Elk Grove Municipal Code Art. IV Enforcement Proceedings

A. Commencement of Proceedings. Whenever the Director has inspected or caused to be inspected any dwelling, and has determined that a violation of this chapter exists, the same being declared to be a public nuisance, the Director shall institute any appropriate action or proceedings to abate the violation by repair, rehabilitation, vacation or demolition of the building consistent with the procedures established herein or otherwise available by law.

B. Notice and Order. The Director shall issue a notice and order directed to the owner(s) of the dwelling as shown in the public record, and to all parties in interest. The notice and order shall contain:

1. Address. The street address and assessor’s parcel number or such other legal description sufficient for identification of the premises upon which the dwelling is located.

2. Nature of Violation. A statement that the Director has found the dwelling or portion thereof to be substandard and a brief factual description of each and every condition found to render the dwelling or portion thereof substandard as defined in this chapter.

3. Action Required. A statement of the action required to be taken as determined by the Director. The statement of the action required may advise as follows:

a. Repair. If the Director has determined that a dwelling must be repaired, then the Director shall order the dwelling or portion thereof to be repaired, that all required permits be secured therefor, and that the repair work shall actually commence within thirty (30) days from the date of the order, and shall be completed within such time as the Director shall determine is reasonable under all of the circumstances, including the purposes and intent for enactment of this chapter.

b. Choice between Repair and Demolition. The owner shall have the choice of repairing or demolishing. However, if the owner chooses to repair, the Director shall require that the building be brought into compliance with this chapter according to a reasonable and feasible schedule for expeditious repair. If the owner chooses to demolish the dwelling, all required permits for demolition must be secured within thirty (30) days from the date of the order and the demolition completed within such time as the Director shall determine is reasonable under all of the circumstances, including the purposes and intent for enactment of this chapter. If the owner fails to make a timely choice, fails to repair on schedule, or selects an option which cannot be completed in a reasonable time, as determined by the Director, for any reason, the City may itself institute abatement actions, including demolition if it determines repair is not economically feasible, and may thereafter seek to recover all costs thereby incurred from the owner which may become a lien against the subject property as a special assessment collectable in the same manner as City taxes.

c. Vacation. If the Director has determined that the building or portion thereof is in such condition as to make it immediately dangerous to the life, health, property or safety of its occupants, the public or adjacent property, the order shall require that the building or portion thereof shall be vacated within a time certain from the date of the order as determined by the Director to be reasonable under all of the circumstances, including the safety of the occupants and the public, as well as the purposes and intent for enactment of this chapter.

d. Securing Against Entry. If the building is to be vacated, the Director shall require also that the building or portion thereof be boarded and fenced against entry as provided in EGMC Chapter 16.23. The specifications for the boarding of vacant properties, dated August 1987, issued by the United States Department of Housing and Urban Development, or such other similar plans and specifications for boarding vacant properties as may be promulgated by State or Federal agencies and are designed to adequately protect against entry without creating any unreasonable risk to the life, health, property, safety, or welfare of the public shall be followed.

e. Eliminate Risk of Hazardous Material. If, following an inspection of a building or any portion thereof, the Director determines, in writing, that there is reasonable cause to believe that, because of the presence of friable asbestos or other hazardous material, there is a serious risk to the life, health, property, safety, or welfare of its occupants, the public, or the adjacent neighborhood, then the Director may order the owner of the building or the portion thereof to take all steps necessary to eliminate the risk within a time certain from the date of the order as determined by the Director to be reasonable under all of the circumstances, including the safety of the occupants and the public, as well as the purposes and intent for enactment of this chapter. To confirm the elimination of the risk, the owner of the building or portion thereof shall, at his or her expense and within the same time certain as established in the order, obtain the services of a qualified health professional acceptable to the Director to perform a comprehensive site assessment and prepare a written report to the Director detailing the absence of the risk.

4. Time Requirement to Commence Required Work. Statements advising that if any required repair or demolition work is not commenced within the time specified, the Director may, if warranted, order the building vacated and posted to prevent further occupancy until the work is completed, and may proceed to cause the work to be done and charge the costs thereof against the property or to its owner, or both.

5. Possible Sanctions for Noncompliance. Statements advising that if all required actions are not completed in accordance with the order and in compliance with the housing code, any or all of the following remedies may be employed:

a. Assessment of reinspection fees as described in Article XI of this chapter;

b. Enjoin owner from collecting rents, encumbering or transferring the property;

c. Assessment of all costs of enforcement and abatement as a lien against the property, including costs for: inspections, repair, boarding and fencing, vacation, demolition, appointment of a receiver and all costs and fees of the receiver including the receiver’s power to encumber the property, relocating the occupants for up to one hundred twenty (120) days, and reasonable attorneys’ fees and costs;

d. Civil contempt orders ranging in civil penalties up to Two Thousand Five Hundred and no/100ths ($2,500.00) Dollars per violation in certain instances, and up to Six Thousand and no/100ths ($6,000.00) Dollars per violation in other instances;

e. Criminal misdemeanor and/or infraction convictions ranging in criminal fines up to One Thousand and no/100ths ($1,000.00) Dollars and six (6) months in jail per violation in certain instances, and up to Five Thousand and no/100ths ($5,000.00) Dollars and twelve (12) months in jail per violation in other instances;

f. Inability to deduct from State taxes expenses for interest, taxes, depreciation or amortization associated with the building; and

g. Certain other injunctive and legal relief as may be warranted under the particular circumstances presented.

6. Repealed by Ord. 28-2011.

7. Repealed by Ord. 28-2011.

8. Repealed by Ord. 28-2011.

9. Repealed by Ord. 28-2011.

10. Repealed by Ord. 28-2011.

11. Lien for All Costs of Abatement. A statement that upon completion of all repairs or demolition the Director may present all costs of enforcement, including costs of repair or demolition ordered under this chapter, to the City Council for review and confirmation and possible assessment as a lien against the subject property as provided under EGMC Section 16.20.750 concerning recovery of costs of repair or demotion.

12. Possible Sanctions for Noncompliance. A statement advising that if all required actions are not completed in accordance with the order and in compliance with the housing code, any or all of the following remedies may be employed:

a. Assessment of reinspection fees as described in Article XI of this chapter;

b. Enjoin owner from collecting rents, encumbering or transferring the property;

c. Assessment of all costs of enforcement and abatement as a lien against the property, including costs for: inspections, repair, boarding and fencing, vacation, demolition, appointment of a receiver and all costs and fees of the receiver including the receiver’s power to encumber the property, relocating the occupants for up to one hundred twenty (120) days, and reasonable attorneys’ fees and costs;

d. Civil contempt orders ranging in civil penalties up to Two Thousand Five Hundred and no/100ths ($2,500.00) Dollars per violation in certain instances, and up to Six Thousand and no/100ths ($6,000.00) Dollars per violation in other instances;

e. Criminal misdemeanor and/or infraction convictions ranging in criminal fines up to One Thousand and no/100ths ($1,000.00) Dollars and six (6) months in jail per violation in certain instances, and up to Five Thousand and no/100ths ($5,000.00) Dollars and twelve (12) months in jail per violation in other instances;

f. Inability to deduct from State taxes, expenses for interest, taxes, depreciation or amortization associated with the building; and

g. Such other injunctive and legal relief as may be warranted under the particular circumstances presented.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009; Ord. 28-2011 § 1, eff. 11-25-2011)

A. Parties Entitled to Service. The notice and order, and any amended or supplemental notice and order, shall be served upon the owner, the occupant(s) and every party in interest as well as posted on the property, and one (1) copy thereof shall be served on each of the following if known to the Director or disclosed from the public record:

1. The holder of any mortgage or deed of trust or other lien or encumbrance of record;

2. The owner or holder of any lease of record; and

3. The holder of any other estate or legal interest of record in or to the building or portion thereof or the land on which it is located.

B. Effect of Failure to Serve Notice. The failure of the Director to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served, or relieve any such person from any duty or obligation imposed on him or her by the provisions of this section or by law.

C. Method of Service.

1. Address Known. Service of the notice and order shall be made on all persons entitled thereto either personally or by mailing a copy of such notice and order by certified mail, postage prepaid, return receipt requested, to each such person at his address as it appears on the last equalized assessment roll of the City or as known to the Director. Service shall be effective for all purposes upon receipt if personally served, or within five (5) days of mailing as herein provided.

2. Address Unknown. If no address of any such person so appears or is known to the Director, then a copy of the notice and order shall be mailed, addressed to such person, to the address of the building or portion thereof involved in the proceedings. The failure of any such person to receive such notice and order shall not affect the validity of any proceedings taken under this section or by law.

D. Proof of Service. Proof of service of the notice and order shall be certified at the time of service by a written declaration under penalty of perjury executed by the person(s) effecting service, declaring the time, date, and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the notice and order retained by the Director.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

A. Notice of Pending Enforcement Action. If compliance with an order is not had within the time specified therein or any extension authorized by the Director, and no appeal has been properly and timely filed, the Director shall file in the office of the Sacramento County Clerk-Recorder a notice describing the property and certifying that: 1) the dwelling or portion thereof is a nuisance as defined in this chapter; and 2) the owner has been so notified.

B. Certificate of Abatement. Whenever the repairs ordered shall thereafter have been completed or the dwelling demolished so that it no longer exists as a nuisance on the property described in the certificate, the Director shall file a new certificate with the Sacramento County Clerk-Recorder certifying that the dwelling or portion thereof has been repaired, or demolished, and that the dwelling or portion thereof is no longer a nuisance, whichever is appropriate under the circumstances.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

A. Owner’s Choice. Upon issuance of a notice and order, the owner shall have the choice of repairing or demolishing the dwelling or portion thereof at issue. However, if the owner chooses to repair the dwelling, the Director shall require that the dwelling be brought into compliance according to a reasonable and feasible schedule for expeditious repair.

B. City’s Authority to Act. Where the Director determines in light of the purpose and intent of this chapter that the violations of this chapter are extensive and of such a nature that the health and safety of the occupants or the public is substantially endangered, the City itself may cause the vacation of the dwelling, repair, demolish or institute any other appropriate action or proceeding if any of the following occur:

1. The repair work is not done as scheduled.

2. The owner does not make a timely choice of repair or demolition.

3. The owner selects an option which cannot be completed within a reasonable period of time, as determined by the Director, for any reason, including, but not limited to, an outstanding judicial or administrative order.

C. Preferences. In deciding whether to require vacation of the dwelling or to repair as necessary, the Director shall give preference to the repair of the dwelling whenever it is economically feasible to do so, without having to repair more than seventy-five (75%) percent of the dwelling, as determined by the Director, and shall give full consideration to the needs for housing in the City’s housing element.

If the Director has determined that it is not economically feasible to repair the building or portion thereof, and that the dwelling must be demolished, then the Director shall require the dwelling to be vacated within such time (not to exceed thirty (30) days from the date of the order) as the Director shall determine is reasonable under all of the circumstances including the purposes and intent for enactment of this chapter; all required permits for demolition be secured within thirty (30) days from the date of the order; and that the demolition be completed within such time as the Director shall determine is reasonable under all of the circumstances including the purposes and intent for enactment of this chapter. The economical feasibility to repair shall be determined as follows:

1. On the basis of a written appraisal of the dwelling performed by a qualified appraiser establishing its fair market value in its condition at the time of the notice and order issued under this chapter and its fair market value if repaired so as to meet the standards set forth in this chapter; and

2. On the basis of a written estimate prepared by a licensed general contractor detailing the repairs required to be made and the cost of the repairs.

Notice of the Director’s determination to demolish the dwelling or portions thereof shall be given to the owner and all parties in interest upon the Director’s determination that it is not economically feasible to repair the dwelling along with the notice of right to appeal such determination as provided under Article V of this chapter.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

A. At the time set for hearing, the Hearing Officer shall proceed to hear the testimony of the Director, the owner, any real party in interest, and other competent persons respecting the condition of the premises and other relevant facts concerning the matter. The Hearing Officer shall follow the rules of procedure for conducting hearings established by this code and shall render all decisions and findings in writing which shall then be served on all parties as herein provided.

B. Continuances. The Hearing Officer may, upon the request of the owner, any party in interest or the City, grant continuances from time to time for good cause shown, or upon his or her motion. A granted continuance shall in no way diminish the responsibility of the owner and/or parties in interest for maintaining the premises, nor affect other requirements of this code regarding time for challenging any decision made or actions taken.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

The proceedings at the hearing may be reported by a tape recorder. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the party’s own expense. It shall be the responsibility of the Hearing Officer to certify the record of the hearing.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

The Hearing Officer may, upon request of the owner, a party in interest, or the Director, grant continuances from time to time for good cause shown, or upon his or her own motion. Any continuance granted shall in no way diminish the responsibility of the owner and/or parties in interest for maintaining the premises, nor affect other requirements of this code regarding time for challenging any decisions made or actions taken.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

The Hearing Officer or certified shorthand reporter shall administer the oath or affirmation.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

Section 11513, subsections (a), (b) and (c) of the Government Code of the State of California as presently written or hereinafter amended shall apply to hearings conducted under this code.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

Each party may represent themselves, or be represented by anyone of their choice. Each party may appear at the hearing and offer evidence in this matter and cross examine witnesses.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this State.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

The Hearing Officer may inspect the premises involved in the hearing prior to, during or after the hearing; provided, that:

A. Notice of such inspection shall be given to the parties before the inspection is made;

B. The parties are given an opportunity to be present during the inspection; and

C. The Hearing Officer shall state for the record during the hearing, or file a written statement after the hearing for inclusion in the hearing record, upon completion of the inspection, the material facts observed and the conclusion drawn therefrom.

D. Each party then shall have a right to rebut or explain the matters so stated by the Hearing Officer either for the record during the hearing or by filing a written statement after the hearing for inclusion in the hearing record.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

A. Form. The decision of the Hearing Officer shall be in writing, shall contain findings of fact and a determination of the issues presented, and shall be issued no later than thirty (30) days from the date of the hearing, unless the time is waived by the parties.

B. Possible Orders. If it is shown by a preponderance of the evidence that the condition of the premises constitutes a public nuisance the decision shall require the owner to commence abatement of the nuisance not later than fifteen (15) days after the issuance of the decision, and that the abatement be completed within such time as specified by the Hearing Officer, or in the alternative, within the time designated by the Director. If the building, structure or premises is lawfully occupied, and abatement of the nuisance may not be safely accomplished under the circumstances as a result of such occupancy, the occupants may be ordered to vacate the premises under terms reasonable under the circumstances presented. The Hearing Officer may order such remedies as are reasonable under the circumstances for the protection of the public or affected property, and as are otherwise authorized by law or in equity, including the following: The owner shall be responsible for satisfying all relocation benefits, as may be required by law. The premises may be ordered fenced and boarded against entry. Regular patrol of the premises to ensure the integrity of such boarding and fencing measures may be ordered. (It is not the intent of this code to allow boarding and fencing of premises to substitute for abatement of the public nuisance; such actions are to be merely interim measures, lasting only so long as is necessary to protect the public and property until full abatement may be accomplished.) The Hearing Officer may order other measures which are reasonable and necessary for the protection of the public or property under the circumstances. The Hearing Officer’s decision shall inform the owner that if the nuisance is not abated within the time and in the manner specified, the nuisance may be abated by the City, without further notice or consent of the owner or any party in interest, in such manner as may be ordered by the Hearing Officer, and the expense thereof, including all costs of enforcement, and relocation benefits required to be paid by the City as a result of the owner’s failure to do so, may be made a lien on the subject property.

C. Time for Challenging Decision. The decision shall also inform the parties that the time within which one must file a challenge to the decision is governed by EGMC Chapter 1.06, as the same may be amended from time to time.

D. Decision Final. The decision of the Hearing Officer shall be final when signed and issued by the Hearing Officer and served as herein provided.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

Upon issuance of the Hearing Officer’s decision, the Director shall serve a copy on the owner and all parties in interest in the same manner as set forth in EGMC Section 16.20.405(A) and shall post a copy thereof conspicuously on the premises involved. Proof of service and posting of the Hearing Officer’s decision shall be effected in the same manner as set forth in EGMC Section 16.20.405(D).

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

Any challenge to the decision of the Hearing Officer and preparation of a record of the administrative proceeding shall be governed by the provisions of EGMC Chapter 1.06, as presently written or hereinafter amended.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

If the Director has determined that the dwelling or portion thereof is in such a condition as to make it immediately dangerous to the life, health, property or safety of its occupants, the public or adjacent property, the Director shall order that the dwelling, or portion thereof, shall be vacated within a time certain from the date of the order as determined reasonable by the Director under all of the circumstances, including the safety of the occupants and the public, as well as the purposes and intent of this chapter. Conditions that would cause a determination that the dwelling is immediately dangerous include, but are not limited to, violations of EGMC Section 16.20.200 and/or 16.20.350. The Director shall give notice of this order as provided in EGMC Section 16.20.400(B) concerning method of service and shall post such order as herein described.

The Director shall not require the vacating of a dwelling unless the Director concurrently requires expeditious demolition or repair to comply with the housing code. Expeditious repair or demolition may be required when conditions exist that violate EGMC Section 16.20.200 and/or 16.20.350.

A. Posting. Every notice to vacate shall, in addition to being served as provided in EGMC Section 16.20.400(B), be posted at or upon each exit of the dwelling and shall be in substantially the following form:

UNSAFE TO OCCUPY This building located at __________________________ has been found to be in violation of the California Health and Safety Code, section 17920.3 and Elk Grove Municipal Code Section 16.20.200(E) , and is hereby declared to be SUBSTANDARD and UNINHABITABLE. It is unlawful to occupy or allow occupancy of this building without inspection by the City of Elk Grove Code Enforcement Division. REASON FOR POSTING: _____________________ It is a misdemeanor to occupy this building (EGMC §§ 16.20.200(E) 16.20.100(O)) or to remove or deface this notice per Elk Grove Municipal Code Section 16.20.485(C) and Penal Code section 616 . For more information, contact the officer listed below.

B. Securing. Whenever the Director determines that a substandard dwelling constitutes an immediate threat to the public health or safety, the Director may secure the structure in accordance with the provisions in EGMC Chapter 16.23.

C. Compliance. Whenever such notice is posted, or a structure boarded pursuant to EGMC Chapter 16.23, the Director shall include a notification thereof in the notice and order issued by him or her under EGMC Section 16.20.400(B) reciting the existence of an immediate danger requiring the need to keep the premises unoccupied and specifying the conditions which cause the immediate danger. No person shall remain in or enter any dwelling which has been so posted, except that the entry may be made to repair, demolish or remove such dwelling under a proper permit issued by the Director. No person shall remove or deface any such notice after it is posted until the required repairs or demolition have been completed and approved by the Director as meeting the housing code and the other applicable standards of this chapter. No person shall remove or deface any boards without the prior written permission of the Director. Any person violating this subsection may be charged with either an infraction or misdemeanor offense as provided in EGMC Chapter 16.18.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009; Ord. 4-2012 § 3, eff. 4-27-2012)

Notwithstanding any provision herein to the contrary, occupants of a dwelling which is the subject of a notice and order issued under this chapter shall be provided notice of any violation described therein, including any decision by the Director or the City to vacate, repair or demolish, and the issuance of a building permit or demolition permit following issuance of such notice and order by the Director.

The notice described hereinabove may be provided either by first class mail to each affected dwelling unit, or by posting a copy of the document in a prominent place on the affected dwelling at the discretion of the Director.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)

The remedies provided in this chapter are cumulative and shall be in addition to any other remedies provided by law.

(Ord. 2000-1 § 1, eff. 7-1-2000; Ord. 2000-14A § 1, eff. 10-25-2000; Ord. 7-2009 § 3, eff. 5-1-2009)