HomeMy WebLinkAboutOB 2 ABATE NUISANCE 07-17-89 7-17-89
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SUBJECT:
HONORABLE MAYOR AND CITY COUNCIL ,,
CITY ATTORNEY
ALTERNATIVE LEGAL PROC~.EDINGS TO ABATE
NUISANCE AT 170 EL CAMINO I~EAL
RECOMMENDATION
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At the pleasure of the City Council. The options are~ (1)
commence civil proceedings in Orange County Superior Court; (2)
file misdemeanor criminal action; or (3) commence proceedings
under the Uniform Code for the Abatement of Dangerous Buildings
to demolish the building. Note: If this option is selected, the
Building Official recommends that an asbestos survey be conducted
to determine the costs of demolition before such work is done by
the City. Such costs may be higher than for other structures if
asbestos shingles must be removed.
BACKGROUND AND DISCUSSION '
In response to a complaint from the City Council, the
Community Development Department initiated enforcement of City
Ordinances on the subject property in December, 1988. A Notice.
and Order was sent on December 6, 1988, to the owners of the
property. A follow-up letter was sent on December 22, 1988,
requesting that the property be cleaned up and secured. After
failure of the property owner to complete requested work on the
property, field services did perform yard clean-up work on the
property pursuant to the City's Weed and Litter Control Ordinance
on January 4, 1989.
Several conversations did take place with the owner after
initial work was completed by the City and the owner agreed to
complete the required work in a timely manner. Unfortunately, no
such work was completed. Therefore, on January 27, 1989, the
.Building Official posted the building unsafe for occupancy per
Section 203 of the Uniform Administrative Code. A public hearing
was subsequently noticed by Resolution No. 89-16 (Exhibit A) and
held on February 21, 1989. The City Council adopted Resolution
No. 89-25 declaring the property at 170 E1 Camino Real a "Public
Nuisance" and requesting completion of certain work on the
property (Exhibit B). The work to be completed involved removing
trash and abandoned vehicles from the property and securing all
buildings and accessory structures. .
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As the property owner failed to complete the work, City
staff had to undertake additional work, at the City's expense of
$4,358.53, to keep the property cleaned up and secured. At the
city Council meeting on June 19, 1989, the Council approved
assessing the City costs as a lien against the property.
Per the direction of the City Council the Community
Development Department also conducted an interior inspection of
the structure on the property to determine the overall condition
of the building on March 22, 1989. The Building Official on
April 6, 1989, sent a Notice and Order to the owner declaring the
property a public nuisance and unsafe structure per Section 203
of the Uniform Code for the Abatement of Dangerous Buildings and
thus requested the owner to abate such conditions (Exhibit C).
2. Discussion.
As described at the June 19 City Council session the City
could commence a civil action for an in~unction in superior court
to require the property owner to repair the structure and keep
the property free of debris and abandoned vehicles or demolish
it. We cannot predict, because of the crowded civil calendar,
when this matter could be decided, but the time frame could be
from one to three years. If the City prevailed, the owne~ would
be ordered to repair and clean up the property within a specified
period of time or demolish the structures and clear the property.
Failure to comply would be punishable by a contempt order, with
fines assessed to the court.
The City could also file a misdemeanor criminal complaint.
If found guilty, the owners could be fined up to $500 per day for
each day's violation of the City Codes. The City has not recently
used this procedure for nuisance abatement. While the fines or
threat of civil prosecution may cause the owner to clean up the
property, it is also possible that this will not motivate the
owners, whereas criminal proceedings move forward much more
quickly.
Thirdly, the City could initiate proceedings under the
Uniform Code for the Abatement of Dangerous Buildings to demolish
the structures and clear the property. As described in the Code,
the City's Building Official notifies the owners in writing, by
certified mail, return receipt requested, of the Building
Official's determination that the structure or building should be
demolished. The owners are given sixty (60) days to vacate the
building and secure the demolition permit and any other required
ermits. The owners are also given a period of time as
~etermined "reasonable" by the Building Official, to demolish the
structures and clear the property. Section 401(b)3(iii). The
owners are advised that if they do not commence the demolition
within the time specified, the Building Official may proceed to
have the work done and charge the costs to the property owners.
The owners have a right to appeal the Notice and Order to the
City's Board of Appeals.
If the demolition work is not commenced in a timely manner,
the Building Official may cause the building to be demolished and
the lot cleaned. Section 701(c). When the demolition work is
complete, a report of the City's costs is then presented to the
City Council who sets a hearing for assessing the charges to the
property. The owners have the right to contest the charges. If
the City Council determines to assess the property for the City's
demolition work, the City causes a lien to be placed on the
property for the amount assessed. Sections 901-904.
In this case, the Building Official has advised us that the
cost of demolition may be greater than with other structures
because it is believed the structure has asbestos shingles. The
City Council may wish to review such costs before the Building
Official commences demolition.
3. _D.ue P_r_o_c_es_s and Inverse Condemnation.
In Dully ..v.. city o£ Lon~_B_e_ach~ (1988) 201 Cal. App. 3d 1352,
the cour-t held that "[w]hen a property owner has been given ample
notice and opportunity to correct or repair a structure
constituting a nuisance, but has failed to do so, demolition of
the structure by the government to abate the nuisance is a
regulatory action within the police power, not a taking of.
property which requires compensation of the owner."
The Dully property was habitually overgrown with weeds and
vegetation. The unfinished structure was an "eyesore" and
detracted from the appearance of the neighborhood and tended to
reduce property values in the neighborhood. For six years, the
City attempted through administrative proceedings and misdemeanor
prosecution to compel Duffy either to complete the structure or
to abate the nuisance. In an administrative hearing the
structure was found to be a nuisance and Duffy was ordered to
complete the structure or destroy it. The house was neither
completed nor destroyed and the City proceeded to demolish the
structure.
The court in Ros____9_e v. _Citv._of Coalinga (1987) 190 Cal. App.
3d 1627 found that "[w]hen private property is wrongfully damaged
or destroyed in the course of governmental action and the
government has not first undertaken procedures to guarantee due
process to the owner, such as...proceedings to declare a
condition a nuisance, then, absent an emergency giving rise to
the proper exercise of the police power, an action in inverse
condemnation by the owner against the governmental agency will
lie to establish the damages suffered by the owner." In this
case, the City destroyed a building after the Coalinga earthquake
even though there was evidence that the building was repairable
and the owners wished to repair it.
In Friedman v. Citz_O_f__Los_..Anqeles (1975) 52 Cal. App. 3d
317, the court recognized that "[u]nder its police power to
protect public health and safety a city may destroy private
property without liability to the property owner, but when it
does this it must afford ~he owner due process of law. An
unlawful exercise of the police power in the destruction of
private property gives rise to a cause of action for damages."
Friedman_ involved a fire that damaged a four-unit apartment
building which the city ordered to be repaired or demolished.
The owners of the building, located through a title search of
county records, were given notice to comply with the city's order
by a certain date or they would forfeit the right to comply and
the city would demolish the building. The property was
subsequently sold to plaintiff, who knew nothing about the
impending demolition.
The Friedman court pointed out that "in the absence of an
emergency, the essential elements of due process of law include
notice and an opportunity to be heard." In _Fri.e~dman, the city
ave adequate notice and opportunity for hearing to thc Powells
~original owner). But for five months prior to destruction of
the building someone other than the Powells owned the property.
The city made no attempt to investigate current ownership of the
property at the time of demolition or give notice to potentially
new owners. Friedman was entitled to notice of prospective
demolition. The city ordinance requiring notification of owners
listed on the tax rolls failed to meet the standard of due
process.
The court further acknowledged that at "some point short of
the moment of demolition the city is Justified in relying on
notice to the then owners of record and thereafter proceeding to
demolish." A simple alternative to periodic' title search by the
city would be recordation of its intention to demolish. A new
owner would then have notice of the city's projected action and
could take appropriate steps to avoid loss. Had proper notice
been given, Friedman might never have purchased the property or
might have acted promptly to repair the building."
Finally, in L.eDDo v. City of petaluma. (1971) 20 Cal. App. Sd
711, the court held that "Ia]ny order of demolition of private
property under the police power must be based upon competent
sworn evidence that the subject property falls within the legal
concept of a nuisance, and that in fairness and in Justice there
is no other way reasonably to correct the nuisance." The court
further declared that the "official duty of the city in a case in
which they seek to abate a nuisance is to afford the property
owner a due process hearing which consists of an opportunity to
be heard and a determination upon competent sworn
testimony... £n]o ex parte declaration, however formal, by
municipal authorities, that it is a nuisance is final as against
him. A city may not, by mere declaration, determine that
property is a nuisance, when in fact it is not."
The Leppos were not afforded a due process hearing either in
the form of a judicial determination or a hearing before an
administrative body in which they had an opportunity to present
evidence and cross-examine the city's witnesses.
Pursuant to the Uniform Code for the Abatement of Dangerous
Buildings, it appears that the City of Tustin has proper grounds
to initiate proceedings to abate the nuisance at 170 E1 Camino
Real by demolition. As previously set forth, such proceedings
must be implemented in strict accordance with the procedures
provided in Section 401, which required that the City issue a
notice and order to the record owners of the building. If the
owners appeal, an evidentiary hearing i's conducted by the City's
Board of Appeals.
Based on the foregoing case authority, the primary concern
of the City in seeking demolition should be to provide adequate
notice and opportunity for the property owners to be heard.
Although the decisions involved various degrees of notice deemed
acceptable prior to demolition, adequate notice merely requires
record owners actually be notified of the City
that the
Proceedings. and be given a final opportunity to either abate the
nuisance themselves or to oppose the decision to demolish.
Finally, to insure against the problem present in Frigdman, the
City should file a notice of its intention to demolish with the
County Recorder to put any innocent purchasers on notice.
~~"~. ROURKE LOIS~ E. JEFFRE]~
CITY ATTORNEY
ASSISTANT CITY ATTORNEY
LFJ: lw:D: 7/12/89 (19)
Enclosures
cc: William Huston
Christine Shingleton
Lloyd DiCk
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A RESOLUTION OF THE
TUST. IN, CALIFORNIA, D[OLARING TH[ INT[NT~OI
CONDUCT A PUBLIC HEARING TO ASC£RTAIN WHETHER THE
CONDITION OF THE PROPERTY LOCATED AT 170 EL CAMINO
RIAL (AP# 40[-57[-05) CONSTITUTES A PUBLIC NUISANCE.
The Ct~¥ Council of the City of Tustin does hereby resolve as follows:
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I. The City Council hereby ftnds and determines ss follows:
A~
Pursuant to Section 5500 et. seq. of the Tustin City Code,
based upon the recommendation of the Department of Communlt:
Development, a public hearing should be conducted to determin
whether or not the condition of the property located at 170
Camino Real..(AP# 401-571-05) constitutes a public nuisance,
B, The following conditions of the property are as follows:
1, .Storage and scattering of debris and lttter in the. rea
yard conststlng of boxes, foam rubber', autos and aut
trailers and thelr respective parts, wood, paint and othe
assorted trash and debris. (Violation of Tusttn City Code
..Sections 4324, 4411, and 550I);
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Storage of ~wo disabled/abandoned automobiles and ~hre
abandone~ vehicle %railers in the rear on an unp=ve
surfsce, (ViOlation of Tus%in City Co~e, Sec%tons 4509 =n
9297); .
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Unsafe butldi, ng, (Violation of U.niform A~ministr~iv
Code, Sec%ion 203); and '
C. The recommended methods of abatement are as follows:
Removal of all debris, trash, paint, wo~d and vehicle part
from the rear yard of the' properts;
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2. Removal of sll disabled/abandoned vehtcles and traller
from the rear ~ard;
3. Secure all accessory stPuctures on the proper:y, i.e.
fences and attached utility shed; and
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Board and secure all windows, doors, and other extert6
openings of th~' building.
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Resolution No. 89-16 ..
Page two
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The City Council hereby authorizes a public hearing concerning the
property at 170 E1 Camtno Re=l lAP# 401- 571-05 ) . to be concluctecl 'on
February 21, 1989.
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PASSED AND ADOPTED at a regular meeting of the Tusttn City Council, held on
the ~_~ 6i:h_ clay of Febr'uar,.y __. , :).989.
brsUla E;. Kenne'dy,
Mayor j
City
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STATE OF CALIFORNIA )
COUNTY OF ORANGF- ) §
C!TY OF TUST!N )
MARY E, WYNN, City Clerk and ex-officio Clerk of the City Council of the City of
Tu$t:in, California, does hereby certify that the whole number of the members of
the City Council of the City of Tusttn is five; that the above and foregoing
Resolution No. 89-t6 was duly and regularly introduced, passed and adopted at a
regular meeting of :~e City Council held on %he 6th. clay of February_,.~g_~sg, by the
f O11 owl ng rot e:
AYES' : COUNCILPERSONS: Kennedy Edgar, Hoesterey, Kelly, Prescott
NOES : COUNCILPERSONS: None , . ,.
ABSTAINED: COUNCILPERSONS: None .~ , . ..
ABSENT: - COUNCILPERSONS:' None , ... '
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City of T~tin, Cal'lfornt~ -
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RESOLUTION NO. 89-25
A RESOLUTION .OF THE CITY COUNC,IL OF THE CITY OF
TUSTIN, CALIFORNIA, DETERMINING THAT CERTAIN
CONDITIONS ON THE PROPERTY LOCATED AT 170 EL"CAHINO
REAL (AP~ 401-57i-05 CONSTITUTE A PUBLIC NUISANCE AND
HEREBY ORDERING THE ABATEMENT OF SAID NUISANCE.
The City Council of the City of Tustln does hereby resolve as follows:
The City Council hereby finds and determines as follows:
A. That pursuant to Section 5500 et. seq. of the Tusttn Municipal
Code, .and based upon the recommendation of the Director of
Community Development, Resolution No. 89-16 was adopted
authorizing a public hearing for the purposes of determi.nlng if
conditions on the property at 170 E1 Camino Real (AP~401-$71-.05)
,, constitute a public nuisance. ·
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B. .That the property owner of the subject property was duly
notified of the date of the public hearing via certified mail
and a physical posting of. the property.
C. That the conditions on the property noted in Section IB of
Resolution No. 89-16 are still present and are hereby determined
to constitute a public nuisance. ,~ , , '
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The City Council hereby orders that the following actions be taken by
the property owner of the property located at [70 E1 Camino Real
within 30 days of the date of this resolution.
Removal of all debris, trash, paint, wood and vehicle parts from
the rear yard of the property;
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Removal of all disabled/abandoned vehicles and trailers from the
rear yard~
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Secure all accessory structures on the property, i.e., fences
and. attached utility shed; and .
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Board and secure all windows, doors, and other exterior openings
of the building.
III. The City Council hereby directs t~at if the order to abate the public
nuisance promulgated in Section II of this Resolution has not been
completed within the time frame allotted, the City shall immediately
cause the same to be abated by City pePsonnel or pr.irate contract.
Such. personnel or persons under contract are, if the need arises,
expressly authorized to enter upon the premises known as 170 E1
Camtno Real for the purposes of abating the public nuisance. The
owner of said premises shall be liable to the City for all costs of
such abatemen~ including all administrative costs, Recovery of these
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Resolution No. ~9-25
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costs ~t]] be attained through a Special assessment aga, inst the
parcelo After the assessment fs confirmed, It shall be a lien on the
parcel. ,
PASSED AND ADOPTED at a regular meeting of the Tustln City Council, held on
the , 21st , day of February. _ __~, 1989.
-)a F., Kennedy,-
Mayor
City CT~rk - '
STATE OF CALIFORNIA )
COUNTY OF ORANG[ ) §
CITY or TUSTIN )
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MARY E, WYNN, City Clerk and ex-officio Clerk o1' the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of
%he City Council of the City of Tustin is five~ that the above and foregoing
Resolution No. 89-25 was duly and regularly introduced, passed and adopted at an.
adjourned regular meeting of the City Council held on the 21st day of ~,
1989., by the followtng vote:
AYES : COUNCILPERSONS: Kennedy, Edgar, Hoesterey, Kelly,, Prescott
NOES : COUNCILPERSONS: None
ABSTAIN[D: COUNCILPERSONS: None
ABSENT: COUNCILP[RSONS: None
City of TusUn EXHIBIT
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April 6, 1989
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Communlby Development I:~partrnent
CERTIFIED MAZL P 087 436 36$
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Mr, Ma'rttn Perfi:
1).0. Box 69764
Los Angel es, CA 90069 · ,
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XDTICK~ AND ORD£R TO ABATE SUDSTA~DARD PROPERTY ~O URSAFE ~ILDIN~ AT 170 EL ~MINO
R~L, TUSTIN. ASSESSOR'S NO. 401-571-05
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~otice ts hereby given :hat pursuant to :he provisions of the City of Tustln
~unicipal Code~ Ar~icle 8, the Uniform Housing Code, Section ~001, ~he, Uniform
AUmtnts~tlve Code, Section 203 and the Uniform CoOe for the Abatement of
Dangerou~ Buildings Sec;ion 3~. The above mentioned proper~y has been in~pec~d
~nd found the p~emises and the uwelltng s~ucture subs~ndard and unsafe.
An fnspection by the Co'mmunlty Developmen: Department, Planning and Building
Ofvisions alono with :l~e Orange Coun:¥ Fire Department on March 22, 2989 found the
following conditions:
1,. Inadequate Sanita:ton (U.H,C., Section 3.00.~ b).
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,,~.,~'...- .a, ~ener~l di~apidation and tmprope.r., matntena, nce.
' 1' I ' I ~:~ "':'back of adequate he~i'ng' facll,t:les.
i t. S':ruc:ural.Haz~rds ~U.H.C., Section ~0~ c).
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300 Centennial Way. Tustin, California 92680 , (714) 544-8890
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~, Defective ~nd cle:erioraSed flooring in bathroom and service porch.
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.b, Illegal al:era:ions in at:to, Bedroom w~lls and closet, ,. .
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-I. Flooring/ceiling supports are of tnsuff, i¢ien't size tm carry imposed.
leads wi :h safety. . .,
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'¢. ~himney is defective and detertora~d, thus'finposes a safety hazarcl. ·
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3.. The l~roperty is an overall nuisance {U,H,C,, Sec:ion 1001.
,. Section. 3023. ,
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a, 1tn:ire property ts an att. ract~ve, nuisance being left unfence~ and
· unsecured. Rear property hks a.bandoned motor vehicles, unsound fence, '
't~vlng :rash and ctebrl~ which prove a h~zard for Inquisitive minors..
~. Hazardous eleclrical wiring {U.H.C., Section 1001 e). .... ·
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~ ~. Service panel and wiring :hroughou~ :heihouse.. .. '
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April 6, [989
NOTIC~ AND ORDER
170 E1 Camlno Real
Page ~wo
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Hazardous plumbing fixture {U.N.C., Section 1001 f).
aD Illegal use of garden hose for shower hookup,
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Hazardous mechanical equlpmen: {U,H.¢., tec:fon 100! g),
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a, ~loor heater and venting,
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Faulty weather protection (U,H,¢,, Section ZOOt h), -, .',.,.":..
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Deteriorated waterproofing of exterior walls, roof ~nd broken windows,
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b, Deterlor~ted, crumbling of loose plaster throughou:, .
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Hazardous ~nd uns~nt~ry premises (U,H,¢,, Section ~00~ k). '
Accumulal;ion of weeds,
~unk and p~in: solvents.
YOU ARE ORDERED,TO: ' '.
Do...noE occupy until cleared by the Buil~in~ Official
."l, ln'J;afe".a~ of [/27/ag), · .
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Ob~.tn all necessary building, 'elec~-~cal,
· rehabilitate {fi~ house befor'e occupa'~cy.
PROCEDURE OF CONSEQUENCES FOR NON-COMPLIANCE:
The .Community Developmen:'Departmen: will con.d.uct a
~ir':7 (30) days ~fter =he m~iling of 1;his no:ice.
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Cthe building,w~s posted
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plumbing ~d mechan.tcal permits =o
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reinspection of .:his" pr6perty
If you h~ve f. ailed ~o correct these ylolatlons by :he d~:e of the rein's13ectlon, the
f~llowtng events will occur: ~:~ i,
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~, The m~tter will be ~urned over to the City Attorney's office for criminal
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prosecution, Each day of violation may constitute a separate misdemeanor, the
~enalty for which is $500,00 and six (6) months maximum time in jail for each
~.iolation.. ' ,
The Building Official wil.l file with the County Recorder a Certificate of
Substandard Building, certifying the property is substandard and in
non-compl lance,
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Civil. Aba~ement: In addition to :he 'aforementioned conseq'uences, ~he Building
Official may commence civil abatemen: proceedings'against you.
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April 6, Igsg'
NOTICE AND ORDER
~70 E1 Camtno Real
Page three
T~ls le:ter constitutes your Notice and Order ~o obtain building permits,
inspection clearance of all work requiring butldlng permits and a Certl'flca~e ~
Occupancy for the butlding ~: 170 £1 Camlno Real. All necessary perm~:s sh~ll 1
ob~ined within ~en (10) days ~nd all work completed an~ occupancy released r
later ~han :~trt~ (30) days from the da~ of :he m~fllng of ~hls no:ice. .
Any person having any record tTtle or legal fn~eres: fn :he property ~y ~ppea
:h~s ~o~ce ~nd Order ~ the Building Official b~ filing a written appeal wi:h~
~hlrty (30) days of t~e'mafling of this No:ice and Order, Failure ~ appeal shal
constitute a waiver of any and all rtg~s ~ an adminls~a~lve hearing
de~ermina~ion of t~ts ~tter,
We sincerely solicit your cooperation In corPecting these violations, .. If we ca~
~rovtde any further lnfor~tton or assis~nce, please call the Co~un'i
~evelopment. Depar~ent at (7~4) S~4-8890.
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" CAS':LD:jk
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