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When the Director of Public Works (“Director”) or Building Official becomes aware of the possible existence of a nuisance in the town, where feasible the Director or Building Official, or his or her designee, shall contact the owner or occupant to confirm the existence of nuisance conditions and to request voluntary compliance with this code.
(Ord. 734, passed 6-18-2008; Am. Ord. 831, passed 5-1-2019)
Notwithstanding anything in this code to the contrary, the town may only recover its attorneys’ fees in any action, administrative proceeding or special proceeding commenced by the town to abate a public nuisance, to enjoin violation of any provision of this code, including its adopted codes, or to collect a civil debt owing to the town, if the town elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees. In these cases, the prevailing party shall be entitled to recover all costs incurred therein, including reasonable attorneys’ fees and costs of suit. In no action, administrative proceeding or special proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the town in the action or proceeding. The town is the prevailing party if any portion of the notice to abate is upheld.
(Ord. 831, passed 5-1-2019)
(A) When the enforcement officer finds that a nuisance condition exists upon any property in the town, he or she may, or upon the direction of the Town Council shall, serve a notice to abate upon all owners and all responsible parties, directing them to abate or cause the nuisance condition(s) upon the premises to be abated on or before a specified compliance date. When ordering abatement of a nuisance, the enforcement officer may order a condition to be abated by repair, rehabilitation, demolition, removal or termination. The notice shall also state that any owner or responsible party may file a written request for a hearing with the Town Clerk to dispute the alleged conditions within ten days of service of the notice.
(B) All owners and responsible parties must be served with the notice to abate in the manner required by § 1.12.070 (“Methods of Service”).
(C) The procedure in division (A) does not apply to public nuisances constituting an imminent hazard. In such instances, the provisions in § 1.12.115 shall be followed.
(D) An owner or responsible party may appeal a notice to abate by filing a written request for an appeal with the Town Clerk within ten days of service of the notice to abate. The written appeal shall identify the property address, specify the grounds for the appeal, list the date of the notice to abate being appealed from and be signed by the appellant. In the event an owner or responsible party files a timely request for hearing, the Town Clerk and hearing officer shall schedule the hearing. The hearing shall be conducted no later than 60 days of receipt of the request, unless otherwise agreed to in writing by the parties. The Town Clerk shall send written notice of the location, time and date of the hearing at least ten days in advance of the hearing date.
(E) Failure of any owner or responsible party to timely appeal the notice to abate constitutes a waiver of the right to appeal a notice to abate or seek judicial review, and the nuisance conditions shall be deemed confirmed. Such failure shall also constitute a failure to exhaust available administrative remedies. If the owner or responsible party fails to appeal the notice and if the nuisance condition has not been abated on or before the compliance date, the enforcement officer may, without any administrative hearing, cause the abatement of the nuisance condition upon the premises.
(Ord. 831, passed 5-1-2019)
(A) Any notice or document required to be served under this chapter may be served by certified mail with return receipt requested, by first class mail, or by personal service. Service is deemed effective on the date it is personally delivered or placed in a U.S. Postal Service receptacle.
(B) Any notice or document issued to an owner must be sent to the mailing address on the last equalized assessment roll of the Marin County Assessor’s Office, and the notice must be sent to the property address and posted at or upon the main entrance of the building or structure or at another prominent location on the real property.
(C) If there is no known address for any responsible party, the notice must be sent to the property address and posted at or upon the main entrance of the building or structure or at another prominent location on the real property.
(D) Failure of any owner or responsible party to receive a document properly served pursuant to this chapter does not affect the validity of the notice or document, service, or any action or proceeding pursuant to this chapter.
(Ord. 831, passed 5-1-2019)
In the event a hearing is timely requested pursuant to § 1.12.065, the hearing shall be conducted pursuant to the following procedures:
(A) At the time and place designated in the notice of hearing, the hearing officer shall hear and consider all relevant evidence, including but not limited to, applicable staff reports, oral evidence, physical evidence and documentary evidence regarding the alleged nuisance, and proposed method of abatement. The hearing may be continued from time to time.
(B) Failure of the owner or responsible party to appear at the hearing shall be deemed a waiver of the right to a hearing and an admission by the owner or responsible party of the existence of the nuisance condition charged. In the event of such failure to appear, the hearing officer may order that the nuisance condition be abated by the enforcement officer. Such failure to appear shall also constitute a failure to exhaust available administrative remedies.
(C) The Town shall bear the burden of proof to demonstrate, by a preponderance of the evidence, that a nuisance exists and that the proposed mechanism for abatement is appropriate, if specified in the notice to abate. The issuance of a notice to abate constitutes prima facie evidence of the existence of a violation. The town need not demonstrate that the proposed mechanism for abatement is either the most appropriate or least expensive.
(D) The hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. However, irrelevant or unduly repetitious evidence may be excluded.
(E) Prior to conclusion of the hearing, if the owner or responsible party is present, the hearing officer may request the owner or responsible party to sign a consent to enter and perform work. The permission given shall be used only if the nuisance condition is determined to exist and is not abated by the schedule of correction specified in the hearing officer’s decision.
(F) If the owner or responsible party does not provide written consent, entry onto the property may be made by obtaining verbal permission from the owner or a responsible party, or by means of an inspection or abatement warrant, or by any other lawful manner.
(Ord. 831, passed 5-1-2019)
(A) Within ten days after the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall set forth the factual findings made by the hearing officer, a conclusion as to whether a nuisance condition exists, the manner of abatement, including an order that such nuisance (if one is found to exist) be abated by the town and a schedule of correction or the date by which the abatement shall be completed.
(B) If the hearing officer determines that a nuisance exists which has not been corrected within the time period specified in the notice to abate nuisance conditions, the hearing officer shall so find in the decision, and may include in the decision any or all of the following:
(1) An order to correct, including a schedule of correction where appropriate;
(2) An order to pay administrative costs as provided in § 1.12.095 of this chapter.
(C) Failure to issue a decision in ten days shall not affect the validity of such decision.
(D) The decision shall be mailed by certified mail with a return receipt requested to the owner and shall be mailed to the enforcement officer. A copy of a summary of the decision and any order it contains shall also be posted on the property by the enforcement officer in a conspicuous location.
(Ord. 831, passed 5-1-2019)
(A) In the event that the owner or responsible party fails to appeal the notice to abate, or upon receipt of the hearing officer’s decision if: (i) no schedule of correction has been issued; or (ii) upon the failure of the owner and responsible part to comply with such schedule if a schedule was included, and if the nuisance condition has not been abated the enforcement officer shall forthwith abate, or cause to be abated, the nuisance condition upon the premises. The enforcement officer is authorized to enter upon private property for this purpose, consistent with the provisions of the U.S. Constitution.
(B) The cost of abatement shall become a personal obligation of the owner and responsible party and may be collected in any legal manner, expressly including as lien or special assessment pursuant to the procedures set forth in this chapter. The cost of abatement of any public nuisance may include: inspection costs; investigation costs; boundary determination and measurement costs; attorneys’ fees and costs; clerical and associated administrative costs; and costs to repair and eliminate all substandard conditions, including costs of consultants and private contractors.
(Ord. 831, passed 5-1-2019)
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