Chapter 9.96
Enforcement and Penalties

Sections:

9.96.010    Purpose of Chapter

9.96.020    Permits and Licenses

9.96.030    Official Duty to Enforce

9.96.040    Violations

9.96.050    Remedies are Cumulative

9.96.060    Inspections

9.96.070    Permit Revocation or Modification

9.96.080    Initial Enforcement Action

9.96.090    Legal Remedies

9.96.100    Recovery of Costs

9.96.110    Additional Permit Processing Fees

9.96.120    Reinspection Fees

9.96.010 Purpose of Chapter

This Chapter establishes procedures for City responses to violations of this Land Use Code/Arcata General Plan and any conditions of planning permit or subdivision approval, to promote the City’s planning efforts, and for the protection of the public health, safety, and welfare.

9.96.020 Permits and Licenses

Each department, official, and employee of the City who is assigned the authority or duty to issue permits or licenses shall comply with all applicable provisions of this Land Use Code/Arcata General Plan.

A.    Permits in conflict with Land Use Code. No permit shall be issued by the City for a use or structure in conflict with the provisions of this Land Use Code/Arcata General Plan.

B.    Permits deemed void. Any permit issued in conflict with the provisions of this Land Use Code/Arcata General Plan shall be deemed void.

9.96.030 Official Duty to Enforce

A.    Designated employee. The Zoning Administrator may:

1.    Exercise the authority provided in Section 836.5 of the Penal Code as a Code Enforcement Officer; and

2.    Issue citations for any violations of this Land Use Code/Arcata General Plan pertaining to the use of any land and the addition, alteration, construction, conversion, erection, moving, reconstruction, or use of any structure.

B.    Police Chief. The Police Chief shall render any and all necessary assistance to the Zoning Administrator for the enforcement of this Land Use Code.

9.96.040 Violations

Any structure constructed or maintained contrary to the provisions of this Land Use Code and any use of land or structures operated or maintained contrary to the provisions of this Land Use Code are hereby declared to be public nuisances.

A.    Public nuisance. Any structure or use which is altered, constructed, converted, enlarged, established, erected, maintained, moved, or operated, contrary to the provisions of this Land Use Code or any applicable condition of approval imposed on a permit, is hereby declared to be unlawful and a public nuisance, and shall be subject to the remedies and penalties identified in this Chapter and Title 1, Chapter 3 (Penalty Provisions) of the Municipal Code.

B.    Criminal violations. Any person, whether an agent, principal, or otherwise, violating or causing the violation of any provision of this Land Use Code or any permit issued in compliance with this Land Use Code shall be guilty of a misdemeanor or an infraction at the election of the City and/or its prosecuting official, and upon conviction thereof, shall be punishable by the applicable fine established by the Council.

C.    Misdemeanors. Any offense that would otherwise be an infraction may, at the discretion of the District Attorney or City Attorney, be filed as a misdemeanor if the defendant has been convicted of two or more violations of any provision of this Land Use Code within the 12 months immediately preceding the commission of the offense, or has been convicted of three or more violations of any provision of this Land Use Code within the 24 months immediately preceding the offense.

D.    Stop Work Order.

1.    Any construction in violation of this Land Use Code or any conditions imposed on a permit shall be subject to the issuance of a "Stop Work Order."

2.    Any violation of a Stop Work Order shall constitute a misdemeanor, subject to the penalties described in Title 1, Chapter 3 (Penalty Provisions) of the Municipal Code.

9.96.050 Remedies are Cumulative

A.    Cumulative, not exclusive. All remedies contained in this Land Use Code for the handling of violations or enforcement of the provisions of this Land Use Code shall be cumulative and not exclusive of any other applicable provisions of City, County, or State law.

B.    Other remedies. Should a person be found guilty and convicted of a misdemeanor or infraction for the violation of any provision of this Land Use Code, the conviction shall not prevent the City from pursuing any other available remedy to correct the violations.

9.96.060 Inspections

A.    Preapproval inspections. Every applicant seeking a permit or any other action in compliance with this Land Use Code shall allow the City officials handling the application access to any premises or property which is the subject of the application. An owner’s signature on a City Application Form authorizes City of Arcata representatives to enter upon a subject property as reasonably necessary to evaluate a proposed project.

B.    Post approval inspections. If the permit or other action in compliance with this Land Use Code is approved, the owner or applicant shall allow appropriate City officials access to the premises in order to determine continued compliance with the approved permit and/or any conditions of approval imposed on the permit.

9.96.070 Permit Revocation or Modification

A.    Procedures. This Section provides procedures for securing punitive revocation or modification of previously granted permits or approvals.

B.    Revocations. The City’s action to revoke a permit or approval shall have the effect of terminating the permit or approval and denying the privileges granted by the original approval.

C.    Modifications.

1.    The City’s action to modify, rather than revoke, a permit or approval, shall have the effect of changing the operational aspects of the permit or approval.

2.    The changes may include the operational aspects related to the duration of the permit or approval, fencing, hours of operation, landscaping and maintenance, lighting, noise, parking, performance guarantees, property maintenance, screening, signs, surfacing, traffic circulation, etc.

D.    Hearings and notice.

1.    The appropriate review authority that originally approved the permit, shall hold a public hearing to revoke or modify a permit or approval granted in compliance with the provisions of this Land Use Code.

2.    At least ten days before the public hearing, notice shall be delivered in writing to the applicant for the permit or approval being considered for revocation, and/or owner of the property for which the permit was granted.

3.    Notice shall be delivered by either personal delivery or through certified first class mail, through the United States Postal Service, postage paid, to the owner as shown on the County’s current equalized assessment roll and to the project applicant, if not the owner of the subject property.

E.    Review authority action.

1.    Permits. A land use permit or approval may be revoked or modified by the review authority (e.g., Zoning Administrator, Historic and Design Review Authority, Planning Commission, or Council) that originally approved the permit, if the review authority first makes any one of the following findings:

a.    Circumstances under which the permit or approval was granted have been changed by the applicant to an extent that one or more of the findings that justified the original approval can no longer be made, and the public health, safety, and welfare require the revocation;

b.    The permit or other approval was granted, in whole or in part, on the basis of a misrepresentation or omission of a material statement in the application, or in the applicant’s testimony presented during the public hearing, for the permit or other approval;

c.    One or more of the conditions of the original approval have not been substantially fulfilled or have been violated;

d.    The approved use or structure has ceased to exist or has been suspended for at least 12 months;

e.    An improvement authorized in compliance with the permit is in violation of any applicable code, law, ordinance, regulation, or statute; or

f.    The improvement/use allowed by the permit has become detrimental to the public health, safety, or welfare, or the manner of operation constitutes or is creating a public nuisance.

2.    Variances. A Variance may be revoked or modified by the review authority which originally approved the Variance, if the review authority first makes either one of the following findings:

a.    Circumstances under which the entitlement was granted have been changed by the applicant to a degree that one or more of the findings contained in the original approval can no longer be made in a positive manner, and the grantee has not substantially exercised the rights granted by the Variance; or

b.    One or more of the conditions of the Variance have not been met, or have been violated, and the grantee has not substantially exercised the rights granted by the Variance.

9.96.080 Initial Enforcement Action

This Section describes the procedures for initiating enforcement action in cases where the Zoning Administrator has determined that real property within the City is being used, maintained, or allowed to exist in violation of the provisions of this Land Use Code. It is the objective of these provisions to encourage the voluntary cooperation of responsible parties in the prompt correction of violations, so that the other enforcement measures provided by this Chapter may be avoided.

A.    Notice to responsible parties. The Zoning Administrator shall provide the record owner of the subject site and any person in possession or control of the site with a written Notice of Violation as delivered per Subsection 9.96.070.D.3, which shall include the following information:

1.    A description of the violation, and citations of applicable Land Use Code provisions being violated;

2.    A time limit for correcting the violation in compliance with Subsection B, below;

3.    A statement that the City intends to charge the property owner for all administrative costs associated with the abatement of the violations in compliance with Section 9.96.100 (Recovery of Costs), and/or initiate legal action as described in Section 9.96.090 (Legal Remedies);

4.    A statement that the property owner may request and be provided a meeting with the Zoning Administrator to discuss possible methods and time limits for the correction of the violations.

B.    Time limit for correction.

1.    The Notice of Violation shall state that the violations shall be corrected within 30 days from the date of the notice to avoid further enforcement action by the City, unless the responsible party contacts the Zoning Administrator within that time to arrange for a longer period for correction.

2.    The 30-day time limit may be extended by the Zoning Administrator upon a showing of good cause.

3.    The Zoning Administrator may also require through the Notice of Violation that the correction occur within less than 30 days if the Zoning Administrator determines that the violation constitutes a hazard to public health or safety.

C.    Use of other enforcement procedures. The enforcement procedures of Section 9.96.090 (Legal Remedies) may be employed by the Zoning Administrator after or instead of the provisions of this Section where the Zoning Administrator determines that this Section would be ineffective in securing the correction of the violations within a reasonable time.

9.96.090 Legal Remedies

The City may choose to undertake any one or all of the following legal actions to correct and/or abate any public nuisances or violations of this Land Use Code.

A.    Civil actions.

1.    Injunction. The City Attorney, upon order of the Council, may apply to the Superior Court for injunctive relief to terminate a violation of this Land Use Code.

2.    Abatement proceedings. Where any person fails to abate a violation after being provided a Notice of Violation in compliance with Section 9.96.080.A and the opportunity to correct or end the violation, the City Attorney, upon order of the Council, shall apply to the Superior Court for an order authorizing the City to undertake actions necessary to abate the violation and require the violator to pay for the cost of the actions.

3.    Nuisance abatement. The City may pursue nuisance abatement in compliance with Section Title I, Chapter 3 (Penalty Provisions) of the Municipal Code.

B.    Civil remedies and penalties.

1.    Civil penalties. Any person who willfully violates the provisions of this Land Use Code or any permit issued in compliance with this Land Use Code, shall be liable for a civil penalty in compliance with the Code Enforcement Fee Schedule for each day that the violation continues to exist.

2.    Costs and damages. Any person violating any provisions of this Land Use Code or any permit issued in compliance with this Land Use Code, shall be liable to the City for the costs incurred and the damages suffered by the City, its agents, and agencies as a direct result of the violations.

3.    Procedure. In determining the amount of the civil penalty to impose, the Court should consider all relevant circumstances, including the extent of the harm caused by the conduct constituting a violation, the nature and persistence of the conduct, the length of time over which the conduct occurred, the assets, liabilities, and net worth of the defendant, whether corporate or individual, and any corrective action taken by defendant.

C.    Criminal actions and penalties. See Section 9.96.040.B (Criminal Violations).

9.96.100 Recovery of Costs

This Section establishes procedures for the recovery of administrative costs, including Staff and City Attorney time expended on the enforcement of the provisions of this Land Use Code in cases where no permit is required in order to correct a violation. The intent of this Section is to recover City administrative costs reasonably related to enforcement.

A.    Record of costs.

1.    The Department shall maintain records of all administrative costs, incurred by responsible City departments, associated with the processing of violations and enforcement of this Land Use Code, and shall recover the costs from the property owner in compliance with this Section and Title V, Chapter 5 (Abatement of Nuisances) of the Municipal Code.

2.    Staff time shall be calculated at an hourly rate as established and revised from time to time by the Council.

B.    Notice. Upon investigation and a determination that a violation of any of the provisions of this Land Use Code is found to exist, the Zoning Administrator shall notify the record owner or any person having possession or control of the property by mail as delivered per Subsection 9.96.070.D.3, of the existence of the violation, the Department’s intent to charge the property owner for all administrative costs associated with enforcement, and of the owner’s right to a hearing on any objections they may have. The notice shall be in a form approved by the City Attorney.

C.    Summary of costs and notice.

1.    At the conclusion of the case, the Zoning Administrator shall send a summary of costs associated with enforcement to the owner and/or person having possession or control of the property by certified first class mail.

2.    The summary shall include a notice in a form approved by the City Attorney, advising the responsible party of their right to request a hearing on the charges for City cost recovery within 10 days of the date of the notice, and that if no request for hearing is filed, the responsible party will be liable for the charges.

3.    In the event that no request for hearing is timely filed or, after a hearing the Zoning Administrator affirms the validity of the costs, the property owner or person in control shall be liable to the City in the amount stated in the summary or any lesser amount as determined by the Zoning Administrator.

4.    The costs shall be recoverable in a civil action in the name of the City, in any court of competent jurisdiction, or by tax assessment, or by a lien on the property, at the City’s election.

D.    Request for hearing on costs. Any property owner, or other person having possession and control of the subject property, who receives a summary of costs shall have the right to a hearing before the Zoning Administrator on their objections to the proposed costs.

1.    A request for hearing shall be filed with the Department within 10 days of the service by mail of the Department’s summary of costs, on a form provided by the Department.

2.    Within 30 days of the filing of the request, and on 10 days written notice to the owner, the Zoning Administrator shall hold a hearing on the owner’s objections, and determine their validity.

3.    In determining the validity of the costs, the Zoning Administrator shall consider whether total costs are reasonable in the circumstances of the case. Factors to be considered include: whether the present owner created the violation; whether there is a present ability to correct the violation; whether the owner moved promptly to correct the violation; the degree of cooperation provided by the owner; and whether reasonable minds can differ as to whether a violation exists.

4.    The Zoning Administrator’s decision is appealable to the Council as provided by Chapter 9.76 (Appeals).

9.96.110 Additional Permit Processing Fees

Any person who establishes a land use, or alters, constructs, enlarges, erects, maintains, or moves any structure without first obtaining any permit required by this Land Use Code, shall pay the additional permit processing fees established by the City’s Fee Schedule for the correction of the violations, before being granted a permit for a use or structure on the site.

9.96.120 Reinspection Fees

A.    Amount and applicability of reinspection fee.

1.    A reinspection fee shall be imposed on each person who receives a Notice of Violation, notice and order, or letter of correction of any provision of the Municipal Code, adopted Building Code, or State law.

a.    The fee amount shall be established by the City’s Fee Schedule.

b.    The fee may be assessed for each inspection or reinspection conducted when the particular violation for which an inspection or reinspection is scheduled is not fully abated or corrected as directed by, and within the time and manner specified in, the notice or letter.

2.    The fee shall not apply to the original inspection to document the violations and shall not apply to the first scheduled compliance inspection made after the issuance of a notice or letter, whether or not the correction has been made.

B.    Continuation of the original case.

1.    If a notice or letter has been previously issued for the same violation and the property has been in compliance with the provisions of this Land Use Code or the Municipal Code for less than 180 days, the violation shall be deemed a continuation of the original case, and all inspections or reinspections, including the first inspection for the repeated offense, shall be charged a reinspection fee.

2.    This fee is intended to compensate for administrative costs for unnecessary City inspections, and is not a penalty for violating this Land Use Code or the Municipal Code.

3.    Any reinspection fees imposed shall be separate and apart from any fines or penalties imposed for violation of this Land Use Code or the Municipal Code, or costs incurred by the City for the abatement of a public nuisance.