Palmer v. City of Oakland

Filed 9/29/06 Palmer v. City of Oakland CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In appeal[1] number A112385, Paul Palmer appeals a judgment denying his petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. The petition sought to overturn the City of Oakland’s (City) designation of Palmer’s Oakland property as a public nuisance and the subsequent imposition of civil penalties. On appeal, Palmer contends: (1) the administrative appeal hearing on the issue of nuisance must be set aside as it was fundamentally unfair due to hearing officer bias; (2) the penalty hearing decision must also be set aside because it followed the invalid appeal hearing decision.

In appeal number A112211, Paul Palmer appeals the trial court’s order granting the City’s motion for a mandatory preliminary injunction. The injunction ordered Palmer to vacate his property, not to rent any units at the property or collect rents thereon, and to provide relocation benefits to each displaced tenant. The injunction further prohibited any use or occupation of the property effective November 1, 2005, ordered Palmer to post a $2000 bond for each unit still occupied on November 1, 2005, and ordered the Sherriff to remove any person found on the property after November 15, 2005.

FACTS AND PROCEDURAL BACKGROUND

A. Administrative Proceedings

Palmer is the owner of a property located at 1450 32nd Street in Oakland. The property consists of a 8000-plus square feet warehouse building and a 2000 square feet ancillary office building. Palmer converted this warehouse/office structure into live/work spaces for residential occupancy without complying with the applicable permitting process. An inspection of the property by the City’s Office of Planning and Building on June 17, 2002, identified a litany of building code violations, including interior structural alterations, addition of floor assemblies, wall assemblies, exit corridors, division of tenant spaces, without required approvals, permits or inspections. The list of violations also included electrical wiring installed in violation of code requirements, as well as plumbing and mechanical equipment installed in violation of code requirements.

In September 2002, the City’s Code Enforcement Division offered Palmer a compliance plan to abate the violations by February 2003. The City advised Palmer if he did not enter a compliance plan then an enforcement action would begin. Palmer did not enter the compliance plan or correct the building code violations--instead he approached the City with a proposal to convert the warehouse structure to joint living and working quarters. In April 2003, by way of preliminary input for his proposal, the City informed Palmer he would need a conditional use permit and a design review permit, and specified a few design requirements. Palmer submitted an application for a conditional use permit on August 28, 2003.[2]

Meanwhile, on June 10, 2003, the City issued a Declaration of Public Nuisance (Declaration). The City determined the list of building code violations previously identified in the building rendered conditions unsafe to the health, safety, and welfare of its occupants. The Declaration revoked the building’s Certificate of Occupancy and found it unsafe to occupy. The Declaration ordered Palmer to execute a compliance plan within 45 days, obtain permits within 75 days, and obtain final inspection on rehabilitation work within 135 days. The Declaration advised Palmer failure to comply would subject him to additional administrative penalties, and informed him he could appeal the City’s determinations to an independent Administrative Hearing Examiner.

On July 25, 2003 (July Appeal Hearing), Palmer appeared with an advisor before Administrative Hearing Examiner Shelley Gordon. Palmer requested a 60-day continuance on the grounds he needed more time to prepare and to obtain a “specific bill of particulars“ from the City regarding “what exactly is alleged is in violation.” Gordon granted a 40-day continuance and reset the hearing for September 4, 2003 (September Appeal Hearing). However, with the agreement of the parties, Gordon permitted the City to present its evidence so Palmer could respond in full for the September 2003 hearing. Building Inspector Rich Fielding then testified about the various building code violations at Palmer’s property. Fielding stated Palmer’s property is a warehouse structure which had been extensively developed on the interior to create seven separate tenant spaces without permit approval.

Palmer submitted a hearing brief before the September Appeal Hearing in which he alleged departmental obstruction and abuse of power, and disputed many of the code violations. At the September Appeal Hearing, Palmer presented testimony from a structural engineer, an architect, and a number of the tenants currently occupying space in the property. In his testimony, Palmer asserted he had an “intrinsic” legal right to convert his property to live/work space without a conditional use permit. Palmer asserted he had encountered nothing but “negativism” in dealing with the City in regard to his efforts to allow his tenants to “construct their own environments.” Palmer asserted he had been bullied and threatened by the City throughout its enforcement proceedings.

Hearing Officer Gordon issued her decision on September 15, 2003. Gordon stated: “I find the City did not err in any way in issuing the Declaration of Public Nuisance. The evidence is overwhelming that this property is not in compliance with applicable zoning and building code requirements, and that substantial remodeling has been done without the benefit of permit or inspection, and that the property has been converted into Live-Work space without permit or zoning clearance. While I understand the value that the live-work community that has been established there provides to each of the tenants, the building fails to meet the structural, plumbing, [and] electrical standards that are required.” Thereafter, the City posted a “DO NOT OCCUPY” order to vacate at the property on September 19, 2003, issued an Order to Abate, and began to assess civil penalties for the ongoing code violations at the property.

Palmer requested an Administrative Appeal Hearing on the enforcement action and imposition of penalties. Before the hearing, Palmer wrote to proposed hearing officer Larry Carroll requesting a copy of his contract with the City and opportunity for voir dire of the arbiter. Palmer appeared on February 6, 2004 (Penalty Appeal Hearing) before hearing officer Carroll and registered his objection to the proceedings. On February 17, 2004, the hearing officer issued his determination upholding the Declaration of Public Nuisance/Substandard and the imposition of administrative civil penalties on the property. Hearing officer Carroll found Palmer “failed to cite or present any material evidence that the Building Official erred or abused his discretion by finding his building substandard and declaring it a public nuisance. In fact, Mr. Palmer has acknowledged the improper use and filed an application with the Zoning Division for a minor conditional use permit approve [sic] the current uses at 1450 32nd Street.”

B. Court Proceedings

On April 22, 2005, the City filed a complaint for injunction, civil penalties, and other equitable relief. On May 25, 2005, the City filed its motion for preliminary injunction. In his opposition to the City’s motion for injunction, Palmer declares he has “performed repairs to the Property since the City’s 2002 inspection.” The opposition also included declarations from ten current tenants of the property. Each stated he or she was satisfied with the conditions and felt safe and secure at the property. At a hearing on July 8, 2005, the trial court continued the matter for 45 days to allow the City to inspect the current condition of the property in light of Palmer’s claim he had completed the repairs sought by the City. Thereafter, both parties submitted supplemental declarations and authorities. The trial court issued its order granting the preliminary injunction on September 13, 2005. Palmer filed a timely notice of appeal on October 12, 2005 (No. A112211).

Meanwhile, on September 23, 2005, Palmer filed a petition for writ of administrative mandamus. The trial court concluded the petition was timely. The court stated due to problems in assembling the administrative record, there was “a significant issue” as to when the 30-day statute began to run. The trial court denied the petition on the merits on November 1, 2005. Palmer filed a timely notice of appeal on November 22, 2005 (No. A112385).

DISCUSSION

A. Appeal No. 112385

1. Standard of Review

The petition for superior court review of the final decision upholding the finding of public nuisance was brought pursuant to Code of Civil Procedure section 1094.5.

“ ‘The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.’ (Code Civ. Proc., § 1094.5, subd. (b).) To the extent a mandamus proceeding involves the interpretation of a statute . . . the question is one of law for our de novo review. [Citation.] Likewise, [appellant’s] challenge to the procedural fairness of the administrative hearing . . . is reviewed ‘de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.’ [Citations.]” (Sanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069, 1078 (Sanchez).)

2. Due Process Claim

Palmer contends he is entitled to a new administrative appeal to determine the validity of the Declaration because hearing officer Gordon must be disqualified under Haas v. County of San Bernardino (2002) 27 Cal.4th 1017 (Haas). In Haas, the Supreme Court held “a temporary administrative hearing officer has a pecuniary interest requiring disqualification when the government unilaterally selects and pays the officer on an ad hoc basis and the officer’s income from future adjudicative work depends entirely on the government’s goodwill.” (Id. at p. 1024.)

The trial court concluded this claim was waived because Palmer did not timely object to Gordon. This issue is subject to de novo review. (See Sanchez, supra, 140 Cal.App.4th at p. 1078.)

Palmer claims he raised the issue of disqualification because when he learned Gordon was to preside at the Appeal Hearing he requested information regarding her employment with the City. The evidence of Palmer’s request for information is an unsigned, typewritten letter to Gordon dated July 20, 2003, in which Palmer asks Gordon: (1) to explain the nature of her employment with the City, including whether she has a contract or is hired on a recurrent basis at the City’s pleasure; (2) how she can certify her impartiality; (3) why the hearing was not before “an appeals board consisting of unpaid citizens, as laid out in state law?”[3] However, at the July Appeal Hearing, Palmer did not reiterate these concerns or refer in any way to his letter of July 20 to Gordon. Palmer did not object to Gordon on grounds of bias and did not request her recusal or disqualification. In fact, Palmer raised the issue of fundamental fairness at the July Appeal Hearing, but only to advance his request for a continuance, not to challenge the impartiality of hearing officer Gordon. Further, in his hearing brief submitted before the September Appeal Hearing, Palmer did not argue Gordon was biased or seek her disqualification because she had been appointed by the City. Finally, Palmer did not object to Gordon or question her impartiality when he appeared before her at the September Appeal Hearing.

This starkly contrasts with the actions of petitioner in Haas. There, Theodore Haas objected to a hearing officer appointed by the County Board of Supervisors immediately upon receipt of the notice of hearing, on the grounds there was a “conflict of interest in violation of [due process].” (Haas, supra, 27 Cal.4th at p. 1021.) Moreover, “Haas renewed his objection to the hearing officer when the hearing convened.” (Ibid.) Haas argued the hearing officer “had an impermissible financial interest in the case” arising from the manner of her appointment and remuneration, and requested she recuse herself. (Ibid.) By contrast, Palmer’s letter to Gordon requests information but states no specific objection on grounds of bias. Although the letter implies Palmer had concerns about Gordon’s neutrality before the July Appeal Hearing, Palmer did not object to Gordon presiding at either the July or September Appeal Hearings. Nor did Palmer object to Gordon in his lengthy hearing brief filed before the September Appeal Hearing.

Palmer claims even if he did not raise the issue of bias at the Appeal Hearings, he nonetheless raised the issue at the Penalty Appeal Hearing. In other words, Palmer contends he preserved for appeal the issue of Gordon’s bias by raising it later in the administrative process before Hearing Officer Carroll at the subsequent Penalty Hearing. Palmer relies on Nasha L.L.C. v. City of Los Angeles, (2004) 125 Cal.App.4th 470 (Nasha). We are not persuaded.

In the first place, Nasha concerned a claim of actual bias. Nasha was not concerned, as we are here, with assessing a “constitutionally impermissible appearance and risk of bias” (Haas, supra, 27 Cal.4th at p. 1034) based on “whether the adjudicator’s financial interest would offer a possible temptation to the average person as judge not to hold the balance nice, clear and true.” (Id. at p. 1026.) By contrast, to prove actual bias in the City’s rejection of its development plans, Nasha carried the burden of showing “ ‘ “an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.’ “ [Citation.] A party seeking to show bias or prejudice on the part of an administrative decision maker is required to prove the same ‘with concrete facts: “ ‘[b]ias and prejudice are never implied and must be established by clear averments. ‘ “ ‘ [Citations.]” (Nasha, supra, 125 Cal.App.4th at 483 [italics added].)

Nasha was unable to make the necessary showing of bias before the Planning Commission because Commissioner Lucente did not disclose he had written an article in a residents’ association newsletter opposing Nasha’s project. (Id. at 477.) However, the court of appeal held Lucente’s letter “attacking the project as a ‘threat to wildlife corridor,’ gives rise to an unacceptable probability of actual bias.” (Id. at p. 483.) Further, the court rejected the City’s contention Nasha waived the issue of bias by failing to raise it at the administrative level. Rather, the court concluded Nasha raised the issue because “one week after the Planning Commission hearing, Nasha filed a request for reconsideration based on new facts relating to bias by Lucente, specifically, Lucente’s . . . undisclosed authorship of the newsletter article attacking the project.” (Id. at p. 485 [italics added].)

Here, by contrast, there were no new facts relating to Gordon’s financial interests discovered after the Appeal Hearings. If there was any “constitutionally impermissible appearance and risk of bias” latent in Gordon’s relationship with the City of Oakland, it existed from the outset and Palmer eschewed several opportunities to object to it or demand Gordon’s disqualification based upon it. (Haas, supra, 27 Cal.4th at p. 1034.)

Second, Palmer’s claim he preserved the issue by raising it at the Penalty Hearing is factually inaccurate. Palmer did not object to Gordon at the Penalty Hearing. Rather, Palmer objected to Carroll as the hearing officer. Indeed, Carroll responded to Palmer’s objection, stating, “I can note that you have a fundamental objection to the hearing officer that’s currently before you.” Therefore, while Palmer may have preserved for appeal a claim of bias against Penalty Hearing Officer Carroll, it is not Carroll’s bias he challenges on appeal, but Gordon’s. In sum, we conclude Palmer did not timely object to Appeal Hearing Officer Gordon, and therefore any claim of disqualification is waived. (See In re Steven O. (1991) 229 Cal.App.3d 46, 54 [party may waive a judge’s disqualification by failing to raise the issue promptly and failure to comply with this requirement constitutes an implied waiver of the disqualification]; see also Barnes v. Personnel Department (1978) 87 Cal.App.3d 502, 506 [appellant cannot contend on appeal it was improper for the City manager who terminated him to serve as the hearing officer where appellant, represented by counsel, never objected to having the City manager sit in review]; Linney v. Turpen (1996) 42 Cal.App.4th 763, 770 [failure to utilize procedure for challenging hearing officer precludes raising issue of bias on appeal].)

3. Merits of Appeal Hearing Officer Gordon’s Decision

Palmer contends Gordon misapplied Oakland Municipal Code (OMC) sections 15.08.090 and 15.08.340 in upholding the City’s Declaration without making a finding Palmer’s property constituted an unsafe condition. Palmer asserts these OMC sections do not allow the City to make a Declaration upon evidence of code violations alone. The City responds the OMC does not require a building to pose a danger to life and limb for it to be deemed substandard and declared a public nuisance. The City contends an unsafe building is only one criterion for a determination a building is substandard and OMC section 15.08.340 provides a whole list of infractions which render a building substandard. Palmer replies the City misreads its own building code, and asserts Gordon had to inquire about the safety of the building in order to uphold the Declaration. This is an issue of statutory interpretation we review de novo. (Sanchez, supra, 140 Cal.App.4th at p. 1078.)

OMC section 15.08.090 (Substandard Buildings and Structures) states: “Buildings and structures or portions thereof which are determined to be substandard as defined in this Code are hereby declared to be Public Nuisances and shall be abated by repair, rehabilitation, demolition or removal and may be vacated in accordance with the procedures specified in Article XI and XII of this Code.” This means any building found to be substandard is a public nuisance.

OMC section 15.08.340, subsection (A) states: “Any building or portion thereof which is determined to be an unsafe building in accordance with Section 102 of the Oakland Building Code; or any building or portion thereof, including any dwelling unit, guest room or suite of rooms, or the premises on which the same is located, in which there exists any of the conditions referenced in this section to an extent that endangers the life, limb, health, property, safety or welfare of the public or the occupants thereof shall be deemed and hereby are declared to be substandard buildings.”

OMC section 15.08.340, subsections (B)-(O) list a variety of conditions which render a building substandard. For example, subsection (C) states: “Buildings or portions thereof shall be deemed substandard when they are or contain structural hazards”; subsection (E) states: “Electrical wiring which was installed in violation of code requirements in effect at the time of installation or electrical wiring not installed in accordance with generally accepted construction practices in areas where no codes were in effect or which has not been maintained in good condition or which is not being used in a safe manner shall be considered substandard”; subsection (F) states: “Plumbing which was installed in violation of code requirements in effect at the time of installation or plumbing not installed in accordance with generally accepted construction practices in areas where no codes were in effect or which has not been maintained in good condition or which is not free of cross-connections or siphonage between fixtures shall be considered substandard”; subsection (G) states: “Mechanical equipment which was installed in violation of code requirements in effect at the time of installation or mechanical equipment not installed in accordance with generally accepted construction practices in areas where no codes were in effect or which has not been maintained in good and safe condition shall be considered substandard”; subsection (H)(4) states: “. . . or buckled exterior wall coverings or roof coverings”; subsection (L) states “. . . buildings or portions thereof whose exit facilities were installed in violation of code requirements in effect at the time of their construction or whose exit facilities have not been increased in number or width in relation to any increase in occupant load due to alterations, additions or change in use or occupancy subsequent to the time of construction shall be considered substandard; and, tellingly, subsection (N) states: “All buildings or portions thereof occupied for living, sleeping, cooking or dining purposes which were not designed or intended to be used for such occupancies shall be considered substandard.”

Even if, as asserted by Palmer, a finding of endangerment is required under OMC section 15.08.340, subsection (A) before a property can be declared substandard, we would still affirm. There is ample record evidence to support a finding the code violations at Palmer’s property “endanger[ed] the life, limb, health, property, safety or welfare of the public or the occupants thereof.” (OMC section 15.08.340, subsection (A).) Building Inspector Fielding testified that Palmer’s building was inspected by specialty inspectors as well as plan check engineering department personnel. Fielding testified the inspectors were not able to gain access to the whole property and he estimated only 50% of the building was subject to inspection. Even such restricted inspections revealed faults in the plumbing system which could result in the emission of sewage gases or sewage backup; a fireplace not properly vented; improper sizing in water pipes affecting water pressure; gas lines installed without testing and with improper unions in the gas lines which could leak; a clothes dryer which does not vent to the outside; one kitchen serving seven tenant spaces; a water heater which is not seismically braced; electric wiring with improper splicing and missing connectors; structural framing defects including lack of seismic resistance, inadequate connections to the foundations, and under length framing members; other construction defects such as rooms lacking minimum ceiling heights, stairs lacking handrails, insufficient supports for stairs, and raised balconies without guardrails; and lack of a fire suppression system. Taken together, these building code infractions clearly pose a danger to the safety and welfare to the occupants of the building. Accordingly, we conclude Appeal Hearing Officer Gordon did not abuse her discretion in finding the City was justified in issuing a Declaration of Public Nuisance.[4]

B. Appeal No. 112211

1. Standard of Review

Generally, granting of a preliminary injunction is within the discretion of the trial court and is not disturbed on appeal in the absence of an abuse of discretion. (Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242, 247.) The substantial evidence rule applies and we view the facts in the light most favorable to the prevailing party. (Ibid.) “An appeal from an order granting a preliminary injunction involves a limited review of these two factors-likelihood of success on the merits and interim harm. If the trial court abused its discretion on either factor, we must reverse.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625 (Shoemaker).) In the case of a mandatory injunction, review entails greater scrutiny. “ ‘The judicial resistance to injunctive relief increases when the attempt is made to compel the doing of affirmative acts. A preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.’ [Citation.] As our Supreme Court noted many years ago, ‘[t]he granting of a mandatory injunction pending the trial, and before the rights of the parties in the subject matter which the injunction is designed to affect have been definitely ascertained by the chancellor, is not permitted except in extreme cases where the right thereto is clearly established and it appears that irreparable injury will flow from its refusal. [Citations.]’ “ (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295; Shoemaker, supra, 37 Cal.App.4th at p. 625.)

2. Likelihood of success on the merits

Palmer contends to prevail on the merits, the City must establish (1) that it prevailed at the Appeal Hearing and thus the Declaration is valid; and (2) that eviction is necessary to bring the property up to City code.[5] Palmer contends the City is unlikely to prevail on the merits because the Appeal Hearing must be set aside due to hearing officer bias and misapplication of the law by the hearing officer. These are the same contentions Palmer raised in Appeal No. 112385, which we discussed and rejected above. Accordingly, for the reasons set forth above, we conclude the City has demonstrated a strong likelihood of prevailing on the merits of its claim Palmer’s property is a public nuisance subject to closure and abatement.

3. Irreparable Injury

This factor weighs the relative equities in the “the interim harm the [City] is likely to sustain if the injunction were denied compared to the harm [Palmer] is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) The harm likely suffered by Palmer is the temporary loss of use of his building as well as the loss of rental income from the property. This is principally a financial harm.

The City, on the other hand, suffers an ongoing public nuisance, maintained in blatant contravention of its building codes and planning ordinances, which poses a clear and present danger to the heath, welfare and safety of the public. The First Supplemental Declaration of Inspection Supervisor Richard Fielding, of the Building Services Division of the City’s Community and Economic Development Agency, is particularly telling. Fielding and a City Attorney inspected Palmer’s property on July 21, 2005, shortly before the injunction issued, and after Palmer claimed to have made necessary repairs Fielding stated, “The vast majority of the dangerous violations originally cited through survey inspections . . . still exist. New violations have been created by continuing unpermitted construction. Further, the essential problem remains: The property has never been approved for residential occupancy, and all of the construction done to convert it to that use was done without the benefit of permits, inspections, or approvals.”

Fielding states a three-story structure has been constructed inside the warehouse section of the property, containing two 2-story spaces used as dwelling areas. Fielding noted a windowless bedroom . . . which lacks proper light, ventilation, and egress. Inside and outside this room there is exposed electrical wiring.” Also, access to the second floor spaces is by stairs to a landing with no guardrails. Fielding noted stairs that were “constructed of used materials and materials of insufficient size for stair carriages” and lacked handrails. He also observed ongoing active construction on the second and third floors, and a water heater with an improper connection to the vent collar and lacking temperature/pressure relief piping. Fielding stated numerous other dwelling units had been constructed and noted at least one dark, poorly lit, windowless corridor approximately 10-15 feet long. Fielding described numerous other building code violations in the living units constructed without permits in the large warehouse, including lack of proper windows, exits, stairs, railings, electrical wiring, and plumbing. Two wood burning stoves had been installed without inspection for clearance to combustibles and other requirements. Fielding noted unprotected electrical wiring in close proximity to a hot tub that had been installed. Fielding opined that the “potential injury, loss of life, and the threat to the surrounding residential neighborhood posed by this property make it dangerous, substandard, and a public nuisance.” Even under the heightened standard of review for mandatory injunctions, this provides ample evidence the harm to the City from this serious ongoing public nuisance far outweighs any purely financial harm to Palmer. Accordingly, we affirm the trial court’s order granting the City’s motion for preliminary injunction.[6]

DISPOSITION

The judgment in each case is affirmed. Palmer shall bear costs on appeal.

_________________________

Parrilli, Acting P. J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] These cases have been consolidated for purposes of oral argument and decision.

[2] Building Code Enforcement and Planning & Zoning are two different departments within the City’s Community & Economic Development Agency. Palmer’s application for a conditional use permit for zoning purposes did not obviate the requirement he cure the code violations identified by Code Enforcement.

[3] The trial court expressed some skepticism regarding the authenticity of this letter. The trial court’s skepticism was based on (1) the fact the letter had a different letterhead than all other Palmer correspondence, and (2) it was dated just one day before a detailed letter from Palmer to the hearing officer dated July 21, 2003, requesting a continuance, and the July 21 letter makes no mention of the July 20 letter

[4] In light of our conclusion, we reject Palmer’s contention the Penalty Hearing decision must be set aside as based on an improper Appeal Hearing. We also assume, without reaching the issue, that Palmer’s petition was timely.

[5] The City’s complaint for injunctive relief and civil penalties asserts “Palmer has never received approval from the City to convert the Property to residential (or live/work) use. Yet people are still living there. This continued illegal use renders the building substandard and a public nuisance.” The complaint further alleges that under the OMC “[o]nce a property is declared Substandard and a Public Nuisance, the Building Official has a duty to cause the property to be vacated.” Thus, we agree with Palmer’s assertion that to prevail on the merits the City must show the property was properly declared a public nuisance. But we disagree the City necessarily must show repairs could be carried out without eviction to prevail on the merits. (See City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 401 [violation of a local zoning or planning code results in a nuisance that may be abated by an injunction]; City of Santa Clara v. Paris (1977) 76 Cal.App.3d 338, 341-342 [same].) In any case, the issue of eviction is now moot.

[6] We reject Palmer’s argument the City acted with unclean hands by deliberately stymieing his attempts to bring his property into code compliance. Rather, this situation has come to pass because of Palmer’s own recalcitrance and repeated refusal to enter a compliance plan with the Building Department in order to remedy code violations. Instead, Palmer tried to circumvent Code Enforcement and salvage his illegal construction by requesting a Conditional Use Permit from the Zoning & Planning department. (See ante, fn. 1.)