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HomeMy WebLinkAbout1443 - ORDINANCES - 6/2/1993 ORDINANCE NO. 1443 AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING CHAPTER 11.72 OF THE PALM SPRINGS MUNICIPAL CODE TO PROVIDE FOR RECOVERY OF NUISANCE ABATEMENT FEES WHEREAS, the City of Palm Springs, through the Department of Building and Safety, enforces various City and State regulations within its jurisdiction, including but not limited to City and State building codes, and the City municipal code and zoning ordinance; and WHEREAS, pursuant to State law and the City municipal code, the violation of such regulations constitutes a public nuisance subject to abatement by City officials; and WHEREAS, on occasion, parties within the City fail to comply with aforementioned regulations within a reasonable time after being notified of violations, thus necessitating additional efforts by City officials to enforce these: regulations and hence abate the identified public nuisances; and WHEREAS, the City is forced to bear extraordinary, costs as a result of its ongoing enforcement and abatement activities with respect to parties who fail to comply in a timely manner: with the City's notices of violation; and WHEREAS, Government Code Section 38773, et seq. authorizes the City to make the expense of abatement of nuisances a lien against the property on which it is maintained and a personal obligation against the property owner in accordance with Sections 38773 . 1 or 38773. 5; and WHEREAS, California Health and Safety Code Section 17951 in similar fashion authorizes the City to prescribe fees to defray its costs and expenses incurred as a result of such enforcement activities; and WHEREAS, pursuant to Government Code Section 66016 a notice of public hearing was held on May 19, 1993 , as part of the City Council's regularly scheduled council meeting, for the purpose of approving the proposed fee described in this ordinance; and WHEREAS, in addition, violations of these provisions are punishable as infractions or misdemeanors and the City Council finds that establishing significant penalties will encourage timely compliance with the provisions hereof. NOW THEREFORE BE IT RESOLVED THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Section 11.72. 010 of the Palm Springs Municipal Code is hereby amended to read as follows: 11.72 . 010 Definitions_ In addition to conditions identified elsewhere as constituting a public nuisance, the materials and conditions identified in Sections 11.72 . 020 through 11.72. 174 shall constitute public :nuisances. Section 2 . Chapter 11.72 relating to recovery of administrative nuisance abatement or enforcement costs, Sections; 11.72 . 185 through 11.72 .302 are hereby amended by repealing those: sections in their entirety and replacing them with the following: 11.72 . 185 Assessment of Administrative Abatement or Enforcement Costs. This chapter is intended to provide the Ord 1443 Page 2 city with a mechanism by which it can abate existing municipal code violations or public nuisances and collect any administrative fees and costs incurred in the process. Pursuant to the procedures set forth herein, the expense of such enforcement or abatement activities shall be charged to the persons creating, causing, committing or maintaining the violation of the City's municipal code or the public nuisance at issue and, in addition to any other method authorized by law, shall be recovered from those persons as any account receivable or by way of a nuisance abatement lien or special assessment against the property at issue. 11.72 . 186 Director -- Defined. As used within this chapter, the term "Director" shall refer to the City's Director of Building and Safety or his designee. 17.72 . 190 Nuisance Abatement - Defined As used within this chapter, "nuisance abatement" shall refer to any and all efforts by City officials to ensure compliance with the City's municipal code by eliminating or remediating those conditions identified specifically as public nuisances within this chapter. Such efforts shall include, but are not limited to, securing compliance by the responsible party through inspections and directions to remediate or through judicial process or enforcing compliance by having City employees or contractors perform the work necessary to obtain code compliance. The Director is authorized to commence nuisance abatement proceedings against any person responsible for creating or maintaining a public nuisance. 11.72 . 195 Responsible Party -- Defined As used within this chapter, The term "responsible party" shall refer to the owner of any property upon which a violation of the City municipal code exists. This term shall also include any non- owner, occupant or other person or entity in control of the property who is creating, causing or maintaining any condition in violation of the City's municipal code. 11.72 . 197 Abatement of Dangerous or Substandard Buildings. Where any condition which would otherwise constitute a violation subject to abatement pursuant to the procedures authorized by this chapter also constitutes a dangerous building pursuant to the Uniform Code for the Abatement of Dangerous Buildings or a Substandard Building pursuant to the Uniform Housing Code, the Director may in his discretion abate such dangerous or substandard building pursuant to the procedures authorized by such Uniform Code. Recovery of administrative costs or fees may nonetheless be collected pursuant to the procedures authorized herein. In this regard, in addition to those items required to be included in any notice commencing proceedings pursuant to such Uniform Code, such notice shall include a statement substantially similar to that contained in Section 11.72 .200 (f) . 11.72 .200 Commencement of Proceedings -- Notice of Violation. In addition to any other method authorized by law, the Director may commence nuisance abatement proceedings by issuing a notice of violation to the responsible party. This notice shall be headed: "NOTICE OF VIOLATION" in letters not less than one inch in height and shall, in legible characters, contain the following: (a) The street address and a legal description sufficient for identification of the property at issue; (b) A statement specifying the conditions) constituting the violation with citation to the specific provision which Ordinance No. 1443 Page 3 has been violated and a statement that: the property so maintained constitutes a public nuisance; (c) A directive that the condition or violation be abated and a statement of the specific action required to do so; (d) A statement: specifying the applicable procedure for appeal of any determination made pursuant: to the notice as appropriate pursuant to Section 11.72. 220; (e) A statement indicating that if the condition is not voluntarily corrected the violation may be abated by the City through judicial process or by entry upon the property by City employees or contractors for purposes of effecting those actions necessary to correct the violation; (f) A statement specifying that, should the violation not be remedied within a time period specified in the notice, but not less than ten (10) days from the date of giving notice of the violation, the party responsible for the violation will be charged a fee equal. to the City's actual cost and expense of abatement which shall .include all fees and costs incurred by the City in obtaining voluntary or involuntary compliance, including but not limited to subsequent inspection costs, staff time, overhead, and legal expenses including attorneys' fees. The notice of violation shall include a current schedule displaying fees for enforcement activities. 11. 72 .210 Service of Notice of Violation. The notice required by this chapter shall be served upon the responsible party. Service shall be made by one of the following methods: (1) personal service; (2) mailing a copy by certified mail, return receipt requested to the party's address as it appears on the last equalized assessment roll or supplemental roll, whichever is more current or as known by the Director; (3) any other method authorized for service of summons in a civil action in accordance with Article 3, commencing with Section 415. 10, or Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. Where the responsible party cannot after diligent search be found, the notice may be served by posting a copy in a conspicuous place upon the property for a period of ten (10) days. Where the City intends to assert any rights pursuant to this chapter against: the holder of any mortgage, deed of trust, lien, encumbrance of record or any other party with an interest in the property at issue other than the responsible party, service of any applicable notice shall also be served pursuant to this section upon such interested parties. 11.72. 215 Proof of Service. A proof: of service of the notice shall be certified to at the time of service by written declaration under penalty of perjury executed by the persons effecting service, declaring the time, date and :manner in which service was made. The declaration, together with the receipt card returned :in acknowledgment of receipt by certified mail shall be affixed to the copy of the notice and retained by the Director. 11. 72 .220 Appeal and Hearing. The responsible party may appeal any determination, order or other matter relative to the notice of violation as follows: (a) City Council.,. An appeal may be made to the City Council in the manner provided in Chapter 2 . 05 of this code. Absent a contrary determination incident to an appeal, the Ordinance No. 1443 Page 4 46 tv responsible party remains obligated to comply with the notice of violation and abate the identified violation or nuisance. (b) Board of Appeals. Where in the discretion of the Director the violation at issue is viewed as technical in nature such that an evaluation of the existence or extent of the violation could be performed more expeditiously or effectively by a Board of Appeals created pursuant to any adopted uniform building, housing or safety code, the Director may designate such Board of Appeals as the appropriate review body relative to the notice of violation. In this regard, the Board of Appeals shall follow procedures substantially similar to those required of the City Council pursuant to Chapter 2 . 05 of the municipal code. 11.72.230 Responsible Party to Abate. If after an appeal and hearing pursuant to 11.72 . 220 the City Council or Board of Appeals concludes that a violation exists, it shall be abated by the responsible party forthwith or within the period of time specified by the City Council or Board of Appeals. 11.72 .235 Assessment of Enforcement Costs. Once the time period specified in the notice of violation expires, if the violation has not been completely corrected, the responsible party shall be charged a fee reflecting the actual costs and expenses incurred by the City in obtaining compliance with its municipal code by abating any remaining code violation or public nuisance unless an appeal is successfully prosecuted pursuant 'to Section 11. 72 .220. The fee shall be established by City Council resolution and shall reflect all actual costs and expenses incurred by the City incident to such enforcement activities, including but not limited to inspection costs, staff time, overhead and legal expenses, including attorney's fees. These costs shall be recoverable to the City, notwithstanding any subsequent correction of the violation by the responsible party. 11.72 . 240 City to Abate. If the responsible party fails or neglects to remove or otherwise take action to abate the code violation or nuisance, within the time specified in the notice of violation or within the time required by Section 11.72 . 230 subsequent to an appeal, the Director may cause the nuisance to be abated. In addition to any other method authorized by law, such abatement may be performed through inspections and directives to remed.iate the violation or legal proceedings designed to secure enforcement of the City's municipal code or the City may commence the abatement work itself. The abatement work may be done by City crews or by private contractor. Where appropriate, no such abatement action shall occur without securing a warrant. 11. 72 . 245 Summary Abatement. Whenever a public nuisance or code violation is maintained or exists in the City which creates an immediate threat to public health or safety, the Director may summarily abate that public nuisance without complying with the provisions of Sections 11.72 . 190 through 11. 72.230. In such circumstances, the responsible party shall be afforded as much advance notice and opportunity to be heard as is reasonably possible under the circumstances. 11. 72. 250 Notice of Assessment. Once the public nuisance or code violation has been abated, the Director shall serve the responsible party in a manner authorized by Section 11.72.210 with an invoice itemizing all costs and expenses incurred by the City and specifying the fee due to the City as ordinance No. 1443 Page 5 a result of enforcement:. The responsible party may appeal the amount of the fee being charged to the City Council. in the manner provided in Chapter 2 .05 of this code. The amount of any fee confirmed by the City Council shall be deemed immediately due and payable and delinquent if not paid within ten (10) days of any final decision by the City Council with respect to the amount due. If no appeal is made concerning the amount charged to the responsible party, it shall be deemed immediately due and payable once the time to appeal expires and delinquent if not paid within ten (1.0) days thereafter. All such charges may be collected and treated by the City in the same fashion as delinquent accounts receivable. 11.72. 260 Collection by Lien or Special Assessment. In addition to any other method authorized by law for collection of outstanding charges pursuant to Section 11.72.235, the City may record a nuisance abatement lien pursuant to the provisions of Section 11.72. 265. Alternatively, the City may make the cost of abatement a special assessment against the offending parcel or property pursuant to the provisions of Section 11.72 . 270. In either case, the; Director shall institute such proceedings by filing a report detailing all administrative abatement activities and an account related to all outstanding charges with the City Clerk and shall request a hearing before the City Council for purposes of authorizing an abatement lien or special assessment. The Director may file such report whenever any outstanding abatement costs remain unpaid, even where the violation has been corrected by the responsible party. The City Council shall consider the report and account at the time set for hearing, together with any objections or protests by any interested parties. Any owner of land or person interested therein may present a written or oral protest or objection to the report and account. At the conclusion of the hearing,, the City Council shall either approve the report and account as submitted or as modified or corrected. The amount so approved shall be an assessment upon the offending parcel or property pursuant to Sections 11.72 .265 or 11.7;2 . 270, respectively. 11.72 . 265 Nuisance Abatement Lien. The City may collect its abatement cost by a nuisance abatement: lien pursuant to the procedures authorized by Government Code Section 38773 . 1 as follows: (a) Once a hearing has been set before the City Council pursuant to a request made under Section 11. 72 .260, the responsible party shall be served with a notice that the City intends to authorize the recordation of a nuisance abatement lien pursuant to this section. The notice shall apprise the responsible party of the date, time and place of the: hearing where the abatement lien will be considered. The notice shall also specify the amount of the lien and shall describe the parcel to which the lien will attach. The notice shall be served in the manner provided in Section 11.72 . 210 and shall be completed at least fifteen (15) days prior to the City Council hearing. (b) The City Council. may adopt a resolution assessing the outstanding abatement costs as a lien (s) against those parcel(s) as shown on the latest available assessment roll, where abatement activities occurred. The: resolution shall explicitly authorize the recordation of a nuisance abatement lien. Ordinance No. 1443 /Il'1� Page 6 ,/� (c) The nuisance abatement lien shall be recorded in the County Recorder's office in the county in which the subject parcel is located and from the date of filing shall have the force, effect and priority of a judgement lien. (1) The nuisance abatement lien authorized by this section shall specify the amount of the lien, the name of the agency on whose behalf the lien is imposed, the date of the abatement order, the street address, legal description and Assessor's Parcel number of the parcel on which the lien is imposed and the name and address of the record owner of the parcel. (2) In the event that the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in section 11.72. 265 (c) (1) shall be recorded by the City. A nuisance abatement lien and the release of the lien shall be indexed in the grantor- grantee index. (3) A nuisance abatement lien may be foreclosed by an action brought by the City for a money judgement. (4) The City may recover from the responsible party any costs incurred regarding the processing and recording of the lien and in providing notice to the property owner as part of its foreclosure action to enforce the lien. 11. 72 . 270 Special Assessment_ As an alternative to the procedures authorized by Section 11.72 .265, the City may make any outstanding nuisance abatement costs a special assessment against the offending property pursuant to the procedures authorized by Government Code Section 38773 . 5 as follows: (a) Once a hearing has been set before the City Council pursuant to a request made under Section 11.72 .260, the responsible party shall be served with notice that the City intends to make the outstanding abatement costs a special assessment against the subject property. The notice shall apprise the owner of the date, time and place of the hearing where the special assessment will be considered. The notice shall also detail the probable amount of the assessment and shall describe the parcel to which the assessment will attach. This notice shall be served in the manner provided in Section 11.72 . 210 and shall be completed at least fifteen (15) days prior to the City Council hearing. (b) The City Council may adopt a resolution making the outstanding abatement costs a special assessment against the parcel(s) , as shown on the latest available assessment roll, where the abatement activities occurred. The resolution shall explicitly authorize the special assessment and shall be filed with the County Auditor. (c) The County Auditor shall enter each assessment in the county tax roll opposite the parcel(s) against which the assessment is to be made. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any Ordinance No. 1443 Page 7 real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first. installment of the taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection. Notices or instruments relating to the abatement proceeding or special assessment shall be entitled to recordation. 11.72 . 275 Criminal Penalties. Any responsible; person who creates, causes or, otherwise maintains any condition identified as a public nuisance pursuant to this chapter shall be guilty of a misdemeanor punishable by a fine of not more than $1, 000 or by imprisonment in the City Jail or in the Riverside County Jail for a period of not more than six (6) months, or both a fine and imprisonment. 11.72 . 280 Subsequent Civil or Criminal Judgement -- Treble Damages. Pursuant to Government Code Section 38773 . 7, upon entry of a second or subsequent civil or criminal judgement within any two-year period finding that an owner of property is responsible for a condition that may be abated in accordance with this chapter, except conditions abated pursuant to Section 17980 of the Health and Safety Code, the court may order the owner to pay treble the costs of abatement. SECTION 3. Effective Date. This ordinance shall be in full force and effect thirty (30) days after passage. SECTION 4 . Publication. The City Clerk is hereby ordered and directed to certify to the passage of this ordinance, and to cause a summary of this ordinance or a display advertisement, duly preared according to law, to be published in accordance with the law. ADOPTED this 2nd day of June , 1993 . .AYES: Members Hodges, Lyons, Schlendorf and Mayor Maryanov NOES: None ABSENT: Member Reller-Spurgin ATTEST: CITY OF PALM SPRINGS, CALIFORNIA BY� ` City Clerk ='Mayor REVIEWED & APPROVED 81� --�.--- rrr 1111 I HEREBY CERTIFY that the foregoing Ordinance 1443 was duly adopted by the City Council of the City of Palm Springs, California, in a meeting held on the 2nd day of June, 1993, and that summary of same was duly published the DESERT SUN, a newspaper of general circulation on May 27 & June 9, 1993. /JUDITH SUMICH City Clerk