Banning Municipal Code Ch. 1.32 Cost Recovery

This chapter is intended to create a comprehensive cost recovery program as authorized by law for the abatement of public nuisances and the enforcement of this Code. The provisions of this chapter shall supersede and replace any inconsistent provisions contained within this Code.

(Ord. No. 1598, § 6, 2-27-24)

For purposes of this chapter, the following definitions shall apply, unless the context clearly indicates otherwise:

"Abatement costs" means and includes all costs, expenses, fines, and fees, such as administrative expenses, administrative fines, civil fines, penalties, staff time, variable costs, fixed costs, inspection costs, investigation costs, enforcement costs, abatement costs, litigation fees, litigation costs, hearing costs, attorneys' fees and costs, and all other costs and expenses related to, arising out of, or incurred by the city relating to any enforcement action pursuant to this Code to the fullest extent permitted by law.

"City manager's designee" means and includes the city manager or the person designated by the city manager to fulfill the responsibilities required by this chapter.

"Collection costs" means any costs, expenses, or fees, including attorneys' fees, that are incurred by the city to enforce or collect upon any unpaid abatement costs or any other amounts owed to the city or the public pursuant to this Code.

"Decision" means the decision of the hearing officer at the conclusion of an administrative hearing held in accordance with this chapter.

"Enforcement official" means and includes any city employee or agent of the city authorized by this Code, the city council, or the city manager to enforce any provision of this Code.

"Hearing costs" means and includes all costs, expenses, and fees, including gearing officer fees and attorneys' fees, related to any administrative hearing held pursuant to this chapter.

"Interested party" or "interested parties" means and includes each person or entity with a legal interest in any nuisance property that is the subject of a nuisance abatement action.

"Invoice" means the invoice identifying all abatement costs that the city is entitled to recover related to a nuisance abatement action.

"Nuisance" and "public nuisance" means and includes any violations of this Code, any adopted code, any state or federal law, or any other unlawful or nuisance condition.

"Nuisance abatement action" means any code enforcement activity or nuisance abatement activity taken by the city, including, but not limited to, any legal action, administrative action, or civil action intended to cause or compel compliance with, or to enforce any, provisions of this Code, any adopted codes, or any applicable state or federal laws. For purposes of the city's cost recovery rights, a "nuisance abatement action" shall not include any criminal action or proceeding.

"Nuisance property" means the parcel of real property containing nuisance conditions that is the subject of a nuisance abatement action.

"Responsible party" or "responsible parties" means and includes all parties responsible for causing, allowing, or maintaining a public nuisance, including, but not limited to, the owners, trustees, managers, custodians, tenants, lessees, licenses, beneficiaries, and occupants of the nuisance property upon which a public nuisance was caused, allowed, or maintained.

"Requesting party" means and includes any responsible party or interested party to whom an invoice has been issued that properly requests a hearing on the amount of abatement costs as required by this chapter.

(Ord. No. 1598, § 6, 2-27-24)

The city is entitled, and is hereby authorized, to recover all abatement costs related to, arising out of, or incurred by the city as a result of any nuisance abatement action to the fullest extent permitted by law. Each responsible party shall be jointly and severally liable to the city for all the city's abatement costs.

(Ord. No. 1598, § 6, 2-27-24)

If the city elects at the initiation of any nuisance abatement action to seek attorneys' fees, the prevailing party in such nuisance abatement action shall be entitled to recover its reasonable attorneys' fees, not to exceed the amount of reasonable attorneys' fees incurred by the city in the nuisance abatement action. In the event the city prevails, the attorneys' fees awarded to the city shall be included as abatement costs. Non-prevailing parties shall be jointly and severally liable for all attorneys' fees and costs owed to the prevailing party. The city shall be deemed the prevailing party in a nuisance abatement action if a nuisance condition is proven to have existed on a nuisance property when the city initiated its nuisance abatement action even if the nuisance condition is cured prior to the conclusion of the nuisance abatement action.

(Ord. No. 1598, § 6, 2-27-24)

In addition to any other remedy set forth in this Code or provided by law, the city is authorized to initiate any administrative or civil action to recover all abatement costs, and to pursue recovery of all abatement costs in any nuisance abatement action to the fullest extent permitted by law. Each of the responsible parties shall be jointly and severally liable for all abatement costs. Unpaid abatement costs may be recovered as a lien and special assessment against the nuisance property, as provided in this chapter.

(Ord. No. 1598, § 6, 2-27-24)

A. The administrative cost recovery procedures provided in this chapter are in addition to all other remedies and cost recovery options available to the city by law or in equity.

B. In accordance with the provisions of this chapter, the city shall serve upon each responsible party and each interested party an invoice identifying all abatement costs related to a nuisance abatement action.

C. Any responsible party or interested party to whom an invoice has been issued shall have forty-five days from the date of the invoice to remit full payment of the invoice to the city. Payment shall be submitted to the city as specified in the invoice. The invoice shall further indicate that any unpaid amounts may become a lien and special assessment against the nuisance property.

D. Any responsible party or interested party to whom an invoice has been issued may, within fifteen days from the date of the invoice, request a hearing on the amount of abatement costs. A request for hearing must be made in writing to the city clerk and contain the following information:

1. The requesting party's full legal name.

2. The requesting party's mailing address for service.

3. The requesting party's phone number.

4. The amount of abatement costs disputed.

5. The specific legal and factual grounds for all disputes of the invoice and abatement costs.

E. The failure of any responsible party or interested party to properly and timely request a hearing shall constitute a waiver by that party of that party's right to contest the invoice and the abatement costs, a waiver by that party of that party's right to a hearing, a failure by that party to exhaust that party's administrative remedies, a bar to any further challenge to the invoice and abatement costs by that party, and an admission by that party to that party's liability for the abatement costs as assessed.

(Ord. No. 1598, § 6, 2-27-24)

A. If a hearing is timely and properly requested, the city manager's designee shall appoint a neutral and impartial hearing officer to hold and conduct an administrative hearing in accordance with this chapter. A hearing officer shall be a neutral third-party contracted by the city and selected in a manner that avoids the potential for any bias against any parties to the hearing. The hearing officer's compensation, if any, shall be paid by the city; however, the non-prevailing parties shall be jointly and severally liable to reimburse the city for the costs of the hearing and the hearing officer's compensation. The hearing officer's compensation shall not be directly or indirectly conditioned upon the outcome of the hearing.

B. The city shall endeavor to set a hearing within sixty days from the date that a timely and proper hearing request is filed, or upon any other date mutually agreed upon by all parties to the hearing. The city shall provide notice of the date, time, and location of the hearing to all requesting parties at least ten days prior to the hearing. The hearing notice shall specify that failure by a requesting party to appear at the hearing will constitute a waiver of that party's right to contest the invoice and the abatement costs, a waiver of that party's right to a hearing, a failure by that party to exhaust their administrative remedies, a bar to any further challenge to the invoice and the abatement costs by that party, and an admission to that party's liability for the abatement costs as assessed. Failure by the city to strictly comply with this provision shall not invalidate the invoice, the decision, the hearing notice, the administrative hearing, nor the city's cost recovery rights. The hearing officer shall hold an informal administrative hearing. Formal rules of evidence shall not apply to this hearing; however, there shall be an opportunity to present testimony, documentary evidence, and other evidence to the hearing officer, and to cross-examine witnesses. Only the requesting parties and the city may participate in the hearing.

C. Administrative citations, administrative orders, administrative decisions, criminal convictions, civil judgments, and other similar proceedings, unless being actively and validly contested or appealed, shall be conclusive as establishing the adjudicated matters, such as the identity of the responsible parties and the existence of the nuisances, and those adjudicated matters shall not be subject to dispute at the abatement costs hearing.

D. The hearing officer may continue the hearing and request additional information as is reasonable and necessary.

E. Not later than thirty days after the date on which the administrative hearing concludes, the hearing officer shall issue a written decision approving, denying, or modifying the amount of the abatement costs that the city is entitled to recover. The hearing officer's decision shall be final. The city shall serve notice of the hearing officer's decision in accordance with this chapter. Failure by the hearing officer to strictly comply with this provision shall not invalidate the invoice nor the decision.

F. The hearing costs shall be advanced by the city; however, the non-prevailing parties shall be ultimately liable to reimburse the city for the hearing costs. If any cost recovery is upheld, even in part, the city shall be the prevailing party, and the requesting parties shall be liable to the city for the hearing costs in proportion to the amount of abatement costs upheld by the hearing officer. If cost recovery is entirely denied, the requesting parties shall be the prevailing parties and shall not be liable to reimburse the city for the hearing costs.

G. If the city is the prevailing party, the hearing officer's decision shall order the responsible parties to pay the confirmed amount of abatement costs to the city within thirty days, and shall specify that any confirmed abatement costs not paid within thirty days shall become a lien and special assessment against the nuisance property.

(Ord. No. 1598, § 6, 2-27-24)

A. Whenever a notice or document is required to be served by this chapter, unless specifically provided otherwise, it may be served by any one of the following methods:

1. Personal service on the party.

2. First-class or certified mail to the party at that party's last known address.

3. By posting in a conspicuous place at the entrance to the nuisance property.

4. For any party registered with the secretary of state, by certified mail to that party's agent for service of process at the address registered with the secretary of state, or as otherwise permitted by law. For any such party required to register with the secretary of state that has not designated an agent for service of process with the secretary of state, then a notice may be served on that party by certified mail to the secretary of state.

5. By email when an email address is provided by that party.

6. In any other manner reasonably calculated to effectuate notice.

B. Service by posting shall be deemed effective at the time of posting. Service by mail shall be deemed effective upon deposit in the mail.

C. The failure of any party to receive any notice or document served in accordance with this chapter shall not affect the validity of the notice or document, the validity of its service, any proceeding conducted pursuant to that notice or document, nor the city's cost recovery rights.

D. Unless otherwise provided in the invoice, all notices and documents required to be served on the city pursuant to this chapter must be personally served or mailed to the city clerk's office. The notice or document must be received by the city within the time specified for service.

(Ord. No. 1598, § 6, 2-27-24)

A. If the abatement costs are upheld, in full or in part, by the hearing officer, or if the time for requesting a hearing has elapsed and the invoice has not been paid in full within the time designated by this chapter, the city may record a nuisance abatement lien against the nuisance property for any unpaid amount.

B. Prior to recording a nuisance abatement lien, the city shall serve notice of the lien on all persons or entities with a recorded interest in the nuisance property. In addition, the owners of record shall be served with notice of the lien at the address provided in the last equalized assessment roll or the supplemental roll for the nuisance property, whichever is more current, in the same manner as a summons in a civil action in accordance with Code of Civil Procedure, part 2, title 5, chapter 4, article 3 (commencing with Section 415.10). If the owner of record cannot be found after diligent search, notice of the lien may be served by posting a copy of the notice in a conspicuous place upon the nuisance property for a period of ten days.

C. In the event that the lien is discharged, released, or satisfied, then notice of the discharge, release, or satisfaction shall be recorded on the nuisance property.

D. If the lien is not satisfied within ninety calendar days, the city may foreclose on the lien.

E. Notice of the lien shall be in the form substantially as follows:

NOTICE OF ABATEMENT LIEN

(Claim of City of Banning)

Pursuant to Banning Municipal Code ("BMC") Chapter 1.32, on or about [MONTH] [DAY], [YEAR], the City of Banning ("City") instituted a nuisance abatement action against the herein described parcel of real property intended to cause or compel compliance with the BMC. The City has incurred costs, expenses, and fees that have not been reimbursed by the responsible parties. Accordingly, the City is entitled to, and hereby claims, a lien against the nuisance property in the amount of $[AMOUNT], plus interest, until this amount has been paid in full and discharged of record. The record owner of the nuisance property is [RECORD OWNER NAME]. The nuisance property is the parcel of real property located in the City of Banning, County of Riverside, State of California at [STREET ADDRESS], Banning, California [ZIP], Assessor's Parcel Number [APN]. The legal description for the nuisance property is:

[LEGAL DESCRIPTION]

Dated: [MONTH] [DAY], [YEAR]

City Manager's Designee City of Banning, California

(Ord. No. 1598, § 6, 2-27-24)

A. If the abatement costs are upheld, in full or in part, by the hearing officer, or if the time for requesting a hearing has elapsed and the invoice has not been paid in full within the time designated by this chapter, the city may levy a special assessment against the nuisance property for any unpaid amount. The special assessment may also be recorded against the nuisance property. The recording shall specify that the nuisance property may be sold by the county after three years by the tax collector for the unpaid delinquent assessments.

B. Prior to recording, the city shall serve notice by certified mail of the special assessment on all persons or entities with a recorded interest in the nuisance property.

C. Notice of the special assessment shall be provided to the tax collector for the county to add to the next regular tax bill levied against the nuisance property, and it shall be collected at the same time and in the same manner as ordinary taxes are collected, subject to the same penalties and procedures under foreclosure and sale in case of delinquency as provided for other taxes.

D. After recordation, the special assessment may be foreclosed on as a lien in the manner and means provided by law.

E. The recorded special assessment shall be in the form substantially as follows:

NOTICE OF SPECIAL ASSESSMENT LIEN

(Claim of City of Banning)

Pursuant to Banning Municipal Code ("BMC") Chapter 1.32, on or about [MONTH] [DAY], [YEAR], the City of Banning ("City") instituted a nuisance abatement action against the herein described parcel of real property intended to cause or compel compliance with the BMC. The City has incurred costs, expenses, and fees that have not been reimbursed by the responsible parties. Accordingly, the City is entitled to, and hereby claims, a special assessment lien against the nuisance property in the amount of $[AMOUNT], plus interest, until this amount has been paid in full and discharged of record. The record owner of the nuisance property is [RECORD OWNER NAME]. The nuisance property is the parcel of real property located in the City of Banning, County of Riverside, State of California at [STREET ADDRESS], Banning, California [ZIP], Assessor's Parcel Number [APN]. The legal description for the nuisance property is:

[LEGAL DESCRIPTION]

Dated: [MONTH] [DAY], [YEAR]

City Manager's Designee City of Banning, California

(Ord. No. 1598, § 6, 2-27-24)

Upon initiating any nuisance abatement action, the enforcement official may record a notice of pendency of nuisance abatement action ("NoP") with the county recorder's office. The NoP shall identify the city's enforcement and cost recovery rights. Any costs associated with recording, or withdrawing, a NoP shall constitute abatement costs subject to recovery pursuant to this chapter.

(Ord. No. 1598, § 6, 2-27-24)

In addition to any other available remedies, the city may bring a civil action and obtain a judgment in the superior court for the purpose of collecting any unpaid abatement costs imposed pursuant to this chapter. That action may be filed as a small claims, limited civil, or unlimited civil case, depending on the amount at issue.

(Ord. No. 1598, § 6, 2-27-24)

The city is entitled to recover all collection costs incurred by the city to enforce or collect upon any unpaid abatement costs or any other amounts owed to the city or the public pursuant to this Code. The parties owing the amounts being collected shall be jointly and severally liable to the city for those collection costs. The liable parties shall be given notice and an opportunity to contest the collection costs in the same manner as for abatement costs pursuant to this chapter. Collection costs are subject to enforcement and collection in the same manner and means as abatement costs.

(Ord. No. 1598, § 6, 2-27-24)

The city is entitled to recover interest at the legal rate, currently ten percent per year, on any overdue abatement costs, collection costs, or other amounts owed to the city pursuant to this Code. The liable parties for the overdue amounts shall be jointly and severally liable for the interest as well. Interest is subject to enforcement and collection in the same manner and means as abatement costs."

(Ord. No. 1598, § 6, 2-27-24)