CHAPTER 1.06
ADMINISTRATIVE HEARING ORDINANCE

Section

1.06.010    Title of chapter

1.06.020    Purpose and authority

1.06.030    Definitions

1.06.040    Service of notices and other writings

1.06.050    Form of notice of hearing

1.06.060    Hearing

1.06.070    Emergency hearing/decision

1.06.080    Decision

1.06.090    Decision in writing

1.06.100    Payment and collection of penalties

1.06.110    Defaults and uncontested cases

1.06.120    Cost accounts

1.06.130    Imposition of liens or special assessments

1.06.140    Judicial review of decision of hearing body or hearing officer

1.06.010 TITLE OF CHAPTER.

This chapter shall be known as the Administrative Hearing Ordinance. (Ord. 897 § 1, passed 11-14-2011)

1.06.020 PURPOSE AND AUTHORITY.

The City Council establishes the procedures set forth in this chapter to provide administrative hearing procedures pursuant to Cal. Government Code §§ 36900, et seq., 38660, 38771 through 38775, inclusive, 53069.4, 54988 and all other statutes and laws referenced herein. (Ord. 897 § 1, passed 11-14-2011)

1.06.030 DEFINITIONS.

For the purpose of this chapter and Chapter 1.08, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CODE, THIS CODE, or MUNICIPAL CODE. The City of Fort Bragg’s Municipal Code, all uniform codes that have been incorporated into the City’s Municipal Code, and any applicable local, state or federal laws and regulations that are or may be enforced by the City, including without limitation, the State Housing Law (Health and Safety Code § 17910, et. seq.).

DAY or DAYS. Calendar days.

HEARING BODY. For Land Use Development Code-related matters governed by Titles 17 and 18 of this Code, the Hearing Body is the Planning Commission, with appeals to the City Council. For all other Municipal Code violations, the initial hearing shall be conducted before a Hearing Officer, as defined below.

HEARING OFFICER. The City Manager or any person or persons appointed by the City Manager to conduct hearings pursuant to this chapter.

RESPONSIBLE PARTY or RESPONSIBLE PARTIES. Any person, firm, association, club or organization (including informal clubs or organizations), corporation, partnership, trust(ee), or entity, and a parent or legal guardian of any person(s) under eighteen years of age, whose acts or omissions have caused or contributed to a violation of this Code, and shall include any owner(s) or occupant(s) of the affected property.

(Ord. 897 § 1, passed 11-14-2011; Am. Ord. 906, § 2, passed 04-22-2013)

1.06.040 SERVICE OF NOTICES AND OTHER WRITINGS.

Service of a writing on, or giving of notice to, a Responsible Party in a procedure provided for in this chapter is subject to the following provisions:

A.    The writing or notice shall be delivered personally or sent by mail or other means to the Responsible Party at the Responsible Party’s last known address or, if the Responsible Party is a party with an attorney or other authorized representative of record in the proceeding, to the Responsible Party’s attorney or other authorized representative. If the Responsible Party has an address on file with the City, the Responsible Party’s last known address is the address on file with the City;

B.    Unless otherwise specified in the Municipal Code, service or notice by mail may be by first-class mail, registered mail, or certified mail, by mail delivery service, by facsimile transmission if complete and without error, or by other electronic means as provided by law, at the discretion of the sender. Service by mail or mail delivery service shall be effective on the date of deposit, and service by facsimile or other electronic means shall be effective when sent.

(Ord. 897 § 1, passed 11-14-2011)

1.06.050 FORM OF NOTICE OF HEARING.

The Notice of Hearing shall be served as provided in § 1.06.040 at least twenty (20) calendar days prior to the date set for the hearing. The Notice of Hearing shall be in substantially the following form, but may include other information:

“You are hereby notified that a hearing will be held before [insert the name of the Hearing Body or Hearing Officer] at [insert the place of the hearing] on the ______ day of ______________, 20____, at the hour of ______________, regarding ______________________________________________________ ___________________________. You may be present at the hearing. You have the right to be represented by an attorney at your own expense, or to represent yourself without legal counsel. You may present any relevant evidence, question any witnesses testifying or evidence presented against you, and call witnesses on your behalf.”

If any City representative submits a written report or other material concerning the subject matter of the hearing to the Hearing Officer or Hearing Body for consideration at the hearing, then a copy of the report or other material shall be served on the person requesting the hearing and the Responsible Parties at least five (5) calendar days before the hearing.

(Ord. 897 § 1, passed 11-14-2011)

1.06.060 HEARING.

A.    Hearing Officer. A person may not serve as a Hearing Officer or as part of a Hearing Body in any of the following circumstances:

1.    If the person has served as an investigator, prosecutor or advocate in the proceeding or in its pre-hearing stage; or

2.    If the person is subject to the authority, direction or discretion of a person who has served as an investigator, prosecutor or advocate in the proceeding or its pre-hearing stage.

B.    Evidence. Each party shall have the right to call and examine witnesses and introduce exhibits. The hearing need not be conducted according to technical rules relating to evidence and witnesses. The Hearing Officer or Hearing Body has the right to ask questions and the discretion to exclude evidence if its tendency to prove or disprove an issue is substantially outweighed by the likelihood that its admission will not assist in proving or clarifying a material issue or consume an undue amount of time. Evidence offered during a hearing must be credible and relevant in the estimation of the hearing body or hearing officer, but formal rules governing the presentation and consideration of evidence shall not apply. Evidence presented by staff or other official of the City tending to support an administrative decision shall constitute prima facie evidence that the decision was justified. The burden of proof shall then be on the aggrieved party or other person challenging the decision to refute such evidence. The standard to be applied for meeting such burden shall be a preponderance of evidence.

(Ord. 897 § 1, passed 11-14-2011)

1.06.070 EMERGENCY HEARING/DECISION.

A.    A Hearing Officer or Hearing Body may issue an emergency decision for temporary, interim relief if a situation exists that involves an immediate danger to the public health, safety or welfare that requires immediate action. The underlying issue giving rise to the temporary, interim relief is subject to the regular hearing procedures set forth herein.

B.    Before issuing an emergency decision under this section, the Hearing Officer or Hearing Body shall, if practicable, give the person who is the subject of the decision notice and an opportunity to be heard. Such notice may be oral or written, including notice by telephone, facsimile transmission or other electronic means, as the circumstances permit.

C.    The Hearing Officer or Hearing Body shall issue an emergency decision, including a brief explanation of the factual and legal basis and reasons for the emergency decision, to justify the determination of an immediate danger and the decision to take the specific action. The City shall give notice to the extent practicable to the Responsible Party(ies). The emergency decision is effective when issued or as provided in the decision.

D.    After issuing an emergency decision under this section for temporary, interim relief, a regular hearing shall be conducted to resolve the underlying issues giving rise to the emergency decision. The City shall commence the regular hearing proceeding within ten (10) calendar days after issuing an emergency decision under this section. COMMENCE for purposes of this section means serving a Notice of Hearing pursuant to § 1.06.040 of this chapter.

(Ord. 897 § 1, passed 11-14-2011)

1.06.080 DECISION.

A.    Within ten (10) calendar days following the conclusion of the hearing, the Hearing Officer or Hearing Body shall make a decision regarding the issues presented during the course of the hearing, and the decision shall be based on a preponderance of the evidence. After making a decision, the Hearing Officer or Hearing Body may issue an appropriate order.

B.    A Responsible Party and any interested party requesting a copy of an abatement order, administrative order, or decision of the Hearing Officer or Hearing Body shall be served with a copy of said order or decision in the same manner as used for service of a Notice of Hearing as described in § 1.06.040. Proof of service of the order or decision shall be certified by a written declaration under penalty of perjury executed by the person effecting service, declaring the date, time, and manner that service was made.

C.    An order shall become effective and enforceable immediately after announcement or service of such order unless the order includes a later effective date.

D.    An order may include any combination of the following remedies:

1.    Impose or uphold an administrative penalty, subject to Cal. Government Code §§ 36900(b) and 53069.4.

2.    Issue a “cease and desist” order requiring the Responsible Party(ies), or any agent, representative, employee, or contractor of a Responsible Party, to immediately stop any act, conduct, or condition that is a violation of this Code. A cease and desist order issued pursuant to this section shall be effective upon issuance and shall be served on the Responsible Party(ies) in the manner specified in § 1.06.040.

3.    Require the Responsible Party(ies) to correct or eliminate any violation, including a proposed schedule for correction or elimination of said violation within a reasonable time. If a violation pertains to building, plumbing, electrical, or any other structural or zoning issues and the violation does not create an immediate threat to health or safety, the Responsible Party(ies) shall be provided at least fifteen (15) calendar days to correct, abate, or otherwise remedy the violation.

4.    Require the Responsible Party(ies), or authorize the City, to restore a site or location that has been damaged or disturbed as a result of a violation of this Code to a pre-violation condition. Any order authorizing the City to undertake restoration efforts shall include provisions for the City to recover all restoration costs and expenses, including administrative costs, from the Responsible Party(ies).

5.    Require the Responsible Party(ies), or authorize the City, to mitigate any damage or disturbance to protected or environmentally sensitive areas as a result of any violation, including without limitation, off-site replacement of damaged or destroyed natural resources where on-site restoration or mitigation is not feasible, as determined by the City. Any order authorizing the City to undertake mitigation efforts shall include provisions for the City to recover all costs of abatement, including mitigation costs and expenses, and may include attorneys’ fees, from the Responsible Party(ies).

6.    Impose conditions that restrict or regulate the development of, use of, or activity on real property where a nexus exists between a Code violation(s) and the development, use or activity. Conditions may be imposed until the violations are fully abated. Restrictions and regulations on current or future development, use or activity may include site restoration and/or the suspension or revocation of any entitlements issued by the City.

7.    Authorize the City to abate or cause the abatement of any nuisance condition, including without limitation those conditions described in § 6.12.040 of this Code, where the Responsible Party has refused or has otherwise neglected or is unable to take steps to correct or eliminate said conditions. The order shall specify that if the City undertakes to abate or eliminate any nuisance condition, the City shall be entitled to recover all costs of abatement incurred in performing such work and other costs necessary to enforce the order, in accordance with §§ 6.12.040 and 6.12.050 of this Code. Such costs may be recovered by the City as a personal obligation and/or through a lien or a special assessment on the affected property as provided in § 6.12.160 of this Code.

8.    Sustain, modify, or overrule a Notice of Violation issued by a Code Enforcement Officer, pursuant to § 6.12.060 of this Code.

9.    Any other order or remedy that serves the interests of justice.

E.    The City may seek to enforce any administrative order by confirmation from a court of competent jurisdiction. Any order that is judicially confirmed may be enforced through all applicable judicial enforcement measures, including without limitation, contempt proceedings upon a subsequent violation of such order.

(Ord. 897 § 1, passed 11-14-2011)

1.06.090 DECISION IN WRITING.

The decision of a Hearing Officer or Hearing Body shall be in writing and shall include a statement of the factual and legal basis for the decision. The statement of the factual basis for the decision shall be based on the evidence presented at the hearing and in the record on the proceedings. (Ord. 897 § 1, passed 11-14-2011)

1.06.100 PAYMENT AND COLLECTION OF PENALTIES.

A.    If an administrative penalty is imposed and the Responsible Party fails to timely request an administrative hearing in accordance with this chapter, the Responsible Party shall pay the amount of the penalty within thirty (30) days of the effective date of the penalty, unless an extension of time is requested by the party against whom the penalty is imposed and the request is granted by the City Manager in the case of a penalty imposed by a Code Enforcement Officer pursuant to § 6.12.155 of this Code, or by the Hearing Officer or Hearing Body if the penalty was imposed as part of an administrative order after a hearing pursuant to this chapter. Any penalty imposed shall be payable to the City, or to a collection agency if the penalty has been assigned to a collection agency pursuant to subsection C of this section.

B.    If the amount of any penalty imposed for a violation relating to an affected property has not been satisfied in full within sixty (60) days of the date due and has not been successfully challenged by appeal pursuant to Chapter 1.08 of this Code or in court, the penalty amount may become a special assessment or lien against the affected property, as provided in § 1.06.130. If the City elects to make any penalty a special assessment or lien against the affected property, a statement of the amount due, and any additional costs or expenses that may be recoverable as part of the enforcement action, shall be prepared and submitted to the City Council for confirmation in accordance with the procedures described in § 1.06.120.

C.    Notwithstanding subsection B of this section, the amount of any unpaid penalty may be collected by commencement of a civil action to collect such penalty, or in any other manner provided by law for the collection of debts, including assignment of the debt to a collection agency. Subject to the requirements of this Code and other applicable law, amounts assigned for collection are subject to collection agency rules, regulations and policies. The City shall be entitled to recover any and all costs, including attorneys’ fees, associated with collection of any such penalty.

D.    The payment of a penalty by or on behalf of any Responsible Party shall not relieve such party from the responsibility of correcting, removing or abating any nuisance condition, or performing restoration where required, nor prevent further proceedings under this Code or any other authority to achieve the correction, removal or abatement of a nuisance, or any required restoration.

(Ord. 897 § 1, passed 11-14-2011)

1.06.110 DEFAULTS AND UNCONTESTED CASES.

If any Responsible Party either fails to file a request for a hearing or to appear at a duly noticed hearing, the City may take action based on the record without notice to the Responsible Party(ies), except as otherwise provided herein. (Ord. 897 § 1, passed 11-14-2011)

1.06.120 COST ACCOUNTS.

A.    If an administrative order authorizes the City to recover its costs associated with the administrative proceeding, the City shall keep an accounting of such costs, and shall render a written report (“the cost report”) to the City Council showing the costs incurred by the City. The cost report shall be agendized as a “public hearing” item by the City Clerk at a subsequent City Council meeting following the required notice periods.

B.    At least ten (10) days prior to the submission of the cost report to the City Council, the City Clerk shall cause a copy of the cost report to be mailed to the Responsible Party(ies) and/or to the owner of the property that was the subject of the administrative hearing. If the administrative hearing concerns conditions or uses of real property, a copy of the cost report shall be mailed to the owner(s) at the address shown for such owner(s) in the most recent tax assessor’s records. The City Clerk shall also cause a Notice of Hearing to be mailed to the same person(s) or entity receiving a copy of the cost report. The Notice of Hearing shall set forth the date, time and location of the City Council meeting at which the cost report shall be submitted to the City Council.

C.    At the time and place fixed for receiving and considering the cost report, the City Council shall hear a summary of the cost report and any objections by the Responsible Party(ies) or property owner against whom such costs are being charged or against whose property an abatement lien or special assessment may be imposed. After considering the cost report and any objections thereto, the City Council may make such modifications to the cost report as it deems appropriate, after which the report may be confirmed by order of the City Council.

D.    At the hearing on the cost report, the City Council may also authorize the imposition of a lien or special assessment on the property that was the subject of the administrative hearing pursuant to § 1.06.130.

E.    A copy of a Council order confirming costs against the Responsible Party(ies) shall be served on the Responsible Party(ies) within ten (10) days of such order in the manner described in § 1.06.040. Any Responsible Party against whom costs are awarded by Council order shall have the right to seek judicial review of such order by filing a petition for writ of mandate in accordance with Cal. Code of Civil Procedure § 1094.5.

(Ord. 897 § 1, passed 11-14-2011)

1.06.130 IMPOSITION OF LIENS OR SPECIAL ASSESSMENTS.

A.    Any penalty imposed pursuant to this chapter, any administrative costs or other expenses that are levied in accordance with this Code, whether imposed or levied judicially or administratively, may be enforced by the recordation of a lien against the property of the owner of the real property where the nuisance condition existed. Any such lien shall be recorded in the office of the Mendocino County Recorder, and from the date of recording shall have the force, effect, and priority of a judgment lien. A lien authorized by this subsection shall specify the amount of the lien, that the lien is being imposed on behalf of the City, the date of any administrative order issued pursuant to this chapter, 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.

B.    Before recordation of a lien authorized by this section, a Notice of Lien shall be served on the Responsible Party(ies) and/or owner of record of the parcel of land to which the lien is directed, based on the last equalized assessment roll or the supplemental roll, whichever is more current. The Notice of Lien shall be served in the same manner as a summons in a civil action. If the owner of record cannot be found, after a diligent search, the Notice of Lien may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published in Mendocino County.

C.    Any fee imposed on the City by the County Recorder for costs of processing and recording the lien as well as the cost of providing notice to the owner in the manner described herein may be recovered from the owner in any foreclosure action to enforce the lien or upon sale of the property on which the City has placed a lien following recordation.

D.    As an alternative to the lien procedure described above, any penalty imposed pursuant to this section, and any associated costs or expenses, whether imposed or levied judicially or administratively, may become a special assessment against the real property that was the subject of the administrative hearing. Any special assessment imposed on real property pursuant to this section 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 is provided for ordinary municipal taxes. Notice of any special assessment that is levied on real property pursuant to this section shall be given to the owner by certified mail, and shall contain the information set forth in Cal. Government Code § 38773.5(c). All laws applicable to the levy, collection, and enforcement of municipal taxes, including those described in Cal. Government Code § 38773.5(c), shall be applicable to such special assessment.

(Ord. 897 § 1, passed 11-14-2011)

1.06.140 JUDICIAL REVIEW OF DECISION OF HEARING BODY OR HEARING OFFICER.

A.    Except for an administrative decision made by the Planning Commission as the Hearing Body (which may be appealed to the City Council), or any decision that may be appealed to the Coastal Commission pursuant to the California Coastal Act, any Responsible Party who is aggrieved by a decision of a Hearing Officer or Hearing Body, and who has exhausted the administrative remedies provided in this Code, or any other applicable law, shall have the right to seek judicial review of such decision by filing a petition for writ of mandate in accordance with Cal. Code of Civil Procedure § 1094.5. A petition for writ of mandate must be filed within ninety days (90) after the administrative decision becomes final (as determined in Cal. Code of Civil Procedure § 1094.6). Notwithstanding these time limits, where a shorter time limitation is provided by any other law, including that set forth in Cal. Government Code § 53069.4 (see subsection E of this section), such shorter time limit shall apply.

B.    Written notice of the time limitation in which a party may seek judicial review of an administrative order or decision (except for the imposition of an administrative penalty) shall be given to all Responsible Parties in the matter by the City in substantially the following form:

“Judicial review of this decision may be sought by following the procedure outlined in Cal. Code of Civil Procedure § 1094.5. Judicial review must be sought not later than the 90th day following the date on which this decision becomes final, except that where a shorter time is provided by any state or federal law, such shorter time limit shall apply.”

C.    This section shall not be deemed to revive any cause of action or grounds for relief through a special proceeding that is barred by law or equity.

D.    All costs of preparing an administrative record that may be recovered by a local agency pursuant to Cal. Code of Civil Procedure § 1094.5(a) or successor statute shall be paid by the petitioner prior to delivery of the record to petitioner.

E.    Any Responsible Party against whom an administrative penalty has been imposed pursuant to this chapter and who has exhausted the administrative remedies provided in this Code or other applicable law may obtain judicial review of said penalty pursuant to Cal. Government Code § 53069.4 by filing an appeal with the Mendocino County Superior Court, subject to the time limits described therein. Any such appeal shall be filed as a limited civil case. Written notice of the subject time limits shall be given to all Responsible Parties against whom a penalty is imposed in substantially the following form:

“The time within which judicial review of the penalty imposed by this order must be sought is governed by Government Code § 53069.4. Judicial review must be sought not later than 20 days after service of the order imposing or confirming such penalty.”

(Ord. 897 § 1, passed 11-14-2011)