining property, street, alley or public way.

38. Municipal Code Violations. It shall be deemed a public nuisance for any member of the public to create, cause, commit, permit or maintain any condition or to perform or cause to be performed any activity prohibited by this municipal code or specifically identified as a public nuisance by the municipal code and/or any applicable statute, rule, code or regulation.

39. California Civil Code. The City may declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Civil Code Sections 3479 and 3480.

40. California Red Light Abatement Act. The City may:

a. Declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Penal Code Section 11225; and

b. Commence any action or proceeding pursuant to the California Red Light Abatement Act to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.

41. California Drug Abatement Act. The City may:

a. Declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Health and Safety Code Section 11570; and

b. Commence any action or proceeding pursuant to the California Drug Abatement Act to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.

42. State Housing Law. The City may:

a. Declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Health and Safety Code Sections 17910 through 17995; and

b. Commence any action or proceeding set forth therein to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.

43. Weed Abatement. The City Council may:

a. Declare by resolution pursuant to California Government Code Section 39561 et seq., that a public nuisance exists with respect to a specific parcel whenever that parcel is being maintained in a manner that has resulted in weeds, as that term is defined in California Government Code Section 39561.5, being grown upon the streets, sidewalks or private property in the City; and

b. Commence any action or proceeding pursuant to California Government Code Section 39561 et seq., to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.

44. Rubbish, Refuse and Dirt. The City Council may:

a. Declare by resolution pursuant to California Government Code Section 39561 et seq., that a public nuisance exists with respect to a specific parcel whenever that parcel is being maintained in a manner that has resulted in an accumulation of rubbish, refuse and dirt upon parkways, sidewalks or private property in the City; and

b. Commence any action or proceeding pursuant to California Government Code Section 39561 et seq., to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.

45. Conditions of Approval. It shall be deemed a public nuisance for any person to maintain any premises or property within the City which fails to comply with any condition imposed on any entitlement, permit, license, contract, or environmental document issued by or approved by the City in connection with said premises or property or improvement located thereon.

B. The provisions of this chapter are applicable to all property throughout the City wherein any conditions hereinafter specified are found to exist. This chapter shall not be applicable to any condition which would constitute a violation of this chapter but which is duly authorized under any other City, State or Federal law.

C. The list of activities, uses of property and conditions of property declared to be a public nuisance in this chapter is not intended to be exclusive. The City Council expressly reserves to itself the right to declare other and additional activities, uses of property, and conditions of property to be nuisances subject to abatement pursuant to this title or by any other means authorized by law.

D. Every owner, occupant, lessee or holder of any possessor interest of real property within the City is required to maintain such property so as not to violate the provisions of this chapter. The owner of the property shall remain liable for violations hereof regardless of any contract or agreement with any third party regarding such property or the occupation of the property by any third party. Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by the former owner, is liable therefor in the same manner as the one who first created it.

(Prior code § 83.01; Ord. 576 5-17-16; Ord. 676 11-20-18; Ord. 757 6-7-22; Ord. 774 2-21-23)

§ 4.16.020 Notice of public nuisance and order to abate.

When a Code Enforcement Officer or other authorized agent has inspected any real property or premises and has found and determined that conditions at or upon such property or premises constitute a public nuisance pursuant to any provision of the municipal code and/or applicable statute, rule, code and regulation and the City has not commenced an alternative public nuisance abatement procedure prescribed by statute regarding said public nuisance, the Code Enforcement Officer or authorized agent may issue or cause the issuance of a notice of public nuisance and order to abate (“notice and order”) pursuant to this chapter.

(Prior code § 83.02)

§ 4.16.030 Public nuisance administrative fines.

Any member of the public who commits or causes a municipal code violation determined to be a public nuisance pursuant to this chapter shall be subject to:

A. An administrative fine in an amount not to exceed $100 for a first violation;

B. An administrative fine in an amount not to exceed $200 for a second violation of the same provision within a 12-month period; and

C. An administrative fine in an amount not to exceed $500 for the third violation and each subsequent violation that occurs within a 12-month period commencing upon the date of the first violation.

(Prior code § 83.03)

§ 4.16.040 Opportunity to correct or remedy violations.

A. Any party to whom a notice and order has been issued for violations pertaining to building, plumbing, electrical, or other similar structural or zoning issues that do not create an immediate danger to health or safety, shall be provided not less than ten calendar days in which to correct or otherwise remedy the violation prior to the imposition of any administrative fine. For all other violations, the recipient of a notice and order shall be provided not less than seven calendar days in which to correct or otherwise remedy the violation prior to the imposition of any administrative fine.

B. The citing officer may extend the time in which to correct or otherwise remedy a violation upon a showing that the recipient of the notice and order requires additional time to complete repairs or upon a showing that the recipient is awaiting issuance of a permit, provided such person offers proof that he or she has commenced taking action to correct or otherwise remedy the violation and/or that a proper application for such permit has been made.

(Prior code § 83.04)

§ 4.16.050 Contents of notice and order.

The notice and order shall include all of the following information:

A. The name of the property’s record owner, the occupant, if any, and/or the agent, if any, having charge or control of the property;

B. The date of inspection;

C. The date of the violation;

D. The street address or a definite description of the location where the violation occurred;

E. The code section(s) violated;

F. A description of the property’s condition which violated the applicable codes;

G. The actions necessary to correct the subject violations;

H. The deadline or specific date by which to correct the violations;

I. A reference to the potential consequences should the property remain in violation after the expiration of the compliance deadline;

J. The number of times the violation has been cited by the City within the previous 36 months;

K. The amount of the public nuisance administrative fine for the code violation;

L. A description of the fine payment process, including a description of the time within which the fine must be paid and the place where the fine must be paid;

M. A description of the process by which the City may collect any unpaid fines;

N. An order prohibiting the continuation or repeated occurrence of the code violation described in the notice and order;

O. A description of the administrative appeal process for a person’s appeal of the Code Enforcement Officer’s determination of violation, including the time within which the administrative appeal must be filed and the place at which a request for hearing form may be obtained; and

P. The name and signature of the citing Code Enforcement Officer or other authorized agent (“citing officer”). The heading of the notice shall be “Notice of Public Nuisance and Order to Abate” in letters not less than one inch in height.

(Prior code § 83.05)

§ 4.16.060 Posting of notice and order.

The notice and order, and any amended or supplemental notice and order, shall be posted on the property on which a violation occurs.

(Prior code § 83.06)

§ 4.16.070 Service of notice and order.

A. The notice and order, and any amended or supplemental notice and order, shall be served upon the record owner, tenant, occupant, if any, and/or agent, if any, having charge or control of the property. The failure of the issuing officer or any other authorized agent to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served or relieve any such person from any duty or obligation imposed by the provisions of this chapter.

B. Service of a copy of the notice and order shall be made upon all persons entitled thereto either personally or by certified mail, postage prepaid, return receipt requested, at their address as it appears on the last equalized assessment roll of the County or as otherwise known to the issuing officer or authorized agent. If an address of any such person does not appear on the last equalized assessment roll or is not otherwise known to the citing officer then a copy of the notice and order shall be addressed to such person(s) and mailed to the address of the subject premises. The failure of any such person to receive a copy of the notice and order shall not affect the validity of any proceedings or actions taken under this chapter. Service by certified mail in the manner herein provided shall be affixed to the copy of the notice and order and retained by the citing officer.

C. Service of a notice and order which is personally served shall be deemed completed at the time of such delivery. Service of a notice and order which is served by mail is deemed completed on the date said notice and order is deposited in the mail.

D. Proof of service of the notice and order shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail shall be affixed to a copy of the notice and order and retained by the citing officer.

(Prior code § 83.07)

§ 4.16.080 Recordation of notice and order.

The notice and order shall be filed in the office of the County Recorder to certify that:

A. The subject property is being maintained in violation of the municipal code and/or applicable statute, rule, code and regulation; and

B. The property owner has been so notified.

(Prior code § 83.08)

§ 4.16.085 Public nuisance hearing.

The City’s use of the procedure set forth in this section is entirely optional, and this section is to be construed independently from the remaining provisions of this title. Failure to employ the procedure set forth in this section shall not affect the validity of any proceedings nor the availability of any rights or remedies accorded to the City by any of the other provisions of this title or by any other applicable laws, rules or regulations.

A. Notice of Hearing. If any notice and order issued pursuant to this chapter is not complied with or appealed within the time periods set forth therein, the Code Enforcement Officer or other authorized agent may, but is not required to, issue a second notice entitled “Notice of Hearing Re: Municipal Code Violation(s) and Abatement of Public Nuisance” (“notice of hearing”).

The notice of hearing shall direct the subject property owner(s) to appear at a public hearing at a stated date, time and place to show cause why the conditions on the subject property should not be declared to be a public nuisance in violation of the Desert Hot Springs Municipal Code (“Municipal Code”) and/or other applicable law and ordered condemned and/or abated as such.

The notice of hearing shall be posted to the subject property and mailed via certified mail, return receipt requested, to the record owner, tenant, occupant, if any, and/or agent, if any, having charge or control of the subject property, and any mortgagee or beneficiary under any deed of trust, of record, in the subject property. Additionally, the notice shall be mailed via regular U.S. mail to all record owners of parcels of real property of which any boundary is located within 300 feet of any boundary of the subject property. The failure of any property owner, interested party, or other person to receive such notice shall not affect the validity of the proceedings.

The hearing shall be scheduled not less than 15 days after the posting and mailing of the notice nor later than 30 days from such date, unless a later date is agreed to by the Code Enforcement Officer or other authorized agent who issued the second notice and the record owner(s) or their agent(s), if any, having charge or control of the property.

B. Hearing Officer. The public hearing shall be conducted by an administrative hearing officer designated by the City Manager, as follows:

1. Administrative Hearing Officer Selected by City Manager. All administrative hearing officers selected by the City Manager shall be impartial third parties. The City Manager shall ensure that no administrative hearing officer has any pecuniary interest in the proceeding over which he or she is presiding, nor any pecuniary interest in the outcome thereof.

The administrative hearing officer, once selected, shall conduct the public hearing to determine whether the subject property constitutes a public nuisance. If, upon the conclusion of the administrative hearing, the administrative hearing officer determines, on the preponderance of the evidence, that the subject property is a public nuisance, the administrative hearing officer shall issue a written decision ordering the responsible part(ies) to abate the nuisance conditions within no more than 30 days, or such other time as the administrative hearing officer deems reasonable under the circumstances, from the date of posting of the written decision to the subject property. The decision shall also provide that if the nuisance conditions are not abated within said time period, the same may be abated by the City, and that in the event the City performs the abatement, the City’s abatement costs shall be recoverable by special tax assessment against the subject property pursuant to Section 4.16.130 of this chapter, as may be amended from time to time, or by any other means provided by law.

A copy of the administrative hearing officer’s written decision shall also be posted to the subject property and sent via regular U.S. mail to the record owner, tenant, occupant, if any, and/or agent, if any, having charge or control of the subject property, and any mortgagee or beneficiary under any deed of trust, of record, in the subject property. The failure of any property owner or other person to receive the decision in the mail shall not affect the validity of the proceedings.

Decisions of the administrative hearing officer in all instances shall be final and conclusive unless the appellant files an appeal as set forth in subsection F of this section.

C. Conduct of the Hearing.

1. At the time fixed for the administrative hearing, the administrative hearing officer shall consider all violations of City ordinances, abatement orders, and administrative citations, including all relevant documents, statements, and objections, written or oral, which may be submitted by the City and the record owner, tenant, occupant, if any, and/or agent, if any, having charge or control of the subject property. The administrative hearing officer shall also consider recovery of abatement costs.

The term “abatement costs” as used herein means and includes all costs and expenses reasonably related to the abatement, removal, or correction of a public nuisance, including, but not limited to, City staff time, costs and expenses related to enforcement, investigation, preparation of summaries, reports and notices, telephonic contact, correspondence, mailings, title searches, hearing officer costs, court costs, civil penalties, collection costs, and attorneys’ fees. “Abatement costs” shall not include administrative fines and penalties imposed pursuant to California Government Code Section 53069.4.

2. The record owner, tenant, occupant, if any, and/or agent, if any, having charge or control of the subject property shall be entitled to appear at the hearing and to show cause, if any they have, why the conditions on the subject property should not be declared to be a public nuisance in violation of the Municipal Code and/or other applicable law, and ordered condemned and/or abated as such. A property owner or other responsible party may be represented by another person who need not be an attorney, but any such representation shall be indicated on the record. Any non-attorney representing a property owner or other responsible party not present at the administrative hearing shall submit a verified statement sufficient to evidence the consent of the absent person represented.

3. The Code Compliance Officer or other authorized agent who issued the Notice of Hearing or a prior notice and order, notice of violation or administrative citation shall not be required to personally attend but may participate in the hearing. Documents from the file of any applicable City division involved in the case shall be admitted as prima facie evidence of the facts stated therein.

4. The administrative hearing officer shall not be limited by the technical rules of evidence.

5. If the record owner, tenant, occupant, if any, and/or agent, if any, having charge or control of the subject property fail(s) to appear at the administrative hearing, the administrative hearing officer shall make a determination based on the information submitted.

D. Continuance of the Administrative Hearing. The administrative hearing officer may grant a reasonable extension of time to conduct the hearing based on good cause shown.

E. Recordation. The administrative hearing officer’s decision issued pursuant to the hearing may be recorded in the office of the County Recorder.

F. Appeal of Hearing Officer Decision. If applicable, the appellant may appeal the administrative hearing officer’s decision as provided in Section 15.03.040 of this Code. All other appeals must conform to the procedures of the California Code of Civil Procedure.

(Ord. 590 11-1-16; Ord. 708 5-19-20)

§ 4.16.090 Appeal of public nuisance administrative fine.

Any party contesting the imposition of the public nuisance administrative fine may seek judicial review of the imposition of the fines by filing an appeal pursuant to California Government Code Section 53069.4(b)(1) after the party has exhausted all available administrative remedies relating to the underlying violation.

(Prior code § 83.09)

§ 4.16.100 Appeal of notice and order.

A. Any person subject to the provisions of a notice and order may contest that there was a violation or that he or she is the party responsible for committing the violation by filing a complete and proper appeal of any notice and order to the citing officer. The appeal shall be filed within ten calendar days from the date service of the notice and order is completed. Any appeal not timely filed shall be rejected.

B. All appeals from any notice and order shall be in writing and shall contain the following information:

1. Name(s) of each appellant;

2. A brief statement in ordinary and concise language of the specific items protested, together with any material facts claimed to support the contentions of the appellant;

3. A brief statement in ordinary and concise language of the relief sought and the reasons why the notice and order should be rescinded, modified or otherwise set aside; and

4. The signatures of all parties named as appellants and their mailing addresses. Any appeal filed that fails to provide all of the information required by this section shall be deemed incomplete.

C. A filing fee as established by City Council resolution or any amendments thereto for an appeal of a notice and order must be paid to the City at or prior to the time of the filing of such appeal. Any appeal of the notice and order filed without payment of the filing fee shall be deemed incomplete.

D. Not later than five calendar days from the date the appeal is filed, the citing officer or his or her designee shall determine whether the appeal is complete. If the appeal is determined to be incomplete, the citing officer or designee shall immediately mail to the appellant a notice of incomplete filing which shall provide a written explanation of each reason why the appeal has been determined to be incomplete. If service of the notice of incomplete filing is completed within five calendar days from the date the appeal is filed, the ten calendar days time period within which to file a completed appeal of a notice and order shall not be extended.

E. Failure to timely and properly file an appeal from a notice and order shall constitute a waiver of all rights to an administrative appeal hearing and adjudication of the notice and order or any portion thereof. The determination that the violation occurred and that the violator was responsible for the violation shall be deemed final on the date that service of the notice and order is deemed completed.

F. The appeal of any notice and order shall proceed in accordance with the provisions of Section 4.16.110.

G. Enforcement of any notice and order shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.

H. After a notice and order becomes final due to the failure to file a timely and proper appeal, the Code Enforcement Chief or other authorized agent shall prepare a demand for payment of all applicable administrative fines if the City determines that the person to whom the notice and order is directed failed, neglected or refused to obey any orders or adhere to the terms and conditions set forth in the order. The amount of the fine for which the recipient shall be responsible shall be as set forth in the notice and order. Payment of the administrative fine shall be made to the issuing department or division unless otherwise provided by the citation.

I. Where a timely and complete appeal of the notice and order is filed and the citation upheld, the notice of decision and compliance order issued by the Hearing Officer shall require appellant to pay all applicable administrative fines no later than ten days from the date the notice of decision and compliance order was issued. The amount of the fine for which the recipient shall be responsible shall be as set forth in the notice and order. Payment of the administrative fine shall be made to the issuing department unless otherwise provided by the notice of decision and compliance order.

J. The demand for payment shall include all of the following, which shall be consistent with the information contained in the final notice of public nuisance and order to abate:

1. The name of the person(s) responsible for payment of the public nuisance administrative fines;

2. The street address or a definite description of the location where the violation occurred;

3. The deadline or specific date by which the violations were to have been corrected;

4. The date of the follow up inspection where continuing violation conditions were discovered;

5. The code violation(s) noted at the follow up inspection;

6. The amount of the public nuisance administrative fine which shall be immediately due and payable;

7. The place where the fine must be paid; and

8. A description of the process by which the City may collect any unpaid fines.

K. The demand for payment may be in letter form or any other form which conveys the information set forth at subsection J of this section.

L. The demand for payment shall be served upon the person(s) responsible for payment of the public nuisance administrative fines either personally or by certified mail, postage prepaid, return receipt requested, at their address as it appears on the last equalized assessment roll of the County or as otherwise known to the issuing officer or authorized agent. If an address of any such person does not appear on the last equalized assessment roll or is not otherwise known to the issuing officer or authorized agent, then a copy of the notice and order shall be addressed to such person(s) and mailed to the address of the subject premises. The failure of any such person to receive a copy of the demand for payment shall not affect the validity of any proceedings or actions taken under this title. Service by certified mail in the manner herein provided shall be affixed to the copy of the demand for payment and retained by the citing officer.

M. Service of the demand for payment which is personally served shall be deemed completed at the time of such delivery. Service of a demand for payment which is served by mail is deemed completed on the date the notice and order is deposited in the mail.

N. Proof of service of the demand for payment shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail shall be affixed to a copy of demand for payment and retained by the citing officer.

O. Whenever it is determined that the corrections ordered by the notice and order have been completed so that the premises no longer exists in a condition that is in violation of the municipal code and/or applicable statute, rule, code and regulation a notice of compliance shall be recorded in the office of the County Recorder certifying that all required corrections have been made and that the subject premises is no longer being maintained as a public nuisance.

(Prior code § 83.10)

§ 4.16.110 Procedures for appeal of a notice of public nuisance and order to abate.

A. The Administrative Hearing Officer (Hearing Officer) shall conduct all administrative appeal hearings of any timely and properly filed appeal from any notice of public nuisance and order to abate (notice and order) pursuant to the administrative appeal procedures set forth in this section. The Hearing Officer shall review all evidence, documents, and written testimony and hear all oral testimony submitted by the parties at or before the scheduled administrative appeals hearing and render all decisions and findings in writing to the appellant with a duplicate copy to the Code Compliance Officer or other authorized enforcement agent who issued the administrative citation or notice and order (the citing officer).

B. The Hearing Officer’s authority to hear and consider appeals shall be limited to passing on only those appeals pertaining to matters within his or her subject matter jurisdiction. The Hearing Officer shall consider only those matters or issues which were specifically raised by the appellant in his or her appeal and which are relevant to the issues of the hearing. The Hearing Officer shall not have the authority to waive any requirements of the municipal code and/or any applicable statutes, rules, codes or regulations, except as otherwise provided in this section.

C. The procedures adopted in this section by the City for the selection of Hearing Officers shall not replace, substitute for, or in any way affect the administrative hearing board processes created by the uniform and national codes adopted by the City and the administrative hearings provided by the uniform and national codes shall be treated separate and apart from the administrative hearing procedures adopted in this section.

D. The City Manager, or designee, shall select the Hearing Officer to conduct administrative hearings pursuant to this section. All hearing officers shall be impartial third parties and shall not have any pecuniary interest in the proceeding over which he or she is presiding, nor any pecuniary interest in the outcome thereof.

E. As soon as practicable, but allowing sufficient time for providing notice of the hearing, the Hearing Officer shall fix a date, time and place for the hearing of the appeal and shall instruct the citing officer of the same. The City shall prepare a notice of administrative appeals hearing (hearing notice), which shall be in substantially the same form as follows:

You are hereby notified that a hearing will be held before the Administrative Hearing Officer at ________ on the _______ day of _______, ____ at the hour of ____ upon the Notice of Public Nuisance and Order to Abate served upon you. You may be present at the hearing. You may be, but need not be, represented by an attorney. You may present any relevant evidence at the hearing and you will be given a full opportunity to cross-examine all witnesses testifying against you.

F. The City shall cause a copy of the hearing notice to be provided to each appellant either by causing a copy of the notice to be delivered to each appellant personally or by causing a copy of the notice to be delivered by certified mail, postage prepaid, return receipt requested, and addressed to each appellant at the address shown on the appeal.

G. Proof of service of the hearing notice shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration shall be affixed to a copy of the hearing notice and retained by the City.

H. The citing officer shall prepare an administrative hearing packet for the Hearing Officer to review prior to the hearing. The packet shall include a copy of the notice and order, a staff report and any evidence of the violation(s).

I. At the appeals hearing, the Hearing Officer shall hear any evidence offered either in support of appellant’s claim or in support of the notice and order, provided such evidence is relevant to the issues of the hearing. The Hearing Officer has the authority to determine the relevance of any evidence to the hearing and shall not be limited by the technical rules of evidence. The Hearing Officer also has the authority to exclude unduly repetitious and cumulative evidence, regardless of its relevancy.

J. If appellant fails to attend the scheduled appeals hearing, the hearing will proceed without appellant and he or she will be deemed to have waived his or her rights to be orally heard at the appeals hearing.

K. Each party appearing at the hearing shall have the following rights:

1. To call and examine witnesses;

2. To introduce documentary and physical evidence;

3. To cross-examine opposing witnesses;

4. To impeach any witness regardless of which party first called the witness to testify;

5. To rebut evidence; and

6. To be represented by anyone who is lawfully permitted to do so.

L. Following an appeal of a notice and order, the Hearing Officer may decide, based on the applicable standard of review, to uphold the notice and order, establish a modified schedule for compliance, or overturn the findings and determinations set forth in the notice and order, in whole or in part, and not require that the property owner or party otherwise responsible for the violation(s) take any action otherwise required by the notice and order. In the event the Hearing Officer determines to overturn the findings of the citing officer in whole, the recipient of the notice and order shall not be required to pay the administrative fine as required by the notice and order.

M. The Hearing Officer shall prepare a written decision and compliance order (decision and compliance order) within 30 calendar days from the date the hearing is deemed closed. The decision of the Hearing Officer shall be final, except as otherwise provided by Section 15.03.040 of this Code.

N. The decision and compliance order for a notice and order shall contain a brief summary of the evidence considered, findings of fact, a determination of the issues presented, the effective date of the decision, and a compliance order which shall specifically describe the actions which shall be required to be taken to remedy the code violations indicated in the decision and compliance order and shall require the actions to be completed within a specified time period and by a specified deadline. The decision and compliance order shall further require the recipient of the notice and order to pay all applicable administrative fines no later than 10 days from the date of issuance of the notice of decision and compliance order. The amount of the fine for which the recipient shall be responsible shall be as set forth in the notice and order. Payment of the administrative fine shall be ordered to be made to the issuing department or division unless otherwise directed by the City.

O. The Hearing Officer shall cause a copy of the decision and compliance order to be served to each appellant either by causing a copy of the decision and compliance order to be delivered to each appellant personally or by causing a copy to be delivered by certified mail, postage prepaid, return receipt requested, and addressed to each appellant at the address shown on the appeal. A copy of the decision and compliance order shall also be provided to the City. Proof of service of the decision and compliance order shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration shall be affixed to a copy of the decision and compliance order and retained by the City.

P. The effective date of the Hearing Officer’s decision and compliance order shall be as stated therein.

Q. If, after the deadline for compliance with a decision and compliance order passes, the person(s) or entities to whom the decision and compliance order is directed shall fail, neglect or refuse to obey such order, the Compliance Manager or other authorized agent may:

1. Cause such person to be prosecuted for an infraction violation for the offense of contempt of Hearing Officer; and/or

2. Institute any appropriate legal action or proceeding necessary to gain compliance or to abate or enjoin the conditions causing the nuisance.

R. Each day the person(s) to whom the decision and compliance order is directed fails, neglects or refuses to obey such order shall constitute a new offense. A fourth violation and subsequent violations of this section within a 12-month period shall be deemed a misdemeanor.

S. The prevailing party in any action or proceeding conducted pursuant to this chapter and associated with the abatement of a public nuisance shall be entitled to recovery of reasonable attorney’s fees. In no such action or proceeding shall an award of attorney’s fees to a prevailing party exceed the amount of reasonable attorney’s fees incurred by the City in the action or proceeding.

(Prior code § 83.11; Ord. 646 12-5-17; Ord. 708 5-19-20)

§ 4.16.120 Summary abatement of public nuisance procedures.

A. If upon the determination of the Code Enforcement Chief or other authorized enforcement agent, a particular public nuisance as described in this chapter or any other applicable statute, rule, code or regulation poses an immediate threat to public health and safety, the authorized enforcement agent who made the public nuisance determination may dispense with the notice and hearing requirements of the administrative appeals procedures set forth in this chapter and cause City crews or private contractors to take the minimal and most reasonable and feasible action necessary to immediately abate the activity or activities and/or condition or conditions causing the public nuisance.

B. Prior to the City performing any abatement work pursuant to this chapter, the Code Enforcement Officer or other authorized enforcement agent who caused the summary abatement (Abatement Officer) shall, if feasible, cause an inventory to be taken which lists those personal property items which are proposed to be removed from the property and discarded.

C. Where the public nuisance conditions exist on private property, prior to ordering summary abatement pursuant to this section, the Abatement Officer shall prepare a written report which sets forth in writing the facts and circumstances establishing:

1. Why advance notice of the abatement to the property owner, occupant and/or agent having charge or control is not reasonable or feasible or why prior advance notice was not effective;

2. Why the subject property constitutes a public nuisance; and

3. Why immediate abatement of the public nuisance is essential.

D. Where the public nuisance conditions exist on public property and the abatement officer is able to determine the person(s) responsible for causing the public nuisance conditions, the abatement officer shall prepare a written report which sets forth in writing the facts and circumstances establishing:

1. Why advance notice of the abatement to the person(s) responsible for causing the public nuisance conditions is not reasonable or feasible or why prior advance notice was not effective;

2. Why the conditions constitute a public nuisance; and

3. Why immediate abatement of the public nuisance is essential.

E. The original of the summary abatement report shall be filed with the City Clerk.

F. Where the public nuisance conditions exist on private property, a copy of the summary abatement report shall be served as soon as possible to the owner(s) of record of the parcel of land on which the public nuisance exists by certified mail, postage prepaid, return receipt requested, to each such person at their address as it appears on the last equalized assessment roll of the County or as known to the Abatement Officer. If no address of any such person so appears or is not otherwise known, then a copy of the summary abatement report shall be so mailed, addressed to such person(s), at the address of the subject premises.

G. Where the public nuisance conditions exist on public property and the Abatement Officer is able to determine the person(s) responsible for causing the public nuisance conditions, the Abatement Officer shall make a diligent effort to determine the address of such person(s) and shall cause a copy of the summary abatement report to be served, as soon as possible, by certified mail, postage prepaid, return receipt requested, to such person(s).

H. The failure of the Abatement Officer to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served or relieve any such person from any duty or obligation imposed by the provisions of this chapter.

I. Proof of service of the summary abatement report shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail shall be affixed to a copy of the summary abatement report and retained by the Abatement Officer.

(Prior code § 83.12)

§ 4.16.130 Public nuisance abatement costs.

A. Where public nuisance conditions which necessitate abatement exist on private property and the City elects to perform public nuisance abatement work to remediate those conditions, the owner(s) of record of the property on which the public nuisance conditions exist shall be liable for all costs of abatement incurred by the City, including, but not limited to, administrative costs.

B. Where public nuisance conditions which necessitate abatement exist on public property and the City elects to perform public nuisance abatement work to remediate those conditions, the person(s) determined by the Abatement Officer to be the person(s) responsible for causing the public nuisance conditions shall be liable for all costs of abatement incurred by the City, including, but not limited to, administrative costs.

C. Recovery of costs pursuant to this section shall be in addition to and shall not limit any prevailing party’s right to recover any cost that a prevailing party is entitled to recover by law.

D. The City shall be entitled to recover all public nuisance abatement costs and related expenses (including, but not limited to, administrative costs and expenses) that the City incurs. Such costs and expenses may be recovered in accordance with the procedures set forth in this title and/or in other applicable law. Upon completion of any abatement work performed by or under the direction of the City, the Abatement Officer shall prepare an abatement cost report in the form prescribed by this section which provides an accounting of the cost, including incidental expenses, incurred as a result of abating the public nuisance.

E. The abatement cost report shall itemize all costs associated with the rehabilitation, demolition or repair of the property, buildings or structures, including any salvage value relating thereto and a total of all such costs. The abatement cost report shall also include the following information:

1. A description of the real property where the abatement activity took place;

2. The names and addresses of the persons entitled to receive notice;

3. Description of the work completed;

4. A determination that the amount of the costs set forth in the abatement cost report are accurate and reasonable;

5. If the work was done by summary abatement pursuant to Section 4.16.120 of this chapter, a determination that the City took the minimal and most reasonable and feasible action necessary to immediately abate the activity or activities and/or condition or conditions causing the public nuisance;

6. Notice of the opportunity to appeal the amount and the reasonableness of the abatement costs; and

7. Notice of the manner in which the City intends to collect the final and approved abatement costs.

F. The Abatement Officer shall file the original abatement cost report with the City Clerk who shall cause the abatement cost report to be filed in the office of the County Recorder.

G. If the Abatement Officer determines that the public nuisance conditions which necessitate abatement have been caused or permitted by the person(s) having charge or control of the property where the nuisance is located, the abatement cost report and any amended or supplemental report, shall be served upon the record owner and/or any agent having charge or control of the property.

H. If the Abatement Officer determines that the public nuisance conditions which necessitate abatement have been caused or permitted by person(s) other than the person(s) having charge or control of the property where the nuisance is located, the Abatement Officer shall make a diligent effort to determine the address of such person(s) and shall cause a copy of the abatement cost report and any amended or supplemental report to be served upon such persons.

I. The failure of the Abatement Officer to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served or relieve any such person from any duty or obligation imposed by the provisions of this chapter.

J. Where the public nuisance conditions exist on private property, service of a copy of the abatement cost report shall be made upon the owner(s) of record of the parcel of land on which the public nuisance exists by certified mail, postage prepaid, return receipt requested, to each such person at their address as it appears on the last equalized assessment roll of the County or as known to the Abatement Officer. If no address of any such person so appears or is not otherwise known, then a copy of the abatement cost report shall be so mailed, addressed to such person(s), at the address of the subject premises.

K. Where the public nuisance conditions exist on public property and the Abatement Officer is able to determine the person(s) responsible for causing the public nuisance conditions, the Abatement Officer shall make a diligent effort to determine the address of such person(s) and service of a copy of the abatement cost report shall be made upon each such person(s) by certified mail, postage prepaid, return receipt requested.

L. The failure of the Abatement Officer to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served or relieve any such person from any duty or obligation imposed by the provisions of this chapter.

M. Proof of service of the abatement cost report shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail shall be affixed to a copy of the abatement cost report and retained by the Abatement Officer.

N. Service of an abatement cost report which is personally served shall be deemed completed at the time of such delivery. Service of an abatement cost report which is served by mail is deemed completed on the date the abatement cost report is deposited in the mail.

O. Any person(s) responsible for payment of abatement costs pursuant to this section may appeal the City’s determination that the amount of the costs set forth in the abatement cost report are accurate and/or reasonable, and, if the work was done by summary abatement pursuant to Section 4.16.120 of this chapter, the City’s determination that the City took the minimal and most reasonable and feasible action necessary to immediately abate the activity or activities and/or condition or conditions causing the public nuisance.

P. Failure to timely and properly file an appeal from an abatement cost report shall constitute a waiver of all rights to an appeal of the abatement cost report or any portion thereof. The determination that the amount of the costs set forth in the abatement cost report are accurate and reasonable shall be deemed final on the day that service of the abatement cost report is deemed completed.

Q. Person(s) responsible for payment of abatement costs shall pay all such costs no later than 30 calendar days from the date the abatement cost report becomes final. The amount of the abatement costs for which such person(s) shall be responsible shall be as set forth in the final abatement cost report.

R. Final abatement costs shall be deemed a civil debt owing to the City. An action may be commenced in the name of the City in any court of competent jurisdiction for the collection of the amount of any delinquent or unpaid abatement cost. The remedy prescribed by this section shall be cumulative, and the use of an action to collect such an amount as a debt by civil action shall not bar the use of any other remedy provided by the Municipal Code or by law.

S. In addition to the collection methods provided by the foregoing subsection, if the owner of record of the property where the public nuisance conditions exists has been held liable for all costs of abatement incurred by the City and the abatement costs are not paid within 30 calendar days from the date the abatement cost report becomes due, the abatement costs may become a special assessment against the property.

T. Notice of the imposition of a special assessment shall be sent by certified mail, return receipt requested, to the property owner, if the property owner’s identity can be determined from the records of the office of the County Assessor or the office of the County Recorder. The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the Tax Collector for unpaid delinquent assessments.

U. The notice of special assessment shall be filed and recorded in the office of the County Recorder.

V. Subject to the requirements applicable to the sale of property pursuant to the California Revenue and Taxation Code Section 3691, the City may conduct a sale of vacant residential developed property for which the payment of an assessment is delinquent.

W. 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, excepting any conditions abated pursuant to California Health and Safety Code Section 17980, the City may seek to recover treble the costs of the abatement from the owner.

(Prior code § 83.13; Ord. 588 10-4-16)

§ 4.16.140 Abatement cost appeals procedure.

A. All appeals from any abatement cost report shall be in writing and shall contain the following information:

1. Name(s) of each appellant;

2. A brief statement setting forth the legal or equitable interest of each appellant;

3. A brief statement in ordinary and concise language of the specific cost items protested, together with any material facts claimed to support the contentions of the appellant;

4. A brief statement in ordinary and concise language of the relief sought and the reasons why the abatement costs should be modified or otherwise set aside; and

5. The signatures of all parties named as appellants and their mailing addresses. Any appeal filed that fails to provide all of the information required by this section shall be deemed incomplete.

B. A complete and proper appeal of an abatement cost report shall be filed with the Community Preservation Division within 10 calendar days from the date service of the abatement cost report is completed. Any appeal not timely filed shall be rejected.

C. A filing fee as established by City Council resolution or any amendments thereto for an appeal of abatement cost report must be paid to the City at or prior to the time of the filing of such appeal. Any appeal of the abatement cost report filed without payment of the filing fee shall be deemed incomplete.

D. Not later than five calendar days from the date the appeal is filed, the City shall determine whether the appeal is complete. If the appeal is determined to be incomplete, the City shall immediately mail to each appellant a notice of incomplete filing which shall provide a written explanation of each reason why the appeal has been determined to be incomplete. If service of the notice of incomplete filing is completed within five calendar days from the date the appeal is filed, the 10-calendar-day time period within which to file a completed appeal of abatement cost report shall not be extended.

E. Enforcement of the abatement cost report shall be stayed during the pendency of an appeal therefrom which is properly and timely filed pursuant to this section. This subsection shall not be used to stay the enforcement of any separate abatement cost report related to, or arising from, the same appellant(s) or the same subject property.

F. The City Manager, or designee, shall select the Administrative Hearing Officer (Hearing Officer) to conduct administrative hearings pursuant to this section. All hearing officers shall be impartial third parties and shall not have any pecuniary interest in the proceeding over which he or she is presiding, nor any pecuniary interest in the outcome thereof.

G. As soon as practicable, but allowing sufficient time for providing notice of the hearing, the Hearing Officer shall fix a date, time and place for the hearing of the appeal and shall instruct the Community Preservation Officer or other authorized enforcement agent who caused the abatement (“Abatement Officer”) of the same. The City shall prepare a notice of administrative appeals hearing (hearing notice), which shall be in substantially the same form as follows:

You are hereby notified that a hearing will be held before the Administrative Hearing Officer at _________ on the __________ day of _________, _____ at the hour of _____ upon the Abatement Cost Report served upon you. You may be present at the hearing. You may be, but need not be, represented by an attorney. You may present any relevant evidence at the hearing and you will be given a full opportunity to cross-examine all witnesses testifying against you.

H. The City shall cause a copy of the hearing notice to be provided to each appellant either by causing a copy of the notice to be delivered to each appellant personally or by causing a copy of the notice to be delivered by certified mail, postage prepaid, return receipt requested, and addressed to each appellant at the address shown on the appeal. Proof of service of the hearing notice shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration shall be affixed to a copy of the hearing notice and retained by the City.

I. The Hearing Officer shall conduct all administrative appeal hearings of any timely and properly filed appeal from any abatement cost report pursuant to the administrative appeal procedures set forth in this section. The Hearing Officer shall review all evidence, documents, and written testimony and hear all oral testimony submitted by the parties at or before the scheduled administrative appeals hearing and render all decisions and findings in writing to the appellant with a duplicate copy to the Abatement Officer.

J. The Hearing Officer’s authority to hear and consider appeals shall be limited to the City’s determination that the amount of the costs set forth in the abatement cost report are accurate and reasonable, and, if the work was performed via summary abatement pursuant to Section 4.16.120 of this chapter, to the City’s determination that the City took the minimal and most reasonable and feasible action necessary to immediately abate the activity or activities and/or condition or conditions causing the public nuisance. The Hearing Officer shall consider at the hearing on the appeal only those matters or issues which were specifically raised by the appellant in his or her appeal and which are relevant to the issues of the hearing. The Hearing Officer shall not have the authority to waive any requirements of the Municipal Code and/or any applicable statutes, rules, codes or regulations, except as otherwise provided in this chapter.

K. The procedures adopted in this section by the City for the selection of Hearing Officers shall not replace, substitute for, or in any way affect the administrative hearing board processes created by the uniform and national codes adopted by the City and the administrative hearings provided by the uniform and national codes shall be treated separate and apart from the administrative hearing procedures adopted herein.

L. The Abatement Officer shall prepare an administrative hearing packet for the Hearing Officer to review prior to the hearing. The packet shall include a copy of the abatement cost report, the summary abatement report (if applicable), a staff report and any evidence of the abatement costs. The staff report should include a summary of the code enforcement activities performed at the subject property.

M. At the appeals hearing, the Hearing Officer shall hear any evidence offered either in support of appellant’s claim or in support of the cost report, provided such evidence is relevant to the issues of the hearing. The Hearing Officer has the authority to determine the relevance of any evidence to the hearing and shall not be limited by the technical rules of evidence. The Hearing Officer also has the authority to exclude unduly repetitious and cumulative evidence, regardless of its relevancy.

N. Each party shall have the following rights at the hearing:

1. To call and examine witnesses;

2. To introduce documentary and physical evidence;

3. To cross-examine opposing witnesses;

4. To impeach any witness regardless of which party first called the witness to testify;

5. To rebut evidence; and

6. To be represented by anyone who is lawfully permitted to do so.

O. If the appellant fails to attend the scheduled appeals hearing, the hearing will proceed without appellant and he or she will be deemed to have waived his or her rights to be orally heard at the appeals hearing.

P. Following the conclusion of the hearing, the Hearing Officer shall render his or her decision based on the applicable standard of review which may include a decision to ratify the abatement cost report in its entirety and/or modify the amount of the abatement costs to be recovered and/or modify the terms of payment of the abatement costs. The recipients of an abatement cost report shall be required to pay all abatement costs that are upheld by the Hearing Officer.

Q. The Hearing Officer shall prepare a written decision within 30 calendar days following the conclusion of the appeals hearing. The decision of the Hearing Officer shall be final, except as otherwise provided by this section.

R. The notice of decision shall contain a brief summary of the evidence considered, findings of fact, a determination of the issues presented, the effective date of the decision, and shall require the cost report recipient to pay the total sum due no later than 30 calendar days from the date of issuance of the written decision. The amount of the cost report for which the recipient shall be responsible shall be as set forth in the cost report unless otherwise modified by the written decision. Payment of the cost report shall be ordered to be made to the issuing department or division unless otherwise directed by the City.

S. The Hearing Officer shall cause a copy of the written decision to be served to each appellant either by causing a copy of the written decision to be delivered to each appellant personally or by causing a copy to be delivered by certified mail, postage prepaid, return receipt requested, and addressed to each appellant at the address shown on the appeal. A copy of the written decision shall also be provided to the City. The effective date of the Hearing Officer’s written decision shall be as stated therein. Proof of service of the written decision shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration shall be affixed to a copy of the written decision and retained by the City.

T. The owner of record of the subject property shall pay all costs of abatement no later than 30 calendar days from the date the abatement cost report becomes final as provided by this section. The amount of the abatement costs for which the owner of record shall be responsible shall be as set forth in the final abatement cost report.

U. If the abatement costs are not paid within 30 calendar days from the date the abatement cost report becomes due pursuant to this section, the abatement costs shall become a special assessment against that parcel, which shall be imposed pursuant to the procedures set forth in this chapter and shall be subject to the penalties set forth therein.

V. The prevailing party in any proceeding conducted pursuant to this section and associated with the abatement of a public nuisance shall be entitled to recovery of attorney’s fees incurred in any such proceeding.

(Prior code § 83.14; Ord. 588 10-4-16; Ord. 646 12-5-17)