Chapter 1.14
ADMINISTRATIVE ENFORCEMENT

Sections:

1.14.010    Authority of code enforcement officer.

1.14.020    Notice of violation.

1.14.030    Order to show cause hearing.

1.14.040    Time allowed for abatement.

1.14.050    Imposition of penalties.

1.14.060    Payment and collection of penalty.

1.14.070    Appeal of NOV.

1.14.080    Enforcement stayed during appeal.

1.14.090    Appeal hearings.

1.14.100    Decision of the hearing officer and abatement order.

1.14.110    Judicial review.

1.14.120    Recovery of costs of abatement.

1.14.130    Cost accounts.

1.14.140    Imposition of liens or special assessments.

1.14.010 Authority of code enforcement officer.

A code enforcement officer shall have the authority to gain compliance with this code, including the power to issue a notice of violation (“NOV”) as described in Section 1.14.020, the power to inspect public and private property, the power to record a notice of violation against any affected property, and the power to carry out the provisions of an abatement order. (Ord. 659-2008 § 2 (part), 2008)

1.14.020 Notice of violation.

A. Whenever a code enforcement officer finds that a provision of this code has been violated, including but not limited to a failure to comply with a term or condition imposed by any agreement, entitlement, permit, license or environmental document issued or approved by or on behalf of the city, or a failure to comply with any other laws the violation of which constitutes a nuisance condition, and such code enforcement officer elects to pursue administrative enforcement pursuant to Chapters 1.10 through 1.15, he or she may issue the responsible party a notice of violation (“NOV”). An NOV is not required if the code enforcement officer determines that summary abatement is necessary pursuant to Section 1.15.010. If an NOV is issued, it shall be served on the responsible party in the manner described in subsection B of this section. The code enforcement officer shall include the following information in the NOV:

1. The date and location of the violation, including the address or other description of the location where the violation occurred or is occurring and a brief description of the conditions observed that constitute a violation;

2. The name(s) of the responsible party(ies), if known;

3. The code section(s) violated and a description of the section(s);

4. Actions required to correct, abate or mitigate the nuisance condition or code violation, and a period of time during which action(s) shall be commenced and completed, considering the factors listed in Section 1.14.040;

5. An order prohibiting the continuation or repeated occurrence of a nuisance condition or violation of this code described in the NOV;

6. Except when the code enforcement officer orders the responsible party to appear at a hearing to show cause pursuant to Section 1.14.030, a statement that the person upon whom the NOV is served may appeal the determination that there is/are violation(s) as alleged, that the person who was served with the NOV is the responsible party, or that the amount of any administrative fine imposed is warranted. The NOV will instruct the person being served as to the proper procedure and time frame for submitting an appeal;

7. If applicable, notice that failure to correct or abate the listed violations in the NOV within the time specified will subject the responsible party to a penalty pursuant to Section 1.14.050. If a penalty will be imposed, the NOV shall include the amount of the penalty; and

8. The signature of the citing code enforcement officer and city contact information (address, telephone number) for additional information.

B. The NOV shall be served upon the responsible party or owner personally or by United States mail, first-class postage prepaid, and, if by such mail, it shall be sent to the last known address listed on the most recent tax assessor’s records. In the case of personal service, service shall be deemed complete at the time of such delivery. In the case of service by first-class mail, service shall be deemed complete at the time of deposit into the United States mail. Where service is by first-class mail, a copy of the NOV shall also be conspicuously posted at the affected property when reasonably practicable for a period of not less than three calendar days prior to the first date that commencement of corrective action or abatement is to be undertaken. The failure to receive an NOV sent via first-class mail shall not affect the validity of any enforcement proceedings under Chapters 1.10 through 1.15.

C. Proof of service shall be certified by a written declaration under penalty of perjury executed by the person effecting service, declaring the date, time, and manner of service, and the date and place of posting, if applicable. The declaration shall be affixed to a copy of the NOV and retained by the code enforcement officer.

D. The failure of an NOV to satisfy all of the requirements of this provision shall not affect the validity of any other enforcement proceedings under this code. (Ord. 659-2008 § 2 (part), 2008)

1.14.030 Order to show cause hearing.

Subject to the provisions of Sections 1.14.010 and 1.14.020, any NOV issued by a code enforcement officer may include an order requiring the responsible party to appear at a hearing to show cause why such nuisance condition or other code violation should not be abated by the city at the responsible party’s expense. Such hearing shall be referred to as an order to show cause hearing, or OSC hearing. All OSC hearings shall be conducted pursuant to the procedures set forth in Sections 1.14.090 and 1.14.100, and subject to all of the provisions of this chapter. (Ord. 659-2008 § 2 (part), 2008)

1.14.040 Time allowed for abatement.

In any NOV or abatement order issued, the time allowed for abatement shall be a “reasonable time” based upon the circumstances of the particular violation, taking into consideration the means required to abate the violation, the period of time that the violation has existed, and the potential threat to public health and safety created by the violation. If the violation pertains to building, plumbing, electrical, mechanical or other similar structural or zoning issues and does not pose an imminent or immediate threat of harm to persons or property, or to public health, welfare or safety, the responsible party shall be provided not less than fifteen days in which to abate or otherwise remedy the violation. The determination of timely compliance, abatement, mitigation or elimination of the violation shall be made by the code enforcement officer, hearing officer, or other authorized city official. (Ord. 659-2008 § 2 (part), 2008)

1.14.050 Imposition of penalties.

Any nuisance condition or violation of any provision of this code, including a failure to comply with a term or condition imposed by any agreement, entitlement, permit, license or environmental document issued or approved by or on behalf of the city, or a failure to comply with any county, state or federal law, may subject the responsible party to a penalty imposed pursuant to the city’s general police powers, and/or Government Code Sections 36901 and 53069.4. Whether to impose a penalty shall be within the discretion of the city manager.

A. The amount of any penalty that may be imposed for a violation that would otherwise be an infraction shall not exceed the amounts set forth in Government Code Section 36900(b), as amended from time to time. The amount of any penalty that may be imposed for all other violations (i.e., violations that would otherwise be misdemeanors) shall not exceed one thousand dollars per day. In determining the amount of a penalty, the following factors should be taken into consideration:

1. Duration of the violation;

2. Frequency, re-occurrence, or number of violations by the same person;

3. Seriousness of the violation and/or its impact on the community and/or the degree of culpability of the responsible party;

4. Justification, if any, for the existence, or continuance, of the violation;

5. Whether the violation is susceptible to restoration or other mitigation;

6. Good faith efforts to mitigate the violation or to come into compliance, pursuant to the terms of the NOV or abatement order;

7. Sensitivity of any affected resource;

8. Any profits or other economic benefit realized by the responsible party resulting, directly or indirectly, from the violation;

9. The city’s schedule of administrative penalties currently existing or subsequently enacted; and

10. Such other factors as justice may require.

B. Each and every day during any portion of which a nuisance condition exists or continues may be deemed a separate and distinct violation for purposes of setting the amount of penalty to be imposed. Any penalty imposed will accrue on a daily basis from the date the penalty becomes effective until the violation is corrected.

C. Any penalty amount is a debt owed to the city. In addition to all other means of enforcement, a penalty may be enforced as a personal obligation of the responsible party. If the violation is in connection with real property, a penalty may also be enforced by imposition of a lien or special assessment upon the real property, as described in Section 1.14.140. Any lien or special assessment imposed upon real property shall remain in effect until the penalty is paid in full.

D. The hearing officer, in his or her discretion, may suspend the imposition of any applicable penalty for a period of time not to exceed sixty days during which the responsible party has demonstrated a willingness to correct the violations listed in the NOV or comply with an abatement order, or has applied for permits required to achieve compliance and such permit applications are actively pending before, or have already been issued by, the city, state, or other appropriate governmental agency, or under any other circumstances that would justify a suspension of the penalty. (Ord. 659-2008 § 2 (part), 2008)

1.14.060 Payment and collection of penalty.

A. If a penalty is imposed and the responsible party fails to appeal the penalty as specified in Section 1.14.070, the responsible party shall pay the amount of the penalty within thirty days of the effective date of the penalty, unless an extension of time is requested by the party against whom the penalty is imposed and the request is granted by the city manager. Any penalty imposed shall be payable to the city, or to a collection agency if the penalty has been assigned to a collection agency pursuant to subsection C of this section.

B. If the amount of any penalty imposed for a violation relating to an affected property has not been satisfied in full within sixty days of the date due and has not been successfully challenged by appeal or in court, the penalty amount may become a special assessment or lien against the affected property, as provided in Section 1.14.140. If the city elects to make any penalty a special assessment or lien against the affected property, a statement of the amount due, and any additional costs or expenses that may be recoverable as part of the enforcement action, shall be prepared and submitted to the city council for confirmation in accordance with the procedures described in Section 1.14.130.

C. Notwithstanding subsection B of this section, the amount of any unpaid penalty may be collected by commencement of a civil action to collect such penalty, or in any other manner provided by law for the collection of debts, including assignment of the debt to a collection agency. Subject to the requirements of Chapters 1.10 through 1.15 and other applicable law, amounts assigned for collection are subject to collection agency rules, regulations and policies. The city shall be entitled to recover any and all costs associated with collection of any such penalty.

D. The payment of a penalty by or on behalf of any responsible party shall not relieve such party from the responsibility of correcting, removing or abating the nuisance condition, or performing restoration where required, nor prevent further proceedings under Chapters 1.10 through 1.15 or any other authority to achieve the correction, removal or abatement of the nuisance, or any required restoration. (Ord. 659-2008 § 2 (part), 2008)

1.14.070 Appeal of NOV.

A. A person or entity named as the responsible party in an NOV may appeal the determination that there is/are violation(s) as alleged in the NOV, that the person or entity who was served with the NOV is the responsible party, that a penalty or the penalty amount is warranted, or any other terms of an NOV. If an OSC hearing has been scheduled pursuant to Section 1.14.030, the OSC hearing shall serve as the appeal hearing authorized by this section.

B. Any person appealing an NOV must obtain a “request for hearing” form from the city clerk located at Cloverdale City Hall, 124 N. Cloverdale Boulevard, Cloverdale, California, 95425, and return it to the city clerk fully completed within fifteen days from the date of service of the NOV.

C. At the time of returning the request for hearing form to the city clerk, the person or entity requesting the appeal hearing shall pay an appeal processing fee as set forth in the city’s master fee schedule, as that schedule shall be amended from time to time, and shall deposit in advance the amount of any penalty. No appeal shall proceed without payment of the fee and deposit of the penalty with the city clerk at the time the appeal is filed; provided, however, that the city manager may waive or defer the appeal fee upon written request for good cause shown. Good cause may include severe economic hardship, significant attempts to comply with the notice and order, and other factors indicating good faith attempts to comply.

D. Failure to timely submit a completed request for hearing form or to pay the appeal processing fee and advance deposit of any penalty constitutes a waiver of the right to appeal and a failure to exhaust administrative remedies. (Ord. 659-2008 § 2 (part), 2008)

1.14.080 Enforcement stayed during appeal.

Enforcement of an NOV or penalty shall be stayed during the pendency of an appeal therefrom which is properly and timely filed, unless the city obtains an order from a court of competent jurisdiction requiring or authorizing the abatement of the condition that is the subject of the city’s enforcement efforts. (Ord. 659-2008 § 2 (part), 2008)

1.14.090 Appeal hearings.

A. An appeal hearing based on a request for hearing shall be set for a date not less than ten days nor more than sixty days from the date the request for hearing form is filed, unless the code enforcement officer determines that the matter is urgent or that good cause exists for an extension of time, in which case the hearing date may be shortened or extended, as warranted by the circumstances.

B. A hearing under authority of this section shall be conducted according to the procedures set forth herein. The failure of the responsible party or other interested party to appear at the hearing following proper notice shall constitute a waiver of the right to be heard and a failure by such party to exhaust his/her administrative remedies.

1. When a request for hearing is filed, the city clerk shall set the time and place for hearing pursuant to subsection A of this section, and shall serve a notice of hearing either personally or by United States mail, first-class postage prepaid, to the appellant at the address provided in the request for hearing form. The time for such hearing shall be no sooner than ten days from the date of service of the notice of hearing. If the code enforcement officer submits a written report concerning the NOV to the hearing officer for consideration at the hearing, then a copy of the report shall be served on the person requesting the hearing at least five days before the hearing.

2. At the place and time set forth in the notice of hearing, the hearing officer shall conduct a hearing on the alleged violations. Any responsible party or other interested person(s) may appear and offer evidence as to whether a violation has occurred and/or whether the violation continues to exist, whether the person cited in the NOV is the responsible party for any such violation, whether a penalty or penalty amount is warranted, or any other matter pertaining thereto. Evidence presented by the code enforcement officer or other official of the city tending to show that a violation occurred and that the person named on the NOV is the responsible party shall establish a prima facie case that a violation, as charged, actually existed and that the person named in the NOV is the responsible party for the violation. The burden of proof shall then be on the responsible party to refute such evidence. The standard to be applied for meeting such burden shall be a preponderance of evidence.

3. The hearing officer shall consider written or oral testimony or other evidence regarding the violation presented by the responsible party, the owner, the occupant, any officer, employee, or agent of the city, and any other interested party. Evidence offered during a hearing must be credible and relevant in the estimation of the hearing officer, but formal rules governing the presentation and consideration of evidence shall not apply.

4. The hearing officer shall conduct the hearing, order the presentation of evidence, and make any rulings necessary to address procedural issues presented during the course of the hearing.

5. After receiving all of the evidence presented, the hearing officer may then deliberate and consider what action, if any, should be taken, or may adjourn the hearing and take the matter under consideration. (Ord. 659-2008 § 2 (part), 2008)

1.14.100 Decision of the hearing officer and abatement order.

A. Within ten days following the conclusion of the hearing, the hearing officer shall make a decision regarding the issues presented during the course of the hearing, and the decision shall be based on a preponderance of the evidence. After making a decision, the hearing officer may issue an abatement order. If the hearing officer finds that no violation occurred, that the violation was corrected within the specified time period, or that the person cited is not the responsible party, the hearing officer shall issue an administrative order to reflect those facts, and the city will promptly refund the amount of any penalty deposited.

B. The responsible party and any interested party requesting a copy of an abatement order or administrative order shall be served with a copy of said order in the same manner as used for service of a notice of hearing as described in Section 1.14.020(B). Proof of service of the abatement order or administrative order shall be certified by a written declaration under penalty of perjury executed by the person effecting service, declaring the date, time, and manner that service was made.

C. An abatement order shall become effective and enforceable immediately after announcement or service of such order unless the order includes a later effective date. It shall include a statement of the right to have the order judicially reviewed in the manner and in the time frames specified in Section 1.14.110. Unless otherwise ordered by a court of competent jurisdiction, enforcement of the abatement order shall not be stayed pending judicial review thereof.

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

1. Impose or uphold a penalty, subject to Government Code Sections 36900(b) and 53069.4.

2. Issue a “cease and desist order” requiring the responsible party, or any agent, representative, employee, or contractor of the responsible party, to immediately stop any act, conduct, or condition that is a violation of this code. A cease and desist order issued pursuant to this section shall be effective upon issuance and shall be served on the responsible party in the manner specified in Section 1.14.020(B).

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

4. Require the responsible party, or authorize the city, to restore a site or location that has been damaged or disturbed as a result of a violation of this code to a pre-violation condition. Any order authorizing the city to undertake restoration efforts shall include provisions for the city to recover all restoration costs and expenses, including administrative costs, from the responsible party.

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

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

7. Authorize the city to abate or cause the abatement of a nuisance condition where the responsible party has refused or has otherwise neglected or is unable to take steps to correct or eliminate said conditions. The abatement order shall specify that if the city undertakes to abate or eliminate any nuisance condition as provided in Section 1.11.030, the city shall be entitled to recover all costs of abatement incurred in performing such work and other costs necessary to enforce the order. Such costs may be recovered by the city as a personal obligation and/or through a lien or a special assessment on the affected property as provided in Section 1.14.140.

8. Sustain, modify, or overrule an NOV issued by a code enforcement officer.

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

E. The city may seek to enforce any abatement order by confirmation from a court of competent jurisdiction. Any abatement order that is judicially confirmed may be enforced through all applicable judicial enforcement measures, including, without limitation, contempt proceedings upon a subsequent violation of such order. (Ord. 659-2008 § 2 (part), 2008)

1.14.110 Judicial review.

A. Any responsible party who is aggrieved by a decision of a hearing officer, or of a board, commission, department, agency, or person authorized to render such a decision on behalf of the city pursuant to Chapters 1.10 through 1.15, and who has exhausted the administrative remedies provided in this code, or any other applicable law, shall have the right to seek judicial review of such decision by filing a petition for writ of mandate in accordance with Code of Civil Procedure Section 1094.5. A petition for writ of mandate must be filed within ninety days after the administrative decision becomes final (as determined in Code of Civil Procedure Section 1094.6). Notwithstanding these time limits, where a shorter time limitation is provided by any other law, including that set forth in Government Code Section 53069.4 (see subsection E of this section), such shorter time limit shall apply.

B. Written notice of the time limitation in which a party may seek judicial review of an abatement order shall be given to all responsible parties in the matter by the city in substantially the following form:

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

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

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

E. Any responsible party against whom a penalty has been imposed and who has exhausted the administrative remedies provided in this code or other applicable law may obtain judicial review of said penalty pursuant to Government Code Section 53069.4 by filing an appeal with the Sonoma County superior court, subject to the time limits described therein. Any such appeal shall be filed as a limited civil case. Written notice of the subject time limits shall be given to all responsible parties against whom a penalty is imposed in substantially the following form:

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

(Ord. 659-2008 § 2 (part), 2008)

1.14.120 Recovery of costs of abatement.

The city may elect to recover its costs to abate nuisance conditions or other code violations, including, without limitation, the costs of any appeal hearing or OSC hearing (including staff time necessary to prepare for and attend an appeal hearing or OSC hearing), any re-inspections required to determine or confirm that compliance has been achieved, production of all staff reports, environmental tests or measurements that are deemed necessary or appropriate by the code enforcement officer, third party inspection(s) or consultant services as deemed necessary by the city and any attorneys’ fees incurred in pursuing enforcement. If the city elects at the initiation of an administrative enforcement action or proceeding to seek recovery of attorneys’ fees, pursuant to Government Code Section 38773.5(b), then the prevailing party shall be entitled to recover attorneys’ fees in an amount not to exceed the amount of attorneys’ fees incurred by the city in such action. Recovery by the city of the costs of enforcement shall be in addition to any penalty imposed on the responsible party. (Ord. 659-2008 § 2 (part), 2008)

1.14.130 Cost accounts.

A. If any order authorizes the city to abate a nuisance condition or other code violations, the city official responsible for such abatement shall keep an accounting of the cost of abatement along with any other recoverable costs, and shall render a written report (“the cost report”) to the city council showing the cost of removing and/or abating the nuisance condition and describing the work performed. The cost report shall be agendized as a “public hearing” item by the city clerk at a subsequent city council meeting following the required notice periods.

B. At least ten days prior to the submission of the cost report to the city council, the city clerk shall cause a copy of the cost report to be mailed to the responsible party and/or to the owner of the property where the nuisance condition existed. If the nuisance concerns real property, a copy of the cost report shall be mailed to the owner(s) at the address shown for such owner(s) in the most recent tax assessor’s records. The city clerk shall also cause a notice of hearing to be mailed to the same person(s) or entity receiving a copy of the cost report. The notice of hearing shall set forth the date, time and location of the city council meeting at which the cost report shall be submitted to the city council.

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

D. At the hearing on the cost report, the city council may also authorize the imposition of a lien or special assessment on the property where the nuisance condition was abated by the city pursuant to Section 1.14.140.

E. A copy of a council order confirming costs against the responsible party shall be served on the responsible party within ten days of such order in the manner described in Section 1.14.020(B). Any responsible party against whom costs of abatement and any other costs are awarded by council order shall have the right to seek judicial review of such order by filing a petition for writ of mandate in accordance with Code of Civil Procedure Section 1094.5. (Ord. 659-2008 § 2 (part), 2008)

1.14.140 Imposition of liens or special assessments.

A. Any penalty imposed for violations of this code, including any other codes or statutes that have been incorporated into this code, any administrative costs or other expenses of enforcement, and the cost or expenses associated with the abatement of a nuisance condition that are levied in accordance with Chapters 1.10 through 1.15, whether imposed or levied judicially or administratively, may be enforced by the recordation of a lien against the property of the owner of the real property where the nuisance condition existed. Any such lien shall be recorded in the office of the Sonoma County recorder, and from the date of recording shall have the force, effect, and priority of a judgment lien. A lien authorized by this subsection shall specify the amount of the lien, that the lien is being imposed on behalf of the city, the date of the NOV and abatement order, the street address, legal description and assessor’s parcel number of the parcel on which the lien is imposed, and the name and address of the record owner of the parcel.

B. Before recordation of a lien authorized by this section, a notice of lien shall be served on the responsible party and/or owner of record of the parcel of land on which the nuisance existed, based on the last equalized assessment roll or the supplemental roll, whichever is more current. The notice of lien shall be served in the same manner as a summons in a civil action. If the owner of record cannot be found, after a diligent search, the notice of lien may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in Sonoma County.

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

D. As an alternative to the lien procedure described in this section, any penalty imposed for violations of this code, including any other codes or statutes that have been incorporated into this code, and any costs of enforcement or administration or expenses associated with the abatement of any nuisance levied in accordance with Chapters 1.10 through 1.15, whether imposed or levied judicially or administratively, may become a special assessment against the real property where the nuisance condition(s) existed. Any special assessment imposed on real property pursuant to this section may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as is provided for ordinary municipal taxes. Notice of any special assessment that is levied on real property pursuant to this section shall be given to the owner by certified mail, and shall contain the information set forth in Government Code Section 38773.5(c). All laws applicable to the levy, collection, and enforcement of municipal taxes, including those described in Government Code Section 38773.5(c), shall be applicable to such special assessment. (Ord. 659-2008 § 2 (part), 2008)