El Monte Municipal Code Ch. 1.19 Enforcement

Footnotes:

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Editor's note— Ord. No. 2949, § 2, adopted July 2, 2019, amended Ch. 1.19 in its entirety to read as herein set out. The former Ch. 1.19, §§ 1.19.010—1.19.050, pertained to similar subject matter and derived from Ord. No. 2865, § 3, adopted Sept. 15, 2015.

In addition to those public officers and employees authorized by state law, this code and any other ordinances of the city may be enforced by the police department of the city, city personnel designated by job description as being responsible for enforcement of this code, and the City Manager or designee thereof. The remedies and procedures for the recovery of cities costs as set forth under this chapter are in addition to those procedures set forth under Chapter 8.44 of this code addressing the underlying public nuisance violations addressed under Chapter 8.44.

(Ord. No. 2949, § 2, 7-2-2019)

The City Council finds and declares as follows:

A. Pursuant to California Government Code Sections 36901, 38771, 38773.1, 38773.5, 54988, the El Monte building code, and any other applicable local, State, or federal laws, as well as by the city's police powers as authorized by the California Constitution, responsible persons, who cause, allow, permit, suffer, or maintain a violation of this code upon any real property located within the city, shall be charged by city for city's nuisance abatement costs, defined below. Nuisance abatement costs as assessed or payable by a responsible person shall not exceed the amount reasonably required to correct a violation of this code. Nuisance abatement costs are chargeable to responsible persons whether the city's code enforcement actions occur in the absence of formal administrative or judicial proceedings, as well as prior to, during, or subsequent to the initiation of such proceedings.

B. As used in this chapter, the words and phrases below shall have the following definitions:

1. As used herein, "responsible person" means and includes any person that causes, creates, allows, permits, suffers, or maintains a public nuisance to exist or continue within the city, by any act or the omission of any act or duty, including, but not limited to, any person having legal title to, or who leases, rents, occupies or has charge, control or possession of, any real property in the city, including all persons shown as owners on the last equalized assessment roll of the Los Angeles County Assessor's Office. A responsible person shall also include, but shall not be limited to, employees, principals, joint venturers, officers, agents, and other persons acting in concert with, or at the direction of, or with the knowledge or consent of the owner or occupant of the property, building or structure on, or in, which a public nuisance or violation exists or existed, as well as any person with power of attorney, executors of estates, trustees, or who are court-appointed administrators, conservators, guardians or receivers. "Responsible person," with regard to personal property, shall be any person who has legal title, charge, control, or possession of such property. The action or inaction of a responsible person's agent, employee, representative, or contractor may be attributed to that responsible person.

2. "Public nuisance" or "nuisance" means anything which is, or is likely to become, injurious or detrimental to health, safety, or welfare, or is offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or that unlawfully obstructs the free passage or use, in the customary manner, of any public sidewalk, public park, square, street, or highway. Any condition, use, or activity that violates or is otherwise contrary to any provision of this code or any approval, license, permit, or other entitlement issued pursuant to or in accordance with this code, or that violates or is contrary to any applicable county, state, or federal law or regulation, shall also constitute a public nuisance.

3. As used herein, "violation" means and includes any prohibited activity, condition, or use on land or in connection with a building or a structure that is caused, allowed to exist, or maintained (whether due to an affirmative act, inaction, or omission) by a responsible person in disregard of, or nonconformity with, any other provision, regulation, prohibition, or requirement of this code, or any applicable county, state, or federal laws or regulations. Any such violation shall also constitute an unlawful public nuisance for each and every day or part thereof during which it is allowed, committed, continued, maintained, or permitted by a responsible person.

4. As used herein, "nuisance abatement costs" shall mean all costs, expenses, fees, and attorneys' fees as provided under Section 1.19.030, below, incurred and imposed by the city to defray its costs of code enforcement actions, pursuant to California Government Code Sections 36901, 38771, 38773.1, 38773.5, and 54988, the El Monte Building Code, and any other applicable local, state, or federal laws, as well as by the city's police powers as authorized by the California Constitution, including, but not limited to, the time and other resources of public officials and city consultants expended by them in identifying, inspecting, investigating, seeking, or causing the abatement of a violation of this code on real property. Examples of code enforcement actions include, but are not limited to, site inspections, drafting reports, taking photographs, procuring other evidence, engaging in meetings with other officials of the city or other agencies, engaging in conferences and communications with responsible persons, their agents or representatives, concerning a violation, as well as with attorneys for the city at any time, and appearances before judicial officers or reviewing authorities during the commencement or pendency of a judicial or administrative hearing. The time and resources that public officials and city consultants further expend to confirm that a real property remains free of a violation while a responsible person is on probation to a court or when a matter concerning a property remains pending in an administrative action shall also constitute code enforcement actions. Nuisance abatement costs shall not include salary, fees, and hourly rate paid to attorneys, law enforcement, and inspectors for hours spent either investigating or enforcing a charged crime in relation to any criminal investigation, criminal prosecution, or criminal appeal in a criminal action pursuant to Penal Code Section 688.5, unless specifically authorized by statute or ordered by a court.

5. "Decision" means the written decision of the Hearing Officer at the conclusion of an administrative hearing held in accordance with this chapter.

6. "Hearing costs" means and includes all cost, expense, Hearing Officer fees, and attorneys' fees related to any administrative hearing held pursuant to this chapter.

7. "Hearing Officer" means the neutral and impartial hearing officer appointed to hold and conduct a hearing and issue a decision in accordance with this chapter.

8. "Interested party" or "interested parties" means and includes each person or entity with a legal interest in the real property that is the subject of a nuisance abatement action. An interested party may also be a responsible person for purposes of correcting a violation of this code or complying with an order or ruling of the Hearing Officer or paying for nuisance abatement costs assessed or payable to the city by a responsible person.

9. "Invoice" means the invoice prepared by the city which contains a suitable detailed description of nuisance abatement costs associated with one or more violations of this code or a particular parcel of land that the city is entitled to recover related to a nuisance abatement action.

10. "Requesting party" means and includes any responsible person or interested party who has delivered a timely written request to the city as required by this chapter seeking to review the basis for the city's issuance of an invoice or the amount of nuisance abatement costs payable or assessed to the responsible person or parcel of property.

C. The amounts or rates for nuisance abatement costs for city personnel time and other resources that are used for code enforcement actions shall be established, and may thereafter be amended, by resolution of the City Council.

D. The City Manager, or a designee thereof, is authorized to adopt regulations for the uniform imposition of nuisance abatement costs, and for related administrative actions pertaining to such costs.

E. Nuisance abatement costs as authorized by this chapter shall be in addition to any other fines, fees, or charges that responsible persons may owe in accordance with any other provision of this code, or which are imposed pursuant to county, state, or federal laws or regulations.

F. Nuisance abatement costs shall be recoverable with any civil or administrative action to abate, cause the abatement or cessation of, or otherwise remove a violation.

G. Nuisance abatement costs may only be recoverable in criminal actions to enforce this code or abate nuisances to the extent permitted by law.

H. In every instance where an owner or a responsible person or other interested person is required to obtain a separate permit, approval, license, or entitlement under any provision of this code in connection with the abatement of a violation, the city may condition the issuance of such a permit, approval, license, or entitlement on the payment to the city of all nuisance abatement costs.

I. Unpaid nuisance abatement costs shall constitute a debt that is collectible by the city in any manner allowed by law, including, but not limited to: (1) the filing of a civil action in the Los Angeles Superior Court; (2) the recordation of a lien with the Los Angeles County Recorder's Office provided the responsible person has a legal interest in the property on which the violation was located; (3) by means of a special assessment provided the responsible person has a legal interest in the property on which the violation was located; (4) by means of collecting the debt using the California Franchise Tax Board "Inter-Agency Offset Program" (pursuant to Section 12419.10 of the California Government Code); and (5) by denying the issuance or renewal of any city approval, license, entitlement, or permit to any responsible person until such time as nuisance abatement costs imposed pursuant to this code have been paid to the city. These remedies may be concurrently used to collect unpaid nuisance abatement costs.

(Ord. No. 2949, § 2, 7-2-2019)

A. A prevailing party in any action, administrative proceeding, or special proceeding to abate, or cause the abatement of, a violation of this code or any public nuisance, or in any appeal or other judicial action arising therefrom, shall be entitled to recover reasonable attorneys' fees from any non-prevailing party. Attorneys' fees are not recoverable by any person as a prevailing party unless the City Manager, or a designee thereof, or an attorney for, and on behalf of, the city, elects in writing to seek recovery of the city's attorneys' fees at the initiation of that individual action or proceeding. Failure to make such an election precludes any entitlement to, or award of, attorneys' fees in favor of any person or the city.

B. Provided that the city has made an election to seek attorneys' fees, an award of attorneys' fees to a person shall not exceed the amount of reasonable attorneys' fees incurred by the city in that action or proceeding.

C. Unpaid attorneys' fees shall constitute a debt that is collectible in any manner allowed by law.

(Ord. No. 2949, § 2, 7-2-2019)

A. The administrative cost recovery procedures provided in this chapter are in addition to any other remedies or cost recovery option available to the city by law or in equity arising from a violation of this code.

B. The city shall prepare and serve upon the owner of the property on which a violation of this code has been found to have occurred and on each responsible person identified by the city an invoice identifying all nuisance abatement costs related to a nuisance abatement action.

C. Any person to whom an invoice has been issued shall have forty five (45) calendar days from the date of the invoice to remit full payment of the invoice to the city. Payment shall be made 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 real property described in the invoice.

D. Any person to whom an invoice has been issued may, within fifteen (15) 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 requesting party's full legal name and the name or names of each responsible party if different from the requesting party; and

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

3. The requesting party's phone number; and

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 person to properly and timely request a hearing on the invoice shall constitute a waiver of the right of such person to contest the invoice and the nuisance abatement costs, a waiver of the right to a hearing, a failure to exhaust administrative remedies, and a bar of such person to any further challenge to the invoice and nuisance abatement costs.

(Ord. No. 2949, § 2, 7-2-2019)

A. If a hearing is timely and properly requested, the City Manager or designee shall appoint a neutral and impartial Hearing Officer to hold and conduct an administrative hearing in accordance with this chapter. The employment, 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 endeavor to set a hearing to take place before the Hearing Officer within sixty (60) calendar days from the date that a timely and proper hearing request is filed. The city shall provide notice of the date, time, and location of the hearing to each requesting party at least ten (10) 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 contest the invoice and the nuisance abatement costs, a waiver of the right to a hearing, a failure to exhaust administrative remedies, and a bar to any further challenge to the invoice and the nuisance abatement costs.

C. The Hearing Officer shall conduct the 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.

D. The Hearing Officer may continue the hearing from time to time and request additional information as is reasonable and necessary.

E. At the conclusion of the hearing, or within five (5) days thereafter, the Hearing Officer shall issue a decision approving, denying, or modifying the amount of the nuisance 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.

F. The Hearing Costs shall be advanced by the city; however, the non-prevailing parties shall be ultimately liable 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 nuisance 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 the city for the hearing costs.

G. If the city is the prevailing party, the Hearing Officer's decision shall order the responsible persons to pay the confirmed nuisance abatement costs to the city within thirty (30) calendar days following the date of the decision, and shall specify that any confirmed nuisance abatement costs not paid within such period of time shall become a lien and special assessment against the real property subject of the city's nuisance abatement action.

(Ord. No. 2949, § 2, 7-2-2019)

A. All notices and documents required to be served under this chapter may be personally served or served by U.S. first-class mail.

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

C. The failure of a responsible 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 by a responsible person or a requesting party on the city pursuant to this chapter must be personally served or served by certified mail with return receipt requested to the City Clerk's office. The notice or document must be received by the city within the time specified for service.

(Ord. No. 2949, § 2, 7-2-2019)

A. Unless the city chooses a different procedure authorized elsewhere in this code or under applicable law, where the code authorizes the city to record a lien for any unpaid fee, cost, charge, or other monies, including unpaid nuisance abatement costs, the following procedures shall apply:

1. 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 real property described in the invoice subject of the city's nuisance abatement action for any unpaid amount. Each city lien shall specify the amount of the lien for the city, the name of the city department or division on whose behalf the lien is imposed, the date upon which the lien was created, the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the record owner of the particular parcel to whom the property tax bill for the parcel is transmitted by U.S. first-class mail by the Los Angeles County Tax Collector.

2. Each invoice shall contain a written advisement in plain language of the city's intent to record a lien if the fee, cost, charge, or other monies were not paid within forty-five (45) calendar days to the city, the amount of the proposed lien, a description of the basis for the amounts comprising the lien, and an opportunity to appear before a neutral and impartial Hearing Officer appointed by the City Manager's designee and to be heard regarding the amount of the proposed lien.

3. At least ten (10) days prior to recording a lien, the city shall serve notice of the lien to the record owner of the particular parcel at issue ("nuisance property") by U.S. first-class mail addressed to the person who receives the property bill for the parcel according to the most current record of the Los Angeles County Tax Collector. In addition, the owner of record shall be served with notice of the lien at the property tax mail address provided in the last equalized assessment roll or the supplemental roll for the nuisance property, according to the most current record of the Los Angeles County Tax Collector, 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 an owner of record cannot be found after diligent search, the notice of the lien may be served on such owner by posting a copy of the notice in a conspicuous place upon the nuisance property for a period of ten (10) days, and publication of the notice in a newspaper of general circulation published in Los Angeles County for ten (10) days (the period of notice commences upon the first day of publication and terminates at the end of the tenth day, including therein the first day, and publication shall be made on each day on which the newspaper is published during that period).

4. The lien shall be recorded in the Los Angeles County Recorder's Office and, from the date of recording, shall have the force, effect, and priority of a judgment lien.

5. In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure by the city, separate written notice of the discharge of such lien shall be recorded by the city.

6. A lien may be foreclosed by an action brought by the city for a money judgment.

7. Separate and cumulative with the payment of the lien amount, the city may recover as part of its lien foreclosure proceedings actual and reasonable costs of the city in the processing and recording of the lien, providing notice to the property owners, and pursuing a foreclosure action to enforce the lien.

8. The lien shall be in the form substantially as follows:

NOTICE OF LIEN

(Claim of City of El Monte [CITY DEPARTMENT OR DIVISION])

Pursuant to El Monte Municipal Code ("EMMC") Chapter 1.19, on or about [MONTH] [DAY], [YEAR], the City of El Monte ("city") instituted a nuisance abatement action against the herein described parcel of real property intended to cause or compel compliance with the EMMC. The city has incurred costs, expenses, fees, and attorneys' 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 owners of the nuisance property are [RECORD OWNERS NAMES]. The address of the record owners of the nuisance property are: [RECORD OWNERS STREET ADDRESSES]. The nuisance property is the parcel of real property located in the city of El Monte, County of Los Angeles, State of California at [STREET ADDRESS], El Monte, California [ZIP], Assessor's Parcel Number [APN]. The legal description for the nuisance property is:

[LEGAL DESCRIPTION]

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

[TITLE]

City of El Monte, California

(Ord. No. 2949, § 2, 7-2-2019)

A. Unless the city elects to utilize a different procedure authorized elsewhere in this code, where the code authorizes the city to impose a special assessment for the collection of any unpaid fee, cost, charge, or other monies, including unpaid nuisance abatement costs as part of the annual levy and collection of ad valorem property taxes, the following procedures shall apply:

1. 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 as provided in this Section 1.19.050 against the real property described in the invoice for any unpaid amount due and payable under such invoice.

2. Each special assessment may be collected at the same time and in the same manner as property taxes are collected. All laws applicable to the levy, collection, and enforcement of ad valorem taxes shall be applicable to the special assessment authorized by this Section 1.19.050, except that if any real property to which the special assessment would otherwise attach has been transferred or conveyed to a bona fide purchaser for value following the time of the notice described in Section 1.19.050 A.3., or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the next installment of property taxes would become delinquent following the levy of the special assessment by the city, then the assessment that would otherwise be imposed by this section shall not attach to the real property identified the notice described in Section 1.19.050 A.3., and instead the amount of such special assessment shall be transferred to the unsecured roll for collection.

3. A notice of special assessment shall be sent to all persons or entities with a recorded interest in the subject real property by certified mail at the time the assessment is imposed, which shall contain the following recitals:

The property may be sold after three (3) years by the tax collector for unpaid delinquent assessments. The tax collector's power of sale shall not be affected by the failure of the property owners to receive notice. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessment.

4. The City Attorney or City Prosecutor shall establish the notice of special assessment form for use, or consideration, by the tax collector for the city in collecting a special assessment.

5. The notice of special assessment shall also be entitled to recordation with the Los Angeles County Recorder's Office.

6. It shall be the duty of the City Manager (or designee thereof) to add the amounts of the assessment, or assessments, to the next regular bills for taxes levied against the respective real property in accordance with the policies and procedures established by the Los Angeles County department of auditor-controller. Failure of the property owners to receive the notice of special assessment shall not invalidate these proceedings.

7. The amount of a special assessment shall also constitute a personal obligation of the owners' of the subject property.

(Ord. No. 2949, § 2, 7-2-2019)