Twisted recent history of Public Nuisance Per Se

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In oral argument and legal writing precise words matter. Remember that.

As absurd as it may sound cities across California are adopting Public Nuisance Per Se ordinances. City governments are considered legislatures under the law.

NUISANCE PRE SE

For a 1000 years these were serious issues. p. 655 Law of Nuisances Second Edition

https://archive.org/details/apracticalt ... +per+se%22

"Sec. 569. Nuisances per se. — Nuisances that are prejudicial to public morals, as well as those which endanger the lives of mankind, such as the erection of powder magazines or nitro-glycerine works,* or such as are injurious to public rights, as the obstruction of highways or navigable streams,* or the overhanging of another's land,* are all regarded as nuisances per se, because no proof is required, beyond the actual fact of their existence, to establish the nuisance. No ill effects need be proved.

NEVER have trash, junk, too many pot plants, a flat tire, an unregistered car risen the the level of nuisance per se per historical law. Ever since McClatchy the law and the right of cities has been mis-stated and mis-cited.

Here is the text of several court decisions

"For nuisances per se, "no proof is required, beyond the actual fact of their existence, to establish the nuisance. No ill effects need be proved" City of Claremont v. Kruse, 2009

"A legislatively declared public nuisance constitutes a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury" People ex rel. Dept. Pub. Wks. v. Adco Advertisers, 1973

"The legislature has, within its undoubted power, declared the acts complained of to be of a public nuisance, and such acts constitute a nuisance per se."
- in Toxic Torts as Absolute Nuisances

"However, where the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se. (City of Costa Mesa v. Soffer (1992) 11 Cal. App.4th 378, 382 [13 Cal. Rptr.2d 735].) But, to rephrase the rule, to be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law. - Beck Development Co. v. S. PACIFIC TRANSP. CO., 44 Cal. App. 4th 1160 - Cal: Court of Appel, 3rd

https://scholar.google.com/scholar_case ... s_sdt=2006

BUT IN McCLATCHY v. LAGUNA LANDS LIMITED THE ACTUAL STATEMENT WAS AS FOLLOWS:
https://www.casemine.com/judgement/us/ ... 49347081bc

"Within reasonable limits," there is no question, says Mr. Wood, "but that the legislature has the power to declare [certain uses] of property a nuisance and such use thereupon becomes a nuisance per se." (2 Wood on Nuisances, sec. 763.) The legislature has, within its undoubted power, declared the acts complained of to be a public nuisance, and such acts constitute a nuisance per se. Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance. No ill effects need be proved. (2 Wood on Nuisances, sec. 569.) And all parties to a nuisance per se, he who creates it and he who maintains it, are responsible for its effect, without limitations of condition or time. ( Thornton v. Dow, 60 Wn. 622, [32 L. R. A. (N. S.) 968, 111 P. 899, 903].)

The CONTEXT of the McClatchy case was significant, it was about something that was threat to mankind, which follows, H. G, Woods legal treatise.

"The action is for the abatement of an alleged public nuisance and for an order restraining the defendants from doing any of the acts mentioned in the complaint, and is brought under the provisions of an act of the legislature in effect August 10, 1913. (Stats. 1913, p. 252.) The act provides for the creation of a drainage district to be known as Sacramento and San Joaquin Drainage District, describing its boundaries, the appointing of a reclamation board for the management and control of said district, defining the powers and duties of the reclamation board, and for the prevention of the diversion of the waters of any stream into the Sacramento and San Joaquin Rivers. Section 12 of the act declares that the board shall have power "to maintain actions to restrain the diversion of the waters of any stream that will increase the flow of water in said Sacramento or San Joaquin Rivers or their tributaries, and such diversion of the waters of any stream into said rivers or any of their tributaries is hereby declared to be a public nuisance which may be prevented or abated by the reclamation board."

This how these crazy things get passed. Cities make money in two general ways, taxes (fees) and fines:

https://kutv.com/news/local/top-salt-la ... x-increase

The City of We are Broke and the City of We Want a Pay Raise, California has declared that the following are now public nuisances per se:

> auto parts on residential land
> any home appliance setting outside of the home
> bar-b-que smoke
> clutter on residential property
> automobiles with gasoline engines
> gas powered chain saws

The problem is the code officer is the low IQ person who determines this. The paid hearing officer is the person who finds you guilty. The judge then turns to the law and says "Nuisance per se" you had a spare tire visible to the public on your 200,000 sf property. A spare tire a an auto part. I find you guilty.

Here is a case for a hedge in the City of Indian Wells. Your hedges can be 9' but if 10' we will prosecute you!

City of Indian Wells v. LAWELLIN, Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 2015

https://scholar.google.com/scholar?scid ... dt=2&hl=en

"In August 2011, the City Council adopted Ordinance 652, effective September 2011, which amended Indian Wells Municipal Code (IWMC) section 21.50.051 hedge height standards of the City's zoning code.[1] Subdivision (a) of IWMC section 21.50.051, as amended, provides that "no hedge within a building setback area on any single family residential lot shall exceed nine feet (9') in height. . . ." Subdivision (c)(2) also limits side and rear yard hedges to a height of nine feet. Before the amendment, the height limitation was six feet, and then the City stopped enforcing it in 2007. Due to resident complaints, the City readopted the hedge height ordinance in 2011, with an increase in the height limitation from six feet to nine feet. Subdivision (e) provides that such a hedge height violation constitutes a public nuisance. Subdivision (f) provides authority for the City to enforce the hedge restriction by bringing an action to abate the nuisance."

More to come shortly on the history of nuisance per se. Attorneys and courts have grossly mis-stated the law and the intent of the law. The law of nuisance per se was never intended for garbage cans, gas blowers, bar-b-que smoke, or 10' tall hedges. Cities are grossly abusing the 1000 year historical intent of the law.

The original and historical use of the law NEVER SAID what the courts now use in their decision.

H. G. Wood legal treatise nuisance per se. [here]

THE QUESTION IS... for a city to "declare" some issue to be a public nuisance, must it in fact be a nuisance to the public, or can it be just any old thing the city counsel doesn't like such as dog walking or real estate signs? This specific has not been addressed head on in any case we have located. What exactly can be declared a nuisance to the public, and what cannot?

Additionally,

This now brings you into federal issues... you must state the ordinance In constitutional law, the phrase "either the law is invalid on its face or..." is completed by "...it is invalid as applied". These are the two primary ways a court can find a law unconstitutional.

For a huge belly laugh... The broke City of Desert Hot Springs has declared everything under the sun a public nuisance... there is nothing that would not fit within the city's vague, ambiguous, and absurd use of public nuisance per se - see below

The City of Desert Hot Springs is one of the worst offenders using this law to take your money. Avoid this city like the plague.

https://ecode360.com/43984772

§ 4.16.010 Unlawful acts—Public nuisances.
A.
The following shall be designated as unlawful acts and public nuisances:
1.
Attractive Nuisances. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain on any such premises or property any condition that constitutes an attractive nuisance including, but not limited to, the following:
a.
Abandoned, damaged or broken equipment, machinery or household items;
b.
Unprotected hazardous or unfilled pools or ponds; and
c.
Unfenced or otherwise unprotected wells or excavations.
2.
Landscaping. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain any front and visible side yards without acceptable landscaping, except for improved surfaces such as walks and driveways. Acceptable landscaping shall include any groundcover, decorative rock, redwood bark, lawn and/or other material as determined to be acceptable or required by the City’s Community Development Director or designee.
3.
Weeds. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in a manner that has resulted in overgrown weeds to be present on any front and visible side yards and sidewalks.
4.
Trees and Shrubs. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in such a manner that has resulted in:
a.
Trees and shrubs with dead or fallen limbs or branches to present a safety hazard or restrict, impede or obstruct the use of a public right-of-way, easement, sidewalk or roadway; or
b.
Trees, shrubs and plants to grow out into or over a public right-of-way, easement, sidewalk or roadway where such growth restricts, impedes or obstructs pedestrian or vehicular use of said public right-of-way, easement, sidewalk or roadway.
5.
Fire Hazard. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in such a manner that has resulted in the accumulation of dry or dead plant matter, combustible refuse and waste or any other matter which by reason of its size, manner of growth and location, constitutes a fire hazard to any building, improvement, crop or other property.
6.
Vehicle Parking. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any residential premises or residential property in the City to permit on such premises or property any operable vehicle, recreational vehicle, motor home, trailer, camper, camper shell and boat to be parked or stored outside of a garage or carport on an unpaved surface. “Paved” means covered by concrete, asphalt, brick, pavers, or a similar material as approved by the Director.
7.
Occupied Vehicles. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to permit on such premises or property any parked operable vehicle, recreational vehicle, motor home, trailer, camper, camper shell and boat to be occupied by any person or persons overnight.
8.
Maintenance of Private Walkways, Driveways and Other Improved Surfaces. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain on such premises or property any walkway, driveway or other improved surface in a manner that results in the disrepair of such surfaces or creates unsafe conditions.
9.
Parking Lot Striping and Handicapped Markings. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to fail to maintain in good condition any parking lot striping and handicapped markings on such premises or property.
10.
Termites, Insects, Vermin or Rodents. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property that results in creating a habitat for termites, insects, vermin or rodents that presents a threat to the health and safety of the public and/or a threat to property.
11.
Sewage. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to fail to properly connect any inhabited improvements on such premises or property to a sewage disposal system or sanitary sewer and/or to permit sewage seepage.
12.
Abandoned or Vacated Buildings or Structures. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to abandon or permanently vacate or cause to be abandoned or permanently vacated, any building or structure, so that it becomes accessible to unauthorized persons including, but not limited to, juveniles and vagrants, for unlawful or hazardous use, or to allow the same to become infested with vermin or rodents, or to become a menace to the health or safety of the public.
13.
Offensive Odors. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to permit or maintain on such premises or property stagnant water, refuse, rubbish, garbage, dead animal carcasses, offal, animal excrement or other waste materials which emit odors that are unreasonably offensive to the physical senses of a reasonable person of normal sensitivity or which may cause or attract insects.
14.
Reserved.
15.
Hazardous Substances and Waste. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to permit any hazardous substances or hazardous waste to be unlawfully released, discharged, placed or deposited upon any premises or onto any City property.
16.
Visibility Hazard. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain such premises or property in such a manner as to cause a hazard to the public by obscuring the visibility of any public right-of-way, road intersection or pedestrian walkway.
17.
Illegal, Nonconforming Building or Structure. It is unlawful and it shall be declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain upon any such premises or property any building or structure, or any part thereof, which has been constructed or is maintained in violation of any applicable state or local law or regulation relating to the condition, use or maintenance of such building or structure.
18.
Maintenance, Repair, Restoration or Dismantling Vehicle or Large Machinery or Equipment. It is unlawful and it shall be declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to allow or perform on such premises or property the maintenance, repair, restoration or dismantling of any vehicle, large machinery, or large equipment upon any residential property, walkway, or easement visible from a public street or sidewalk or from an adjoining property. This prohibition shall not apply to work which is specifically authorized by state or local law or regulation and shall not apply to minor repair or maintenance of vehicles, machinery or equipment which belong to the person residing at the property, and which is either performed inside an enclosed structure such as a garage or performed outside but is not visible for longer than 72 consecutive hours.
19.
Visual Blight. It is unlawful and it shall be declared a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain any such premises or property or improvement thereon in such a manner as to cause or to allow the premises, property or improvement to become defective, unsightly, or in such other condition of deterioration or disrepair as the same may cause substantial depreciation of the property values or similar detriment to surrounding properties, as well as an adverse effect on the health, safety, and welfare of the citizens of the City. Visual blight conditions include, but are not limited to, any of the following conditions:
a.
The presence of any improvement, including, but not limited to, buildings, garages, carports, wooden fences, block walls, roofs or gutters in which the condition of the patio, stucco, siding or other exterior coating has become so deteriorated as to permit decay, excessive checking, cracking or warping so as to render the improvement or property unsightly and in a state of disrepair;
b.
The presence of any improvement with cracked or broken windows, roofs in disrepair, damaged porches or broken steps;
c.
The presence of any improvement which is abandoned, boarded up, partially destroyed or left in a state of partial construction or repair for more than 90 days;
d.
The presence of abandoned, damaged or broken equipment or machinery which is visible from a public street or sidewalk or from an adjoining property; or
e.
The presence of excessive junk, refuse and garbage which is visible from a public street or sidewalk or from an adjoining property.
20.
Swimming Pools, Ponds and Other Bodies of Water. It is unlawful and it shall be a public nuisance for any person owning, leasing, occupying or having charge or possession of any premises or property in the City to maintain upon any such premises or property any swimming pool, pond, or other body of water which is abandoned, unattended, unfiltered, or not otherwise maintained resulting in the water becoming polluted.
21.
Public Toilets. It is unlawful and it shall be a public nuisance for any person to fail to maintain the floors, walls, ceilings, lavatory, urinal and toilet bowl of any public toilet free from any accumulation of dirt, filth or corrosion and/or to fail to supply a public toilet with toilet paper, hand washing facilities, soap and individual towels with a receptacle for their disposal.
22.
Privies. It is unlawful and it shall be a public nuisance for any person to construct or maintain a privy within the City in any manner that does not comply with the Health and Safety Code.
23.
Safety Hazard. It is unlawful and it shall be a public nuisance for any person to maintain any premises or property within the City in a manner that presents an imminent safety hazard and/or which creates a present and immediate danger to life, property, health or public safety.
24.
Disruptive Activities. It is unlawful and it shall be a public nuisance for any person to operate or maintain any premises or property within the City in a manner that has resulted in repeated disruptive activities including, but not limited to, disturbances of the peace, public drunkenness, drinking in public, harassment of passersby, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, illegal parking, noises disturbances as defined in Chapter 8.12 of this Code, traffic violations, curfew violations, or police detentions and arrests.
25.
Land Use Entitlements. It is unlawful and it shall be a public nuisance for any person to maintain any premises or property within the City which fails to comply with any condition imposed on any entitlement, permit, contract, or environmental document issued by or approved by the City in connection with said premises or property or improvement located thereon.
26.
Public Burning. It is unlawful and it shall be a public nuisance for any person to engage in the intentional burning of any material, structure, matter or thing on any premises or property within the City without a validly issued permit allowing such burning.
27.
Air Pollution. It is unlawful and it shall be a public nuisance for any person to:
a.
Establish, operate or allow any activity on any premises or property within the City which pollutes the atmosphere with any unwholesome, offensive, or deleterious gas, fumes, dust, smoke, or odors; or
b.
Allow any offensive odors to be emitted from offal, garbage, dead animal carcasses or any animal or vegetable matter.
28.
Mosquito Breeding Places. It is unlawful and it shall be a public nuisance for any person to maintain any premises or property within the City upon which there is stagnant or still water or a marshy condition which harbors and breeds mosquitoes or other poisonous or objectionable insects.
29.
Discharge of Sewage. It is unlawful and it shall be a public nuisance for any person to permit on any premises or property within the City any matter or substance from a private vault, cesspool, septic tank, water closet, privy vault, urinal, pipe, sewer line or any sewage, effluent, slop water or any other filthy water, matter or substance to flow or discharge upon the ground or upon any public sidewalk, street or other public place.
30.
Animal Manure—Use and Storage. It is unlawful and it shall be a public nuisance for any person to use or store non-domesticated animal manure on any premises or property within the City unless the manure has been processed or treated so as to render it substantially free of unpleasant odor.
31.
Hauling of Offensive Substances. It is unlawful and it shall be a public nuisance for any person to use, park or store a vehicle or any receptacle used for hauling or transporting any offal, manure, or the contents of a privy vault, cesspool or sink or any nauseous or offensive substances, within the City if the contents of such vehicle or receptacle are leaking or spilling from such vehicle or receptacle.
32.
Clotheslines. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City in the plain view from a public sidewalk or public street a clothes line or other object or structure, on a front yard or side yard, for purposes of hanging clothing and/or laundry.
33.
Stormwater Drainage. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City any drainage facility, such as terrace drains, down drains and catch basins, in such a condition so as to cause the drainage water to spill onto adjoining properties or other areas not intended or approved for the collection of stormwater.
34.
Water Disposal. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City where water from swimming pools, ornamental ponds, waterfalls, and similar facilities is permitted to be disposed over or onto adjoining property or onto any street, alley or public way without written permission from the affected property owner or property owners and/or a validly issued permit from the requisite agency.
35.
Signs. It is unlawful and it shall be a public nuisance for any person to maintain on any premises or property within the City any sign, including its supporting structure, which is damaged to the point of presenting a possible safety hazard.
36.
Encroachment. It is unlawful and it shall be a public nuisance for any person to cause or permit any encroachment onto public property for which no encroachment permit has been issued or which is in violation of the provisions of an encroachment permit or any applicable provision of the municipal code.
37.
Water Drainage. It is unlawful and it shall be a public nuisance for any person to cause or permit water, including, but not limited to, excess irrigation runoff, to drain over or onto adjoining property or onto any street, alley or public way in a manner which causes damage to the adjoining property, street, alley or public way.
38.
Municipal Code Violations. It shall be deemed a public nuisance for any member of the public to create, cause, commit, permit or maintain any condition or to perform or cause to be performed any activity prohibited by this municipal code or specifically identified as a public nuisance by the municipal code and/or any applicable statute, rule, code or regulation.
39.
California Civil Code. The City may declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Civil Code Sections 3479 and 3480.
40.
California Red Light Abatement Act. The City may:
a.
Declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Penal Code Section 11225; and
b.
Commence any action or proceeding pursuant to the California Red Light Abatement Act to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.
41.
California Drug Abatement Act. The City may:
a.
Declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Health and Safety Code Section 11570; and
b.
Commence any action or proceeding pursuant to the California Drug Abatement Act to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.
42.
State Housing Law. The City may:
a.
Declare that a public nuisance exists whenever any member of the public creates, causes, commits, permits or maintains any condition or performs or causes to be performed any activity that falls within the scope of the definition of “public nuisance” as set forth in California Health and Safety Code Sections 17910 through 17995; and
b.
Commence any action or proceeding set forth therein to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.
43.
Weed Abatement. The City Council may:
a.
Declare by resolution pursuant to California Government Code Section 39561 et seq., that a public nuisance exists with respect to a specific parcel whenever that parcel is being maintained in a manner that has resulted in weeds, as that term is defined in California Government Code Section 39561.5, being grown upon the streets, sidewalks or private property in the City; and
b.
Commence any action or proceeding pursuant to California Government Code Section 39561 et seq., to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.
44.
Rubbish, Refuse and Dirt. The City Council may:
a.
Declare by resolution pursuant to California Government Code Section 39561 et seq., that a public nuisance exists with respect to a specific parcel whenever that parcel is being maintained in a manner that has resulted in an accumulation of rubbish, refuse and dirt upon parkways, sidewalks or private property in the City; and
b.
Commence any action or proceeding pursuant to California Government Code Section 39561 et seq., to abate the public nuisance, to pursue all other remedies against the violator, to seek the imposition of all penalties against the violator and to recover any and all costs from the violator.
45.
Conditions of Approval. It shall be deemed a public nuisance for any person to maintain any premises or property within the City which fails to comply with any condition imposed on any entitlement, permit, license, contract, or environmental document issued by or approved by the City in connection with said premises or property or improvement located thereon.
B.
The provisions of this chapter are applicable to all property throughout the City wherein any conditions hereinafter specified are found to exist. This chapter shall not be applicable to any condition which would constitute a violation of this chapter but which is duly authorized under any other City, State or Federal law.
C.
The list of activities, uses of property and conditions of property declared to be a public nuisance in this chapter is not intended to be exclusive. The City Council expressly reserves to itself the right to declare other and additional activities, uses of property, and conditions of property to be nuisances subject to abatement pursuant to this title or by any other means authorized by law.
D.
Every owner, occupant, lessee or holder of any possessor interest of real property within the City is required to maintain such property so as not to violate the provisions of this chapter. The owner of the property shall remain liable for violations hereof regardless of any contract or agreement with any third party regarding such property or the occupation of the property by any third party. Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by the former owner, is liable therefor in the same manner as the one who first created it.
(Prior code § 83.01; Ord. 576 5-17-16; Ord. 676 11-20-18; Ord. 757 6-7-22; Ord. 774 2-21-23)