The city has determined that certain activities which have been identified as public nuisances under state law are present and occurring in structures and places within the city. State law provides for the enjoining, abatement and prevention of such nuisances. The city desires to supplement the general laws relating to the abatement of such public nuisances by establishing a process whereby the city may pursue alternative procedures for abatement, depending upon the circumstances presented. Through the adoption of the ordinance codified in this chapter, it is the city's intent to have discretion to abate such nuisances through a voluntary cooperative effort between the city and affected property owners, or alternatively, to abate such nuisances either directly or where voluntary efforts have proved unsuccessful. The procedures established in this chapter describe and establish this alternative process as well as the authority of the city, in its discretion, to pursue judicial relief to compel abatement. The procedures provided in this chapter are in addition to all other remedies and cost recovery options available to the city by law or in equity, including, but not limited to, those provided in Chapter 1.20 of this code.
(Prior code § 5550.010; Ord. 1924 § 12, 2017)
As used in this chapter:
"Chief of police"
means the chief of police of the city of Upland, or designee thereof.
"Criminal street gang"
shall have the meaning as is set forth in California Penal Code Section 186.22(f).
"Nuisance building"
means every building or place defined as a nuisance in California Health and Safety Code Section 11225 or 11570, or California Penal Code Section 186.22a, or any successor provisions to such code sections, including, but not limited to, every building or place used for the purpose of illegal gambling, lewdness, assignation, prostitution, or selling, serving, storing, keeping, manufacturing, or giving away of any controlled substance, and/or every building or place used by members of a criminal street gang for the purpose of the commission of offenses listed in California Penal Code Section 186.22(e) or any offense involving dangerous or deadly weapons, burglary, or rape.
(Prior code § 5550.020)
A. 
Every place or building determined to be a nuisance building is a public nuisance and may be abated as provided herein.
B. 
In lieu of the abatement procedure set forth hereinafter, the city may commence abatement proceedings by way of injunctive relief or any other civil remedy provided in California Health and Safety Code Section(s) 11225 and/or 11570, or any successor provisions thereto.
(Prior code § 5550.030)
A. 
Allegations. Any person may submit to the chief of police written allegations regarding the existence of a nuisance building at a specific location. Such written allegations shall be factual in nature and shall provide specific details which serve to support the allegations. Notwithstanding the foregoing, the police department, or any code enforcement officer of the city, may submit written allegations concerning a structure or place which is believed to be a nuisance as defined herein.
B. 
Investigation.
1. 
The chief of police shall cause the police department to investigate allegations regarding the existence of a nuisance defined herein utilizing appropriate investigative procedures. Such investigation may include, but shall not be limited to, a review of calls for service for nuisance-related activities, or obtaining statements or admissions of the property owner or occupants of the subject building or place and declarations from adjacent property owners or occupants.
2. 
The chief of police shall determine if the results of the investigation warrant proceeding to a nuisance abatement hearing.
a. 
If a nuisance abatement hearing is determined to be justified, the chief of police shall proceed as set forth in Section 8.16.050.
b. 
If a nuisance abatement hearing is not found to be justified, a written notice of such decision shall be mailed by first class mail to the party who submitted the written allegations.
(Prior code § 5550.040)
A. 
When the chief of police has determined that a nuisance abatement hearing is justified, a date, time and place for such hearing shall be set.
B. 
Notice of the hearing shall be sent by certified mail to the owner(s) of record of the property, at the address as shown on the last equalized tax' assessment roll, and to the party who filed the allegations. Notice shall also be mailed by first class mail to the subject property and to each tenant and other persons possessing any interest in the subject property, to the extent the addresses of such persons are known to the chief of police or the city. Service by first class mail shall be effective on the date of mailing. A failure of any person to receive such mailed notice shall not affect the validity of any abatement procedure undertaken by the city. A copy of the notice shall also be posted upon the subject property in a conspicuous location. It shall be a misdemeanor for any person to remove such posted notice prior to the hearing.
1. 
The notice shall be posted and sent not less than 10 business days prior to the date established for such hearing.
2. 
The notice shall contain the following:
a. 
Identification of the street address and assessor's parcel number of the subject property;
b. 
A description of the alleged nuisance and the evidence in support thereof;
c. 
A description of the hearing process and the rights of the property owner;
d. 
An explanation of the effect of a determination of "nuisance," and remedies available to the city; and
e. 
A description of the appeal process.
(Prior code § 5550.050)
A. 
General Provisions.
1. 
The city manager, or designee, shall serve as the nuisance abatement hearing officer.
2. 
The hearing officer shall have the power and duty to administer oaths and affirmations and to certify to official acts.
3. 
The hearing shall be recorded by means of audiotape recording or any such other means as the hearing officer deems appropriate.
4. 
All persons presenting oral testimony shall be sworn prior to taking such testimony.
5. 
All written evidence shall be signed and dated by the person submitting the same.
B. 
Presentation of Evidence.
1. 
Each party may call and examine all witnesses, present evidence, rebut any evidence presented against the party and be represented by anyone the party may choose.
2. 
All relevant evidence shall be admitted and considered by the hearing officer, whether such evidence be oral or written. Irrelevant or repetitious testimony may be excluded by the hearing officer.
C. 
Decision of Hearing Officer.
1. 
The hearing officer shall, not more than five business days after the hearing, render a written decision which shall, on the basis of the evidence as presented, determine the existence or nonexistence of the alleged nuisance.
2. 
If the hearing officer determines that the subject building or place is a nuisance building, as defined in this chapter, the hearing officer shall prepare a preliminary written order describing the nuisance with particularity and shall specify a time frame for the voluntary abatement of the nuisance by vacation of the property, required modifications thereto, and/or such other and further steps to be taken to abate the nuisance.
The order may further state that a failure to voluntarily abate the described nuisance within the time provided may result in the hearing officer's preliminary order being deemed to be mandatory and final. In such case, the city's costs of abatement will be chargeable to the property as a lien and any violation of the order may be punishable as a misdemeanor, as provided herein.
The hearing officer's order shall further state that in lieu of deeming the order to be mandatory and final if voluntary compliance does not occur, the city may petition any court of competent jurisdiction for an order confirming the order of the hearing officer, or for injunctive relief, including a civil penalty and/or injunctive relief as provided by law.
3. 
The written decision and order shall be served on the property owner and other known, affected persons or entities possessing a legal interest in the subject property by certified mail.
(Prior code § 5550.060)
A. 
The property owner or any tenant thereof may appeal the decision of the hearing officer to the city council by filing a written appeal within 10 calendar days of the date of the hearing officer's written decision. The written appeal shall contain:
1. 
The names, signatures and mailing addresses of all appellants participating in the appeal, or their legal representative(s);
2. 
A brief statement setting forth the legal interests of each of the appellants in the building or place involved in the abatement hearing;
3. 
A brief statement describing the specific order or action protested, together with any material facts claimed to support appellants' contentions;
4. 
A brief description of the relief sought and the reasons why it is claimed the protested order or actions should be reversed, modified or otherwise set aside.
B. 
Upon receipt of the appeal the city clerk shall fix the date, time and place of the hearing of the appeal. Written notice of the time and place of the hearing shall be given to each appellant at least 10 business days prior to the date of the hearing, by either causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof by certified mail to all appellants at the address or addresses shown on the appeal.
C. 
A failure of any person to file a complete and timely appeal in accordance with the provisions of this chapter shall constitute a waiver of any right to appeal the determination of nuisance, and shall further constitute a failure to exhaust administrative remedies for purposes of any subsequent court action.
D. 
The notice to each appellant shall be substantially in the following form:
You are hereby notified that a hearing will be held before the City Council at __________on __________, 20__________, at __________, for purposes of hearing your appeal as to the city's determination that the property which is the subject of this appeal constitutes a "nuisance building," as defined in the Upland Municipal Code. You may be, but need not be, represented by counsel. You may present any relevant evidence and will be given full opportunity to question all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of documents, as permitted by law, by filing a declaration under penalty of perjury, requesting the same, with the City Clerk.
(Prior code § 5550.070)
A. 
Only those matters or issues specifically raised by an appellant shall be considered in the hearing of the appeal.
B. 
The order of the nuisance abatement hearing officer giving rise to the appeal shall be stayed during the pendency of the appeal.
C. 
A record of the proceedings on appeal shall be made by any means deemed appropriate including tape recording or certified shorthand reporting. The costs of such recordation shall be an administrative cost chargeable to the nuisance building owner, if the appeal is unsuccessful.
D. 
Hearings of appeals need not be conducted in accordance with technical rules pertaining to evidence and witnesses. Oral evidence shall be taken only on oath or affirmation. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in a civil action in a court of competent jurisdiction. Any relevant evidence shall be admitted if it is the type of evidence on which responsible 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 such evidence otherwise inadmissible in a court of competent jurisdiction.
E. 
The city council, or its designee, may inspect any building or premises involved in the appeal during the course of a hearing provided each appellant is given reasonable prior notice of such inspection and that any party to the appeal may be present during that inspection. The city council, or its designee, shall, upon completion of the inspection, state in writing the material facts observed and conclusions drawn therefrom. An appellant shall then have a right to have a written rebuttal or explanation of the matters stated by the city council, or its designee, made part of the record.
F. 
Within 10 business days of the conclusion of the hearing of the appeal, the city council shall adopt a resolution with findings sustaining, overruling, or modifying the hearing officer's determination of nuisance, including any order of abatement previously made by the hearing officer. The resolution shall state that any court action challenging the city council's determination must be brought pursuant to, and within the time permitted by, California Code of Civil Procedure Section 1094.5, et seq. A copy of the resolution shall be mailed, first class postage prepaid, to each appellant at the address provided in the appeal. A certified copy of the resolution may be filed with the county recorder therein certifying the city's determination of the subject property as a nuisance.
(Prior code § 5550.080)
A. 
No person shall fail, neglect, or refuse to obey any order of the hearing officer which has become final, or which has been affirmed or modified by the city council following appeal. Any person failing to comply with any such order is guilty of a misdemeanor.
B. 
In the event a final order of abatement requires the vacation of any building, all persons subject to such order shall have 15 days, or such other time specified in the order, within which to vacate the nuisance building. In the event any person fails to timely vacate any nuisance building, the city manager may direct the chief of police to post such building, at each entrance thereto, with a notice stating:
NUISANCE — DO NOT OCCUPY
It is a misdemeanor to occupy this building or to remove or deface this notice.
Chief of Police, City of Upland.
C. 
No person shall occupy any building which has been posted, as described above, nor shall any person remove or deface any such notice until the required period of vacation is complete.
D. 
The chief of police, or designee, shall keep an itemized account of expenses incurred, including administrative costs, in connection with abatement proceedings pursuant to this chapter. Following the conclusion of any abatement proceeding pursuant to this chapter, the chief of police, or designee, shall mail a copy of such account to persons having an interest in the property and whose identities are known to the chief of police, including owners and tenants, together with a notice of the time and place that such accounting will be submitted to the city council for confirmation and approval. The notice shall also state that any affected person may, at the time of consideration by the city council, be heard and voice any objections thereto.
E. 
The city council, at a regularly scheduled meeting, shall then consider the account of expenses, together with any objections or protests made by any affected persons, after which the account of expenses, as confirmed, revised, corrected or modified by the city council in a resolution, shall be adopted. A copy of the resolution shall be mailed, first class postage prepaid, to all affected owners and tenants at their last known address. It shall be each affected owner's and/or tenant's obligation to pay the amount of expenses confirmed in the resolution within 10 business days of its passage. If not paid within that time, such expenses shall be deemed to be and shall constitute a lien on the real property upon which the nuisance building is situated. The resolution shall further direct the city clerk to file with the auditor, tax assessor and tax collector, of the county of San Bernardino, certified copies of the resolution. The city clerk shall direct the auditor, tax assessor and tax collector to enter the amount of the abatement costs as charges against the real property as described in the resolution.
F. 
The confirmed costs of abatement shall be included by the tax assessor and/or tax collector on bills for taxes levied against the real property upon which the nuisance building is located. Thereafter, the nuisance abatement costs shall be collected at the same time and in the same manner as with and not separate from the general taxes of the city and shall be subject to the same penalties and interest upon delinquent payment.
(Prior code § 5550.090)