California Court of Appeal Rejects Challenge to Nuisance Ordinance

May 5, 2017 | Bulletin No. 127405.1

On May 1, 2017, California's First District Court of Appeals issued its opinion in Clary v. City of Crescent City. The Court rejected all of the plaintiff's numerous legal challenges to the City's nuisance ordinance, resolution to find a nuisance on his property, and proceedings to abate the nuisance.

Background

The plaintiff, a resident of the State of Washington, owned eight vacant lots in Crescent City acquired through foreclosure in 1998. One lot is paved and the rest are covered in vegetation. In May 2010, the City's code enforcement officer served notice to the plaintiff that his properties violated the City's nuisance ordinance, which proscribes "overgrown, dead, decayed, or hazardous vegetation" that "[m]ay harbor rats, vermin or other disease carriers," "is an obstruction to… traffic," "constitutes an unsightly appearance" or "constitutes an attractive nuisance." The plaintiff contended that the overgrowth was naturally beautiful vegetation, providing shelter and foraging for birds and wildlife, and contributing to the environment.

The officer required the plaintiff to cut back, mow, or till under the vegetation to avoid formal abatement procedures. The plaintiff did not do so; a public hearing was held in February 2011, where the City Council determined there was a nuisance on his property pursuant to the City's ordinance. In March of 2011, the plaintiff petitioned for relief in superior court. The City responded to the plaintiff's claims in August 2011 with a copy of the administrative record.

The City afterward sent the plaintiff a notice of a weed and rubbish abatement cost report and notice for a hearing in May of 2012. The plaintiff did not appear at this hearing, instead sending his objections on the day of the hearing by fax. At the hearing, the City Council considered and rejected the plaintiff's objections and chose a bidder for abatement services. The costs for the services were funded by a special assessment on the plaintiff's properties.

The superior court ruled in favor of the City in October 2014. The plaintiff appealed.

Legal Conclusions

The plaintiff levied numerous legal claims against the City's enforcement of the nuisance ordinance, the City's administrative proceedings to abate the nuisance, and the validity of the ordinance itself. The court rejected all of the plaintiff's claims.

First, the plaintiff complained that the City's enforcement of the ordinance should be enjoined because the City had dropped nuisance complaints before in 2007. However, the court noted that the plaintiff had not shown how he relied on the dropped charges and would consequently suffer injustice, a necessary element for his claim. His defense that the City had delayed enforcement and thus acquiesced to its state was similarly unavailing; the defense was not available where it would nullify an important policy adopted for the benefit of the public.

The plaintiff also attempted to argue the City's ordinance and administrative proceedings were unconstitutional. The court rejected these claims as well. When read in context, the ordinance's use of "unsightly appearance" was not unconstitutionally vague as the plaintiff contended. The ordinance specified that it was specifically "overgrown, dead, decayed or hazardous" vegetation that would constitute an "unsightly appearance," all words that an average citizen could easily understand. The court also found no constitutional concerns with the City's special assessment on plaintiff's property to pay for the nuisance abatement; the Constitution was concerned with special assessments conferred for a benefit to the property, whereas here the plaintiff's property was assessed for what he considered a detriment to his property, the clearing of the offending outgrowth.

The court also held in the City's favor on plaintiff's claim that the ordinance violated state statutes. The plaintiff claimed the ordinance conflicted with Civil Code § 3479, which provides specific definitions nuisances. The court surmised that the plaintiff was incorrect, as the nuisance definition in § 3479 included "[a]nything which is.. indecent or offensive to the senses." The court concluded that this language authorized the text of the ordinance.

But the court was able to hold for the City using a broader argument. The court noted that Government Code § 38771 delegates authority to city legislative bodies to declare what constitutes a nuisance. The court concluded that § 3479 only defines certain nuisances with greater particularity and does not define the limits of what may be declared a nuisance under municipal law. The court went another step further, affirming that the police powers granted by article XI, section 7 of the California Constitution are broad enough to encompass aesthetic concerns of excessive vegetation overgrowth.

Guidance for Cities and Counties

The court's decision gives cities and counties a greater amount of freedom in nuisance abatement. Cities can fashion their ordinances with an eye for aesthetic concerns as long as they identify what is the cause of those concerns, such as overgrown vegetation. Cities have broad discretion in defining what exactly constitutes a nuisance, which the court affirmed as part-and-parcel of the police power delegated to cities by the California Constitution. Cities and counties can rest assured that failing to immediately enforce its nuisance ordinances will not bar abatement proceedings absent extraordinary circumstances. Finally, the court also gave great weight to the evidence presented to the city in its abatement proceedings against the plaintiff's properties, so cities and counties can comfortably rely on well-developed evidence records developed in their proceedings. 

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Mona G. Ebrahimi
mebrahimi@kmtg.com | 916.321.4597