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Ordinance 2789CITY OF ALAMDA ORDINANCE NO. 2789 New Series AMNDING THE ALAMDA MUCIP AL CODE BY ADDING A NEW SECTION 13-9 (NOTICES AN ORDERS OF THE BUIDING OFFICIAL) TO CHAPTER XIII (BUIDING AN HOUSING) BE IT ORDAID by the Council of the City of Alameda that: Section 1 The Alameda Municipal Code is hereby amended by adding a new Section 13-9 (Notice and Order) to Chapter XIII (Building and Housing) to read as follows: 13-NOTICES AND ORDERS OF THE BUILDING OFFICIAL a. General. Whenever any property is determined to be in violation of any provisions of this Code, the Building Offcial may provide notice of the extent and nature of the violations and may order the abatement of the violations. The remedy provided by this section is )0 cumulative to any other enforcement action permitted by this code. b. Contents of Notice and Order. The Notice and Order shall contain the following information: provisions of this Code. A description of the conditions on the property which violate the A list of the necessary corrections. 3. That subsequent to written notice to the owner(s), the Notice and Order may be recorded with the Offce of the County Recorder. c. Recordation. If it is determined that any property is in violation of any provisions of this Code; and if an Building Offcial or his/her designee gives written notice as specified in this section , the City may, at any time record with the County Recorder s Offce a notice that the property is in violation of this Code. b. Notifcation. A copy of said notice shall be posted on the property and a copy shall be mailed to the owner of the property, as indicated on the last equalized County Assessment roll. In addition , the City may also mail a copy of the Notice and Order to any entity or person which holds a recorded mortgage deed of trust on the property. Mailed notices may be registered , certified or first class mail. C:\ORDINANC\NOT -ORD.ORD 1117//98 e. Rescission. Any person who desires to have recorded a notice rescinding the Notice and Order may fie a written request with the Building Offcial or his/her designee. Once this request is received , the property shall be reinspected within fifteen (15) working days to determne compliance. If the violation(s) at the property has been corrected; and if all inspection and penalty fees and all costs incurred by the City in the investigation of the violation and the processing of notices have been either paid or have been placed upon the tax roll as a special assessment pursuant to Section 26845 of the Government Code , the City shall record a Rescission of the Notice and Order with the County Recorder s Offce rescinding the prior Notice and Order. 13-Appeal of Notice and Order. a. Appeal. The owner or any mortgagee or beneficiary may appeal the determnation of the Building Offcial to the Hearing Offcer by filing a written Notice of Appeal with the Building Offcial within ten (10) days of the date of service of the Notice and Order. The time for filing an appeal is jurisdictional. The Hearing Offcer shall be the City Manager or his or her designated representative. Contents of Appeal. ThE' appeal shall contain the following inform8tion: The specific identification of the subject property. 2. The name , address , telephone number , social security number , date and signature of all appellants. The appellant(s)' legal interest in the property. 4. A statement in ordinary and concise language of the grounds for the appeal and all material facts in support thereof The address to which all notices shall be mailed. matters stated in the appeal. The verification of at least one appellant as to the truth of the c. Procedure. The appeal shall be conducted in accordance with the procedures outlined in subsection 13-2 (Administrative Hearing; Procedure; Statement of Decision and Administrative Order). 13-Administrative Hearing; Procedure; Statement of Decision and Administrative Order. If the owner or mortgagee or beneficiary under a deed of trust has failed to make the corrections in the Notice and Order , and if the City determines to proceed with administrative abatement proceedings , it shall proceed in the manner set forth herein. C:\ORDIN ANCINOT -ORD.ORD 1117//98 a. Notice of Hearing. The Hearing Offcer shall serve , or cause to be served a written Notice of Hearing on the owner and each mortgagee or beneficiary under a deed of trust by depositing the Notice of Hearing in the United States Mail , postage prepaid , certified , return receipt requested, addressed to each owner, mortgagee or beneficiary under a deed of trust. Such Notice shall be served at least ten (10) days prior to the time set for hearing. The Notice Hearing shaH contain the date , time and place of the hearing. Service shall be deemed complete on the fifth day after mailng. b. Date of Hearing. The hearing shall be set for a date not less than ten (10) days nor more than sixty (60) days from the service oftne Notice of Hearing, unless the Hearing Offcer determnes that good cause exists for an extension of time , or an earlier hearing is required because the Building Offcial has ordered summary abatement of the building or structure under this section. c. Proof of Service. The Hearing Offcer, upon giving notice as aforesaid shall file , or cause to be filed , an affdavit or declaration certifying the date of mailing the Notice of Hearing, and file it in the records of the P"lding ()ffci:ll. d. Failure to Appear. Failure of the owner to appear at the hearing after notice has been served pursuant to subdivision (a) of this subsection shall be deemed a waiver of the hearing and an admission by said owner of the truth of the charges made in the Notice and Order. e. Determination by Hearing Offcer. The Hearing Offcer shall determine whether the building, structure or any portion thereof is in violation of this Alameda Municipal Code and whether charges in the Notice and Order are true , and if so , order its repair rehabiltation, vacation, or demolition by the owner , City work crews or a private contractor. Conduct of Hearing. The hearing shall be conducted pursuant to the Rules and Procedures adopted by the Housing and Building Code Hearing and Appeals Board. g. Statement of Decision and Administrative Order. The Hearing Offcer shall prepare a written Statement of Decision and Administrative Order which shall contain findings of fact for each violation and the decision of the Hearing Offcer. If the Hearing Offcer determines that a violation exists, the Hearing Offcer shall order the repair, rehabilitation , vacation , removal or other appropriate abatement measure by the responsible parties , or if the owner fails to do so by City work crews or a private contractor. If the Hearing Offcer finds that no violation has occurred or that appellants are not the responsible parties , the Hearing Offcer shall issue a finding consistent therewith. h. Service of Decision of Hearing Offcer. The Hearing Offcer shall serve , or cause to be served , a copy of his or her decision on the owner and on any mortgagee or C:\ORDIN ANCINOT -ORD.ORD 1117//98 beneficiary under any deed of trust by United States Mail , certified , return receipt requested postage prepaid. 13-Appeal of Decision of Hearing Offcer. a. The owner or mortgagee or beneficiary under a deed of trust may appeal the decision of the Hearing Offcer to the Housing and Building Code Hearing and Appeals Board Board") by filing a written Application for Appeal Hearing with the Secretary of the Board within ten (10) days of service of the Notice of Decision. b. Appeal Fee. The fee for fiing an appeal shall be established by resolution of the City Council. The appeal fee shall be required to be paid at the time that the appeal application is filed. Appeal forms shall not be accepted without the appropriate appeal fee. Contents of Appeal. The appeal shall contain the following information: The specific identification of the subject property. 2. The name , address , telephone number, social security number, date and signature of all appellants. The appellant(s)' legal interest in the property. 4. A statement in ordinary and concise language of the grounds for the appeal and all material facts in support thereof The address to which all notices shall be mailed. 6. The verification under penalty of perjury of at least one appellant as to the truth of the matters stated in the appeal. d. Notice of Hearing. The Secretary to the Board shall serve, or cause to be served , a wrtten Notice of Hearing by depositing the Notice of Hearing in the United States Mail postage prepaid , certified , return receipt requested , addressed to each of the appellants at the address designated in the Application for Appeal Hearing. Such Notice shall be served at least ten (10) days prior to the time set for hearing. The Notice of Hearing shall contain the date, time and place of the hearing. Service shall be deemed complete on the fifth day after mailing. e. Date of Hearing. The Secretary to the Board shall set a date for a hearing not less than ten (10) days nor more than sixty (60) days from the service of the Notice of Hearing, unless the Board determnes that good cause exists for an extension of time , or an earlier hearing is required because the Building Offcial has ordered summary abatement of the building or structure under this section. C:\ORDINANCINOT -ORD.ORD ll17//98 Proof of Service. The Board or employee , upon giving notice as aforesaid shall file an afdavit or declaration certifying the date of mailing the Notice of Hearing, and fie it in the records of the Building Offcial. g. Failure to Appear. Failure of the person filing the appeal to appear at the hearing after notice has been served pursuant to subdivision (b) of this subsection shall be deemed a waiver of the hearing and an admission by said appellant of the truth of the charges made in the Notice and Order. h. Determnation by Board. The Board shall determne whether the building, structure or any portion thereof is in violation of the Alameda Municipal Code and whether charges in the Notice and Order are true, and if so , order its repair, rehabilitation, vacation, or demolition by the owner, City work crews or a private contractor.i. Statement of Decision and Administrative Order. The Board shall prepare a wrtten Statement of Decision and Administrative Order which shall contain findings offact for each violation and the decision of the Board. The decision of the Board is final. If the Board determnes that a violation exists , the Board shall orcer the repair , rehabiltation, vacation removal or other appropriate abatement measure by the responsible parties , or if the owner fails to do so , by City work crews or a private contractor. If the Board finds that no violation has occurred or that appellants are not the responsible parties , the Board shall issue a finding consistent therewith. j. Service of Decision of Board. The Secretary to the Board shall serve , or cause to be served , a copy of the decision ofthe Board on the owner and on any mortgagee or beneficiar under any deed of trust by United States Mail , certified , return receipt requested postage prepaid. 13-Costs Recovery. a. General. The costs and related administrative expenses of any enforcement and abatement action taken hereunder , confirmed or modified by the City Council , shall be assessed against the subject property upon which the building or structure is located as a lien special assessment or made a personal obligation of the owner. b. Costs of Enforcement and Abatement. If City work crews or City contractors perform the abatement , the Building Offcial shall keep an account of the costs of abatement and related administrative expenses of abating such nuisance , as well as for all enforcement activities , and shall render a statement of such costs of enforcement and abatement and related administrative expenses to the persons receiving the Notice and Order. Payment shall be made by the responsible persons within thirty (30) days of the date of the statement. Such persons shal be individually liable to the City for any and all costs of enforcement and abatement and related administrative expenses involved in abating the nuisance. C:\ORDINANCINOT -ORD.ORD 1l17//98 c. Hearing on Costs. Should the owner fail to pay the statement for costs of enforcement and abatement within thirty (30) days , the Building Offcial shall present to the City Council for consideration the report of costs for abating the nuisance and related administrative expenses. The City Council shall fix a time , date and place for hearing the report and any protests or objections thereto. At the conclusion of the hearing, Council shall deny, adjust or confirm the costs of abatement. d. Notice of Hearing. The City Clerk shall cause a Notice of Hearing to be served on the owner and on any mortgagee or beneficiary under any deed of trust by depositing the Notice of Hearing in the United States Mail , postage prepaid , certified , return receipt requested. Servce shall be deemed complete five (5) days after mailing. Such Notice of Hearing shall be given at least ten (10) days prior to the date set for hearing and shall specify the day, hour and place when the City Council wil hear and pass upon the report of the Building Offcial containing the proposed charge for abatement , and any objections or protests which may have been filed by any person interested in or affected thereby. An itemized copy of the costs and related administrative expenses shall be served on the owner with the Notice of Hearing. The Notice of Hearing shall ('I)ntain the following language with re t"ect to special assessments on the property:I. That the special assessment shall be collected at the same time and in the same manner as ordinary municipal taxes, and that the property may be sold after three years by the tax collector for unpaid delinquent assessments. The tax collector power of sale shall not be affected by the failure of the owner to receive notice. 2. That if the real property is transferred to a bona fide purchaser for value, or if a bona fide encumbrancer for value has been created and attaches thereto prior to the date on which the first installment of the taxes would become delinquent , then the costs of abatement and related administrative costs shall not result in a lien against the real property, but shall be transferred to the unsecured roll for collection. 3. That the costs of abatement as confrmed by the City Council may be imposed as a special assessment against the real property. e. Notice of Special Assessment. Should the owner fail to pay the confirmed costs of abatement within ten (10) days after Council confrmation of costs , the City Manager , or his or her designee, shall deliver the Notice of Special Assessment to the County Auditor, who shall place it on the County Assessment Roll pursuant to Government Code section 38773., and shall cause a copy to be recorded in the Offce of the Alameda County Recorder. Withdrawal of Notice of Special Assessment. The City Manager, or his or her designee, shall fie a withdrawal of this Notice with the County Recorder when either: (i) the owner pays in full the abatement costs and related administrative expenses; or (ii) the County C:\ORDINANCINOT -ORD.ORD 1l17//98 Auditor or Tax Collector posts a lien on the property pursuant to Government Code section 38773. g. Collection of Assessment. Pursuant to the provisions of Government Code section 38773., the County Tax Collector shall collect the amount of the assessment at the same time and in the same manner as ordinary municipal taxes and impose the same penalties and procedures, including the sale of the property, in the case of delinquency, as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of property taxes shall be applicable to the special assessment. h. Alternative Procedures; Nuisance "Abatement Lien. As an alternative remedy to the special assessment procedure and imposition pursuant to this subsection , a nuisance abatement lien may be recorded pursuant to this subsection. 1. Service of Notice of Abatement Lien. Not less than ten (10) days prior to recording a Nuisance Abatement Lien, the owner whose name appears on the last equalized assessment roll or supplemental roll shall be served with a notice of the recording of the Nuisance Abatement Lien. Service ofthf' otice shall be in the same manner as rvice of summons in a civil action in accordance with Aricle 3 (commencing with section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. If the owner of record , after dilgent search cannot be found , the Notice may be served by posting a copy thereof in a conspicuous place on the property for a period often (10) days and publication thereof in the legal newspaper of the City pursuant to Government Code section 6062. 2. Contents of Nuisance Abatement Lien. The Nuisance Abatement Lien shall contain the following information: (a) The amount of the lien , together with a statement that the costs of recording and providing notice shall be added to the lien. (b)The name of the agency on whose behalf the lien is fied. (c)The date of the abatement order. (d) The street address , legal description and assessor s parcel number of the parcel on which the lien is imposed. (e) That the City may foreclose upon the lien by an action brought by the City for a money judgment. (f)The name and address of the record owner. Recordation of Lien. Afer service of the Notice as herein C:\ORDINANCINOT -ORD.ORD 1117//98 provided , the City Manager, or his or her designee , shall cause a copy of the Nuisance Abatement Lien to be recorded in the Offce of the Alameda County Recorder. 4. Foreclosure of Lien. The Nuisance Abatement Lien may be foreclosed by an action brought by the City for a money judgment. 5. Discharge of Lien. In the event a lien fied l"ursuant to this subsection is discharged , either through payment or foreclosure, a Notice of Discharge containing the amount of the lien , the name of the City, the date of the abatement order, the street address legal description, and the name and address of the recorded owner of the property shall be recorded by the City Manager or his or her designee. A Nuisance Abatement Lien and Notice of Discharge of Lien shall be indexed in the grantor-grantee index. 13-Notice to Vacate a. General. If the Building Offcial determines that any building or structure is unsafe for occupancy or is being occupied in violation of this Code, he or she may order the structure vacated. b. Posting. Every notice to vacate shall be posted on the property at or upon the main entrance to the building. In addition to posting, a copy of the notice to vacate shall also be mailed to the owner ofthe property, as indicated on the last equalized County Assessment roll and the City may also mail a copy of the notice to vacate to any entity or person which holds a recorded mortgage deed of trust on the property. Mailed notices may be registered, certified or first class mail. Contents. The notice to vacate shall be in substantially the following form: DO NOT ENTER UNSAFE TO OCCUpy It is a misdemeanor to occupy this building, or to remove or deface this notice. Building Offcial City of Alameda d. Compliance. Whenever any such notice is posted , no person shall remain in or enter any building that has been so posted , except that entry may be made to repair demolish or removed such building under permit. No person shall remove or deface any such notice afer it is posted until the required repair, demolition or removal have been completed and a certificate of occupancy issued pursuant to the provisions of the Alameda Building Code. Any person violating this subsection shall be guilty of a misdemeanor. C:\ORDINANCINOT -ORD.ORD 1117//98 13-Summary Abatement. If the Building Offcial determnes that a building or structure , or portion thereof is an Immnently Hazardous Building or an Immnently Hazardous Structure and that the time imposed for demolition or destruction or securing and boarding under this Aricle is unreasonably long, considering the condition of the structure and the danger to the public or property, the Building Offcial may order the immediate destruction and/or securing and boarding of said building or structure pursuant to the following procedure: a. Notice. The Building Offcial shall post , or cause to be posted , a copy of a Notice prepared in accordance with section 13-10.5 on the property and serve, or cause to be served, a copy of the Notice on the owner of the property and on any mortgagee or beneficiary under any deed of trust , or ifunable to effect personal servce prior to the date of hearng, to make all reasonable efforts under the circumstances to transmit a copy of said Notice to the owner and mortgagee or beneficiary under any deed of trust by telephone, telecopier, or other reasonable means , of the time , place and date of the hearing which shall be held prior to the destruction of the building. b. Hearing. The hearing shall be conducted before the Hearing Offcer, and the decision of the Hearing Offcer shall be final. The hearing shall be conducted pursuant to the Rules and Procedures of the Housing and Building Code Hearing and Appeals Board. The Hearing Offcer shall give not less than three (3) days written notice of the hearing. c. Preservation of Evidence. In the event the Building Offcial determnes that the condition of the Immnently Hazardous Building or Immnently Hazardous Structure is such that any delay in destruction or removal will constitute an unreasonable risk to the public or propert, the Building Offcial shall record all evidence, including, but not limited to , the statements of any experts , photographs and video recordings of the condition of the building or structure, engineering calculations, and the findings of the Building Offcial which support the immediate demolition or destruction or securing and boarding of the building. 13-Summary Abatement Without Hearing. In the event that it is not reasonable to hold a hearing under the circumstances , the Building Offcial may act to abate the nuisance without prior notice afer making a reasonable attempt to notify the owners and any mortgagees or beneficiaries under a deed of trust of his or her intended action. The Building Offcial shall record all evidence , including the statement of any experts and photographs and video recordings of the condition of the building or structure together with a statement of his or her findings which support the immediate demolition or destruction or securing and boarding of the building or structure. The Building Offcial shall mail certified mail , return receipt requested , postage prepaid , to the owners and any mortgagees or beneficiaries under any deed of trust a written statement containing the following: (a) the address of the property; (b) record of attempts to notify the owners, mortgagees or beneficiaries under the C:\ORDINANCINOT-ORD.ORD 1l17//98 deed of trust of the summary abatement; (c) the findings of the Building Offcial which required the immediate destruction or securing and boarding of the building or structure; and (d) the location and summary of the evidence which supports the finding to summarily abate the Immnently Hazardous Building or Imminently Hazardous Structure. 13-Failure to Receive Notice. The failure to receive any notice required by this section shall not in any way invalidate any proceedings taken hereunder. Section 2 . Any provisions of the Alameda Municipal Code, or appendices thereto or any other ordinances of the City inconsistent herewith, to the extent of such inconsistencies and no further, are hereby repealed. Section 3 . If any section , subsection , sentence, clause , or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the ordinance. The City Council hereby declares that it would have passed this ordinance and each section subsection, sentence, clause , and phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences , clauses , or phrases be declared invalid or unconstitutional. Section 4 . This ordinance shall be in full force and effect from and after the expiration of thirty (30) days from the date of its final passage. Attest: C:\ORDINANCINOT -ORD.ORD 1117//98 , the undersigned , hereby certifY that the foregoing Ordinance was duly and regularly adopted and passed by the Council of the City of Alameda in regular meeting assembled on th e 19th day of January , 1999 , by the following vote to wit: AYES:Councilmembers Daysog, DeWitt , Johnson , Kerr and President Appezzato - 5. NOES:None. ABSENT:None. ABSTENTIONS:None. IN WITNESS, WHEREOF , I have hereunto set my hand and affixed the offcial seal of said City this 20th day of January , 1999. t1 Diane Felsch , City Clerk City of Alameda