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HomeMy WebLinkAbout513 ORDINANCE NO. 513 AN ORDINANCE AMENDING TITLE 6, CHAPTER 5 AND SECTIONS 5-8.08 AND 12-2.207 OF THE LOS ALTOS HILLS MUNICIPAL CODE RELATED TO PUBLIC NUISANCE ABATEMENT COST RECOVERY WHEREAS, pursuant to California Government Code Section 38773.1, the City Council established procedures for abatement and cost recovery of certain public nuisance conditions in the Los Altos Hills Municipal Code Title 6, Chapter 5; and WHEREAS, California Government Code Section 38773.1 authorizes municipalities to record a lien or make a special assessment for the cost of public nuisance abatement; and WHEREAS, California Government Code Section 38773.5 provides for the recovery of reasonable attorneys' fees for the prevailing party in any action,administrative proceeding,or special proceeding to abate a nuisance; and WHEREAS,amending the Los Altos Hills Municipal Code to authorize the Town to choose to recover costs through the special assessment procedure and to allow recovery of attorneys' fees and personnel time would give the Town greater flexibility in recovering costs; and WHEREAS, the City Council wishes to amend Title 6, Chapter 5 of the Los Altos Hills Municipal Code to provide a special assessment cost recovery mechanism for all conditions constituting a public nuisance, and to update the provision on recovery of attorney's fees as statutorily permitted; and WHEREAS, the City Council wishes to amend Section 5-8.08 and 12-2.207 to reflect changes to Title 6, Chapter 5, and to establish a consistent abatement procedure for all public nuisances. NOW THEREFORE,the City Council of the Town of Los Altos Hills does hereby ordain as follows: Section 1. TITLE 6,CHAPTER 5 OF THE LOS ALTOS HILLS MUNICIPAL CODE IS HEREBY AMENDED TO READ AS FOLLOWS: Sec. 6-5.02. Notice to abate. Sec. 6-5.02 is hereby repealed and replaced with the following: (a) Upon discovery of any public nuisance as defined in Municipal Code 6-5.01, the City Manager or his or her designee shall serve a notice to abate to the property owner and any responsible person by certified mail. The notice shall also be posted on the subject property or building. • • (b)The notice to abate shall specify the property address,describe the nuisance and instruct the owner and/or possessor to abate that condition or activity. The notice shall further inform the owner and the possessor that if the nuisance is not abated within thirty(30)calendar days of service of the notice, the Town may abate the nuisance and require the owner and/or possessor to pay the cost of the abatement. The notice shall state that the property owner and/or possessor will receive at the conclusion of the enforcement case a summary of enforcement costs associated with the processing of the case. Cost of abatement shall include, but not be limited to: attorneys' fees and costs for the prevailing party,personnel costs,both direct and indirect,for administration and code enforcement,including,but not limited to,costs incurred in inspecting the property,costs incurred in documenting the nuisance, the actual expenses and costs of the Town in preparation of notices, specifications and contracts, and the cost of printing and mailing the notices and documents. The prevailing party shall be entitled to recovery of its attorneys' fees from the other party only if,at the outset of the action, the Town elects to recover its attorneys' fees. Any recovery of attorneys' fees pursuant to this section shall be subject to the terms and conditions set forth in subdivision(b) of Government Code section 38773.5 and any successor statutes thereto. (c)If the owner and/or possessor fail to pay such costs,those costs may be collected by the City Attorney, or be specially assessed to the parcel and shall be subject to the same collection procedures,including any lien,special assessment,penalty and sale procedures that are provided for delinquent taxes. (d)The notice shall further state that either the owner or the possessor,or both,may request a hearing to contest the abatement action and/or assessment of cost by filing a written request for a hearing within fifteen(15)days of service of the notice to abate with the Town officer who ordered the abatement.Failure to request this hearing within this time period shall waive any right to appeal the Town's action. Sec. 6-5.04. Abatement. Sec. 6-5.04 is hereby repealed and replaced with the following: (a) If, after notice of abatement and no request for hearing is timely made under Section 6- 5.03, and corrective action to abate the nuisance has not occurred within the time for requesting a hearing or any extension granted in writing by the City Manager,then the City Manager or his/her designee may order abatement to be done by Town personnel,or by a private licensed contractor. In appropriate circumstances,the City Manager shall request that the City Attorney obtain all necessary judicial approval for entry onto the subject premises for abatement purposes. (b)The costs shall be billed to the owner, as specified in Section 6-5.02 of this Code. Sec. 6-5.05 Notice of cost of abatement. Sec. 6-5.05 shall be replaced in its entirety by: • • (a) The City Manager or his or her designee shall keep an account of the costs for inspecting and abating the public nuisance and shall render an itemized report in writing showing the cost of abatement to the City Council. A copy of this report shall be served by certified mail to the owner(s) of said property, based on the last equalized assessment roll or the supplemental roll,whichever is more current, at least seven calendar days prior to submitting the same to the City Council, along with notice that the owner(s) may appeal the report of costs on the date of the City Council's consideration. The request for a hearing shall be made within ten days of receipt of the statement to the City Clerk or the right to hearing shall be deemed waived. (b) The City Council pass upon the report of such costs of abatement, together with any objections or protests, and determine the correctness and reasonableness of such costs. After the hearing,the City Council shall issue and serve a written decision upon the owner and any possessor of the property.The decision of the City Council shall be final and conclusive in the matter.The cost of abatement shall be billed to the owner and shall become due and payable within thirty days. Sec. 6-5.06(a) Special assessment procedure. Sec. 6-5.06(a) is hereby added to read as follows: (a) The City Council hereby authorizes the City Manager or his/her designee to file in the office of the county assessor a special assessment against the property on which the nuisance was abated, by mailing a certified copy of the City Council's resolution confirming abatement costs. (b) A notice in substantially the following form should accompany the City Manager or his/her designee's filing with the county assessor: NOTICE OF SPECIAL ASSESSMENT Under the authority of Government Code Sec.3 8773.5 and Sections to of the Los Altos Hills Municipal Code Code,the Town of Los Altos Hills did on ,abate a nuisance upon the real property hereafter described and then on , did assess the cost and incidental expenses of the abatement upon the real property and/or the costs of causing the owner or responsible person to abate the nuisance. The Town of Los Altos Hills claims a special assessment on the real property for the expense of doing the work in the amount of$ . This amount is a special assessment against the real property until it is paid, with interest at the rate of ten percent (10%)a year from ,(insert date of confirmation of statement),and discharged of record. The assessment 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 procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection, and enforcement of municipal taxes apply to this special assessment.The real property referred to above, and upon which the special assessment is claimed is that certain parcel of land situated within the Town of Los Altos Hills, County of Santa Clara, State of California,more particularly described as follows: TOWN OF LOS ALTOS HILLS Dated: By: Sec. 6-5.07 Nuisance abatement lien procedure. Sec. 6-5.07 is hereby added to read as follows: (a) In the alternative of a special assessment, the City Council hereby authorizes the City Manager or his/her designee to file and record a Notice of Abatement Lien on behalf of the Town in the event the owner and/or possessor of the property fails to pay the costs of abatement upon a thirty (30) day written demand for payment. (b)The Notice of Abatement Lien shall identify and set forth the last known address of both the record owner and the possessor of the parcel. The notice shall further set forth the date upon which the abatement of the nuisance was ordered and the date the abatement was completed.Finally, the notice shall describe the real property subject to the lien and the amount of the cost of abatement. (c)Recordation of a Notice of Abatement Lien under this provision shall have the same force and effect as recordation of an abstract of a money judgment governed by Section 697.340 of the Code of Civil Procedure and may be extended as provided in Sections 683.110 to 683.220,inclusive, of the Code of Civil Procedure. The lien created shall have the same priority as a judgment lien.on real property and shall continue in effect until released.An abatement lien created under this section may be released or subordinated in the same manner as any judgment lien on real property. (d)The City Council hereby authorizes the City Manager or his/her designee to compromise, subordinate or settle any lien imposed under this section in the amount of Ten Thousand and no/100ths ($10,000.00) Dollars or less. (e)Once payment in full is received by the Town for outstanding penalties and costs,the City Manager shall either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so that this notice may be recorded with the office of the county recorder. Such notice of satisfaction shall cancel the Town's lien. Section 2. TITLE 5,CHAPTER 8 OF THE LOS ALTOS HILLS MUNICIPAL CODE IS HEREBY AMENDED AS FOLLOWS: Sec. 5-8.08 Abatement by Town as nuisance. Sec. 5-8.08 is hereby repealed and replaced with the following: In the event the property owner receiving notice under Section 5-8.04 fails to either abate the graffiti or consent to abatement by the Town under Section 5-8.07,within the ten(10)day notice period,the Town may proceed to abate the graffiti under any applicable nuisance abatement procedure including,but not limited to,the nuisance abatement procedures provided in Chapter 5 of Title 6 of the Municipal Code, to include assessment of the costs of abatement against the owner and placement of an abatement lien. If the Town anticipates that the nuisance abatement procedures in Section 6-5.01 through 6-5.07 will be used,any notice required by Section 6-5.02 of this Code may be included in the notice specified by Section 5-8.04 so that only one ten(10) day notice period is required prior to abatement by the Town. Town employees, agents, volunteers and contractors supervised by the Town are expressly authorized to enter private property for purposes of abating graffiti under any nuisance abatement procedure. If the Town abates the graffiti, all reasonable efforts to minimize damage from such entry shall be taken by the Town, and any paint used to obliterate graffiti shall be as close as practicable to background color(s). Section 3. TITLE 12,CHAPTER 2 OF THE LOS ALTOS HILLS MUNICIPAL CODE IS HEREBY AMENDED AS FOLLOWS: Sec. 12-2.207 Public nuisances: Abatement Sec. 12-2.207 is hereby repealed and replaced with the following: When a public nuisance, as set forth in Section 10-2.206f this chapter, exists, it shall be subject to abatement procedures set forth in Chapter 5 of Title 6 of the Municipal Code. Section 4. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence,clause or phrase of the Ordinance is for any reason held to be unconstitutional,invalid,or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part hereof. The City Council hereby declares that it would have passed each section,subsection,subdivision,paragraph,sentence, clause phrase of the Ordinance irrespective of the fact that one or more of them would be declared unconstitutional or invalid. To this end,the provisions of the Ordinance are declared to be severable. Section 5. EFFECTIVE DATE AND PUBLICATION. This ordinance shall take effect thirty (30) days after adoption. Pursuant to the provisions of Government Code Section 36933, a summary of this ordinance shall be prepared by the City Council's designee. At least five(5) days prior to the Council meeting at which this ordinance is scheduled to be adopted,the City Clerk shall (1)publish the summary in a newspaper of general circulation,and(2)post in the City Clerk's Office a certified copy of this ordinance. Within fifteen(15) days after the adoption of this ordinance,the City Clerk shall (1) publish the summary in a newspaper of general circulation, and(2)post in the City Clerk's Office a certified copy of the full text of this ordinance along with the names of those City Council members voting for and against this ordinance or otherwise voting. INTRODUCED: November 13, 2008 PASSED: December 11, 2008 AYES: Mayor Mordo, Mayor Pro Tem Warshawsky, Councilmember Jones, Councilmember Kerr and Councilmember O'Malley NOES: None ABSTENTIONS: None ABSENT: None BY: Mayor AT TE T: City-Cler l , 1163724 .1