HomeMy WebLinkAboutItem 2b: Ordinance 2281 - Muncipal Code Amendment: Cost Recovery for Abatement of Nuisances o f ARcA
„ 11 7,
AY Y OfI 1, lfY)
441Inityot184 STAFF REPORT
Office of the City Attorney
Date: February 1, 2011
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: STEPHEN P. DEITSCH, CITY ATTORNEY Er 2. b.e-dif4
SUBJECT: ORDINANCE NO. 2281 AMENDING ARTICLE I CHAPTER 4B AND
ARTICLE IX CHAPTER 4 OF THE ARCADIA MUNICIPAL CODE
REGARDING COST RECOVERY FOR ABATEMENT OF NUISANCES.
Recommended Action: Introduce
SUMMARY
The City incurs expenses in enforcing the Arcadia Municipal Code ( "AMC ") and
pursuing abatement of public nuisances. While the AMC currently provides for recovery
of staff and abatement costs, State law authorizes recovery of attorneys' fees in any
action to abate a nuisance. The proposed amendment expands the City's ability to
recover nuisance abatement costs to the maximum extent provided by law and also
includes additional tools for enforcement.
DISCUSSION
The AMC provides various mechanisms for the City to abate public nuisances, ranging
from improper maintenance of property to hazardous conditions and blight. Such
enforcement efforts occasionally require litigation or administrative proceedings in order
to secure compliance. State law allows the City to recover virtually all nuisance
abatement costs, including staff costs and attorneys' fees, incurred in these
enforcement efforts.
Government Code Sections 38773 through 38773.5 authorize the City to enact an
ordinance to abate nuisances at the expense of the property owner. This includes
actual abatement costs, staff costs and attorneys' fees. However, the law mandates
that attorneys' fees be recoverable by the "prevailing party ", whether that is the City or,
in rare cases, the defendant. In order to limit any potential liability for a defendant's
attorneys' fees, the proposed ordinance allows for recovery of fees only in
circumstances in which the City elects, at the initiation of the proceeding or case, to
recover its own fees. Further, any fees that may be recovered by a defendant are
capped at the amount incurred by the City. While most nuisance abatement litigation
involves little risk of a defendant prevailing, this safeguard will allow the City to pursue
riskier cases while maintaining the option to seek recovery of attorneys' fees. With this
proposed ordinance, the City will have the ability to seek full recovery of its expenses in
virtually all property related nuisance abatement cases. The proposed ordinance
specifically allows for cost recovery in any administrative, criminal, civil or other judicial
action to abate a nuisance, including appeals of administrative citations.
Such expenses can be recovered by recording a lien on the affected parcel or by
placement of a special assessment on the tax rolls. The proposed ordinance updates
these provisions in the AMC to comply with statutory requirements. It also authorizes
the City to recover any attorneys' fees incurred in a lawsuit to collect assessed fines,
fees, penalties and costs.
Finally, the proposed ordinance expands the City's enforcement ability by imposing
treble abatement costs for repeat violators, and by authorizing the City to record notices
to abate nuisances on the title of affected properties. This will provide additional
incentives for compliance.
FISCAL IMPACT
The proposed ordinance may result in increased recovery of costs incurred by the City
in nuisance abatement actions.
RECOMMENDATION
It is recommended that the City Council introduce Ordinance No. 2281 amending Article
I Chapter 4B and Article IX, Chapter 4 of the Arcadia Municipal Code regarding cost
recovery for abatement of nuisances.
APPROVED:
Donald Penman
City Manager
Attachment: Ordinance No. 2281
ORDINANCE NO. 2281
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ARCADIA, CALIFORNIA, AMENDING ARTICLE I
CHAPTER 4B AND ARTICLE IX CHAPTER 4 OF THE
ARCADIA MUNICIPAL CODE REGARDING COST
RECOVERY FOR ABATEMENT OF NUISANCES.
WHEREAS, California Code of Civil Procedure Section 1033.5 authorizes the
City of Arcadia (the 'City') to recover costs enumerated therein when said costs are
authorized by statute, contract, or law; and
WHEREAS, California Government Code Sections 38773 and 38773.1 authorize
the City to provide for abatement of nuisances at the expense of persons creating,
causing, committing, or maintaining them, and provide for recovery via placement of
liens on property by following certain procedures; and
WHEREAS, California Government Code Section 38773.5 authorizes the City to
recover costs of abatement via a special assessment on property by following certain
procedures; and
WHEREAS, California Government Code Section 38773.5(b) authorizes the City
to provide for the recovery of attorney's fees in any action, administrative proceeding or
special proceeding to abate a public nuisance; and
WHEREAS, enforcement of the Municipal Code and maintenance of the
community character requires the City to spend resources for abatement of public
nuisances; and
WHEREAS, the City desires to recover the costs of abatement to the maximum
extent permitted by law so as to decrease the burden on limited City resources; and
1
WHEREAS, the City Council desires to amend the current ordinances to provide
for such maximum recovery.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. Article I, Chapter 4B, Section 1450, subsection C of the Arcadia
Municipal Code is hereby added to read in its entirety as follows:
•
"(C) In any administrative proceeding to abate a nuisance pursuant to this
Chapter, or in any subsequent appeal of an administrative proceeding to a court, the
City may elect at the initiation of such individual proceeding to recover its incurred
attorneys' fees; however, upon such election, the attorneys' fees shall be awarded to
the prevailing party. In no administrative proceeding or subsequent judicial action shall
an award of attorneys' fees to a prevailing party exceed the amount of reasonable
attorneys' fees incurred by the City in the judicial action or administrative proceeding."
SECTION 2. Article I, Chapter 4B, Section 1453 of the Arcadia Municipal Code is
hereby amended to read in its entirety as follows:
"1453. RECOVERY OF ADMINISTRATIVE PENALTIES AND COSTS.
The City may collect assessed administrative penalties, fines and costs by use of
all available legal means, including recordation of a lien pursuant to Section 1456 or
imposition of a special assessment pursuant to Sections 9406.4 through 9406.9. Filing
of the statement referred to in Section 9406.3 shall not be required for special
assessments under this Chapter."
2
SECTION 3. Article IX, Chapter 4, Section 9403, Subsection C of the Arcadia
Municipal Code is hereby added to read in its entirety as follows:
"(c) In any judicial action, or administrative or special proceeding brought by the
City to abate a public nuisance pursuant to this Chapter or to otherwise enforce this
Chapter, the prevailing party shall be entitled to recover reasonable attorneys' fees;
provided that, pursuant to Government Section 38773.5, attorneys' fees shall only be
available in a judicial action or proceeding in which the City has elected, at the
commencement of such action or proceeding, to seek recovery of its own attorneys'
fees. In no action or proceeding shall an award of attorneys' fees to a prevailing party
exceed the amount of reasonable attorneys' fees incurred by the City in the action or
proceeding. A judicial action includes, but is not limited to, any civil or criminal action,
inspection or abatement warrant, administrative proceeding, or appeal from an
administrative proceeding."
SECTION 4. Article IX, Chapter 4, Section 9406.2 of the Arcadia Municipal Code
is hereby amended to read in its entirety as follows:
"NOTICE TO ABATE VIOLATION: APPEAL.
(a) Within ten (10) days after the date of posting, publishing, serving, or mailing
of a notice, whichever shall be the last, the owner, agent of the owner, lessee,
occupant, or person in possession of the premises who may have been served with a
notice to abate, any person with a legal interest in the property, land or lots, building,
structure, or improvement or otherwise affected by such notice may appeal to the
Council on the requirements of such notice. Such appeal shall be in writing, shall
include payment of a filing fee in the amount established by resolution of the City
3
Council, and shall state the objections of the person filing the same, shall be filed with
the City Clerk, and shall be presented to the Council by the Clerk at its next regular
meeting. The Council shall thereupon proceed to hear and pass upon the appeal, and
its decision thereon shall be final and conclusive. The Council shall thereupon
determine by resolution whether the Building Official shall proceed in accordance with
the notice as given or as modified by the Council, or not at all, and its decision thereon
shall be final and conclusive. If an appeal is filed the time to complete the work as set
forth in the notice to abate shall be tolled the number of days that elapse from the filing
of the appeal to the hearing date.
(b) In the event an appeal is not properly and timely filed or is otherwise
unsuccessful, the notice to abate may be recorded on the affected parcel pursuant to
Government Code Section 38773.5(e). A courtesy copy may also be sent to any
applicable financial institution."
SECTION 5. Article IX, Chapter 4, Section 9406.4 of the Arcadia Municipal Code
is hereby amended to read in its entirety as follows:
"9406.4. NOTICE OF EQUALIZATION OF ASSESSMENT.
Within ten (10) days after the filing of the statement referred to in Section 9406.3 of this
Article, the City Clerk shall cause notice of the special assessment to be served by
certified mail upon the owner as identified in the records of the county assessor or
recorder. If the property owner's identity cannot be determined, then notice shall be
posted on the property described in the notice and shall also be sent to the property by
first class mail. The notice shall be in substantially the following form:
4
NOTICE RE EQUALIZATION
OF ASSESSMENT FOR:
(INSERT DESCRIPTION OF ACTION
TO BE TAKEN TO ABATE
PROHIBITED CONDITION)
NOTICE IS HEREBY GIVEN that the City Council of Arcadia,
California, will, on (date), in the Council Chambers of the City Hall
beginning at the hour of p.m. of said day, hear any
protest or objection to the cost of (describe proposal action to be
taken) as and located on (street address, assessor's parcel number
and legal description) in the City of Arcadia, California, for the
purpose of correcting, modifying, or confirming the said costs and
assessing the same against the said property. Failure to make any
objection will be deemed to be a waiver of any objection or protest
to any and all procedures concerning the same. The property on
which the assessment is placed may be sold after three years by
the tax collector for unpaid delinquent assessments. A statement
showing all premises affected and charges against the same and /or
the cost and proposed assessment for such action is on file in the
office of the City Clerk at the City Hall and is open to public
inspection.
Dated
City Clerk of the City of Arcadia."
SECTION 6. Article IX, Chapter 4, Section 9406.9 of the Arcadia Municipal Code
is hereby amended to read in its entirety as follows:
"9406.9. RIGHT OF CITY TO SUE FOR ASSESSMENTS AND COSTS.
(a) The City may sue in any court of competent jurisdiction for the amount of the
assessment, penalties, fees and costs owed to the City, and the satisfaction of any
judgment thereby obtained shall cancel any lien or assessment.
(b) The City may elect to recover its costs and attorneys' fees incurred in any
action initiated pursuant to this Section."
SECTION 7. Article IX, Chapter 4, Section 9406.11 of the Arcadia Municipal
Code is hereby added to read in its entirety as follows:
5
"9406.11. RECOVERY BY LIEN.
As an alternative to the assessment procedure provided in this Chapter, the City
may recover any nuisance abatement costs incurred, including reasonable attorneys'
fees, pursuant to the procedure in Sections 1456 through 1459 of this Code, except that
notice of the lien shall be served on the owner of record prior to recordation of the lien in
the manner and form provided by Government Code Section 38773.1."
SECTION 8. Article IX, Chapter 4, Section 9407.3, Subsection D of the Arcadia
Municipal Code is hereby added to read in its entirety as follows:
"(d) Treble Costs of Abatement. Upon entry of a second or subsequent civil,
criminal or administrative judgment within a two -year period finding that an owner of
property is responsible for a condition declared by this Code to constitute a public
nuisance, the court or administrative body may order the owner to pay treble the costs
of the abatement. Such costs may be recovered by any means authorized by this Code
or other law."
SECTION 9. Severability. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance, or any part thereof is for any reason held
to be unconstitutional, such decision shall not affect the validity of the remaining portion
of this Ordinance or any part thereof. The City Council hereby declares that it would
have passed each section, subsection, subdivision, paragraph, sentence, clause or
phrase thereof, irrespective of the fact that any one or more section, subsection,
subdivision, paragraph, sentence, clause or phrase be declared unconstitutional.
6
SECTION 10. The City Clerk shall certify the adoption of this Ordinance and shall
cause a copy of same to be published in the official newspaper of the City of Arcadia
within fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty -
first (31 day after its adoption.
Passed, approved and adopted this day of , 2011.
Mayor of the City of Arcadia
ATTEST:
City Clerk
APPROVED AS TO FORM:
C<WZ
(� 1
Stephen P. Deitsch
City Attorney
7