Chapter 17.89
ENFORCEMENT AND PENALTIES
Sections:
17.89.020 Permits and licenses.
17.89.030 Authority for enforcement.
17.89.060 Initial enforcement contact.
17.89.070 City remedies for violations.
17.89.090 Additional permit processing fees.
17.89.110 Nuisance abatement by proceedings before the council.
17.89.010 Purpose.
This chapter establishes procedures for city responses to violations of the requirements of this land use code and any conditions of planning permit or subdivision approval, to promote the city’s planning efforts, and for the protection of the public health, safety, and welfare. Such violations shall be subject to the remedies and penalties identified in this chapter or Chapter 1.28. (Ord. 886 § 2 Exh. A (part), 2019: Ord. 766 § 2 Exh. A (part), 2004).
17.89.020 Permits and licenses.
Each department, official, and employee of the city who is assigned the authority or duty to issue permits or licenses shall comply with all applicable provisions of this land use code.
A. Permits in Conflict with Land Use Code. No permit shall be issued by the city for a use or structure in conflict with the provisions of this land use code.
B. Permits Deemed Void. Any permit issued in conflict with the provisions of this land use code shall be deemed void. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.030 Authority for enforcement.
A. Planning Director. The director may:
1. Exercise the authority provided in Section 836.5 of the Penal Code; and
2. Issue citations for any violations of this land use code pertaining to the use of any land and the addition, alteration, construction, conversion, erection, moving, reconstruction, or use of any structure.
B. Police Chief. The police chief shall render any and all necessary assistance to the director for the enforcement of this land use code. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.040 Violations.
A. Public Nuisance. Except as otherwise provided by this chapter, the following are declared to be unlawful and a public nuisance and shall be subject to the remedies and penalties identified in this chapter, or Chapter 1.20 or 1.30, at the sole discretion of the city:
1. Any condition declared by a statute of the state of California or ordinance of the city to be a nuisance;
2. Any public nuisance known at common law or equity;
3. Any condition dangerous to human life, unsafe, or detrimental to the public health or safety; and
4. Any structure or use that is altered, constructed, converted, enlarged, established, erected, maintained, moved, or operated, contrary to the provisions of this land use code or any applicable condition of approval imposed on a permit.
B. Criminal Violation. Any person, whether an agent, principal, or otherwise, violating or causing the violation of any provision of this land use code or any permit issued in compliance with this land use code shall be guilty of a misdemeanor or an infraction at the election of the city and/or its prosecuting official and, upon conviction thereof, shall be punishable by the applicable fine established by the council. (Ord. 886 § 2 Exh. A (part), 2019: Ord. 766 § 2 Exh. A (part), 2004).
17.89.050 Inspection.
A. Pre-Approval Inspections. Every applicant seeking a permit or any other action in compliance with this land use code shall allow the city officials handling the application, access to any premises or property which is the subject of the application.
B. Post Approval Inspections. If the permit or other action in compliance with this land use code is approved, the owner or applicant shall allow appropriate city officials, access to the premises in order to determine continued compliance with the approved permit and/or any conditions of approval imposed on the permit. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.060 Initial enforcement contact.
This section describes the procedures for initiating enforcement action in cases where the director has determined that a site and/or structure is being used, maintained, or allowed to exist in violation of the provisions of this land use code. These provisions are intended to encourage the voluntary cooperation of responsible parties in the prompt correction of violations, so that the other enforcement measures provided by this chapter may be avoided.
A. Notice to Responsible Parties. The director shall provide the record owner of the site and any person in possession or control of the site with a written notice of violation, which shall include the following information:
1. A description of the violation, and citations of applicable land use code provisions being violated;
2. A time limit for correcting the violation in compliance with subsection B of this section;
3. A statement that the city intends to charge the property owner for all administrative costs associated with the abatement of the violations in compliance with Section 17.89.080 (Recovery of costs), and/or initiate legal action as described in Section 17.89.070 of this chapter; and
4. A statement that the property owner may request and be provided a meeting with the director to discuss possible methods and time limits for the correction of the violations.
B. Time Limit for Correction.
1. The notice of violation shall state that the violations shall be corrected within thirty days from the date of the notice to avoid further enforcement action by the city, unless the responsible party contacts the director within that time to arrange for a longer period for correction, and the director approves the additional time on the basis of good cause shown by the responsible party.
2. The director may also require through the notice of violation that the correction occur in less than thirty days if the director determines that the violation constitutes a hazard to public health or safety.
C. Use of Other Enforcement Procedures. The enforcement procedures of Section 17.89.070 (City remedies for violations) of this chapter, may be employed by the director after or instead of the provisions of this section where the director determines that this section would be ineffective in securing the correction of the violations within a reasonable time. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.070 City remedies for violations.
The city may choose to undertake any one or all of the actions identified in this section to correct and/or abate any nuisance or violation of this land use code, or conditions of permit or subdivision approval.
A. Remedies are Cumulative. All remedies provided in this chapter for the enforcement of the provisions of this land use code shall be cumulative and not exclusive of any other applicable provisions of city, county, or state law. Should a person be found guilty and convicted of a misdemeanor or infraction for the violation of a provision of this land use code, the conviction shall not prevent the city from pursuing any other available remedy to correct the violations.
B. Stop Work Order. Any construction in violation of this land use code or in violation of any condition imposed on a permit shall be subject to the issuance of a “stop work order.” The violation of a stop work order shall constitute a misdemeanor, subject to the penalties described in Chapter 1.20 of this code.
C. Permit Revocation or Modification. An approved planning permit may be revoked, or conditions of approval or other provisions of a permit or other entitlement may be modified by the city in compliance with this section. The revocation or modification shall be by the review authority that originally approved the permit (e.g., director, commission or council).
1. Hearings and Notice.
a. The review authority shall hold a public hearing to revoke or modify an application, entitlement, or permit granted in compliance with the provisions of this land use code.
b. Ten days before the public hearing, notice shall be delivered in writing to the applicant and/or owner of the property for which the permit was granted.
c. Notice shall be deemed delivered two days after being mailed, postage paid, certified and first class, through the United States Postal Service, to the owner as shown on the county’s current equalized assessment roll and to the project applicant, if not the owner of the subject property.
2. Review Authority Action. The review authority may revoke or modify a planning permit after first making one or more of the following findings:
a. Circumstances under which the permit was granted have been changed by the applicant to a degree that one or more of the findings required to grant the original permit can no longer be made;
b. Permit issuance was based on misrepresentation by the applicant, either through the omission of a material statement in the application, or in public hearing testimony;
c. One or more conditions of approval have not been completed or have been violated;
d. Improvements authorized by the permit are in violation of any code, law, ordinance, regulation, or statute;
e. The use or activity has become a serious threat to public health or safety; or
f. The use or activity is being operated in a manner that constitutes a public nuisance.
3. Effect of Revocation. The revocation of a planning permit shall have the effect of terminating the permit and denying the privileges granted by the permit.
D. Abatement by Civil Action.
1. A civil action may be brought in the name of the people of the state to enjoin a public nuisance as defined in this chapter by the city attorney, or by the Sonoma County district attorney, or county counsel, and each of those officers shall have concurrent right to bring the action for a public nuisance within the city. The city attorney shall bring the action when directed to do so by the council.
2. The civil action may be brought at any time, and may be instituted before, in lieu of, after, or in combination with the other actions identified in this section.
3. In any civil action brought in compliance with this subsection, the court may award reasonable attorneys’ fees to the prevailing party in the action, if the city elects, at the initiation of that individual action, to seek recovery of its own attorneys’ fees.
E. Abatement by Proceedings Before Council. The city may pursue abatement in compliance with Section 17.89.110 (Nuisance abatement by proceedings before the council) of this chapter.
F. Civil Costs and Penalties. Any person who wilfully violates the provisions of this land use code or any permit issued in compliance with this land use code, shall be liable for a civil penalty in compliance with the code enforcement fee schedule for each day that the violation continues to exist.
1. Costs and Damages. Any person violating any provisions of this land use code or any permit issued in compliance with this land use code, shall be liable to the city for the costs incurred and the damages suffered by the city, its agents, and agencies as a direct result of the violations.
2. Determination of Penalty. In determining the amount of the civil penalty to impose, the court should consider all relevant circumstances, including the extent of the harm caused by the conduct constituting a violation, the nature and persistence of the conduct, the length of time over which the conduct occurred, the assets, liabilities, and net worth of the defendant, whether corporate or individual, and any corrective action taken by defendant.
G. Criminal Actions and Penalties. See Section 17.89.040(B) of this chapter. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.080 Recovery of costs.
This section establishes procedures for the recovery of administrative costs, including staff and city attorney time expended on the enforcement of the provisions of this land use code. The intent of this section is to recover city administrative costs reasonably related to enforcement.
A. Record of Costs. The department shall maintain records of all administrative costs, incurred by responsible city departments, associated with the processing of violations and enforcement of this land use code, and shall recover the costs from the property owner in compliance with this section. Staff time shall be calculated at the fully burdened hourly rate.
B. Notice. Upon investigation and a determination that a violation of any of the provisions of this land use code is found to exist, the director shall notify the record owner or any person having possession or control of the property by mail, of the existence of the violation, the department’s intent to charge the property owner for all administrative costs associated with enforcement, and of the owner’s right to a hearing on any objections they may have. The notice shall be in a form approved by the city attorney.
C. Summary of Costs and Notice. At the conclusion of the case, the director shall send a summary of costs associated with enforcement to the owner and/or person having possession or control of the property by certified and first class mail. The summary shall include a notice in a form approved by the city attorney, advising the responsible party of their right to request a hearing in compliance with subsection D of this section.
D. Request for Hearing on Costs. Any property owner, or other person having possession and control of the subject property, who receives a summary of costs shall have the right to a hearing before the council on their objections to the proposed costs.
1. A request for hearing shall be filed with the department within ten days of the service by mail of the department’s summary of costs, on a form provided by the department.
2. Within thirty days of the filing of the request, and on ten days’ written notice to the owner, the council shall hold a hearing on the owner’s objections, and determine their validity.
3. In determining the validity of the costs, the council shall consider whether total costs are reasonable in the circumstances of the case. Factors to be considered include: whether the present owner created the violation; whether there is a present ability to correct the violation; whether the owner moved promptly to correct the violation; the degree of cooperation provided by the owner; and whether reasonable minds can differ as to whether a violation exists.
E. Liability for Costs.
1. In the event that no request for hearing is timely filed or, after a hearing the council affirms the validity of the costs, the property owner or person in control shall be liable to the city in the amount stated in the summary or any lesser amount as determined by the council.
2. The costs shall be recoverable in a civil action in the name of the city, in any court of competent jurisdiction, or by tax assessment, or by a lien on the property, at the city’s election. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.090 Additional permit processing fees.
Any person who establishes a land use, or alters, constructs, enlarges, erects, maintains, or moves any structure without first obtaining any permit required by this land use code, shall pay the additional permit processing fees established by the city fee schedule for the correction of the violations, before being granted a permit for a use or structure on the site. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.100 Reinspection fees.
A. Amount and Applicability of Reinspection Fee.
1. A reinspection fee shall be imposed on each person who receives a notice of violation, notice and order, or letter of correction of any provision of the municipal code, adopted building code, or state law.
a. The fee amount shall be established by the city fee schedule.
b. The fee may be assessed for each inspection or reinspection conducted when the particular violation for which an inspection or reinspection is scheduled is not fully abated or corrected as directed by, and within the time and manner specified in, the notice or letter.
2. The fee shall not apply to the original inspection to document the violations and shall not apply to the first scheduled compliance inspection made after the issuance of a notice or letter, whether or not the correction has been made.
B. Continuation of the Original Case.
1. If a violation on the site is the same as one for which a notice or letter has been previously issued, and after which the property has been in compliance with this land use code for less than one hundred eighty days, the new violation shall be deemed a continuation of the original case. In this circumstance, each inspection or reinspection, including the first inspection for the repeated offense, shall be charged a reinspection fee.
2. The reinspection fee is intended to compensate for administrative costs for unnecessary city inspections, and is not a penalty for violating this land use code or the municipal code.
3. Each reinspection fee imposed shall be separate and apart from any fines or penalties imposed for violation of this land use code or the municipal code, or costs incurred by the city for the abatement of a public nuisance. (Ord. 766 § 2 Exh. A (part), 2004).
17.89.110 Nuisance abatement by proceedings before the council.
The director may employ the provisions of this section to secure the abatement of nuisances, as defined by this section.
A. Notice of Nuisance. Upon the determination by the director that a nuisance exists, a notice of nuisance may be prepared, with copies thereof to be served as provided by Section 17.89.060(A) of this chapter. The notice of nuisance shall include the following information:
1. A legal description and street address, assessor’s parcel number, or other description sufficient to identify the premises affected;
2. A description of the condition causing the nuisance. Where the director has determined that the condition causing the nuisance can be corrected or abated by repair or corrective action, the notice shall state the repairs or corrective actions that will be required, and shall order that the nuisance be abated within thirty days, or longer period as determined by the director;
3. An order to complete abatement of the nuisance within thirty days;
4. A statement that if the nuisance is not corrected as specified, a hearing will be held before the council to consider whether to order abatement of the nuisance and levy a special assessment, which may be collected at the same time and in the same manner as is provided for the collection of ordinary taxes in compliance with Government Code Section 25845. Special assessments are subject to the same penalties, interest, and procedures of foreclosure and sale in the case of delinquency, as is provided for ordinary taxes;
5. A statement that the city intends to charge the property owner for all administrative costs associated with abatement of conditions defined as a nuisance by this section;
6. Where the director has determined that the condition causing the nuisance is imminently dangerous to life or limb, or to public health or safety, the notice may include an order that the affected property, building or structure be vacated within a time limit determined by the director, pending correction or abatement of the conditions causing the nuisance.
B. Notice of Nuisance Abatement. If, upon the expiration of the period specified in the notice of nuisance, action to abate the nuisance has not been commenced, or, if it has been commenced, it has not been prosecuted with due diligence nor completed within the time specified, the director shall prepare a notice of nuisance abatement, and serve notice as provided by Section 17.89.060(A) of this chapter. The notice of nuisance abatement shall contain:
1. A heading, “Notice of Nuisance Abatement”;
2. A notice to appear before the council at a stated time and place not less than ten nor more than thirty days after service of the notice, to show cause why stated conditions should not be found to be a nuisance, and why the nuisance should not be abated by the director; and
3. The information specified in subsection A of this section.
C. Abatement Proceedings. When a notice of nuisance abatement has been prepared and served in compliance with this subsection, nuisance abatement shall proceed as follows:
1. Hearing. A decision to abate a nuisance shall be at the discretion of the city, after a hearing conducted in compliance with Chapter 17.88 (Public Hearings) of this title.
2. Order by Review Authority. Upon the conclusion of the hearing, the council may terminate the abatement proceedings or it may order that:
a. The owner or other affected person shall abate the nuisance, prescribing a reasonable time (not less than thirty days) for completion of abatement;
b. A request for additional time to complete abatement by a person subject to an abatement order shall be granted only if the affected person guarantees abatement within the time to be granted by submitting a bond or other guarantee; and
c. In the event abatement is not commenced, conducted and completed in accordance with the terms set by the council, the director is empowered and authorized to abate the nuisance.
3. Service of Council Order. The order of the council shall be served as provided by Section 17.89.060(A) of this chapter, except that the order need not be posted on the property or recorded.
4. Commencement of Time Limits. The time limits set by the council for completion of abatement or other required actions shall begin upon service of the notice, unless the order of the council sets specific dates for completion of abatement.
5. Compliance with Council Order Required. It is unlawful and a violation of this code for any person to fail to comply with the provisions of an order of the council in compliance with this section.
D. Abatement Penalties and Costs. Upon expiration of the time limits established by subsection (C)(4) of this section, the director shall have the authority to abate the nuisance, and shall carry out the following as appropriate:
1. Disposal of Materials. Any materials in or constituting any nuisance abated by the director may be disposed of, or if directed by the council where the materials are of substantial value, sold directly by the city in a manner approved by the city attorney, or sold in the same manner as surplus county personal property is sold.
2. Account of Costs and Receipts and Notice of Assessment. The director will keep an itemized account of the costs of enforcing the provisions of this title, and of the proceeds of the sale of any materials connected therewith. Upon completion of abatement, the director is to prepare a notice to be served, specifying:
a. The work done;
b. An itemized account of the costs and receipts of performing the work;
c. An address, legal description, or other description sufficient to identify the premises;
d. The amount of the assessment proposed to be levied against the premises, or the amount to be refunded, if any, due to excess proceeds over expenses;
e. The time and place where the director will submit the account to the council for confirmation. The time and place specified shall be not less than fifteen days after service of the notice;
f. A statement that the council will hear and consider objections and protests to the account and proposed assessment or refund.
3. Hearing on Account and Proposed Assessment. At the time and place fixed in the notice, the council will hear and consider the account and proposed assessment, together with objections and protests thereto. At the conclusion of the hearing, the council may make modifications and revisions of the proposed account and assessment as it deems just, and may order the account and proposed assessment confirmed or denied, in whole or in part, or as modified and revised. The determination of the council as to all matters contained therein is final and conclusive.
4. Notice of Lien. Upon confirmation of an assessment by the council, the director shall notify the owners by certified mail, return receipt requested, of the amount of the pending lien confirmed by the council, and advise them that they may pay the account in full within thirty days to the department, to avoid the lien being recorded against the property. If the lien amount is not paid by the date stated in the letter, the director shall prepare and have a notice of lien recorded in the office of the county recorder. The notice shall contain:
a. A legal description, address and/or other description sufficient to identify the premises;
b. A description of the proceeding under which the special assessment was made, including the order of the council confirming the assessment;
c. The amount of the assessment;
d. A claim of lien upon the described premises.
5. Lien. Upon the recordation of a notice of lien, the amount claimed shall constitute a lien upon the described premises, in compliance with Government Code Section 25845. The lien shall be at a parity with the liens of state and county taxes.
6. Collection with Ordinary Taxes. After recordation, the notice of lien shall be delivered to the county auditor, who will enter the amount of the lien on the assessment roll as a special assessment. Thereafter the amount set forth shall be collected at the same time and in the same manner as ordinary county taxes, and is subject to the same penalties and interest, and to the same procedures for foreclosure and sale in case of delinquency, as are provided for ordinary county taxes; all laws applicable to the levy, collection and enforcement of county taxes are made applicable to the assessment. (Ord. 766 § 2 Exh. A (part), 2004).
ARTICLE 9. GLOSSARY