Chapter 1.20
COST RECOVERY FOR CODE ENFORCEMENT
Sections:
1.20.020 Findings and purpose.
1.20.040 Recovering abatement and enforcement costs and penalties.
1.20.060 Administrative review of costs.
1.20.070 Recovery of administrative fines.
1.20.080 Recovery of enforcement costs.
1.20.090 Recovery of abatement costs.
1.20.110 Special assessment and lien.
1.20.130 Recovery of graffiti abatement costs.
1.20.010 Title.
This chapter shall be known as the "Code Enforcement Cost Recovery Ordinance." (Ord. 18-02 §2(part), 2018).
1.20.020 Findings and purpose.
The city council finds that substantial public resources are spent each year to enforce the Kerman Municipal Code and state laws enacted to protect the public health, safety and welfare of the city and its residents. The council finds that the responsibility of these costs should be properly placed on those persons responsible for violating the code or state laws and or causing public nuisances. The city council further finds that the recovery of costs incurred by the city to enforce these laws and to collect fines issued to those persons causing public nuisances and or violating these laws is important in deterring future violations and maintaining the integrity of the city’s code enforcement system. The purpose of this chapter is to provide a means for the city of Kerman to recover these costs and penalties from those persons responsible for creating, causing, committing or maintaining a public nuisance or code or state law violation. (Ord. 18-02 §2(part), 2018).
1.20.030 Definitions.
Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter.
A. "Abatement costs" means all actual and reasonable costs incurred by the city to abate a public nuisance. These costs shall include all direct and indirect costs to the city that result from the total abatement action, including, but not limited to, investigation costs, costs to enforce the code or state law, clerical and administrative costs to process paperwork, costs incurred to provide notices and prepare for and conduct administrative hearings, and costs to conduct actual abatement of the nuisance. Examples of abatement costs include, but are not limited to, staff costs to prepare and issue a notice of violation or a citation, fire suppression costs, costs to prepare a hearing packet, administrative overhead costs, costs for equipment, such as cameras and vehicles, staff time to hire a contractor to remove trash or board up an abandoned building. These costs shall include reasonable attorneys’ fees incurred by city. At any administrative hearing, judicial action or special proceeding to recover attorneys’ fees, the prevailing party shall be awarded attorneys’ fees not to exceed the amount of reasonable attorneys’ fees incurred in the action, hearing or proceeding. Abatement costs may be established by city resolution.
B. "Bona fide encumbrancer" means a person who (1) receives a lien or encumbrance on the subject property after the city incurs abatement costs or enforcement costs and (2) at the time he or she acquired the interest did not have actual or constructive knowledge of the city’s interest in the property.
C. "Bona fide purchaser" means a person who (1) purchases any portion of the subject property after the city incurs abatement costs or enforcement costs and (2) at the time he or she acquired his or her portion of the subject property did not have actual or constructive knowledge of the city’s interest in the property.
D. "Enforcement costs" means all actual and reasonable costs incurred by the city to enforce compliance with any state or city public health and safety law that does not involve the existence of a public nuisance. These costs include, but are not limited to, actual cost of the enforcing department’s services including, but not limited to, costs of personnel, including costs of workers compensation benefits, fringe benefits, administrative overhead, costs of equipment, costs of materials, costs related to investigations pursuant to the code or state law, costs related to issuing and defending administrative citations, and costs incurred investigating and abating violations of the code or state law violations.
E. "Enforcing department" means the department of the city that directed and is responsible for the enforcement of the code or state law or the abatement of a public nuisance or violation of the code or state law.
F. "Noticed party" means the person or entity that is required to be noticed in the underlying abatement or enforcement action in which costs were incurred, but in all cases must include the record owner(s) of the property. A "noticed party" must be notified for purposes of cost or penalty recovery in the same manner as they were required to be noticed, either by code or state law, in the abatement or enforcement action which resulted in the incurring of costs or penalties sought to be recovered under this chapter, and shall include notification by certified mail.
G. "Penalties" means fines imposed by administrative citations issued under authority of the code. "Penalties" for purposes of this chapter do not include criminal fines.
H. "Public nuisance" means a public nuisance as declared or defined by any provision of the code.
I. "Record owner" shall mean the person to whom land is assessed as shown on the last equalized assessment roll or the supplemental roll, whichever is more current.
J. "Responsible party" means a person or entity identified by the code or law as responsible for creating, causing, committing, or maintaining the violation of the code or law and or responsible for the abatement of a code or law violation, including public nuisance, as defined in this section.
K. "Subject property" means the real property that is the subject of any enforcement or abatement action by the city for which the city incurred costs sought to be recovered under this chapter. (Ord. 18-02 §2(part), 2018).
1.20.040 Recovering abatement and enforcement costs and penalties.
A. Special Assessment and Lien or Personal Obligation. The cost of abating a public nuisance and/or enforcing the code or state law shall either be a lien on the subject property, a special assessment against the subject property, or the personal obligation of the owner of the subject property and/or the person responsible for creating, causing, committing or maintaining the public nuisance or violating the code or state law. Costs incurred by the city are recoverable even if a public nuisance or code violation is corrected by the property owner or other responsible party.
B. Applicability. This chapter shall govern the procedures used to recover all abatement and enforcement costs incurred by the city in the abatement of a public nuisance or code violation and/or the enforcement of the code or law pursuant to the procedures and authority found in this code. Additionally, this chapter shall govern the procedures used to recover administrative penalties imposed pursuant to the procedures and authority found in this code.
C. Cumulative Remedies. The remedies provided in this chapter shall be cumulative to any other provided in this code or by law. Nothing in this chapter shall prevent the city at any time from accepting payment for unpaid costs or penalties in whole or by way of a payment plan, provided the rules on debts owing to the city are complied with as may be required in the code. (Ord. 18-02 §2(part), 2018).
1.20.050 Invoice of costs.
A. Accounting. The enforcing department shall keep an itemized account of the abatement and/or enforcement costs incurred by the city. Those costs shall be included in a report that includes a description of the abatement and/or enforcement action taken by the city and where applicable the address, APN or other description of the subject property.
B. Notice of Invoice. The enforcing department may invoice the noticed party for the costs incurred by the city. The notice of invoice shall be served personally or by first class mail with return acknowledgement of receipt.
C. Invoice. The invoice shall notify the noticed party of the following:
1. A description of the abatement or enforcement action taken by the city, a description of the property subject to the abatement or enforcement, and the total amount of the costs incurred by the city. The requirements of this subsection may be met by providing the noticed party with a copy of the report required under subsection (A) of this section.
2. That should the noticed party fail to pay the costs within thirty days from the date of service of the invoice and the costs may be collected in any or all of the following ways: by a collection agency as a personal obligation, by the city attorney’s office through judicial action, as a lien attached to the subject property, or as a special assessment on the subject property;
3. That the noticed party has a right to administrative review of the accounting costs incurred by the city by filing a written request for such review with the city clerk within fifteen days of the date of the invoice and that a failure to request administrative review will be deemed a waiver of the right to review the amount of the costs.
4. That before a lien or special assessment is placed on the subject property, the city council will confirm the costs by a public hearing. A notice will be issued at least fifteen days before the public hearing and he or she will be allowed to file an objection before the public hearing.
5. That the invoice may be recorded as a notice of costs in the Fresno County recorder’s office.
D. Recording. The city may record the invoice as a notice of costs or penalties in the county recorder’s office. Once payment is received for the outstanding costs and/or penalties, or there has been a successful appeal following administrative review, and no further action will be taken under this chapter, the enforcing department shall record a notice of satisfaction. The notice of satisfaction shall be filed with a copy of the original invoice of costs and shall state that no further action by the city will be taken to collect the costs referred to in the invoice of costs.
E. Note: Section 1.20.040 is inapplicable to the collection of unpaid administrative penalties. (Ord. 18-02 §2(part), 2018).
1.20.060 Administrative review of costs.
A. Right to Administrative Review. A noticed party shall have the right to administrative review of the accounting of the costs incurred by the city by filing a written request for such review with the city clerk within fifteen days of the date of the invoice. A failure to timely request administrative review will be deemed a waiver of a right to review of the amount of the costs.
B. Procedures for Administrative Review. If a request for administrative review is timely filed, the city clerk shall deliver a copy of the accounting report, invoice, and request for administrative review to the city manager or his/her designee, which may include the appointment of a hearing officer, who shall set a date and time to review the accounting report and invoice with the requesting party. The administrative review shall be an informal proceeding where the enforcement department and requesting party may present any evidence they deem pertinent to the amount of the costs. The scope of review shall be limited to the amount of the costs unless there has been no opportunity for a hearing on the underlying violation.
C. Decision. The city manager or designated hearing officer may affirm or reduce the costs if he/she determines that they are not supported by the evidence or upon a showing that the costs were unnecessary or unreasonable. The city will not pass upon the validity of the underlying enforcement action or the amount of any penalties unless there has been no opportunity for a hearing of the underlying action. The decision shall be memorialized in writing. The city manager may, in consultation with the finance director or his/her designee, approve a payment plan for the costs.
D. Time for Payment. The requesting party shall have thirty days from the date of the city manager’s decision to pay the costs, unless a payment plan is approved, in which case the costs shall be paid in accordance with the payment plan. (Ord. 18-02 §2(part), 2018).
1.20.070 Recovery of administrative fines.
Administrative fines unpaid after thirty days from issuance of the citation or, if the citation is appealed, thirty days from the date a penalty is upheld, may be collected using the procedures found in this chapter. The city is not required to send an invoice under Section 1.20.050. Penalties may only be made a lien upon a subject property when the record owner of the subject property was issued and properly noticed with the citation. Any lien attached to property under the procedures in this chapter to collect unpaid fines shall have the priority of a judgment lien, and not a tax lien, unless otherwise provided by state law. (Ord. 18-02 §2(part), 2018).
1.20.080 Recovery of enforcement costs.
Enforcement costs may be recovered using the procedures found in this chapter. To collect costs under the lien procedures, the city must send an invoice under Section 1.20.050. Any lien attached to property to collect enforcement costs under the procedures provided in Sections 1.20.110 and 1.20.120 shall have the priority of a judgment lien, and not a tax lien, unless otherwise provided by state law. (Ord. 18-02 §2(part), 2018).
1.20.090 Recovery of abatement costs.
Abatement costs may be recovered using the procedures for liens or special assessments in this chapter. The city must send an invoice under Section 1.20.050 and follow the procedures in Section 1.20.060. A lien attached to property to collect abatement costs under the procedures in Section 1.20.110 shall have the priority of a judgment lien, and not a tax lien, unless otherwise provided by state law. A special assessment lien attached to property to collect abatement costs under the procedures in Section 1.20.020 shall have the priority of a tax lien, unless otherwise required by state law. (Ord. 18-02 §2(part), 2018).
1.20.100 Personal obligation.
Any costs or penalties subject to collection under this chapter may be recovered as a personal obligation against the responsible party and may be referred to a collection agency or the city attorney for collection. Upon referral of these costs and obligations, the collection agency and the city attorney may seek collection through any legal means provided to them, including judicial action. Nothing in this section shall be affected by or affect the city’s use of any other procedure provided in this chapter or by law to collect unpaid costs and penalties. In a judicial action to recover abatement costs, the city attorney may elect to recover attorney’s fees. In any action in which the city attorney elects to recover attorney’s fees under this section, attorney’s fees will be recovered by the prevailing party. (Ord. 18-02 §2(part), 2018).
1.20.110 Special assessment and lien.
A. Collection. Unpaid fines, abatement costs, and enforcement costs that relate to a property related violation may be confirmed by the city council as a special assessment and collected with property taxes or as a judgment lien.
B. Notice. Notice of a public meeting to confirm the penalties and/or costs shall be provided to all noticed parties by personal services or by first class mail with return acknowledgment of receipt by the enforcing department or city clerk at least fifteen days before the meeting. The notice shall: (1) contain a description of the subject property sufficient to enable the person(s) served to identify it; (2) shall state that the city intends to collect unpaid costs or penalties by placing a lien or a special assessment on the subject property; (3) shall specify the day, hour, and place where the council will hear and pass upon the penalties and/or costs; (4) shall specify that the property may, in some cases, be sold after three years by the tax collector pursuant to Revenue and Tax Code Section 3691 for unpaid delinquent assessments or be subject to judicial foreclosure before the three years; and (5) shall specify that any noticed party may appear at the council meeting and present objections to the lien or the assessment.
C. Confirmation by City Council. During the council meeting the council may adopt a resolution confirming the amount of the penalties and costs, or any lesser amount, based upon staff reports and any public comments received during the meeting. The city council shall take into consideration whether any noticed party sought administrative review of the costs and shall only reduce the costs if (1) the noticed party sought administrative review and (2) the decision regarding penalties and costs is not supported by substantial evidence in the record. The basis for the code enforcement action will not be the subject of the council’s consideration.
Where the costs have already been approved by a court of competent jurisdiction or the penalties have been previously upheld in an abatement or other administrative hearing under Chapter 1.28, the council shall simply confirm the costs or penalties.
The council may confirm the costs for more than one property in a single resolution. If the council confirms the costs, the procedures set forth in this section may be utilized.
D. Time to Contest Confirmed Special Assessment or Lien. The validity of any special assessment or lien levied under the provisions of this section shall not be contested in any action or proceeding unless such action or proceeding is commenced within thirty days after the special assessment is confirmed by the city council.
E. Recording. Immediately upon the council’s confirmation of costs or penalties, the city clerk shall record a notice of special assessment and lien in the Fresno County recorder’s office, which shall constitute a lien on that property for the amount of the assessment, except that if any real property to which the lien would attach has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of taxes that included the special assessment imposed under this section would become delinquent, then the lien that would otherwise be imposed by this section shall not attach to real property and the costs of abatement and enforcement relating to the property shall be transferred to the unsecured roll for collection.
F. Form of Notice of Special Assessment and Lien. The notice of special assessment and lien for recordation shall be in the form substantially as follows:
NOTICE OF SPECIAL ASSESSMENT AND LIEN
(Claim of the City of Kerman)
Under authority vested by provision of Chapter ___, Chapter ___, of the City of Kerman Municipal Code, the city did on or about the __________ day of____________, 20___, assess [describe penalties, abatement costs, enforcement costs] on the real property hereinafter described; and the same has not been paid nor any part thereof and the City of Kerman does hereby claim a lien for such [penalties, abatement costs, and enforcement costs] to wit: the sum of _________________ dollars, plus legal rate of interest to be accrued from the date of recording this lien, and any and all administrative costs to file and record the lien. The same shall be a lien upon the real property until it has been paid in full and discharged of record.
The real property hereinafter mentioned, upon which a lien is claimed, is that certain parcel of land in the City of Kerman, County of Fresno, State of California, more particularly described as follows:
Dated: This ________ day of ___________________20___.
____________________________________
[Name] -- City Manager
City of Kerman
G. Collection with Taxes. After confirmation and recordation, a copy may be turned over to the Fresno County tax collector. At that point, it will be the duty of the tax collector to add the amounts of the respective assessments to the next regular tax bills levied against the lots and parcels of land for municipal purposes. Those amounts shall 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 procedures and sale in the cases of delinquency as provided for with ordinary municipal taxes.
H. Foreclosures. After confirmation and recording, the lien may also be foreclosed by judicial or other same in the manner and means provided by law. The city may recover from the record property owners any costs incurred regarding a foreclosure action.
I. Priority. A special assessment and lien imposed under this section shall have the priority of a tax lien, unless prohibited by state law, in which case the special assessment and lien shall have the propriety of a judgment lien.
J. Release of Lien. Once payment in full is received for the special assessment and lien, including applicable penalties, administrative fees and interest charges; or the amount is deemed satisfied pursuant to a subsequent administrative or judicial order; or the city has entered into some other arrangement with the property owner for satisfaction of the assessment; the enforcing department shall either record a notice of satisfaction or provide the property owner or financial institution with the notice of satisfaction so they can record the notice with the Fresno County recorder’s office.
K. Refund. The council may order a refund of all or part of a tax paid pursuant to this section if it finds that all or part of the tax has been erroneously levied. A tax or part thereof shall not be refunded unless a claim is filed with the city clerk in accordance with the city’s claim filing requirements, and in no event later than November 1st after the tax became due and payable. The claim shall be verified by the person who paid the tax, or his/her guardian, executor, or administrator. (Ord. 18-02 §2(part), 2018).
1.20.130 Recovery of graffiti abatement costs.
A. Application. This section is intended to implement the provisions of California Government Code Sections 38772, 38773.2, and 38773.6 making the costs of abatement of a nuisance caused by graffiti of personal or real property a lien or special assessment on the real property of a minor or other person causing the graffiti or the parent or guardian of the minor. Said Government Code provisions should be reviewed to ensure compliance.
B. Definitions. For purposes of this section the terms "graffiti," "expense of abatement," "minor," "other person," and "responsible person" have the same meaning as specified in this code and Government Code Sections 38772, 38773.2, and 38773.6.
C. Procedures. The procedures to assess or lien property under this section shall be those provided in this chapter unless otherwise provided in this section or in Government Code Sections 38772, 38733.2, and 38773.6.
D. Notices. All notices required or allowed under this chapter shall be provided to all record owners of the real property that will be subject to the special assessment or lien. The invoice of costs, under Section 1.20.060, shall notify the minor or other person causing the graffiti, or the parent or guardian of the minor that caused the graffiti that should the invoiced costs go unpaid under that section, the property owned by them shall be subject to a lien or special assessment.
E. Form of Notice of Graffiti Abatement Lien. The notice of graffiti abatement lien shall be in substantially the following form:
NOTICE OF GRAFFITI ABATEMENT LIEN
Pursuant to the authority vested in the City of Kerman by the provisions of the Kerman Municipal Code and Government Code Sections 38772 and 53069.3, the City did on or about the _______ day of _______________________, 20___, cause the abatement of graffiti on public or private, real or personal property. _______________________ is/are the record owner(s) of the premises described below ("Subject Property") and is the minor/person causing graffiti/parent or guardian of the minor who caused the graffiti. An administrative hearing officer did on the _______ day of __________________, 20___, confirm the costs of the graffiti abatement, and the costs have not been paid, and the said City of Kerman claims a lien on the Subject Property in the amount of ____________ Dollars ($____________) under Government Code Section 38773.2. The lien shall be on the property until the amount is paid, plus legal rate of interest to be accrued from the date of recording this lien, and any and all administrative costs to file and record the lien. The claimed lien having been imposed to collect for graffiti abatement costs shall have the priority of a judgment lien and shall attach upon the recording of this Notice. The Subject Property upon which the lien is claimed is located at ____________ in the City of Kerman, County of Fresno, State of California, and is more particularly described as APN #____________ and:
[LEGAL DESCRIPTION OF PROPERTY]
The record owner(s) of the Subject Property is/are _____________________, who reside(s) at ____________________________________.
Dated: This _________ day of ____________________, 20___.
____________/____________/____________
City Manager
City of Kerman
F. Subsequent Civil or Criminal Judgment. Under the provisions of Government Code Section 38773.7, upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property or a minor or other person causing graffiti is responsible for either a public nuisance or graffiti, except for conditions abated pursuant to Health and Safety Code Section 17980, the court may order that person to pay treble the costs of the abatement. (Ord. 18-02 §2(part), 2018).