A. This
chapter provides for administrative remedies, which are in addition
to all other legal remedies, criminal or civil, which may be pursued
by the city to address any violation of this code.
B. These
sections shall not supersede any other sections of this code which
address other legal or administrative remedies for city code violations;
use of this chapter shall be at the sole discretion of the city.
C. As used
in this chapter, “violation” includes noncompliance with
conditions of approval of a discretionary permit.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. Whenever
an enforcement officer determines that a continuing violation of any
provision of this code is occurring or exists, a written compliance
order may be issued to any person responsible for the violation and/or
the property owner.
B. A compliance
order issued pursuant to this chapter shall contain the following
information:
1. The
date and location of the violation;
2. The
section of this code violated and a description of the violation;
3. The
actions required to correct the violation;
4. The
time at which administrative penalties will begin to accrue if compliance
with the order has not been achieved; and
5. Either
a copy of this chapter or an explanation of the consequences of noncompliance
with this chapter and a description of the hearing procedure and appeal
process.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. All
notices required under this chapter, unless otherwise specified, may
be given either by personal delivery to the person to be notified
or by certified mail, in a sealed envelope with postage prepaid, addressed
to the person to be notified at his or her last known business or
residence address as the same appears in the last equalized county
assessment roll or other records pertaining to the matter to which
such notice is directed. If the person to be notified is not present
for personal delivery, if certified mail is refused, if certified
mail delivery is not successful, or if the location of the person
to be notified cannot be determined after diligent effort, notice
may be accomplished by posting in a conspicuous place at the affected
property and by first-class U.S. mail sent to the person’s last
known address. Service by mail shall be deemed completed at the time
of deposit in the United States mail receptacle.
B. Where
real property is involved, written notice shall be mailed to the property
owner at the address shown on the last equalized county assessment
roll.
C. Where
personal service or service by mail upon the property owner cannot
be made despite a diligent effort, a copy of the order shall be conspicuously
posted at the property that is the subject of the order.
D. The
failure of any person to receive any notice required under this chapter
shall not affect the validity of any proceedings taken under this
chapter.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
In the case of a compliance order issued pursuant to Chapter
16.35, the building official or designee, shall issue a notice and order directed to the record owner of the building.
A. The
notice and order shall contain all of the following:
1. The
street address and a legal description sufficient for identification
of the premises upon which the building is located;
2. A statement that the building official or designee, has found the building to be dangerous, with a concise description of the conditions found to render the building dangerous under the provisions of Section
16.35.110 of this chapter;
3. A
statement of the required action, as determined by the building official
or designee;
a. If the building official or designee, has determined that the building
or structure must be repaired, the order shall require that all necessary
permits be secured therefor and the work physically commenced within
such time (not to exceed 60 days from the date of the order) and completed
within such time as the building official shall determine is reasonable
under all of the circumstances,
b. If the building official or designee, has determined that the building
or structure must be vacated, the order shall require that the building
or structure shall be vacated within a time certain from the date
of the order as determined by the building official to be reasonable,
c. If the building official or designee, has determined that the building
or structure must be demolished, the order shall require that the
building be vacated within such time as the building official or designee,
shall determine is reasonable (not to exceed 60 days from the date
of the order); that all required permits be secured therefor within
60 days from the date of the order; and that the demolition be completed
within such time as the building official shall determine is reasonable,
4. Statements
advising that if any required repair or demolition work (without vacation
also being required) is not commenced within the time specified, the
building official or designee;
a. Will order the building vacated and posted to prevent further occupancy
until the work is completed, and
b. May proceed to cause the work to be done and charge the costs thereof
against the property or its owner;
5. Statements
advising that:
a. Any person having any record title or legal interest in the building
may appeal from the notice and order or any action of the building
official or designee, to a hearing panel, provided the appeal is made
in writing as provided in this chapter and filed with the building
department within 30 days from the date of service of such notice
and order, and
b. Failure to appeal will constitute a waiver of all right to an administrative
hearing and determination of the matter.
B. The
notice and order, and any amended or supplemental notice and order,
shall be served upon the record owner and posted on the property;
and one copy thereof shall be served on each of the following if known
to the building official or disclosed from official public records:
1. The
holder of any mortgage or deed of trust or other lien or encumbrance
of record;
2. The
owner or holder of any lease of record; and
3. And
the holder of any other estate or legal interest of record in or to
the building or the land on which it is located.
C. The
failure of the building official to serve any person required herein
to be served shall not invalidate any proceedings hereunder as to
any other person duly served or relieve any such person from any duty
or obligation imposed by the provisions of this section.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008; Ord. 5828 § 9, 2017)
Upon receipt of an application from the person required to conform
to the order and by agreement of such person to comply with the order
if allowed additional time, the building official or designee, may
grant an extension of time, not to exceed an additional 120 days,
within which to achieve compliance.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008; Ord. 5828 § 10, 2017)
If the enforcement officer determines that all violations have
been corrected within the time specified in the compliance order,
no further action shall be taken.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. If full
compliance is not achieved within the time specified in the compliance
order, the city attorney’s office shall set a hearing on the
compliance order.
B. The
city attorney’s office shall designate a hearing panel. Members
of the hearing panel shall be drawn from the membership of the board
of appeals.
C. All
hearings shall be open and public.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. The city attorney’s office shall cause a written notice of hearing to be served as specified in Section
2.52.030.
B. Every notice of hearing on a compliance order shall contain the date, time and place at which the hearing shall be conducted by the hearing panel and a statement that the hearing panel may request an inspection of the building or premises as part of the hearing as provided in Section
2.52.100.
C. Each
hearing shall be set for a date no more than 30 days from the date
of the notice of hearing unless the enforcement officer determines
that good cause exists for an extension of time.
D. The
hearing serves to provide the full opportunity of a person subject
to a compliance order to object to the determination that a violation
has occurred and/or that the violation has continued to exist. The
failure of any person subject to a compliance order to appear at the
hearing shall constitute a failure to exhaust administrative remedies.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008; Ord. 4918 § 1, 2011)
A. At the place and time set forth in the notice of hearing, the hearing panel shall conduct a hearing on the compliance order issued pursuant to Section
2.52.020.
B. The
hearing panel shall consider any written or oral evidence consistent
with its rules and procedures regarding the violation and compliance
by the violator and/or by the real property owner, including but not
limited to:
1. The
report of the enforcement officer;
2. Objections
or protests of property owners or other responsible or interested
persons who may be held liable for the amounts owed;
3. Evidence
on whether the person before the hearing panel is responsible for
the amounts owed to the city;
4. Whether
the violator or owner has taken the required corrective action within
the required time period; and
5. Such
other and further evidence as justice may require.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
The hearing panel may inspect any building or premises involved
in the compliance order during the course of the hearing, provided
that:
A. Notice
of such inspection shall be given to the parties before the inspection
is made;
B. The
parties are given an opportunity to be present during the inspection;
and
C. The
hearing panel shall state for the record upon completion of the inspection
the material facts observed. Each party then shall have a right to
rebut or explain the matters so stated by the hearing panel.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. Within
30 days following the conclusion of the hearing, the hearing panel
shall make findings and issue its determination regarding:
1. The
existence of the violation; and
2. The
failure of the violator or owner to take required corrective action
within the required time period.
B. The
hearing panel shall issue written findings on each violation. The
findings shall be supported by evidence received at the hearing.
C. If the
hearing panel finds by a preponderance of the evidence that a violation
has occurred and that the violation was not corrected within the time
period specified in the compliance order, the panel shall issue an
administrative order.
D. If the
hearing panel finds that no violation has occurred or that the violation
was corrected within the time period specified in the compliance order,
the panel shall issue a finding of those facts.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
If the hearing panel determines that a violation occurred which
was not corrected within the time period specified in the compliance
order, the hearing panel shall issue an administrative order that
imposes any or all of the following:
A. An order
to correct, including a schedule for correction where appropriate;
B. Administrative penalties as provided in Section
2.52.140;
C. Administrative costs as provided in Section
2.52.150; and
D. The
administrative order shall state that failure to comply with its provisions
may result in the city abating the nuisance and charging the cost
of said abatement plus all administrative costs to the responsible
party, and may further result in the city collecting the monies due
as a personal obligation of the responsible party.
E. The
city may abate a nuisance by means including, but not limited to,
demolition or receivership.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008; Ord. 4918 § 2, 2011)
A. If correction
of the violation has not occurred within the time period specified
in the administrative order, the continuing violation shall be deemed
a public nuisance, and following the issuance of a warrant by court
of competent jurisdiction, the city or a contracting agent hired by
the city may enter upon the private property on which the violation
exists for the purpose of abating the violation. It is unlawful for
any person, owner, agent or person in possession of any premises to
refuse to allow the city or its contracting agents to enter upon the
premises for the purpose of abating the violation.
B. The
cost of any such abatement by city authorized herein shall be borne
by the property owner, which cost shall include the actual cost of
abatement, administrative costs, and any other costs actually and
reasonably incurred by the city for purposes associated with the abatement.
C. The
cost of abatement may be enforced by use of all available legal means
including, but not limited to, as a personal obligation against the
property owner and/or as a lien or special assessment upon the property.
D. The
prevailing party in any proceeding conducted pursuant to this chapter
and associated with the abatement of a public nuisance shall be entitled
to recovery of attorneys’ fees incurred in any such proceeding.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008; Ord. 4819 § 1, 2010)
A. The
hearing panel may impose administrative penalties for the violation
of any provision of this code in an amount no less than $25.00 per
day and no more than $500.00 per day for each ongoing violation, except
that the total administrative penalty shall not exceed $50,000.00,
exclusive of administrative costs and restitution for compliance reinspections,
for any related series of violations.
B. In determining
the amount of the administrative penalty, the hearing panel may take
any or all of the following, factors into consideration:
1. The
duration of the violation;
2. The
frequency, recurrence and number of violations, related or unrelated,
by the same violator;
3. The
seriousness of the violation;
4. The
good faith efforts of the violator to come into compliance;
5. The
economic impact of the penalty on the violator;
6. The
economic impact of the penalty on the ability of the violator to come
into compliance;
7. The
impact of the violation on the community; and
8. Such
other factors as justice may require.
C. Administrative
penalties imposed by the hearing panel shall accrue from the date
specified in the compliance order and shall cease to accrue on the
date the violation is corrected as determined by the enforcement officer
or the hearing panel. Administrative penalties may be suspended for
any period of time during which the violator has filed for necessary
permits and such permit applications are actively pending before the
city, state or other appropriate agency.
D. Administrative
penalties assessed by the hearing panel shall be due by the date specified
in the administrative order.
E. If the violation is not corrected as specified in the order to correct, administrative penalties shall continue to accrue on a daily basis until the violation is corrected, subject to the maximum amount set forth in subsection
A of this section.
F. If the
violator gives notice to the enforcement officer that the violation
has been corrected and if the enforcement officer finds that compliance
has been achieved, the enforcement officer shall deem the date the
written notice was postmarked or personally delivered to the enforcement
officer or the date of the final inspection, whichever first occurred,
to be the date the violation was corrected. If no written notice is
provided to the enforcement officer, the violation will be deemed
corrected on the date of the final inspection.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. The
hearing panel shall assess administrative costs against the violator
when it finds that a violation has occurred and that compliance has
not been achieved within the time specified in the compliance order.
B. The
administrative costs may include any and all costs incurred by the
city in connection with the matter before the hearing panel including,
but not limited to, costs of investigation, staffing costs incurred
in preparation for the hearing and for the hearing itself, and costs
for all re-inspections necessary to enforce the compliance order.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. The
administrative order of the hearing panel shall be the final decision
of the city.
B. The
administrative order shall have the same force and effect as a resolution
of the city council for the purpose of pursuing any collection or
enforcement action to obtain payment of the amounts owed to the city.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
If unpaid as of the date specified in the administrative order,
the administrative penalties and administrative costs assessed by
the hearing panel shall be collected by the city by use of all available
legal means, and may be enforced as a personal obligation of the violator.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. The
decision of the hearing panel shall be final. Any person aggrieved
by an administrative order of the hearing panel may obtain review
of the administrative order in the superior court by filing with the
court a petition for writ of mandate within 90 days pursuant to California
Code of Civil Procedure Section 1094.6, as it may be amended.
B. Should any party file a petition for review in accordance with subsection
A of this section, the city attorney or designee shall have authority to dismiss the citation, and/or to enter into a negotiated settlement with the petitioner, if such dismissal and/or negotiated settlement is determined by the city attorney or designee to be in the best interests of the city.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008; Ord. 5828 § 11, 2017)
After a compliance order has been sustained by the hearing panel,
if the enforcement officer determines that compliance has been achieved,
the enforcement officer shall prepare a report indicating such compliance.
A copy of the compliance report shall be served on the violator.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)
A. If the
enforcement officer does not prepare and serve the compliance report
specified above, a violator who believes that compliance has been
achieved may request a compliance hearing before the hearing panel
by filing a request for a hearing with the city attorney’s office.
B. The hearing shall be noticed and conducted in the same manner as a hearing on a compliance order provided in Section
2.52.050 of this chapter.
C. The
hearing panel shall determine if compliance has been achieved and,
if so, when it was achieved. The decision of the hearing panel shall
be final.
(Ord. 3722 § 3, 2001; Ord. 4676 § 2, 2008)