Chapter 8.08 NUISANCE ABATEMENT PROCEDURES

Except where this Chapter prescribes another procedure or the parties otherwise agree to an alternate means, any notice or document required to be served under this Chapter must be served by personal service or first-class mail.

Service is deemed effective on the date it is personally delivered or deposited in the mail.

Failure of any person to receive a document properly served under this Chapter does not affect the validity of the notice or document, service, or any action or proceeding under this Chapter.

(Ord. 758, 9/5/2024)

§ 8.08.060 Nuisances designated.

It is declared unlawful and a public nuisance for any person owning, leasing, renting, occupying, or having charge or possession of any property in the City to maintain the property or allow the property to be maintained, with any of the following conditions:

Drainage Problems. Land, the topography, geology or configuration of which, whether in natural state or as a result of grading operations, excavation or fill, causes erosion, subsidence, or surface water drainage problems of such magnitude as to be injurious or potentially injurious to the public health, safety, and welfare or to adjacent properties.

Abandoned or Damaged Buildings. Buildings that are abandoned, partially destroyed, or permitted to remain unreasonably in a state of partial construction.

Openings in Vacant Structures. The failure to close by such means as is acceptable to the Director of Community Development all doorways, windows, and other openings into vacant structures.

Unpainted Buildings. Unpainted buildings causing dry rot, warping, and termite infestation.

Broken Windows. Broken windows, which constitute hazardous conditions and invite trespassers and malicious mischief.

Overgrown Vegetation. Overgrown weeds, grass, and vegetation.

(g)

Dead, Decayed, or Diseased Vegetation. Dead, decayed, diseased, or hazardous trees, weeds, and other vegetation that is: (1) constituting unsightly appearance; or (2) dangerous to public safety and welfare; or (3) detrimental to nearby property or property values.

(h)

Miscellaneous Debris. Packing boxes, lumber, trash, dirt, and other debris either inside or outside buildings and visible from public streets for unreasonable periods.

(i)

Intentional Neglect. Neglect of premises: (1) to spite neighbors; or (2) to influence zone changes; or (3) to cause detrimental effect upon nearby property or property values.

(j)

Detriment to Public Health, Safety and General Welfare. Maintenance of premises in such condition as to be detrimental to the public health, safety, or general welfare or in such manner as to constitute a public nuisance as defined by Civil Code Section 3480.

(k)

Detriment to Property Value. Property maintained in such condition as to become so defective, unsightly, or in such condition of deterioration or disrepair that the same causes appreciable diminution of the property values of surrounding properties or is materially detrimental to proximal properties and improvements.

(l)

Detrimental to Enjoyment or Use of Property. Maintenance of premises so out of harmony or conformity with the maintenance standards of adjacent properties as to cause substantial diminution of the enjoyment, use, or property values of such adjacent properties.

(m)

Diminution of Tax Receipts. Property maintained, in relation to others, so as to establish a prevalence of depreciated values, impaired investments, and social and economic maladjustments to such an extent that the capacity to pay taxes is reduced and tax receipts from such particular area are inadequate for the cost of public services rendered therein.

(n)

Violation of City Building Code. Any violation of the City Building Code, Chapter 16.12 of this Code, as amended.

(o)

Fire Hazard. All dry, dead shrubs, dead trees, combustible refuse and waste, or any material growing around the streets, sidewalks or upon private property within the City, which by reason of its size, manner or growth or location constitutes a fire hazard to any building, improvements, crops or other property, or when dry, will in reasonable probability constitute a fire hazard.

(p)

Polluted Water. Any swimming pool, pond or other body of water which is abandoned, unattended, unfiltered, or not maintained, resulting in the water becoming polluted. "Polluted water," for the purpose of this Chapter, means water contained in a swimming pool, pond, or other body of water, which includes, but is not limited to, bacterial growth, including algae, remains of rubbish, refuse, debris, papers, or any other foreign matter which, because of its nature or location, constitutes an unhealthy, unsafe or unsightly condition.

(q)

Outdoor Burning. The intentional outdoor burning of any material, structure, matter, or thing, is a public nuisance. For the purpose of this subsection (q) the term "any material, structure, matter, or thing" includes, but is not limited to, rubbish, garbage, weeds, palm fronds, refuse, debris, and matter of any kind including, but not limited to, rubble, asphalt, concrete, plaster, tile, rocks, bricks, soil, building materials, crates, cartons, containers, boxes, machinery or parts thereof, scrap metal and other pieces of metal, ferrous or nonferrous, furniture or parts thereof, inoperative vehicles, vehicle bodies, trimmings from plants or trees, cans, bottles, barrels or similar matter.

(r)

Refuse and Waste Matter. Refuse and waste matter, as defined in this subsection, which by reason of its location and character is unsightly and interferes with the reasonable enjoyment of property by neighbors, detrimentally affects property values in the surrounding neighborhood or community, or which materially hamper or interfere with the prevention or suppression of fire upon the premises. "Refuse and waste matter," for the purpose of this Chapter, means unused or discarded matter and material having no substantial market value, and which consists of rubbish, garbage, weeds, palm fronds, refuse, debris, and matter of any kind, including, but not limited to, rubble asphalt, concrete, plaster, tile, rocks, bricks, soil, building materials, crates, cartons, containers, boxes, machinery or parts thereof, scrap metal and other pieces of metal, ferrous or nonferrous, furniture or parts thereof, inoperative vehicles, vehicle bodies and/or trimmings from plants or trees, cans, bottles, barrels or similar matter.

(s)

Signs. Any sign in violation of the City Sign Ordinance, Title 17 of this Code.

(t)

Violation of California Fire Code. Any violation of the California Fire Code, Chapter 16.32 of this Code, as amended.

(u)

Violation of International Property Maintenance Code. Any violation of the International Property Maintenance Code, as amended.

(v)

Violation of Zoning Code. Any violation of the zoning ordinance of the City, Title 21 of this Code, as amended.

(w)

Dust, Sand, Gravel, or Trash. Any dust, sand, gravel, trash, or other debris that is visible from public or private real property, or constitutes a fire or safety hazard.

(x)

Dust Control on Vacant Land Not Yet Treated with One or More City Approved Dust Control Measures. "City approved dust control measures," for the purposes of this subsection, include, but are not limited to, the planting and maintenance of landscape or vegetation, or a proper chemical treatment, so as to control blowing dust from the site. Land located within the natural preserve (NPR) zone is exempt from this provision.

(y)

Palm Trees.

Dead or decayed palm fronds hanging parallel to the tree trunk, and noncommercial fruit, and flowers/pollen hanging from palm trees (e.g., date palms, fan palms, etc.) have a detrimental effect on adjacent properties and the community. Such debris must be trimmed from such trees at least once each year as soon as possible after the pods on the tree open up, but not later than June 30th of each year for date trees, and not later than July 30th of each year for fan palms or Washingtonian palms.

Upon receiving a written complaint, the enforcement official may cause the tree or trees to be trimmed before the date specified in Section 8.08.010(y)(1) if it is deemed that the tree is having a detrimental effect on an adjoining property.

(z)

Vehicle Repair on Residential Premises. Other than the repair or replacement of flat tires on re-charging of batteries or other emergency repairs. Vehicle repairs on lots zoned or used for residential purposes must take place within an enclosed structure. Repair work must be limited to noncommercial vehicles currently registered pursuant to the California Vehicle Code to the owner or lessee of the property or a member of the owner or lessee's immediate family, which must be limited to parents, grandparents, spouse, and children related by blood, marriage or adoption. Notwithstanding any provisions herein to the contrary, the following vehicle repairs may take place in other than an enclosed structure: (1) the repair or replacement of tires, (2) recharging of batteries, and (3) emergency repairs. The repair of vehicle must be limited to those hours set forth in Indian Wells Municipal Code Section 9.06.047. Any repairs made in public view must be completed within a two hour period of time. Storage of parts and or inoperable vehicles in public view is prohibited.

(aa)

Vectors.

Any property, excluding water, that has been artificially altered from its natural condition so that it now supports the development, attraction or harborage of vectors. The presence of vectors in their developmental stages on a property is prima facie evidence that the property is a public nuisance.

Any water that is a breeding place for vectors. The presence of vectors in their developmental stages in the water is prima facie evidence that the water is a public nuisance.

(3)

Any activity that supports the development, attraction or harborage of vectors, or that facilitates the introduction or spread of vectors. "Vector" as used herein means any animal capable of transmitting the causative agent of human disease or capable of producing human discomfort or injury, including, but not limited to, mosquitoes, flies, mites, ticks, other arthropods, and rodents and other vertebrates. "Public Nuisance" as used herein does not include agricultural operations that are designed and managed consistent with the accepted standards and practices for controlling fly development, as defined in Health and Safety Code Section 2062(b).

(bb)

Any violation of the Indian Wells Municipal Code is a public nuisance.

(Ord. 758, 9/5/2024)

§ 8.08.070 Notice to abate.

Whenever an enforcement official determines that a nuisance, as designated in Section 8.08.060, is occurring or exists, he or she may issue a written order to any responsible party ("Notice to Abate").

A Notice to Abate issued pursuant to this Section must contain the following information:

The address of the real property on which the alleged nuisance condition exists;

A description of the alleged nuisance conditions and the code section prohibiting the alleged nuisance condition;

(3)

A brief description of the required corrective actions;

(4)

A compliance period in which to complete the nuisance abatement actions (with all required City approvals, permits and inspections, when applicable);

(5)

A statement that the City may record a notice of violation with the Riverside County Recorder's Office against the premises;

(6)

The period and manner in which a responsible party may contest the notice to abate as set forth in Section 8.08.080; and

Whenever the enforcement official intends to abate a public nuisance by demolition of a building or structure if the responsible party fails to comply, then the City must comply with the following additional requirements:

The notice to abate must contain a statement that the City intends to abate the nuisance with City personnel or contractors by demolition of a building or structure if the nuisance conditions are not repaired, rehabilitated, removed, terminated, or demolished within the compliance deadline set forth in the notice to abate; and

The City must serve the notice to abate on all secured lienholders of record with the Riverside County Recorder's Office.

Any compliance order issued under this Section must be served in the manner required under Section 8.08.050.

The provisions of this Section do not apply in cases involving emergency or summary abatement under Section 8.08.110.

(Ord. 758, 9/5/2024)

§ 8.08.080 Appeals and hearings.

Right to Appeal. Any person issued a notice to abate has a right to appeal the City's nuisance determination in accordance with this Section. An appeal must be filed within 15 calendar days following the date of service of the notice to abate. A written notice of appeal must contain the following information: (1) the name and contact information of the appellant, and (2) the grounds for appeal in sufficient detail to enable the hearing officer and City to understand the nature of the controversy. The failure of any person who has been served with a notice to abate to timely and properly file an appeal is a failure to exhaust administrative remedies.

Selection of Hearing Officer. The City Manager may select the hearing officer. The hearing officer must be selected in a manner that avoids the potential for pecuniary or other bias.

Scheduling and Noticing of the Hearing. If a timely and proper appeal is filed, then the City Clerk must schedule the hearing no sooner than 15 days and no later than 60 days from receipt of the notice of appeal, unless the parties waive such time limits. The failure to hold the hearing within this time period does not invalidate any action of the hearing officer. The City Clerk must notify the appellant in writing of the date, time, and location of the hearing at least 10 days before the date of the scheduled hearing. The notice of hearing must be served in accordance with Section 1.28.050.

Issue on Appeal. The City bears the burden of proof to establish a nuisance exists by a preponderance of evidence. The issuance of a notice to abate is prima facie evidence of the existence of a violation. The scope of the appeal is limited to whether any nuisance condition identified in the notice to abate exists.

Evidence, Witnesses, and Recording. All parties have the right to present evidence and witnesses. The formal rules of evidence and discovery do not apply. The rules of privilege are effective to the same extent that they are now or hereafter may be recognized in civil actions. Irrelevant or unduly repetitious evidence may be excluded. Oral evidence may be taken only on oath or affirmation. The appellant and respondent may represent themselves or be represented by anyone of their choice. No party has the right to cross-examine any other party or witness except for good cause shown to the satisfaction of the hearing officer. The appellant may bring an interpreter to the hearing at his or her sole expense. The City may, at its discretion, record the hearing by stenographer, court reporter, audio recording, or video recording.

§ 8.08.100 Emergency or summary abatement.

Decision of the Hearing Officer. The hearing officer's decision must be in writing, set forth the hearing officer's findings of fact and conclusions of law, order the abatement of any confirmed nuisance conditions within a deadline determined by the hearing officer to be reasonable, and include a statement that if the nuisance is not abated then it may be abated by the City. If the hearing officer determines that each nuisance condition described in the notice to abate is nonexistent, the notice to abate is deemed cancelled. The hearing officer must render a decision within 15 days following the conclusion of the hearing. Failure of the hearing officer to render a decision within this time period does not invalidate any action of the hearing officer or automatically grant the appeal. The hearing officer's decision must be served in accordance with Section 8.08.050. The hearing officer's decision is the final administrative decision of the City regarding the Notice to Abate. The hearing officer's decision is effective on the date of service of the decision. The decision must contain the following statement: "The decision of the hearing officer is final and binding. Judicial review of this decision is subject to the provisions and time limits set forth in California Code of Civil Procedure Section 1094.6 et seq."

(Ord. 758, 9/5/2024)

§ 8.08.090 Abatement by City.

If a nuisance is not completely abated within the time prescribed by the notice to abate or, if appealed, in the Hearing Officer's decision, the City is authorized to abate a public nuisance by City staff or private contractor. The City and its agents are expressly authorized to enter the premises for such purpose. Except in cases involving an imminent hazard, entry onto any real property to abate a public nuisance must be pursuant to a warrant issued by a court of competent jurisdiction.

(Ord. 758, 9/5/2024)

If, in the reasonable opinion of the enforcement official, there exists a condition that constitutes an imminent threat of harm to public health or safety, or imminent hazard to real or personal property, the enforcement official may cause the conditions to be summarily abated in accordance with the following procedure. When determining whether a hazard is sufficiently imminent to warrant emergency abatement, the enforcement official may consider whether there is insufficient time to follow the administrative process for non-emergency abatements described in this Chapter.

If time permits, the enforcement official may attempt to contact the owner or occupant of the property to notify the responsible party that the condition must be immediately abated to eliminate the imminent hazard.

If the enforcement official is unable to make contact, or if after contact with the owner or occupant does not take action within the time prescribed by the enforcement official, he or she is authorized to take all actions necessary to eliminate or mitigate the hazardous condition, utilizing the City's own forces or private contractors.

Nothing in this Section prevents public safety officers from taking actions in emergency situations as they may deem necessary or appropriate in order to protect the public health, safety and general welfare.

As soon as reasonably possible under the circumstances, following any summary abatement action by the City to abate an immediate hazard, the City must provide each responsible party with a "notice of summary abatement." The notice of summary abatement must be served in accordance with Section 8.08.050 and contain the following information:

A brief description of the condition and reasons why it constituted an imminent threat or hazard;

A brief description of the law prohibiting or pertaining to the imminent threat or hazard; and

(3)

A brief description of the actions the City took to abate the imminent threat or hazard.

§ 8.08.110 Recordation of notice of violation.

The City's determination that a condition constituted an imminent threat or hazard may be appealed as set forth in Section 8.08.080.

(g)

The enforcement official must keep an itemized account of the costs incurred by the City in abating the public nuisance. The City is entitled to recover all abatement costs incurred in the abatement of an imminent threat or hazard in accordance with the procedure set forth in Chapter 1.28 of this Code.

(Ord. 758, 9/5/2024)

If a nuisance is not completely abated as determined by the City within the time prescribed by the notice to abate or, if appealed, in the Hearing Officer's decision, the City may record a notice of violation with the Riverside County Recorder's Office against the premises.

The City must record a notice of rescission of notice of violation with the Riverside County Recorder's Office within 10 business days of its determination that a violation or a public nuisance has been fully abated or corrected.

Upon recordation, the City must service a copy of the recorded notice of violation or notice of rescission on each person having an ownership interest in the property.

(Ord. 758, 9/5/2024)

§ 8.08.120 Cost recovery.

Whenever the City incurs abatement costs in abating a public nuisance or seeking to abate a code violation or public nuisance, the City is entitled to recover the abatement costs related to those code enforcement efforts in accordance with the procedure set forth in Chapter 1.28 of this Code.

(Ord. 758, 9/5/2024)

§ 8.08.130 Combination of notices.

The notices that are authorized by this Chapter may be combined in the discretion of the City.

(Ord. 758, 9/5/2024)

§ 8.08.140 Enforcement.

It is unlawful and declared a public nuisance for any person to violate any provision of this Chapter. It is unlawful and declared a public nuisance for any person to violate any order of a Hearing Officer made under this Chapter.

Any person who violates any provision of this Chapter is guilty of a misdemeanor punishable by a fine of up to $1,000.00, or by imprisonment in the County Jail not exceeding six months, or by both, except the City Attorney or enforcement official may prosecute a violation of this Chapter as an infraction, in his or her discretion.

Violation of this Chapter may be punished by issuance of an administrative citation fine, as set forth in Chapter 1.20 of this Code.

The City Attorney is authorized to bring a civil or equitable action, at his or her discretion, to seek the abatement of any violation of this Chapter or enforcement of any provision of this Chapter.

Each and every day a violation is maintained, caused, aided, abetted, concealed, suffered, or permitted is a separate offense.