Chapter 2.58
ADMINISTRATIVE REMEDIES
Sections:
2.58.050 Extension of time to perform work.
2.58.090 Hearing to be conducted.
2.58.100 Inspection of the premises.
2.58.120 Administrative order.
2.58.140 Administrative penalties.
2.58.150 Administrative costs.
2.58.170 Failure to comply with administrative order.
2.58.180 Right of judicial review.
2.58.190 Report of compliance after administrative order.
2.58.010 Applicability.
A. This chapter provides 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 chapter shall be at the sole discretion of the city.
C. As used in this chapter, “violation” includes noncompliance with conditions of approval of a discretionary permit. (Ord. 993 § 2, 2011)
2.58.020 Compliance order.
A. Whenever an enforcement officer determines that a continuing 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 chapter 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 at which administrative penalties shall begin to accrue if compliance with the order has not been achieved; and
5. Either a copy of this chapter or an explanation of the consequences of noncompliance with this chapter and a description of the hearing procedure and appeal process. (Ord. 993 § 2, 2011)
2.58.030 Method of service.
A. All notices required under this chapter, unless otherwise specified, may be given either by personal delivery to the person to be notified or by certified mail, in a sealed envelope with postage prepaid, addressed to the person to be notified at his or her last known business or residence address as the same appears in the last equalized county assessment roll or other records pertaining to the matter to which such notice is directed. If the person to be notified is not present for personal delivery, if certified mail is refused, if certified mail delivery is not successful, or if the location of the person to be notified cannot be determined after diligent effort, notice may be accomplished by posting in a conspicuous place at the affected property and by first class U.S. mail sent to the person’s last known address. Service by mail shall be deemed completed at the time of deposit in the United States mail receptacle.
B. Where real property is involved, written notice shall be mailed to the property owner at the address 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 chapter shall not affect the validity of any proceedings taken under this chapter. (Ord. 993 § 2, 2011)
2.58.040 Notice and order.
In the case of a compliance order issued pursuant to SMC 2.58.020, the building official shall issue a notice and order directed to the record owner of the building.
A. The notice and order shall contain all of the following:
1. The street address and a legal description sufficient for identification of the premises upon which the building is located;
2. A statement that the building official has found the building to be dangerous, with a concise description of the conditions found to render the building dangerous under the applicable provisions of this code;
3. A statement of the required action, as determined by the building official:
a. If the building official has determined that the building or structure must be repaired, the order shall require that all necessary permits be secured and the work physically commenced within such time (not to exceed sixty days from the date of the order) and completed within such time as the building official shall determine is reasonable under all of the circumstances,
b. If the building official has determined that the building or structure shall be vacated, the order shall require that the building or structure shall be vacated within a time certain from the date of the order as determined by the building official to be reasonable,
c. If the building official has determined that the building or structure shall be demolished, the order shall require that the building be vacated within such time as the building official shall determine is reasonable (not to exceed sixty days from the date of the order); that all required permits be secured within sixty days from the date of the order; and that the demolition be completed within such time as the building official shall determine is reasonable;
4. Statements advising that if any required repair or demolition work (without vacation also being required) is not commenced within the time specified, the building official:
a. Shall order the building vacated and posted to prevent further occupancy until the work is completed, and
b. May proceed to cause the work to be done and charge the costs thereof against the property or its owner;
5. Statements advising that:
a. Any person having any record title or legal interest in the building may appeal from the notice and order or any action of the building official to a hearing officer, provided the appeal is made in writing as provided in this chapter and filed with the building department within thirty days from the date of service of such notice and order, and
b. Failure to appeal shall constitute a waiver of all right to an administrative hearing and determination of the matter.
B. The notice and order, and any amended or supplemental notice and order, shall be served upon the record owner and posted on the property; and one copy thereof shall be served on each of the following if known to the building official or disclosed from official public records:
1. The holder of any mortgage or deed of trust or other lien or encumbrance of record;
2. The owner or holder of any lease of record; and
3. The holder of any other estate or legal interest of record in or to the building or the land on which it is located.
C. The failure of the building official to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served or relieve any such person from any duty or obligation imposed by the provisions of this section. (Ord. 993 § 2, 2011)
2.58.050 Extension of time to perform work.
Upon receipt of an application from the person required to conform to the order and by agreement of such person to comply with the order if allowed additional time, the building official or planning director may grant an extension of time, not to exceed an additional one hundred twenty days, within which to achieve compliance. (Ord. 993 § 2, 2011)
2.58.060 Compliance achieved.
If the enforcement officer determines that all violations have been corrected within the time specified in the compliance order, no further action shall be taken. (Ord. 993 § 2, 2011)
2.58.070 Hearing.
A. If full compliance is not achieved within the time specified in the compliance order, the city manager’s office shall set a hearing on the compliance order.
B. The city manager or his designee shall designate a hearing officer as provided in SMC 2.56.070.
C. All hearings shall be open and public. (Ord. 993 § 2, 2011)
2.58.080 Notice of hearing.
A. The city manager’s office shall cause a written notice of hearing to be served as specified in SMC 2.58.030.
B. Every notice of hearing on a compliance order shall contain the date, time and place at which the hearing shall be conducted by the hearing officer and a statement that the hearing officer may request an inspection of the building or premises as part of the hearing as provided in SMC 2.58.100.
C. Each hearing shall be set for a date not less than ten days nor more than sixty days from the date of the notice of hearing unless the enforcement officer determines that the matter is urgent or that good cause exists for an extension of time.
D. The hearing shall provide full opportunity of a person subject to a compliance order to object to the determination that a violation has occurred or has continued to exist. Failure of any person subject to a compliance order to appear at the hearing shall constitute a failure to exhaust administrative remedies. (Ord. 993 § 2, 2011)
2.58.090 Hearing to be conducted.
A. At the place and time set forth in the notice of hearing, the hearing officer shall conduct a hearing on the compliance order issued pursuant to SMC 2.58.020.
B. The hearing officer shall consider any written or oral evidence consistent with its rules and procedures regarding the violation and compliance by the violator or real property owner, including but not limited to:
1. The report of the enforcement officer;
2. Objections or protests of property owners or other responsible or interested persons who may be held liable for the amounts owed;
3. Evidence on whether the person before the hearing officer 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. (Ord. 993 § 2, 2011)
2.58.100 Inspection of the premises.
The hearing officer may inspect any building or premises involved in the compliance order during the course of the hearing; provided, that:
A. Notice of such inspection shall be given to the parties before the inspection is made;
B. The parties are given an opportunity to be present during the inspection; and
C. The hearing officer shall state for the record upon completion of the inspection the material facts observed. Each party then shall have a right to rebut or explain the matters so stated by the hearing officer. (Ord. 993 § 2, 2011)
2.58.110 Findings and order.
A. Within thirty days following the conclusion of the hearing, the hearing officer 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.
B. The hearing officer shall issue written findings on each violation. Findings shall be supported by evidence received at the hearing.
C. If the hearing officer 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 hearing officer shall issue an administrative order.
D. If the hearing officer finds that no violation has occurred or that the violation was corrected within the time period specified in the compliance order, the hearing officer shall issue a finding of those facts. (Ord. 993 § 2, 2011)
2.58.120 Administrative order.
If the hearing officer determines that a violation occurred which was not corrected within the time period specified in the compliance order, the hearing officer shall issue an administrative order 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 SMC 2.58.140;
C. Administrative costs as provided in SMC 2.58.150; and
D. 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 responsible party, and may further result in the city collecting the monies due as a personal obligation of the responsible party. (Ord. 993 § 2, 2011)
2.58.130 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 following the issuance of a warrant by a court of competent jurisdiction, 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 or 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 the actual cost of abatement, administrative costs, and any other costs actually and reasonably incurred by the city for purposes associated with the abatement.
C. The cost of abatement may be enforced by use of all available legal means including, but not limited to, as a personal obligation against the property owner or as a lien or special assessment upon the property.
D. The prevailing party in any proceeding conducted pursuant to this chapter and associated with the abatement of a public nuisance shall be entitled to recovery of attorneys’ fees incurred in any such proceeding. (Ord. 993 § 2, 2011)
2.58.140 Administrative penalties.
A. The hearing officer may impose administrative penalties for the violation of any provision of this code in an amount no less than twenty-five dollars per day and no more than five hundred dollars per day for each ongoing violation, except that the total administrative penalty shall not exceed fifty thousand dollars, exclusive of administrative costs and restitution for compliance reinspections, for any related series of violations.
B. In determining the amount of the administrative penalty, the hearing officer 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 economic impact of the penalty on the ability of the violator to come into compliance;
7. The impact of the violation on the community; and
8. Such other factors as justice may require.
C. Administrative penalties imposed by the hearing officer shall accrue from the date specified in the compliance order and shall cease to accrue on the date the violation is corrected as determined by the enforcement officer or the hearing officer. 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 hearing officer shall be due by the date specified in the administrative order.
E. If the violation is not corrected as specified in the 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 of this section.
F. If the violator gives notice to the enforcement officer that the violation has been corrected and if the enforcement officer finds that compliance has been achieved, the enforcement officer shall deem the date the written notice was postmarked or personally delivered to the enforcement officer or the date of the final inspection, whichever first occurred, to be the date the violation was corrected. The violation shall be deemed corrected on the date of final inspection if no prior written notice is provided to the enforcement officer. (Ord. 993 § 2, 2011)
2.58.150 Administrative costs.
A. The hearing officer 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 hearing officer 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 reinspections necessary to enforce the compliance order. (Ord. 993 § 2, 2011)
2.58.160 Force and effect.
A. The administrative order of the hearing officer shall be the final decision of the city.
B. The administrative order shall have the same force and effect as a resolution of the city council for the purpose of pursuing any collection or enforcement action to obtain payment of the amounts owed to the city. (Ord. 993 § 2, 2011)
2.58.170 Failure to comply with administrative order.
If unpaid as of the date specified in the administrative order, the administrative penalties and administrative costs assessed by the hearing officer shall be collected by the city by use of all available legal means, and may be enforced as a personal obligation of the violator. (Ord. 993 § 2, 2011)
2.58.180 Right of judicial review.
The decision of the hearing officer shall be final. Any person aggrieved by an administrative order of the hearing officer may obtain review of the administrative order in the superior court by filing with the court a petition for writ of mandate within ninety days pursuant to California Code of Civil Procedure Section 1094.6, as it may be amended. (Ord. 993 § 2, 2011)
2.58.190 Report of compliance after administrative order.
After a compliance order has been sustained by the hearing officer, if the enforcement officer determines that compliance has been achieved, the enforcement officer shall prepare a report indicating such compliance. A copy of the compliance report shall be served on the violator. (Ord. 993 § 2, 2011)
2.58.200 Compliance dispute.
A. If the enforcement officer 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 hearing officer by filing a request for a hearing with the city manager’s office.
B. The hearing shall be noticed and conducted in the same manner as a hearing on a compliance order provided in SMC 2.58.090. (Ord. 993 § 2, 2011)