Loading...
HomeMy WebLinkAbout2020-10-06; City Council; CS-385; AN ORDINANCE REPEALING AND REPLACING TITLE 6, CHAPTER 6.16 OF THE CARLSBAD MUNICIPAL CODE CONCERNING PUBLIC NUISANCES AND PROPERTY MAINTENANCEOct. 6, 2020 Item #8 Page 2 of 19 ORDINANCE NO. CS-385 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, REPEALING AND REPLACING TITLE 6, CHAPTER 6.16 OF THE CARLSBAD MUNICIPAL CODE CONCERNING PUBLIC NUISANCES AND PROPERTY MAINTENANCE WHEREAS, on May 23, 2017, the City Council of the City of Carlsbad, California (City Council) determined the Carlsbad Municipal Code (Code) requires revisions and amendments and a comprehensive update to the Code is necessary to improve clarity and consistency as well as to reflect current legal and professional best practices; and WHEREAS, on May 23, 2017, the City Council adopted Resolution 2017-095 authorizing the Code update; and WHEREAS, on July 23, 2019, the City Council adopted Resolution 2019-133 creating the ad hoc Carlsbad Municipal Code and City Council Policy Update Subcommittee (Subcommittee) to assist with the update and expanding the update to include both the Code and City Council Policies; and WHEREAS, the City of Carlsbad has a responsibility to its residents and business owners to promote conditions that are beneficial to the health, safety, and welfare of the entire community, The existence of public nuisances has a detrimental effect on persons or property as well as the overall aesthetic quality of the city, and the abatement of these conditions is in the best interest of the city, its residents, and its business owners; and WHEREAS, the purpose of this update to Chapter 6.16 of the Code is to provide comprehensive and transparent procedures to identify public nuisances within the City of Carlsbad, encourage compliance where a public nuisance violation exists, and establish the authority to abate and recover costs of abatement when the responsible party and/or property owner fails to comply; and WHEREAS, the provisions adopted in this Chapter shall not be exclusive but shall be cumulative and complementary to any other provisions of the Code and county, state, and federal laws; this Chapter shall not be construed to limit any existing right or power of the city to pursue abatement of and/or abate any and all public nuisances; and WHEREAS, 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;and WHEREAS, with regard to Chapter 6.16, Article Ill 11Property Maintenance," the City of Carlsbad has a history and reputation for well-kept properties that do not endanger the public; the property Oct. 6, 2020 Item #8 Page 3 of 19 values and the general welfare of this community are founded, in part, upon the appearance and maintenance of properties; and WHEREAS, dirt, rocks, plant growth, waste, or other materials which are either dangerous or injurious to neighboring property or to the health and welfare of residents in the vicinity or which unreasonably interfere with the use of the public rights-of-way are public nuisances; these obstructions impede the use of public streets, sidewalks, or rights-of-way, can compromise the safety of motorists, bicyclists, and pedestrians and impose a liability on the City; and WHEREAS, the Code does not specifically regulate the maintenance of property with regard to dirt, rocks, plant growth, waste, or other materials to the extent that they obstruct public streets, sidewalks, or rights-of-way or otherwise constitute a public nuisance, and the City seeks to remedy the public safety hazards presented by same; and WHEREAS, California Government Code Sections 39501 and 39502 authorize municipalities to regulate property maintenance and remove dirt, rocks, plant growth, waste, or other materials which obstruct public property or are otherwise dangerous or injurious to neighboring property or to the health or welfare of residents in the vicinity; and California Government Code Section 39502 allows a municipality to impose a lien on the abutting property for the cost of removal of the aforementioned obstructions. NOW, THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows: 1. The above recitations are true and correct. 2. Carlsbad Municipal Code, Title 6, Chapter 6.16 is hereby repealed and replaced as follows: Sections: 6.16.005 6.16.010 6.16.015 6.16.020 6.16.030 6.16.040 6.16.050 6.16.060 Chapter 6.16 PUBLIC NUISANCES AND PROPERTY MAINTENANCE Article I. General Declaration of purpose and statutory authority. Public nuisance defined. Specific conditions constituting a public nuisance. Determination of nuisance on real property. Right to appeal notice of violation. Failure to abate nuisance. Form and notice of nuisance abatement hearing. Posting and service of notice of nuisance abatement hearing. 2 Oct. 6, 2020 Item #8 Page 4 of 19 6.16.070 6.16.080 6.16.090 6.16.100 6.16.110 6.16.120 6.16.130 6.16.140 6.16.150 6.16.160 6.16.170 6.16.180 6.16.190 6.16.200 6.16.210 6.16.220 6.16.230 6.16.240 6.16.250 6.16.260 6.16.270 6.16.280 6.16.290 6.16.300 6.16.310 6.16.320 6.16.330 6.16.005 Hearing by city council. Decision of city council; abatement order. Limitation of filing judicial action. Service of abatement order. Nuisance abatement violation-penalty. Account of cost of abatement to be kept. Copies of abatement cost report to be served. Challenges to abatement cost report. Hearing on abatement cost report; abatement cost order. Abatement cost to be lien against property. Collection of cost of abatement. Strict liability offense. No mandatory duty. Alternative means of enforcement. Article II. Summary Abatement General. Determination of summary abatement. Summary abatement cost report. Summary abatement hearing. Collection of cost of summary abatement. Article Ill Property Maintenance Declaration of purpose and statutory authority. Definitions. Enforcement authority. Duty to maintain property. Violations. Administrative abatement procedure. Abatement lien. Severability. Article I. General Declaration of purpose and statutory authority. 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. Oct. 6, 2020 Item #8 Page 5 of 19 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. 6.16.010 Public nuisance defined. A. "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 3479-3480. B. "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. 6.16.015 Specific conditions constituting a public nuisance. 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 Ill 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). Oct. 6, 2020 Item #8 Page 6 of 19 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. 6.16.020 Determination of nuisance on real property. 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. 6.16.030 Right to appeal notice of violation. 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. 6.16.040 Failure to abate nuisance. 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. 6.16.050 Form and notice of nuisance abatement hearing. 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] Oct. 6, 2020 Item #8 Page 7 of 19 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) 6.16.060 Posting and service of notice of nuisance abatement hearing. 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 5 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. Oct. 6, 2020 Item #8 Page 8 of 19 6.16.070 Hearing by city council. 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. 6.16.080 Decision of city council; abatement order. 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. 6.16.090 Limitation of filing judicial action. 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. 6.16.100 Service of abatement order. A. Within 5 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 Oct. 6, 2020 Item #8 Page 9 of 19 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. 6.16.110 Nuisance abatement violation-penalty. 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 guiltyof 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. 6.16.120 Account of cost of abatement to be kept. 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. Oct. 6, 2020 Item #8 Page 10 of 19 6.16.130 Copies of abatement cost report to be served. 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. 6.16.140 Challenges to abatement cost report. 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. 6.16.150 Hearing on abatement cost report; abatement cost order. 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 5 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 5 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. Oct. 6, 2020 Item #8 Page 11 of 19 6.16.160 Abatement cost to be lien against property. 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. 6.16.170 Collection of cost of abatement. 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 conspiq.1ous 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, Oct. 6, 2020 Item #8 Page 12 of 19 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 (11release of lien") containing the information contained in paragraph 3 of this subsection 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 paragraph (B)(l) 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 Section 6.16.170(A)(3). 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 Oct. 6, 2020 Item #8 Page 13 of 19 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. 6.16.180 Strict liability offense. Violations of this chapter shall be treated as strict liability offenses regardless of intent. 6.16.190 No mandatory duty. 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. 6.16.200 Alternative means of enforcement. 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. Article II. Summary Abatement 6.16.210 General. A nuisance may be summarily abated without notice, hearing, or a warrant when immediate action is necessary to preserve or protect the public health and safety. Summary abatement actions are not subject to all of the requirements of Article I of this chapter, but instead shall be subject to the following requirements: Oct. 6, 2020 Item #8 Page 14 of 19 6.16.220 Determination of summary abatement. A. The city manager or designee shall make a determination that a public nuisance exists that poses an immediate risk to the health, safety, or welfare of the public, persons in the city, or the environment. B. Whenever possible, the city shall attempt to contact the responsible party and property owner, as defined in Section 1.10.010, to request abatement of the nuisance prior to the city proceeding with summary abatement. If the responsible party and property owner are not available, or are incapable, or unwilling to abate the nuisance, the city may proceed with summary abatement using the minimum level of correction or abatement as necessary to eliminate the immediacy of the hazard. C. Notwithstanding the requirement in subsection (B), the city manager or designee may exercise the following powers without prior notice to the responsible party and property owner: 1. Order the immediate vacation of any tenants and prohibit occupancy until all repairs are completed. 2. Post the premises as unsafe, substandard, or dangerous. 3. Board, fence, or secure the building or site. 4. Raze and grade that portion of the building or site to prevent further collapse and remove any hazard to the general public. 5. Make any minimal emergency repairs as necessary to eliminate any imminent life safety hazard. 6. Take any other action as reasonably appropriate under the circumstances of an immediate hazard. 7. Exercise any ofthe summary abatement powers listed in this subsection to remove items placed or stbred on city property, sidewalks, or public rights-of-way. 8. Pursue any administrative or judicial remedy to abate any remaining public nuisance. 6.16.230 Summary abatement cost report. A. The city manager or designee shall maintain the following records and shall prepare a report of summary abatement that contains the following: 1. A description of the time, duration, type, and extent of the nuisance; 2. An evaluation of the risks to the health, safety, and welfare of the public and/or the environment caused by allowing the nuisance to continue; 3. Steps taken to contact the responsible party and property owner; Oct. 6, 2020 Item #8 Page 15 of 19 4. All costs associated with the investigation and summary abatement of the nuisance, including the costs of personnel, equipment, facilities, materials, and other external resources. B. Within 10 business days after the determination is made by the city manager or designee to summarily abate the nuisance, a notice of determination and a copy of the report of summary abatement shall be served on the responsible party, the owner of record of the parcel of land where the nuisance originated, and all persons known to have any legal interest in the property. The city may charge the responsible party or the property owner with the full costs of investigation and summary abatement of the nuisance. 6.16.240 Summary abatement hearing. A. A hearing to assess abatement costs and affirm whether immediate action was necessary to preserve or protect the health, safety, and/or welfare of the public, persons in the city and/or the environment shall be conducted before the city council at the request of the responsible party and/or the property owner. B. The responsible party and/or the property owner must file a written request for a hearing with the city clerk within 30 calendar days of receipt of the notice of determination and report of summary abatement. C. The hearing shall be scheduled before the city council within 60 calendar days of receipt of the request for a hearing. D. Within 30 calendar days of receipt of the notice of determination and the report of summary abatement, and at least 30 calendar days prior to the scheduled hearing date, the responsible party and/or property owner may file a request with the city clerk for any and all evidence and objections regarding the need for summary abatement and/or the abatement costs. E. The hearing and consideration may be continued from time to time and upon its conclusion, the city council shall, by resolution: 1. Determine whether the nuisance posed an immediate risk to the health, safety, or welfare of the public, persons in the city, and/or the environment. 2. Determine whether the responsible party was unavailable, incapable, and/or unwilling to abate the nuisance. 3. Determine the correct abatement cost. 4. If necessary, modify the report of summary abatement to conform to such findings as indicated above. 5. Confirm the report of summary abatement as presented or modified. 6. State the date of the summary abatement order. Oct. 6, 2020 Item #8 Page 16 of 19 7. Determine and state 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. F. The decision of the city council shall be final. 6.16.250 Collection of cost of summary abatement. In addition to any other applicable procedures, the cost of summary abatement may be collected in accordance with Section 6.16.170 or become a lien or special assessment against the property in accordance with Section 6.16.160. Article Ill Property Maintenance 6.16.260 Declaration of purpose and statutory authority. Every person has the duty to maintain real property under the person's control free from dirt, rocks, weeds, plant growth, waste, or other materials which are either dangerous or injurious to neighboring property or to the health or welfare of residents in the vicinity or which interfere with the use of public rights-of-way. There continues to be a need for further emphasis on maintaining unobstructed rights-of-way, particularly as to plant growth. Unless corrective measures are taken to alleviate the existing conditions and to avoid future problems in this regard, the public health, safety, and general welfare and the property values and social and economic standards of this community will be depreciated. The purpose and intent of this article is to establish standards to identify and enforce private property maintenance to the ensure plant growth, waste, and other materials do not present a public nuisance by obstructing public streets, sidewalks, or rights-of-way. This article is also intended to provide for procedures to administratively abate public nuisances caused by plant growth, waste, or other materials obstructing public streets, sidewalks, or rights-of-way. This article is authorized by California Government Code sections 39501 and 39502. 6.16.270 Definitions. For purposes of this article the following definitions apply: "Liquid waste" includes oil, other petroleum products, paint, chemicals, and hazardous waste or materials. "Litter" means small quantities of waste matter carried on or about the person including, but not limited to, beverage containers and closures, packaging wrappers, wastepaper, newspapers, magazines, or the contents of containers, closures, or wrappers. "Littering" means the act of discarding, dropping, scattering, or disposing of litter in a location or container which is not used for the proper disposal of waste. "Parking strip" means the portion of property between a public street and private property. Oct. 6, 2020 Item #8 Page 17 of 19 "Plant growth" means any flora, vegetation, or herbage. "Property" means any real property, or improvements on real property, including that portion of any lot abutting a public street over which the city has an easement for right-of-way or utility service. "Public property" means any property interest owned by, or otherwise granted to, the City of Carlsbad. "Rubbish" means non-functional, non-usable, or abandoned material or matter. Rubbish includes ashes, paper, cardboard, tin cans, dirt, cut brush, yard and garden clippings or trimmings, wood, glass, bedding, cloth, clothing, crockery, plastic, rubber by-products, litter, machinery, vehicle parts, junk, and other similar items. "Solid waste" means rubbish, broken concrete or asphalt, piles of rock, dirt, and other noncombustible materials and earth fill material not otherwise authorized by permit or ordinance for land development. "Waste" means material of any nature that constitutes rubbish, solid waste, liquid waste, or medical waste. Waste may include abandoned or unidentified personal property that is left unattended on public sidewalks and rights-of-way or other public property. Waste does not include compost piles, composting, or recyclable material properly contained and disposed of in a timely fashion. 6.16.280 Enforcement authority. The directors of community development or environmental management, and any other director or equivalent authority, authorized by the city manager or designee (collectively, "Directors") are authorized to administer and enforce the provisions of this article. The Directors or their designated enforcement officers may exercise any enforcement powers as provided in Chapter 1.10 of this Code. 6.16.290 Duty to maintain property. A. It is unlawful for any property owner or responsible party, as defined in Section 1.10.010, to place or maintain dirt, rocks, plant growth, waste, or other materials on or about adjacent sidewalks, parking strips, alleys, streets, or other public property in a manner that is either dangerous or injurious to neighboring property or the health, safety, or welfare of residents in the vicinity; or in a manner that unreasonably interferes with or unreasonably obstructs the use of public rights-of-way. Any violation of this section is a public nuisance and, as such, may be abated or enjoined from further existence or operation within the city, pursuant to the procedures set forth in Article I of this chapter, except as set forth in subsections (B) and (C) below. B. The Director may require a property owner or responsible party to erect fences, barriers, berms, or other suitable means to discourage access to the property for littering or illegal dumping. This may include the posting of signs that prohibit littering and illegal dumping. C. The Director may authorize the collection or abatement of waste from small business enterprises that abut public property under the following circumstances: 1. At the request of the affected property owner, if the Director determines that reasonable efforts were made to comply with subsections (A) or (B) listed above; or Oct. 6, 2020 Item #8 Page 18 of 19 2. When public health or safety requires such measures. D. The Director is authorized to assess costs against affected property owners for the abatement services performed by the city or its agents pursuant to Article I of this chapter. The Director's cost assessment report may be challenged pursuant to the procedures in Article I of this chapter. 6.16.300 Violations. Violations of this article may be chargeable as an infraction. The Directors may also seek injunctive relief or civil penalties in the Superior Court, or pursue any administrative penalties under Chapter 1.10 of this Code. 6.16.310 Administrative abatement procedure. Any abatement action allowed by this article shall follow the procedures set forth in Article I of this chapter, except as provided in subsections 6.16.290(B) and (C). 6.16.320 Abatement lien. The cost of removal and abatement of a property maintenance public nuisance may be assessed against the abutting or adjacent property owner and may become a lien as authorized in California Government Code Section 39502. Designated enforcement officers shall follow the procedures in Article I of this chapter for assessment, execution, and collection of the lien. Enforcement of the lien may include sale of the property. 6.16.330 Severability. If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, the decision shall not affect the validity of the remaining portions of this chapter. The city council declares that it would have adopted this chapter, and each and every section, subsection, sentence, clause, and phrase of the chapter not declared invalid or unconstitutional, without regard to whether any portion of the chapter would be subsequently declared invalid or unconstitutional. Oct. 6, 2020 Item #8 Page 19 of 19 EFFECTIVE DATE OF THIS: This ordinance shall be effective thirty days after its adoption; and the City Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a Regular Meeting of t~e Carlsbad City Council on the 22nd day of September, 2020, and thereafter PASSED, APPROVED AND ADOPTED at a Regular Meet ing of the City Council of the City of Carlsbad on the 6th day of October, 2020, by the following vote, to wit: AYES: Hall, Blackburn, Bhat-Patel, Schumacher. NAYS: None. ABSENT: None. APPROVED AS TO FORM AND LEGALITY: C?ee,~uA,e,,< CELIA A .. BREWER, City Attorney Matt Hall, Mayor ~~+,, BARBARA ENGLESON, Cityerk (SEAL)