CHAPTER 1.
GENERAL PROVISIONS

Article 1.    GENERAL PROVISIONS

§ 1-1.    How Code designated and cited.

§ 1-2.    Definitions and rules of construction.

§ 1-3.    Provisions considered as continuations of existing ordinances.

§ 1-4.    Effect of repeal of ordinances.

§ 1-5.    Severability of parts of Code.

§ 1-6.    Catchlines of Sections.

§ 1-7.    Violations -- Misdemeanors and Infractions; Public Nuisance

§ 1-7.1    Liability for Costs

§ 1-8.    Procedure for reading of ordinances.

§ 1-8.1    Payment of taxes by mail

§ 1-8.2    Claims against the City (3350, 03/2005)

Article 2.    ADMINISTRATIVE REMEDIES

§ 1-9    Applicability (Ord 3388, 05/07)

§ 1-9.1    Definitions

§ 1-9.2    Administrative citation

§ 1-9.3    Amount of fines

§ 1-9.4    Payment of the fine

§ 1-9.5    Hearing request

§ 1-9.55    Advance deposit hardship waiver

§ 1-9.6    Hearing officer

§ 1-9.7    Hearing procedure

§ 1-9.8    Hearing officer’s decision

§ 1-9.9    Late payment charges

§ 1-9.10    Recovery of administrative citation fines and collection costs

§ 1-9.11    Right to judicial review

§ 1-9.12    Notices

§ 1-10    Applicability

§ 1-10.1    Compliance Order

§ 1-10.2    Method of service

§ 1-10.3    Notice - Service procedure

§ 1-10.4    Hearing

§ 1-10.5    Notice of hearing

§ 1-10.6    Hearing - Findings and order

§ 1-10.7    Administrative Order

§ 1-10.8    Abatement by City (Ord 3365, 11/05)

§ 1-10.9    Administrative penalties

§ 1-10.10    Administrative costs

§ 1-10.11    Interest

§ 1-10.12    Force and effect

§ 1-10.13    Failure to comply with Administrative Order

§ 1-10.14    Right of judicial review

§ 1-10.15    Report of compliance after Administrative Order

§ 1-10.16    Compliance dispute

§ 1-10.17    Lien/special assessment

§ 1-10.18    Lien procedure (Ord 3365; 11/05)

§ 1-10.19    Special assessment procedure (Ord 3365; 11/05)

§ 1-10.20    Satisfaction of lien/special assessment (Ord 3365; 11/05)

§ 1-11.1    Designated body - Appeals Hearing Board

§ 1-11.2    Designated body - Building and Housing Appeals Board

§ 1-11.3    Designated body - Disabled Access Appeals Board

Article 3.    UNIFORM LIEN AND SPECIAL ASSESSMENT PROCEDURES (Ord 3365; 11/05)

§ 1-12    Authority to Impose Lien/Special Assessment

§ 1-12.1    Lien Procedure - Adoption of Resolution

§ 1-12.2    Special Assessment Procedure - Adoption of Resolution

§ 1-12.3    Satisfaction of Lien/Special Assessment

ARTICLE 1.
GENERAL PROVISIONS

Sec. 1-1. How Code designated and cited.

The ordinances embraced in the following Chapters and Sections shall constitute and be designated “The Code of the City of Monterey, California,” and may be so cited. Such Code may also be cited as the “Monterey City Code.”

Sec. 1-2. Definitions and rules of construction.

In the construction of this Code and of all ordinances of the City, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the City Council or the context clearly requires otherwise:

City. The words “the City” or “this City” shall be construed as if followed by the words “of Monterey.”

Code. The words “the Code” or “this Code” shall mean “The Code of the City of Monterey, California.”

Computation of time. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday and then it is also excluded.

Council. Whenever the words “City Council” or “Council” are used in this Code, they shall be construed to mean the City Council of the City of Monterey.

County. The words “the county” or “this county” shall mean the County of Monterey.

Day. A day is the period of time between any midnight and the midnight following.

Daytime, nighttime. “Daytime” is the period of time between sunrise and sunset. “Nighttime” is the period of time between sunset and sunrise.

Engineering & Maintenance Director. Whenever the term “Engineering & Maintenance Director” shall appear in this code, it shall be construed to refer to and mean the “Public Works Director” as defined in Section 38-11.

Gender. The masculine gender includes the feminine and neuter.

In the City. The words “in the City” shall mean and include all territory over which the City now has, or shall hereafter acquire jurisdiction for the exercise of its police powers or other regulatory powers.

Joint authority. All words giving a joint authority to three or more persons or officers shall be construed as giving such authority to a majority of such persons or officers.

Month. The word “month” shall mean a calendar month.

Number. The singular number includes the plural and the plural the singular.

Oath. “Oath” includes an affirmation.

Officers, departments, etc. Officers, departments, commissions, boards and employees referred to in this Code shall mean officers, departments, commissions, boards and employees of the City of Monterey, unless the context clearly indicates otherwise.

Official time. Whenever certain hours are named in this Code, they shall mean Pacific Standard Time or Daylight Savings Time, as may be in current use in the City.

Owner. The word “owner” applied to a building or land, shall include any part owner, joint owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety of the whole or of a part of such building or land.

Person. “Person” includes any person, firm, association, organization, partnership, business trust, corporation or company.

Personal property. “Personal property” includes every species of property, except real property, as defined in this Section.

Preceding, following. The words “preceding” and “following” mean next before and next after, respectively.

Process. “Process” includes a writ or summons issued in the course of judicial proceedings of either a civil or criminal nature.

Property. The word “property” shall include real and personal property.

Real property. “Real property” shall include lands, tenements and hereditament.

Shall, may. “Shall” is mandatory and “may” is permissive.

Signature or subscription by mark. “Signature” or “subscription” includes a mark when the signer or subscriber cannot write, such signer’s or subscriber’s name being written near the mark by a witness who writes his own name near the signer’s or subscriber’s name; but, a signature or subscription by mark can be acknowledged or can serve as a signature or subscription to a sworn statement only when two witnesses so sign their own names thereto.

State. The words “the state” or “this state” shall be construed to mean the State of California.

Tenant or occupant. The words “tenant” or “occupant,” applied to a building or land, shall include any person holding a written or an oral lease of, or who occupies the whole or a part of such building or land, either alone or with others.

Tenses. The present tense includes the past and future tenses, and the future includes the present.

Week. A week consists of seven consecutive days.

Writing. Writing includes any form of recorded message capable of comprehension by ordinary visual means. Whenever any notice, report, statement or record is required or authorized by this Code, it shall be made in writing in the English language, unless it is expressly provided otherwise.

Year. The word “year” shall mean a calendar year, except where otherwise provided. (Ord. 3472 § 1, 2012; Ord. 3424 § 1, 2009)

Sec. 1-3. Provisions considered as continuations of existing ordinances.

The provisions appearing in this Code, so far as they are the same as those of ordinances existing at the time of the effective date of this Code, shall be considered as continuations thereof and not as new enactments.

Sec. 1-4. Effect of repeal of ordinances.

The repeal of an ordinance shall not revive any ordinances in force before or at the time the ordinance repealed took effect.

The repeal of an ordinance shall not affect any punishment or penalty incurred before the repeal took effect, nor any suit, prosecution or proceeding pending at the time of the repeal, for any offense committed under the ordinance repealed.

Sec. 1-5. Severability of parts of Code.

It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this Code are severable, and if any phrase, clause, sentence, paragraph or section of this Code shall be declared unconstitutional by the valid judgment or decree of a court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Code.

Sec. 1-6. Catchlines of Sections.

The catchlines of the several Sections of this Code are intended as mere catchwords to indicate the contents of the Section, and shall not be deemed or taken to be titles of such Sections, nor as any part of the Section, nor unless expressly so provided, shall they be so deemed when any of such Sections, including the catchlines, are amended or reenacted.

Sec. 1-7. Violations -- Misdemeanors and Infractions; Public Nuisance

It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this code. A violation of or failure to comply with any of the requirements of this code shall constitute a misdemeanor, subject to the following exceptions:

A.    Any violation of or failure to comply with any provision of this code may be charged and prosecuted as an infraction at the discretion of the City Attorney;

B.    Any violation of the provisions relating to possession of alcohol in public, parking, operation of bicycles, operation of motor vehicles, as well as the use of sidewalks, public property, streets, and highways by animals, bicycles, skates, skateboards, motor vehicles, or pedestrians, shall constitute an infraction; and

C.    Any violation of the graffiti ordinance as set forth in Chapter 22, Article 2 of this code shall be subject to the administrative citation and administrative remedies processes set forth in Article 2 of this chapter or other civil remedies, but shall not constitute a misdemeanor or infraction.

Any person convicted of a misdemeanor under the provisions of this code shall be subject to a fine of not more than one thousand dollars ($1,000) or imprisonment in the County jail for a period of not more than six months, or by both fine and imprisonment. Any person convicted of an infraction under the provisions of this code shall be subject to a fine of not more than one hundred dollars ($100) for a first conviction, a fine of not more than two hundred dollars ($200) for a second violation of the same section within one year, or a fine of not more than five hundred dollars ($500) for a third or subsequent violation of the same section within one year.

Each such person shall be charged with a separate offense for each and every day during any portion of which any violation of any provision of this code is committed, continued, or permitted by such person, and each offense shall, upon conviction, be punishable accordingly.

In addition to criminal remedies, each and every violation of this code shall also constitute a public nuisance, and as such may be enforced by abatement and injunction, or by other civil action where appropriate.

In addition to all other remedies set forth in this section, each and every such violation shall be subject to the administrative citation and administrative remedies processes set forth in Article 2 of this chapter. (Ord. 3482 § 2, 2013; Ord. 3432 § 1, 2009; Ord 3258 §1, 1999)

Sec. 1-7.1 Liability for Costs.

Any person against whom a civil action is filed for violation of any provision of this Code shall be liable for the costs thereof, which shall include but not be limited to the costs of investigation, court costs, attorney’s fees, and costs of monitoring compliance. This section does not apply to the recovery of attorney’s fees in a nuisance abatement action or proceeding, for which the recovery of attorney’s fees is authorized under Section 22-38.6. (Ord. 3472 § 2, 2012)

Sec. 1-8. Procedure for reading of ordinances.

All ordinances shall be read in full on the date of their introduction, except as provided in this Section.

The City Attorney may, in any ordinance containing legal descriptions of property, include a general description of the property. Such general description shall be placed in parentheses preceding the legal description. The City Clerk shall read the general description and shall not read the legal description at any time the ordinance is required to be read.

An ordinance having once been read at any duly convened meeting of the City Council may by motion adopted unanimously by those members present, be read by descriptive title only at the time of its adoption.

Sec. 1-8.1. Payment of Taxes by Mail

Whenever any provision of the City Code creates a tax collected by or paid to the City, unless otherwise noted in the Code such tax may be remitted by U.S. mail, postage prepaid and deposited in the regular mail and postmarked on or before the scheduled due date, and such tax shall be deemed to be received on the date postmarked regardless of when it is actually received. The City shall assume no responsibility for errors or mistakes made by the U. S. Postal Service, and it shall remain the responsibility of the taxpayer to ensure that the tax is remitted and received in a timely fashion. (Ord 3245; 03/1999)

Sec. 1-8.2 Claims Against the City (Ord 3350; 03/2005)

All claims against the City for money or damages not otherwise governed by the Tort Claims Act, California Government Code Sections 900 et seq., or another state law (hereinafter in this Section, claims”) shall be presented within the time, and in the manner, prescribed by Part 3 of Division 3.6 of Title 1 of the California Government Code (commencing with Section 900 thereof) for the claims to which that Part applies by its own terms, as those provisions now exist or shall hereafter be amended, and as further provided by this chapter.

All claims shall be made in writing and verified by the claimant or by his or her guardian, conservator, executor or administrator. No claim may be filed on behalf of a class of persons unless verified by every member of that class as required by this section. In addition, all claims shall contain the information required by California Government Code Section 910.

In accordance with California Government Code Sections 935(b) and 945.6, all claims shall be presented as provided in this section and acted upon by the City Council prior to the filing of any action on such claims and no such action may be maintained by a person who has not complied with the requirements of this section.

Any action brought against the City of Monterey upon any claim or demand shall conform to the requirements of Sections 940-949 of the California Government Code. Any action brought against any employee of the City of Monterey shall conform with the requirements of Section 950-951 of the California Government Code.

ARTICLE 2.
ADMINISTRATIVE REMEDIES

Division 1. Administrative Citations

Sec. 1-9 Applicability

A.    Sections 1-9 through 1-9.12 herein provide for administrative citations which are in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violations of this code.

B.    These sections shall not supersede any other sections of this code which address additional legal or administrative remedies available for City code violations; use of the administrative citation process shall be at the sole discretion of the City. (Ord 3252 §1, 1999)

C.    The administrative citations process set forth in this Article may be utilized to enforce continuing violations of this code that pertain to building, plumbing, electrical, or other similar structural or zoning issues; provided, however that the person responsible for any such continuing violation shall be allowed a period of at least 10 days to correct or otherwise remedy the violation prior to the City’s issuance of an administrative citation. Nothing in this section, however, shall require City to provide any such correction period concerning violations creating an immediate danger to health or safety, or to any building, plumbing, electrical, or other similar structural or zoning code violations which are transient and non-continuing in nature. (Ord. 3299 §2; 10/2/01)

D.    The administrative citations process set forth in this Article may be utilized to enforce continuing violations of this code that pertain to storm water; provided, however that the person responsible for any such continuing violation shall be allowed a period of at least 10 days to correct or otherwise remedy the violation prior to the City’s issuance of an administrative citation. Nothing in this section, however, shall require City to provide any such correction period concerning violations creating an immediate danger to the environment, or public health or safety, or to waters of the United States, or City Code violations which are transient and non-continuing in nature. (Ord 3388 §05, 2007)

Sec 1-9.1 Definitions

For purposes of this Article, the following definitions shall apply:

A.    “Director” shall mean the City Manager, or his designee.

B.    “Enforcement officer” shall mean any City employee or agent of the City with the authority to enforce any provision of this code, including, but not limited to, the City Attorney, Code Enforcement Officer, Animal Control Officer and any Police Officer.

Sec 1-9.2 Administrative citation

A.    Whenever an enforcement officer charged with the enforcement of this code determines that a violation of that provision has occurred, the enforcement officer shall have the authority to issue an administrative citation to any person responsible for the violation.

B.    Each administrative citation shall contain the following information:

1.    The date of the violation;

2.    The address or a definite description of the location where the violation occurred;

3.    The section of this code violated and a description of the violation;

4.    The amount of the fine for the code violation;

5.    A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid;

6.    An order prohibiting the continuation or repeated occurrence of the code violation described in the administrative citation;

7.    A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained; and

8.    The name and signature of the citing enforcement officer.

Sec. 1-9.3 Amount of fines

A.    The amounts of the fines for code violations imposed pursuant to this Article shall be set forth in the schedule of fines established by resolution of the City Council.

B.    The schedule of fines shall specify any increased fines for repeat violations of the same code provision within thirty-six months from the date of an administrative citation.

C.    The schedule of fines shall specify the amount of any late payment charges imposed for the payment of a fine after its due date.

Sec. 1-9.4 Payment of the fine

A.    The fine shall be paid to the City within thirty days from the date of the administrative citation.

B.    Payment of a fine shall not excuse or discharge any continuation or repeated occurrence of the code violation that is the subject of the administrative citation.

Sec. 1-9.5 Hearing request

A.    Any recipient of an administrative citation may contest the citation by completing a request for hearing form and returning it to the City within thirty days from the date of the administrative citation, together with an advance deposit of the total fine amount or an Advance Deposit Hardship Waiver Application form as described in Section 1-9.55 below.

Ord. 3299 §3; 10/2/01

B.    A request for hearing form may be obtained from the department specified on the administrative citation.

C.    The person requesting the hearing shall be notified of the time and place set for the hearing at least ten days prior to the date of the hearing.

D.    If the enforcement officer submits an additional written report concerning the administrative citation to the hearing officer for consideration at the hearing, then a copy of this report also shall be served on the person requesting the hearing at least five days prior to the date of the hearing.

Sec. 1-9.55 Advance deposit hardship waiver

A.    Any person who intends to request a hearing to contest an administrative citation, and who is financially unable to make the advance deposit of the fine as required in Section 1-95 (A), may file a request for an Advance Deposit Hardship Waiver which shall include a sworn affidavit as described in subsection (C) below.

B.    The request shall be filed, along with the request for hearing form, with the City Attorney’s Office on an Advance Deposit Hardship Waiver Application form, available from the City Attorney’s Office, within thirty (30) days of the date of the administrative citation.

C.    The City may waive the requirement of an advance deposit and issue the advance deposit hardship waiver only if the cited party submits to the City a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the City the person’s actual financial inability to deposit with the City the full amount of the fine in advance of the hearing.

D.    The requirement of depositing the full amount of the fine as described in Section 1-9.5(A) shall be stayed unless or until the City makes a determination not to issue the advance deposit hardship waiver.

E.    If the City makes a determination to deny the advance deposit hardship waiver application, a written determination listing the reasons for said denial shall be issued. The written determination to deny the waiver shall be final.

F.    The written determination of the City’s denial of the advance deposit hardship waiver shall be served by mail upon the person who applied for the waiver.

Ord. 3299 §4; 10/2/01

Sec. 1-9.6 Hearing officer

The City Manager shall designate a hearing officer for the administrative citation hearings.

Sec. 1-9.7 Hearing procedure

A.    No hearing to contest an administrative citation before a hearing officer shall be held unless the fine has been deposited in advance in accordance with Section 1-9.5(A) or an advance deposit hardship waiver has been filed and accepted by the City pursuant to Section 1-955 above.

Ord. 3299 §5; 10/2/01

B.    A hearing before the hearing officer shall be set for a date that is not less than fifteen days and not more than sixty days from the date that the request for hearing is filed in accordance with the provisions of this Article.

C.    At the hearing, the party contesting the administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation.

D.    The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies.

E.    The administrative citation and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.

F.    The hearing officer may continue the hearing and request additional information from the enforcement officer or the recipient of the citation prior to issuing a written decision.

Sec. 1-9.8 Hearing officer’s decision

A.    After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or cancel the administrative citation and shall list the reasons for that decision. The decision of the hearing officer shall be final.

B.    If the hearing officer determines that the administrative citation should be upheld, then the city shall retain the fine amount on deposit with the City. If the hearing officer determines that the administrative citation should be upheld and the fine was not deposited pursuant to a waiver under Section 1-9.55 above, the hearing officer shall set forth in the decision an order for payment of the fine and a payment schedule for the fine. Ord. 3299 §2; 10/2/01

C.    If the hearing officer determines that the administrative citation should be canceled, the City shall promptly refund the amount of the deposited fine.

D.    The recipient of the administrative citation shall be served with a copy of the hearing officer’s written decision.

E.    The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon the amount of administrative citation fines upheld by the hearing officer.

Sec. 1-9.9 Late payment charges

Any person who fails to pay to the City any fine imposed pursuant to the provisions of this Article on or before the date that fine is due also shall be liable for the payment of any applicable late payment charges set forth in the schedule of fines.

Sec. 1-9.10 Recovery of administrative citation fines and collection costs

The City may collect any past due administrative citation fine, late payment charge and costs of collection by use of all available legal means.

Sec. 1-9.11 Right to judicial review

Any person aggrieved by an administrative decision of a hearing officer on an administrative citation may obtain review of the administrative decision by filing a petition for review with the municipal court in Monterey County in accordance with the timelines and provisions set forth in California Government Code Section 53069.4.

Sec. 1-9.12 Notices

A.    The administrative citation and all notices required to be given to this Article shall be served on the responsible party in accordance with the provisions of Section 1-10.3 of this title.

B.    Failure to receive any notice specified herein does not affect the validity of proceedings conducted hereunder.

Division 2. Administrative Orders

Sec. 1-10 Applicability

A.    Sections 1-10 through 1-10.20 herein provide for administrative remedies, which are in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this code.

B.    These sections shall not supersede any other sections of this code which address other legal or administrative remedies for City code violations; use of this Article shall be at the sole discretion of the City.

Sec. 1-10.1 Compliance Order

A.    Whenever the Director or his/her designee determines that a violation of any provision of this code is occurring or exists, a written Compliance Order may be issued to any person responsible for the violation and/or the property owner.

B.    A Compliance Order issued pursuant to this Article shall contain the following information:

1.    The date and location of the violation;

2.    The section of this code violated and a description of the violation;

3.    The actions required to correct the violation;

4.    The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved;

5.    Either a copy of Division 2 of this Article or an explanation of the consequences of noncompliance with this Article and a description of the hearing procedure and appeal process.

Sec. 1-10.2 Method of service

A.    All notices required herein shall be served as provided in Section 1-10.3 if this Article unless otherwise specified.

B.    Where real property is involved, written notice shall be mailed to the property owner at the address as shown on the last equalized county assessment roll.

C.    Where personal service or service by mail upon the property owner cannot be made despite a diligent effort, a copy of the order shall be conspicuously posted at the property that is the subject of the order.

D.    The failure of any person to receive any notice required under this Article shall not affect the validity of any proceedings taken under this Article.

Sec. 1-10.3 Notice - Service procedure

Whenever a notice is required to be given under this Article, unless different provisions are otherwise specifically made, such notice may be given either by personal delivery to the person to be notified or by deposit in the United States Mail, in sealed envelope postage prepaid, addressed to such person to be notified at his last-known business or residence address as the same appears in the last equalized county assessment roll or to her records pertaining to the matter to which such notice is directed. Service by mail shall be deemed completed at the time of deposit in the United States Mail receptacle is made.

Sec. 1-10.4 Hearing

A.    If the Director determines that all violations have been corrected within the time specified in the Compliance Order, no further action shall be taken.

B.    If full compliance is not achieved within the time specified in the Compliance Order, the Director shall advise the secretary to the Appeals Hearing Board to set a hearing before the Board.

C.    The secretary to the Appeals Hearing Board shall cause a written notice of hearing to be served on the violator and, where real property is involved, a notice of hearing shall be served on the property owner at the address as it appears on the last equalized county assessment roll available on the date the notice is prepared.

D.    All hearings shall be open and public.

Sec. 1-10.5 Notice of hearing

A.    Every notice of hearing on a Compliance Order shall contain the date, time and place at which the hearing shall be conducted by the Appeals Hearing Board.

B.    Each hearing shall be set for a date not less than fifteen days nor more than sixty days from the date of the notice of hearing unless the Director determines that the matter is urgent or that good cause exists for an extension of time.

C.    The hearing serves to provide the full opportunity of a person subject to a Compliance Order to object to the determination that a violation has occurred and/or that the violation has continued to exist. The failure of any person subject to a Compliance Order, pursuant to this Article, to appear at the hearing shall constitute a failure to exhaust administrative remedies.

Sec. 1-10.6 Hearing - Findings and order

A.    At the place and time set forth in the notice of hearing, the Appeals Hearing Board shall conduct a hearing on the Compliance Order issued pursuant to Section 1-10.1.

B.    The Appeals Hearing Board shall consider any written or oral evidence consistent with its rules and procedures regarding the violation and compliance by the violator and/or by the real property owner, including but not limited to:

1.    The report of the Director or his or her designee;

2.    Objections or protests of property owners or other responsible or interested persons who may be held liable for the amounts owed or whose property may be assessed or liened for the amounts owed;

3.    Evidence on whether the person before the Board is responsible for the amounts owed to the City;

4.    Whether the violator or owner has taken the required corrective action within the required time period; and

5.    Such other and further evidence as justice may require.

C.    Within a reasonable time following the conclusion of the hearing, the Board shall make findings and issue its determination regarding:

1.    The existence of the violation; and

2.    The failure of the violator or owner to take required corrective action within the required time period.

D.    The Board shall issue written findings on each violation. The findings shall be supported by evidence received at the hearing.

E.    If the Board finds by a preponderance of the evidence that a violation has occurred and that the violation was not corrected within the time period specified in the Compliance Order, the Board shall issue an Administrative Order.

F.    If the Board finds that no violation has occurred or that the violation was corrected within the time period specified in the Compliance Order, the Board shall issue a finding of those facts.

Sec. 1-10.7 Administrative Order

If the Appeals Hearing Board determines that a violation occurred which was not corrected within the time period specified in the Compliance Order, the Board shall issue an Administrative Order described in Section 1-10.6(E) that imposes any or all of the following:

A.    An order to correct, including a schedule for correction where appropriate;

B.    Administrative penalties as provided in Section 1-10.9;

C.    Administrative costs as provided in Section 1-10.10; and

D.    Interest as provided in Section 1-10.11.

E.    The Administrative Order shall state that failure to comply with its provisions may result in the City abating the nuisance and charging the cost of said abatement plus all administrative costs to the property owner, and may further result in the City collecting the monies due as a personal obligation of the responsible party or by recordation of a lien or filing of a special assessment against the subject real property.

Sec. 1-10.8 Abatement by City

A.    If correction of the violation has not occurred within the time period specified in the Administrative Order, the continuing violation shall be deemed a public nuisance and the City or a contracting agent hired by the City may enter upon the private property on which the violation exists for the purpose of abating the violation. It shall be unlawful for any person, owner, agent of person in possession of any premises to refuse to allow the City or its contracting agents to enter upon the premises for the purpose of abating the violation.

B.    The cost of any such abatement by City authorized herein shall be borne by the property owner, which cost shall include administrative costs as well as the actual cost of abatement.

C.    The cost of abatement, including administrative costs, may be enforced as a personal obligation against the property owner and as a lien or special assessment against the property as provided in Article 3 of Chapter 1 of the Monterey City Code, Sections 1-12 through 1-12.3 inclusive. (Ord 3365; 11/05)

Sec. 1-10.9 Administrative penalties

A.    The Appeals Hearing Board may impose administrative penalties for the violation of any provision of this code in an amount not to exceed two thousand five hundred dollars per day for each ongoing violation, except that the total administrative penalty shall not exceed one hundred thousand dollars exclusive of interest, administrative costs, and restitution for compliance re-inspections, for any related series of violations.

B.    In determining the amount of the administrative penalty, the Board may take any or all of the following factors into consideration:

1.    The duration of the violation;

2.    The frequency, recurrence and number of violations, related or unrelated, by the same violator;

3.    The seriousness of the violation;

4.    The good faith efforts of the violator to come into compliance;

5.    The economic impact of the penalty on the violator;

6.    The impact of the violation on the community; and

7.    Such other factors as justice may require.

C.    Administrative penalties imposed by the Board shall accrue for the date as specified in the Compliance Order and shall cease to accrue on the date the violation is corrected as determined by the Director of the Board. Administrative penalties may be suspended for any period of time during which the violator has filed for necessary permits and such permit applications are actively pending before the City, state or other appropriate agency.

D.    Administrative penalties assessed by the Board shall be due by the date specified in the Administrative Order.

E.    If the violation is not corrected as specified in the Board’s order to correct, administrative penalties shall continue to accrue on a daily basis until the violation is corrected, subject to the maximum amount set forth in subsection (A) above.

F.    If the violator gives written notice to the Director that the violation has been corrected and if the Director finds that compliance has been achieved, the Director shall deem the date the written notice was postmarked or personally delivered to the Director or the date of the final inspection, whichever first occurred, to be the date the violation was corrected. If not written notice is provided to the Director, the violation will be deemed corrected on the date of the final inspection.

Sec. 1-10.10 Administrative costs

A.    The Appeals Hearing Board shall assess administrative costs against the violator when it finds that a violation has occurred and that compliance has not been achieved within the time specified in the Compliance Order.

B.    The administrative costs may include any and all costs incurred by the City in connection with the matter before the Appeals Hearing Board including, but not limited to, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, and costs for all re-inspections necessary to enforce the Compliance Order.

Sec. 1-10.11 Interest

The Appeals Hearing Board may also assess interest on the amount of administrative penalties, abatement costs and administrative costs imposed at the legal rate from the date of the Administrative Order.

Sec. 1-10.12 Force and effect

A.    The Administrative Order of the Hearing Appeals Board shall be the final decision of the City.

B.    The Administrative Order of the Board, once recorded, shall have the same force and effect and priority as a judgment lien governed by the provisions of Sections 697.340 of the California Code of Civil Procedure and may be extended as provided in Sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

C.    The Administrative Order shall have the same force and effect as a resolution of the City Council for the purpose of filing a lien, special assessment, or special collection with the County of Monterey or tax collectors office pursuant to this code and for the purpose of pursuing any other collection or enforcement action to obtain payment of the amounts owed to the City.

Sec. 1-10.13 Failure to comply with Administrative Order

If unpaid as of the date specified in the Administrative Order, the administrative penalties, administrative costs and interest assessed by the Board shall be collected by the City by use of all available legal means, and may be enforced as:

A.    A personal obligation of the violator; and/or

B.    If the violation is in connection with real property, a lien or special assessment upon the real property. The lien or special assessment shall remain in effect until all of the administrative penalties, interest and administrative costs are paid in full.

Sec. 1-10.14 Right of judicial review

The decision of the Appeals Hearing Board shall be final. Any person aggrieved by an Administrative Order of the Appeals Hearing Board may obtain review of the Administrative Order in the superior court by filing with the court a petition for writ of mandate pursuant to California Code of Civil Procedure section 1094.6.

Sec. 1-10.15 Report of compliance after Administrative Order

If the Director determines that compliance has been achieved after a Compliance Order has been sustained by the Appeals Hearing Board, the Director shall prepare a report indicating that compliance has been achieved. A copy of the compliance report shall be served on the violator.

Sec. 1-10.16 Compliance dispute

A.    If the Director does not prepare and serve the compliance report specified above, a violator who believes that compliance has been achieved may request a compliance hearing before the Appeals Hearing Board by filing a request for a hearing with the secretary to the Board.

B.    The hearing shall be noticed and conducted in the same manner as a hearing on a Compliance Order provided in Section 1-10.4 herein.

C.    The Board shall determine if compliance has been achieved and, if so, when it was achieved. The decision of the Board shall be final.

Sec. 1-10.17 Lien/special assessment

Whenever the amount of any administrative penalty and/or administrative cost imposed by the Appeals Hearing Board pursuant to this Article in connection with real property has not been satisfied in full within ninety days and/or has not been successfully challenged by a timely

writ of mandate, this obligation may constitute a lien or, in the alternative, a special assessment against the real property on which the violation occurred.

Sec. 1-10.18 Lien procedure (Ord 3365; 11/05)

Any lien recorded against real property under this Article shall be imposed following the procedure set forth in Section 1-12.1 of the Monterey City Code.

Sec. 1-10.19 Special assessment procedure (Ord 3365; 11/05)

Any special assessment filed against real property under this Article shall be imposed following the procedure set forth in Section 1-12.2 of the Monterey City Code.

Sec. 1-10.20 Satisfaction of lien/special assessment (Ord 3365; 11/05)

Once payment in full is received by the City for outstanding penalties and costs, City shall follow the procedures set forth in Section 1-12.3 of the Monterey City Code regarding satisfaction of lien/special assessment.

Division 3. Appeals Hearing Board

Sec. 1-11.1 Designated body - Appeals Hearing Board

Unless otherwise specified in this code or by other ordinance, the City Council hereby establishes and appoints the Appeals Hearing Board as the designated body delegated with the authority to set, notice, and conduct public hearings required or allowed pursuant to this Article to contest fees, charges, costs, expenses, penalties or other sums of money owed to the City and to allow the imposition of a lien, special assessment, special collection or other collection process against a responsible party and any affected property, as appropriate.

A.    The Board shall consist of three members and one alternate member.

B.    Special eligibility requirements:

1.    At least two members shall be experienced in planning and zoning issues or shall have experience in the building trades or in building inspection.

2.    One member or the alternate may be a member of the public.

3.    Members may not be employees of the jurisdiction.

4.    Members shall be residents of the City of Monterey.

C.    The Board shall have the following functions, powers, and duties:

1.    Hear all administrative hearings and appeals authorized by this code or by ordinance;

2.    Conduct all administrative abatement action hearings authorized by this code or by ordinance;

3.    Authorize the imposition of liens, assessments, special collection or other collection process against a responsible party and any affected property, as appropriate; and

4.    Perform such other programs or functions related to administrative hearings and appeals that the City Council or the City Manager may, from time to time, authorize or request.

D.    Following an advertised application process, members of the Board shall be appointed by the City Council upon recommendation or nomination by the City Manager or his or her designated representative, and shall serve two-year terms. If a vacancy shall occur otherwise than by expiration of the term, it shall be filled by appointment by the City Council for the unexpired portion of the term.

E.    Each member of the Board shall be paid the sum of twenty-five dollars ($25) per meeting for each meeting attended up to a maximum of fifty dollars ($50) per month. (Ord. 3500 § 2, 2014; Ord. 3472 § 3, 2012)

Sec. 1-11.2 Designated body - Building and Housing Appeals Board

The City Council hereby establishes and appoints the Building and Housing Appeals Board as the designated body delegated with the authority to set, notice, and conduct public hearings required or allowed pursuant to this Article to decide appeals of orders, decisions, or determinations made by the Building Official relative to the application and interpretation of the California Building, Fire, Plumbing, Mechanical, and Electrical Codes and to allow the imposition of a lien, special assessment, special collection or other collection process against a responsible party and any affected property, as appropriate.

A.    The Board shall consist of three members and one alternate member.

B.    Special eligibility requirements:

1.    Each member and the alternate of the Board shall be qualified by experience and training to pass on matters pertaining to building construction. Experience in residential or commercial construction projects, the building trades, code enforcement, or building inspection is preferred.

2.    Members may not be employees of the jurisdiction.

C.    The Board shall have the following functions, powers, and duties:

1.    Hear all administrative hearings and appeals authorized by all of the adopted California Building, Fire, Plumbing, Mechanical, and Electrical Codes;

2.    Authorize the imposition of liens, assessments, special collection or other collection process against a responsible party and any affected property, as appropriate; and

3.    The Board shall have no authority to waive requirements of the adopted California Codes.

D.    Following an advertised application process, members of the Board shall be appointed by the City Council upon recommendation or nomination by the City Manager or his or her designated representative, and shall serve two-year terms. The term of office for the first three members appointed shall commence at the time of appointment and expire December 31, 2015. If a vacancy shall occur otherwise than by expiration of the term, it shall be filled by appointment by the City Council for the unexpired portion of the term.

E.    Each member of the Board shall be paid the sum of twenty-five dollars ($25) per meeting for each meeting attended up to a maximum of fifty dollars ($50) per month. (Ord. 3500 § 2, 2014)

Sec. 1-11.3 Designated body - Disabled Access Appeals Board

The City Council hereby establishes and appoints the Disabled Access Appeals Board as the designated body delegated with the authority to set, notice, and conduct public hearings required or allowed pursuant to this Article to decide appeals of orders, decisions, or determinations made by the Building Official or the City’s Americans with Disabilities Act (ADA) Coordinator relative to the application, interpretation, unreasonable hardship requests, or alternate means of compliance with both State and Federal disabled access regulations and to allow the imposition of a lien, special assessment, special collection or other collection process against a responsible party and any affected property, as appropriate.

A.    The Board shall consist of five members.

B.    Special eligibility requirements:

1.    Three of the Board members shall be qualified by experience and training to pass on matters pertaining to building construction and/or State or Federal disabled access regulations.

2.    Two members shall be physically disabled.

3.    Members may not be employees of the jurisdiction.

C.    The Board shall have the following functions, powers, and duties:

1.    Hear appeals of orders, decisions, or determinations made by the Building Official or the City’s Americans with Disabilities Act (ADA) Coordinator relative to the application, interpretation, unreasonable hardship requests, or alternate means of compliance with both State and Federal disabled access regulations;

2.    Authorize the imposition of liens, assessments, special collection or other collection process against a responsible party and any affected property, as appropriate; and

3.    Hear appeals regarding actions taken by the Plans and Public Works Department regarding enforcement of laws relating to access to public accommodations by physically disabled persons.

D.    Following an advertised application process, members of the Board shall be appointed by the City Council upon recommendation or nomination by the City Manager or his or her designated representative, and shall serve two-year terms. The term of office for the first three members appointed shall commence at the time of appointment and expire December 31, 2015. If a vacancy shall occur otherwise than by expiration of the term, it shall be filled by appointment by the City Council for the unexpired portion of the term.

E.    Each member of the Board shall be paid the sum of twenty-five dollars ($25) per meeting for each meeting attended up to a maximum of fifty dollars ($50) per month. (Ord. 3500 § 2, 2014)

ARTICLE 3.
UNIFORM LIEN AND SPECIAL ASSESSMENT PROCEDURES (Ord 3365; 11/05)

Sec. 1-12 Authority to Impose Lien/Special Assessment.

Whenever the amount of any nuisance abatement charge, administrative penalty, administrative cost, or other debt imposed by the City in connection with real property has not been satisfied in full within ninety days and/or has not been successfully challenged by a timely writ of mandate, this obligation may constitute a lien or, in the alternative, a special assessment against the real property on which the violation occurred.

Sec. 1-12.1 Lien Procedure - Adoption of Resolution.

(a)    There is hereby established the following procedure for collection of any nuisance abatement charge, administrative penalty, administrative cost, or other debt imposed by the City in connection with real property, by recordation of a lien against the subject real property.

(b)    Upon determination by the City Manager or his designee that the nuisance abatement charge, administrative penalty, administrative cost, or other debt imposed by the City has not been satisfied in full within ninety days and/or not been successfully challenged by a timely writ of mandate, the City Manager or his designee shall recommend that the City Council adopt a resolution confirming imposition of the debt and approving the filing of a lien against the subject real property.

(c)    The resolution shall state the amounts due and owing, the name of the agency imposing the lien (City of Monterey), the date of the order or other notice describing the property violation or nuisance in question, the street address, legal description and assessor’s parcel number of the subject property, and the name and address of the recorded owner of the property.

(d)    A copy of the resolution shall be served on the property owner, along with notice to the property owner that a lien in the amounts stated in the resolution will be filed against the subject property in the Monterey County Recorder’s Office.

(e)    The notice set forth in subsection (d) above shall be served in the same manner as summons in a civil action in accordance with Code of Civil Procedure § 415.10 et seq. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation published in Monterey County.

(f)    Following proper notice to the owner of record as provided in subsection (e) above, the resolution and notice shall be recorded as a lien with the county recorder. Once recorded, the resolution and notice shall have the force and effect and priority of a judgment lien governed by the provisions of Sections 697.340 of the Code of Civil Procedure and may be extended as provided in Sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

(g)    Interest at the legal rate per year shall accrue on the principal amount of the lien until satisfied pursuant to law.

(h)    A lien pursuant to this section may be foreclosed by an action brought by the City for a money judgment.

Sec. 1-12.2 Special Assessment Procedure - Adoption of Resolution.

(a)    As an alternative to the procedure authorized by Section 1-12.1 above, there is hereby established a procedure for making any nuisance abatement charge, administrative penalty, administrative cost, or other debt imposed by the City in connection with real property, a special assessment against the subject real property.

(b)    Upon determination by the City Manager or his designee that the nuisance abatement charge, administrative penalty, administrative cost, or other debt imposed by the City have not been satisfied in full within ninety days and/or not been successfully challenged by a timely writ of mandate, the City Manager or his designee shall recommend that the City Council adopt a resolution confirming imposition of the debt and approving the filing of a special assessment against the subject real property.

(c)    The resolution shall state the amounts due and owing, the name of the agency imposing the special assessment (City of Monterey), the date of the order or other notice describing the property violation or nuisance in question, the street address, legal description and assessor’s parcel number of the subject property, and the name and address of the recorded owner of the property.

(d)    A copy of the resolution shall be served on the property owner, along with notice that the property may be sold after three years by the tax collector for unpaid delinquent assessments. Such notice shall be served by certified mail to the property owner. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of 10 days and publication thereof in a newspaper of general circulation published in Monterey County. The tax collector’s power of sale shall not be affected by the failure of the property owner to receive notice.

(e)    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 real property to which the assessment relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance 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 assessment shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.

(f)    Interest shall accrue on the principal amount of the assessment until satisfied pursuant to law.

(g)    The City may, subject to the requirements applicable to the sale of property pursuant to Section 3691 of the Revenue and Taxation Code, conduct a sale of vacant residential developed property for which the payment of the assessment is delinquent.

(h)    The resolution adopted by the City Council under this section shall be entitled to recordation.

Sec. 1-12.3 Satisfaction of Lien/Special Assessment.

Once payment in full is received by the City for the outstanding debt, the Director of Finance shall:

(a)    With respect to a lien, either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so they may record this notice with the county recorder. Such notice of satisfaction shall cancel the City’s lien; or

(b)    With respect to a special assessment, provide written notice to the tax collector that the special assessment amount has been paid in full and should no longer be imposed against the subject property. Such written notice shall cancel the City’s special assessment.