HomeMy WebLinkAboutMINUTES - 04032007 - C.32 a
TC` BOARD OF SUPERVISORS Contra
FROM: Silvano B. Marchesi, County. Counsel ••
o a1lliiiNAo-: - Costa
DATE: April 3, 2007 °
OS,T'q-CODIZ•� Count
y
SUBJECT: Amendments to Nuisance.Abatement Ordinance %
C .
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
�g
INTRODUCE Ordinance No. 2007;20, amending the County's nuisance abatement ordinance and
related ordinances to authorize the recording of certain notices, allow additional time for the
payment of abatement costs, modify hearing procedures, and increase the amount of certain
infraction fines; WAIVE reading;. and FIX April 10, 2007 as the.date for adoption.
FISCAL IMPACT:
The attached ordinance increases infraction fine amounts for violations of building and safety
ordinances in Title 7 and.Title 8 of the. Ordinance Code..The amount of additional.fines recovered
will depend on the number of violations.
BACKGROUND:
The attached ordinance, Ordinance. No. 2007, amends the County nuisance abatement
ordinance and. related ordinances to make abatement actions.and hearings consistent with the
California Government Code and.with current County code enforcement practices.
Section 14-6.414 of the attached.ordinance. authorizes the county abatement officer to record a
"notice of pending nuisance abatement proceeding" with the County Recorder when abatement
proceedings begin. Under section 14-6.414, if a notice.of pending nuisance.abatement proceeding
is. recorded, a "notice of final disposition" will be issued when the. nuisance abatement proceeding
has. been completed.
J o
CONTINUED ON ATTACHMENT: X YES SIGNATURE: �/l�(&A w.
------------I--,------ ------------------------------------------—--------------------------------------------------------------------- ---khtL
--,A'ECOMMENDATION
---- ---------------------------------------------------------------------------------------------------------------ECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S): /
----------------------- -- -- --- --- ------ -------------------------------------------------------------------- -----------------------------
ACTION OF BO RD ON x �.� �� APPROVE AS RECOMMENDED_� OTHER
VOTE F SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS(ABSENT ) AND ENTERED ON THE MINUTES OF THE
BOARD OF SUPERVISORS ON THE DATE
AYES: NOES: SHOWN.
ABSENT: ABSTAIN: 0
ATTESTED ?/?Xll m 3 �
CONTACT:Thomas L.Geiger,(925)335-1813 JOHN CULLEN,CLE K OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
CC: County Administrator
Building Inspection
Community Development
BY A DEPUTY
H:@007TCode Entoroement�abate ordinance amend-.board ordert.wpd t
Board of Supervisors
April 3, 2007
Page 2
Section 14-6.418 of the attached ordinance provides that an abatement appeal
hearing before the Board of Supervisors need not be conducted according to
technical judicial rules relating to evidence, witnesses and discovery. The existing
abatement appeal hearing procedure provides for a more formal procedure,
including the cross-examination of witnesses through the chair and other rules.
However, appellants rarely request that these rules be followed. The hearing
procedure in the attached ordinance is consistent with several court decisions
holding that abatement hearings need not be conducted under formal judicial
procedures. (Mohilef v. Janovici(1996) 51 Cal. App. 4th 267; E.W.AR, Inc. v. City
of Los Angeles (1997) 56 Cal. App. 4th 310.) The hearing procedure under the
revised section 14-6.418 gives appellants the opportunity to present oral and
written testimony and other evidence, and to present oral and written argument.
Any relevant evidence may be admitted at the hearing "if it is the sort of evidence
on which responsible persons are accustomed to rely in the conduct of serious
affairs," and irrelevant or repetitious evidence may be excluded from a hearing.
Under section 14-6.426 of the attached ordinance, if the County abates a
nuisance, a property owner has 45 days to pay abatement costs before a lien is
placed on the property for unpaid fees, costs, or charges. This section was
revised to be consistent with Government Code section 54988, which requires a
county to give property owners at least 45 days to pay an abatement bill before the
county obtains a special assessment and lien.
Sections 14-8.004 and 14-12.006 of the attached ordinance increases infraction
fine amounts for violations of building and safety ordinances in Title 7 and Title 8
of the County Ordinance Code. Under these revised code sections, infraction fine
amounts are $100 for a first violation, $500 for a second violation of the same
ordinance within one year, and $1,000 for each additional violation of the same
ordinance within one year. These fine amounts are authorized by subsection (c)
of Government Code section 25132.
ig
ORDINANCE NO. 2007-X
NUISANCE ABATEMENT PROCEDURES
The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical
footnotes from the official text of the enacted or amended provisions of the County.Ordinance
Code):
SECTION I. SUMMARY. This ordinance amends the County nuisance abatement ordinance
and related ordinances to make the abatement ordinance consistent with the California
Government Code and with current County code enforcement practices. This ordinance
authorizes County abatement officers to record a"notice of pending nuisance abatement
proceeding"when an abatement proceeding is commenced and issue a"notice of final
disposition" after a nuisance has.been abated. This ordinance provides that an abatement appeal
hearing need not be conducted according to technical judicial rules relating to evidence,
witnesses and discovery. This ordinance provides that when the County abates a nuisance, the
property owner has 45 days to pay abatement costs before alien is placed on the property for
unpaid costs. This ordinance increases infraction fine amounts for violations of building and
safety ordinances in Title 7 and Title 8 of the Ordinance Code.
SECTION II. Section 14-6.406 of the County Ordinance Code is amended to read:
14-6.406 Summary abatement.
(a) Nothing in this article prohibits the summary abatement of a nuisance upon order of the
board or upon order of any other county officer authorized by law to summarily abate
nuisances, if the board or officer determines that the nuisance constitutes an immediate
threat to public health and safety.
(b) If a public nuisance is summarily abated, the county abatement officer shall keep an
account of the cost of abatement and bill the property owner for the cost of abatement.
The bill shall be sent by certified mail to the last known address of the property owner.
Simultaneously, the bill may be sent by regular mail. If the bill sent by certified mail is
returned unsigned; then service is deemed effective pursuant to regular mail.
(c) If the bill is not paid within 45 days from the date of mailing, the county abatement
officer may proceed to obtain a special assessment and lien against the owner's property
in accordance with the procedures set forth in this article, except that, in addition to a
review of the costs of abatement, the board shall also hear and determine any issues
relative to the necessity for the abatement or the manner in which the property was
declared to be a public nuisance and summarily abated. (Ords. 2007-20 §2, 88-88 § 2.)
jS
ORDINANCE NO. 2007-'6
1
SECTION III. Section 14-6.412 of the County Ordinance Code is amended to read:
14-6.412 Service. The notice and order to abate will be served by the method specified either in
subsection(a) or subsection(b).
(a) Certified mail and posting. Certified mail will be addressed to the owner at the address
shown on the last equalized assessment roll or as otherwise known, and addressed to
anyone known to the county abatement officer to be in possession of the property at the
street address of the property being abated. Service is deemed completed upon the
deposit of the notice and order to abate, postage pre-paid, in the United States mail.
Simultaneously, the notice and order to abate may be sent by regular mail. If the notice
and order to abate sent by certified mail is returned unsigned, then service is deemed
effective pursuant to regular mail. Posting of the notice and order to abate will be
conspicuously on or in front of the property. If the property has no frontage,posting will
be on the portion of the property nearest to a street, highway, or road, or most likely to
give actual notice to the owner. The failure of a person to receive a properly addressed
service shall not affect the validity of the proceedings.
(b) Personal service. Personal service is deemed complete on the date the notice is
personally served. (Ords. 2007-20 §3, 88-88 §2.)
SECTION IV. Section 14-6.414 of the County Ordinance Code is amended to read:
14-6.414 Recording.
(a) The county abatement officer may record with the Contra Costa County Recorder a notice.
of pending nuisance abatement proceeding. A notice of pending nuisance abatement
proceeding will describe the property and the condition in violation of the code. Before
recording a notice of pending nuisance abatement proceeding, the county abatement
officer will serve on the record owner of the property a notice of intent to record a notice
of pending nuisance abatement proceeding. Following recordation of a notice of pending
nuisance abatement proceeding,the county abatement officer will serve a copy of the
recorded notice.
(b) If a notice of pending nuisance abatement proceeding is recorded, the county abatement
officer shall serve on the record owner of the property a notice of final disposition when
the nuisance abatement proceeding has been completed, including any appeals and the
completion of any work necessary to abate the nuisance. If the work to abate the nuisance
is performed at County expense,the notice of final disposition need not be issued until
those costs have been paid or a lien for those costs has been recorded. The notice of final
disposition may be recorded by any party that was served with the notice of pending
nuisance abatement proceeding. f,
A
ORDINANCE NO. 2007,2
2
f
(c) All notices specified in this section will be served in the manner specified in Section
14-6.412.
(d) A county abatement officer is not required to record a notice of pending nuisance
abatement proceeding before issuing a notice and order to abate pursuant to Section 14-
6.410. (Ords. 2007-20 §4, 88-88 §2.)
SECTION V. Section 14-6.416 of the County Ordinance Code is amended to read:
14-6.416 Appeal procedure.
(a) Any owner or other person in possession of the property may appeal to the board within
the number of days specified in the notice and order to abate. The appeal shall be
submitted in writing, specify the grounds upon which the appeal is taken, contain the
name, address and telephone number of the appellant, and be filed with the clerk of the
board.
(b) Ari appeal filed with the clerk of the board must be accompanied by an appeal fee. The
amount of the appeal fee will be determined periodically by the board based upon the
costs incurred by the county in processing appeals pursuant to this article. The
calculation will include all costs of the county abatement officer,the clerk of the board,
and any other county department that is involved in the processing of appeals, but will
exclude actual costs for any work of abatement. If the appellant claims an economic
hardship in paying the appeal fee, the appellant may submit an application for waiver of
the appeal fee on forms provided by the clerk of the board for that purpose. The forms
will be substantially similar to those required of litigants initiating court proceedings in
forma pauperis pursuant to Section 68511.3 of the Government Code. The forms shall be
executed under penalty of perjury and contain a declaration as to the truthfulness and
correctness of the information contained in the forms. The clerk of the board may grant
the appellant up to three business days beyond the expiration of the appeal period to
complete and submit the fee waiver forms,provided the appeal was timely filed. The
appeal fee will be waived upon the timely submittal of the completed fee waiver forms.
(c) Failure to submit the completed fee waiver forms or pay the appeal fee in a timely manner
shall cause the appeal request to be automatically denied. Enforcement of the order to
abate may then proceed as if no appeal request had been submitted.
(d) Upon the filing of a timely and complete appeal, including payment of the appeal fee or
submission of completed fee waiver forms, the clerk of the board will set the matter for
hearing before the board. The clerk of the board will notify the parties in writing of the
date and location of the hearing at least ten days prior to the hearing date. Further
abatement action shall be stayed until the appeal is acted upon.
ORDINANCE NO. 2007-X
3
(e) If the appeal fee is paid and the board finds there is no public nuisance,the appeal fee
shall be refunded to the appellant without the payment of any interest that could have
accrued.
(f) The failure to file a timely and complete appeal of a notice and order to abate shall be
deemed to be a failure to exhaust administrative remedies. (Ords. 2007-20 §5, 88-88 §2.)
SECTION VI. Section 14-6.418 of the County Ordinance Code is amended to read:
14-6.418 Hearing procedure.
(a) At the hearing before the board, the appellant will be given the opportunity to present oral
and written testimony and other evidence, and to present oral and written argument.
(b) The hearing need not be conducted according to technical judicial rules relating to
evidence,witnesses and discovery. Any relevant evidence may be admitted if it is the
sort of evidence on which responsible persons are accustomed to rely in the conduct of
serious affairs,regardless of the existence of any common law or statutory rule that might
make improper the admission of the evidence over objection in civil actions. Irrelevant or
unduly repetitious evidence may be excluded. The board may, from time to time, adopt
procedures to govern hearings in further detail.
(c) The hearing may be continued from time to time upon the request of a party to the hearing
and upon a showing of good cause. (Ords. 2007-20 §6, 88-88 §2.)
SECTION VII. Section 14-6.420 of the County Ordinance Code is amended to read:
14-6.420 Decision.
(a) At the conclusion of the hearing, the board will reverse, modify or affirm the
determinations of the county abatement officer and may direct the county abatement
officer to proceed and perform the work of abatement if not performed by the owner or
the person in possession of the property within a prescribed period of time.
(b) The decision of the board will be,in writing,be based on the record, and include a
statement of the factual and legal basis of the decision. The decision of the board will be
filed with the clerk of the board following the conclusion of the hearing. A copy of the
decision will be sent by first-class mail to the appellant at the address specified in the
appeal, and by mail to each party appearing at the hearing. The county abatement officer
is responsible for preparing,mailing and filing the decision.
Ar
ORDINANCE NO. 2007
4
(c) The decision of the board is final when mailed to the appellant. (Ords. 2007-20 §7, 88-88
§2)•
SECTION VIII. Section 14-6.424 of the County Ordinance Code is amended to read:
14-6.424 Judicial review. Judicial review of the board's final decision is governed by California
Code of Civil Procedure sections 1094.5 and 1094.6. (Ords. 2007-20 §8, 88-88 §2).
SECTION IX. Section 14-6.426 of the County Ordinance Code is amended to read:
14-6.426 Abatement by County.
(a) Upon the failure,neglect or refusal to properly comply with the order to abate within the
prescribed time period, the county abatement officer may cause to be done whatever work
is necessary to abate the public nuisance. An account of the cost of abatement shall be
kept for each separate assessor's parcel involved in the abatement.
(b) When the county has completed the work of abatement, or has paid for the work, the total
abatement costs shall be charged to the owner of the property. "Total abatement costs"
means the costs of the actual work of abatement, administrative costs., inspection and
reinspection costs, the appeal fee if it had been waived pursuant to Section 14-6.416, and
attorneys' fees if applicable.
(c) Attorneys' fees may be recovered in a proceeding under this article if the County elects, at
the initiation of the proceeding, to seek recovery of its own attorneys' fees. If the County
so elects, attorneys' fees will be recovered by the prevailing party. In no proceeding shall
an award of attorneys' fees exceed the amount of reasonable attorneys' fees incurred by
the County in the proceeding.
(d) The total abatement costs shall be included in a bill and sent by certified mail to the last
known address of the property owner. Simultaneously, the bill may be sent by regular
mail. If the bill sent by certified mail is returned unsigned, then service is deemed
effective pursuant to regular mail. The bill shall inform the owner that failure to pay the
bill within 45 calendar days from the date of mailing may result in a lien upon the
property. (Ords. 2007-20 §9, 97-19 §2, 88-88 §2; Gov. Code § 25845(c).)
SECTION X. Section 14-6.428 of the County Ordinance Code is amended to read:
14-6.428 Report and notice of hearing.
(a) If the bill is not paid within 45 days from the date of mailing, the county abatement
officer shall render an itemized report in writing to the clerk of the board for submittal to
ORDINANCE NO. 2007.26
5
the board for hearing and confirmation. The report shall include, at a minimum, the
names and addresses of the possessor of the property and all persons having any record
interest in the property(including but not limited to,holders of mortgages or deeds of
trust), the date upon which the abatement of the nuisance was ordered, the date the
abatement was complete, a description of the real property subject to the lien, and the
total abatement costs.
(b) At least 10 days prior to the hearing, the clerk of the board shall give notice,by certified
mail, of the hearing to all persons named in the county abatement officer's report. The
notice shall be prepared by the county abatement officer and shall describe the property
by assessor's parcel number and street number or some other description sufficient to
enable identification of the property and contain a statement of the amount of the
proposed assessment. (Ords. 2007-20 §10, 88-88 § 2.)
SECTION.XI. Section 14-8.004 of the County Ordinance Code is amended to read:
14-8.004. .Violation-Punishment.
(a) Infractions.
(1) Except as otherwise provided by statute or this code, every infraction violation of
this code is punishable by a fine not exceeding one hundred dollars for first
violation, a fine not exceeding two hundred dollars for a second violation of the
same ordinance within one year, and a fine not exceeding five hundred dollars for
each additional violation of the same ordinance within one year.
(2) The amount of the fine will be one hundred dollars for a first violation, five
hundred dollars for a second violation of the same ordinance within one year, and
one thousand dollars for each additional violation of the same ordinance within
one year for infraction violations of the following building and safety ordinances:
(A) Any violation of Division 72, 74, 76, 78, 710, 712, or 714.
(B) A violation of Division 82 or 84,where the violation is a building or
structure erected, constructed, altered, moved or maintained contrary to
Division 82 or 84.
(b) Misdemeanors. Except as otherwise provided by state law or this code, every
misdemeanor violation of this code is punishable by imprisonment in the county jail for
not more than six months, or by a fine of not more than one thousand dollars, or by both.
(Ords. 2007-20 §11, 84-18, 76-51 §1, 70-36, 1457: prior code §1200 (part): see Govt. C.
§25132, Vehicle Code §42001(a), and Penal Code §19.)
ORDINANCE NO. 2007-X
6
SECTION.XII. Section 14-12.006 of the County Ordinance Code is amended to read:
14-12.006 Administrative Fines.
(a) The director is authorized to determine whether a violation of this code exists with
respect to any property.
(b) If the violation is a continuing violation pertaining to building,plumbing, electrical or
other similar structural or zoning issues, the director may serve a notice of violation on
the owner as specified in section 14-12.018. The notice of violation will include all of
the following information:
(1) The date of the violation.
(2) The address or other description of the location where the violation occurred.
(3) The code section(s)violated and a description of the violation.
(4) A description of how the violation can be corrected.
(5) A specified time period of at least 10 calendar days,beginning on the service date,
within which the violation must be corrected.
(6) An advisement that the owner may be subject to an administrative fine under this
chapter if the violation is not corrected by the effective date, and the amount of
that fine.
(c) The director may impose an administrative fine on the owner if any of the
following occur:
(1) The violation is not a continuing violation pertaining to building,plumbing,
electrical or other similar structural or zoning issues.
(2) The continuing violation has not been corrected as specified in the notice of
violation.
(3) The continuing violation was corrected as specified in the notice of violation but a
violation of the same code section continues, exists or occurs within one year of
the effective date.
(d) Fine Amounts.
/fl
ORDINANCE NO. 2007-X
7
(1) The amount of the fine will be one hundred dollars for a first violation, two
hundred dollars for a second violation of the same ordinance within one year, and
five hundred dollars for each additional violation of the same ordinance within
one year, except as provided in subsection (2) of this subsection(d).
(2) The amount of the fine will be one hundred dollars for a first violation, five
hundred dollars for a second violation of the same ordinance within one year, and
one thousand dollars for each additional violation of the same ordinance within
one year for infraction violations of the following building and safety ordinances:
(A) Any violation of Division 72, 74, 76, 78, 710, 712, or 714.
(B) A violation of Division 82 or 84, where the violation is a building or
structure erected, constructed, altered,moved or maintained contrary to
Division 82 or 84.
(e) Acts, omissions, or conditions in violation of this code that continue, exist, or occur on
more than one day constitute separate violations and offenses on each day. Violations
continuing, existing, or occurring on the service date, the effective date, and each day
between the service date and the effective date are separate violations.
(f) An administrative fine will be assessed by means of a notice of fine. The owner will be
served with the Notice of Fine as specified in section 14-12.018. The notice of fine will
include all of the following information:
(1) The date of the violation.
(2) The address or other description of the location where the violation occurred.
(3) The code section(s)violated and a description of the violation.
(4) The amount of the fine.
(5) An advisement of the right to request a hearing before the hearing examiner
contesting the imposition of the fine.
(g) The director may require immediate abatement of a violation pursuant to Section 14-
6.406 of this code if the violation creates an immediate danger to the health or safety of
persons or property. (Ords. 2007-20 §12, 2002-47 §3, 2000-21 §2.)
SECTION XIII. EFFECTIVE DATE. This ordinance.becomes effective 30 days after
passage, and within 15 days after passage shall be published once with the names of supervisors
ORDINANCE NO. 2007X
8
voting for or against it in the Contra Costa Times, a newspaper published in this County.
PASSED on ,by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: JOHN CULLEN,
Clerk of the Board of Supervisors Board Chair
and County Administrator
By: [SEAL]
Deputy
TLG:
H:\2007\Code Enforcement\abate ordinance amend-final.wpd
ORDINANCE NO. 2007-X
9