Fillmore Municipal Code Art. II Continuing Violations

Footnotes:

--- (1) ---

Editor's note— Ord. No. 23-951, adopted July 11, 2023, amended Art. II in its entirety to read as herein set out. Former Art. II pertained to the same subject matter, consisted of §§ 1.09.090—1.09.220, and derived from Ord. 781, 2005; and Ord. No. 802, adopted June 26, 2007.

This article is adopted pursuant to California Government Code Sections 38773.1, 38773.5 and 53069.4 and provides for administrative remedies, which are in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this Code. The administrative remedies process set forth in this article applies to continuing violations of this Code, including, but not limited to, those uniform codes adopted by reference in section 5.04.010 of this Code. This article shall be used at the sole discretion of the city, subject to the provisions of this section.

(Ord. No. 23-951, § 1, 7-11-2023; Ord. No. 26-993, § 1, 3-10-2026)

Abatement means the demolition, destruction, removal, repair, rehabilitation, maintenance, construction, reconstruction, replacement, or reconditioning of structures, appliances or equipment; or the removal, transportation, disposal and treatment of waste and abandoned materials and equipment capable of harboring, breeding, or attracting rodents or insects or producing odors or blight.

City means the City of Fillmore.

Code means the entirety of the Fillmore Municipal Code.

Director means the city manager of the city, or designee.

Hearing officer means a neutral administrative adjudicator appointed by the city manager or designee to conduct hearings under this chapter and issue written decisions. The hearing officer shall not have participated in the investigation or enforcement of the matter on appeal.

Notice and order to abate means any order or notice of violation issued to the responsible person for violation of this Code directing the recipient to abate, correct, and/or remedy such violation.

Responsible person means any of the following:

1. A person who causes a code violation to occur.

2. A person who allows or maintains a code violation by his or her action or failure to act.

3. A person whose agent, employee, contractor, or subcontractor causes or maintains a code violation by his or her action or failure to act.

4. A person who is the owner of real property where a code violation involving that real property occurs.

5. A tenant, lessee, or sublessee with the current right of possession of real property where a code violation involving that real property occurs.

6. A person who is an on-site manager or supervisor for a business and directs the activities of the business where a code violation occurred.

For purposes of this subsection, there shall be a legal presumption that the owner of record of a parcel of real property listed in the county's most recent equalized property tax assessment rolls, and any tenant, lessee, or sublessee has notice of any code violations existing on that parcel of real property. The term "person" shall also be defined to include corporate entities.

(Ord. No. 23-951, § 1, 7-11-2023; Ord. No. 26-993, § 2, 3-10-2026)

A. The director shall have authority to summarily abate a nuisance that imminently endangers public health or safety. Any such abatement activity is exempt from the notice requirements of this chapter. The city is entitled to recover all abatement costs incurred in the abatement of an imminent threat or hazard to public health or safety.

B. The person who permitted, allowed, created, maintained, or authorized the creation or maintenance of the code violation shall be responsible for reimbursing the city for the cost of abatement. In the event the code violation is located on private property, then that property shall be subject to an assessment and placement of a lien in compliance with Section 1.09.150.

C. Any personal property, other than motor vehicles, causing, constituting, or containing a code violation that imminently endangers public health or safety may be immediately seized and removed by a representative of the city without prior notice to the owner of the personal property. Any costs incurred in salvage, disposal, or storage may be assessed against any responsible person.

1. Written notice of the seizure and removal of personal property shall be provided using one of the following methods:

a. By personal service or by regular mail addressed to the person believed to be the owner or otherwise lawfully entitled to possession of the personal property, if known;

b. By personal service or by regular mail addressed to the owner, occupant or person in charge of the real property adjacent to the location of the personal property at the time of seizure; or

c. By posting in a visible place on the lot or abutting public right-of-way.

2. Any personal property removed shall be stored in a safe place by the city for at least thirty days after the removal. If the owner has not claimed and removed the property from the city storage area within that time, then the property will be considered legally abandoned and the city may dispose of it as appropriate.

(Ord. No. 23-951, § 1, 7-11-2023; Ord. No. 26-993, § 3, 3-10-2026)

A. Within ten business days, or as soon as reasonably practical under the circumstances, following any summary abatement action by the city to abate a nuisance that imminently endangers public health or safety, the city must provide the owner and any other responsible party with a "notice of summary abatement." The city's failure to provide notice within ten business days shall not invalidate the summary abatement action if the delay was reasonable under the circumstances.

B. The notice of summary abatement shall be served in accordance with Section 1.09.105 and contain the following information:

1. A brief description of the nature of the nuisance and why it constituted an imminent threat or hazard;

2. A brief description of the law prohibiting or regulating the imminent threat or hazard;

3. A brief description of the actions undertaken by the city to abate the imminent threat or hazard; and

4. An itemized invoice of all costs related to the summary abatement of the nuisance. The invoice shall also state that any unpaid amounts may become a lien and special assessment against the property.

C. The city's determination that a nuisance constituted an imminent threat or hazard may be appealed as set forth in Section 1.09.120. The itemized invoice of the summary abatement costs may be appealed as set forth in Section 1.09.146.

D. Any party to whom an invoice for summary abatement costs 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. If the owner or other responsible person fails to remit full payment of the invoice within forty-five days of the issuance of the notice of summary abatement, or as ordered by the hearing officer after any appeal, the city may proceed to collect its summary abatement costs in any manner permitted by law, including as set forth in Section 1.09.150.

E. The failure of an owner or responsible person to receive the notice of summary abatement shall not render it defective or render any action or proceeding taken pursuant to this chapter invalid.

(Ord. No. 26-993, § 4, 3-10-2026)

If the director determines that a violation of any provision of this Code is occurring or exists, the director may issue a notice and order to abate in accordance with this section to all known responsible persons. The notice and order to abate shall be served on the property owner, and if different from the property owner, to each responsible person at the property address or other address by mailing a copy by certified mail, postage prepaid, return receipt requested, to the last known address of each such party, or by service in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the California Code of Civil Procedure. The notice and order to abate shall contain:

A. The street address, assessor's parcel number, or a legal description sufficient for identification of the property;

B. A brief description of the nature of the existing violation on the property and the violation that constitutes the nuisance which is to be abated;

C. A statement advising the responsible person that if the violation is not completely abated within fifteen days or such longer period as deemed appropriate and specified in the notice and order to abate, the city may initiate abatement procedures and abate the violation by city personnel or private contractors, with responsible persons being liable for all costs incurred to initiate abatement procedures and to abate the violation, including, but not limited to, all costs of inspection, investigation, assessment, repair, mitigation, remediation, removal, rehabilitation, security, storage, traffic control, law enforcement protection and other consequential direct and indirect costs relating to such abatement, including all administrative and legal fees and costs. These costs and fees shall be recoverable by the city notwithstanding any subsequent corrective action or abatement of the violation by any responsible person taken after the city has initiated abatement procedures, commencing with the service of this notice and order to abate; and

D. A statement advising the responsible person that the party may appeal the determinations set forth in this notice and order to abate to the city clerk by serving a written request for such an appeal on the city clerk within fifteen days from the date of service of the notice and order to abate. Failure of the responsible person to file an appeal with the city clerk within the fifteen-day time period shall constitute a waiver of the party's rights to contest the determinations set forth in the notice and order to abate.

(Ord. No. 23-951, § 1, 7-11-2023)

The director shall give the responsible person no less than fifteen days to comply with the notice and order to abate. The director may further extend the time for compliance, in their discretion.

(Ord. No. 23-951, § 1, 7-11-2023)

A. Within fifteen days from the date of service of the notice and order to abate, the responsible person may serve an appeal of the notice and order to abate to the city clerk. Such appeal shall be in writing and shall identify the property subject to the notice and order to abate. The hearing for an appeal must be heard within sixty days from the filing of the notice to appeal by the responsible party, unless the director determines that good cause exists for an extension of time.

B. Any notice and order to abate issued concerning application of the California Building Code, and other regulations governing construction, use, maintenance, and change of occupancy shall be appealable to an appeals board. For purposes of abatement appeals and appeal hearings, the city planning commission shall act as the appeals board as the city council has determined that planning commission members are sufficiently knowledgeable in the applicable building codes, regulations, and ordinances. As provided in California Building Code section 1.8.8.3, the planning commission shall serve as the "local appeals board" and the "housing appeals board" as those terms are defined and used therein. All other appeals shall be heard by the city council as provided in this chapter.

C. Failure to file an appeal with the city clerk within the fifteen-day time period shall constitute a waiver of the party's rights to contest the determinations set forth in the notice and order to abate.

(Ord. No. 23-951, § 1, 7-11-2023)

A. At least ten days prior to the hearing, the city council or planning commission shall give written notice of the time and place of the hearing to the party contesting the notice and order to abate and anyone else who received notice of notice and order to abate. Notice shall be served by personal service, first class mail or by posting a copy of the notice of hearing conspicuously on or in front of the property on which the violation is located.

B. Notice shall be served on the property owner, and if different from the property owner, to each responsible person at the property address or other address by mailing a copy by certified mail, postage prepaid, return receipt requested, to the last known address of each such party, or by service in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the California Code of Civil Procedure. If the mailed notice is returned marked "unclaimed" or "refused" then service shall nonetheless be considered valid upon receipt of the same by the city.

C. If the owners of record of the property, as shown on the last equalized assessment roll or the supplemental roll, whichever is more current, cannot be found after diligent search, the notice shall also be served by posting a copy on the property in a conspicuous place.

(Ord. No. 23-951, § 1, 7-11-2023)

A. At the hearing, the city council or planning commission shall hear and consider all relevant evidence including, but not limited to, testimony from owners, city personnel, witnesses and other interested parties, and may consider staff reports and other written evidence relative to the matter. The hearing may be continued from time to time. The hearing may be informally conducted, and the rules of evidence need not apply.

B. The failure of the appellant to appear at the appeal hearing shall constitute a waiver of any objections to the imposition and amount of the penalty, administrative costs or other appropriate legal remedy imposed by the city council or appeals board and shall constitute a failure to exhaust administrative remedies.

(Ord. No. 23-951, § 1, 7-11-2023)

The appeal hearing shall be conducted in accordance with the following:

A. At the conclusion of the hearing, but no later than five calendar days following conclusion of the hearing, the city council or planning commission shall determine if any violation exists at the subject property. If the city council or planning commission determines that each violation described in the notice and order to abate is non-existent, the notice to order and abate shall be deemed cancelled. If the city council or planning commission determines that one or more of the violations described in the notice and order to abate exists, he/she/they shall issue a written order of abatement which shall contain the following:

1. A finding and description of each violation condition existing at the subject property.

2. The name of each responsible person for a violation or violations at the subject property.

3. The required corrective action and a compliance period for each unabated violation.

4. Any other finding, determination or requirement that is relevant or related to the subject matter of the appeal.

B. The decision of the city council or planning commission is final and conclusive. The decision shall also contain the following statement: "The decision of the city council/planning commission is final and binding. Judicial review of this decision is subject to the provisions and time limits set forth in California Code of Civil Procedure Sections 1094.6 et seq."

C. A copy of the decision shall be served by first class mail on each responsible person to whom the notice and order to abate was issued. If the owner is not an appellant, a copy of the order of abatement shall also be served on the owner by first class mail and certified mail to the address shown on the last equalized assessment roll. Failure of a person to receive a properly addressed decision shall not invalidate any action or proceeding by the city pursuant to this chapter.

(Ord. No. 23-951, § 1, 7-11-2023)

A responsible person shall have the right to have the violations on the property abated, corrected, and/or remedied at his/her/their own expense, provided the necessary corrections are completed prior to the expiration of the order of abatement.

(Ord. No. 23-951, § 1, 7-11-2023)

If no appeal is filed of the notice and order to abate served under Section 1.09.105 or if the violation is not completely abated as described in Section 1.09.130, then the director is authorized and directed to cause the same to be abated by the city, and the director or his or her agents (e.g., city staff or private contractors) are expressly authorized to enter upon the property for such purpose, after obtaining a warrant for such entry and abatement from an appropriate court.

(Ord. No. 23-951, § 1, 7-11-2023; Ord. No. 26-993, § 5, 3-10-2026)

A. The director of community development shall keep an account of the costs for abating any violation on an owner's and/or responsible person's property. The costs may include any and all enforcement costs, including attorneys' fees, and incidental expenses incurred by the city in connection with, but not limited to, costs of investigation, staffing costs, costs for all re-inspections necessary to enforce the notice and order to abate, and all costs incurred in connection with abatement.

B. The city shall serve upon each responsible person and each interested person an invoice identifying all abatement costs related to the abatement of a violation.

C. Any person to whom an abatement cost 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 of the invoice shall be made to the city as specified in the invoice.

D. The abatement cost invoice shall further state that:

1. Any unpaid amounts may become a lien and special assessment against the property;

2. The city elects, at the initiation of all enforcement actions, to seek recovery of its enforcement costs and fees, including attorneys' fees and costs, if it is the prevailing party; and

3. The abatement cost invoice may be appealed as set forth in Section 1.09.146. If the abatement cost invoice is not appealed within fifteen days of the service of the invoice, it shall be deemed final.

(Ord. No. 23-951, § 1, 7-11-2023; Ord. No. 26-993, § 6, 3-10-2026)

A. Any responsible person or interested person to whom an invoice for abatement costs has been issued may, within fifteen days from the date of the service of the invoice, object to the amount of the abatement costs by serving an appeal of the abatement cost invoice on the city clerk.

B. The request for hearing must contain the following information:

1. The requestor's full legal name;

2. The requestor's mailing address and telephone number;

3. The amount of abatement costs disputed; and

4. The specific legal and factual basis for all objections to the cost abatement invoice and abatement costs.

C. Any cost abatement invoice shall be appealable to a hearing officer.

D. A hearing before the hearing officer shall be set for a date that is not less than ten days and not more than sixty days from the date that the request for hearing is filed in accordance with the provisions of this article, unless the hearing officer determines that the matter is urgent or that good cause exists for an extension of time.

E. At the hearing, the person objecting to the cost abatement invoice shall be given an opportunity to testify and to present evidence concerning the cost abatement invoice and the abatement costs.

F. The failure of any person objecting to the cost abatement invoice to timely request a hearing, or to appear at the hearing, shall constitute a waiver of the right to object to the cost abatement 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 cost abatement invoice and abatement costs. No judicial action may be maintained unless the administrative remedies set forth in this chapter have been exhausted.

G. The cost abatement invoice and any additional documents submitted by the city shall constitute prima facie evidence of the facts contained in those documents. The city shall have the burden of proving the reasonableness of the abatement costs by a preponderance of the evidence.

H. At the conclusion of the hearing, or within five days thereafter, the hearing officer shall issue a decision approving, denying or modifying the amount of the abatement costs that the city is entitled to recover.

(Ord. No. 26-993, § 7, 3-10-2026)

A. Lien procedure.

1. Pursuant to California Government Code Section 38773.1, a lien procedure is adopted to collect any nuisance abatement costs, including the city's actual costs of enforcement, any associated penalties, and the city attorney's fees and costs as administrative costs. A lien may be recorded on the real property of each responsible party, jointly and severally, within thirty days after the abatement costs invoice becomes final.

2. Prior to recording a lien, a notice shall be given to all persons or entities of record of the parcel of land on which the violation is maintained, based on the last equalized assessment roll or the supplement roll, whichever is more current. The notice shall be served in the same manner as a summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. If the responsible party or parties, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and by publication in a newspaper of general circulation published in Ventura County for a period of ten days.

3. After notice is given in accordance with the above, a lien shall be recorded in the Ventura County Recorder's office and shall constitute a lien on the real property for abatement costs. From the date of recording, the lien shall have the force, effect, and priority of a judgment lien.

4. A lien recorded pursuant to this section shall specify the amount of the lien, the name of the agency on whose behalf the lien is imposed, the date of the abatement order, the street address, the legal description and the assessor's parcel number of the parcel on which the lien is imposed and the name and address of the recorded owner of the parcel.

5. In the event the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge containing the same information as the notice of lien shall be recorded in the Ventura County Recorder's office by the city.

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

B. Special assessment.

1. Authority. In addition to, or as an alternative to, the lien procedure set forth in Section 1.09.150(A), if the city is the prevailing party in any action to abate a nuisance, including an administrative or special proceeding, the city may make any and all costs of abatement of a violation a special assessment against the subject property, in accordance with Government Code Section 38773.5, or as otherwise permitted by law. The costs of abatement may include all costs and expenses for abating any violation by the owner and/or responsible person for the subject property, as accounted for by the director, including, but not limited to, any and all enforcement costs, penalties, attorney's fees, investigative costs, staffing costs, costs for all re-inspections necessary to enforce the notice and order to abate, and any other costs incurred in connection with the abatement of a violation.

2. Notice requirements. Prior to the imposition of a special assessment under this subsection, the city shall provide written notice to the owner of record of the subject property of the proposed special assessment.

(a) Notice under this section shall be provided by certified mail, to the property owner, if the property owner's identity can be determined from the county assessor's or county recorder's records.

(b) Notices shall contain the following information:

i. A legal description, street address, assessor's parcel number and other description sufficient to identify the premises affected;

ii. A description of the violations of the code on the real property which caused the abatement;

iii. The total amount to be assessed;

iv. Notice of the date, time, and location of a public hearing at which the city council will consider confirmation of the proposed special assessment;

v. Notice of the property owner's right to object to the proposed special assessment and to be heard at the public hearing; and

vi. Specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments.

(c) Even if there is a failure of the property owner to receive the notice, the tax collector's power of sale shall not be affected.

3. Hearing and confirmation of special assessment.

(a) At the time and place fixed in the notice of proposed special assessment, the city council shall hear and consider all objections to the proposed special assessment. The city council may modify, correct, or confirm the proposed special assessment based upon the evidence presented.

(b) Following the hearing, the city council may confirm the special assessment by resolution. The resolution shall identify the subject property, the amount of the special assessment, and direct that that the assessment be certified to the county auditor-controller for placement on the secured property tax roll.

4. Certification and collection. Upon confirmation of the special assessment, the city shall certify the amount of the assessment to the county auditor-controller. The special assessment shall be collected at the same time and in the same manner as ordinary municipal taxes and shall be subject to the same penalties, procedures, and enforcement provisions applicable to ordinary municipal taxes.

(Ord. No. 23-951, § 1, 7-11-2023; Ord. No. 26-993, § 8, 3-10-2026)

The prevailing party in any action, administrative proceeding, or special proceeding to abate a public nuisance, or in any appeal or other judicial action arising therefrom, shall be entitled to recover its reasonable attorney's fees to the extent permitted by applicable law. Recovery of attorney's fees shall be limited to those actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorney's fees. In no action or proceeding shall an award of attorney's fees to a prevailing party exceed the amount of reasonable attorney's fees incurred by the city in the action or proceeding.

(Ord. No. 26-993, § 9, 3-10-2026)