Chapter 17. Maintenance of Foreclosed Property

Sec. 4-17.01 Enforcement Authorization.

The City’s Code Enforcement Division is authorized to implement the following procedures in assessing fines against legal owners of vacant, foreclosed residential properties. (Ord. 441 (part), 2008)

Sec. 4-17.02 Legal Owner to Maintain Foreclosed Properties—Civil Fine.

A legal owner shall maintain vacant residential property purchased by that owner at a foreclosure sale, or acquired by that owner through foreclosure under a mortgage or deed of trust and shall be subject to a fine pursuant to this Chapter for failure to maintain such property. (Ord. 441 (part), 2008)

Sec. 4-17.03 Definitions.

The following words and phrases shall have the following meanings when used in this Chapter:

(a) “Enforcement Officer” means any employee of the City authorized to enforce the provisions of the Hercules Municipal Code, or that employee’s designee.

(b) “Failure to maintain” or “fails to maintain” means failure to care for the exterior of the property, including, but not limited to:

(1) Permitting excessive foliage growth that diminishes the value of the property or of surrounding properties;

(2) Failing to take action to prevent trespassers or squatters from remaining on the property;

(3) Failing to take action to prevent mosquito larvae from growing in standing water on such property; or

(4) Other conditions that create a public nuisance under Chapter 4-10 of the Hercules Municipal Code or any other applicable law.

(c) “Notice of hearing” means the notice required by this Chapter to be given to the owner before a civil fine may be imposed on the owner for failure to maintain the property.

(d) “Owner” means a legal owner of vacant residential property purchased by that owner at a foreclosure sale, or acquired by that owner through foreclosure under a mortgage or deed of trust.

(e) “Property” means vacant residential property purchased by an owner at a foreclosure sale, or acquired by that owner through foreclosure under a mortgage or deed of trust. (Ord. 441 (part), 2008)

Sec. 4-17.04 Civil Fines.

In any proceeding under this Chapter, the Code Enforcement Division may impose on an owner a civil fine of up to one thousand dollars ($1,000) per day for each day that the owner fails to maintain the property. Imposition of any civil fine shall commence on the day following the expiration of the period to remedy the violation established by this Chapter. (Ord. 441 (part), 2008)

Sec. 4-17.05 Notice of Violation and Opportunity for Hearing.

(a) Whenever an Enforcement Officer determines that a failure to maintain has occurred, the Enforcement Officer shall have the authority to issue a notice of hearing which shall include the information set forth in Section 4-10.07 of the Hercules Municipal Code, and a notice of intent to assess a civil fine of up to one thousand dollars ($1,000) per day if action to correct the failure to maintain is not commenced within a period of not less than fourteen (14) days and completed within a period of not less than thirty (30) days. The notice shall also state that the owner shall be responsible for City abatement costs as set forth in Government Code Section 54988 and Hercules Municipal Code Section 4-10.14. The notice shall be posted on the property and mailed to the address provided in the deed or other instrument to the property as specified in subdivision (a) of Section 27321.5 of the Government Code, or, if none, to the return address provided on the deed or other instrument whereby the owner acquired the property.

(b) The owner shall be granted thirty (30) days to remedy the failure to maintain prior to the imposition of a civil fine. However, a period of less than thirty (30) days’ notice to remedy the failure to maintain before imposing a civil fine may be allowed if it is determined that a specific condition of the property threatens public health or safety. The notice of hearing shall specifically note such determination and the lesser time for compliance. The Enforcement Officer may establish different compliance periods for different violations, subject to such minimum notice requirements as are imposed by law.

(c) The notice of hearing shall notify the owner of the date, time and place of a hearing at which the owner shall be given an opportunity to contest any fine imposed. The hearing shall generally be approximately thirty (30) days after expiration of the compliance period set forth in the notice of hearing. The notice of hearing shall also advise the owner that the fines will continue to accumulate following the hearing if the violation is not abated; and that fines will continue to accrue unless and until the Enforcement Officer inspects the property and issues a compliance certificate which the owner must produce at the hearing. It is the responsibility of the owner to arrange for such inspection and obtain the compliance certificate. (Ord. 441 (part), 2008)

Sec. 4-17.06 Hearing.

(a) The Hearing Officer shall be designated as provided in Section 4-10.22 of the Hercules Municipal Code. Failure to appear at the hearing shall constitute a failure to exhaust administrative remedies for purposes of judicial review.

(b) The hearing shall be conducted according to the procedures set forth in Section 4-10.25 of the Hercules Municipal Code.

(c) In determining the amount of any fine to be imposed, the Hearing Officer shall take into consideration any timely and good faith efforts by the owner to remedy the violation.

(d) The Hearing Officer shall notify the owner of his or her decision by written decision served as provided in Section 4-17.05(a). If the Hearing Officer determines that substantial evidence supports a finding of violation, the decision shall state the evidence and the finding, and shall indicate the amount of the fine and the amount of any abatement fees, costs and charges to be imposed pursuant to the authority set forth in Government Code Section 54988 and Hercules Municipal Code Chapter 4-10. The Hearing Officer’s decision shall contain a statement that the decision is final and that judicial review may be sought within twenty (20) days pursuant to Government Code Section 53069.4, provided administrative remedies have been exhausted. The decision shall advise that the total charges will become a lien against the property if not paid within forty-five (45) days of the date of the decision.

(e) The Hearing Officer’s decision shall also notify the owner that fines will continue to accumulate if the violations are not abated following the hearing, and shall notify the owner of the time and place of a subsequent hearing at which additional fines under this Chapter may be imposed if the violation is not abated. At such hearing and any and all subsequent hearings, the Hearing Officer shall receive any additional evidence received from the Enforcement Officer and the owner, and shall render another decision in accordance with these procedures. (Ord. 441 (part), 2008)

Sec. 4-17.07 Liens and Special Assessments on the Property.

Any initial or subsequent fine imposed by the Hearing Officer, together with any abatement fees, costs and charges, may become a lien on the property, and collected in the same time and manner as property taxes are collected, if not paid within forty-five (45) days, in accordance with and following the procedures set forth in Section 4-10.16 of the Hercules Municipal Code except to the extent modified herein. Notice of the lien hearing before the City Council may be mailed by certified and regular mail prior or subsequent to the date upon which the fine and costs become delinquent, so that the City Council may determine whether such lien should be confirmed as soon as possible after delinquency. Should the fine and costs be paid in whole prior to the hearing, the owner shall be advised that no hearing will be held. Notice of the lien hearing may be incorporated into the Hearing Officer’s decision. In such a case, the written decision referred to in Section 4-17.06(e) shall be served by certified and regular mail. (Ord. 441 (part), 2008)

Sec. 4-17.08 Cumulative Remedies.

The rights and remedies provided in this Chapter are cumulative and in addition to any other rights and remedies provided by law. All procedures herein are intended to obtain the abatement of public nuisances and compliance with those provisions of the City’s code which are declared to be public nuisances. As such, recovery of administrative expenses and costs in pursuing the rights and remedies under these procedures are allowable pursuant to Hercules Municipal Code Section 4-10.14 as fees, costs and charges incurred by the City in the abatement of public nuisances. (Ord. 441 (part), 2008)

Sec. 4-17.09 Revenue.

Fines and penalties collected pursuant to this Chapter shall be directed to the City’s code enforcement budget for nuisance abatement purposes. The City may not impose fines under both this procedure and any other chapter of the Hercules Municipal Code for the same violation. (Ord. 441 (part), 2008)

Sec. 4-17.10 Severability.

If any section, subsection, sentence, clause, portion, or phrase of this Chapter is for any reason held to be invalid or unconstitutional by a final decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining sections, subsections, sentences, clauses, portions, or phrases of this Chapter. The City Council of the City of Hercules hereby declares that it would have passed the ordinance codified in this Chapter and each and every section, subsection, sentence, clause, portion, or phrase without regard to whether any other section, subsection, sentence, clause, portion, or phrase of this Chapter would be subsequently declared invalid or unconstitutional. (Ord. 441 (part), 2008)

Sec. 4-17.11 Expiration Date.

This Chapter shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute succeeding Civil Code Section 2929.3, that is enacted before January 1, 2013, deletes or extends that date. (Ord. 441 (part), 2008)

Sec. 4-17.12 CEQA.

Pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) (“CEQA”) and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.), the City Council finds that it can be seen with certainty that there is no possibility that the adoption of this Chapter will have a significant effect on the environment. Therefore, the adoption of this Chapter is exempt from CEQA pursuant to State CEQA Guidelines Section 15061(b)(3). (Ord. 441 (part), 2008)

Sec. 4-17.13 Findings of Urgency.

The City Council adopts this urgency Chapter for the immediate preservation of the public peace, health or safety. The Council finds that California is facing an unprecedented threat to its state economy and local economies because of skyrocketing residential property foreclosure rates in California. Residential property foreclosures increased sevenfold from 2006 to 2007. In 2007, more than eighty-four thousand three hundred seventy-five (84,375) properties were lost to foreclosure in California, and two hundred fifty-four thousand eight hundred twenty-four (254,824) loans went into default, the first step in the foreclosure process. In addition to these findings the City Council incorporates by reference as though fully set forth herein all the findings set forth in Senate Bill 1137.

In the City of Hercules, the Code Enforcement Division investigates foreclosure properties every week. Many properties are maintained voluntarily and in an expeditious manner while others remain in a state of disrepair for weeks at a time. The lack of timely maintenance causes angst among the neighbors, affects property values and impedes the sale of homes in the immediate area. The most common issues with such foreclosure properties are property maintenance, trash, debris, weeds, broken windows and unsecured, vacant houses. These properties violate numerous City ordinances regulating the upkeep of properties, and are considered public nuisances under the City of Hercules Municipal Code. Many owners, including banks and mortgage companies, who foreclose upon such properties have been unwilling to expend the funds and time necessary to remain good neighbors and keep such properties in good condition.

High foreclosure rates have adversely affected property values in California, and will have even greater adverse consequences as foreclosure rates continue to rise. According to statistics released by the HOPE NOW Alliance, the number of completed California foreclosure sales in 2007 increased almost threefold from one thousand nine hundred two (1,902) in the first quarter to five thousand five hundred seventy-four (5,574) in the fourth quarter of that year. Those same statistics report that ten thousand five hundred fifty-six (10,556) foreclosure sales, almost double the number for the prior quarter, were completed just in the month of January 2008. More foreclosures means less money for public safety and other key services.

It is often very difficult to track down the bank or loan company that is responsible for the property. Some of the loan companies sell the loans, some go bankrupt and some are bought out by other loan companies. It sometimes takes six (6) to eight (8) weeks to find the right parties. Because of this delay, it is essential that the notification, fine and lien process set forth herein be expedited.

Passage of the ordinance codified in this Chapter as an urgency measure will enable the Code Enforcement Division to notify the legal owners of such properties in an expeditious manner, thereby beginning the process of reclaiming houses and neighborhoods as soon as possible to prevent public nuisances, neighborhood deterioration, and further decreases in property values. (Ord. 441 (part), 2008)

Sec. 4-17.14 Effective Date.

This Chapter shall become effective immediately upon introduction upon a four-fifths vote pursuant to the authority set forth in Government Code Section 36937(b). The ordinance codified in this Chapter shall be published once within fifteen (15) days in the West County Times, a newspaper of general circulation in the City of Hercules. (Ord. 441 (part), 2008)