HomeMy WebLinkAbout3824Ordinance No . 3824
AN ORDINANCE PROVIDING FOR SUMMARY AND ADMINISTRATIVE ABATEMENT OF
PUBLIC NUISANCES, RECOVERY OF THE COSTS OF NUISANCE ABATEMENT AND
INCREASING THE MAXIMUM FINE FOR MISDEMEANOR COUNTY CODE VIOLATIONS
The Board of Supervisors of the County of Butte ordains as
follows:
Section 1. Article XVT is added to Chapter 3 of the Butte County Code
to read as follows:
Article XVI
Recovery of Costs Related to Code Enforcement, Nuisance
Abatement, Permit Suspension./Revocation ax~.d other
Administrative Proceedings Reasonably Related to Code
Enforcement
Section 3-150. DEFINITIONS. For the purpose of this
Article, certain words are defined as follows:
{a.} The term "County Cade" sha11 mean the Butte
County Code.
{b.} The term "Enforcement Officer" shall include the
Director of Development Services, Building Official,
Director of the Department of Public Works, Director of
Environmental Health, Treasurer-Tax Collector, Fire Chief,
Clerk of the Board of Supervisors, Sheriff, District
Attorney, County Counsel, and their designees.
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(c.) The term "Person" means any natural person,
firm, association, club, organization, corporation,
partnership, business trust, company or other entity which
is recognized by law as the subject of rights or duties.
(d.) The term "Abatement Costs" means any costs or
expenses reasonably related to the abatement of conditions
which violate the Butte County Code, and shall include, but
not be limited to, enforcement, investigation, collection
and Administrative Costs, and the costs associated with the
removal or correction of the violation.
(e.) The term "Administrative Costs," shall include
the cost of County staff time reasonably related to
enforcement, for items including, but not limited to, site
inspections, investigations, summaries, reports, notices,
telephone contacts and correspondence, as well as tame
expended by Development Services and Auditor-controller
staff calculating the above costs and preparing itemized
invoices showing such costs. Costs for travel time for
inspections shall not be included.
(f.) The term "County" shall mean the County of Butte.
Section 3-151. ACCOLTNTTNG. The Director of Development
Services shall keep an account of the total cost of each
abatement performed by the County. The Director of
Development Services shall request that the Auditor-
Controller establish a project number to be used to account
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for the cost of each abatement carried out by the
Development Services Department, other County departments,
and/or by independent contractors retained by the Director
of Development Services.
Section 3-152. BILLING OF COSTS. Upon completion of an
abatement of conditions which violate the Butte County Cade
by the Director of Development Services, he or she sha11
send to the notified owner or occupant or appellant by
certified mail a notice stating:
1. The total Abatement Costs and Administrative
Costs; and
2. That the Abatement Costs and Administrative Casts
shall be specially assessed against and shall become a lien
against the subject property unless paid within 45 days
from the date of the notice. If the said Abatement Costs
and Administrative Costs are not paid within 45 days of the
billing date, the Director of Development Services sha11
thereafter file with the Board of Supervisors an itemized
statement of Abatement Costs and Administrative Costs.
Section 2. Existing Article XII of Chapter 14 of the Butte County
Code is hereby repealed in its entirety.
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Section 3. New Article XIT is added to Chapter 14 of the Butte County
Code to read as follows: Article XTT
ABANDONED, WRECKED, DISMANTLED OR INOPERATIVE VEHICLES
Sec. 14-51. Findings.
Pursuant to the authority granted by the state under
sections 22660 through 22664, inclusive, of the state
Vehicle Code to remove abandoned, wrecked, dismantled or
inoperative vehicles, or parts thereof, as public
nuisances, the Board of Supervisors of the County of Butte
hereby makes the following findings and declarations:
The accumulation and storage of abandoned, wrecked,
dismantled or inoperative vehicles, or parts thereof, an
private or public property, including highways, is hereby
found to create a condition tending to reduce the value of
private and public property, to promote blight and
deterioration, to invite plundering, to create fire
hazards, to constitute an attractive nuisance creating a
hazard to the health and safety of minors, to create a
harborage for rodents and insects, and to be injurious to
the health, safety and general welfare. Therefore, the
presence of an abandoned, wrecked, dismantled or
inoperative vehicle, or parts thereof, on private or public
property, except as expressly hereinafter permitted, is
hereby declared to constitute a public nuisance which may
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be abated as such in accordance with the provisions of this
Article.
Sec. 14-52. Purpose.
(a) The provisions of this Article are intended to
provide a procedure for the abatement of nuisances
consisting of abandoned, wrecked, dismantled or inoperative
vehicles, or parts thereof, and are enacted under the
authority granted by the state, under section 22660 through
22664 of the Vehicle Code.
(b} It is the intent of the Board of Supervisors to
provide that the abatement of public nuisances consisting
of abandoned, wrecked, dismantled or inoperative vehicles,
or parts thereof may be carried on either concurrently with
or separately from the abatement of other conditions, if
any, constituting a public nuisance on any premises within
the county, as deemed appropriate under the circumstances.
Sec. 14-53. Scope.
The provisions specified in this Article shall be used
in the case of a nuisance which consists solely of
abandoned, wrecked, dismantled or inoperable vehicles or
parts thereof.
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Sec.14-54. Definitions.
For the purposes of this Article, the following words
and phrases shall have the meanings respectively ascribed
to them by this section:
(a.) Abandoned Vehicle. A vehicle is considered to be
abandoned if it is left on a highway, public property, or
private property, in such inoperable or neglected condition
that the owner's intention to relinquish all further rights
or interests in it may be reasonably concluded.
(1) In reaching such a reasonable conclusion the
following wi11 be considered:
(a) The amount of time the vehicle has been
there without being moved.
(b) The condition of the vehicle.
(c) Statements from the owner and/or
witnesses if available.
(2) In reference to highways or public rights-
of-way, abandonment is presumed to have occurred if a
vehicle is parked, resting, or otherwise immobilized on any
highway or public right-of-way and lacks an engine,
transmission, wheels, tires, doors, windshield, or any
other part or equipment necessary to operate safely on the
highway in this state. Such vehicles are presumed to be a
hazard to public health, safety, and welfare and may be
removed immediately upon discovery by a peace officer or
other designated employee of the state, county, or city.
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(b.) Dismantled Vehicle. Any vehicle that is
partially or wholly disassembled.
(c.) Department of Development Services. The
Department of Development Services of the County of Butte.
(d.) Director of Development Services. The Director
of Development Services, his/her designee, or his/her
authorized representative.
(e.) Hearing Officer. The Director of Development
Services or his/her designee, unless the California Supreme
Court rules in the case of Haas v. County of San Be.rr~adino,
69 Ca1.App.4th 1019, that unilateral selection of an
administrative hearing officer by a county is
unconstitutional, ira, which case the hearing officer shall
be selected in a manner approved by the California Supreme
Court.
(f.) Highway. A way or place of whatever nature,
publicly maintained and open to the use of the public for
purposes of vehicular travel. Highway includes street.
(g.) Inoperative Vehicle. Any motor vehicle that
cannot be moved under its own power.
(h.) Qwner of the Land. The owner of the Land on which
the vehicle, or parts thereof, is located, as shown on the
last equalized assessment roll.
(i.) Owner of the vehicle. The last registered owner
and legal owner of record.
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(j .) Private Property. Property that is owned by an
individual, corporation, partnership or other entity,
excluding public entities. Property of a specific, fixed
and tangible nature, capable of being in possession and
transmitted to another, such as houses, lands, vehicles,
etc.
(k.) Public Nuisance Vehicle. Any vehicle that is
abandoned, wrecked, dismantled, or inoperative, or parts
thereof; that is or are on public or private property,
including highways; and that creates a condition tending:
to reduce the value of private and or public property, to
promote blight and deterioration, to invite plundering, to
create fine hazards, to constitute an attractive nuisance
creating a hazard to the health and safety of minors, to
create a harborage for rodents and insects, or to be
injurious to the health, safety and general welfare.
(l.) Public Property. This term means a designation
of those things which are considered as being owned by "the
public", the entire state or community, and not restricted
to dominion of a private person or entity. It may also
apply to any property owned by the state, nation, county,
municipality, or other public entity. Public Property
includes highways, roadways, roads and streets.
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(m.) Vehicle. A device by which any person or
property may be propelled, moved or drawn upon a highway,
except a device moved by human power or used exclusively
upon stationary rails or tracks.
(n.) Wrecked Vehicle. Any vehicle that is damaged to
such an extent that it cannot be operated upon the highway
is termed a wrecked vehicle.
(1) A vehicle which has been wrecked in a
traff~.c accident, and which has been removed from the
roadway to a storage facility, but which has not been
claimed by its owner will not be considered an abandoned
vehicle for the purposes of this program.
Sec. 14-55. Abandonment, of wrecked, dismantled vehicles
prohibited.
It shall be unlawful for any person to abandon, park,
store, leave or permit the abandonment, parking, storing,
or leaving of any licensed or unlicensed vehicle, or parts
thereof, which is in an abandoned, wrecked, dismantled or
inoperative condition upon any private property or public
property, within the county for a period in excess of ten
days.
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Sec. 14-56. Applicability of Article.
(a) This Article sha11 not apply to:
(1) A vehicle, or parts thereof which is
completely enclosed within a building in a lawful manner,
where it is not visible from a street, public waterway ar
other public or private property, or lawfully stored for a
lawful business purpose on the premises of a junk dealer
holding a current, valid license issued pursuant to the
provisions of Chapter 11 of this Code, and enclosed by a
fence of a type and height recommended by the Planning
Commission and included in their instructions to applicant,
as provided in Section 11-13, and as fiza.ally determined by
the Board of Supervisors; or
(2) One single vehicle, or parts thereof,
covering not more than one hundred (100) square feet of the
area of any parcel.
(3) A vehicle, or parts thereof, which is stored
or parked in a lawful manner on private property in
connection with the business of a licensed dismantler,
licensed vehicle dealer, or when such storage or parking is
necessary to the operation of agricultural activities,
operations or facilities, or appurtenances thereof, as
defined in Section 32A-2(b)(5), or a lawfully conducted
business or commercial enterprise.
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(b} Nothing in this section shalt authorize the
maintenance of a public or private nuisance as defined
under provisions of law other than Chapter 10, commencing
with section 22650, of division 11 of the state Vehicle
Code and this Article.
Sec. 14-57. Concurrent authorities.
This Article is not the exclusive regulation of
abandoned, wrecked, dismantled or inoperative vehicles
within the unincorporated area of the county. It shall
supplement, complement, and be in addition to the other
regulatory codes, statutes and ordinances heretofore or
hereafter enacted by the county, the state or any other
legal entity or agency having jurisdiction.
Sec. 14-58. Administration and enforcement of Article.
Except as otherwise provided herein, the provisions of
this Article shall be administered and enforced by the
Director of Development Services or his/her designee. In
the enforcement of this Article, such officer, or his/her
authorized representatives}, may enter upon private or
public property to examine a vehicle, or parts thereof, or
obtain information as to the identity of a vehicle, and to
remove or cause the removal of a vehicle, or parts thereof,
declared to be a nuisance pursuant to this Article.
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Sec. 14-59. Authority to remove vehicles.
When the Board of Supervisors has contracted with or
granted a franchise to any person or entity, such person or
the authorized representatives} of such entity shall be
authorized to enter upon private property or public
property to remove or cause the removal of a vehicle, or
parts thereof, declared to be a nuisance pursuant to this
ordinance.
Sec. 14-60. Notification 4f Department Of Motor Vehicles.
ta.} Within five days after the county or any officer
thereof removes, pursuant to this Article, any vehicle or
any part thereof, the Director of Developmeza.t Services or
his/her designee shall so notify the Department of Motor
Vehicles in writing identifying the vehicle or part thereof.
(b.} If any vehicle is removed pursuant to this
Article, the Director of Development Services shall forward
to the Departmex~.t of Motor Vehicles any evidence of
registration available, including registration certificates,
certificates of title and license plates.
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Sec. 14-61. Notification to Highway Patrol.
Not less than ten (10) days before the hearing provided
for in Section 14-67, the Director of Development Services
or his/her designee shall notify the California Highway
Patrol thereof identifying the vehicle or part to be
removed.
Sec. 14-62. Notification to Department of Justice.
Whenever notification, as required by Section 22$52 of
the Vehicle Code, cannot be given to the owner, the Director
of Developmez~.t Services, or his/her designee, shall cause
immediate notification to be given to the California
Department of Justice, Stolen Vehicle System, of its pending
removal. This notification sha11 be in accordance with all
provisions of Section 22853 of said Vehicle Code and Section
14-73 of this Article.
Sec. 14-63. Not To Be Reconstructed.
After a vehicle has been removed by the Director of
Development Services or authorized agents thereof pursuant
to this Article XZZ, it shall not thereafter be
reconstructed or made operative, unless it is a vehicle
which qualifies for either horseless carriage license plates
or historical vehicle license plates, pursuaxa.t to section
5004 of California Vehicle Cade, in which case, the vehicle
may be reconstructed or made operable.
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Sec. 14-64. Notice To Abate Public Nuisance.
(a.) When the Director of Development Services or
designated representative(s), determines pursuant to an
inspection of the property, that conditions existing on the
premises constituting a violation of the provisions of this
Article XII are the result of the existence on such premises
of any abandoned, wrecked, dismantled or inoperative
vehicle, or parts thereof, the Director may issue a fifteen-
day notice of intention to abate and remove the vehicle, or
parts thereof, as a public nuisance. The notice shall be
mailed by registered or certified mail with return receipt,
to the owner of the land and to the owner of the vehicle,
unless the vehicle is in such condition that identification
numbers are not available to determine ownership. This
notice shall contain:
(1) The street address and such other description
as is required to identify the premises on which the vehicle
or parts thereof are located.
(2) The identity of the vehicle or parts thereof
to be abated.
(3) A statement that the
Services has found the vehicle or
public nuisance as specified in
reference to the applicable sectic
sections of the County Code, if
Director of Development
parts thereof to be a
this Article with a
n hereof, and to other
applicable, including
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sufficient detail to provide the owner with information as
to the conditions constituting the alleged nuisance.
(4) A statement of the action required to be
taken as determined by the Director of Development Services,
and that such action is to be completed within ten days
after the mailing of the notice.
(5) A statement providing far a hearing by the
hearing examiner upon written request to the Director of
Development Services by the owner of the premises on which
the vehicle or parts thereof is located or by the owner of
the vehicle or parts thereof within. ten days after the
mailing of the notice.
(b,} The notice sha11 be sent certified mail., postage
prepaid, to the owner of the premises as shown on the latest
equalized assessment ro11 of the county using such address
as may be shown by such assessment roll or such other
address as may be known by the Director of Development
Services and to the last registered and legal owner of
record of the vehicle unless the vehicle or parts thereof
are in such condition that identification numbers are not
available to determine ownership. The failure of the
Director of Development Services to serve any person
required herein to be served sha11 not invalidate any
proceedings hereunder as to any other person duly served or
relieve any such person. duly served from any duty or
obligation imposed an him by the provisions of this Article.
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(c.) Upon issuance of the notice, the Director of
Development Services may provide additional notice by
posting a copy thereof aanspicuously on the vehicle or parts
to be abated.
(d.) Provided, however, a notice of intention to abate
shall not be required if (1) the property owner and the
owner of the vehicle have signed releases authorizing
removal and waive further interest in the vehicle ar part
thereof, or (2} all of the following coxa.ditions are
satisfied:
1} the vehicle or part thereof is inoperable due to the
absence of a motor, transmission, or wheels and incapable of
being towed;
2} the vehicle or part thereof is valued at less than
two hundred dollars ($200) by a person specified in vehicle
code section 22855;
3) the Director of Development Services has determined
that the vehicle or part thereof is a public nuisance
presenting an immediate threat to public health or safety
4} the property owner has signed a release authorizing
the removal and waiving further interest in the vehicle or
part thereof; and
5) the vehicle ar part thereof is located upon a parcel
that is either zoned for agricultural use or is not improved
with a residential structure,
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Tf a vehicle is removed pursuant to subdivision {2), prior
to final disposition, the registered and legal owner shall
be notified by the Director of Development Services of the
intent to dispose of the vehicle or part thereof. Tf the
vehicle or part is then not claimed and removed from the
scrapyard, automobile dismantlerOs yard or public disposal
area within 12 days after the notice to dispose of vehicle
is mailed, disposition may proceed without further notice or
administrative proceedings. Neither the county nor its
contractor shall be liable for damage to a vehicle or part
thereof caused by removal pursuant to this subsection.
Sec. 14-65. Abatement by owner.
The owner of a vehicle may abate the nuisance
himself/herself, after receiving notice from the abatement
authority. This may be accomplished by either (1) verifying
the delivery of the vehicle to a licensed dismantler for
dismantling or scrap,{2} verifying lawful storage of the
vehicle within a building, or {3) restoring the vehicle to
operating condition within a reasonable time, as determined
by the Director of Development Services.
Sec. 14-66. Hearing--Request.
(a.) Upon written request by the owner of the vehicle
or owner of the land on which the vehicle or parts thereof
is located, received by the Director of Development Services
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within ten days after the mailing of the notice(sy of
intention to abate and remove, a public hearing shall be
held by the said Director or his/her designee on the
question of abatement and removal of the vehicle, or parts
thereof, as an abandoned, wrecked, dismantled or inoperative
vehicle, and the assessment of the Administrative Costs and
the Abatement Costs, as defined in Butte County Code Section
3-150, against the property on which it is located.
(b.y If the owner of the land submits a sworn written
statement denying responsibility for the presence of the
vehicle on his/her land within such ten-day period, said
statement shall be construed as a request for a hearing,
which does not require his/her presence. Notice of the
hearing shall be mailed, by registered or certified mail, at
least ten days before the hearing, to the owner of the land
and to the owner of the vehicle, unless the vehicle is in
such condition that identification numbers are not available
to determine ownership. If such a request for hearing is not
received within said ten days after mailing of the notice of
intention to abate anal remove, the Director shall have the
authority to abate and remove the vehicle, or parts thereof,
as a public nuisance without holding a public hearing.
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Sec. 14-67. Hearing By Director of Development Services.
(a.) All hearings under this Article shall be held
before the Director of Development Services oz his/her
designee (subject to the exception in Section 14-54 above,
relating to the pending case of Haas v. County of San
Bernadino, 69 Cal.App.4th 119), who shall hear all facts
and testimony he/she deems pertinent. Such facts and
testimoza.y may include testimony on the condition of the
vehicle, or parts thereof, and the circumstances concerning
its location on the private property or public property. The
Director shall not be limited to the technical rules of
evidence. The owner of the land may appear in person at the
hearing, or present a sworn stateme~a.t in. time for
consideration at the hearing, and deny responsibility for
the presence of the vehicle on the land, with his/her
reasons for such denial.
(b.) The Director of Development Services may impose
such conditions and take such other action as he/she deems
appropriate under the circumstances to carry out the purpose
of this Article. He/she may delay the time for removal of
the vehicle, or parts thereof, if, in his/her opinion, the
circumstances justify it. At the conclusion of the public
hearing, the Director of Development Services may find that
a vehicle, or parts thereof, has been abandoned, wrecked,
dismantled, or is inoperative on private or public property
and order the same removed from the property as a public
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nuisance and disposed of as hereinafter provided, and
determine the Administrative Costs and the Abatement Costs,
as defined in Butte County Code Section 3-150, to be charged
against the owner of the land. The order requiring removal
shall include a description of the vehicle, or parts
thereof, and the correct identification number and license
number of the vehicle, if available at the site.
tc.) If it is determined at the hearing that the
vehicle was placed on the land without consent of the owner
of the land, and that he/she has not subsequently acquiesced
in its presence, the Director of Development Services shall
not assess Abatement Costs and Administrative Costs against
the property upon which the vehicle is located, or otherwise
attempt to collect such Costs from such owner of the land.
(d.) Tf the owner of the land submits a sworn written
statement denying responsibility for the presence of the
vehicle on his/her land but does not appear, or if an
interested party makes a written presentation to the
Director of Development Services but does not appear, he/she
shall be notified in writing of the decision.
Sec. 1468. Appeal from decision.
(a.} Any interested party may appeal the decision of
the hearing officer by filing a written notice of appeal
with the hearing officer within five days after his/her
decision.
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(b.) Such appeal shall be heard by the Board of
Supervisors which may affirm, amend or reverse the order or
take other action deemed appropriate.
(c.) The clerk of the board shall give written notice
of the time and place of the hearing to the appellant and
those persons specified in section 14-66.
(d.) In conducting the hearing, the Board of
Supervisors shall not be limited by the technical rules of
evidence.
(e.) No appeal may be taken from an order issued
pursuant to section 14-70.
Sec. 14-69. Removal and disposition of vehicle after
hearing.
(a.) The vehicle, or parts thereof, may be disposed of
by removal to a scrap yard or automobile dismantler's yard
upon or after occurrence of any one ar more of the
following:
(1) Five days after adoption of the order
declaring the vehicle, or parts thereof, to be a public
nuisance.
(2) Five days from the date of mailing of notice
of the decision, if such notice is required.
(3) Ten days after action of the Director of
Development Services authorizing removal.
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(4} Five days after a decision from an appeal
which requires removal as part of the action.
{b.) zf the hearing officer determines that the vehicle
is a public nuisance and must be removed, Abatemeza.t Costs
and Administrative Costs may be specially assessed and an
abatement lien recorded as provided in Government Code
Section 54988 and this Article.
Sec.14-70. Removal of vehicle without hearing.
If neither vehicle nor property owner requests a
hearing within fifteen days of mailing the notice of
intention to abate and remove the vehicle, or part thereof,
or if both the legal owner of the vehicle and the owner of
the property sign waivers authorizing removal of the
vehicle, or part thereof, it may be abated by removal
without a hearing. The Director of Development Services
sha11 direct such removal by issuance of an order, subject
to conditions set forth in this Article XII, excepting only
the requirements of a hearing.
Sec. 14-71. Notice to Department of Motor Vehicles;
evidence of registration, title, etc.
Within five days after the date of removal of the
vehicle, or parts thereof, notice shall be given to the
Department of Motor Vehicles identifying the vehicle, or
parts thereof, removed. At the same time, there sha11 be
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transmitted to the Department of Motor Vehicles any evidence
of registration available, including, but not limited to,
registration certificates, certificates of title, and
license plates.
Sec. 14-72. Collection of Administrative Costs and
Abatement Costs.
If the Administrative Costs and the Abatement Costs
which are charged agains t the owner of a parcel of land
pursuant to this Article are not paid within thirty days of
the date of the order, the Director of Development Services
shall record an abatement lien, as is authorized by
Government Code Section 54988. Such costs shall also be
specially assessed against the parcel by the Auditor-
Cantroller's Office and added to the property owner's tax
billing as a special assessment, pursuant to Government Code
Section 54988. Such assessmexa.t shall have the same priority
as other county taxes.
Sec. 1473. Adoption by Reference to Section 22660
of the Vehicle Cade.
A11 of the provisions of Section 22560 of the
Vehicle Code are hereby adopted by reference as a part of
this ordinance. In the case of any conflict between the
provisions of this Article and the provisions of said
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Section 22650, the provisions of said Section 22660 shall
prevail.
Sec. 1.~~-74. Other abatement procedures.
The provisions of this Article shall not in any manner
limit or restrict the County or the District Attorney, or
any other authorized entity from enforcing County
ordinances, abating statutory nuisances, or employing any
remedy available at law or in equity.
Section 4. Existing Chapter 32A of the Butte County Code is hereby
repealed in its entirety.
Section 5. New Chapter 32A of the Butte County Code is hereby added to
read as follows:
CHAPTER 32A
PROPERTY MAINTENANCE AND ABATEMENT OF NUISANCES
Sec . 32A--1. Purpose .
(a.) It is the intent of the Board of Supervisors of
the County of Butte in adopting this Chapter to provide a
comprehensive method for the identification and abatement of
public nuisances within the County of Butte.
(b.} The provisions of this Chapter shall apply
gexa.erally to all property throughout the unincorporated area
of the County of Butte wherein any of the conditions
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hereinafter specified are found to exist; provided, however,
that when any condition which would constitute a violation
of this Chapter is duly authorized under any applicable
County, State or Federal law, it shall not be deemed to
violate this Chapter.
(c.y The provisions of this Chapter are to be
supplementary and complementary to all of the provisions of
the Butte County Code, applicable State law and any law
cognizable at common law or in equity. Nothing herein shall
be read, interpreted or construed in any manner so as to
limit any existing right or power of the County of Butte or
any other authorized governmental entity to enforce County
ordinances, abate any and all nuisances, or employ any
remedy available at law or in equity.
(d.) The further purpose of this Chapter is to remove
conditions of property hereinafter described and declared to
be public nuisances which have a blighting influence on
properties in the vicinity and/or are detrimental to the
health, safety and/or welfare of the residents of the County
and particularly residents of the urbanized areas of anal
entry points into the County of Butte.
Sec. 32A-2. Condition Creating Public Nuisance.
(a.) Public Nuisance. A public nuisance sha11 be
deemed to exist when. any of the following conditions or
circumstances are present:
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(~.} Anything which is injurious to health, poses a
significant potential to cause economic and/or physical
injury or damage to persons or property, or constitutes a
significant detriment to the prevention or suppression of
fire, or significantly interferes with the provision of
emergency services to the public.
(2} Anything which is indecent or offensive to the
senses, or an obstruction to the free use of property so as
to unreasonably interfere with the comfortable enjoyment of
life or property, or unlawfully obstructs the free passage
or use in the customary manner of any navigable lake, river,
bay, stream, canal, or basin or of any public park, square,
street or highway and at the same time affects an entire
community or neighborhood, or any considerable number of
persons, although the extent of the annoyance or damage
inflicted upon individuals and/or property may be unequal.
(b.) Exclusion of Legitimate Agricultural Operations:
(Z} Tt is the declared policy of this county to
conserve aza.d protect and encourage extensive as well as
intensive agricultural production. v~iere nonagricultural
land uses extend into agricultural areas or exist side by
side, agricultural operations often become the subject of
nuisance complaints. As a result, agricultural operations
are sometimes forced to cease operations, and many others
are discouraged from making investments in farm
improvements. Tt is the purpose and intent of this section
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to reduce the loss to the county of its agricultural
resources by limiting the circumstances under which
agricultural operations may be deemed to be in violation of
the Butte County Code or any county resolution or
regulation. This section is not to be construed as to any
way modify or abridge the state law set out in the
California Civil Code relative to nuisances but rather is
only to be utilized in the interpretation and enforcement of
the provisions of this Code and county regulations and
practices.
(2) No agricultural activity, operation, or
facility, or appurtenances thereof, conducted or maintained
in a manner consistent with proper and accepted customs and
standards, as established and followed by similar
agricultural operations in the same locality, shall be or
become a nuisance, private or public, due to any changed
condition in or about the locality, after the same has
lawfully been in continuous operation for more than three
years, if it was not a nuisance at the time it began.
(3) Subsection (b) (2), above, shall not apply if
the agricultural activity, operation, or facility, or
appurtenances thereof obstructs the free passage or use, in
the customary manner, of any navigable lake, river, bay,
stream, canal, or basin, or any public park, square, street,
or highway.
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(4) This subsection (b} shall not invalidate any
provision contained in the California Health and Safety
Code, Fish and Game Code, Food and Agricultural Cade, or
Division 7 (commencing with Section 13000) of the Water
Code, if the agricultural activity, operation, or facility,
or appurtenances thereof, constitute a nuisance, public or
private, as specifically defined or described in any such
provision.
(5} For purposes of this section, the term
"agricultural activity, operation or facility, or
appurtenances thereof" shall include but not be limited to
the cultivation and tillage of the soil; dairying; the
production, cultivation, growing and harvesting of any
agricultural commodity, including preparation for market,
delivery to storage or to market; or to carriers for
transportation to market.
(c.} Other Exclusions:
(1} Lawfully stored personal property kept
for a lawful business purpose on the premises of a junk
dealer holding a current, valid license issued pursuant to
the provisions of Chapter 11 of this Code, and enclosed by a
fence of a type and height recommended by the Planning
Commission and included in their instructions to applicant,
as provided in Section 11-13, and as finally determined by
the Board of Supervisors; and
28
{2} Lawfully stored personal property, the
total amount of which covers not more than one hundred (100}
square feet of the area of any parcel.
(d.} Burden of Proof of Public Nuisance: Where a
condition or circumstance exists that is deemed to be a
public nuisance the burden of proof shall rest with the
official or agency making the allegation or determination
and shall be based on a preponderance of the evidence as
follows:
(1) Evidence supporting an allegation of the
existence of a public nuisance as defined in subsection (a)
1, above, as related to health and safety issues, shall
demonstrate that the condition or circumstance poses a
threat or detriment to surrounding property, or that
reasonable measures have not been instituted to prevent
injury to persons through the physical containment or
restriction of access to the condition or circumstance, or
that it could significantly contribute to the breeding of
vectors or the spread of disease, or that it poses a
significant fire hazard, or that access to residences,
businesses, public buildings or any other place where
emergency services may be required has been unpaired.
{2} Evidence supporting an allegation of the
e~cistence of a public nuisance, as defined in subsection (a)
2, above, shall demonstrate that a reasonable person would
consider the condition or circumstance to be indecent or
29
offensive to the senses or otherwise detrimental and that
the alleged nuisance is, in fact, public in nature as it
relates to the community, neighborhood or location where the
condition or circumstance exists. In addition., the
existence of a condition or circumstance that is not a
health or safety hazard as defined in subsection (a) 1,
above, and that is otherwise screened from public view, and
does not emit offensive odors or sound (except as would
reasonably occur from agricultural operations excluded in
subsection (b? 2, above, or from activity occurring upoza any
property in the County zoned OS/ED ,Sports and Entertainment
Zone, as described in Butte County Code Section 24-223,
where all county, state and federal laws have been complied
with, so that such activity occurring on property zoned
"S/E" has been conducted in a lawful manner} beyond the
property boundaries, shall not be considered to be a public
nuisance.
(e.) Abatement of Public Nuisance: Abatement of a
condition or circumstance that is alleged to be a public
nuisance shall be encouraged to be on a voluntary basis on
the part of the violator or, when necessary, performed by
official action. rr~here the condition or circumstance poses
a serious and immediate threat to health or safety as
defined in subsection (a) 1, above, summary abatement sha11
be permitted. Otherwise, abatement by official action shall
only be carried out after a determination has been made,
30
through the prescribed hearing process, that a public
nuisance exists and the determination has not been appealed
within the specified period of time. Policy regarding
mandatory abatement shall provide the accused with an
opportunity to effect the abatement after being so ordered
at the hearing, and prior to any officzal action to abate.
Sec. 32A-3. Director of Development Services. The
Director of Development Services is hereby designated to
enforce this Chapter. Whenever a public nuisance as defined
herein exists anywhere within the unincorporated limits of
the County of Butte, the Director of Development Services,
or his or her designee, may allege such condition to be a
public nuisance and may exercise such powers that may be
necessary or convenient to carry out and effectuate the
purposes and provisions of this Chapter.
Sec. 32A-4. Duty.
(a.) No person or entity shall cause, permit, maintain,
conduct or otherwise allow a public nuisance as defined in
this Chapter to exist within the unincorporated limits of
the County of Butte. It shall be the duty of every owner,
occupant, and person that controls any land or interest
therein within the unincorporated area of the County of
Butte to remove, abate, and prevent the reoccurrence of the
public nuisance upon such land.
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(b. } Exception: When an owra.er, occupant, or person
otherwise legally in control of a parcel, as specified in
subsection (a}, above, on which a violation of the
provisions of this Chapter is determined to exist did not
cause, permit, or otherwise allow the existence of the
violation and cannot legally abate said violation but has
reasonably taken action. to do so within the provisions of
applicable law, said persons} shall not be held accountable
for the violation.
Sec. 32A-5. Procedure for Abating Public Nuisances
Generally.
(a.} Whenever the Director of Development Services
determines that a public nuisance exists he or she, or his
or her designee, sha~..l request in writing that the public
nuisance be abated within 72 hours. If the conditions}
continue beyond that 72-hour period, the Director of
Development Services, or his or her designee, may set the
matter for hearing. zf the matter is set for hearing, the
Director of Development Services or his or her designee,
shall post the property upon which the public nuisance
exists and shall mail, with a proof of service, notices to
those persons known to be in possession of the property, if
any, and to persons shown on the latest County tax roll to
be the owners of the property at least ten (10} days prior
to the hearing, unless thirty (30} days or other notice is
32
required by Health and Safety Code Section 17980 or other
state law. Both the mailed and posted notice sha11 be in
substantially the following farm:
NOTICE TO ABATE NUISANCE
The owner(s) and occupant(s) of real property described
on the latest equalized Butte County tax roll as A.P. No.
and having a street address of
is (are) hereby notified to appear before a Hearing Officer
of the County of Butte at (insert place) ,
on 20_, at the hour of o'clock
_.m., to show cause, if any there be, why the use of said
real property should not be found to be a public nuisance
and abated pursuant to the Butte County Code. After
hearing, if a violation is found to exist, the cost of
abating such violation, including, but not limited to, the
cost of the Hearing Officer, the cost of prior time and
expenses associated with bringing the matter to hearing, the
cost associated with any appeals from the decision of the
hearing officer, the cost of judicially abating the
violation, the cost of labor and material xa.ecessary to
physically abate the violation, and the cost of securing
expert and other witnesses wi11 become a lien against the
subject property and wi11 also be assessed against the
property in the same manner as taxes. The abatement lien
shall be recorded and shall have the same force and effect
33
as an abstract of judgment which is recorded as a money
judgment obtained in a court of law. ~f you fail to appear
at the hearing or if you fail to raise any defense or assert
any relevaza.t point at the time of heariza.g, the Couxa.ty wi11
assert, in later judicial proceedings to enforce an order of
abatement, that you have waived all rights to assert such
defenses or such points.
In preparing for such hearing, you should be aware that
if an initial showing is made by the County, sufficient to
persuade the hearing officer that a public nuisance exists
on your property, you wi11 then have the burden of proving
that no public nuisance exists on your property. Therefore,
you should be prepared to introduce oral and documentary
evidence proving why, ixa your opinion, your use of the
property is not a public nuisance as defined in the Butte
County Code. A copy of the Butte County Code Chapter
relating to abatemex~.t hearings is enclosed to assist you in
the preparation of your presentation.
3f an initial showing sufficient to persuade the
hearing officer that a public nuisance exists on your
property is made by the Code Enforcement Officer, your
failure to sustain the burden of showing that no public
nuisance exists on the property may result in an
administrative decision ordering the abatemeza.t of uses or
conditions on your property which are found to be a public
3~4
nuisance and may also result in a later judicial order to
the same effect.
Further, if the hearing officer finds that a public
nuisance exists on your property and you fail to abate the
nuisance promptly, the county may abate the nuisance. If
the County abates the nuisance, you may be responsible for
the actual costs of the abatement, including the costs to
the County of the administrative hearing. If such abatement
casts are not paid within thirty days of the date of the
hearing officer's order, such costs will be specially
assessed against your pazcel by the Auditor-Controller's
Office and added to the your tax bill as a special
assessment. Such special assessments have the same
priority, for collection purposes, as other county taxes
and, if not paid, may result in a forced sale of your
property.
Finally, zf the Hearing Officer finds that a public
nuisance exists on your property, a violation of the Butte
County Cade, the County will contend that you are bound by
such finding at any subsequent judicial action to enforce
the Hearing Officer's order.
IMPORTANT: READ THIS NOTICE CAREFULLY. FAILURE TO
APPEAR AND RESPOND AT THE TIME SET FORTH IN THIS NOTICE WILL
LIKELY RESULT TN ADMINISTRATIVE AND/OR JUDICIAL ABATEMENT
AND TERMINATION OF USES OF OR CONDITIONS ON YOUR PROPERTY
WHICH THE DIRECTOR OF DEVELOPMENT SERVICES CONTENDS ARE IN
35
VIOLATION OF THE BUTTE COUNTY CODE.
Dated: BUTTE COUNTY DIRECTOR OF
DEVELOPMENT SERVICES
By:
Enclosure: Butte County Code Chapter 32A
(b.) The Hearing Officer shall be selected by the
Director of Development Services or his/her designee, unless
the California Supreme Court rules in the case of Haas v.
County of San Bernadino, 69 Cal.App.4th 1019, that
unilateral selection of an administrative hearing officer by
a county is unconstitutional, in which case the hearing
officer shall be selected in a manner approved by the
California Supreme Court.
(c.) At the time and place set for the hearing, the
Hearing Officer shall review the Director of Development
Services' decision ordering cessation of the alleged public
nuisance to determine whether such decision conforms to law
and is supported by substantial evidence. The Hearing
Officer shall hear testimony and receive written and/or
documentary evidence relating to the alleged violation.
Additional procedural rules may be adopted by resolution of
the Board of Supervisors. The Hearing Officer shall tape
record the hearing or engage the services of a certified
court reporter to report the hearing and shall preserve the
36
record of the hearing and all photographs and demonstrative
and documentary evidence introduced at the time of the
hearing for a period of three years.
(d.) Within thirty (30) days after the hearing is
closed, the Hearing Officer shall render his or her written.
decision relating to the existence or nonexistence of the
alleged public nuisance. If a violation is found to exist,
the decision shall include a statement of the costs incurred
by the County in abating the violation (Abatement costs),
and shall also include an order that administrative costs of
abatement (Administrative costs) incurred to date be paid to
the County within twelve (12) days. The decision shall
contain findings of fact and conclusions of law. A copy of
the decision shall be mailed by certified mail, return
receipt requested, to the person or persons shown on the
last County tax roll to be the owners of the property which
is the subject of the hearing and the occupant of such
parcel, if any. All other persons noticed pursuant to this
Section 32A-5 shall be mailed a copy of the decision by
first class mail, postage prepaid.
(e.) The decision of the Hearing Officer shall be
final on the date the certified mail set forth in subsection
(d.), above, is deposited in the mail. The Hearing Officer
shall notify the Clerk of the Board of Supervisors of his or
her decision, the date upon which the decision became final
and the last date upon which an appeal may be made. If the
37
Board of Supervisors does not receive an appeal within
twelve (12) days of the date the Hearing Officer's decision
becomes final, the Board shall be deemed to have ratified
and adopted the Hearing Officer's decision. If it is the
decision of the Hearing Officer that a public nuisance
exists, the owner of the property shall be responsible for
paying all of the County's Abatement costs and
Administrative costs, including but not limited ta, those
cost items set forth in the notice required by Subsection
(a.) above.
(f.} Within the twelve (12) day period referred to in
Subsection (e.), above, the owner ar occupant of the
property, the Director of Development Services, or any other
interested person may appeal the decision of the Hearing
Officer to the Board of Supervisors of the County of Butte
if such individual or entity does all of the following:
(1) Delivers a written appeal to the Clerk of
the Board of Supervisors within the twelve (12) day appeal
period; and
(2) Delivers to the Clerk of the Board of
Supervisors within the 12-day appeal period the appeal fee
in the sum of Fifty ($50.00) Dollars.
(g.) Within fifteen (15) days of being notified by
the Clerk of the Board of Supervisors, the appellant shall
deposit with the Clerk of the Board an amount of money equal
to the estimated cost of transcribing the oral proceedings
38
before the Hearing Officer and the cost of duplicating seven
copies of the administrative record, including all exhibits
introduced at the hearing. The appellant shall be
responsible for the cost of the appeal and record; provided,
however, if the Board upholds the appeal and finds that no
violation exists, then the costs of the appeal sha11 be
borne by the County.
(h.} In the event of an appeal to the Board of
Supervisors, the Board shall decide the appeal based solely
on the administrative record and transcript of the hearing.
The Board shall review the record, transcript and evidence
and then adopt, reject or modify the decision of the Hearing
Officer.
(i.) In the event of an appeal to the Board of
Supervisors, the Board sha11 decide the appeal within ninety
(90) days after receipt of the administrative record.
Notice of the Board's decision sha11 be mailed to the
property owner, the Director of Development Services, the
Hearing Officer and those persons receiving notice pursuant
to Section 32A~5, above.
(j.) If a final decision of the Hearing Officer or
the Board of Supervisors finds that a vialation exists, the
owner of the property shall be responsible for paying all of
the County's Abatement costs and Administrative costs,
including, but nat limited to, those cast items set forth in
the notice required by Subsection (a.} above. Abatement
39
costs and Administrative casts shall become a lien against
the property as is authorized by the Government Code and the
following paragraph:
(k.) The Board's final decision shall also order that
if the Abatement costs and Administrative costs which are
charged against the owner of a parcel of land pursuant to
this Chapter are not paid within forty-five days of the date
of the order, such costs shall be specially assessed against
the parcel by the Auditor-Controller's Office and added to
the property owner's tax billing as a special assessment, as
provided by Government Code Section 54988 and that the
Director of Development Services shall record an abatement
lien, as is authorized by Government Code Section 549$8.
Such assessment shall have the same priority as other county
taxes.
(l.) The notice of abatement lien shall, at a minimum,
identify the record owner or possessor of the property, set
forth the date upon which abatement of the nuisance was
ordered or deemed ordered by the Board of Supervisors,
describe the real property subject to the lien, set forth
the amount of the Abatement costs and Administrative costs
incurred to date and, if applicable, the date upon which the
abatement was complete. Yf the abatement has not yet been
completed, the notice shall so state and shall also indicate
that the lien is a partial lien and that additional
Abatement costs will be incurred in the future.
40
It is the intent of the Board of Supervisors that
Abatement costs and Administrative costs incurred after the
filing of the notice of abatement lien relate back to the
date upon which the lien was recorded for purposes of
priority; however, in order to preserve its rights, after
all .Abatement costs and Administrative costs have been
incurred and the abatement is complete, the Department of
Development Services shall cause a supplemental notice of
abatement lien to be recorded. The supplemental notice
shall contain all of the information required for the
original notice and shall also refer to the recordation date
and the recorder's document number of the original notice.
(m.) Decisions of the Hearing Officer or Board of
Supervisors shall order abatement within a time certain.
The order may be recorded by the Director of Development
Services. In the event of such recordation and in the
further event that the violation is corrected, a notice of
such correction shall be recorded. The Director of
Development Services is authorized to prepare and record a
notice of correction. Correction of the violation shall not
excuse the property owner's .liability for casts incurred
during the administrative abatement process Abatement costs
and Administrative costs as defined in Section 32A-7}. If
the property owner has not fully compensated the County for
costs incurred during the administrative abatement process,
a notice of correction sha11 not be recorded unless the fee
41
specified in Section 41-9 has been paid. Payment of the fee
specified in Section. ~~.-9 does not excuse the property
owner's liability for costs incurred during the
administrative abatement process (Abatement Costs and
Administrative Costs as defined in Section 32A-7).
tn.) The County may, in its discretion, commence a
judicial action to enjoin a violation of Chapter 32A without
the necessity of first going through the administrative
procedures set forth herein.
Sec. 32A--6. Alternative Hearing Procedure. If all
Hearing Officers are unavailable to conduct hearings for any
reason, the Board of Supervisors shall conduct nuisance
abatement hearings. Should the Board of Supervisors conduct
said hearings all notice provisions and hearing procedures
set forth herein shall apply. The decision of the Board of
Supervisors shall be final.
Sec. 32A-7. Abatement Costs and Administrative Costs.
(a.) The term "Abatement Costs" means any costs or
expenses reasonably related to the abatement of conditions
which violate the Butte County Code, and shall include, but
not be limited to, enforcement, investigation, collection
and administrative costs, and the costs associated with the
removal or correction of the violation.
42
(b.) The term "Administrative Costs," shall include
the cost of County staff time reasonably related to
enforcement, for items including, but not limited to, site
inspections, investigations, summaries, reports, notices,
telephone contacts anal correspondence, as well as time
expended by Development Services and Auditor-controller
staff calculating the above costs and preparing itemized
invoices showing such casts. Costs for travel time for
inspections shall not be included.
Sec. 32A-8. Non-Exclusive Remedy. This Chapter is
cumulative to all other remedies now or hereafter available
to abate or otherwise regulate or prevent public nuisances.
Section 6. Section 1-7 (a) of the Butte County Code is amended to zead
as follows:
Section 1-7. General penalty; continuing violations
(a.) Whenever in this Code or in any other ordinance of
the county or in any rule or regulation promulgated pursuant
thereto, any act is prohibited or made or declared to be
unlawful or an offense, or the doing of any act is required
or the failure to do any act is declared to be unlawful or a
misdemeanor, where no specific penalty is provided for, the
violation of any such provision of this Code or any other
ordinance, rule or regulation of the county shall be
punished by a fine not exceeding ~i~~z~~~d ~allars, one
thousand dollars (~`~^~~ $1, 000) or imprisonment for a term
43
not exceeding six (6) months, or by both such fine and
imprisonment.
/ / /
/ / /
/ / /
Section 7. Severability.
If any provision of this Ordinance or the application thereof to
any person or circumstances is for any reason held to be invalid by a
court of competent jurisdiction, such provision shall be deemed
severable, and the invalidity thereof sha11 not affect the remaining
provisions or other applications of the Ordinance which can be given
effect without the invalid provision or application thereof.
Section 8. Effective Date and Publication.
This Ordinance shall take effect thirty (30) days after the date
of its passage. The Clerk of the Board of Supervisors is authorized
and directed to publish this ordinance before the expiration of
fifteen (15) days after its passage. This Ordinance sha11 be
published once, with the names of the members of the Board of
Supervisors voting for and against it, in the
Chico
Enterprise, a newspaper of general circulation published in the County
of Butte, State of California.
PASSED AND ADOPTED by the Board of Supervisors of the County of
Butte, State of California, on the 23rd day of July__,:_ ____ ,
2002, by the following vote:
44
AYES; Supervisors Beeler, Dolan, Houx, Yamaguchi and Chair ,Tosiassen
NOES : None
ABSENT : None
NOT VOTING : None
JOS~ASSEN, Chair of the
Butte Co~.nty Board of Supervisors
ATTEST:
Paul E. McIntosh, Chief Administrative
Office and clerk of the Board
g:\ordinance\nuisanc5.doc
45