Chowchilla Municipal Code Ch. 1.20 Cost Recovery

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

(Ord. No. 483-17, § 3, 6-27-2017)

[The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:]

"City administrator's designee" shall refer to the city administrator or the person designated by the city administrator to fulfill the responsibilities required by this chapter.

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

"Hearing officer" shall refer to the neutral and impartial hearing officer appointed to hold and conduct a hearing in accordance with this chapter.

"Interested party" or "interested parties" shall refer to each person or entity with a recorded interest in the nuisance property that is the subject of a nuisance abatement action.

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

"Nuisance" and "public nuisance" shall include any violations of this code, state or federal law, or any other unlawful condition.

"Nuisance abatement action" shall refer to any code enforcement activity or nuisance abatement activity taken by the city, including, but not limited to, any legal action, administrative action, criminal 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.

"Nuisance abatement costs" shall refer to all fines, costs, expenses, and fees, including, but not limited to, all 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, attorneys' fees and costs, and all other costs and expenses related to, arising out of, or incurred by the city in connection with any nuisance abatement action.

"Nuisance property" shall refer to the property containing nuisance conditions that is the subject of a nuisance abatement action.

"Responsible party" or "responsible parties" shall refer to all parties responsible for causing, allowing, or maintaining a public nuisance, possibly including, but not limited to, the owners, managers, tenants, and occupants of the nuisance property upon which a public nuisance was caused, allowed, or maintained.

(Ord. No. 483-17, § 3, 6-27-2017)

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

(Ord. No. 483-17, § 3, 6-27-2017)

The prevailing party in any nuisance abatement action may recover its reasonable litigation costs and attorneys' fees from any non-prevailing party. In no case, however, shall an award of attorneys' fees to the prevailing party exceed the amount of reasonable attorneys' fees incurred by the city. 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. 483-17, § 3, 6-27-2017)

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 nuisance abatement costs. To the extent possible, the city is also authorized to recover all nuisance abatement costs as part of any criminal action or proceeding. Each of the responsible parties shall be jointly and severally liable for all nuisance abatement costs. Unpaid nuisance abatement costs may be recovered as a lien or special assessment against the nuisance property, as provided in this chapter.

(Ord. No. 483-17, § 3, 6-27-2017)

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

B. In accordance with this chapter, the city shall serve upon each responsible party and each interested party an invoice identifying all nuisance 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 calendar 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 calendar days from the date of the invoice, request a hearing on the amount of nuisance abatement costs. A request for hearing must be made in writing to the city clerk and contain the following information:

1. The requestor's full legal name.

2. The requestor's valid mailing address for service.

3. The requestor's phone number.

4. The amount of nuisance abatement costs disputed.

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

E. The failure of any party to properly and timely request a hearing shall constitute a waiver of the right to contest the invoice, a waiver of the right to a hearing, a failure to exhaust administrative remedies, and a bar to any further challenge to the city's invoice and nuisance abatement costs.

(Ord. No. 483-17, § 3, 6-27-2017)

A. If a hearing is timely and properly requested, the city administrator's designee shall appoint a neutral and impartial hearing officer to hold and conduct an administrative hearing in accordance with this section. The employment, contract, performance evaluation, compensation, and benefits of the hearing officer, if any, shall not be directly or indirectly conditioned upon the decision of the hearing officer.

B. The city shall set a hearing to take place before the hearing officer within sixty calendar 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 responsible parties and interested parties at least ten calendar days prior to the hearing. The hearing notice shall specify that failure to appear at the hearing will constitute a waiver of the right to dispute the invoice and the nuisance abatement costs, a failure to exhaust administrative remedies, and a bar to any further challenge to the invoice or the nuisance abatement costs.

C. 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 specific parties that requested the hearing, and the city, may participate in the hearing.

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

E. At the conclusion of the hearing, or within five days thereafter, the hearing officer shall issue a decision upholding, denying, or modifying the amount of the nuisance abatement costs that the city is entitled to recover. The hearing officer's decision will also make a finding whether the city's nuisance abatement costs were entirely or substantially upheld, or entirely or substantially denied. The hearing officer's decision shall be final. The city shall serve notice of the hearing officer's decision in accordance with this chapter.

F. The city shall advance the costs of the hearing. If the city's nuisance abatement costs are entirely upheld or substantially upheld, then the city shall be the prevailing party and the requesting parties shall be jointly and severally liable for all of the costs of the hearing as well, and the costs of the hearing will be added into, and deemed part of, the upheld nuisance abatement costs. If the city's nuisance abatement costs are partially upheld, but are decided by the hearing officer to have been substantially denied, the city shall be the prevailing party, but the requesting parties shall not be required to reimburse the city for the costs of the hearing. If the city's nuisance abatement costs are entirely denied, the requesting parties shall be the prevailing parties and shall not have to pay the nuisance abatement costs nor the costs of the hearing.

G. The responsible parties shall pay the upheld amount of the nuisance abatement costs, including the costs of the hearing if the city's nuisance abatement costs were entirely or substantially upheld, to the city within thirty calendar days. Any upheld nuisance abatement costs or hearing costs that are not paid within thirty calendar days shall become a lien and special assessment against the nuisance property.

(Ord. No. 483-17, § 3, 6-27-2017)

A. Unless otherwise required under this chapter, all notices and documents required to be served under this chapter shall be served by certified mail with return receipt requested.

B. Service shall be deemed effective on the date of mailing.

C. The failure of a party to receive any notice or document properly served pursuant to this chapter shall not affect the validity of the notice or document, the validity of its service, or 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 on the city clerk 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. 483-17, § 3, 6-27-2017)

A. If the nuisance 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 lien against the nuisance property for any unpaid amount.

B. Prior to recording a 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 owner of record shall be served in accordance with Government Code section 38773.1.

C. The lien shall specify the amount of the lien, the name of the agency imposing the lien, the date of the abatement order, the street address, the legal description and assessor's parcel number of the nuisance property, and the name and address of the recorded owner of the nuisance property.

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

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

(Ord. No. 483-17, § 3, 6-27-2017)

A. If the nuisance 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 nuisance abatement costs. The special assessment may also be recorded against the nuisance property. The recording shall specify that the nuisance property may be sold after three years by the tax collector for the unpaid delinquent assessments.

B. Prior to recording, the city shall serve notice of the special assessment on all persons or entities with a recorded interest in the nuisance property. In addition, the nuisance property owner shall be served in accordance with Government Code section 38773.5.

C. Notice of the special assessment shall be provided to the tax collector for the county to add the amount of the special assessment 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 other property taxes are collected, subject to the same penalties and procedures under foreclosure and sale in case of delinquency as provided for other property taxes.

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

(Ord. No. 483-17, § 3, 6-27-2017)