Business Item 5c
STAFF REPORT
City Council Business Item
DATE: October 17, 2022
TO: Honorable Mayor and Council Members
FROM: Ryan Plotz, City Attorney
THROUGH: Merritt Perry, City Manager
SUBJECT: Discuss and Consider Authorizing the City Attorney to Develop Revised Nuisance Abatement Regulations
STAFF RECOMMENDATION:
Staff recommends the City Council receive a report from the City Attorney and discuss and consider authorizing the City Attorney to develop revised nuisance abatement regulations.
EXECUTIVE SUMMARY:
Pursuant to the City’s general police powers, the City has the right and ability to abate public nuisances, which are broadly defined to mean “[a]nything which is injurious to health…or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to 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, or river, bay, stream, canal, or basin, or any public park, square, street, or highway.” (Civil Code, § 3479.) The City may declare what constitutes a nuisance by ordinance. (Gov. Code, § 38771.)
There are several ways in which the City may abate public nuisances. First, the City may bring a civil action in court to enjoin the nuisance. Second, the City may declare specified nuisances to be infractions and/or misdemeanors and prosecute offenders in criminal court. Third, the City may abate nuisances administratively. These remedies are considered cumulative, meaning that the City may use more than one remedy to abate a particular nuisance matter, depending on the severity, urgency, and level of cooperation.
Abating nuisances administratively is the most widely used method by cities and counties to abate nuisances because, on average, it is more efficient and economical than the judicial methods for dealing with common nuisance abatement issues.
The California Government Code provides express authorization for cities to abatement nuisances administratively and to collect the cost of such abatement by nuisance abatement lien, which may be foreclosed upon, or as a special assessment against the parcel, which is collected with real property taxes.
The City’s existing nuisance abatement provisions are principally contained in Chapter 8.16 of the Fortuna Municipal Code (“FMC”). Chapter 8.16, which is entitled “Property Maintenance”, was adopted by ordinance in 1990 and it does not appear that is has been updated since.
Business Item 5c
The City Attorney has identified several aspects of the City’s current nuisance abatement provisions that should be updated to conform to best practices and provide the City additional flexibility in combatting various types of nuisances. As part of a revised ordinance, the City Attorney would propose the following changes:
1. Re-define what constitutes a public nuisance. Section 8.16.020 currently defines what constitutes a public nuisance, and each declaration is specific to a condition of real property.
As part of the re-developed nuisance regulations, the City Attorney would propose, among other things, a catch-all definition of public nuisance so that any violation of the FMC (including the City’s Building Codes) would constitute a public nuisance.
By adding the catch-all definition, the City’s Code Compliance staff would have expanded authority to abate violations of the FMC that may not fit well within the specific property conditions listed in Section 8.16.020. This might include properties constructed without the proper permits or otherwise in violation of the City’s Building Code. This would also allow non-property related violations of the FMC (e.g., unlawful events) to be abated as a nuisance.
2. Add summary abatement procedures. Government Code Section 38773 authorizes cities to summarily abate certain public nuisances that pose a clear and imminent danger to, or require immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services.
As opposed to the normal process, the summary abatement procedures would allow the City to abate the nuisance immediately due to the nature of the nuisance, followed by notice to the property owner.
3. Provide for better cost recovery, including attorney’s fees and costs.
4. Provide for better integration with other remedies, including the recently adopted administrative citation ordinance.
If authorized, the City Attorney will work with staff to develop an ordinance for the Council’s future consideration.
FISCAL IMPACT:
It is estimated to cost $1,850 in legal fees, which amount is within the budgeted amount for legal fees.
RECOMMENDED COUNCIL ACTION:
1. Receive staff presentation and review Council questions with staff
2. Open the Public Hearing
3. Close the Public Hearing
4. By motion, authorize the City Attorney to develop revised nuisance abatement regulations for the Council’s future consideration.