The purpose of this chapter is to establish comprehensive and transparent procedures for the administrative and summary abatement of public nuisances and code violations, including public nuisances related to property maintenance. The procedures established in these sections are in addition to any other legal remedy, criminal or civil, established by law which may be pursued to address municipal code or applicable state code violations.
The provisions of this chapter are authorized by California Constitution, Article 11, Section 7, California Civil Code Section 3491, California Code of Civil Procedure Section 731, California Government Code Sections 25485, 38771, 38773.5, and California Penal Code Section 372.
(Ord. CS-385 § 2, 2020)
"Public nuisance"
means any condition caused, maintained, or in existence which constitutes a threat to the public's health, safety, and welfare or to the environment, or which significantly obstructs, injures, or interferes with the reasonable or free use of property in a neighborhood, community, or to any considerable number of persons, or which constitutes a public nuisance under California Civil Code Sections 3479 through 3480.
"Public nuisance" also means real property which is maintained in such a defective, unsightly, dangerous, or deteriorated condition, or state of disrepair, that the property will or may cause harm to persons, or will be materially detrimental to property or improvements located in the immediate vicinity of the property.
(Ord. CS-385 § 2, 2020)
The existence of any of the following conditions on any property is a public nuisance:
A. 
Conditions related to property maintenance, as set forth in Article III of this chapter.
B. 
Any obstruction to the free flow of drainage water in a natural drainage course, such as streams, rivers, and creeks.
C. 
Land that is in a state to cause or contribute to erosion, subsidence, or surface water drainage impacting adjacent public properties.
D. 
Buildings which are abandoned, partially destroyed, or remain unreasonably in a state of partial construction with no observable work performed for a period of six months or longer.
E. 
Buildings, walls, and other structures which have been damaged by fire, decay, or otherwise to such an extent they cannot be repaired so as to conform to the requirements of the building code in effect in this city. Buildings which have been partially destroyed or demolished by these causes and which remain in such a state for a period of six months or longer shall also be a violation of this subsection.
F. 
The failure to close, by means acceptable to the building official, all doorways, windows, and other openings into vacant structures.
G. 
Any condition, instrument, or machine on real property that is unsafe and unprotected and consequently dangerous to minors by reason of their inability to appreciate its peril, and which may be reasonably expected to attract minors to the property and thus risk injury to them by their playing with, in, or on it (i.e., attractive nuisances).
H. 
Graffiti on any public or privately owned structures within the city. For purposes of this chapter, "graffiti" means any form of painting, writing, inscription, or carving on any surface, regardless of the content or the nature of the material used in the commission of the act, which was not authorized in advance by the owner of the surface.
I. 
All other conditions deemed to be a "nuisance" or "public nuisance" as defined throughout this code.
J. 
Property upon which any violation of this code or any applicable state, county, or local law exists, or property which is used in violation of this code or any applicable state, county, or local law.
(Ord. CS-385 § 2, 2020)
Whenever the enforcement officer, as that term is defined in Section 1.10.010, determines that there exists on any real property in the city a public nuisance, the enforcement officer may serve upon the property owner and responsible party, as that term is defined in Section 1.10.010, a notice of violation under Section 1.10.030 setting forth the nature of the public nuisance. The notice shall be served in accordance with Section 1.10.040.
(Ord. CS-385 § 2, 2020)
The property owner and/or responsible party may appeal the notice of violation of public nuisance within 10 calendar days from the date of service of the notice of violation by filing a written request to appeal as required by Section 1.10.120. The administrative appeal procedures shall follow those set forth in Section 1.10.130.
(Ord. CS-385 § 2, 2020)
If a public nuisance noticed pursuant to Section 6.16.020 is not appealed within 10 calendar days, and is not abated on or before the date described in the notice of violation, the City Manager or designee shall cause to be issued a separate notice of nuisance abatement hearing, in accordance with Sections 6.16.050 and 6.16.060, for the holding of a public hearing before the City Council to determine whether a public nuisance exists and whether abatement is appropriate.
(Ord. CS-385 § 2, 2020)
Notice of the time and place of hearing before the City Council shall be titled, "NOTICE OF NUISANCE ABATEMENT HEARING," in letters not less than three-fourths of an inch in height and shall be substantially in the following form, as approved by the City Attorney:
NOTICE OF HEARING TO DETERMINE EXISTENCE OF PUBLIC NUISANCE AND TO ABATE IN WHOLE OR PART.
Notice is hereby given that on the________day of________, 20 , at the hour of________, the City Council of Carlsbad will hold a public hearing in the Council Chambers, located at 1200 Carlsbad Village Drive, Carlsbad, California, to ascertain whether certain premises situated in the City of Carlsbad, State of California, more particularly described as:
[provide assessor's parcel number and legal description]
constitute a public nuisance subject to abatement by the rehabilitation of the premises or by the repair or demolition of buildings or structures situated on the premises. If the premises, in whole or part, are found to constitute a public nuisance as defined by Chapter 6.16 of the Carlsbad Municipal Code, and if the premises are not promptly abated by the owner, the nuisances may be abated by municipal authorities and/or their contractors or agents, and the rehabilitation, repair, or demolition will be assessed upon the premises and the cost will constitute a lien or special assessment against the land until paid. The alleged violations consist of the following:
[describe public nuisance violations]
The methods of abatement available are:
[describe methods]
All persons having any objection to, or interest in this matter are hereby notified to attend a meeting of the City Council of the City of Carlsbad to be held on the ________day of ________ 20________, at the hour of ________ when their testimony and evidence will be heard and given due consideration.
DATED:
City Manager of the City of Carlsbad (or title of designee)
(Ord. CS-385 § 2, 2020)
A. 
The City Manager or designee shall cause to be served upon the property owner and any mortgagee and/or beneficiary under any recorded deed of trust of the affected premises a copy of a notice of nuisance abatement hearing as set forth in Section 6.16.050, and shall cause a copy to be conspicuously posted on the affected premises.
B. 
Notice shall be served as required by Section 1.10.040 at least 15 calendar days before the time fixed for the hearing. If any owner's address is unknown, this shall be stated in the notice and the notice shall be sent to the owner in care of the San Diego County Tax Assessor. Proof of posting and service of the notices shall be made by an affidavit or declaration that shall be filed with the City Clerk certifying the time and manner in which the notice was given, along with any registered or certified mail receipt cards which may have been returned to the city acknowledging receipt of said mail.
C. 
Prior to the hearing before the City Council, a second notice shall be issued in the same manner as described above at least five calendar days before the time fixed for such hearing. The service is complete at the time of such deposit.
D. 
"Owner," as used in this section, means any person in possession and also any person having or claiming to have any legal or equitable interest in the affected premises, including, but not limited to, a mortgagee and/or beneficiary, as disclosed by a current title search from any accredited title company. The failure of any person to receive the hearing notice does not affect the validity of the proceedings under this chapter.
(Ord. CS-385 § 2, 2020)
At the time stated in the hearing notice, the City Council shall hear and consider all relevant evidence, objections or protests, and shall receive relevant testimony from owners, witnesses, city personnel, and interested persons relative to the alleged public nuisance and to the proposed rehabilitation, repair, or demolition of the premises. The hearing may be continued from time to time.
(Ord. CS-385 § 2, 2020)
Upon or after the conclusion of the nuisance abatement hearing, the City Council shall, based upon the hearing, determine whether the premises, or any part of it, as maintained, constitutes a public nuisance as defined in this chapter. If the City Council finds that a public nuisance exists and that there is sufficient cause to rehabilitate, demolish, or repair the premises, the City Council shall adopt a resolution ("abatement order") setting forth its findings and ordering the owner or other person having charge or control of the premises to abate the nuisance by having the premises, buildings, or structures rehabilitated, repaired, or demolished within the period specified in the resolution, which shall not be less than 30 calendar days after the adoption of the resolution, in the manner and by the means specifically set forth in the resolution. The abatement order shall also contain authorization for the city to abate the nuisance pursuant to this chapter if, in the City Council's discretion, it is determined that immediate abatement by the city in whole or in part is warranted. The decision and resolution of the City Council shall be final and conclusive.
(Ord. CS-385 § 2, 2020)
Any owner or other interested person having any objections or feeling aggrieved at any proceeding taken by the City Council in ordering the abatement of any public nuisance under this chapter must bring an action to contest the decision in a court of competent jurisdiction within the time period specified in Section 1.16.020.
(Ord. CS-385 § 2, 2020)
A. 
Within five calendar days of the adoption of the abatement order, the city shall post a copy of the abatement order conspicuously on the premises, buildings, or structures declared to be a nuisance and serve another copy to the parties as required by Section 1.10.040. The abatement order shall contain a detailed list of needed corrections and abatement methods. Any property owner has the right to have the premises rehabilitated or to have the buildings or structures demolished or repaired in accordance with the abatement order and at the owner's own expense, provided the rehabilitation, demolition, or repair is done prior to the expiration of the abatement period set forth in the abatement order. Upon abatement in full by the owner, the proceedings under this chapter shall terminate.
B. 
If a nuisance is not completely abated by the owner within the designated abatement period, then the City Manager or designee is authorized and directed to cause the nuisance to be abated by city agents, employees or by private contract. Upon request of the designated official, other city departments shall cooperate fully and shall render reasonable assistance in abating the nuisance.
C. 
Any parties authorized by the City Manager or designee to perform the abatement work may enter upon the subject property only after: (1) receiving written consent of the property owner or his/her authorized agent; (2) the issuance of a judicially authorized inspection warrant; or (3) a determination by the City Attorney's office that an exception to the inspection warrant requirement applies.
(Ord. CS-385 § 2, 2020)
A. 
The owner or other person having charge or control of a buildings or premises who violates any abatement order issued under this chapter, or under state law where applicable, is guilty of a misdemeanor.
B. 
Any occupant or lessee in possession of a building or structure who fails to vacate the building or structure in accordance with an order issued under this chapter is guilty of a misdemeanor.
C. 
Any person who removes any notice or order posted under this chapter is guilty of a misdemeanor.
D. 
No person shall obstruct, impede, or interfere with any representative of the City Council or with any representative of a city department or with any person who owns or holds any estate or interest in a building which has been ordered to be vacated, repaired, rehabilitated, or demolished and removed, or with any person to whom the building has been lawfully sold pursuant to the provisions of this code, whenever the representative of the City Council, representative of the city, purchaser, or person having any interest or estate in the building is engaged in vacating, repairing, rehabilitating, or demolishing and removing the building under the provisions of this chapter, or in performing any necessary act preliminary to or incidental to such work as authorized or directed under this chapter.
E. 
The provisions of this chapter are also enforceable, and violations are punishable, under Chapter 1.08. Chapter 1.08 allows for the issuance of infraction or misdemeanor citations for violations of certain sections of this code. Criminal prosecution shall not preclude nor be precluded by abatement of the violation or violations.
F. 
It is unlawful and a misdemeanor for any person to do any act or thing upon the property of another that is declared to be a public nuisance under any provision of this code, or to do anything or act upon the property of another that results in the declaration of a public nuisance, without the express consent of the owner of the property.
(Ord. CS-385 § 2, 2020)
A. 
The City Manager or designee shall keep an account of the cost of abatement and of rehabilitating, demolishing, or repairing any premises, buildings, or structures, including any related salvage value and administrative costs. Upon completion of this work, the City Manager or designee shall authorize a written abatement cost report stating these costs.
B. 
For purposes of this chapter, "administrative costs" includes, without limitation, the actual expenses and costs of the city in preparing, printing, and mailing notices, specifications and contracts and in inspecting the work, and may include attorneys' fees.
(Ord. CS-385 § 2, 2020; Ord. CS-402, 2021)
The City Manager or designee shall cause a copy of the abatement cost report to be served on the property owner and the responsible party per Section 1.10.040.
(Ord. CS-385 § 2, 2020)
The property owner and/or responsible party may dispute the abatement cost report within 10 calendar days from the date of service of the abatement cost report by filing a written dispute with the City Clerk. The property owner and/or responsible party shall set forth the basis of the dispute and submit relevant documentation in support of their dispute.
(Ord. CS-385 § 2, 2020)
A. 
If a property owner and/or responsible party timely challenges the abatement cost report, the City Council shall set the matter for hearing to determine the correctness or reasonableness, or both, of such costs.
B. 
A copy of the abatement cost report and notice of hearing shall be served upon the property owner and/or responsible party challenging the report in accordance with Section 1.10.040, at least five calendar days prior to the date of the City Council hearing.
C. 
Proof of service of the abatement cost report and notice of hearing shall be made by affidavit or declaration, under penalty of perjury, filed with the City Clerk at least five calendar days prior to the date of the City Council hearing.
D. 
At the time and place fixed for receiving and considering the report, the City Council shall hear and pass upon the report of the costs of abatement, together with any objections, protest, or documentation submitted by the property owner and/or responsible party. By resolution, the City Council shall adopt an abatement cost order that:
1. 
Determines the correct cost of abatement and related administrative costs.
2. 
If necessary, modifies the abatement cost report to conform to such corrected abatement and administrative costs.
3. 
Confirms the abatement cost report as presented or modified.
4. 
States the date of the final abatement cost report.
5. 
Determines and states the correct legal description of the subject property, the correct county assessor's parcel number, the street address, and the name and address of the recorded owner based on the last equalized assessment roll or the supplemental roll, whichever is more current.
The decision of the City Council shall be final and conclusive.
(Ord. CS-385 § 2, 2020)
The cost of abatement and related administrative costs, as determined, shall be a:
A. 
Personal obligation of the person creating, causing, committing, or maintaining the nuisance abated;
B. 
Personal obligation of the property owner of the subject property; and
C. 
Special assessment against the subject property or a lien against the subject property.
(Ord. CS-385 § 2, 2020)
The cost of abatement and any related administrative costs, as confirmed, may be collected by the city by the following means or any other lawful means:
A. 
Nuisance Abatement Lien. The City Manager or designee may authorize recordation of a nuisance abatement lien in the office of the County Recorder, along with an acknowledged copy of the abatement cost report(s), abatement cost order (if applicable), and the abatement order.
1. 
Prior to recordation, a notice of lien shall be served on the owner of record, based on the last equalized assessment roll or the supplemental roll, whichever is more current.
2. 
The notice shall be served in the same manner as a summons in a civil action in accordance with California Code of Civil Procedure Section 415.10 et seq. If the owner of record after diligent search cannot be found, the notice may be served by posting a copy in a conspicuous place upon the property for a period of 10 calendar days and publishing it in a newspaper of general circulation in San Diego County pursuant to California Government Code Section 6062.
3. 
The nuisance abatement lien authorized by this section shall be in a form approved by the City Attorney substantially as follows:
[Name and address of the recorded owner of the parcel]
NOTICE OF LIEN - CLAIM OF CITY OF CARLSBAD
Pursuant to the authority vested by the provisions of Chapter 6.16 of the Carlsbad Municipal Code, the City Manager or designee of the City of Carlsbad did on or about the ________day of ________, 20________, cause the premises hereinafter described to be rehabilitated, or the building or structure on the real property hereinafter described to be repaired or demolished, in order to abate a public nuisance; and the City Manager/City Council of the City of Carlsbad (circle one) did on the ________day of ____________, 20________, assess the cost of such rehabilitation, repair or demolition upon said real property hereinafter described; and the same has not been paid nor any part thereof; and that the City of Carlsbad does hereby claim a lien on such rehabilitation, repair or demolition in the amount of said assessment, to wit: the sum of $ ____________, and the same shall be a lien upon said real property until the same has been paid in full and discharged of record. The real property hereinbefore mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Carlsbad, County of San Diego,
State of California, and more particularly described as follows: [Assessor Parcel Number and legal description]
DATED:
City Manager of the City of Carlsbad
4. 
From the date of recording, the nuisance abatement lien shall have the force, effect, and priority of a judgment lien and may be foreclosed by an action brought by the city for a money judgment.
5. 
The city may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.
6. 
In the event that the lien is discharged or released or satisfied, either through payment or foreclosure, notice of the discharge ("release of lien") containing the information contained in subsection (A)(3) of this section shall be recorded in the County Recorder's office. A courtesy copy shall also be provided to the recorded property owner consistent with the service methods in Section 1.10.040.
B. 
Special Assessment. As an alternative to the recordation of a nuisance abatement lien, the City Manager or designee may make the cost of abatement of a nuisance a special assessment against that parcel, using the following procedures:
1. 
The City Manager or designee shall file an acknowledged copy of the abatement cost report(s), abatement cost order (if applicable), and the abatement order with the auditor of the county, who shall enter the assessment on the county tax roll opposite the subject property.
2. 
Prior to the filing with the auditor of the county in accordance with subsection (B)(1) above, the property owner, if his/her identity can be determined from the county assessor's or County Recorder's records, should be provided a notice of special assessment by certified mail, similar in form to the notice of lien described in subsection (A)(3) of this section. The notice of special assessment shall include as an attachment an acknowledged copy of the abatement cost report, abatement cost order (if applicable), and the abatement order. 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. The tax collector's power of sale shall not be affected by the failure of the property owner to receive notice.
3. 
The amount of the assessment may be collected at the time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes.
4. 
All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches on the real property prior to the date on which the first installment of the taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.
5. 
If the city imposes an assessment pursuant to this section, it may, subject to the requirements applicable to the sale of property pursuant to California Revenue and Taxation Code Section 3691, conduct a sale of vacant residential developed property for which the payment of that assessment is delinquent.
C. 
Civil action by the city.
D. 
In addition to any other costs of abatement under this chapter, upon the entry of a second or subsequent civil or criminal judgment within a two-year period in which the owner of real property is responsible for a condition that may be abated under this chapter, except for conditions under the State Housing Law (see California Health and Safety Code Section 17980), a court may order the property owner to pay triple the costs of the abatement.
(Ord. CS-385 § 2, 2020)
Violations of this chapter shall be treated as strict liability offenses regardless of intent.
(Ord. CS-385 § 2, 2020)
Nothing in this chapter is intended to create a mandatory duty on behalf of the city or its employees under the Government Claims Act (California Government Code Section 900 et seq.) and no cause of action against the city or its employees is created by this chapter that would not arise independently of the provisions of this chapter.
(Ord. CS-385 § 2, 2020)
This chapter is not the exclusive regulation of nuisance code violations. It shall supplement and be in addition to other regulatory codes, statutes, and ordinances enacted by the state or any other legal entity or agency having jurisdiction. Nothing in this chapter shall be deemed to prevent the city from authorizing the City Attorney to commence any other available civil or criminal proceedings to abate a public nuisance under applicable provisions of state law as an alternative to proceedings set forth in this chapter.
(Ord. CS-385 § 2, 2020)
In any judicial action, administrative proceeding or special proceeding to abate a nuisance, the prevailing party shall recover the incurred attorneys' fees as follows:
A. 
The recovery of attorneys' fees by the prevailing party is limited to those individual actions or proceedings in which the city elects, at the initiation of the action or proceeding, to seek recovery of its own attorneys' fees.
B. 
In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.
(Ord. CS-402 § 3, 2021)