Diamond Bar Municipal Code Ch. 22.78 Enforcement

This chapter provides procedures which are intended to ensure compliance with the requirements of this Development Code and the conditions of land use permit approval.

(Ord. No. 02(1998), § 2, 11-3-98)

(a) Public nuisance. Any use, structure, or property which is altered, enlarged, erected, established, maintained, moved or operated, contrary to the provisions of this Development Code or any applicable condition of approval, is hereby declared to be unlawful and a public nuisance, and shall be subject to the remedies and penalties specified in the Municipal Code, including this chapter.

(b) Infraction/misdemeanor. Any person, partnership, firm or corporation, whether as principal, agent, employee or otherwise, violating or failing to comply with any provision(s) of this Development Code or a condition imposed on any development permit, entitlement, map, or license, shall be guilty of an infraction on each separate day the violation or failure to comply exists, except as otherwise specified herein; provided that a person responsible for these violations who has previously been convicted three or more times during a 12-month period for any other violation(s) of this Development Code shall be guilty of a misdemeanor.

(c) Stop work order. Construction in violation of this Development Code or a condition(s) imposed on a permit shall be subject to the issuance of a "stop work order." A violation of a stop work order shall constitute a misdemeanor.

(Ord. No. 02(1998), § 2, 11-3-98)

All remedies contained in this Development Code for the handling of violations or enforcement of the provisions of this Development Code shall be cumulative and not exclusive of any other applicable provisions of city, county, state or federal law.

If a person is found guilty and convicted of an infraction or misdemeanor for the violation of any provision of this Development Code, the conviction shall not prevent the city from pursuing any other available remedy(s) to correct the violation.

(Ord. No. 02(1998), § 2, 11-3-98)

Every applicant seeking an application, permit or any other action in compliance with this Development Code shall allow appropriate city officials access to any premises or property which is the subject of the application. If the permit or other action, in compliance with this Development Code, is approved, the owner or applicant shall allow appropriate city officials access to the premises to determine continued compliance with the approved permit and/or any conditions of approval.

Failure to allow inspections for compliance shall automatically make all permits and approvals void.

(Ord. No. 02(1998), § 2, 11-3-98)

This section describes the procedures for initiating enforcement action in cases where the director has determined that property within the city is being used, maintained or allowed to exist in violation of the provisions of this Development Code. It is the objective of these provisions to encourage the voluntary cooperation of responsible parties in the prompt correction of violations, so that other enforcement measures, provided by this section, may be avoided.

(1) Notice to responsible parties. The director shall provide the record owner of the subject site and any person in possession or control of the site with a written notice of violation, which shall include the following information:

a. A time limit for correcting the violation, in compliance with subsection (2), below;

b. A statement that the city intends to charge the property owner for all administrative costs associated with the abatement of the violation(s), in compliance with section 22.78.070 (Recovery of costs), and/or initiate legal action as described in section 22.78.060 (Legal remedies); and

c. A statement that the property owner may request and be provided a meeting with the director to discuss possible methods and time limits for the correction of the violations.

(2) Time limit for correction. The notice of violation shall state that the violation shall be corrected within ten days from the date of the notice to avoid further enforcement action by the city, unless the responsible party contacts the director within that time to arrange for a longer period for correction. The director may approve a time extension where it is determined that the responsible party will likely correct the violation within a reasonable time.

If the director determines that the violation constitutes a hazard to public health or safety, or if deemed appropriate, the director may require immediate corrective action.

(3) Use of other enforcement procedures. The enforcement procedures of section 22.78.060 (Legal remedies) may be employed by the director after or instead of the provisions of this section where the director determines that this section would be ineffective in securing the correction of the violation within a designated period of time.

(Ord. No. 02(1998), § 2, 11-3-98)

The city may choose to undertake any of the following legal actions to correct and/or abate nuisances or violations of this Development Code:

(1) Civil actions.

a. Injunction. At the request of the council, on recommendation of the director, the city attorney may apply to a court of competent jurisdiction for injunctive relief to terminate a violation of this Development Code.

b. Abatement. Where a person, firm or corporation fails to abate a violation after being provided a notice of violation in compliance with section 22.78.050(1) (Notice to responsible parties) and the opportunity to correct or end the violation, the council, on recommendation of the director, may request the city attorney to apply to a court of competent jurisdiction for an order authorizing the city to undertake actions necessary to abate the violation and requiring the violator to pay for the cost of the actions.

(2) Civil remedies and penalties.

a. Civil penalties. Any person who willfully violates the provisions of this Development Code, or a permit issued in compliance with this Development Code, shall be liable for a civil penalty not to exceed the maximum amount allowed by law for each day that the violation continues to exist.

a. Costs and damages. Any person violating any provisions of this Development Code, or permits issued in compliance with this Development Code, shall be liable to the city for the costs incurred and the damages suffered by the city, its agents and agencies as a direct result of the violations. Costs shall include, but not be limited to, city staff costs, attorney fees, expert fees and court costs.

c. Procedure. In determining the amount of the civil penalty to impose, the court shall consider all relevant circumstances, including the following:

1. The extent of the harm caused by the conduct constituting a violation;

2. The nature and persistence of the conduct;

3. The length of time over which the conduct occurred;

4. The assets, liabilities and net worth of the defendant, whether corporate or individual; and

5. The corrective action taken by defendant.

(3) Criminal actions and penalties.

a. A person violating provisions of this Development Code, or a permit issued in compliance with this Development Code, shall be guilty of an infraction or a misdemeanor, in compliance with section 22.78.060(3)b., below, and upon conviction thereof, shall be punishable by a fine not exceeding those specified in the Municipal Code, chapter 1.04.

b. An offense that would otherwise be an infraction may, at the discretion of the city attorney, be filed as a misdemeanor if the defendant has previously been convicted three or more times during a 12-month period for any other violation(s) of this Development Code.

(Ord. No. 02(1998), § 2, 11-3-98; Ord. No. 04(2011), § 2, 7-5-11)

This section establishes procedures for the recovery of administrative costs (e.g., staff, legal, etc.), including staff time expended in the enforcement of the provisions of this Development Code, in cases where no permits are required to correct a violation. The intent of this section is to recover city administrative and legal costs reasonably related to the required enforcement action(s).

(1) Record of costs. The department shall maintain records of all administrative costs, incurred by responsible city departments, associated with the processing of violations and enforcement of this Development Code, and shall recover the costs from the property owner, in compliance with this section. Staff time shall be calculated at an hourly rate established and revised from time to time by the council. Attorney and expert time shall be based on the hourly rates paid by the city for those services.

(2) Notice. Upon investigation and a determination that a violation of a provision(s) of this Development Code is found to exist, the director shall send a notice to the record owner, or any person having possession or control of the property, and post a copy of the notice on the subject property, specifying the existence of the violation. The notice shall also specify the department's intent to charge the property owner for all administrative costs associated with enforcement and of the owner's right to a hearing on any objections they may have. The notice shall be in a form approved by the city attorney.

(3) Summary of costs and notice. At the conclusion of the case, the director shall send a summary of costs associated with enforcement to the owner and/or person having possession or control of the property by certified mail. The summary shall include a notice, in a form approved by the city attorney, advising the responsible party of their right to request a hearing on the charges for city cost recovery within ten days of the date of the notice, and that if no request for hearing is filed, the responsible party will be liable for the charges.

In the event that no request for hearing is timely filed or, after a hearing during which the director affirms the validity of the costs, the property owner and/or person in control shall be liable to the city in the amount stated in the summary or any lesser amount determined by the director. These costs shall be recoverable in a civil action in the name of the city, in a court of competent jurisdiction within the county.

(4) Request for hearing on costs. A property owner, and/or other person having possession or control of the subject property, who receives a summary of costs shall have the right to a hearing before the director on their objections to the proposed costs.

a. A request for hearing shall be filed with the department within ten days following the date of service of the department's summary of costs, on a form provided by the department.

b. Within 30 days of the filing of the request, and on ten days written notice to the owner, the director shall hold a hearing on the owner's objections and determine their validity.

c. In determining the validity of the costs, the director shall consider whether total costs are reasonable in the circumstances of the case. Factors to be considered include the following:

1. Whether the present owner created the violation(s);

2. Whether there is a present ability to correct the violation(s);

3. Whether the owner moved promptly to correct the violation(s);

4. The degree of cooperation provided by the owner; and

5. Whether reasonable minds can differ as to whether a violation(s) exists.

d. The director's decision shall be appealable to the council, in compliance with chapter 22.74 (Appeals).

(Ord. No. 02(1998), § 2, 11-3-98; Ord. No. 04(2011), § 3, 7-5-11)

A person who establishes a land use, or alters, constructs, enlarges, erects, maintains or moves a structure without first obtaining a permit required by this Development Code, shall pay the additional permit processing fees established by the city's fee resolution for the correction of the violation(s), before being granted a permit for a use or structure on the site.

(Ord. No. 02(1998), § 2, 11-3-98)

(a) A reinspection fee shall be imposed on each person who receives a notice of violation, notice and order or letter of correction of any provision of the Municipal Code, adopted building code or state law. The fee amount shall be established by the city's fee resolution. The fee may be assessed for each inspection or reinspection conducted when the particular violation for which an inspection or reinspection is scheduled is not fully abated or corrected as directed by, and within the time and manner specified in, the notice or letter.

The fee shall not apply to the original inspection to document the violations and shall not apply to the first scheduled compliance inspection made after the issuance of a notice or letter, whether or not the correction has been made.

(b) If a notice or letter has been previously issued for the same violation and the property has been in compliance with the provisions of this Development Code or the Municipal Code for less than six months, the violation shall be deemed a continuation of the original case and all inspections or reinspections, including the first inspection for the repeated offense, shall be charged a reinspection fee. This fee is intended to compensate for administrative costs for unnecessary city inspections, and not as a penalty for violating this Development Code or the Municipal Code.

Any reinspection fee(s) imposed shall be separate and apart from any fines or penalties imposed for violation of this Development Code or the Municipal Code, or costs incurred by the city for the abatement of a public nuisance.

(Ord. No. 02(1998), § 2, 11-3-98)