§ 1-6. Public Nuisance Abatement.*

*  Editor's Note: Prior ordinances codified herein include portions of Ordinance No. 1056.

1-6.1 Purpose. Pursuant to Government Code Sections 38771 et seq., the city council established procedures as set forth in this section for the purposes of the abatement of public nuisances.

(Ord. No. 1290, § 2)

1-6.2 Public Nuisances. Any condition caused or permitted to exist in violation of the provisions of the Novato Municipal Code, resolution of the city council, or statute of the State of California, shall be deemed a public nuisance. A public nuisance further includes any unlawful obstruction or encroachment upon any public property, including but not limited to any public street, highway, right-of-way, park, building or any other condition that is injurious of the health, safety or general welfare of the community. Every day a public nuisance continues to exist shall be regarded as a new and separate offense.

(Ord. No. 1290, § 2)

1-6.3 Public Nuisances Adversely Affecting the Public Peace and Safety. The following are expressly declared to be public nuisances adversely affecting the public peace and safety:

a.

Storage, leakage, release, or use of any explosive, flammable liquid, or other dangerous, toxic, or hazardous substance in any manner or in any amount other than as permitted pursuant to this code and county, State, or Federal laws;

b.

All buildings and alteration of buildings, or parts thereof, made or erected in violation of Chapter 4-1 or any applicable county, State or Federal laws prescribing the manner and materials for the construction or alteration;

c.

Obstructions, impediments, or excavations that interfere with the ordinary use by the public of any public street, way, or sidewalk or an attraction to persons, except when and as permitted pursuant to this code or State law;

d.

Rainwater or drainage water issuing in a collected or directed manner or falling from any building, structure, or paved area upon any sidewalk or pedestrian way, or flowing across any sidewalk or pedestrian way in such a manner which interferes with the normal usage of said sidewalk or pedestrian way;

e.

Any barbed wire or electrified fence within a plane of four horizontal feet from any public street, way, sidewalk or pedestrian way;

f.

Any dangerous, unguarded machinery or appliances left in any public place or so operated or situated on private property so as to attract the public;

g.

Any dead, diseased, infested, or dying tree or shrub on any property so near to a street, public right-of-way, or a public utility easement as to constitute a danger to street trees, public utility service's streets, sidewalks, vehicle travel, persons, or property, other than that of the owner of the tree;

h.

Vines or climbing plants growing into or over any street tree, fire hydrant, pole, utility wire, or electrolier;

i.

Branches, roots, trees, shrubs, or foliage that interfere with visibility on, illumination of, or the free, safe, or undamaged use of, or access to or along, any portion of any public street or sidewalk;

j.

Hedges or dense, thorny shrubs extending into the public right of way;

k.

Branches of trees or shrubs that extend within eight vertical feet from any portion of a public sidewalk or within 14 vertical feet from any portion of a public street;

l.

Fences, hedges, or growths of like nature that violate the restrictions imposed by Chapter 19;

m.

Generation of intense direct glare or heat that unreasonably affects use and enjoyment or neighboring property or confuses or interferes with travel along a street or sidewalk;

n.

Excavations or ponds that are open and attractive to persons; and

o.

Any other act, occupation, and use of property that in fact endangers or jeopardizes the public peace and safety.

(Ord. No. 1290, § 2)

1-6.4 Property Nuisances. The following are expressly declared to be public nuisances:

a.

Buildings or structures that are structurally unsafe or which constitute a fire hazard, or which are otherwise dangerous to human safety and life;

b.

Buildings that are in violation of the city adopted Building Codes in Chapter 4;

c.

Erosion, undercutting, excessive sloping, subsidence, saturation of soil, or surface water drainage of such magnitude or effect to be injurious or potentially injurious to the public or adjacent properties, whether caused by grading operations, excavations, or fill, directed or disregarded drainage, or as a result of the topography, geology, or configuration of the land in its natural or altered state;

d.

Accumulation of debris or rank overgrowth constituting a fire hazard, potential to become a fire hazard, or likely harborage for vermin;

e.

Buildings, fences, signs, or other structures that are or have been abandoned, boarded up, partially destroyed, or permitted to remain in a state of partial construction for a period of 90 days or more, except in the case of partial construction, in which case the time shall be for a period of 180 days or more while any required building permits are valid, and where continuation of the condition is unsightly or is hazardous to the public health, safety, or welfare;

f.

Unpainted buildings causing or tending to cause dry rot, warping, or termite infestation;

g.

Buildings with windows containing broken glass or missing glass, where the opening is of a type that normally contains glass and invites trespassers and malicious mischief;

h.

Tree, weeds, or other vegetation, which by reason of being overgrown, dead, decayed, or diseased, are:

1.

Likely to harbor vermin; or

2.

A serious risk of physical injury to inhabitants or occupants of the premises or to the public;

i.

Any wrecked, disabled, inoperative, salvaged or dismantled vehicle, vessel, or vehicle parts stored in violation of Chapter 18; or

j.

Packing boxes, litter, garbage, junk metal, automobile parts, or any other refuse or debris by reason of its volume, type, or length of storage has promoted or will promote:

1.

Infestation by rats, vermin, or other pests; or

2.

A serious risk of harm to inhabitants or occupants of the premises or the public;

k.

Broken, inoperative, or discarded furniture or other household equipment kept in a front or side yards required by the city zoning code for more than seven consecutive days or more than ten days during any one calendar month;

l.

Garbage cans left visible from a public street for more than 24 hours;

m.

Condition of premises that is so defective, unsightly, deteriorated, or in disrepair as to be materially detrimental to the use and enjoyment or value of nearby properties and improvements; and

n.

Emanation of noise or vibrations of such a loud, unusual, unnecessary, penetrating, lengthy, raucous, annoying untimely, or boisterous nature as to unreasonably disturb, annoy, injure, interfere with, or endanger the comfort, repose, health, peace, safety, or welfare of the users of the neighboring property;

o.

Any unauthorized inscription, word, figure or design that is marked, etched, scratched, drawn, or painted on the surface of any building or structure. Nothing in this subsection shall be construed as altering the regulations of signs found in section 19-14.004 of this municipal code.

(Ord. No. 1290, § 2)

1-6.5 Abatement - Methods - Right to Inspection. The city may choose to abate any public nuisance or violation of this code through any of the abatement methods set forth in this code or in State or Federal law, and nothing contained in this chapter shall be construed as limiting, prejudicing, or adversely affecting the city's ability to concurrently or consecutively use any of those proceedings as the city may deem are efficient, effective, practicable, or applicable. When the city manager, or his designee, suspects that a public nuisance is present on private property, he may inspect such property after obtaining an inspection warrant pursuant to Code of Civil Procedure Section 1822.5 if request to inspect is refused by the property owner or person(s) in control of the property.

(Ord. No. 1290, § 2)

1-6.6 Abatement - Referral to Housing and Building Codes Appeals Board. At any time and in any case that the community development director, or his or her designee, determines is appropriate, the community development director, or his or her designee, may issue a notice of hearing before the housing and building codes appeals board for determination of whether a public nuisance exists under this chapter and whether the board should issue an order to abate a violation of this chapter.

(Ord. No. 1290, § 2)

1-6.7 Notice of Hearing by Housing and Building Codes Appeals Board on Public Nuisance or Violation.

a.

Notice of the time, date, and place of the public hearing on the alleged nuisance or violation will be provided at least ten days before the date set for the hearing by posting on the premises involved and mailing by first-class mail to the following persons:

1.

The owners of the premises as their names appear on the last equalized roll upon which city taxes are collected on the premises; the name and address of the owners as shown on that assessment roll shall be conclusively deemed to be the proper persons and addresses for mailing the notice; and

2.

To the occupants of the premises as their names reasonably appear on the premises;

b.

The notice will contain a description of the premises involved by street address, including if appropriate, the assessor's parcel number, a brief summary of the conditions and violations alleged to exist on the premises, and a brief summary, if any, of the abatement believed necessary.

(Ord. No. 1290, § 2)

1-6.8 Hearing by Housing and Building Codes Appeals Board on Public Nuisance or Violation. At the time stated in the notice, or at the time to which the board may continue the proceedings, the board will hear and consider all relevant facts and testimony presented. The hearing may be continued from time to time by action of the board.

(Ord. No. 1290, § 2)

1-6.9 Order of the Housing and Building Codes Appeals Board.

a.

Upon the conclusion of the hearing on each matter brought before the board, the board will determine whether the condition of the premises constitutes a public nuisance, in whole or in part, or if an order to abate a violation of this chapter should be issued.

b.

If a board finds that a nuisance does exist, the board may order the nuisance to be abated, may further require the abatement within a specified time period, and may impose such further conditions on the abatements the board finds are just and proper.

c.

If the board determines that an order to abate a violation of this chapter should issue, the board may order the violation to be abated, may further require the abatement within a specific time period, and may impose such further conditions on the abatement as the board finds are just and proper.

d.

A copy of the order will be posted on the premises. If the owners of the premises are not present at the hearing, a copy of the order will be delivered to the owners in the same manner as for the hearing notice.

(Ord. No. 1290, § 2)

1-6.10 Appeal of Decision of Housing and Building Appeals Board on Public Nuisance or Violation. Any interested person may appeal a decision of the housing and building appeals board to the city council by filing a notice of appeal together with the fee established by resolution of the council no later than ten days after the decision of the board. Upon receipt of such an appeal, the city clerk will set the matter for hearing before the council on the first open agenda of the council that is at least 15 days after the date of receipt.

(Ord. No. 1290, § 2)

1-6.11 Council Hearing on Appeal of Board Decision on Public Nuisance or Violation.

a.

Notice of hearing on an appeal of a decision of the board on public nuisance or violation will be given in the same manner and to the same persons as for a hearing on a public nuisance or violation before the board.

b.

The council will hear the appeal de novo and consider all relevant facts and testimony presented.

c.

At the conclusion of the hearing, the council may approve, disapprove, or amend the decision of the board, as the council in its sole discretion determines is just and proper.

d.

Notice of the action of the council will be given in the same manner as provided for notice of action by the board.

(Ord. No. 1290, § 2)

1-6.12 Direct Referral of Complaint to the City Council. At any time and in any case that the city manager, or the manager's designated representative, determines is appropriate, the manager, or the representative designated by the manager, may issue a notice of hearing before the city council for determination of whether a public nuisance exists under this chapter or an order to abate a violation of this chapter should issue, without first referring the question to the housing and building appeals board.

(Ord. No. 1290, § 2)

1-6.13 Council Hearing on Direct Referral of Complaint.

a.

Notice of a hearing on referral to the city council on an alleged public nuisance or violation will be given in the same manner and to the same persons as for a hearing on an appeal to the council of a decision by the board.

b.

At the time set forth in the notice or at the time to which the council may continue the proceeding, the council will hear and consider all relevant facts and testimony presented. The hearing may be continued from time to time by action of the council.

c.

At the conclusion of the hearing, the council will determine whether the condition of the premises constitutes a public nuisance, in whole or in part, or an order to abate a violation of this chapter should issue, all as specified in part in the notice of the proceeding. If the council finds that such a nuisance does exist or such an order should issue, the council may order the nuisance or violation to be abated, may further require the abatement within a specified time period, and may impose such further conditions on the abatement as the council finds are just and proper. In the alternative, the council may send the complaint to the housing and building appeals board or any other board or commission for further hearing and investigation, or the council may take such other action as the council determines is appropriate. A copy of the order will be posted on the premises involved on the following workday. If the owners of the premises are not present at the hearing, a copy of the order will be delivered to the owners as was provided for the hearing notice.

d.

Notice of the action of the council will be given in the same manner as provided for the notice of action by the council on an appeal of a decision by the board.

(Ord. No. 1290, § 2)

1-6.14 Failure to Abate After Order of Council or Board.

a.

If the order of the board is not appealed, or the public nuisance or violation is not abated in compliance with the board's order, or if the public nuisance or violation is not abated in compliance with the council's order, the city attorney may seek enforcement of the council's or board's order in superior court to abate the nuisance with city forces or private contract, or both.

b.

In any action, administrative proceeding or special proceeding to abate or enjoin a public nuisance brought in the name of the city pursuant to any provision of this code, the prevailing party shall be entitled to reasonable attorney's fees incurred by the prevailing party in the action, if the city elects at the initiation of that action or proceeding to seek recovery of its own attorneys' fees.

(Ord. No. 1290, § 2; Ord. No. 1397, § 1)

1-6.15 Summary Abatement.

a.

Whenever the city manager, or the manager's designated representative, reasonably believes that there is an imminent or immediate danger in the existence or continuance of any nuisance or violation of this chapter, endangering the public health, welfare, or safety, or that interferes with or jeopardizes the public's use of any street, sidewalk, path, or right of way, arising from any act, condition, or use or occupation of property, the city manager, or the manager's designated representative, may take such steps as the city official believes are reasonably necessary to secure the premises and remove or reduce the immediate or imminent danger posed.

b.

In undertaking such summary abatement, the city manager, or the manager's designated representative, will provide such notice to the owners and occupants of the premises, or in the case of deposit of materials or excavation, the apparent creators of the deposit or excavation, that the city official believes is reasonable under the circumstances and danger posed. Such a notice will contain the information required for notice of hearing pursuant to this chapter before the housing and building appeals board.

c.

Whenever the city manager, or the manager's designated representative, reasonably believes that the condition of a property places the property or its contents in jeopardy due to vandalism, thievery, or imminent hazard, the city official is unable to communicate with the property owner, owner's authorized agents, or occupants after reasonable efforts, the city manager, or the manager's designated representative, may take such steps as the city official believes are necessary to secure the premises and remove or reduce the immediate or imminent hazard posed until the property owners can be contacted.

d.

The city official undertaking summary abatement under this section may use city forces or a private contractor, or both, and will keep an account of the cost and expenses incurred by the city.

(Ord. No. 1290, § 2)

1-6.16 Conclusive Notice. Mailing of notice of any hearing or order under this chapter to the owners of the real property concern as the owner's names and addresses are shown on the last equalized roll upon which the city taxes are collected shall be conclusively deemed to be the proper persons and addresses for mailing the resolution, and failure of any or all of the addresses to receive the notice shall not invalidate any of the proceedings. Further, the posting of notice of a hearing or order pursuant to this chapter shall be conclusively deemed to be adequate notice to any and all occupants, users, or possessors of the property or its contents, and the failure of any such occupant, user, or possessor to see, read, understand, or otherwise receive the notice shall not invalidate any of the proceedings.

(Ord. No. 1290, § 2)

1-6.17 Notice to Department of Motor Vehicles. Nothing contained herein shall in any way be construed to inhibit or alter any obligations any person may have to report the sale, dismantlement, or destruction of a vehicle or vehicle parts to the State Department of Motor Vehicles in accordance with applicable laws.

(Ord. No. 1290, § 2)

1-6.18 Cost Recovery. The city shall recover the cost of abating the nuisance, including reasonable administrative costs. The expense of such abatement shall be determined by the city council pursuant to the Code Enforcement Fee Schedule, enacted pursuant to Administrative Policy 2.3. In addition, in any administrative or special proceeding to abate a public nuisance, the prevailing party shall be entitled to reasonable attorneys' fees if the city elects at the initiation of that individual proceeding to seek recovery of its own attorneys' fees. The cost of such abatement and attorney's fees if elected, shall become a lien against the property on which it is maintained and a personal obligation of the property owner. A special assessment may be 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. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to such special assessment.

(Ord. No. 1290, § 2; Ord. No. 1397, § 2)

1-6.19 Civil or Criminal Actions Not Affected. Any abatement process undertaken pursuant to this chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate the public nuisance or violation or to seek compensation for damages suffered. A civil or criminal action may be brought concurrently with any other abatement process regarding the same public nuisance or violation. At the discretion of the prosecuting attorney, any action brought to abate a public nuisance or violation or to seek compensation for damages may also include as a party the owner of the real property that is the site of the use or activity causing the nuisance. It is the express intention of the chapter to permit the prosecution of real property owners who fail to take reasonable steps after notice to correct nuisances or violations existing on their property even though the property may be leased to others.

(Ord. No. 1290, § 2)

1-6.20 Construction. No section of this chapter shall impose a mandatory duty on the city or on any officer, official, agent, employee, board, council, or commission of the city. Instead, if any selection purports to impose a mandatory duty of enforcement, that section shall be deemed to invest the city and the appropriate officer, official, agent, employee, board, council, or commission with discretion to enforce the section or not to enforce it.

(Ord. No. 1290, § 2)