All departments, officials and public employees of the City of Milpitas vested with the duty or authority to issue permits shall conform to the provisions of this Chapter and shall issue no permit or license for uses, buildings, or purposes in conflict with the provisions of this Chapter; and any permit or any business license issued in conflict with the provisions of this Chapter shall be null and void.

(Ord. No. 38.788, § 10, 9/7/10)

It shall be unlawful for any person to violate any of the provisions of this Chapter. Any person convicted of violating any of the provisions of this Chapter shall, upon conviction, be punished by a fine not-to-exceed the sum of five hundred dollars ($500) or by imprisonment in the County Jail not to exceed six (6) months or by both such fine and imprisonment. Each day that a violation of this Chapter continues shall be considered a separate offense.

Any use of a premises or a building which deviates from or violates any of the provisions of this Chapter shall be termed an illegal occupancy and the person or persons responsible therefore, shall be subject to the penalties herein provided.

(Ord. No. 38.788, § 10, 9/7/10)

1.

General. The use of any land, building or other structure hereafter established or conducted or the present use of any land, building or other structure hereafter extended or enlarged or the erection, construction, moving, conversion, remodeling or alteration of any building or other structure contrary to the provisions of this Chapter shall be and the same is hereby declared to be a public nuisance, and the Attorney for the City of Milpitas shall, upon order of the City Council, immediately commence action or proceedings for the abatement or removal or enjoinment thereof in the manner provided by law.

2.

Signs. Any sign or structure erected, constructed, maintained, marked, posted, pasted, painted, printed, altered or repaired in violation of the provisions of the Chapter or after a permit or variance therefore has been revoked or expired is hereby found and declared to be a public nuisance subject to abatement and lien for recovery of abatement costs.

a.

Without limitation to the generality of the foregoing, any sign or structure erected, constructed, maintained, marked, posted, pasted, painted, altered or repaired:

i.

So as to be unsafe and so as to constitute an immediate peril to persons or property; or

ii.

Upon public property without written permission of the Planning Department or City Manager of the City of Milpitas.

(Ord. No. 315, § 2, 1/7/25; Ord. No. 38.788, § 10, 9/7/10)

Whenever any work is being done contrary to the provisions of this Chapter, the Building Official may order the work stopped by notice in writing served on any person engaged in the doing of such work or in the causing of such work to be done, and any such person shall forthwith stop such work until authorized in writing by the Building Official to proceed with such work.

(Ord. No. 38.788, § 10, 9/7/10)

The remedies herein contained shall be cumulative and in addition to such other remedies as provided by law. Resort to one remedy shall not preclude resort to any other remedy as may be allowed by law.

(Ord. No. 38.788, § 10, 9/7/10)

1.

Modifications.

a.

Initiation and review. The Planning Commission or City Council may initiate review of a permit (including, but not limited to Conditional Use Permit, Variances, or Site Development Permits) for the purpose of deciding whether modification is needed, only after written notice of a violation or public nuisance is mailed to the holder of the permit.

i.

After initiation, a public hearing before the Planning Commission shall be noticed and held in compliance with Section XI-10-64, Development Review Process, of this Chapter.

ii.

After completion of the public hearing, the Planning Commission may modify the Permit.

iii.

An aggrieved party may appeal this decision to the City Council in accordance with Section XI-10-64, Development Review Process, of this Chapter.

2.

Revocations or Suspensions

a.

Initiation and Review. The City Council may initiate review of a Permit (including, but not limited to Conditional Use Permit, Variance or Site Development Permit) or receive a recommendation from the Planning Commission for the purpose of deciding whether modification and/or suspension or revocation are needed.

i.

If the City Council does request review, a public hearing before the Planning Commission shall be noticed and held in compliance with Section XI-10-64, Development Review Process, of this Chapter.

ii.

After completion of the Planning Commission hearing, the Planning Commission shall recommend to the City Council, by resolution, whether the Permit shall be modified or revoked.

iii.

Following receipt of a recommendation on the Permit from the Planning Commission (when requested) or following City Council initiation, the City Council shall conduct a public hearing in compliance with Section XI-10-64, Development Review Process, of this Chapter.

iv.

After completion of the public hearing, the City Council may modify or revoke the Permit.

3.

Required Findings.

a.

General Findings for Modifications/Revocation. A Permit may be modified or revoked if any of the following conditions exist:

i.

Conditions of approval of the Permit are being violated or are not being satisfied; or

ii.

The Permit or approval is being exercised in a manner that constitutes a public nuisance; or

iii.

The application contained incorrect, false or misleading information; or

iv.

The permit or approval is being exercised in a manner which is contrary to the public health, safety and welfare.

(Ord. No. 38.788, § 10, 9/7/10)

A.

Notification of Nuisance. Whenever the City Manager determines that any property within the City is being maintained contrary to one or more of the provisions of this Chapter, he or she will give written notice ("Notice to Abate") to the owner/occupant(s) of said property stating the section(s) being violated. Such notice shall set forth a reasonable time limit, in no event less than or equal to 30 calendar days, for correcting the violation(s) of Chapter XI-10, Zoning, for correcting the violation(s) and may also set forth suggested methods of correcting the same unless the City Manager determines that the condition constitutes a threat to the health and safety of any person, in which event, the City Manager may designate a shorter time limit for correcting the violation. Such notice shall be served upon the owner/occupant in accordance with provisions of Section XI-10-63.07(D), Notice of Hearing, of this Chapter, covering service in person or by mail.

B.

Exception for Undue Hardship. The notice shall also inform the owner/occupant (excluding an owner acting in a capacity of landlord of rental property) that, upon written request of the owner/occupant submitted within seven calendar days of the "Notice to Abate," the City Manager, in his or her sole discretion, may allow for a time limit in excess of 30 days for correcting the violation in cases where strict enforcement of the time limit would result in an undue hardship on the owner/occupant. In the written request, the owner/occupant shall state the reasons why strict enforcement of the time limit would result in an undue hardship.

C.

Administrative Hearing to Abate Nuisance. In the event said owner/occupant shall fail, neglect or refuse to comply with the "Notice to Abate," the City Manager shall conduct an administrative hearing to ascertain whether said violation constitutes a public nuisance.

D.

Notice of Hearing. Notice of said administrative hearing shall be served upon the owner/occupant not less than seven calendar days before the time fixed for hearing. Notice of the hearing shall be served in person or by certified mail to the owner/occupant's last known address. Service shall be deemed complete at the time notice is personally served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any proceedings hereunder. Notice shall be substantially in the format set forth below:

NOTICE OF ADMINISTRATIVE HEARING ON ABATEMENT OF NUISANCE

This is a notice of hearing before the City Manager (or his/her designees) to ascertain whether certain property situated in the City of Milpitas, State of California, known and designated as (public right-of-way address) _______, in said City, and more particularly described as (Assessor's Parcel Number) _____ constitutes a violation or public nuisance subject to abatement pursuant to Section XI-10-63.07, Abatement Procedure, of the Milpitas Municipal Code. If said property, in whole or part, is found to constitute a public nuisance as defined in the Milpitas Municipal Code and if the same is not properly abated by the owner/occupant, such nuisance may be abated by municipal authorities, in which case the cost of such rehabilitation, repair, or abatement will be assessed upon such property and such costs, together with interest thereon, may constitute a special assessment or lien upon such property until paid. In addition, you may be cited for violation of the provisions of the Municipal Code and subject to an administrative fine.

Said alleged conditions consist of the following:

_____

_____

_____

_____

The method(s) of abatement are:

_____

_____

_____

_____

All persons having an interest in said matters may attend the hearing and their testimony and evidence will be heard to determine whether certain conditions constitute a public nuisance and whether such conditions shall be abated as a public nuisance.

Dated this _______ day of _______, 20___.

_______
City Manager

Time and Date of Hearing: _____

Location of Hearing: _____

E.

Administrative Hearing by City Manager or His/Her Designees. At the time stated in the notice, the City Manager shall hear and consider all relevant evidence, objections or protests, and shall receive testimony relative to such alleged public nuisance and to proposed rehabilitation, repair, removal or abatement of such property. Said hearing may be continued from time to time.

If the City Manager finds that such public nuisance does exist and that there is sufficient cause to rehabilitate, abate, remove or repair the same, the City Manager shall prepare findings and an order, which shall specify the nature of the nuisance, the method(s) of abatement and the time within which the work shall be commenced and completed. A copy of the findings and order shall be served on all owner/occupants of the subject property in accordance with the provisions of Section XI-10-63.07(D), Notice of Hearing, of this Chapter. In addition, a copy of the findings and order shall be forthwith conspicuously posted on the property. The order shall set forth the time within which such work shall be completed by the owner/occupant, in no event less than 15 calendar days.

In the event the owner/occupant fails to abate the nuisance as ordered, the City Manager shall cause the same to be abated by City employees or private contract. The costs shall be billed to the owner/occupant, as specified in Sections XI-10-63.08(A) through XI-10-63.08(E), Cost Recovery, of this Chapter. In appropriate circumstances, the City Manager shall request the City Attorney to obtain all necessary judicial approval for entry onto the subject premises for abatement purposes.

F.

Hearing Procedure Before City Manager and His/Her Designees. All hearings shall be tape recorded.

Hearings need not be conducted according to the technical rules of evidence.

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 civil actions in courts of competent jurisdiction in this State. 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.

Irrelevant and unduly repetitious evidence shall be excluded.

G.

Appeal of Decision by City Manager and His/Her Designees to the City Council. The decision of the City Manager and His/Her Designees may be appealed to the City Council in conformance with the provisions of Milpitas Municipal Code Section I-20-5.

H.

Limitation on Filing Judicial Action. Any judicial action appealing the City Council's decision and order shall be commenced within 30 calendar days of the date of service of the decision.

I.

Summary Abatement of Immediate Hazard or Obstruction. In the event of:

1.

A nuisance defined by statute, ordinance or resolution as a public nuisance which constitutes an immediate danger to persons or property;

2.

A nuisance defined by statute, ordinance or resolution as a public nuisance which is located or maintained on public property including, but not limited to, any public right-of-way, highway, sidewalk, easement, park or building; or

3.

Any obstruction or encroachment to free passage upon any public property (which is hereby declared to be a public nuisance) including, but not limited to, any public right-of-way, highway, easement, sidewalk, park or building, the City Manager may, forthwith and without notice, abate said nuisance and recover the cost of abatement as provided for in Section XI-10-63.08, Cost Recovery, of this Chapter. Summary abatement may include the temporary removal to a safe location of persons placed in immediate danger from a public nuisance. In such event, the City shall be entitled to recover all costs related to the removal, including but not limited to, storage of possessions and rental of living accommodations, as well as any other recoverable cost provided for in Section XI-10-63.08, Cost Recovery, of this Chapter.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Editor's note— Ord. No. 290, § 3, adopted May 17, 2016, amended the Code by repealing former XI-10-63.07, and renumbering former XI-10-63.09—XI-10-63.13 as new XI-10-63.07—XI-10-63.11. Former XI-10-63.07 pertained to administrative citation procedures, and derived from Ord. No. 38.788, adopted September 7, 2010.

A.

Recovery of Costs. This Section establishes procedures for the recovery of administrative costs, as well as attorneys' fees and costs, incurred by the City in the enforcement process, for the abatement of conditions defined as a nuisance or violation by Section XI-21-1.01, Administrative Citation Procedure, of this Chapter.

B.

Definition of Costs. For the purposes of this Chapter, "costs" shall mean administrative costs, including staff time expended and reasonably related to nuisance abatement cases, for items including, but not limited to, investigation, site inspection and monitoring, testing, reports, telephone contacts, correspondence and meetings with affected parties, as well as all attorneys' fees incurred pursuant to any action, administrative proceeding, or special proceeding to abate the nuisance including, but not limited to, filing fees and fees for witnesses. Pursuant to Government Code Section 38773.5(a), where the City seeks to recover attorneys' fees at the initiation of any action or proceeding, a prevailing opposing party may recover its reasonable attorneys' fees to the extent that the amount of said fees does not exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding.

C.

Cost Accounting and Recovery Required. The City shall maintain records of all costs incurred by responsible City departments associated with the enforcement process pursuant to this Chapter and shall recover the costs from the property owner/occupant as provided by this Section.

D.

Notice of Cost Recovery Requirements. The City Manager shall include in the "Notice to Abate" a statement of the intent of the City to charge the property owner/occupant for all costs incurred by the City if the violation is not corrected as required. The notice shall state that the property owner/occupant will receive at the conclusion of the enforcement case a summary of enforcement costs associated with the processing of the case.

E.

Collection of Charges. Such costs shall be recoverable as provided for in Sections XI-10-63.09(A) through XI-10-63.09(B), Record of Cost Abatement and Assessment and Lien, of this Chapter.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.10. See editor's note, XI-10-63.07.

A.

Record of Cost of Abatement. The City Manager shall keep an account of the costs, as defined in Section XI-10-63.08(B), Definition of Costs, of this Chapter, for abating such nuisance on each separate lot or parcel of land where the work is done by the City and shall render an itemized report in writing showing the cost of abatement, including the rehabilitation or repair of said property, including any salvage value relating thereto. A copy of the same shall be posted for at least five calendar days upon such property, together with a notice of the right to appeal to the City Manager. A copy of said report and notice shall be served upon the owner/occupants of said property, based on the last equalized assessment roll or the supplemental roll, whichever is more current. If the owner/occupant of record, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in the county in which the property is located. Proof of said posting and service shall be made by affidavit filed with the City Clerk. The owner/occupant shall have 30 calendar days from the date upon which the notice is served to reimburse the City for its costs or to otherwise make arrangements for repayment as to which the City, in its sole discretion, may agree.

B.

Assessment and Lien. The total cost for abating such nuisance, as so confirmed by the City Manager, shall, upon failure to pay the costs as specified in Section XI-10-63.09(A), Record of Cost Abatement, of this Chapter, constitute a lien or special assessment pursuant to Government Code Sections 38773.1 (nuisance abatement lien), 38773.2 (graffiti nuisance abatement lien) or 38773.5 (special assessment), or 38773.6 (graffiti special assessment) against the respective lot or parcel of land to which it relates. After confirmation and recordation of a Notice of Special Assessment, a certified copy of the City Manager's decision shall be filed with the Santa Clara County Assessor's Office on or before August 1 of each year, whereupon it shall be the duty of said Assessor to add the amounts of the respective assessments to the next regular tax bills levied against said respective lots and parcels of land for municipal purposes and thereafter said amounts shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided of ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessments. Upon recordation in the Office of the County Recorder, a Notice of Lien, as so made and confirmed, shall constitute a lien on said property and from the date of recording shall have the force, effect, and priority of a judgment lien.

In the alternative, after such recordation, such lien may be foreclosed by an action brought by the City for a money judgment or by any other means provided by law.

A Notice of Lien for recordation shall be in form substantially as follows:

NOTICE OF LIEN
(Claim of City of Milpitas)

Pursuant to the authority vested by the provisions of Section XI-10-63.03, Declaration of Public Nuisance, of the Milpitas Municipal Code, the City Manager of the City of Milpitas did on or about the _______ day of _______, 20___, cause the property hereinafter described to be rehabilitated or the building or structure on the property hereinafter described, to be repaired or demolished in order to abate a public nuisance on said real property, pursuant to an order to abate issued by on; and the City Manager of the City of Milpitas did on the _______ day of _______, 20___, assess the cost of such rehabilitation, repair, demolition, or abatement upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Milpitas does hereby claim a lien on such rehabilitation, repair, or abatement in the amount of said assessment, to wit; the sum of $_______: and the same, shall be a lien upon said real property until the same has been paid in full and discharged of record.

The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Milpitas, County of Santa Clara, State of California, owned by and more particularly described as follows (legal description):

(description)

Dated this _______ day of _______, 20___.

_______
City Manager

In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the amount of the lien, the name of the agency on whose behalf the lien was imposed, the date of the abatement order, the public right-of-way address, legal description, and the name and address of the recorded owner/occupant of the property shall be recorded by the governmental agency. A nuisance abatement and the release of the lien shall be indexed in the grantor-grantee index.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.11. See editor's note, XI-10-63.07.

A.

Amount of Interest on City Liens and Assessments—Findings. The City Council finds and declares that the establishment of an interest accrual requirement as to unpaid City liens and assessments upon real property which are of record with the County Recorder for Santa Clara County is a necessary and appropriate exercise of the City Council's police power.

B.

Accrual of Interest on Liens and Assessments. Unless otherwise prohibited by law or regulation, all liens and assessments which are imposed by the City against any real property located in the City of Milpitas that are recorded on and after the effective date of this regulation shall accrue interest at the rate of eight percent annually until the lien or assessment, including interest thereon, is paid in full.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.12. See editor's note, XI-10-63.07.

A.

Alternative Actions Available; Violation an Infraction. Nothing in this Chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to abate a public nuisance pursuant to applicable law or from pursuing any other remedy available under applicable law. Violation of the provisions of this Chapter constitutes an infraction, as set forth in Section I-1-4.09 of the Municipal Code. The City Manager is designated as the enforcement authority.

B.

Additional Costs of Abatement. The City Council provides that a court may order the owner/occupant of property responsible for a condition that may be abated in accordance with this Chapter to pay three times the costs of abatement pursuant to Government Code 38773.7 upon the entry of a second civil court judgment for violation of this Chapter within a two-year period.

C.

Residential Rental Housing. The notice sent to the owner/occupant of residential rental housing pursuant to Section XI-10-63.07(A), Notification of Nuisance, of this Chapter, shall contain the statement required by Health and Safety Code Section 17980 regarding the application of Revenue and Taxation Code Sections 17274 and 24436.5, which allow the Franchise Tax Board to deny state income tax deductions to taxpayers who fail to bring substandard residential rental property into compliance with this Chapter.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.13. See editor's note, XI-10-63.07.