Thain v. City of Palo Alto

• Decision Date: 29 August 1962
• Citation: 24 Cal.Rptr. 515,207 Cal.App.2d 173
• Court: California Court of Appeals Court of Appeals
• Parties: Alexander THAIN, Plaintiff and Appellant, v. CITY OF PALO ALTO, a Municipal Corporation, Harold L. Marty, as City Assessor and Tax Collector of the City of Palo Alto, H. M. Witbeck, as City Engineer, alias Superintendent of Public Works of the City of Palo Alto, et al., Defendants and Respondents. Civ. 20025.

Page 515

24 Cal.Rptr. 515

207 Cal.App.2d 173

Alexander THAIN, Plaintiff and Appellant, v. CITY OF PALO ALTO, a Municipal Corporation, Harold L. Marty, as City Assessor and Tax Collector of the City of Palo Alto, H. M. Witbeck, as City Engineer, alias Superintendent of Public Works of the City of Palo Alto, et al., Defendants and Respondents.

Civ. 20025.

District Court of Appeal, First District, Division 1, California.

Aug. 29, 1962.

Rehearing Denied Sept. 26, 1962.

Hearing Denied Oct. 24, 1962.

Alexander Thain, Palo Alto, appellant in pro. per.

Robert E. Michalski, City Attorney of the City of Palo Alto, Stanley R. Norton Asst. City Atty., of the City of Palo Alto, for respondents.

SULLIVAN, Justice.

In this action involving a weed abatement ordinance of the City of Palo Alto, hereafter referred to as City, the plaintiff, a property owner, appeals from a judgment in favor of the above municipality, its assessor and its superintendent of public works. Although represented by counsel below, plaintiff and appellant appears here in propria persona.

Ordinance No. 1313, which is the center of the present controversy, was adopted by the Council of the City of Palo Alto on November 27, 1950, its introductory language reciting that 'an emergency exists for the passage of this ordinance; * * *.' We first set forth its terms in substance: Section 32.01 provides that no owner or other specified person occupying or having charge of any building, lot or premises shall permit weeds to remain on such premises or public sidewalks or streets, or alleys between said premises and the center line of any public street or alley. 'Weeds' means 'all weeds growing upon streets, alleys, sidewalks, or private property' including weeds which bear or may bear seeds of a downy or wingy nature, weeds and grasses which may attain such large growth as to become, when dry, a fire menace, weeds otherwise noxious or dangerous, poison oak and poison ivy in a condition of growth constituting a menace to public health, and accumulations of refuse, cuttings and other combustible trash. The section requires that every property owner remove or destroy such weeds.

Section 32.02 provides that whenever any such weeds are growing upon such properties and streets, the Council shall pass a resolution declaring them to be a public nuisance and order the City's superintendent of public works to give notice of the passage of the resolution, in substantially the form prescribed by the ordinance, stating that unless such nuisance be abated without delay, the work of abating will be done by city authorities and the expense thereof assessed against the property on or in front or rear of which such weeds shall have been destroyed or removed. 'Such resolution shall fix the time and place for hearing any objections to the proposed destruction or removal of such weeds.' The prescribed form of notice, found in section 32.03,inter alia, gives notice 'that property owners shall without delay remove all such weeds' and that all owners having objection to the proposed destruction or removal in lieu thereof by city authorities are notified to attend a meeting of the City's Council at the City Hall at a specified time. Such notice must be published at least twice in a newspaper published and circulated in defendant City, the first publication to be at least ten days before the noticed meeting. At the abovementioned hearing, the City Council under the mandate of section 32.04 must hear and consider any and all objections to the proposed destruction or removal of such weeds and allow or overrule the same 'after which the council shall thereupon be deemed to have acquired jurisdiction' to proceed with such destruction or removal. Under section 32.05, the City Council shall order the superintendent of public works to effectuate the abatement by authorized agents or representatives. However, such section further stipulates that any property owner shall have the right to destroy or remove the weeds himself, provided it is done before the arrival of the superintendent or his representative.

The superintendent of public works must, under section 32.06, keep an account of the cost of the above abatement work which is incorporated in the report and assessment list prepared by him for the City Council and filed with the clerk thereof. Such report identifies each parcel of land affected and separately states the expense proposed to be assessed against it. A copy of such report and assessment is posted at the City Hall, together with a notice of the time and place of the hearing and confirmation thereof, said notice in a form prescribed by the statute being also published twice in a newspaper of general circulation in the City. (§ 32.07.) At the hearing, the City Council must hear the report and any objections of property owners liable to be assessed pursuant thereto, make any necessary modifications and confirm the report and assessment list by resolution. (§ 32.08.) Thereafter, the cost of abatement work for each lot 'shall constitute special assessments against such respective lots * * * and * * * a lien on such property for the amount of such assessments, until paid.' Under section 32.09, the above assessments are entered on the tax roll upon which municipal taxes are to be collected, included on the same tax bills and collected at the same time and in the same manner.

The present action arises from proceedings taken pursuant to the above ordinance during the fiscal year July 1, 1958, to June 30, 1959, resulting in a special assessment against appellant's property in the following fiscal year 1959-1960. On October 13, 1958, the City Council, pursuant to section 32.02 of the ordinance, passed Resolution No. 3037, entitled 'Resolution Declaring Weeds to be a Nuisance.' ¹ 'Notice to Destroy Weeds,' as required by the above sections 32.02 and 32.03, and providing for a hearing of any objectioins by property owners at a meeting of the City Council to be held on November 10, 1958, was published by the superintendent of public works. ² On November 10, 1958, the Council passed, pursuant to section 32.04, its Resolution No. 3041, entitled 'Resolution Ordering Weed Nuisance Abated.' Work of abatement was carried out by John C. Throckmorton, Jr., doing business as Nu-Lawn Chemical Company, under a contract with City, approved by its Council. Upon completion of abatement work, the superintendent of works filed his report and assessment, and the respondent City published in July 1959, a 'Notice of Hearing on Report and Asessment for Weed Abatement' pursuant to section 32.07, fixing August 10, 1959, as the date for consideration and confirmation thereof by the City Council and for the hearing of any objections thereto. On August 10, the Council passed its Resolution No. 3124, confirming the report and assessment.

Appellant thereafter received from respondent City a tax statement for the fiscal year July 1, 1959, to June 30, 1960, which separately stated, in addition to his general municipal taxes, an assessment of $64.48 for 'weed abatement.' This amount he paid under protest. On April 28, 1960, he commenced the instant action.

Appellant's first amended complaint is in three counts. His first cause of action, seeking declaratory relief, alleges that '[a]n actual controversy exists between the plaintiff and the defendants as to the validity, operation and effect of the said Ordinance No. 1313 * * *.' Upon such three-fold division, appellant by particular allegations, constructs three claims of unconstitutionality: 1) That the ordinance is unconstitutional, presumably on its face, in that it does not define the conditions under which the weeds became a nuisance and is so vague and indefinite as to be unintelligible, failing to set definite standards for the guidance of property owners; that it is also vague and indefinite by failing to prescribe standards for the abatement work and constitutes a deprivation of property rights by failing to provide for damages; that it is unreasonable in requiring property owners to remove weeds from streets and alleys; that it conflicts with the state Constitution by embracing several subjects; that it violates due process by failing to provide for any actual or constructive notice to property owners that a particular piece of property has any alleged nuisance on it; 2) that the ordinance is unconstitutional as applied in that the City engineer contends it is to be applied to unimproved and undeveloped land according to his own definition of the same, hence being unjustly discriminatory; that as a result of the specifications for weed abatement prescribed by City for its contracting representative, the abatement work is unreasonable, being commenced at a time of year when it cannot be determined if the weeds will be a nuisance; that it does not specify the means or method of abating the nuisance; that it does not provide for any notice that there is a nuisance on a particular identifiable parcel of property; that the cost of $64.48 charged to appellant was excessive, unreasonable, and discriminatory; and that appellant had no remedy against defendants for wrongful and negligent acts committed by them in abating alleged nuisances; [207 Cal.App.2d 181] and 3) that the effect of the ordinance is unclear since it cannot be determined whether it is classified as a penalty or fine or as a public improvement assessment.

Appellant's second cause of action, seeking a refund of the assessment paid under protest, alleges that appellant's property was not vacant land but had an apricot grove, which was not a public nuisance, and further that, since previous abatement activities in prior years had sterilized the soil for any vegetable growth, no nuisance could have existed in the year here under review.

In his third cause of action, appellant seeks injunctive relief against 'further useless and capricious attempts * * * to abate a nuisance which does not...