Héctor Hernández | County on Shaky Legal Ground

Letters to the Editor
Letters to the Editor

Part 2 of 3.

In my previous letter, I wrote about L.A. County’s ill-advised plan to recover defensible space inspection costs through Section 14902 of the California Health and Safety Code. I also wrote that the plan was sneaky at best and illegal at worst. In this letter, I’ll look more closely at the code and explain why the county’s plan is built on shaky legal ground.

The only reason my property and the 20,000 other properties this year and the 60,000 properties last year were included in the Board of Supervisors’ Jan. 9 resolution — which declared hazardous brush on designated properties to be a public nuisance requiring abatement — was because these properties are located in either a High Fire Hazard Severity Zone or a Very High Fire Hazard Severity Zone, and the Fire Department believes (mistakenly, I might add, but that’s a subject for another letter) that California Public Resources Code Section 4291 mandates that all homes in an HFHSZ or VHFHSZ receive annual defensible space inspections.

The key point is the board added these properties to the resolution not because they were determined to have hazardous brush — that determination won’t be made until the Fire Department actually begins inspecting properties on April 1 — but because they were located in a HFHSZ or VHFHSZ. But here’s the rub. California Health & Safety Code doesn’t give the board authority to declare a public nuisance on a property simply because it’s located in a HFHSZ or VHFHSZ. Section 14880 of Part 5 (Abatement of Hazardous Weeds and Rubbish) of Division 12 of the California Health & Safety Code is clear that the board can only declare a public nuisance if weeds, which includes hazardous brush, are ACTUALLY growing on a property. The plain language of 14880 says so: “Whenever weeds are growing upon any street, sidewalk or on private property in any county, the board of supervisors, by resolution, may declare the weeds a public nuisance.”

The board jumped the gun, and a plan to recover inspection costs from properties that shouldn’t have been listed in the resolution in the first place is just the first tremor of the legal ground the plan sits on. The real shaker comes from 14902, the section of the code the county has used and plans to continue using as the basis for recovering inspection costs. Unfortunately, the Fire Department and the board failed to properly consider 14902. They saw only what they wanted to see. In their eyes, 14902 allows recovery of all inspection costs as long as the board has issued an order to abate. What they ignored was the importance of the very first sentence of 14902 and the restriction it imposes. That sentence reads as follows:

“Before the arrival of the officer, board, or commission, or their representatives, any property owner may remove weeds at his or her own expense.” Clearly, this section of the code applies only to a narrow class of property owners who perform their own abatement. It doesn’t apply to property owners who do not perform abatement.

What 14902 allows is the recovery of abatement costs (including inspection costs) from property owners who perform their own abatement after the board has issued an abatement order. It doesn’t extend to property owners who receive an abatement order but don’t perform abatement. The section of the code that applies to that class of property owners is Section 14912. But that section allows for the county’s actual costs of abatement, including inspection costs, to be recovered. So, neither 14902 nor 14912 provide legal support to recover inspection costs from properties where the board has issued an order to abate but no abatement is performed, either by the property owners themselves or the county. So what about this third class of property owners where the board has issued an order to abate but subsequent Fire Department inspection finds no hazardous brush? Which section of the code provides for recovery of their inspection costs? The answer: none.

The county, through an ill-advised plan to recover inspection costs, has put itself on very shaky legal ground, and the sooner it wakes up to its predicament, the sooner it can start to find a way out of the mess of a hole it has dug before it digs even deeper. 

Héctor Hernández

Santa Clarita

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